Balancing at the Bundesverfassungsgericht: 1958 to c. 1976

The foundations of contemporary German free speech jurisprudence can be found in decisions of the Bundesverfassungsgericht from a period of less than two decades, between the Luth decision of January 1958 and, somewhat more arbitrarily, the decision in the Deutschland Magazin case of 1976.

1. From Luth to Schmid-Spiegel

(a) Luth. (1958): ‘Es wird deshalb eine “Guterabwagung” erforderlich ..J

Before the Bundesverfassungsgericht had even handed down its decision, the Luth case was already set to become a touchstone of German consti­tutional law. For the first time under the 1949 Basic Law, the Court was asked to rule on the scope of the right to freedom of expression.^[295] In add­ition, the Court was, also for the first time, faced squarely with the issue of the extent to which constitutional rights had an influence on private law relations; the vexing question of ‘Drittwirkung’, or ‘horizontal effect'. 'The actual decision, when it came, introduced striking novelties. The Court proclaimed the idea that the Constitution embodied an ‘objective value order’, emphasized the social dimension in (individual) constitutional rights, and introduced the concept of ‘Wertabwagung’ (‘a balancing of values’) to solve clashes between competing constitutional goods. It is, of course, this last element we are particularly interested in, but it will be seen very quickly that the Court’s balancing language can hardly be understood in isolation from these other facets of the Luth decision.

In 1950, Erich Luth, at the time Chairman of the Publications Office of the City of Hamburg, gave a lecture before members of Germany’s motion picture industry. In his lecture, Luth called for a boycott of a new film by Veit Harlan, a film director who during the fascist era had produced a strongly anti-semitic film (‘Jud Suss’).^[296] Luth was afraid that Harlan’s re­emergence as a director would stain Germany’s image abroad and would complicate efforts to rebuild relations between Christians and Jews; a cause he himself was particularly closely involved in. The producer and distributor of Harlan’s new film brought an action against Luth on the basis of Art. 826 of the Civil Code, claiming that his call for a boycott was a tortious act; an ‘unerlaubte Handlung’. The civil law courts found against Luth and ordered him to refrain from promoting any further boycott of Harlan's film. Luth then filed a ‘Verfassungsbeschwerde’, an individual constitutional complaint, with the Bundesverfassungsgericht.

The Court began its decision by noting that ‘without a doubt, the pri­mary purpose ofthe basic rights is to safeguard the sphere offreedom of the individual against interferences by public authorities'.^[297] At the same time, however, it had to be recognized that ‘the Constitution, which does not want to be a value-neutral order, has, in its Part on Fundamental Rights, erected an objective value order'.^[298] The Court continued: ‘This value sys­tem, at the core of which is the dignity of the personality of the individual developing freely within the social community, has to be understood as a foundational constitutional decision for all areas of law.'^[299] This meant that the ordinary courts would have to test, in each case, whether the applic­able rules of private law are influenced by constitutional concerns.

Finding freedom of expression to be ‘immediately constitutive'¹⁷ (‘sch- lechthin konstituierend') for a liberal-democratic constitutional order, the Court insisted that limitations to this freedom, in the form of the allge- meine Gesetze clause in Art.

the expression of opinions is as such, that is: in their purely intellectual effect, free; if however [this expression infringes] another individual's rights, the protection of which deserves precedence over the protection of the freedom of expression, then this interference will not be allowed simply because it was committed through the expression of an opinion. A balancing of values [Guterabwagung] becomes necessary: the right to the expression of opinions must recede when it infringes protection­worthy interests of another of a higher rank. Whether such overbearing interests of another are present, is to be determined on the basis of all the circumstances of the case.^[300]

The Court found that the freedom of expression would have to be ‘weighed especially heavily' when engaged in ‘not for the purpose of a pri­vate dispute, but in the first place as a contribution to the formation of public opinion'.^[301] In conclusion:

the private-law judge is required to weigh, in every case, the significance of the right against the value ofthe interest [Rechtsgut] protected by a ‘gen­eral law'. This decision can only be made upon a comprehensive analysis of the individual case, taking all relevant circumstances into account.

