Judgment of the Federal Administrative Court: The Israel-critical BDS movement may be a topic in city halls – politics

It went surprisingly quickly on Wednesday in Leipzig. The process at the Federal Administrative Court was over in less than an hour. The presiding judge of the eighth Senate, Ulla Held-Daab, had already made it clear in which direction the dispute over the BDS campaign critical of Israel (“Boycott, Divestment and Sanctions”) would go: for freedom of expression, against indirect sanctions.

The attempt by the city of Munich to deny BDS events access to public halls by city council decision from 2017 must be seen as such. The fundamental right to freedom of expression is violated if the use of a public facility is excluded solely because the planned event is intended to deal with a specific topic, it was later stated in the pronouncement of the judgment (8 C 35.20). The BDS people are entitled to access the hall.

The movement has been accused of anti-Semitism

The supporters of BDS see themselves as representatives of Palestinian civil society and address their radical criticism of the Israeli state, which they believe violates human rights with its policies. Among other things, they are calling for a boycott of the purchase of Israeli goods. In it there will be many seen a form of anti-Semitism, because such actions directly affect the citizens of Israel. Two years after the Munich City Council decision, the Bundestag has also sharply condemned the actions of the organization. The fact that municipalities deny the BDS access to public spaces was expressly welcomed.

But as it turns out, such a restriction is not tenable. A citizen of Munich had complained who wanted to have the city council’s decision addressed as an example in a panel discussion. Title question: “How much does Munich restrict freedom of expression?”. According to the wording of the resolution, it is very broad: it prohibits use if you want to deal with the “content, topics and goals” of the BDS campaign or want to support it. So the city refused.

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The man from Munich sued and initially lost before the administrative court. On the other hand, he was successful in his appeal to the Bavarian Administrative Court (VGH). The VGH ruled that municipalities were not authorized to deny access to public facilities solely because of expected unwanted expressions of opinion. The reference to a basic anti-Semitic tendency in BDS from the city’s point of view is not enough. This can only be justified if the campaign endangers the “peacefulness of public debate”.

The Federal Administrative Court has now largely confirmed this view following the appeal hearing requested by the city. According to municipal law, the hall was also dedicated to local political discussion events. This dedication is inadmissibly restricted with the anti-BDS decision, which is why the measure as a whole is illegal and ineffective.

Aggression and breaking the law are not to be expected, according to the court

From the point of view of the judges, the city council resolution is not a legal statute and does not make any general regulation in this sense that might be suitable for restricting the right to freedom of expression. “The decision is not neutral to opinions,” it said. Such an intervention is only justified if expressions of opinion “leave the intellectual sphere of what you think is right”, turn into dangerous situations and thus mark the transition to aggression and violation of the law. “According to the factual findings of the appeal judgment, this is not to be expected at the event planned by the plaintiff.”

As expected, the court again left open the question of whether the BDS movement is anti-Semitic. However, the fact that the judgment positions itself against the BDS-critical decision of the Bundestag should give cause for further discussions. The question is whether it should remain in its current form. Or whether laws should be created that could allow the movement to be excluded from the use of public halls.