30 BVerfGE 173 (1971)

[Facts:

In 1936, after having left Nazi Germany, Klaus Mann wrote and published   Mephisto--Novel of a Career . The main character of that book, Hendrik Hoefgen, is an obvious and exaggerated portrait of the German actor Gustaf Gruendgens. Gruendgens had been a friend of Klaus Mann before the Germans elected Hitler and used to be married to Mann's sister. After 1933, Gruendgens renounced his moderate political position, worked with the Nazis and became rich and famous. Klaus Mann wrote about the purpose of his work: I thought it pertinent, indeed, necessary to expose and analyze the abject type of the treacherous intellectual who prostitutes his talent for the sake of some tawdry fame and transitory wealth.  The book was first published in Amsterdam in 1936 and later also in the German Democratic Republic. In 1963 the publishing house Nymphenberger Verlagshandlung, GmbH announced that it intended to publish AMephisto  in Germany. A couple of months later and after the death of Gustaf Gruendgens, the adopted son of the actor sought a court order prohibiting the publication of the book arguing that a publication would violate his father's right to human dignity as guaranteed in Article 1.1. of the Basic Law and would completely distort his father's image. Moreover he argued that the novel is plainly a cheap revenge of Mann against Gustaf Gruendgens for divorcing his sister.

The trial court refused to issue such an order but the Hamburg Court of Appeals reversed and the High Court of Justice affirmed. The publishing house then filed a constitutional complaint with the Federal Constitutional Court challenging the holding of the High Court of Justice arguing that that holding violates the right to freedom of expression and art as protected by Article 5. of the Basic Law.

Issue:

In the present case, can the basic right of the freedom of art from Article 5.3. first sentence of the Basic Law justify the violation of the protected human dignity of the deceased actor Gruendgen from Article 1.1. of the Basic :Law?

Holding:

No, it cannot.

Discussion:]

C.

III.

Article 5.3. first sentence of the Basic Law declares that art, as well as science, research and teaching, shall be free. With this guarantee of freedom, Article 5.3. first sentence of the Basic Law, following wording and meaning, first includes an objective value-determining basic principle [which] regulates the relation of the realm of art to the state. Simultaneously, [Article 5.3. first sentence] grants everyone who works in the realm of art an individual right to freedom [of art] (individuelles Freiheitsrecht).

1. ...The guarantee of the freedom of art encompasses the sphere of creation  (Werkbereich) and the sphere of impression  (Wirkbereich) of artistic creation. Both spheres form an insoluble unity. Not only the artistic work itself (sphere of creation), but furthermore the presentation and distribution of the artwork are, as a matter of fact, necessary for the encounter with the artwork; this sphere of impression, within which the public gains access to the artwork, [was the prime rationale for the guarantee of the freedom of art]. That the granting of individual rights to artists is insufficient to ensure the freedom of art can be shown by looking back at the national-socialist regime and its policy with respect to art. Without including the sphere of impression of artwork into the guarantee of the freedom of art, the basic right [would have little meaning]...

3. Article 5.1. first sentence of the Basic Law guarantees the freedom of activity in the realm of art comprehensively. Therefore, to the extend that the publishing media are necessary to establish relations between artist and audience, also those persons are protected by the guarantee of the freedom of art who hold such mediating positions. Because literature could not evoke any effects in the public without multiplication, distribution and publication, and therefore the publisher is an indispensable link between the artist and the audience, the guarantee of freedom [of art] also covers the [publisher's] work. The petitioner may therefore, as publisher of the novel, refer to the basic right [guaranteed] in Article 5.3. first sentence of the Basic Law.

4. ...The notion that the freedom of art must be limited pursuant to Article 2.1. first half-sentence of the Basic Law, by the rights of others, by the constitutional order, and by the moral code, must be rejected as well. As the Federal Constitutional Court has consistently recognized, such a notion is irreconcilable with the subsidiary relationship of Article 2.1. of the Basic Law to the specificity of particular[ly mentioned] freedom rights, which prevents the application of the community objection (Gemeinschaftsvorbehalt), in Article 2.1. second half-sentence of the Basic Law, to the areas of life which are protected by particular basic rights...

