Schlagwort-Archive: BVerfGE 83 130

Actual Limits of Artistic Freedom in Germany

Guest article by erwin GeheimRat

When Lovis Corinth, Max Klinger, Walter Leistikow, Alfred Lichtwark, Max Liebermann, Max Slevogt and others founded the Deutscher Künstlerbund in Weimar in 1903, they did so amid the regimentations of the German Empire, partly with the aim of demanding artistic freedom. For me, too, this was an important reason for becoming interested in a membership of this association of artists living in the Federal Republic of Germany, which was dissolved by force in 1936 and then re-established in 1950. For legal issues, especially constitutional law and the position of artistic freedom have accompanied my artistic practices both im- and explicitly for many years.

In relation to various works presented at the documenta fifteen 2022 in Kassel and additionally to accusations made in the media, politicians have also drawn the boundaries of artistic freedom in a partly idiosyncratic way, so that I would like to contribute something for actual legal classification, and not only for artists.
In order not to be misunderstood, positions that are per se hostile to faith or racist belong to disturbing forms of human encounters for me and the same applies to questioning the right to exist of member states of the United Nations. However, this should not tempt us to draw the legal boundaries of artistic freedom in a different way than they are historically justified and constitute democratic constitutional states.

Freedom of Art Sign 2k0053
Freedom of Art – digital_series#no.2k0053 • CC BY-NC-ND 4.0 GeheimRat

Article 5 (3) sentence 1 of the German Basic Law enshrines the freedom of art as a fundamental right of the constitution. More detailed classifications result from the case law of the Federal Constitutional Court, whose decisions are binding for the legislative, the executive and the judiciary, i.e. for parliaments and their deputies, for authorities, public prosecutors, ministries, civil servants, ministers, Federal Chancellors, Federal Presidents, judges and courts, in accordance with Section 31 (1) of the Federal Constitutional Court Act in conjunction with Article 1 (3) of the German Basic Law

In the Mephisto landmark ruling (BVerfGE 30, 173), the Federal Constitutional Court made it clear as early as 1971 that Article 5 (2) of the German Basic Law provides for certain restrictions, but that these are to be applied only to freedom of expression, information, the press and broadcasting guaranteed in Article 5 (1) and not to the freedoms of art, science, research and teaching mentioned in Article 5 (3).

If statutory provisions at the so-called simple law level are now to restrict fundamental rights, Article 19 (1) of the German Basic Law requires, that the law has to specify the basic right affected and the article in which it appears.
In the landmark ruling of BVerfGE 83, 130, the Federal Constitutional Court stated that this does not apply to fundamental rights that may not be restricted. The Federal Constitutional Court considers the freedom of art among these fundamental rights that may not be restricted. In order to limit artistic freedom, at least one provision is required that can be derived directly from the constitution or, as a rule, from competing fundamental rights, i.e., rights that are positioned in a comparably elevated position in the constitution. 

If, for example, human dignity, which is guaranteed by Article 1 (1) of the German Basic Law, is potentially violated by an artistic work, then this is a competing fundamental right that may already have inscribed itself at the level of simple law. In the case of human dignity, this is recognizably the case, for example, with regulations on incitement to hatred in § 130 of the Criminal Code. However, a complete review of this section reveals that, analogous to Section 86 (4) of the Criminal Code, exceptions for subsection (2), that applies to numerous artistic practices, have been included in subsection (7): The threats of punishment should not apply „if the act serves civic information, to prevent unconstitutional activities, to promote the arts or science, research or teaching, reporting about current or historical events, or similar purposes.“ With these provisions, the legislative body has determined at the simple-law level when inciting content that is „contained in writings, on audio or visual media, on data carriers, in images or other materialised content or which is also transmitted independently of any storage using information or communication technologies“ is punishable. Accordingly, they are not if the act „serves […] the arts […]“. 

When the jurist Peter Raue finally declares in his contribution to documenta fifteen in the Süddeutsche Zeitung of June 23, 2022, „unconstitutional and criminally relevant works have no place in Germany’s public sphere“ [free translation], then this can pass as an expression of opinion by Raue, but if you look at it closely, it probably shows an unconstitutional position itself. Because it has little to do with the current legal situation in Germany in this absoluteness. There are criminal law norms that can hardly be derived from the constitution and thus cannot rival artistic freedom. In the case of Section 130 of the Criminal Code on incitement to hatred, the legislation, as explained, has provided for exceptions in the context of art, among other things. And there are constitutional provisions that can not compete with the fundamental right of artistic freedom and thus cannot override it either. 

In the 2019 decision 1 BvR 1738/16, the Federal Constitutional Court further clarified that not only the producing but also the exhibiting of art is protected by Article 5 (3) sentence 1 GG: „The guarantee of artistic freedom concerns in equal measure the ‚area of the work‘ and the ‚area of effect‘ of artistic creation. Not only the artistic activity, but also the presentation and dissemination of the work of art are necessary for the encounter with the work as a process that is also specific to art. […] The recognition of art may not be made dependent on governmental control of style, level, and content or on an assessment of the effects of the work of art.“ [free translation] 

Including the freedom of art as a fundamental right in the German Basic Law of the Federal Republic of Germany was also due to the experiences during the German Empire and the National Socialist regime. I would be surprised if Liebermann, Corinth, Slevogt and the others who founded the Deutscher Künstlerbund in 1903 – also with the aim of demanding freedom of art – did not appreciate and would defend the actual legal situation.

About the author: erwin GeheimRat works in the field of digital conceptual art and is a full member of the Deutscher Künstlerbund e.V.