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The Hertie School has prohibited its 2026 graduating cohort from displaying Palestinian solidarity symbols at their 22 June ceremony at the Berliner Philharmonie – including any depiction of historical Palestine “in the colours or shape of the watermelon” – and required students to sign a declaration accepting these terms as a condition of entry, as publicised on TableMedia, X and LinkedIn. While universities possess a legitimate interest in protecting the ceremonial character of graduation events, categorical restrictions on peaceful symbolic expressions – particularly those not included in the taxonomy that German authorities have designated as prohibited – are arguably not proportionate. While a (private) university can regulate conduct at its ceremony to maintain its main purpose, restrictions on freedom of expression cannot be absolute. The more concrete and content-oriented a restriction on displaying symbols and political expression is, the stronger the legal justification it must provide.

Political Expression in Hybrid Spaces

How do freedom of expression and other constitutional guarantees under the Basic Law apply in this dispute? While Hertie School is a state-recognised and accredited private university, and a graduation ceremony is not an entirely public forum, the constitutional guarantees, mutatis mutandis, nevertheless apply for at least the following three reasons: First, since the Bundesverfassungsgericht’s (BVerfG) landmark Lüth judgment (1958), fundamental rights operate not merely as defensive rights against the state but as a constitutional value order that “radiates” into private-law relationships. According to the thus developed doctrine of human rights obligations’ indirect effect (“mittelbare Drittwirkung”), Hertie’s contractual autonomy – including its authority to set conditions of entry – must be exercised in light of Article 5 of the Basic Law (GG)’s guarantee of freedom of expression. Second, the Berliner Philharmonie is not a privately owned ballroom or conference centre: it is a foundation established under Berlin public law and forms part of the city’s funded cultural infrastructure. Third, the BVerfG’s Fraport judgment (2011) established that entities operating publicly accessible space cannot treat private-law house rights as a constitutional escape hatch. While a graduation ceremony is not an airport terminal, the judgment’s underlying logic stands: the public character of a space and the institutional significance of the event mean that fundamental rights do not simply dissolve in a puff of smoke because the contractor is a private entity.

Surely, a private university retains latitude to protect the integrity and dignity of a ceremony. Content-neutral rules prohibiting organised disruptions, chanting during speeches, stage occupations or large banners which obstruct visibility or fundamentally alter the character of the event would be permissible under both German constitutional doctrine and ECtHR jurisprudence. They afford organisers significant room to preserve the purpose of an event against conduct that prevents it from proceeding as intended.

These concerns are not theoretical. At a 2024 commencement ceremony at Central European University in Vienna, graduates interrupted speeches to accuse university leadership of complicity in genocide, repeatedly disrupting proceedings to the point where the ceremony could not continue as planned. Whatever one thinks of the underlying claims, universities have a legitimate interest in ensuring that the academic milestone celebrated by one part of a cohort is not appropriated as a platform by another. Had Hertie’s guidelines confined themselves to regulating conduct of that kind, the minimal restrictions of the constitutional rights would likely be proportionate.

The dispute becomes more serious when students are required, as they were in the present case, to sign a declaration accepting the applicable rules as a condition of entry to the ceremony. That requirement changed the picture: it shifted the organiser’s intervention from regulating conduct inside the event to gatekeeping participation in a ceremony marking the completion of a state-recognised degree – something students have earned and around which they hold legitimate expectations of attendance.

More importantly, it conditioned participation upon acceptance of restrictions that rest on the institution’s overly narrow interpretation of contested political meaning. The BVerfG’s Stadionverbot decision (2018) is instructive: The Court recognised that exclusion from events with significant consequences for social participation requires a non-arbitrary, objective justification (“sachlicher Grund”). A private law contract does not insulate a decision to exclude from this sort of scrutiny.

The Problem of Symbolic Expression

While graduation is not a football match, the principle holds: exclusion from an academic ritual demands justification within the sphere of proportionality. It must address and justify how the specifically prohibited conduct of displaying the concrete symbols disrupts the ceremony: how is a graduating student – or their parent or cousin waving a Palestinian flag, wearing a BDS badge or an unobtrusive symbol on their blouse – concretely obstructing the proceedings or fundamentally altering the character of the event? Is restricting that conduct – silent and symbolic – proportionate to pursuing the legitimate objective of non-disruption?

Such expression constitutes classic political speech protected by Article 5 GG and Article 10 ECHR. We may dislike the message or find it offensive. Yet constitutional protection is not reserved for messages that enjoy consensus. In its canonical judgment in Handyside v UK, the ECtHR famously observed that freedom of expression protects not only information and ideas that are favourably received but also those that “offend, shock or disturb”. The proposition has become a constitutional commonplace across Europe precisely because controversial political speech, and with it, symbols, is usually the speech most in need of protection.

Palestinian solidarity symbols, like much of the iconography of national liberation movements, will always be politically contested. Constitutional law requires caution before suppressing them. Political symbolism is, in principle, protected, and any ban requires a context-specific and proportionate justification. The guidelines communicated to Hertie’s graduating students, however, merely designate maps depicting a pre-1948 Palestine as inherently anti-Semitic because they supposedly deny Israel’s right to exist. Whether that interpretation is anti-Semitic to some, or not to others, really isn’t the question. Where a symbol admits of multiple meanings – as symbols tend to – doctrine does not permit defaulting to the most harmful reading. Categorical prohibitions require justifications that the guidelines do not provide.

