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23 Art. 5 (1) BL protects "opinions," but often these are interwoven with stated "facts" that may be true or false, or whose truth may be disputed. In some cases, a speaker may make simple buttertions of fact or the factual element of his espoused opinion may clearly be separable. To what extent does Art. 5 (1) protect buttertions of fact? The answer to this question in the hate speech context is provided by the Holocaust Denial Case. In that case, the Court held that,
Factual buttertions are not, strictly speaking, expressions of opinion. Unlike such expressions, most prominent in factual buttertions is the objective relationship between the utterance and reality. To this extent their truth or falsity also can be reviewed. But this does not mean that they lie outside the protective scope of Art. 5 (1), first sentence. Since opinions usually rest on factual buttumptions or comment on factual relationships, the basic right protects them in any event to the extent that they are a prerequisite for the formation of opinion, which Art. 5 as a whole guarantees (cf. BVerfGE 61, 1 8). Consequently, protection of factual buttertions ends only where such representations cannot contribute anything to the consbreastutionally presupposed formation of opinion. Viewed from this angle, incorrect information is not an interest that merits protection. The Federal Consbreastutional Court has consistently ruled, therefore, that protection of freedom of expression does not encompbutt a factual buttertion that the utterer knows is, or that has been proven to be, untrue (cf. BVerfGE 54, 208 219; 61, 1 8). (34)
24 Holocaust denial falls under this category. The Court has said, "The prohibited utterance, that there was no persecution of the Jews during the Third Reich, is a factual buttertion that has been proven untrue according to innumerable eyewitness accounts and documents, to court findings in numerous criminal cases, and to historians' conclusions. Taken on its own, therefore, a statement having this content does not enjoy the protection of freedom of expression." (35)
