Application to the ECtHR after the German Constitutional Court had expressed their trademark indifference, read “is not accepted”, or more prolixic with Michaela Hailbronner in ‘Rethinking the rise of the German Constitutional Court: From anti- Nazism to value formalism‘: “Nor is the Court’s jurisprudence particularly concerned with minorities or especially internationalist compared to other courts, contrary to what the thesis would imply”.
There lurks of course always the dreaded single-judge decision like here and here where you are given the privilege of a short letter. In it you are being informed that your application was not considered. You probably did not meet the undisclosed expectations in Strasbourg, or something as they don’t provide a reason. Of course that judge has never read your application.
“It has been well documented that non-judicial rapporteurs (Registry officers) sift through, assess and categorise the many incoming applications.”
It’s like in a company, operations need to be streamlined to achieve maximum shareholder value, so to speak. Recommended reading would be ‘Defer or Revise? Horizontal Dialogue Between UN Treaty Bodies and Regional Human Rights Courts in Duplicative Legal Proceedings‘.
“Protocol No. 14 replaced the Committee of three judges with single judges, who may declare inadmissible any application that clearly fails to meet the admissibility requirements. The introduction of the single-judge formation managed to significantly reduce the backlog of the ECHR, despite its ever-growing caseload: in 2020, they accounted for 79% of the cases disposed by the Court. Moreover, with the introduction of the single-judge procedure, rejection letters became even more opaque. Whereas inadmissibility decisions taken by Committees of three judges summarily listed the grounds on which the application was rejected, the applicants were now merely informed by the ECtHR’s registry that a single judge rejected their application for not meeting the admissibility conditions laid down in Articles 34 and 35 of the ECHR. Nothing more, nothing less.”
You’re welcome.
Application with the ECtHR
E. Statement of the facts
Conviction for insulting a judge as a racist in accordance with Section 185 of the Criminal Code (StGB).
The applicant (hereinafter ‘A.’) and his Tibetan daughter returned to Germany from Nepal in 2005 because of the Maoist movement there and the deterioration of public and school life. For years, he has been involved in legal disputes with the Munich Jobcenter (hereinafter ‘JC’), which has massively disadvantaged his daughter. In two cases, money legitimately earned from a vacation job was withheld and the costs of visiting her mother in Nepal were refused. In the meantime, the family file was deliberately destroyed at the Munich Youth Office around 2022/23.
Judge Ehegartner (hereinafter Judge E.) of the Social Court (SC) engaged in systematic discrimination of A.’s daughter. His modus operandi is notorious lying about objections not submitted, deny lawyer to inspect the files and ignoring her for over two years in three cases concerning A.’s daughter. The A. has filed to date twelve motions for recusal against the judge to no avail, plus criminal complaints. Requests for assistance with the President of the SC have been fruitless.
From June 2020 to Nov. 2022, the President of the SC Dr. Mente embarked on a vendetta against the A. and flooded the public prosecutor with documents of the A. for alleged insults of Judge E. She even complained about a fax in which the A. “warmly recommended that she read the Federal Constitutional Court – 1 PBVU 1/02” and had quoted several paragraphs. Even after the judgment of the Local Court of Oct. 2022 (no. 813 Ds 259 Js 202987/21) the president continued with a complaint with police near the A.’s place of residence in Nov. 2022. Prof. Freyd observed “that actual abusers threaten, bully and make a nightmare for anyone who holds them accountable or asks them to change their abusive behavior. This attack, intended to chill and terrify, typically includes threats of law suits …“.
The charges resulted in two decisions of the Local Court, no. 845 Ds 259 Js 153060/20 (A 3) and 813 Ds 259 Js 202987/21. (A 4) The courts had threatened to arrest the A. if he failed to appear. These two cases were brought to a joint hearing no. 28 Ns 259 Js 153060/20 at the Regional Court (RC). A public defender was appointed by the court. The A. had made eight requests for file inspection in case 813 Ds 259 Js 202987/21. Initially it was granted, then immediately revoked. They were perhaps embarrassing for the president. The defense lawyer refused access as well.
