- BVerfGE 83, 130 1 BvR 402/87 Mutzenbacher -decision
- 27 November 1990
- Herzog, Henschel, Seidl, Grimm, Söllner, Dieterich, Kühling, Seibert.
- © Nomos Verlagsgesellschaft
1. A pornographic novel can constitute art within the meaning of the Basic Law's Art. 5(3), first sentence.
2. Placing a writing that is to be viewed as an artwork on a restricted list ("Indizierung") requires a balancing against artistic freedom even if the writing obviously is capable of greatly endangering children or youths morally (§6 (No. 3) of the Act Concerning the Dissemination of Publications That Endanger Youths).
3. Section 9(2) of the Act is constitutionally infirm, because it does not sufficiently regulate selection of members of the Federal Reviewing Authority ("FRA").
Order of the First Panel of 27 November 1990 1 BvR 402/87
in the proceedings concerning the Constitutional Complaint of R ... against the a) the Federal Administrative Court's Judgment of 3 March 1987 - BVerwG 1 CV 27.85 ; b) the North Rhine-Westfalian Supreme Administrative Court's Judgment of 4 June 1985 - 20 A 146/84 ; c) the Cologne Administrative Court's Judgment of 18 October 1983 - 10 K 276/83 ; and d) the 4 November 1982 decision of the Federal Reviewing Authority for writings that endanger youths No. 3262 (Pr. 44/79) .
I.__Section 9(2) of the Act Concerning the Dissemination of Publications That Endanger Youths, as published on 12 July 1985 (BGBl. I, p.1502) is not compatible with the Basic Law's Art. 5(3), first sentence in connection with the principle of the rule of law. It may still be applied, however, until a new statutory regulation is in place, or at the lastest until 31 December 1994.
II.__The following harmed the Complainant 's basic right under the Basic Law's Art. 5(3), first sentence: the 4 November 1982 decision of the Federal Reviewing Authority For Writings That Endanger Youths ("Federal Reviewing Authority" or "FRA") - No. 3262 (Pr. 44/79); the Cologne Administrative Court's judgment of 18 October 1983 - 10 K 276/83; the North Rhine-Westfalian Supreme Administrative Court's judgment of 4 June 1985 - 20 A 146/84; and the Federal Administrative Court's judgment of 3 March 1987 - BVerwG 1 CV 27.85. These decisions are vacated. The proceedings are remanded to the FRA for a decision on costs.
III. The Land North Rhine-Westfalia and the Federal Republic of Germany, respectively, each must reimburse the Complainant for one half of her required expenses.
EXTRACT FROM GROUNDS:
The Complainant objects to the placement on the list of writings that endanger youths, of the novel it published entitled "Josefine Mutzenbacher - The Life Story of a Viennese Prostitute, as Told by Herself".
Under §1(1), first sentence of the Act Concerning the Dissemination of PublicationsThat Endanger Youths (hereafter "Act"), as published on 12 July 1985 (BGBl. I, p.1502), writings that are capable of morally endangering children and youths are to be placed on a restricted list. Such writings include above all those that are immoral, that brutalise, that incite violent acts, crimes, or racial hatred, or that glorify war (the Act's §1(1), second sentence). In accordance with §1(2)(No. 2), however, a writing need not be placed on the restricted list (hereafter "listed") if inter alia it serves art. Following public notice that a work has been listed (§1(1), third sentence), the regulatory scheme of Sections 3 through 5, which threatens punishment in accordance with §21, becomes applicable. Under it, the listed writings may be given only to adults and may be placed only in those commercial spaces that can be neither entered nor looked into by children and youths. In addition, it imposes an advertising ban (§5).
These legal consequences are incurred even without placement on the list when one of the situations defined in the Act's §6 exists. Numbers 1 and 2 of §6 encompass writings that fall under the Criminal Code's Sections 131 and 184, and its Number 3 concerns those that obviously are capable of seriously morally endangering children or youths.
The Federal Reviewing Authority ("FRA") is called upon to administer the Act (§8(1)). It is comprised of a Chairperson named by the Federal Minister for Youth, Family, Women, and Health; a member named by each Land government (the "Land Members"); and further members named by the Federal Minister (§9(1)). These further members, called "Group Members", must be chosen, on the basis of recommendations made by named groups, from the following circles:
5. youth associations;
6. youth services;
8. the churches, the Jewish Culture Communities, and other religious communities organized as bodies regulated by public law.
