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Free Speech and Private Law in German Constitutional Theory Peter E Maryland Law Review Volume 48 | Issue 2 Article 3 Free Speech and Private Law in German Constitutional Theory Peter E. Quint Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the International Law Commons Recommended Citation Peter E. Quint, Free Speech and Private Law in German Constitutional Theory , 48 Md. L. Rev. 247 (1989) Available at: http://digitalcommons.law.umaryland.edu/mlr/vol48/iss2/3 This Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. MARYLAND LAW REVIEW VOLUME 48 1989 NUMBER 2 0 Copyright Maryland Law Review, Inc. 1989 Articles FREE SPEECH AND PRIVATE LAW IN GERMAN CONSTITUTIONAL THEORY PETER E. QuiNT* TABLE OF CONTENTS I. Introduction ........................................... 248 II. T he Li'th Case ......................................... 252 A. Historicaland Doctrinal Background ................... 252 B. The Liuth Opinion, Part I.- The "Influence" of the Constitution on Private Law .......................... 258 C. The Theory of the Lith Case and the American "State Action" Doctrine .................................... 2 65 D. A Return to the Lith Opinion, Part II: Free Speech and "General Laws .... ................................ 281 III. The M ephisto Case ..................................... 290 A. Artistic Endeavor and the Rights of Personality .......... 290 B. The Scope of Constitutional Review in Mephisto ........ 302 C. Mephisto: Implications and American Contrasts ........ 307 1. Deference and the "Preferred Position"............. 307 2. Primacy of Principle or Primacy of Result ........... 310 0 Copyright 1989 by Peter E. Quint. * Professor of Law, University of Maryland School of Law. A.B., Harvard Univer- sity, 1961; LL.B., 1964; Diploma in Law, Oxford University, 1965. For helpful com- ments on earlier drafts of this article I am grateful to Professors Wolfgang Vitzthum (University of Tubingen), Winfried Brugger (University of Mannheim), and William Reynolds, Edward Tomlinson and Robin West (University of Maryland School of Law). I have benefited greatly from their advice, but I bear full responsibility for any remaining errors of commission 'or omission. I am also indebted to Eva Holland for editorial assistance. 248 MARYLAND LAW REVIEW [VOL. 48:247 3. Constitutional Balancing and Judicial Deference ...... 312 4. Libel, State Interests, and State Action .............. 314 IV. The Deutschland-Magazin Case .......................... 318 V. Free Speech and Private Law in the 1980s: B6'l and Wallraff ................................................ 330 VI. Conclusion ............................................ 339 A PPEN D IX ................................................. 348 I. INTRODUCTION The promulgation in 1949 of the Bonn Constitution--or Basic Law-marked the re-emergence of German political life. The fram- ers of the Basic Law rejected the authoritarian style of previous political traditions and sought to erect, on a more durable founda- tion, a political order reflecting the republican and libertarian prin- ciples of the Weimar Constitution.' The framers also undertook an experiment that was almost completely new in German constitu- tional history-and, indeed rare anywhere in the world-a compre- hensive system of judicial review of legislative and executive action for conformity with constitutional principles. Although the propriety of constitutional review had been widely debated under the Weimar Constitution, and there were some in- stances of judicial review by the ordinary courts, the institution was by no means firmly established during that period.2 In contrast, the 1. The political history of Germany in the 19th and 20th centuries can be seen as a struggle for hegemony between liberal and authoritarian movements, with the authorita- rian movements most often in the ascendant until the founding of the present Federal Republic. Against the background of the conservative reaction to the French Revolution in the first half of the 19th century, the abortive liberal revolution of 1848 gave rise to the Frankfurt (Paulskirche) Constitution of 1849 which, however, never came into effect. See generally P. STEARNS, 1848: THE REVOLUTIONARY TIDE IN EUROPE ch. 7 (1974). This was followed in 1871 by Bismarck's Constitution for a united Germany which, although it established a parliamentary assembly, rested on the theory that all political power was derived from the princes whose dominions coalesced to form the empire. G. CRAIG, GERMANY: 1866-1945, at 43-44 (1978). After the defeat of Germany in World War 1,the Constitution of the new Weimar Republic broke with this tradition by proclaiming that all political power was derived from the people. WEIMAR CONSTITUTION [WRV] art. I. The Weimar Constitution established representative institutions, sought to protect indi- vidual liberty against the state, and provided certain guarantees of social welfare. The Weimar Republic was destroyed by the Nazi dictatorship which proclaimed the so-called "Fifhrer-principle" in which all "law" was derived from the will of one man. After World War lI-and in reaction to the Nazi period-the Basic Law of 1949 was founded essentially on the liberal, social and democratic notions of the Weimar and Frankfurt (Paulskirche) Constitutions and traces its lineage to those documents. 