The liberal arts and science are easy

Fundamental rights

Mathias Metzner

Mathias Metzner was a research assistant at the Federal Constitutional Court and in the fundamental rights department of the Federal Minister of Justice. He is Vice President of the Kassel Administrative Court.


Article 5

(1) Everyone has the right to freely express and disseminate his or her opinion in words, writing and images and to obtain information from generally accessible sources without hindrance. Freedom of the press and freedom of reporting through radio and film are guaranteed. Censorship does not take place.

(2) These rights are limited in the provisions of general laws, the statutory provisions for the protection of young people and in the right to personal honor.

(3) Art and science, research and teaching are free. The freedom of teaching does not release one from loyalty to the constitution.
Article 5 contains various fundamental rights. Paragraph 1 regulates freedom of expression and information as well as freedom of the media (freedom of the press, radio and film). Article 5 (3) of the Basic Law regulates the freedom of art and science.

freedom of speech

Being able to express one's opinion freely is not only a matter of course in a democracy, but an indispensable prerequisite for it to work.
The fundamental right to freedom of expression is therefore to be understood broadly. It encompasses all forms of expression, regardless of its "value". Polemical statements are also protected by freedom of expression. Expressions of opinion have a subjective character, they contain an element of opinion, of belief. However, assertions of fact also fall under freedom of expression. The reason for this is that actual assumptions are or can be the prerequisite for forming an opinion.
However, freedom of expression finds its limit where clearly untrue facts are consciously asserted, since these cannot contribute to the formation of opinion protected by Article 5, Paragraph 1, Sentence 1 of the Basic Law.

Example: The city of Munich feared that the Holocaust could be denied at an NPD event at which a well-known speaker was to appear.
The organizer NPD was therefore required to immediately prevent such statements during the event and to point out that such statements are punishable. This requirement did not violate Article 5, Paragraph 1 of the Basic Law.

The spread of the claim that there was no persecution or extermination of the Jews during the National Socialist regime is, as a clearly untrue factual assertion, not subject to freedom of expression. However, this does not mean that every statement that turns out to be untrue in retrospect automatically loses the protection of freedom of expression. The requirements for truthfulness may only be measured in such a way that the exercise of freedom of expression is not neglected for fear of state sanctions.

Citizens can express their opinion and they can spread it. It is up to them which media they choose ("word, writing and image"), and expressions of opinion on the Internet are also covered.
Conversely, freedom of expression also protects the right not to have to express one's opinion. It is irrelevant for what reasons the opinion is expressed or withheld. Whether for political, purely private or economic motives.

Source text

Erich Lüth and freedom of expression

In 1950 the film "Immortal Beloved" was to be shown in the "Week of German Films". This prompted the publicist Erich Lüth to sharply criticize, because the director of the film, Veit Harlan, had become known during the Nazi era with his anti-Semitic inflammatory film "Jud Suss".

Harlan's production company then asked Lüth for clarification. But Lüth followed suit, describing it as the "duty of all decent Germans" to boycott the film. In the ensuing dispute before the civil courts, the production and rental companies were right: Veit Harlan had been acquitted in the criminal proceedings and there were no restrictions on his professional practice. The civil judges qualified the call to boycott as "willful immoral harm" according to the civil code.

At the Federal Constitutional Court, however, Erich Lüth was successful. The constitutional judges decided that his appeal was covered by the fundamental right to freedom of expression. In this decision, the judges set the course for the fundamental right to freedom of expression and for fundamental rights in general:

As far as the right to freedom of expression is concerned, according to the Basic Law it has its limits in "general laws" for the protection of youth and personal honor.
The judges decided: Such "general laws" can be in themselves - in individual cases, however, authorities and courts would still have to check the laws again in the light of basic rights to determine whether freedom of expression is sufficiently exercised.
In Lüth's case, they decided: He feared that Harlan's reappearance - especially abroad - could be interpreted as if nothing had changed in German cultural life since the Nazi era. Lüth also campaigned against such an image in other ways. He had no other means than calling for a boycott, which is why it was lawful.

Far beyond the judgment and also beyond the freedom of expression, the judges also gave the relationship of fundamental rights between private individuals a new basis.
The main concern of the mothers and fathers of the Basic Law was to create rights of defense against the state. Here, however, it was a question of how the private citizen Lüth was allowed to behave towards the likewise private rental and production companies; a purely civil law problem, it seems.

Nevertheless, the constitutional judges said: Basic rights can also have an effect in civil law. They form an objective order of values, at the center of which is the human personality, which develops freely within the social community. According to the Basic Law, the legislature is bound by this system of values ​​anyway. But since then, authorities and courts have also had to observe basic rights in civil law whenever they are dealing with terms that can or must be filled with values.
Here the basic rights now unfold - with their broadcasting effect - a so-called indirect third-party effect.