(The Act's §9(2)).
As a rule, under the Act's §11(2), first sentence, the FRA decides only upon application by the authorities and offices named in §2 of the Regulation on the Administration of the Act Concerning the Dissemination of PublicationsThat Endanger Youths (redrafted on 23 August 1962, BGBl. I p.597, and last amended by the Regulation of 5 May 1978, BGBl. I p.607 - DVO ). The Act envisions three varying FRA compositions. The chairperson decides alone in cases defined by the Act's Sections 18(1) and 18a(1) (placement on the list after a court decision, or of writings with identical content). A three-person panel consisting of the Chairperson and two other FRA members is called upon to decide cases defined by Sections 15 (temporary listing) and 15 a (simplified procedure in obvious cases). In all other cases, the "Panel of Twelve", composed of the Chairperson, three Land Members, and eight Group Members, decides. At least nine members are then required for a quorum. A two-thirds majority, but at least seven votes, is required to place a writing on the list (§9(3) in connection with §13).
1. The Complainant has since November 1978 published in paperback form the novel named in the introductory paragraph. It contains a preface by K.H. Kramberg and "Contributions to the 'Ädöologie' of Things Viennese" by Oswald Wiener. The anonymous work appeared around the turn of the century in Vienna; Felix Salten is thought to be its author. A two-volume edition in German, published in 1965 by Dehli Publishers of Copenhagen, was placed in 1968 on the list in accordance with the Act's §18(1) after two German criminal court judgments had declared it obscene. An edition published in 1969 by the German publisher Rogner and Bernhard was placed on the list in 1970 due to its identical content.
2.a) At the beginning of 1979, the Complainant requested that both of these earlier editions of the novel be removed from the list, arguing that under current opinion the writing was an artwork. In the contested decision, the FRA refused this request and placed the paperback, too, on the list. It explained that the novel obviously seriously endangered youths within the meaning of the Act's Sections 6 (No. 2) and 3, because it, leaving aside all other human relations, focused in a coarse, importunate manner on the heroine's sexual exploits. It judged child prostitution and promiscuity positively, and even glorified them and made them seem harmless. The expert report of Professors M. and G. showed that the novel could not be viewed as an artwork. It was nothing more than a "collection of pornographic passages" and a "checklist" of the heroine's sexual activities. Problems of pornography and incest were not artistically treated, but were used only to heighten the work's allure.
b) The complaint filed against this decision was unsuccessful. The Administrative Court reasoned as follows: It was unobjectionable that the FRA, in order to clarify social-ethical terms that might have evolved, reopened proceedings and, sitting as the Panel of Twelve, again placed the novel on the list; to have given the decision to the chairperson alone would have been irrational after the refusal to remove the work from the list in accordance with the Act's §18a(1). On the merits, too, the decision was correct. Only utterances that carried weight in pluralistic society's spectrum of opinions could force concerns of youth protection to yield in accordance with the Act's §1(2) (No. 2).
The Land Supreme Administrative Court reasoned as follows: The Act's §1(2) (No. 2) could only repeat or extend, but not limit, the protection of art guaranteed by the Basic Law's Art. 5(3), first sentence. The work had to be viewed as an artwork. The concerns of youth protection, however, which in accordance with the Basic Law's Art. 6(2) and 1(1) likewise enjoyed constitutional status, formed a border to artistic freedom. These concerns were without doubt seriously infringed by the novel. The behaviors portrayed, namely children's sexual contacts with their siblings and parents, offended value standards still generally applicable today. Therefore, no justification via artistic freedom was possible.
The Federal Administrative Court reasoned in essence as follows: The regulation of the composition of the FRA's Panel of Twelve was not void due to indeterminacy. Even regarding provisions relevant to basic rights, the rule of law principle did not forbid either employing uncertain legal terms or granting to the Federal Minister a measure of discretion, to be exercised in accordance with his duty, concerning appointment of the Group Members. Therefore, the organizations concerned, and the number of members to be appointed from them, did not have to be more precisely determined by a legal provision since, inter alia, their profile and prestige could change.