The A. informed the RC by fax in Nov. 2022 (A 5) of 10 cases in which Judge E. had lied and in some suppressed documents. Case S 42 AS 1398/16 (exercise of right to visit mother in Nepal) is particularly unsettling because the family file was deliberately destroyed around 2022/23, despite communications with the youth office in 2016 and 2022.
In May 2023, the A. had applied again at the RC by fax for witnesses to be summoned for adversarial questioning. (A 6) According to section 244 (6) 1 StPO, a court decision is required for such an application. These were not issued.
In the hearing before the RC on June 13, 2023, to which psychiatrist “expert witness Dr. Wittmann from the forensic medical service at the Munich Higher Regional Court” was called, the A. was found guilty of insult in two multiple offenses. (A 7) The conviction was based on a fax dated Feb. 19, 2020 (A 1) and an email of Nov. 10, 2021 (A 2).
On the fax the Court states, “The Munich District Court found the following: … In this letter, the defendant referred to the injured party Ehegartner, presiding judge at the Social Court, as a “criminal”, “racist”, “sly judge” to express his contempt.”
On the email the Court remarks, “… insulted the judge at the Social Court Ehegartner with the words: “Judge”, racist, document suppressor, fraudster, aide-de-camp and bedside rug of the Jobcenter Munich” to express his contempt by sending an email to the President of the Social Court and the President of the Regional Social Court.”
These alleged insults were reduced to “racist”. “The fact that he insulted the presiding judge Ehegartner in particular as a “racist” spoke against the defendant”. (A 7, p. 8)
According to Section 249 (1) of the Code of Criminal Procedure (StPO), documents must be read out in the main hearing for the purpose of gathering evidence about their content. This was deliberately not done, because had they been read out, serious doubts would have arisen as to whether they were sufficient for a conviction. The minutes merely state on p. 5, “The gathering of evidence was closed. Sections 240, 257 and 58 (1) of the Code of Criminal Procedure were observed.” (A 8) The defense lawyer received the minutes on July 4, 2023. He sent them to the A. at the end of Aug. 2023 when A. requested the lawyer’s case files and had to remind him of § 11 BORA. Initially, he even asked for money!
a) Striking about the fax (A 1) is that the SC had added a handwritten note “see also S 42 AS 515/15” at the top. This relates to the first case (of two) of theft of vacation job earnings of the A.’s daughter by the JC. It was repaid after four years and only because the A. stayed on the case. Strangely, Judge E. ruled against repayment of vacation job earnings in the second case of theft. (case S 42 AS 2594/16) One would assume that a President of a Social Court would look into this as is the duty acc. to Council of Europe ‘OPINION No. 19 (2016)’ on ‘THE ROLE OF THE JUDICIAL PRESIDENTS’ and adhere to Article 14 ECHR.
b) The email of Nov. 2021 (A 2) deals with the DARVO principle (“deny, attack, and reverse victim and offender”), coined by Jennifer J. Freyd, PhD, Professor Emerit of Psychology, University of Oregon. It is disconcerting to read on p. 8 of the judgment that “in case 2, it must also be taken into account that the defendant made the insult to other persons/work colleagues, namely the President of the Social Court and the President of the Regional Social Court” without any mention of the content. A fair court would have read out this document (Section 249 (1) StPO).
The Bamberg Higher Regional Court held in decision of 29.05.2018 – 3 OLG 130 Ss 30/18, “If … is reproduced verbatim over several pages in the judgment as part of its assessment of the evidence without having formally read it out beforehand, this is to be objected to with the so-called epitome complaint of a violation of § 261 StPO”. It was not verbatim, nor read out. The defense lawyer submitted no motion and was indifferent. A decent criminal defense lawyer must know this.
