Academic institutions as spaces for scholarly debate and research – the rights to academic freedom and freedom of speech

Many of those we interviewed stated that they do not participate in public debate because of the heated atmosphere and potential consequences. Initial surveys paint a picture of self-censorship among academics whose research relates to the Israeli-Palestinian conflict. Across the board, academics who do contribute to this debate now routinely experience personal threats. This deprives public debate of significant expertise reflecting the diversity of scholarly positions around this conflict that could otherwise enhance differentiated analysis.

Apart from threats to academics and self-censorship, other trends observed at German universities are placing academic freedom at risk. Although the autonomy of higher education institutions is enshrined in Germany’s Basic Law, political decision-makers fail to respect that autonomy when they call for an event to be cancelled by the university administration or by the organizers or seek to influence the composition of a panel. Universities have yielded to this pressure on a number of occasions. There is nothing new, however, about controversy surrounding invited speakers in higher education: they are part and parcel of the public negotiation about shared fundamental values and about the limits of what can be said. Whenever the executive attempts to restrict the framework for discourse, its quality is manifestly affected. Over the last two years, this has above all been the case in discussing what criticisms can legitimately be raised about the conduct of the Israeli state in the Gaza conflict and on the West Bank and what criticisms should be categorized as antisemitic. Here the “Staatsräson” proclaimed by Germany’s federal government runs the risk of constraining research and academic discussion devoted to the definition of antisemitism as well as research into state violence and its legal assessment. The pressure is not confined to demands to exclude certain speakers and/or their positions from the debate. Sometimes events are canceled by arguing that safety cannot be guaranteed for all participants in the event of a countermobilization. This turns a debate about justifying positions on the Israeli-Palestinian conflict into a debate about campus security.

The overall effect is to generate a nervous university climate and to endanger the university’s role as a space to produce knowledge. For a range of individuals, the decision to go ahead and express a view by invoking academic freedom incurs additional risks: they stand to face consequences that hinge on citizenship, employment status and positionality. For academics and students from abroad or with a background of migration, exercising academic freedom is complicated in various respects. First, the threat of disciplinary measures may have an impact on their residence status or citizenship. In the case of Palestinian and Jewish scholars, academic credentials are sometimes challenged due to their biographical links with the conflict, or else these experts may find their role reduced to that of an affected party. In the debate about what can and cannot be said about the Israeli-Palestinian conflict, German academics, who are likewise parties to this conflict, do not have their credentials questioned. This creates an uneven playing field for participating in discourse by ruling out positions perceived as especially controversial. As a result, perspectives that are key to understanding and managing the conflict are excluded from the production of knowledge. The impact is especially severe on doctoral students and postdocs who have temporary contracts and are hence more dependent on the support of their supervisors. 

As a society we need academics who can confidently exercise and defend their rights to academic freedom and freedom of opinion because they play a significant role in identifying social problems and providing the language and concepts to understand and manage political conflicts. For this to be equally possible for all, it is not enough for individuals to cite their academic freedom. Under the current circumstances, it is more important to organize, to support one another and to campaign for a university that ensures the material and structural conditions where the production of knowledge can benefit from hearing many different perspectives and approaches.

First and foremost, however, university administrations have a duty to champion academic freedom. This means working within the university to eliminate structural discrimination and dependent relationships by listening to those concerned. When university administrations come under pressure from the general public or from politicians, they must invoke their constitutional autonomy as a crucial pillar of academic freedom. This means, among other things, that when an academic event is being held the administration should draw attention to the scholarly competence of the professors and academic staff involved. If they do not, the constraints currently being rehearsed in society by executive powers will be easier to roll out into other areas in future.  

“Arts and sciences, research and teaching shall be free.” Article 5(3) sentence 1 of the German Basic Law protects both individual and institutional freedom of research. In particular, it protects the free choice of research topics, methods, and the implementation and utilization of findings. In addition, the Basic Law guarantees respect for equal treatment and the principle that no one should be disadvantaged because of their political opinions. Political selection in the allocation of state research funds would violate this prohibition of discrimination and the freedom of research.

Universities are free to impose organizational or administrative requirements within the scope of their institutional autonomy and in compliance with fundamental rights (for example, to ensure “good scientific practice” or comply with ethical standards and budgetary provisions). However, influencing the content of a research project would constitute an infringement of the freedom of research protected by the Basic Law and it requires special justification.