Given the Land Supreme Administrative Court's unobjectionable findings, the FRA had been forced to conclude that the novel is one of those writings that seriously endangers youths within the meaning of the Act's §6. Moreover, quite apart from whether it represents an artwork, its placement on the list was in conformity with §1(2) (No. 2). This section had the same breadth as the Basic Law's Art. 5(3), first sentence. Artistic freedom, however, had to yield to the concerns of protecting youth from moral endangerment. Such protection was based on fundamental constitutional values, namely on the Basic Law's Art. 1(1) and 6(2). The constitution did not require the State to prevent every potential moral endangerment within the meaning of the Act's §1(1). But the situation was different with writings that fall under §6. Even if these were deemed art, the Basic Law's Art. 5(3), first sentence would not rule out application of the Act's Sections 3 through 5. Although these sections only restricted the artwork's operative area, and thereby left room for the interest of artistic communication, not applying them to writings that fell under §6 would completely abrogate youth protection in precisely the most serious cases. This would run counter to the Basic Law's value order to an even greater extent than would the restriction of artistic freedom associated with a listing. Moreover, accordingly, the Act's §6 was not - in contrast to its §1(1) - given a reservation for art (cf. for more precision NJW 1987, p.1435  with reference to p.1429 [1430 ff.]).
1. In its Constitutional Complaint, the Complainant argues as follows that the contested decisions violate the Basic Law's Art. 5(3), first sentence. The listed writing could not be denied this provision's protection because it portrayed the heroine's sexual experiences. Such portrayals also were the subject of works that belonged to the world's great literature. Art and pornography did not exclude each other. It was an unjust assumption that protection of art always must yield in the case of writings that obviously seriously endanger youths within the meaning of the Act's §6. The competing legal interest (protection of children and youths) lacked even the necessary constitutional status; such status could be derived neither from the Basic Law's Art. 1(1) in connection with Art. 2(1) nor from Art. 6(2), first sentence. But even if one judged this point differently, the appellate courts were not allowed to leave the issue of the work's artistic nature open, and in a given case they had to undertake a balancing of the conflicting concerns. The concerns of child and youth protection were not undoubtedly severely harmed by the novel. The belief that a certain text could specifically endanger youths was not scientifically tenable.
The legislature had regulated the FRA's composition, particularly the appointment of the "Group Members", in a constitutionally insufficient manner; therefore, the contested decisions infringed the Basic Law's Art. 2(1) in connection with Art. 20(2) and 20(3). The Act's §9(2) was too indeterminate, and therefore void. But it violated the rule of law above all because in it the legislature had not itself sufficiently regulated the issues that were essential to exercise of the basic right. Lacking were criteria that regulated the choice between several applicants and groups under consideration and that erected special demands, to be checked in a review procedure, regarding their expertise. In addition, the regulation concerning the communities based on religion and on world-view that were not under public law excluded certain organizations, thus violating the principle of neutrality. On the whole, the Act gave free rein to the executive branch in appointing the Group Members, thus violating the precept that essentials be regulated by statute, and thereby also opening the door to actual arbitrary appointment practices.
The Act further violated the citation precept (the Basic Law's Art. 19(1), second sentence) and the prohibition of censorship (Art. 5(1), third sentence).
The contested decisions infringed the Basic Law's Art. 2(1) in connection with Art. 20(3) (principle of the rule of law), Art. 103(1), and Art. 19(4), first sentence in that they granted the FRA a realm of evaluative discretion over which courts had only limited review, both regarding the issue of endangerment of youths and the categorization as art.
Finally, the FRA had violated the the rule-of-law principle and the Basic Law's Art. 103(1) by refusing to commision a youth-psychology report on the endangerment of youths, which had been alleged but not proven. The expert Prof. M. had had a predetermined opinion. His report, therefore, should not have used as a basis for the decision.