On the merits, the Bundesverfassungsgericht decided that the private­law courts had ‘misjudged the special significance that attaches to the basic right to freedom also where it comes into conflict with the private interests of others'.^[303] Factors that the Court found particularly relevant were the fact that the speech in question concerned a matter of public interest and the suggestion that Luth had spoken out of ‘pure motives'.^[304]

(b) ‘Plakaten' (1958) and Schmid-Spiegel (1961)

The Luth opinion quickly became the authoritative point of departure for freedom of expression law generally.^[305] The Court decided another case on Art. 5 Basic Law on the same day as Luth, under reference to ‘the prin­ciples developed there' (the ‘Plakaten' decision),^[306] and confirmed Luth's pre-eminence in its 1961 Schmid-Spiegel decision.^[307] These two decisions quote important elements of Luth’s approach to freedom of expression, in particular the idea of relativity or dialectic (‘Wechselwirkung’) between the right and its limitations ( ‘Plakaten' ), the suggestion that the particu­lar use made of a constitutional right determines that right's ‘weight’ in relation to competing interests (‘Plakaten' and Schmid-Spiegel),^[308] and the insistence that lower courts should take all competing values and interests into consideration (Schmid-Spiegel ).

In the ‘Plakaten' case, the Court rejected the constitutional complaint of a tenant who had wanted to affix election posters to his apartment's window but had been prevented from doing so by his landlord. Following the Luth model, the Court approached the case both as a conflict between two constitutional rights in the abstract, the right to property and the right to freedom of expression and as a clash between the opposing inter­ests of the individual landlord and tenant in the concrete circumstances of the case.

The Schmid-Spiegel case concerned a row, acrimoniously fought out in public, between a judge and the journal Der Spiegel. The journal had accused the judge of harbouring communist sympathies. The judge coun­tered by likening Der Spiegel’s political reporting to pornography. When convicted of defamation in the lower courts, he filed a constitutional complaint. The Bundesverfassungsgericht found that the criminal courts had focused exclusively on the interests of the journal and its editors and had neglected to take into account the ‘immanent value' of the expression of opinion. Through this neglect, they had violated the ‘value judgment' (‘Wertentscheidungi) incorporated in Art. 5 Basic Law.^[311]

Although these decisions did not repeat Luth’s general statements on the need for a balancing, their references to the earlier decision, the overall tone of their language (‘Wertentscheidung’, ‘Guterabwagung’, ‘ Gewicht’), coupled with an approach explicitly focused on clashes between opposing values and interests, contributed to a perception that Luth’s ‘balancing of values and interests' should be read as embodying the Court's overall take on freedom of expression.^[312]

2. From Der Spiegel to Deutschland Magazin

(a) Der Spiegel (1966)

The 1966 Spiegel case still is one of the most controversial cases of the Court's early history, not just in the free speech context, producing its first published minority opinion.^[313] Beyond the general controversy surround­ing the decision the case also marks an important transition point in the genealogy of constitutional balancing.

In October 1962, the magazine Der Spiegel published an article on the German army's preparedness for military conflict with the Soviet Union. The article listed detailed accounts of the military capabilities of Germany and several other NATO member states and concluded that the West-German government was responsible for ‘completely inadequate preparations'.^[314] The government reacted to the article by instituting crim­inal proceedings against the editor and several publishers of the journal and by carrying out an extensive search at the journal's premises. During this search a substantial trove of documents was seized. Upon a constitu­tional complaint by the publisher, the Bundesverfassungsgericht, in a split decision, held that this search and seizure did not violate the guarantee of freedom of the press in Art. 5 Basic Law.