2. K. SCHLAICH, DAS BUNDESVERFASSUNGSGERICHT 1-3, 60-63 (1985); D. KOMMERS, JUDICIAL POLITICS IN WEST GERMANY: A STUDY OF THE FEDERAL CONSTITUTIONAL COURT 30-42 (1976); Casper, Guardians of the Constitution, 53 S. CAL. L. REV. 773, 777-78 (1980). 19891 GERMAN CONSTITUTIONAL THEORY 249 Basic Law established the Federal Constitutional Court, a tribunal whose principal function was the adjudication of constitutional questions. In creating a special court for constitutional matters, the framers took account of the continental tradition that viewed the regular judiciary as a special kind of bureaucracy, whose pretentions and abilities would not ordinarily extend to the invocation of consti- tutional norms against statutory law.' In light of this tradition a spe- cial court for the decision of constitutional questions was required.4 The Bonn Constitution was a product of the western liberal tra- dition which addresses certain central issues of popular sovereignty and individual rights. Many of the concerns reflected in the Basic Law are similar to those addressed in the American Constitution and it was to be expected that many of the constitutional issues that over the years were subject to adjudication in the United States would ultimately come before the West German Constitutional Court. Of those common concerns, the protection of freedom of expression holds a central position. The struggle over the law of seditious libel formed the background of an important aspect of American constitutional history; the totalitarian information policy See also Deik & Rheinstein, The Development of French and German Law, 24 GEO. L.J. 551, 581 n.86 (1936). 3. See, e.g., M. CAPPELLETTI, JUDICIAL REVIEW IN THE CONTEMPORARY WORLD 62-63 (1971) ("IT]he bulk of Europe's judiciary seems psychologically incapable of the value- oriented, quasi-political functions involved in judicial review"); see also Cappelletti & Ad- ams,Judicial Review of Legislation: European Antecedents and Adaptations, 79 HARV. L. REV. 1207, 1215-16 (1966);J. MERRYMAN, THE CIVIL LAW TRADITION 34-38 (2d ed. 1985). But see BASIC LAW IGG] art. 1, § 3 (ordinary judiciary also bound by constitution); K. SCHLAICH, supra note 2, at 13-15. 4. In contrast to the ordinary judiciary-which resembles the career civil service in appointment, tenure and promotion-the judges of the Federal Constitutional Court are chosen equally by the two houses of the German parliament. GG art. 94, § i. This political process of choice is intended to encourage the selection of individuals whose views and experience are broader than those of the ordinary judiciary. Nonetheless, any prospective judge must have completed a legal education, and a significant minority of the judges of the Constitutional Court must be drawn from the ordinary courts. See Bundesverfassungsgerichtsgesetz [BVerfGG] § 2-3 (Constitutional Court Act). The concept of a special Constitutional Court, distinct from the ordinary judiciary, is derived from a similar institution created in Austria in the 1920s under the intellectual influence of Hans Kelsen. See M. CAPPELLETTI, supra note 3, at 46-47. Like a number of other German courts, the Constitutional Court almost never sits as a single body. Rather, it is divided into two separate panels or "senates" which have distinct areas of jurisdiction and are, for almost all purposes, two separate courts. Moreover, an increas- ingly important segment of the Court's work is performed by "chambers" of three judges, which have the power to sustain or reject certain constitutional complaints in clear cases. See BVerfGG § § 15a, 93b, 93c; Zuck, Die Ftinfie Novelle zum Bundesverfassungs- gerichtsgesetz, 1986 NEUE JURISTI$CHE WOCHENSCHRIFT [NJW 968. See also infra n.254. See generally Vitzthum, Das Vorprifungsverfahrenfir Verfassungsbeschwerden, in FESTSCHRIFT Rl OTTO BACHOF ZUM 70.GEBURTSTAG 293-320 (G. Piitmer ed. 1984). 250 MARYLAND LAW REVIEW [VOL. 48:247 of Josef Goebbels had an immediate cautionary effect on the draft- ers of the
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