2. In his brief submitted on behalf of the Federal Government, he Federal Minister for Youth, Family, Women, and Health limits himself to the issue of the FRA's composition, arguing as follows. Its statutory regulation was not constitionally objectionable. The Act regulated all essential issues of composition while also taking account of the subject-matter's distinctive characteristics. Its §9(2) offered the possibility of appropriately reacting to changes in organizational structure within the various groups. Fixing by statute which institutions may participate would inevitably lead to unwanted vacancies, if these groups weren't willing to cooperate. The appointments made on the basis of statute could not be deemed arbitrary.
The FRA defends the Federal Administrative Court's judgment, arguing as follows. In that judgment the conflicting concerns were brought into concordance. The legislature's formative freedom allowed it to choose whether to determine the FRA's composition as it did or to specify it further. It was impossible to involve every imaginable organization; constitutionally one had to accept that the Federal Minister be granted certain dispositive possibilities.
The permissible Constitutional Complaint is well-founded. The decisions contested here violate the Basic Law's Art. 5(3), first sentence (I). The regulation of how the group members are determined is subject to sufficient misgivings (the Act's §9(2)). This is to be accepted for a transitional period (II). The additional objections are not well-founded (III).
a) The listed writing falls within the protective scope of the Basic Law's Art. 5(3), first sentence. It may be doubtful whether this is so solely because the work calls itself a novel and and represents the result of a recognized artistic activity - that of an author. But the work in fact shows the structural elements characteristic of art: it is the result of free, creative formation, in which the author's impressions, experiences, and fantasies are expressed in the literary form of the novel (cf. BVerfGE 30, 173 [188 ff.]; 67, 213 ). Elements of creative formation can be seen in the milieu-based portrayal and in the use of the Viennese vulgar speech as a stylistic device. The novel also permits a number of interpretations from which one can conclude that there is an artistic intent. It could perhaps be interpreted as a satire of the developmental novel ("Entwicklungsroman"). The heroine further could be understood as an embodiment of male sexual fantasies, which are viewed as a reaction to an education whose goal was the suppression of all things sexual. Elements of parody also are widely recognizable.
b) That the novel perhaps also must be seen as pornography does not rob of its artistic character. The doubts on this point expressed in E 30, 336  and in the FRA's contested decision (p.14 of the slip opinion) are not sufficient. As this Court correctly recognized in its decision concerning Henry Miller's Opus Postorum (BGH, NJW 1990, S. 3026 ), art and pornography do not exclude each other. Rather, artistic character is to be judged by the criteria set forth in BVerfGE 67, 312 [226 f.]. Neither a State review of style, quality level, and content, nor an evaluation of the artwork's effects may form the criterion upon which recognition of artistic character depends (cf. BVerfGE 75, 369 ; 81, 278 . Such aspects can at most play a role in the examination of whether artistic freedom must yield to competing constitutional interests.
2. The unconditional guarantee of artistic freedom does not generally rule out a listing based on protection of youths. It is true that artistic freedom is bound neither by the trio of limitations set forth in the Basic Law's Art. 2(1), first sentence's second half, nor by those in Art. 5(2). Limitations can be found, however, in the basic rights of others, as well as in other legal interests, to the extent that these likewise have constitutional status (E 30, 172 ; consistent holdings). The protection of children and youths from moral endangerment serves the safeguarding of constitutionally protected interests.
a) Already, in its previous decisions, this Court has assumed that the protection of youths, due to a value judgment made by the Basic Law itself, holds a significant status and is an important issue for the community (cf. BVerfGE 30, 336 [347, 348]; 77, 346 ).
The protection of youths, which the Basic Law's Art. 5(2) expressly mentions, enjoys constitutional status primarily on the basis of Art. 6(2), first sentence's parental right of education. This encompasses inter alia the authority to determine the children's reading material (BVerfGE 7, 320 [323 ff.]). The Complainant incorrectly construes the goal that the Act pursues in determining the consequences of a listing (Sections 3 through 5). It does not seek to narrow the parental right of education's scope through exercise of the state's supervisory authority. Rather, its goal is to prevent disruptions to that right, which is guaranteed by basic constitutional rights. Sections 3 through 5 are meant to ensure that only with their parents' consent can children and youths gain access to writings that can have damaging effects on their development. In the form given it by Art. 5 (No. 8) of the Fourth Act to Reform Criminal Law (4th StrRG) of 23 November 1973 (BGBl. I S. 1725), the Act's §21(4) guarantees that parents make this decision free of any threat of punishment, and can as a rule give to the charge even those writings that fall under the Act's §6 (cf. on this point the Recommended Decision and Report of the Committee for Youth, Family, and Health on the Bill, BTDrucks. 10/722, BTDrucks. 10/2546, p. 16).