The Court observed that the freedom of the press ‘carried within it' the possibility of ‘conflict with other constitutionally protected values', in the form of rights and interests of other individuals, as well as those of groups and of society as a whole.^[315] Both national security and freedom of the press being ‘Staatsnotwendigkeiten, ‘constitutional essentials', the task for the Court was to balance, in the individual case, ‘the dangers to the security of the country that may arise from publication [...] against the need to be informed of important occurrences even in the area of defense policies'.^[316] The Court added that because governmental interference with a particular publication is likely to have a chilling effect on press freedom generally:

there exists an inescapable conflict between the interests of criminal prosecution and the protection of press freedom; a conflict that has to be solved with the aid of the balancing ofvalues [Guterabwagung] developed in the case law of the Federal Constitutional Court.^[317]

Applying these principles to the case at hand, the ‘majority',^[318] on the basis of a ‘sachliche Wertabwagung im Einzelfall’, a substantive balancing of values in the individual case, which found that the prosecution and the lower court had correctly judged the search and seizure to be both a suit­able and a necessary response to the threat caused by the publication.^[319]

(b) Entrenchment: ‘die gebotene Abwagung.A

With its multiple references to the Luth opinion and to the language of ‘Guterabwagung’ and ‘Wertabwagung im Einzelfall’, the Spiegel deci­sion was an important step in the entrenchment of the Luth balancing approach to the right of freedom of expression.^[320] The fact that the decision explicitly extended this approach to freedom of the press and the fact that both majority and dissenters agreed on the centrality of balancing, con­tributed to a reading of the case as laying down a general method for the adjudication of all freedom of speech issues.

The entrenchment of the Luth decision’s balancing approach in the course of the 1960s can, in particular, be gleaned from two factors. First, it became common for the ordinary, that is, criminal and civil, courts to explicitly formulate their own treatment of free speech issues in terms of a balancing of values and interests. This was to give effect to the Bundesverfassungsgericht’s general instruction in Luth that the ordinary courts should balance in each case the value of freedom of expression against competing values and interests.^[321] In Der Spiegel itself, for exam­ple, the highest criminal court, the Bundesgerichtshof, explicitly framed its decision with respect to the permissibility of the criminal-procedural measures predominantly in terms of a ‘Guterabwagung’.^[322] Second, the constitutional complaints of individuals increasingly came to be cast in the form of objections against a ‘balancing' undertaken, or omitted, by the ordinary courts.^[323] Again, the Luth decision, with its warning to other courts that a ‘wrong balancing' in and of itself could infringe the right to freedom of expression, lay at the basis of this development.^[324]

Both trends were on display in a 1969 case that, once again, presented the Court with the issue of a call for a boycott; the fact pattern at issue in Luth itself.^[325] A major publishing house, the well-known Springer Verlag, had called on its distributors to boycott a much smaller journal, Blinkfuer, because of this journal's publications of GDR television pro­gramming schedules. Springer threatened its non-complying agents and distributors with a ‘revision' of their relationship to the publishing house. The discourse of balancing dominated the whole trajectory of the case. The Bundesgerichtshof found that it had to balance Blinkfuer’s interest in carrying on its business with Springer's right to freedom of expres- sion.^[326] Blinkfuer then specifically complained that the court's balancing was improper; its own right to freedom of the press had been left out of consideration, while interests not relevant to the dispute had been taken into account.^[327] The Bundesverfassungsgericht agreed, finding that the Bundesgerichtshof had both given too much weight to Springer's right to freedom of expression and too little to Blinkfuer’s right to freedom of the press.^[328]

(c) Strains and questions

While the Spiegel decision may have offered a resounding confirmation of the Court's line on balancing, the decision also clearly showed the first significant limitations to the model announced in Luth.^[329] One import­ant question raised by the Spiegel case was what to do with the Luth approach in cases that did not principally involve conflicts between two individuals. Both Luth and ‘Plakaten' had, of course, concerned claims in tort. And Schmid-Spiegel, while a criminal law case, also involved a defamation-type action.^[330] The Spiegel decision was the first time the bal­ancing model had to cope directly with predominantly ‘public' or societal interests, like public security and criminal procedure.

