Lüth judgment

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The "Lüth judgment" of the Federal Constitutional Court (BVerfG) of January 15, 1958 is a fundamental judgment on the doctrine of fundamental rights that is often cited in German jurisprudence . It deals with the scope of the fundamental right to freedom of expression and emphasizes its importance as the “basis of all freedom in general”. In addition, it constitutes an “objective value system” as a constitutive part of the German constitution.

facts

Veit Harlan (left) during the Harlan trial in Hamburg in 1949

The Hamburg Senate Director and Head of the Press Office Erich Lüth had the press called for the directed by Veit Harlan resulting film Immortal Beloved , turned the novella Aquis submersus of Theodor Storm to, boycott . Harlan was known during the Nazi era as the director of the anti-Semitic film Jud Suss . His new film should be shown at the "Week of German Films". Lüth had sharply criticized this when it opened on September 20, 1950, as chairman of the Hamburg press club: the director of “Jud Suss” was the least likely to restore the moral reputation of German film, which had been forfeited under National Socialism.

The Domnick-Film-Produktion-GmbH, which employed the controversial director, then asked Lüth for clarification. In a public reply, he expanded his allegations and referred to Harlan as “Nazi film director No. 1”, who with “Jud Suss” was one of the most important exponents of the Nazis' murderous incitement to Jews. It is therefore not only the "right of decent Germans", but even their duty to "stand ready for a boycott in addition to protesting against these unworthy representatives of German film."

The production company and Herzog-Film-GmbH, which awarded the Harlan film nationwide, then obtained an injunction from the Hamburg district court and later a judgment against Lüth in the main. He was forbidden to "call on German theater owners and film distributors not to include the film in their programs and to call on the German audience not to attend this film." The regional court saw in his call an immoral call for a boycott with the aim of a re-appearance of Harlan To prevent "as a creator of representative films". Harlan was finally acquitted in the criminal proceedings initiated against him because of his involvement in the film "Jud Suss" and, due to the decision in the denazification proceedings, he is not subject to any restrictions in the exercise of his profession. Lüth's personal opinion of Harlan is irrelevant here. However, he asked the public to use certain behavior to make the showing of Harlan films and thus Harlan's reappearance as a film director impossible. This is an unlawful act according to § 826 of the German Civil Code (BGB) and therefore to be prevented by an injunction.

Lüth appealed to the BVerfG against this decision with his constitutional complaint . He claimed that his fundamental right to freedom of expression according to Article 5, Paragraph 1, Sentence 1 of the Basic Law (GG) had been violated.

The BVerfG finally upheld Lüth's constitutional complaint.

Summary of the judgment

The impact of the fundamental rights on private law (indirect third-party effect)

The first Senate of the BVerfG first looked into the question of the extent to which fundamental rights can also be protective rights in the relationship between citizen and citizen. While the fundamental rights are in principle aimed at protecting the individual against the state, the present case concerned private law, namely an injunction ( § 826 BGB) of private persons (film producer and film distributor) against which a private person (Lüth) resisted. That question was at the heart of the process.

The BVerfG emphasized here that it regards the Basic Law as a “system of values” that is centered on the human personality that develops freely within the social community. As such, it must apply to all areas of law that send guidelines and impulses to legislation, administration and jurisdiction. Therefore, it also influences civil law. The breakpoints for the valuation contained therein are the terms that are capable and needful of value and general clauses of private law, in the interpretation of which the "broadcast effect" of the fundamental rights must apply, so-called "indirect third-party effect". No civil law regulation should contradict the value system understood in this way; each one must be interpreted in the spirit of the Basic Law. From Article 1, Paragraph 3 of the Basic Law it follows that in addition to the legislative and executive powers, the judiciary is also bound by fundamental rights.

Review: The dispute up to the Lüth judgment

The theory of “indirect third party effect” advocated by the BVerfG was controversial up to then. For a while, the Federal Labor Court (BAG) advocated the theory of “direct third-party effects”, which mainly goes back to Hans Carl Nipperdey . For this, the BAG cited a teleological justification : The basic rights should protect the citizen against unjustified restrictions and thus secure their freedom. A restriction of freedom is always to be feared if there is a power imbalance between two parties, as there is also between the citizen and the state. Due to economic power, such an imbalance can also occur in the citizen-citizen relationship. Here the basic rights then have an immediate effect. As a result, the fundamental rights should act as prohibitive laws in the legal area of ​​private law and as absolute rights or protective norms in the criminal area. This should give the fundamental rights the importance of objective regulatory principles. However, this view was not only criticized from a systematic point of view, but crucially with the argument that its scope is incompatible with private autonomy as an outflow of freedom of action from Article 2, Paragraph 1 of the Basic Law.