A court has to deal with a document on such a topic if the accusation is of an alleged insult ‘racist’. After all, psychiatrist Dr. Wittmann was called in “at the suggestion of the public prosecutor’s office after the hearing before the Munich Local Court”. The A. also learned from the judgment that one of the lay assessors is a psychiatrist. In Munich courts, in the case of an accusation of ‘racist’, the “ability to control could be considerably impaired” (sic in the judgment) is apparently considered. This is exactly what DARVO addresses. The A. feels reminded of the infamous Mollath case. No psychiatrist of repute would make an assessment of an individual solely by attending a court hearing.
In a country that prides itself on freedom of expression, it is hard to see the email as a criminal offense. The context and content must be taken into account. The term “racist” was never used by the A. in a wild, hot-blooded verbal attack, but was based on his experiences with this judge over years and at some point the level of tolerability is exhausted. In the opinion of the A. this is covered by Section 193 of the Criminal Code (StGB).
The RC states in its judgment on p. 8 that C. “insulted the presiding judge Ehegartner in particular as a “racist”, although there was no indication of a racist attitude or racist behavior on the part of the injured party either from the case files or from the information provided by the defendant”. This has to be thoroughly refuted.
In “Unmasking ‘racial micro aggressions’“, Tori DeAngelis – it says, “Some forms of racism are so subtle that neither victims nor perpetrators understand what is going on”. Because of the subtle and covert nature of microaggressions, they are sometimes trivialized as simple cultural missteps, or as RC Judge Wegewitz called it, “coincidences” (sic). There is no need to define what ‘coincidence’ means when systematics prevail with Judge E.
a) In the case S 42 AS 515/15 (A 1), which concerned the first case of theft of vacation job earnings, Judge E. expressed his microaggression unmistakably in his summons of Oct. 11, 2019 to the A.’s daughter when he informed her of the “threat of a penalty of € 1,000 in the event of non-appearance”. In response to this affront, the daughter sent her power of attorney for her father to the court by fax in Oct. 2019, stating unequivocally that she “no longer wished any contact in any form from the social courts regarding the ongoing disputes and referred in particular to the clear statements in the email from the Federal Anti-Discrimination Agency of October 11, 2019, following a complaint by my father.”.
b) The shabby stultification of the daughter in case S 42 AS 2594/16 (A 5), when she was cynically given time in a letter dated Feb. 22, 2022 to comment by March 2, 2022 and the judgment of Judge E. is dated Feb. 10, 2022. Judge Wegewitz saw this as an “error, something like this could happen given a large number of cases”. If the workload is too high, the judge should pass it on.
c) In S 42 AS 165/17, the minutes of Oct. 23, 2020 (in the presence of lawyer without inspection of files!) state: Power of representation of the daughter is not available. It is a lie. The SC received it by fax in Oct. 2019.
Judge Wegewitz’s trivialization of the comportment of Judge E. confirms, “Micro-insults are subtle snubs that are often unknown to the perpetrator but clearly convey a hidden offensive message to the recipient”. (See: Racial Microaggressions in Everyday Life – Sue, Capodilupo, Torino, et al., Teachers College, Columbia University) Judge E.’s behavior is a typical example of microinvalidation.
d) In case S 42 AS 709/21, the sub-lease contract of A.’s daughter is seen as “not credible” by the JC. Judge E. did not inquire why. This shows bias and indifference. ‘Class is also a factor’. (see: RACIAL BIAS AND THE BENCH, A response to the Judicial Diversity and Inclusion, University of Manchester, Nov. 2022)
Further in his defense, the A. referred to the decision of the Regional Court Bremen of June 28, 2021 – 41 Qs 243/21 (describing police officers as “racists on the occasion of a specific operation constitutes neither a violation of human dignity nor a formal insult nor abusive criticism”). Judge Wegewitz replied the case was different, but refrained from explaining why. It is by no means different.