Third-party funders, both public and private, may set objective, transparent funding criteria, such as thematic priorities or cooperation requirements. This does not constitute impermissible interference with the freedom of researchas long as researchers are not obliged to participate in these programs. It would be inadmissible, on the other hand, to allocate funds based on the applicants’ political views rather than on objectively justified criteria. Such a differentiation would violate both the principle of equal treatment and the prohibition of political discrimination and would, moreover, usually constitute interference with the freedom of research. 

The German Ministry of Research can, for example, set up a research funding program to combat antisemitism that invites proposals for projects about antisemitic discourse in Germany or Europe, including discourse related to the conflict between Israel and Palestine. This is because the objective is clearly defined (prevention of antisemitism) and researchers are free to decide whether to apply. The evaluation is based not on political opinion, but rather on academic quality and funding eligibility. The program does not constitute an impairment of research freedom as no content is excluded if it objectively fulfills the thematic framework. 

By contrast, it would be inadmissible for a public funding body to reject an application for a project on Israeli occupation policy in the West Bank because the applicant had made statements critical of Israel in the past, even though the project formally meets the criteria for the call for proposals. Such a rejection would constitute discrimination on the grounds of political opinion. It would not be objectively justified, because the decision would derive not from the content of the project or from any academic criteria, but from the researcher’s political stance. Furthermore, such an exclusion would, by effectively suppressing a certain perspective on the conflict between Israel and Palestine, constitute an infringement of the freedom of research. 

If funding is officially denied for any other reason ‒ such as an alleged lack of “academic quality” or “social relevance” or else “incompatibility with funding guidelines” ‒ even though the decisive factor was the applicant’s political stance, this constitutes covert discrimination. This is just as unlawful but much more difficult to prove. It is an established principle of public law, however, that prima facie evidence of discrimination, such as striking deviations from previous funding decisions or inconsistent reasoning, is sufficient to reverse the burden of proof. 

Armaghan Naghipour (Attorney, former State Secretary for Higher Education and Research) 

Generally speaking, a university cannot dictate the content of teaching or penalize what is said in a classroom because Article 5(3) sentence 1 of the German Basic Law provides broad protection for academic freedom, which covers both the choice of topics and the content of teaching. Instructors may be required to meet certain organizational requirements, such as examination regulations, accreditation requirements or general study objectives. However, these requirements must not undermine academic freedom, as this would disregard the intrinsic rationale of academic research and teaching. Academic freedom is undermined whenever organizational requirements functionally amount to content control. This occurs, for example, if the university prescribes or prohibits specific academic viewpoints, excludes critical or politically sensitive perspectives, demands prior approval of teaching materials, formulates learning outcomes so narrowly that alternative approaches become impossible, or penalizes instructors for academically substantiated statements made in class. Such measures exceed the university’s legitimate organizational purposes and are incompatible with Article 5(3) sentence 1 of the Basic Law.

The specific regulations adopted by the federal states must comply with the principles of the Basic Law outlined above. In Berlin, for example, academic and artistic freedom is regulated by the Berlin Higher Education Act in its Section 5. This act stipulates that freedom of teaching includes the content and methodological design of courses (within the university’s educational objectives) as well as the right to express scholarly and artistic opinions. While university administrators can make decisions about how to organize teaching and can adopt and enforce study and examination regulations, they must not impair the freedom of teaching. 

Freedom of teaching includes being able to adopt a position on a controversial topic, such as the current situation in Israel/Palestine. This falls within the scope of protection if it is embedded in argumentation and is academically sound. For example, a lecturer who argues that Israel’s warmaking in Gaza constitutes “genocide” and supports that argument with reference to the literature of international law is exercising a protected freedom and the university is not entitled to respond with disciplinary measures. However, if the same lecturer were to refer to Israelis in general as murderers and employ antisemitic clichés rather than reasoned argument and factual evidence to evaluate Israeli state policies, their case would lack academic foundation and the university would be entitled to apply disciplinary measures. In general, whether a statement made in a classroom – or in public – can be penalized depends on whether it violates applicable law or university standards. There are potential legal limits to what can be said. 

