Versammlungsfreiheit in öffentlichen Einrichtungen

Abstract

Freedom of assembly in public institutions

Traditionally, municipalities have broad discretion about the range of the access to their own public facilities, because these are treated only as voluntary services. Citizens do not have the original right to use them, so mostly cannot help following the conditions determined by their administrators. However, according to the decisions of the Federal Constitutional Court, especially the Fraport-Decision (2011), the freedom of assembly (Art. 8.1 Basic Law) should be guaranteed in the places which are opened to general communication. Citizens have the right to hold political assemblies there, even if the administrators want to forbid them. Some academic writings have realized that this logic has effects on the legal conditions to use the public facilities which are suited for the various events open to visitors. The effects can also be seen in a decision of the Federal Administrative Court. This article explains then that the logic of the Fraport-Decision is applicable also to the indoor halls and rooms where various open events are held. Moreover, it introduces the doctrine of the “limited public forum” which has been developed in the decisions of the Supreme Court of the United States and acknowledges the necessity to review carefully the constitutionality of allegedly subject-matter based exclusions. At last, this article shows concretely how the traditional legal theory about public facilities should be revised from the viewpoint of the constitutional guarantee of the freedom of assembly.