Judge Wegewitz asked, “Did you meet judge E. outside?” The A. was perplexed and asked, “Do you mean I follow him?” Her facial expression left no doubt. Such a question has no place in a court as it insinuates stalking and shows bias.
The A. had asked the judge why the President was not summoned and had referred to his fax of May 2023 (A 6) to the RC in accordance with section 245 StPO. Judge Wegewitz immediately interrupted the A. and literally referred to “the cost of the President’s loss of earnings” and proceeded. The court-appointed defense counsel remained silent.
On July 21, 2023, the A. had submitted an extensive appeal. Prior to this, the A. had already lost confidence in his defense counsel. This was confirmed by his cryptic appeal which does not even meet minimal requirements. (A 9) The Public Prosecutor General’s Office informed A. that his appeal did not comply with formal requirements. (A 10) A. furnished a detailed counter-declaration of Oct. 26, 2023. (A 11) None of the A.’s objections therein are reflected in the decision of the Higher Regional Court, no. 207 StRR 312/23. (A 12) Accordingly, the A. submitted in time his constitutional complaint of Dec. 6, 2023. (A 13) The Federal Constitutional Court did not accept the Constitutional Complaint no. 1 BvR 2350/23. (A 14) The A. would like to add that he has had filed unsuccessfully three constitutional complaints about Judge E.
Sending the minutes of the Regional Court hearing against payment?
In his counter-declaration, the A. relates extensively his email communication with the defense lawyer and his initial demand for payment for sending the case file (see: § 50 BRAO). The A. received this hand file at the end of August 2023! It contained the minutes of the hearing, which the defense lawyer had received on July 4, 2023! (see A 8, p. 1) The deadline for submitting the appeal was Aug. 2, 2023! A transcript of the hearing should be “available for inspection without restriction as a basis for the grounds of appeal”. (BGH, decision of 13.02.2013 – 4 StR 246/12)
A.’s conviction seems strange and ambivalent in view of the following court rulings that all ended in acquittal:
- Local Court Zwickau (case 7 Cs 180 Js 27175/18). Woman may refer to judge as a “criminal, antisocial, thwarting punishment, impudent ragamuffin”.
- OLG Karlsruhe, Jan. 15, 2015 (Ref.: 6 U 156/14): Calling opponent in a political opinion campaign a fraud, lawbreaker, liar, scoundrel or crook permissible.
- 1 BvR 362/18 – “This further conduct of Mr. H., especially already under the previous conduct of the authority in the matter with an absolutely inadequate work, we now see only as personally malicious, underhanded, abusive of office and altogether asocial towards us.”
- 1 BvR 2646/15 – Lawyer calls public prosecutor a “run-of-the-mill public prosecutor”, “crazy public prosecutor”, “obnoxious, malicious, stupid public prosecutor”, “mentally ill public prosecutor”. In context not defamatory.
- 1 BvR 444/13 – 1 BvR 527/13 – In case ‘Refugee Council B. annually awards a “warning label for structural and system-internal racism” to a clerk. Covered by Art. 5 Basic Law.
The defense lawyer had been made aware of these cases by the C. in writing. He never mentioned them in court.
The following statements in the German media went unpunished (all via Google):
- SPD leader Sigmar Gabriel calls AfD “openly racist” – FAZ
- AfD politician calls Höcke’s comments “clearly racist” (Spiegel)
- Boris Palmer calls Aogo a “bad racist” – n-tv.de
- After hate speech – Justice Minister Maas calls AfD politician Poggenburg a racist (Handelsblatt)
- SPD parliamentary group leader Rolf Mützenich: “Trump is an egomaniac and a racist” (rnD)
- Donald Trump is a racist and a demagogue. (Deutsche Welle)
COMPARATIVE LAW AND PRACTICE
Eugene Volokh, Professor of Law at UCLA, California, and Visiting Fellow (Senior Fellow starting May 2024) at the Hoover Institution (Stanford) in a blog post: Is It Defamatory to Falsely Call Someone a Racist, White Supremacist, Socialist, or Communist?