In contrast, the legal scholar Jürgen Schwabe saw the issue of the third-party effect of fundamental rights as a pseudo-problem with no actual relevance: The private law used by the citizens in their legal acts is a law set by the legislature, the enforcement of which requires a civil court judgment and enforcement. Accordingly, the interventions are of private nature , but because of the direct binding of fundamental rights under Article 1 (3) of the Basic Law , the fundamental rights apply directly in their function as a right to defend against state action. There is an encroachment on fundamental rights based on a judgment based on a law.

The answer to this is that the question of the justification of the claim is mixed up with that of the enforcement of the claim. The content of the judicial decision is based on substantive law. In the case of the problem of third party effects, however, it is precisely a question of whether the fundamental rights belong to the relevant normative assessment standard for the judicial evaluation of the private law relationship.

As far as can be seen, the BVerfG itself does not address the dispute in its judgment, but merely takes a clear position on the theory of “indirect third-party effects”. This legal conception is supported in particular by the fact that on the one hand it takes into account private autonomy , on the other hand it is able to enforce the basic order laid down in the constitution to the extent that it is appropriate in a society whose citizens are now no longer in their freedom see threatened only by the state, but also by social, economic and societal forces.

Due to the clear and established position of the BVerfG, the dispute is now likely to be of dogmatic rather than factual significance.

Interaction between the right to freedom and its limits

Another fundamental problem of the decision was the question of how the constitutionally guaranteed freedom of expression ( Article 5, Paragraph 1 of the Basic Law) relates to the limits of the right to freedom ( Article 5, Paragraph 2 of the Basic Law). Freedom of expression can then be restricted by general laws, legal provisions for the protection of young people and the right to personal honor .

To the limit of general laws

For a long time it was not decided what should be understood by general laws . In some cases, according to the doctrine of special law, a law was not seen as general if it had forbidden an opinion per se due to its spiritual effect and purpose. In contrast, according to the doctrine of balancing, a general law should exist if it served to protect a legal interest that is higher than freedom of expression. In its decision, the BVerfG combined both theories, whereby in case of doubt it nowadays follows the doctrine of balancing, since this allows a decision to be made that is fair to the individual case.

"Deliberate immoral damage" ( § 826 BGB) is such a "general law". It could therefore be seen as a barrier to freedom of expression. It was not decided whether there was intentional immoral damage in Lüth's behavior.

Interaction theory

The first Senate of the BVerfG emphasized, however, that the fundamental right to freedom of expression as the most direct expression of the human personality in society is “one of the most noble human rights of all”. This right is absolutely constitutive for a liberal, democratic state order , because it is the only way to enable constant intellectual debate. In a certain sense it is the basis of all freedom.

Therefore, it should not be concluded from the qualified legal reservation of Article 5 (2) of the Basic Law that the claim to freedom of expression would be restricted from the outset to the area that the simple courts leave to it after interpreting and applying the general laws. Rather, the general laws, in their restrictive effect on the fundamental right, must for their part be seen and interpreted in the light of the meaning of this fundamental right. Its special value, namely the basic presumption of freedom of speech in all areas, but especially in public life, must be preserved. There is therefore an interaction in the sense that the "general laws" set limits according to the wording of the basic right, but in turn interpreted from the knowledge of the value-setting significance of this basic right in the free democratic state and so again in their effect limiting the basic right need to be restricted.

No super revision authority

In the Lüth ruling, the BVerfG also stated that it did not constitute a super-revision authority. The ordinary courts are responsible for the interpretation and application of simple law, as is the determination and assessment of the facts. The BVerfG only examines the judgment for violation of specific constitutional law or the prohibition of arbitrariness. The mistake must therefore consist in the failure to observe fundamental rights, in a faulty view of the meaning and scope of the fundamental rights or in a disproportion between the result of the interpretation and the order of values ​​established by the fundamental right.

Case-by-case examination

On the basis of this basic definition, the BVerfG examined the injunction against Lüth in the light of the required "interaction between fundamental right and general law". In doing so, it took Lüth's motives into account, but also the purpose he pursued. It should be checked whether he had proceeded proportionately in pursuing his goals.

