Mutzenbacher decision
The Mutzenbacher decision is a decision of the Federal Constitutional Court from 1990, in which the court consolidated its interpretation of the guarantee of artistic freedom of the Basic Law of Article 5 (3) of the Basic Law (GG) and stated that pornography could also be art . (Decision of the First Senate of November 27, 1990, Az .: 1 BvR 402/87, published in the official collection BVerfGE 83, 130 ).
background
Josefine Mutzenbacher or The Story of a Viennese Whore Told by Her Myself is anovel that was publishedprivately in Vienna in1906 and was includedin the list of writings harmful to minors in the editions of two small publishers inthe 1960s by the Federal Testing Office for writings harmful to minors, after two criminal courts found himindecentbecause of his pornographic content. At the end of 1978, the Rowohlt Verlag included the work in its program, added a foreword and a glossary on the Viennese whore language in the end creditsand, in January 1979, applied to the Federal Inspectorate for the deletion of the indexed versions because it wanted to distribute the book unhindered the list of writings endangering young people on the grounds that the novel is a work of art according to today's view. After two art reports obtained by the Federal Inspectorate came to the conclusion that it was not a question of art, the 12-member committee of the Federal Inspectorate rejected the request to delete the list and also accepted the edition of the Rowohlt Verlag because it was essentially identical in content to the editions already indexed the list. The reasoning stated that the novel was seriously endangering young people because, excluding all other human references, it put the sexual processes around the heroine in the foreground in a grossly intrusive way. Child prostitution and promiscuity would be judged positively and, moreover, even played down and glorified. The novel is nothing more than a "pornographic collection of posts" and a "tally sheet" about the sexual activities of the heroine. Problems of pornography and incest are not dealt with artistically, but only used to intensify the stimulus.
Rowohlt Verlag took legal action against this decision and was defeated in all administrative courts. He then filed a constitutional complaint for violating his artistic freedom.
The decision of the Federal Constitutional Court
The Federal Constitutional Court initially followed up on its previous jurisprudence on the concept of art (forerunners were the Mephisto decision and anachronistic trait ): Art is the "result of free creative design, in which the artist's impressions, experiences and fantasies" can be viewed directly through the medium of a certain formal language The novel at issue also has these characteristics. The fact that the novel is at the same time pornography does not exclude its artistic status. Recognition as art should not be made dependent on state control of style, level and content.
Although artistic freedom is guaranteed unconditionally in Article 5, Paragraph 3 of the Basic Law, its limits are drawn by the fundamental rights of others and by legal interests with constitutional status. Indexing for reasons of the protection of minors is therefore not fundamentally excluded. According to repeated jurisprudence of the BVerfG, the protection of young people from dangers is a goal of significant importance and an important community concern, according to an assessment made by the Basic Law itself. The barriers to artistic freedom can arise from Article 2, Paragraph 1 of the Basic Law, the guaranteed right of children and young people to an undisturbed development of their personality that is not impaired by young people's dangers. But also the right of parents in accordance with Article 6, Paragraph 1 of the Basic Law to raise their children in their own way and to protect them from harmful influences comes into consideration as a barrier to artistic freedom.
The Federal Constitutional Court thus overturned the decision of the Federal Inspectorate and left the authority to decide again on a list taking into account its case law.
Later reaction of the federal inspection agency for media harmful to minors
Despite the decision of the Federal Constitutional Court, the Federal Inspectorate put the novel on the index again in 1992, this time on the grounds that it was particularly dangerous child pornography. With a decision dated November 9, 2017, the Federal Inspectorate deleted the novel from the list of media harmful to minors.
Web links
Individual evidence
- ^ Johann Holzner: Literature as a scandal: cases - functions - consequences. Vandenhoeck & Ruprecht, 2007, p. 141
- ↑ Peter Brockmeier, Gerhard R. Kaiser: Censorship and self-censorship in literature. Königshausen & Neumann, 1996, p. 305ff.
- ^ Freedom for Josefine Mutzenbacher . In: PORN ADVERTISER . ( pornoanwalt.de [accessed December 6, 2017]).
