Facts
M. is a long-standing lecturer at the Zurich University of the Arts (ZHdK). Prior to a session of the Zurich Cantonal Council, in which the project for a future campus of the ZHdK on the so-called Toni-Areal was discussed, M. distributed a flyer with critical comments on this project to the members of the Cantonal Council, together with students, an assistant, and a lecturer. As a result, the head of the Department of Art and Media gave him an oral reprimand and revoked his leadership position in the Master of Fine Arts program.
M. appealed against these measures. The Appeals Commission of the Zurich Universities partially upheld the appeal and obliged the ZHdK to pay M. compensation for the violation of his right to be heard. The appeal was otherwise dismissed.
M. then filed a public law complaint and a subsidiary constitutional complaint with the Federal Supreme Court.
Considerations
The Federal Supreme Court examines whether the reprimand and the revocation of the leadership position violated the complainant's freedom of expression.
The distribution of flyers falls within the scope of the freedom of expression, which is guaranteed by Art. 16 para. 2 BV, Art. 10 ECHR, and Art. 19 UN Covenant II. As a state university that performs state tasks, the ZHdK is bound by fundamental rights.
While the freedom of expression of public employees may be limited by the duty of loyalty, the purpose of the duty of loyalty is to safeguard the functionality of the public administration by not undermining the public's trust in the state. A restriction of freedom of expression is only permissible if it is objectively justified and in reasonable proportion to its purpose.
In the present case, the complainant sought to express his opinion on a specific project in a political opinion-forming…