• Defamation and slander: If a statement made during a course violates the personal rights of third parties by, for example, putting forward false factual claims that damage a person’s reputation, this could have legal consequences.
• Incitement to hatred: If a lecturer says something during a course that disturbs public order or incites hatred against particular ethnic, racial, religious or national groups, this may be punishable. That is especially relevant if the statement incites violence or discrimination. According to German criminal law, public order is disturbed when a statement is objectively capable of endangering peaceful social coexistence by inciting hostile attitudes, legitimizingdiscrimination or violence, or dehumanizing a protected group, thereby creating a climate of fear or aggression.
• Insult: If the lecturer’s statements contain insults that attack the dignity of others, this could be punishable.
• Discrimination: Statements that contain discriminatory (such as racist) content may violate anti-discrimination laws and lead to penalties.
• Violations of university guidelines: Universities have internal regulations and codes of conduct that must be observed while teaching. Lecturers who violate these regulations may face disciplinary action.

Armaghan Naghipour (Attorney, former State Secretary for Higher Education and Research) 

When making public statements, whether at events, in the media or on social networks, academics are protected by both freedom of expression and, under certain conditions, academic freedom. For statements to be protected by academic freedom, they must refer to verifiable research findings. The protection of freedom of expression is broader. 

Freedom of expression is guaranteed in Germany’s Basic Law. It protects the right of every person to freely express and disseminate their opinions in speech, writing and pictures. These are subjective value judgments that do not necessarily have to be based on well-substantiated knowledge or methodology. These statements may, for example, relate to political, social or ethical issues. Article 5(2) of the Basic Law defines the limits of freedom of expression. In particular, it is subject to general laws (such as criminal law, civil service law) and the protection of personal dignity.

The scope of protection for academic freedom, enshrined in Article 5(3), is more narrowly defined. This freedom is guaranteed to anyone who is (or wishes to become) involved in academic work. It protects research activities, i.e., the acquisition of methodically organized, verifiable, comprehensible knowledge as well as its publication and circulation. This means that statements made on talk shows, in newspaper interviews or on social media may also fall under academic freedom if they are form part of a recognizable debate among specialists and refer to related research results. Academic freedom encompasses both “research” and “teaching” in recognition of the close relationship between the two. Research and teaching are by no means only undertaken by universities and research institutions but are central to the scholarly and scientific activity of individuals. 

It is not always easy to distinguish academic freedom from freedom of expression. According to established case law, the decisive factor is whether the statement is based on methodologically verifiable findings and can be classified as scientific or scholarly discourse. However, the norm not only protects prevailing scholarly views or scientific theories. It extends to minority opinions, research approaches and results that eventually prove to be erroneous or misguided, as well as unorthodox or intuitive methods. 

Armaghan Naghipour (Attorney, former State Secretary for Higher Education and Research) 

Universities are not allowed to impose restrictions on the content of research or teaching. Restrictions on content are only possible under certain circumstances; for example, if they arise from the educational purpose of the university or the rights of third parties. For example, a university may stop a lecturer from displaying identifiable images of injured civilians from Gaza or Israel without consent because this would infringe the rights and dignity of the individuals shown. The restriction does not target the political content itself but protects third-party rights while leaving academic debate on the conflict untouched. However, universities can set the organizational framework, for example, by deciding on the allocation of teaching assignments or the distribution of resources.

If an event is academic in nature, neither political decision-makers nor the university leadership may influence its substantive content ‒ for example, by determining the agenda or selecting speakers. Any such control over matters of content would violate Article 5(3) of the Basic Law, which attaches priority to academic freedom.

Measures based on the university’s domiciliary rights ‒ such as security strategies, access controls or the cancellation of events ‒ are only permissible to protect well-functioning research and teaching. They require either an actual disruption to have occurred or else a “sufficiently specific and imminent threat.” Although domiciliary rights are preventive, intervention is allowed only where a specific danger is foreseeable; abstract concerns, political sensitivities or speculative fears do not meet this threshold and cannot justify such measures.

What constitutes a concrete threat to the orderly functioning of the university (“Universitätsfrieden”) is not regulated by law. According to established case law, it is considered to be at risk when orderly and undisturbed coexistence and cooperation between members of a university, especially in research, teaching and study, are specifically impaired or threatened by certain actions or conditions. This is the case when force or coercion is used (for example, byblocking events), when events or research are made impossible by ongoing disruption, or when certain behavior is likely to “significantly impair the functioning of the university.” By contrast, mere expressions of discontent, differences of opinion or protests that do not cause disruption are not sufficient grounds for such a ban. The orderly functioning of the university must, however, be distinguished from domestic peace, which relates to the protection of the physical premises under the university’s domiciliary rights. Domestic peace concerns the integrity and security of campus spaces, whereas the former protects the university’s core academic functions.