In addition, the BVerfG stated that Lüth's statements should be seen in the context of his general political and cultural-political endeavors. He had expressed concern that Harlan's reappearance - especially abroad - could be interpreted as if nothing had changed in German cultural life since the Nazi era. Nothing damaged the German reputation as badly as the cruel persecution of the Jews by National Socialism. It is therefore of great importance that the realization prevails that the German people had turned away from the National Socialist mentality and condemn them not for reasons of political opportunity, but because of the insight into their reprehensibility gained through their own internal repentance.

Lüth is known for his efforts to restore a true peace with the Jewish people. It is understandable that he feared that all of these endeavors might be disturbed and thwarted by Harlan's return. He was allowed to assume that the public expected a statement from him. In addition, apart from the possibility of influencing the award of film subsidies, which he did not make use of, Lüth had no means of coercion at his disposal to emphasize his request; he could only appeal to the sense of responsibility and moral attitude of those he addressed and had to leave it to their free will to decide whether they wanted to follow him.

The BVerfG came to the conclusion that the lower court decision had not taken these aspects into account and therefore granted Lüth's constitutional complaint.

Meaning and consequences

Dieter Grimm , judge at the BVerfG for media issues from 1987 to 1999, considered the judgment to be one of its "most important decisions": not only because it regulated the area of ​​freedom of expression, but also because fundamental rights as "objective values" for everyone Legal areas have been established. This dimension gives the judgment a "paramount importance", especially with regard to its "long-term effect".

In its reasoning for the judgment, the court assumed that the fundamental rights would have an “impact” as the highest objective principle of the entire legal system in all areas of law. Fundamental rights therefore refer not only to the legal relationship between the state and the citizen, but also permeate all areas of law, including private law according to the prevailing opinion in the form of an "indirect third-party effect". All norms must be interpreted and applied in the spirit of fundamental rights.

This sentence significantly upgraded the fundamental rights. They were released from the purely state orientation and expanded to include social relationships. They were thus no longer purely subjective rights of the individual to defend themselves against the state. Up until then, they had already imposed on him not only obligations to cease and desist, but also obligations to act in the interest of safeguarding freedom (“ duty to protect ”). But now their influence no longer ended with the law , but also extended to the interpretation and application of law in private legal disputes. In the decision on the " Rumpelkammer " action , the court transferred these principles to religious freedom .

The judgment approved the Basic Law with a new regulatory content, which the BVerfG had to monitor itself - especially in the case of so-called "fundamental rights collisions": This increased its position of power considerably.

Files

After the legal protection period has expired, the court files can be viewed in the Federal Archives (Koblenz location) since February 2018 . These are the judicial votes and the associated files.

literature

  • Decisions of the Federal Constitutional Court. Volume 7. Verlag JCB Mohr, Tübingen 1958, pp. 198-230.
  • Hans Carl Nipperdey : Boycott and freedom of expression. In: German administrative gazette . 1958, pp. 445-452.
  • Jürgen Schwabe : The so-called third-party effect of fundamental rights. On the impact of fundamental rights on private law transactions. Goldmann, Munich 1971, ISBN 3-442-60015-4 , pp. 16ff., 149, 154ff. ( The Scientific Paperback 15).
  • Christoph Fiedler: BVerfGE 7, 198 - Lüth. Freedom rights, laws and private law using the example of Art. 5 I, II GG. In: Jörg Menzel (Hrsg.): Constitutional Law. Hundreds of decisions by the Federal Constitutional Court in retrospect. Mohr-Siebeck, Tübingen 2000, ISBN 3-16-147315-9 , pp. 97-107 ( Mohr textbook ).
  • Friedrich Kübler: Lüth - a gentle revolution. In: Critical quarterly for legislation and jurisprudence. 83, 2000, ISSN  0179-2830 , pp. 313-322.
  • Thomas Henne, Arne Riedlinger (ed.): The Lüth judgment from a (legal) historical perspective. The conflicts over Veit Harlan and the constitutional court's judicature on fundamental rights. Berliner Wissenschafts-Verlag, Berlin 2005, ISBN 3-8305-0922-7 .
  • Christian Bommarius , German Anniversaries: The Victory of Freedom of Expression , Anwaltsblatt 2018, 14

Web links

Individual evidence

  1. ↑ BVerfG, judgment of the First Senate of January 15, 1958, Az. 1 BvR 400/51 , BVerfGE 7, 198 - Lüth.
  2. ↑ BVerfGE 7, 198 (208) .
  3. ^ Lüth judgment: files of the Federal Constitutional Court accessible. Federal Archives, accessed on February 28, 2018 .
This version was added to the list of articles worth reading on August 29, 2005 .