No, because courts conclude that those terms are just opinions and name-calling.
See: STEVENS v. TILLMAN, United States Court of Appeals, 1988.
F. Statement of alleged violation(s) of the Convention and/or Protocols and relevant arguments
Art. 10 (1) ECHR
Art. 10 (1) ECHR guarantees the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
Art. 5 of the Basic Law guarantees freedom of expression as an inalienable right of all people. Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures.
Section 193 of the German Criminal Code (StGB) protects legitimate interests.
Amnesty International stated in 2023 that “Racial discrimination is not defined in German law in a manner consistent with the Convention … the absence of such a statutory definition seems to result in reluctance by judges to refer to the Convention in German courts”. Munich courts confirm this assessment. AI further recommended to “Address systemic and institutional racism on all levels of government”. The A. has experienced it more than once in Munich courts and government agencies.
The Regional Court held that it spoke against the defendant “that he insulted the presiding judge Ehegartner in particular as a “racist”, although there was no indication of a racist attitude or racist behavior on the part of the defendant either from the case files or from the defendant’s statements”. This must be rejected in its entirety. To threaten a young person with a €1,000 fine in the event of non-appearance in a case where she is owed legally earned wages is insensitive, as is the threat by the BA (Fed. Labor Agency) to report her to a credit rating agency. If a judge denies her claim for the return of earnings from a summer vacation job in the second case, it is outright fraud. If her sub lease contract is deemed “not credible” by the JC and the judge leaves this unaddressed, one wonders about his standards of equality and moral compass. In the case from 2016 ‘Exercise of right to visit mother’ (at age 14) in Nepal, Judge E. delivered his decision in 2020 without oral hearing although representation by a lawyer existed. To deny the lawyer access to files in three cases concerning the C.’s daughter is a breach of law. His conduct reminds very much of the accusations leveled against the judges in the Case DE HAES AND GIJSELS v. BELGIUM (no. 19983/92).
The A.’s calling the judge a racist is a value-judgment in the exercise of his freedom of expression based on perceived facts established over years. In the case Lingens v. Austria the Court held: ‘It must look at them in the light of the case as a whole, including the articles held against the applicant and the context in which they were written’ (para. 40 of the judgment) and regarding value judgments, “The Court, like the Commission, shares this view.”. (para. 45) A. did not use words like “Corrupt politician-assholes forget, …”. (see: CASE OF STANDARD VERLAGSGESELLSCHAFT mbH v. AUSTRIA (No. 3) (no. 39378/15)) He pointed to salient evidence of complicity of Judge E. with the JC in several cases.
The A. refers to CASE OF DE HAES AND GIJSELS v. BELGIUM and the severe criticism of judges, para. 42 (“facts and value judgements”), para. 44 and para. 46-48 and AFFAIRE HAGUENAUER c. FRANCE, para. 47, 50 and 52. CASE OF BONO v. FRANCE, no. 29024/11 about harsh criticism of judges.
In particular to CASE OF MORICE v. FRANCE. Here the Court held, “… those remarks could admittedly be regarded as harsh, they nevertheless constituted value judgments with a sufficient “factual basis”.” (para. 174)
Calling a judge a racist in such a scenario is what T.S. Eliot called an “Objective correlative”, a set of objects, a situation, a chain of events which shall be the formula of that particular emotion. If the above mentioned statements in the German media (p. 7), which are value-judgments (LINGENS v. AUSTRIA (para. 45)), went unpunished while the C.’s naming of Judge E. as a racist was deemed an insult, it would be of interest to know the metric of determining a racist.
The Bangalore Principles of Judicial Conduct emphasize that “it is essential that judges,
individually and collectively, respect and honour judicial office as a public trust and strive to enhance and maintain confidence in the judicial system”. Alas, the president of the Social Court showed appalling indifference over 30 months in her Lady Macbeth-like rage and in two cases even resorted to defamation (due to her inability to read properly) of the A. who promptly submitted complaints with the public prosecutor to no avail. She even defended the reputation of a public authorities employee who had used a false name with police in a complaint against the A.