5. On the other hand, the right of freedom [of art] is not granted without limits. Like all basic rights, the guarantee of freedom in Article 5.3. first sentence of the Basic Law presumes the Basic Law's image of man, which is that of man as being a personality who is responsible for his own life and who develops freely within the social community. [The fact] that the basic right has no qualifying limitation means that the freedom of art is limited only by the constitution itself. Since the freedom of art contains no provision allowing the legislator to limit it, it may neither be weakened by general laws, nor may it be weakened by an indefinite clause which has no anchor in the constitution and which does not come from an endangerment of goods which are necessary for the continued existence of the national community. Rather, conflicts with respect to the freedom of art must be resolved, from the basis of the value order established by the Basic Law and the unity of this fundamental value system, by means of constitutional interpretation. As part of the basic value system the freedom of art is assigned to the human dignity as guaranteed in Article 1 of the Basic Law, which is the supreme value and dominates the entire value system of basic rights. However, the guarantee of freedom of art can come into conflict with the constitutionally protected sphere of personality, because a work of art can also effects on a social level.

That the use by the artist of personal and life data of people in his environment can affect the right of the portrayed person to societal esteem and respect, is due to the fact that such a piece of art not only works as aesthetic reality, but also has an existence in the aspects of reality [which draw on personal and life data of existing persons] that, although exaggerated in the artistic portrait, nevertheless do not loose their effect on the social level. These effects on the social level unfold themselves next to the [actual] sphere of art; nevertheless they have to be respected within the realm of freedom granted by Article 5.3. first sentence of the Basic Law, because the real  and the aesthetic  worlds form one unity in the work of art.

6. The courts [below] properly referred to Article 1.1. of the Basic Law in order to determine the protected sphere of personality of the now deceased actor Gruendgens. It would be incompatible with the constitutional command of the inviolability of human dignity, [the right] which is the foundation of all other basic rights, if the human being, who conceives dignity by virtue of his personhood, could be degraded or humiliated in his right to respect even after his death. Accordingly, the duty imposed on all state authority by Article 1 of the Basic Law to protect the individual from attacks on his dignity does not end with death...

7. The solution of the tension between the protection of personality and the right to freedom of art can therefore not only address the effects of a work of art in the extra-artistic social sphere, but also has to take into account art-specific aspects. The image of men upon which Article 1.1. of the Basic Law is founded, is being partly molded by the freedom guarantee in Article 5.3. first sentence of the Basic Law, just as vice versa, [the guarantee of freedom of art] is being influenced by the value conception of Article 1.1. of the Basic Law. Neither is the right of the individual to societal respect and esteem superior to the freedom of art, nor may art simply disregard the general right to respect of human beings.

The decision of whether the publication of a work of art, which uses personal data from reality as a means of artistic representation, shall be opposed because one has to fear that it will strongly interfere with the protected private sphere of the portrayed person, can only be decided after weighing all aspects of the individual case. [In deciding this], one has to take into account, if and to what extent, the image  [of some figure] seems to have become so independent of the original' by means of artistic shaping and incorporation into and subordination to the complete organism of the work of art, that the individual and personal have been objectified into the general and symbolic aspects of the figure . However, if such an analysis, bearing in mind the particularity of the sphere of art, results in the knowledge that the artist drew or even intended to draw a portrait  of the original , then the extent of the artistic abstraction or the extent and seriousness of the falsification  and the impact thereof on the reputation of the affected person, become decisive.

IV.

2. The Hamburg Appellate Court, being the last court level entitled to find facts, determined that Gruendgens is a person of contemporary history and that the memory of him among his audience is still vivid. Due to these fact findings the Hamburg Appellate Court and the Federal High Court presumed, that the right of the deceased Gruendgens to have his respect protected, still exists in the social sphere. In this regard the Federal High Court correctly noted that the need for protection--and similarly the duty to protect--decreases in the degree in which the memory of the deceased fades and in the course of time the interest not to falsify the picture [of Gruendgens' life] diminishes. This application of Article 1.1. of the Basic Law is not to be criticized. On the other hand, the courts presumed that the novel of Klaus Mann constitutes a work of art within the meaning of Article 5.3. of the Basic Law an that the petitioner may claim this right. Thereafter the courts recognized the deep constitutional conflict between the two spheres protected by Article 1.1. of the Basic Law and 5.3. first sentence of the Basic Law. They attempted to solve the conflict by weighing the conflicting interests.

