Abstract

Legally Safeguarding „Truth“ – on the Distinction of Opinions and Statements of Fact

The deliberate spreading of false statements of fact raises increasing concerns in democratic societies. This leads to the question if the interest in adequate factual information may justify legal interventions by the state. Such an interest in safeguarding „truth“ can, in principle, be recognized, since human beliefs and decision-making are based on factual premises. Legal rules safeguarding „truth“, however, would have to be specifically tailored to this purpose of preserving the conditions of autonomous human action. As long as this restraint is observed, such rules would not imply any totalitarian tendencies. Neither will such legal rules go against the liberal assumptions underlying the freedom of expression. For these assumptions do not apply in the same way to statements of fact as they do to value statements. This observation sheds light on this central distinction governing the law of free speech. The distinction is grounded in the divergent social-normative templates that are being followed when processing value statements as opposed to factual information. While, in the first case, listeners are being addressed as autonomous subjects, able and supposed to form their own opinions, in the latter case they act as optimal processors of factual information according to tightly structured social programs. In short: Opinion is what demands a positioning, while facts claim to be accepted as given. Departing from this theoretical conception statements of brute fact should be excluded from protection by the freedom of expression – whithout regard to their truth value. This would mark an important difference to the freedom of the press and of receiving information which both do include statements of brute fact. The rest of the article fleshes out the doctrinal and practical implications of this claim.