“Accusations of “racism” no longer are “obviously and naturally harmful”. The word has been watered down by overuse, becoming common coin in political discourse. … The branch of philosophy known as logical positivism is built on the proposition that only what is verifiable is worth debating (more rigorously, that “there are no synthetic a priori statements except this one”), but it has fallen on hard times not only because no one can separate the “verifiable” from the “non-verifiable” (was the statement “there are craters on the other side of the moon” an opinion that turned to fact when we gained the ability to put satellites in orbit around the moon?), but also because most philosophers believe that there are useful ways to debate even non-verifiable statements. … Courts trying to find one formula to separate “fact” from “opinion” therefore are engaged in a snipe hunt, paralleling the debates between positivist and deontological thinkers in philosophy. … Like other attempts to compare things that can be neither quantified nor reduced to a common metric (how much does the value of free speech “weigh” compared with the value of reputational injury?), this will never yield a rule.” (see: Stevens v. Tillman, United States Court of Appeals, 1988)
Art. 6 (3 d) ECHR
According to section 163a Code of Criminal Procedure (StPO)
“(1) The accused shall be heard at the latest before the conclusion of the investigation, unless the proceedings are discontinued. In simple cases, it shall be sufficient for him to be given the opportunity to make a written statement.” Multiple requests of the C. were left unanswered.
From July 2022 to Nov. 2022, the A. had submitted 8 requests for file inspection relating to case 813 Ds 259 Js 202987/21. During the first hearing judge Krombholz claimed that the A. had not responded to a letter that granted file inspection. It is a blatant lie. The A. had never received any such letter. In one later instance it was granted. When the A. called to fix an appointment he was told, “two hours ago the prosecution took the files back”. In the hearing at the Local Court of case 813 Ds 259 Js 202987/21 the public prosecutor deemed the A.’s renewed request for file inspection as an “attempt to delay the hearing”, all the while the prosecutor and judge Krombholz were deliberating over the files on the table of the judge.
During the first conversation of the A. with his defense lawyer, he was promised file inspection, but the lawyer did not live up to it. The A. had made multiple requests by email.
From Sept. 2021 until May 2023, the A. had altogether made 6 applications for witnesses to be summoned for adversarial questioning. There was never a reply. The lawyer was also made aware of this, but remained indifferent. The A. refers to CASE OF NIDERÖST-HUBER v. SWITZERLAND (no. 18990/91)
G. Compliance
I. List of accompanying documents
ADDENDUM
Sensations, private experience and Wittgenstein’s ‘Philosophical Investigations’
“When a statement in the form of an opinion discloses the defamatory facts (or refers to facts in the public record), it is not actionable apart from those facts. … Every statement of opinion contains or implies some proposition of fact, just as every statement of fact has or implies an evaluative component. … The statement “2 + 3 = 5”, apparently one of “fact”, implies something about the speaker’s use of “+”, particularly that he thinks “+” signifies addition .… See Saul A. Kripke, Wittgenstein on Rules and Private Language 8-24 (1982), for a brief description of the many opinions and related beliefs underlying something as simple as the use of “+”. It could be a statement about a very different kind of math — or maybe not a statement about any kind of math.” (see: Stevens v. Tillman, US Court of Appeals, 1988, #399)
The A. refers to §293 in Wittgenstein’s ‘Philosophical Investigations’, where on the subject of ‘pain’ he introduces the famous ‘beetle-in-the-box’ parable:
“§293. If I say of myself that it is only from my own case that I know what the word “pain” means—must I not say the same of other people too? And how can I generalize the one case so irresponsibly?