Gudula Geuther

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Article 5 (2) of the Basic Law shows that freedom of expression (as well as freedom of the press) finds its limits in the provisions of general laws. This does not mean, however, that the legislature is allowed to pass laws in which it prohibits the expression of certain opinions or the expression of opinion at all, on the contrary.
Because a "general law" within the meaning of Article 5, Paragraph 2 of the Basic Law is a regulation that is directed neither against a specific opinion nor against the process of opinion formation as such. Rather, this regulation must serve to protect other legal interests (such as the general personal rights of the individual when it comes to the publication of details from the private sphere), which are simply protected, i.e. regardless of specific opinions.

Freedom of information

Today it seems a matter of course to us to be able to inform ourselves at any time from "generally accessible sources". The Internet in particular has meanwhile become a medium through which information can be accessed in an unprecedented amount.

During the Nazi regime, however, access to information sources was drastically restricted: domestic newspapers were heavily censored.
At that time, broadcasting was particularly important. Because foreign radio programs that were broadcast into the German Reich from abroad with strong shortwave transmitters in the German language were not subject to these restrictions. In order to prevent the population from obtaining information from these sources, the Council of Ministers for Reich Defense ordered a ban on "deliberate listening to foreign broadcasters" in the "Ordinance on Extraordinary Broadcasting Measures" of September 1, 1939.
Violations, so-called broadcast crimes, could be punished with imprisonment, serious violations with the death penalty.

The constitutionally secured freedom of information goes back to these experiences.
It protects the freedom to teach freely from generally accessible sources. This means media that should be accessible to the general public and not just a limited group of people, e.g. newspapers, radio programs and the Internet. As a defense right, freedom of information prohibits the state from preventing or hindering the reception of information. Article 5, Paragraph 1, Clause 1 of the Basic Law does not, however, contain any performance law that would oblige the state to set up certain generally accessible sources of information.

Source text

The broadcasting regulations

"The [...] freedom of reporting by radio [...] (is) guaranteed".
From this one sentence a whole building of the broadcasting order has arisen over the decades through constitutional development and constitutional case law, which the fathers and mothers of the Basic Law had not yet thought of.

The fundamental right makes it particularly clear how the constitution develops and how deeply the fundamental rights affect individual areas of life. As early as 1961, the constitutional judges ruled in their decision on a television station that Federal Chancellor Konrad Adenauer wanted to set up close to the state: It is not up to the state to operate the radio itself.
On the other hand, he must ensure that public broadcasting is distanced from the state and has a variety of opinions:
Because frequencies and broadcasting channels are scarce and the technology is expensive, the Federal Constitutional Court assumes that the state cannot just leave broadcasting freedom to the free play of forces. Instead, he himself has to ensure a broadcasting system that guarantees freedom.

This means that he has a much more extensive task than, for example, freedom of marriage or guaranteeing property: he not only has to ensure that the "legal institution" broadcasting exists at all. Rather, it must regulate this broadcasting in detail so that it does justice to the freedom of broadcasting.

This constellation alone - the state must ensure structures that conform to fundamental rights and which it is not allowed to control itself - explains part of the diverse requirements for the procedure for the allocation of frequencies, the composition of committees, and supervision developed by the court.

However, many fundamental decisions still lie with the legislature. For example, the fact that there was originally a system shaped by public law was not an invention of the Federal Constitutional Court. How it is designed in detail, however, goes back to a large extent on specifications from Karlsruhe. After all, such a system leads to certain monopoly positions. Its structure must therefore be very carefully aligned to ensure that there is still sufficient distance from the state.
In 2014, the Federal Constitutional Court made it clear in its ruling on the ZDF State Treaty that the supervisory bodies of public law must also comply with this. Therefore, for example, no more than one in three members of these bodies may belong to state or state-affiliated political institutions.

Above all, the structure must guarantee freedom and diversity of expression.
The solution lies in a carefully balanced so-called internal plurality, i.e. a structure that ensures that a variety of opinions can exist within the respective public broadcasters, for example through the composition of the committees.

When private broadcasters were to be added in the 1980s, the Federal Constitutional Court enabled the establishment of the "dual system" with its broadcasting judgments.
The result is a construction that is often demanding, even for experts, in which the interaction between public and private law has to be observed again and again and in which other constitutional issues such as the protection of minors play a role.

Gudula Geuther

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However, the fundamental right is not only important in the relationship between the citizen and the state, it also has an impact on the relationship between the citizens:
For example, a landlord cannot prevent a foreign tenant from installing a parabolic antenna in order to be able to watch foreign television programs; unless these programs could be received via a cable connection.