In addition, protection of children and youths attains constitutional status from the Basic Law's Art. 1(1) in connection with Art. 2(1). Children and youths have a right to development of their personality under these basic right norms. They need protection and help in order to develop into persons responsible for themselves within the social community (cf. BVerfGE 79, 51 ). This applies also for safeguarding them from sexual dangers, and for making possible a sexual education that respects the right of personality (cf. BVerfGE 47, 46 [72 ff]). This aspect gives the State the right to keep away from children and youths influences that can have disadvantageous effects on personality development.
b) The legislature was allowed to assume, without violating the constitution, that writings (the Act's §1(1)) could have the effect of endangering youths. In contrast to the view advanced by the Complainant , the legislature need not make its measures dependent on scientific-empirical proof that literary works are even capable of exerting a damaging influence on children and youths. Rather, this assumption lies within the bounds of the prerogative of appraisal that has been assigned to the legislature. Cause for and scope of this prerogative depend on various factors. The decisive factors are in particular the uniqueness of the field in question, the possibility of obtaining a sufficiently secure, empirically supported judgment, and the significance of the affected legal interests.
The thorough scientific-empirical assessment made during preparation of the Fourth Act to Reform Criminal Law (4th StrRG) of 23 November 1973 (BGBl. I S. 1725) showed that the possibility that writings can endanger youths, although not yet firmly established, and despite a majority of stated opinions that point in the opposite direction, nonetheless cannot be excluded. The decisive preparatory work on the Act already had been done during the Sixth Legislative Period (cf. BTDrucks. 7/80, p.14). At that time, maintaining the Act's §6 as it then read was discussed essentially in the context of the redrafting of the Criminal Code's §184 (dissemination of pornography). Despite comprehensive hearings involving experts from the fields of sociology, sexology, psychiatry, psychology, pedagogy, forensic medicine, criminology, theology, philosophy, and law, as well as practitioners from the police, welfare and youth services, and education, the Special Committee for Criminal Law Reform could not fully clarify the question of endangerment of youth. Alongside all this disunity, unanimity prevailed in the belief that the absence of systematic investigations and long-term studies increased the difficulty of evaluating scientific opinions on the possible interrelated effects of reading material and psychic development (cf. on this point: Written Report of the Special Committee for Criminal Law Reform, BTDrucks. VI/3521, p. 1, 3, 58ff., 65f.; and on the further legislative proceedings see especially Report and Application of the Special Committee for Criminal Law Reform, BTDrucks. 7/154, pp.10 ff. and 12 ff.)
In such a scientifically unclarified situation, the legislature has authority to judge the extent of danger and risks and to decide whether it wants to take measures or not (cf. BVerfGE 49, 89 [131ff.]). Its decision gains additional justification from the fact that the legal interest competing with artistic freedom, though based mainly in the Basic Law's Art. 6(2), first sentence, also is anchored in Art. 2(1) in connection with Art. 1(1), and enjoys an accordingly high status. The legislature would have strayed beyond its proper scope of decision, therefore, only if current scientific knowledge could reasonably rule out an endangerment of youth. That cannot be so given the results of the deliberations on the criminal reform statute.
3. Constitutional requirements arise if the legislature decides to pit the concerns of child and youth protection against artistic freedom, which is guaranteed without reservation. Given a constitutionally conforming interpretation, the Act satisfies these requirements.
a) The principle of the rule of law and the precept of democracy place upon the legislature the duty of formulating essentially by itself those regulations that are decisive for realization of basic rights - and of not leaving this to activity and decisionmaking authority of the executive (cf. BVerfGE 33, 125 ; 34, 52 ; 34, 165 [192f.]; 45, 400 ; 47, 46 [78f.]; 49, 89 ). To what exent the legislature must by itself set the necessary guidelines depends, in a given area, predominantly on the basic right involved. It has a duty to so act when competing basic liberty rights clash, and their boundaries are flowing and hard to discern. Such is true above all when the constitution explicitly guarantees the basic rights affected without reservation, so that a law regulating this area necessarily must determine and specify the constitution's inherent limitations. Here, the legislature itself is obligated to determine the limits of the conflicting guarantees of liberty at least to the extent that such limits are essential for the exercise of these liberty rights (cf. also BVerfGE 6, 32 ; 20, 150 [157 ff.]; 80, 137 ).