This new setting had implications not only for the kinds of interests and values the Court's approach was supposed to accommodate, but also for conceptual understandings of that approach itself. Pre-Spiegel, commen­tators could maintain that the ‘private' setting of the relevant free speech cases might have contributed to the Court's resort to balancing. Or even that the basis for the Court's balancing did not lie in constitutional law at all, but within the relevant private law norms on defamation (Luth) or on property (‘Plakaten’).^[331] After the Spiegel decision, maintaining that what the Court did was somehow private law balancing in a constitutional con­text, rather than apply a principle emanating directly from constitutional law itself, a ‘verfassungsimmanentes Prinzip',^[332] became much more dif­ficult. A place now had to be found for balancing within the confines of constitutional law.

Secondly, and most problematically, the Luth line offered very little guidance as to what lower courts actually were to do in concrete cases and as to what the Bundesverfassungsgericht's review of decisions of other courts would look like. If an inferior court did not refer to a balancing of competing interests, would that by itself render its decision constitu­tionally infirm?^[333] If a lower court did balance explicitly, how would the Bundesverfassungsgericht review its decision? Would the Court undertake a de novo weighing of its own, or invalidate only those outcomes that were manifestly unsound? To use the vocabulary of US constitutional law: the Luth line of decisions contained virtually no information as to the appro­priate standard of review. It was this last problem that was to trouble the Court in particular in the decade following the Spiegel case.

(d) ‘Mephisto’ (1971), Lebach (1973) and Deutschland Magazin (1976)

The Blinkfuer case takes analysis of the Bundesverfassungsgericht 's free speech jurisprudence to the end of the 1960s. The leading cases of the years that followed show both change and continuity relative to the approach set out in Luth and its progeny. In terms of change, the Court began to insist, in cases of the early 1970s, on the limited nature of its review of the decisions of the ordinary courts. In ‘Mephisto ', for example, the ‘majority' wrote: ‘The Federal Constitutional Court, by its nature as a remedial court, is not competent to put its own valuation of the indi­vidual case in place of the ordinarily competent judge'.^[334] This more def­erential approach had as its result, most notably in ‘Mephisto’ itself and in Lebach, that the decisions of the ordinary courts were upheld. In both these cases, the freedom of expression lost out in a clash with rights of personal integrity and reputation.^[335] This approach was not uncontrover- sial. In the ‘Mephisto’ case, for example, Judge Stein wrote a dissenting opinion in which he emphasized the duty of the Bundesverfassungsgericht to ‘verify independently' whether the civil courts had properly carried out ‘the required balancing'.^[336]

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Much, however, also stayed the same in these cases, with the Court continuing to frame the analytical framework for freedom of expres­sion analysis in terms heavily reliant on the language of balancing. In ‘Mephisto', the ‘majority' described its task as ‘to decide whether the [lower] courts, in the balancing [...] that they have undertaken, have respected the relevant principles'.^[337] And in Lebach, the Court was sim­ilarly explicit in its references to the need for a ‘ Guterabwagung im kon- kreten Fall', a balancing of values in each specific case.^[338] In its decision in Deutschland Magazin, the Bundesverfassungsgericht shifted away from the more deferential position taken in ‘Mephisto’ and Lebach, adopt­ing a flexible position whereby the intensity of review would itself be dependent on ‘the severity of the encroachment upon a basic right'.^[339] The language of balancing remained dominant throughout this deci­sion, and in those that followed it and that similarly adopted this flexi­ble approach to the intensity of scrutiny.^[340] In fact, in now proclaiming that not only the scope of constitutional rights themselves but also the scope of review of infringements of these rights were matters of relative weight and importance, the Bundesverfassungsgericht had arguably even extended the hold of the language and imagery of balancing over free speech law.

C.