In recent years, event participants who openly support the BDS (Boycott, Divest, Sanction) movement against Israel have attracted particular attention. Since the German Bundestag’s BDS resolution in 2019, BDS supporters have frequently been disinvited, not only in the university context but also in the arts sector, by decision-makers invoking that resolution. In a more recent resolution from 2024, the Bundestag reaffirms the 2019 BDS resolution and calls on state institutions to refuse financial support to organizations and projects that actively support the BDS movement. However the BDS movement may be judged, it is important to recognize that these simple parliamentary resolutions by the Bundestag are not legally binding. This was confirmed by the Research Services of the German Bundestag, who state in their paper:

“The resolution, therefore, does not oblige local authorities to prohibit individuals or organizations affiliated with and supporting the BDS movement from using public spaces. The resolution of the German Bundestag does not constitute a legal basis for decisions prohibiting individuals from appearing in public spaces or events funded by public funds. Such decisions always require a legal basis.”

A valid “legal basis in each individual case” requires pre-existing legislation, including police or security statutes. These laws only permit restrictions if a specific danger has been identified or an objective justification neutral in its content has been provided. An expectation that politically undesirable speech may be used is not enough. 

It is incompatible with Germany’s Basic Law, therefore, to exclude persons or groups affiliated with the BDS movement from using a public space solely because undesirable expressions of opinion are expected. Since Article 5(1) provides maximum protection for political expression, such a restriction would be unconstitutional unless, as described above, it is justified by a concrete, legally recognized danger, and not by the anticipated expression of apolitically objectionable opinion.

Tendenzbetriebe, for which there is no simple English translation, are a category of organizations which “pursue political, coalition, religious, charitable, educational, scientific or artistic objectives”. Examples include religious communities, party-affiliated foundations, private institutes of higher education with a denominational affiliation and research institutions such as the Max Planck Society.

The Max Planck Society, for example, although organized as a private association, is regarded as a non-state research institution entrusted with public tasks. According to articles 2–4 of its Statute, the Society is publicly financed and mandated to carry out foundational scientific research for the common good. Given its structural characteristics, it can justifiably be argued that it is bound, by virtue of their horizontal effect, to respect fundamental rights. This means that academic freedom and freedom of expression apply within the Society but may be restricted to the extent that the organization legitimately regulates its own research mission and internal scientific standards, provided that such restrictions are objective, proportionate and founded on the Society’s statutory purpose. In its case law, the Federal Constitutional Court treats institutional academic freedom and individual academic freedom as rights of equal constitutional weight; any conflict must, therefore, be resolved through “practical concordance” (“praktische Konkordanz”). In practice, this means that limitations on researchers’ academic freedom within the Society are not per se unlawful, but they must comply with the principle of proportionality. In other words, they must be suitable, necessary and appropriate to safeguarding the organization’s legitimate institutional interests, such as ensuring scientific quality, maintaining a coherent research program or preserving operational integrity. 

Armaghan Naghipour (Attorney, former State Secretary for Higher Education and Research) 

The university is a public institution and performs sovereign tasks. Therefore, if a decision or measure taken by the university constitutes an infringement of fundamental rights (see above questions), you may consider filing an administrative lawsuit with the administrative court. Examples of interference include warnings, course transfers, unlawful failures to protect your academic freedom or unjustified restrictions on teaching. A declaratory action can be brought to review the legality of the interference – if, for example, the university has canceled or significantly amended your course without any factual or legal basis. In that case, you could file a lawsuit with the competent administrative court to have the decision reviewed and, if necessary, overturned. 

If the interference is urgent (such as a sudden cancellation or change to your course), you can apply to the administrative court for a temporary injunction (provisional order) to stop the interference until a final decision on the lawsuit has been made. 

If you are employed as a lecturer or professor or are a civil servant, disciplinary measures may be taken against you by the institution that employs you. In this case, you can defend yourself against such penalties. For example, if you have been given a warning for “inappropriate behavior” that may be related to your teaching or teaching methods, you can file a lawsuit under administrative law directed at your employer (the university). 

If the interference with your course leads to a breach of contractual agreements or violations of rights – if, for example, the university denies you financial resources or sabotages your academic work – a civil lawsuit may also be an option. If you fulfill your contractually agreed teaching obligations as a lecturer but the university does not provide the necessary resources (such as rooms or funds), a civil lawsuit for damages or fulfillment of the contract could be brought against the university. 

Armaghan Naghipour (Attorney, former State Secretary for Higher Education and Research)