Now someone tells me that he knows what pain is only from his own case!——Suppose everyone had a box with something in it: we call it a “beetle”. No one can look into anyone else’s box, and everyone says he knows what a beetle is only by looking at his beetle.—Here it would be quite possible for everyone to have something different in his box. One might even imagine such a thing constantly changing.—But suppose the word “beetle” had a use in these people’s language?—If so it would not be used as the name of a thing. The thing in the box has no place in the language-game at all; not even as a something: for the box might even be empty.—No, one can ‘divide through’ by the thing in the box; it cancels out, whatever it is.
That is to say: if we construe the grammar of the expression of sensation on the model of ‘object and designation’ the object drops out of consideration as irrelevant.”
By this, Wittgenstein means the word ‘beetle’ cannot refer to the beetle itself, because if it did then only the A. could know what A. meant by the word ‘beetle’ (here ‘racist’ instead of ‘pain’), as only A. knows what is in his box. In the same way, one can see that the word ‘racist’ cannot refer directly to the sensation, because only A. could know what his sensation is. It is very well conceivable that what one person considers as racist (pain), another person may not share that feeling.
After all, Wittgenstein’s often quoted dictum in §580 PI says: “An ‘inner process’ stands in need of outward criteria.” It is the outward criteria that give “beetle” its meaning for the community. It is the sensitive perception of those “outward criteria” in all their imponderability. In a memoir, his Cambridge friend M O’C Drury reported him as saying: “If you and I are to live religious lives it must not just be that we talk a lot about religion, but that in some way our lives are different.”
Now Wittgenstein puts forward the supposition that everyone has such a box which may contain a beetle, it may even be changing, it may well even be empty. Suppose the word “beetle” had a use in people’s language. If so, it would not be used as the name of a thing, because if it were a thing, the box could not be empty.
In §272 PI Wittgenstein states, “The essential thing about private experience is really not that each person possesses his own exemplar, but that nobody knows whether other people also have this or something else. The assumption would thus be possible—though unverifiable—that one section of mankind had one sensation of red and another section another“.
In the underlying legal case, we can substitute ‘red’ for ‘racist’.
§273. “What am I to say about the word “red”?—that it means something ‘confronting us all’ and that everyone should really have another word, besides this one, to mean his own sensation of red? Or is it like this: the word “red” means something known to everyone; and in addition, for each person, it means something known only to him? (Or perhaps rather: it refers to something known only to him.)“
§253. “I have seen a person in a discussion on this subject strike himself on the breast and say: “But surely another person can’t have THIS pain!”—The answer to this is that one does not define a criterion of identity by emphatic stressing of the word “this”.”
Wittgenstein follows this up with §274:
“Of course, saying that the word “red” – [read racist here] – “refers to” instead of “means” something private does not help us in the least to grasp its function; but it is the more psychologically apt expression for a particular experience in doing philosophy. It is as if when I uttered the word I cast a sidelong glance at the private sensation, as it were in order to say to myself: I know all right what I mean by it.“
It is this “I know all right what I mean by it” that US Supreme Court Justice Potter Stewart famously used in 1964 to describe his threshold test for obscenity in Jacobellis v. Ohio. In explaining why the material at issue in the case was not obscene under the Roth test, and therefore was protected speech that could not be censored, Stewart wrote:
“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”
To have a sensation, an opinion, based on occurrences and express that cannot be legally actionable. Statements indicating that a person is a racist are clearly expressions of opinion that cannot be proven as verifiably true or false.
COMPARATIVE LAW AND PRACTICE
Excerpts from Case STEVENS v. TILLMAN, United States Court of Appeals, 1988, Circuit Judge Easterbrook.
