Article 5.3 of Germany’s Basic Law states: “Arts and sciences, research and teaching shall be free.” The special protection granted to the sciences is based on the idea – repeatedly emphasized by the German Federal Constitutional Court – that science ultimately serves state and society best when it is free from societal notions of utility and political expediency. Science is the attempt to ascertain the truth by a serious and systematic approach both in content and form. That is where science differentiates itself from other forms of knowledge and communication. Science derives its unique character from rationality. Hence, conspiracy theories and pseudo-sciences do not fall under the name of science.

The Scope and Limits of the Freedom to Research, Teach, and Publish

In keeping with the Humboldtian ideal, the fundamental right to academic freedom protects scientific research. This includes the free choice of research questions and methods, the evaluation of research results, and their distribution through publications, lectures, and other formats. At the same time, the freedom to teach guarantees that the dissemination of acquired knowledge is also protected. In that respect, instructors are fundamentally at liberty to determine what content they teach, how they structure their courses, and which methods they incorporate.

Academic freedom applies to anyone who is independently engaged in scientific work or who intends to pursue such work. It is not just professors who are protected, but also advanced lecturers, postdoctoral researchers, and students who are conducting research for bachelor’s or master’s theses. Protected places and spaces are not only public universities but also non-university research institutions as well as private universities. However, these institutions can assert academic freedom only in their relations with regard to measures of state authorities but not in relation to their own researchers and instructors. With regard to the latter, universities themselves are obligated to respect the academic freedom of those working within them. Examples of constitutional restrictions on academic freedom that require justification include prohibiting specific research projects or subjects (e.g., civil clauses), making it necessary to acquire special permission for research projects (e.g., ethics committees), or other regulations laid down by the university regarding the use of a specific language.

At the same time, the state has a duty to protect academic freedom from limitations being imposed by private third parties. In addition, state authorities are responsible for ensuring an independent, well-functioning scientific system. At the same time, universities must create the framework conditions necessary to ensure that its members can freely carry out research and teaching.

At a first glance, academic freedom seems to be firmly anchored in the German Basic Law with no reservations. However, limitations may be imposed upon academic freedom in the interest of other goods also protected by the constitution. Academic freedom may be limited, for example, when it comes to protecting animals, the environment, or the fundamental rights of third parties. As a consequence, it is necessary to weigh the diverging interests in order to come to an agreement that is ideally to everyone’s advantage. The only explicit limitation placed on freedom of teaching is the requirement of loyalty to the constitution. This means that courses may not be misused for anti-constitutional agitation beyond the bounds of academically grounded criticism of the German Basic Law. This ties in with the duty of political loyalty for tenured professors with the status of civil servants. They are required to recognize the constitutional order as worthy of protection, to affirm their commitment to it, and to advocate for it in particular when they express themselves outside their area of academic expertise.

Academic Freedom vs. Freedom of Speech and Assembly: General Aspects of a Complex and Sensitive Matter

There is overlap between the right to academic freedom and the freedom of speech comprising the right to freely express and disseminate opinions (Art. 5.2 of the German Basic Law) – both represent important rights of communication that are fundamental to democracy. However, it is necessary to make a distinction between the two, as freedom of speech according to German constitutional law can be more easily restricted. It is “easier” for state authorities and university management to react to statements made by a researcher when these represent an opinion and not a scientific pronouncement. However, making a distinction can be problematic, for example, when professors begin spreading conspiracy theories under the guise of science and fact. Drawing a line is not easy, which makes it difficult for university management to react to controversial attitudes expressed by its members – for example, in the form of a public statement or by distancing themselves. Opinions protected by the freedom of speech are first and foremost value judgments. Regardless of whether they are considered well-founded or unfounded, emotional or rational, valuable or worthless, dangerous or harmless, the constitutional law guarantees that opinions can be expressed freely. Factual statements are also protected by law, provided they contribute to the formation of opinion and are not knowingly false or deliberately deceptive. In contrast, scientific statements are characterized by their rationality and a claim to objective validity that is closely tied to disciplinary expertise. When, for example, scholars speak outside their area of academic qualification, this is more likely to be regarded as an expression of opinion rather than a scientific statement. At a time where science is taking on an increasingly prominent role within society and universities more often become the stage for political conflicts, the distinction between scientific statements and expressions of opinion is becoming more and more relevant.

This also touches on another area of tension – namely, the relationship between academic freedom and the freedom of speech and the freedom of assembly within the university context. Students sometimes oppose courses or guest lectures through protests on campus or in lecture halls – whether due to the individuals involved or their views expressed or for general political reasons – and occasionally use these protests to demand specific actions from university leadership. The right to freedom of assembly applies on the campuses of public universities, but not in lecture halls and seminar rooms, at least when they are being used for teaching purposes. In these cases, only freedom of speech applies.

Measures taken by the police against student protests on university campuses infringe on the students’ right to freedom of assembly. However, they may be justified, particularly when undertaken to protect academic freedom (e.g., to prevent disruptions of lectures or guest lectures). This duty of protection corresponds to the university’s right to have individuals removed from its property, which may be delegated to individual departments and faculties. When balancing these interests, it is necessary to consider the extent of the disruption to teaching. In this context it should be taken into account, for example, whether the act of protest is merely a brief announcement before or after an event, or whether it does significantly disrupt the event or stop it even completely? After all, it is a question of proportionality. In this regard the principle of democracy as well as the rule of law do shape not only the action of public authorities but the rules of academic life as well.