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"balancing of interest"

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laurent Click to EMail laurentClick to check IP address of the poster 24-Jul-00, 06:39 PM (GMT)
"balancing of interest"
Regarding freedom of speech and its limits,
I have a question : is the concept of "balancing of interests" in american first amendment law identical to the one in german law.
Can someone give me a legal definition of an interest compared to a right.
thanks for your input.
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Freedom of speech, gd, 25-Jul-00, (1)
RE: Freedom of speech, laurent, 26-Jul-00, (2)

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gd Click to EMail gdClick to view user profileClick to check IP address of the poster 25-Jul-00, 07:30 AM (GMT)
1. "Freedom of speech"
Instead of a specific reply, here is a general one. Freedom of speech is an important constitutional right under both US and German law. German law has some limitations to freedom of speech written into the constitution (see Art. 5 Grundgesetz - <http://iuscomp.org/gla/statutes/GG.htm. Additionally, the German Federal Constitutional Court will go further into balancing freedom of speech with other constitutional rights, in particular Art. 1 and 2 GG, which give rise to a right to privacy.

See also: Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany;
Markesinis, The German Law of Obligations Vol. II: The Law of Torts, 3rd ed. OUP 1997.

Gerhard Dannemann

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laurent Click to EMail laurentClick to check IP address of the poster 26-Jul-00, 05:34 PM (GMT)
2. "RE: Freedom of speech"
Thanks indeed for the bibliography.
Actually, I read quite a lot on the topic, and I have trouble understanding the German vocabulary when the BVerfG uses the terms "value", "right" or "interest" in connection with freedom of speech.
Also, I am not sure if I understand well the use of the proportionnality test. Does the COurt make a difference between 2 situations of balancing : one using the proport. test when there is a conflitc between a fundamental freedom and a state infringment / one using a different test when there is a conflict between 2 fundamental rights...
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