3. The Federal Constitutional Court consistently held in the past that the decisions [of lower courts] can only be reviewed narrowly [when a constitutional complaint is decided upon], that particularly, the establishment and evaluation of the fact, the interpretation of the laws and their application to the individual case, are solely the business of the [lower] courts and not subject to review by the Federal Constitutional Court... The Federal Constitutional Court is not entitled, as opposed to a regular appellate court, to replace the evaluation of the individual case by the responsible judge with its own. On the contrary, it can only find a violation of a basic right in cases when the responsible judge either did not recognize that [the case requires] a weighing of conflicting basic rights, or when his decision rests on an incorrect interpretation of the meaning of the one or the other basic right, especially with respect to the scope of the sphere the basic right is to protect.

The review of the contested decisions with these standards results [in the following]: The Hamburg Appellate Court and the Federal High Court realized that a tension between the spheres protected by Article 1.1. and Article 5.3. first sentence of the Basic Law exists, and that [this tension] must be solved by means of weighing (compare C III 7). If one recognizes the contested decisions in their entire context, [one] cannot determine, that they are principally based on an incorrect understanding of the meaning and the scope of the protected spheres of the two basic rights. In particular, [a] faulty understanding of the essential content of the basic right [which] lost in the weighting, which the petitioner claims, cannot be found. The courts did not solely focus on the effects of the novel in the extra-artistic social sphere, but also took into account art-specific aspects. They deeply and thoroughly outlined that the fictional character of Hendrik Hoefgen in many details resembles the physical appearance and the course of life of Gruendgens so clearly, that a not insignificant number of readers [would] easily Hoefgen as Gruendgens. Whether this is correct is not for the Federal Constitutional Court to decide; in any event lies therein the determining weighing of the facts by the courts, that the image  Hoefgen did not get so independent of, and in the artistic presentation transcended, the original  Gruendgens by means of artistic shaping of the material and its incorporation into and subordination to the entire organism of the novel, that the individual and personal appears sufficiently objectified into the general and symbolic [aspects] of the figure . The courts moreover discussed extensively that the author drew a fundamentally negative picture of the personality and character of Hoefgen and therefore of the deceased Gruendgens, which in many details is untrue, enriched by invented behavior--namely the invented behavior towards the black dancer--which characterizes a negative conviction, and which contains libel and slander against Gruendgens by means of the person of Hoefgen. The Hamburg Appellate Court labeled the novel--uncontested by the Federal High Court--a defamatory piece of writing.  There are no sufficient grounds to counter this preliminary judgment of the courts, that the author drew a negative and falsifying portrait of the original  Gruendgens.

The result found by the courts, that with the [present] factual and legal situation the protection from Article 5.3. first sentence of the Basic Law fails [to override the claimed right to have the publication enjoined], can finally not be questioned with the deliberation, that an order enjoining the publication stands out of proportion to the expected encroachment of the right to respect of the deceased Gustav Gruendgens. [It is true] that the Federal Constitutional Court has repeatedly emphasized that the principle of proportionality has constitutional rank and therefore must be considered at all encroachments of state authority into the sphere of freedom of the citizen. Such an encroachment is, however, not at hand in the present case. The courts simply had to decide a private claim of one citizen against the other, which means to render concrete a private legal relation in an individual case. For the decision upon the legal basis and extent of a private legal claim, for instance, a right to claim damages, one cannot refer to constitutional requirements which are to be considered with respect to the relation of the citizen towards the state [in cases where the state encroaches upon] the sphere of freedom of the individual. The function of private law lies primarily in the resolution of conflicts of interest between persons of equal legal status in the most adequate way [for the situation at hand]. Following this, the Federal Constitutional Court can only review the contested decision to enjoin publication under the aspect whether Article 3.1. of the Basic Law has been complied with. [The question of whether Article 3.1. has been complied with] has to be answered positively...

V.

[In the concluding paragraph the Federal Constitutional Court holds that the right to freedom of expression does not influence the decision here.]

[signed by all eight judges; one judge filed a dissenting opinion]

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