b) Under these principles, the legislature itself was required to strike the balance between artistic freedom and youth protection in the realm of writings that endanger youth. It did so in the form of the Act's §1(2) (No. 2). Of course, one could conclude from this section's wording and systematic placement that the reservation for art applies only in the case of listings that are made on the basis of the Act's Sections 1(1) and 2, and does not comprise §6 cases, in which the consequences of Sections 3 through 5 are incurred without a listing. However, the Basic Law's Art. 5(3), first sentence mandates a constitutionally conforming interpretation such that the reservation for art also comprise §6 cases.
Of course, given the conflicting scientific opinions, the legislature may side with the view that, as a rule, the writings defined by the Act's §1(2) are capable of endangering children and youths. Taking account of artistic freedom, however, it may not order that youth protection always and without exception enjoy priority over a certain type of especially dangerous writings. Rather, when artistic freedom conflicts with another constitutional right, the two must be brought into an appropriate balance with the goal of optimization. The principle of proportionality has special significance in that process (E 30, 173 ). Further, one must bear in mind that, just as artistic freedom is influenced by the value conceptions of the Basic Law's Art. 1(1), it in turn helps mold the Basic Law's view of humanity. Therefore, one must bear in mind when producing the requisite concordance that artistic freedom itself places limits on the competing constitutional interest's exercise and scope of application (cf. BVerfGE 77, 240 ). All of this necessitates a balancing of the conflicting concerns and forbids granting to one of them a general priority, even regarding a certain type of wrtings.
c) This requirement is not satisfied merely because the Act's Sections 3 through 5 subject those artworks that must be regarded as seriously endangering youths only to advertising and dissemination restrictions, rather than completely preventing their dissemination. The relegation to the forms of commerce that thereafter remain available siginificantly restricts the writing's dissemination even to adults, and makes taking account of artistic freedom in the listing process anything but dispensable. Due to the constitution, especially Art. 5(3), first sentence's unconditional guarantee, the Act may not be construed to reserve the artistic privilege of §1(2) (No. 2) exclusively for listings made on the basis of §1(1). The Act also allows an interpretation that points in the other, constitutionally mandated direction. Its text and systematic form do not strain so unequivocally in the constitutionally unacceptable direction that this constitutionally conforming interpretation would effect the opposite of the legislature's will, thereby exceeding the boundaries of interpretation (cf. BVerfGE 2, 226 ; 8, 28 ; 8, 210 ).
The legislative materials (see especially the government's draft of the Act, BTDrucks. I/1101, p.11) indicate that, with the "art clause" (§1(1), first sentence, No. 2 RegE), the legislature wished to take account of the Basic Law's Art. 5(3), first sentence. One consequence of this wish is that the Act's §1(2) (No. 2) must also be applied to §6, if otherwise, §6 would conflict with the constitution. Applying the art clause to encompass §6 also can be squared with the art clause's text, which states that the limitations of Sections 3 through 5 apply to the writings listed in their Numbers 1 through 3 "without requiring any listing or notice". This squares with the the following meaning: Application of §6 requires that the writing could have been listed under §1(1), i.e. that §1(2) (No. 2) would not prevent this. Because this reference is inferrable, the art clause's systematic placement does not compel a result that differs from the interpretation of §6, in connection with §1(2) (No. 2), which the constitution requires. Under this interpretation, the statutory scheme must be so understood: The art reservation also applies to the writings named in §6. In these cases, however, it does not lead to a general primacy for art, but instead demands an ad hoc balancing.
d) Beyond this, §6, namely its No. 3, is not subject to any sufficient constitutional misgivings. In particular, no misgivings arise from the requirement of determinacy.