“Accusations of “racism” no longer are “obviously and naturally harmful”. The word has been watered down by overuse, becoming common coin in political discourse. … The branch of philosophy known as logical positivism is built on the proposition that only what is verifiable is worth debating (more rigorously, that “there are no synthetic a priori statements except this one”), but it has fallen on hard times not only because no one can separate the “verifiable” from the “non-verifiable” (was the statement “there are craters on the other side of the moon” an opinion that turned to fact when we gained the ability to put satellites in orbit around the moon?), but also because most philosophers believe that there are useful ways to debate even non-verifiable statements. … Like other attempts to compare things that can be neither quantified nor reduced to a common metric (how much does the value of free speech “weigh” compared with the value of reputational injury?), this will never yield a rule. … In daily life “racist” is hurled about so indiscriminately that it is no more than a verbal slap in the face; the target can slap back (as Stevens did). It is not actionable unless it implies the existence of undisclosed, defamatory facts, and Stevens has not relied on any such implication. …
Every statement of opinion contains or implies some proposition of fact, just as every statement of fact has or implies an evaluative component. Even the statement “I don’t like the color blue” implies a proposition about the speaker’s sensibilities; he could be lying about his own dislikes or mistaken in the sense that on further reflection he would say something different about the color blue. The statement “mauve is a lousy color” implies “I don’t like mauve”, with the same difficulties. The statement “socialism is better than capitalism”, seemingly an opinion dependent on the speaker’s preferences about control of productive assets, could be false in the sense that the speaker, who holds certain values, might conclude after reflection (and access to data) that capitalism serves his own values better than socialism does. Much modern political and ethical philosophy consists in efforts to demonstrate that statements about justice and other hard-to-pin-down terms may be reduced to less contentious statements that will be accepted (with their logical implications) in a way that produces agreement.
Statements of “pure” opinion also may imply or depend on facts. One may say “Jones has a tin ear”, implying something about his behavior that may be false. One may say “George Stigler did not deserve the Nobel Prize” because one believes that Frank Knight should have received it; but Knight died before Stigler received the prize, and on learning that there are no posthumous *399 Nobel Prizes this person too might favor Stigler. The statement “no one will ever build a heavier-than-air flying machine” is opinion in 1900 and false in 1905. The statement “Paul Morphy was a better composer than Wolfgang Amadeus Mozart” appears to be an egregiously erroneous statement of either opinion or fact — until you realize that the speaker must have meant “composer of chess puzzles”. The statement “2 + 3 = 5”, apparently one of “fact”, implies something about the speaker’s use of “+”, particularly that he thinks “+” signifies addition, in base six (or higher). See Saul A. Kripke, Wittgenstein on Rules and Private Language 8-24 (1982), for a brief description of the many opinions and related beliefs underlying something as simple as the use of “+”. It could be a statement about a very different kind of math — or maybe not a statement about any kind of math. Even axiomatic math cannot yield “factual” (logically true) statements about all interesting arithmetical relations, as Godel and Turing established. See Ernest Nagel and James R. Newman, Godel’s Proof (1958); Gregory J. Chaitin, Randomness in Arithmetic, 259 Scientific American 80 (July 1988). The reason Fermat’s Last Theorem remains unproven (and unrefuted) may be that it is neither true nor false — just an “opinion” about numbers.
Most efforts to separate “fact” from “opinion” start with the belief that a “fact” is something verifiable, while an opinion is not.
They may be derived from axioms (or from axiomatic arguments about the “state of nature”); if this treatment is impossible, their implied factual bases may be tested. Courts trying to find one formula to separate “fact” from “opinion” therefore are engaged in a snipe hunt, paralleling the debates between positivist and deontological thinkers in philosophy. Perhaps the Constitution requires the search for this endangered species, but more likely the difference between “fact” and “opinion” in constitutional law responds to the pressure the threat of civil liability would place on kinds of speech that are harmless or useful, not on the ability to draw a line that has vexed philosophers for centuries. See Ollman, 750 F.2d at 995-1001 (Bork, J., concurring). It is the cost of searching for “truth” — including the cost of error in condemning speech that is either harmless or in retrospect turns out to be useful, a cost both inevitable and high in our imprecise legal system — that justifies the constitutional rule.”
Evocatively Ambiguous 