Who Gets to Decide What a Symbol Means?

A similar asymmetry of interpretation runs through Germany’s parallel struggle over the slogan “From the river to the sea…”. After the Federal Ministry of the Interior listed the phrase as a characteristic (Kennzeichen) of Hamas when it banned the terror organisation in November 2023, criminal and administrative courts continuously disagree over what the slogan denotes. The VG Münster (2023) and, on appeal, the Hessische VGH (2023) held that the phrase admits of readings ranging from a demand for Palestinian self-determination to, at the extreme, a call for Israel’s destruction – and that this plurality of meaning, protected by the BVerfG’s longstanding rule against assigning ambiguous statements their most incriminating reading, precluded its prohibition. The LG Berlin I (2025) reached the opposite conclusion twice, holding that Article 5 GG must “recede” once a “verbal formula” has been designated the identifying slogan of a banned organisation, regardless of what an individual speaker meant by it. The OLG Düsseldorf (2025) became the first appellate court to endorse this approach; jurisprudence is inconsistent thus far (2026) and awaits further clarification by the Bundesgerichtshof.

The parallel to the Hertie School’s guidelines is evident – one assigns a single, authoritative meaning to an utterance or image with a demonstrable plurality of possible meanings, thus foreclosing the inquiry that a constitutional doctrine would otherwise demand. For example, a chant used since the 1970s by both Palestinians and Israeli leftists, or a T-shirt declaring loyalty to the cause of the Boycott, Divest and Sanction (BDS) movement. The map is the starkest example: depending on context, it can serve as a statement of historical geography, a mnemonic of the Nakba, a claim to self-determination, a vision of a single state, or a blueprint for a Holy Land confederation – yet Hertie’s guidelines proceed on the basis of a single interpretation.

If after years of litigation and conflicting rulings, German courts still cannot agree what the slogan “From the river to the sea…” necessarily denotes, an instruction sheet handed to graduating students a fortnight before a ceremony is unlikely to settle what a map of historic Palestine means either.

Context Matters After All

Where universities designate a symbol or slogan as harmful, they remain obliged to explain why restrictions on expression are necessary and proportionate where meaning itself is contested. The ECtHR’s judgment in Baldassi v. France (2020) provides a useful illustration. The Court considered the conviction of activists who had called for a BDS-style boycott of Israeli products. While the Court did not endorse the activists’ views, it held that their conduct formed part of political expression on a matter of public interest and was therefore entitled to the heightened protection ordinarily afforded by Article 10 ECHR. It also attached significance to the absence of anti-Semitic language, hate speech or incitement to hatred.

The judgment does not prevent institutions from criticising boycott campaigns. It does, however, caution against treating support for boycotts of Israel as inherently anti-Semitic or as automatically falling outside the protection of freedom of expression. Like political symbols, political slogans or historical maps require contextual assessment rather than categorical classification. The legal bottom line is that universities may protect ceremonies against disruption but need to transparently justify any categorical restrictions on symbols. If there is more than one way of interpreting them, they remain protected under the constitutional guarantee of the freedom of speech.

Check Your Freedoms at the Garderobe?

The BVerfG’s underlying concern in Fraport was that constitutional guarantees lose practical significance if publicly accessible spaces could be transformed into rights-free zones. In Appleby v UK – the leading case on how human rights operate in privately owned spaces – the ECtHR recognised that the relationship between property rights and expressive freedoms cannot always be resolved by reference to ownership alone. While the Court stopped short of recognising a general right to exercise free speech on private property, it accepted that exclusion from privately owned spaces may, in certain circumstances, violate the rights under the Convention.

The graduation dispute sits in a particular hybrid public-private setting, where private organisational autonomy intersects with institutions embedded in the public sphere. Hence, where public institutions and private entities are intersecting, fundamental freedoms cannot simply disappear at the entrance. The more a restriction targets the content of expression (rather than anticipating a disruption of an event as such), the stronger the justification required. This conclusion should not be controversial. It is one of the basic features of liberal constitutionalism and one that a school dedicated to the study of public policy ought to be especially well-placed to defend.

The Sound of Dissonance

The dispute highlights a broader challenge that increasingly confronts German cultural institutions, universities and foundations as they face pressure to distinguish between anti-Semitism, anti-Zionism, Palestinian nationalism or patriotism and criticism of Israeli government policy regarding, inter alia, its conduct under international humanitarian and criminal law. They simultaneously seek to protect Jewish students and prevent anti-Semitism (as they should), preserve academic freedom as well as institutional neutrality, and avoid becoming platforms for geopolitical conflict. These are all legitimate objectives. The danger lies in pursuing those goals through expansive definitions of impermissible political expression. If every contested symbol, T-shirt slogan or chant can be reclassified as discrimination or hateful speech, constitutional balancing becomes unnecessary and the outcome is determined before the analysis begins.

It is therefore appropriate that the dispute should arise in the Berliner Philharmonie. A graduation ceremony, like a concert, depends upon orderly conduct and mutual respect. Yet constitutional democracy is not an exercise in perfect harmony. Its defining feature is the capacity to accommodate competing voices without silencing them. The challenge is therefore not how to eliminate every dissonance from public life but how to ensure that, in our search for harmony, we do not end up hearing only a single tune.

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