Statutory regulations must be drafted in such a way that affected persons can recognize both their subjection to the norm and the legal situation with enough specificity to be able to set their behavior accordingly (cf. BVerfGE 45, 400 ; 58, 257 ; 62, 169 ). As the intensity of potential infringements in areas protected by basic rights increases, the demands on determinacy also increase. This does not mean, however, that the norm may not raise any interpretation problems at all. Rather, the requirement of determinacy is satisfied when the problems can be dealt with using customary legal methods (cf. BVerfGE 17, 67 ).
The Act's §6 satisfies these requirements (cf. as early as BVerfGE 11, 234 ). Its factual elements, namely those set forth in its Number 3, can be specified by judicial interpretation - as the jurisprudence of the Federal Court of Justice shows (see especially 8, 80 [83 ff.]) - to such an extent that they themselves would satisfy the determinacy requirement of the Basic Law's Art. 103(2).
4. However, the FRA and the special courts applied §6 unconstitutionally.
a) The contested decisions are not to be reviewed only for whether they are based on an fundamentally incorrect view of the scope and significance of artistic freedom (cf. BVerfGE 18, 85 [92 ff.]). Rather, the task of constitutional review extends here into the details of the law's administrative and judicial application. The review's scope is determined in particular by the intensity with which the contested decisions impinge upon the affected basic right (cf. BVerfGE 42, 143 [147 ff.]; 66, 116 ). A lasting infringement, which leads to a more intensive review, is not found only in criminal punishment of behavior protected by the Basic Law's Art. 5(3), first sentence. Instead, it also can be found in other state organs' decisions, if these are capable of producing preventive effects beyond the case at hand, i.e. when they can reduce readiness to make use of the affected right in future cases (cf. inter alia BVerfGE 43, 130 [135 ff.]; 67, 213 [222 ff.]; 75, 369 ; 77, 240 [250 ff.]).
This is such a case. Because artworks by all means also can exhibit sexual references, the contested decisions are capable of reducing the readiness to express oneself artistically, or at least of noticeably narrowing the area of impact of artworks that nonetheless are produced. Thus the decisions have a substantial scope that reaches beyond the immediate case.
b) As explained above, artistic freedom, which is guaranteed without reservation, must in a specific case be brought into concordance with the concerns of child and youth protection, which conflict with the exercise of artistic freedom. Neither legal interest has, from the outset, primacy over the other. This also is true for writings encompassed by the Act's §6. They, too, may be placed on the list of writings that endanger youths, or subjected to the restrictions of Sections 3 through 5, only after a comprehensive balancing against the conflicting concerns of artistic freedom. In contrast to the view espoused by the Land Supreme Administrative Court, a different conclusion does not follow from the Federal Constitutional Court's "Anachronistic Parade" decision (E 67, 213 ). This Court wrote there that artistic freedom could not justify definite, determinable, serious infringements of the competing interest (in that case the right of personality). But that does not mean that the examination of whether such a serious infringement has occurred can be made in isolation, i.e. without taking into account the work's character (cf. on this point BVerfGE 75, 369 [378 ff.]). To the detriment of artistic freedom, the legal interests that are threatened, and whose right to assertion is affected, would not be optimized if the conflicting concern alone were viewed, leaving the conflict's solution to depend exclusively on the potential seriousness of the artwork's infringement of this concern.
When artistic freedom collides against the interests of child and youth protection, however, the concordance demanded by the constitution cannot be reached simply on the basis of prior interpretations that do justice to the work ("werkgerechter Interpretationen") (cf. BGH, NJW 1983, p.1194 ). Artworks can have effects not only on an aesthetic, but also on a real level. Children and youths in particular will often, if not routinely, be unable to judge an artwork's full meaning. This is true not only for unstable youths prone to such endangerment, but also for children and youths who, through disposition or education, are largely protected against damaging influences anyway. It is not a consequence of recognising this, however, that the concern of youth protection always be granted primacy. Rather, the requirement of balancing remains.
On the side of child and youth protection, the FRA and the special courts will have to find out what damaging effects the specific writing can have. This encompasses not just a consideration of to what extent acceptance of erotic portrayals has grown with the trend toward "generally expanding sexography" (as fittingly stated by the BGH, NJW 1990 , p.3026 ). It also may at times require an expert's investigation of these consequences. In performing this task, the FRA and the special courts must accept the legislative decision that under the Act's §1(1), writings can indeed be capable of harming children's and youths' moral and character development, i.e. growth in personality.
When weighing artistic freedom, it can be important to discern in what measure the endangering portrayals are bound into the artistic concept. Artistic freedom also comprises both the selection of a subject that endangers youth, especially one that deals with violence and sexuality, as well as that subject's treatment and handling in artist's own chosen manner. The more artistically formed and embedded in the artwork's entire concept the portrayal that endangers youths is, the better artistic freedom will be able to claim primacy (cf. BVerfGE 30, 173 ). The review of whether the work's passages that endanger youths are not, or are only loosely, bound up in an artistic concept requires an interpretation that does justice to the work.
Further, the respect that the work enjoys among the public also can have indicative significance for the determination of what weight to give artistic freedom when balancing it, in an individual case, against youth protection concerns. The echo and esteem it has found among critics and academics can provide clues for a judgment of whether artistic freedom should be granted priority.
These review requirements derived from the Basic Law's Art. 5(3), first sentence bind not only the FRA, but also the courts. An additional review of the decisive evaluations is possible and mandatory. The courts may not narrow the scope of their review of the listing's compatibility with artistic freedom by conceding to the FRA in this respect even a limited, reviewable evaluative discretion. This would not be compatible with the mandate, which flows directly from Art. 5(3), first sentence, to bring the conflicting constitutional interests into concordance.
This is not to say that the FRA can retain no evaluative discretion at all. This question, in contrast to the view urged by the Constitutional Complaint, is not up for decision here, since in the contested decisions neither the Federal Administrative Court nor the Land Supreme Administrative Court relied on any evaluative discretion regarding either the issue of youth endangerment or of whether the writing served art.
c) The contested decisions do not do justice to the constitution's demands. The Federal Administrative Court reviewed and found present the factual requirements of the Act's §6 without undertaking the comprehensive balancing mandated by the Basic Law's Art. 5(3), first sentence. It instead limited its review to a comparison of the consequences that listing or not listing under Sections 1(1) and 6 would have on the artwork or on protection of children and youths. The constitution, however, obliges a balancing that weighs the conflicting concerns in light of the aspects sketched out above - which the special courts must fill in and add to in their specifics - and that then answers the decisive question of whether the work must endure the limitations on its area of impact imposed by Sections 3 through 5.
The Land Supreme Administrative Court likewise reviewed the factual elements of the Act's §6 without properly taking account of the conflicting concerns of artistic freedom.
The decisions of the Administrative Court and the FRA infringe the Basic Law's Art. 5(3), first sentence already, without more, in that they made recognition of its protective scope depend on elements that have nothing to do with art.
5. Therefore, all the decisions are vacated. Which result a balancing under to the constitutional principles set forth here will have remains open and reserved to the FRA.
Also well-founded is the contention that the regulation regarding the FRA's composition does not satisfy the constitution's demands.
1. The FRA's composition, however, is not objectionable merely because "private" citizens participate in the decision.
a) The members from the areas named in the Act's §9(2) act not as private citizens, but as holders of the office given them upon their appointment by the Federal Minister. Appointment by the minister, who is a member of the government, which is responsible to the parliament, at the same time supplies democratic legitimation.
Nor is the democratic principle violated simply because, under the Act's §10, the members are not bound to follow instructions. The nature and scope of the tasks delegated to the FRA are not of such political magnitude that they give rise to misgivings under the rubric of an area reserved for governmental action ("ministerialfreier Raum") (cf. BVerfGE 9, 268 [281 ff.]).
b) Entrusting decisional competence to persons not encompassed within the public-law relationship of service and loyalty also does not violate the Basic Law's Art. 33(4). First, we are not faced with the permanent exercise of sovereign authority, but with the temporally limited fulfillment of a public task. Second, the participation here of representatives of societal groups is justified when one considers that decisions which affect artistic freedom and freedom of the press should, to the extent possible, be made at a certain distance from the State and on the basis of a pluralistic formation of opinion. This thought has been adequately provided for procedurally in the Act's §9(2).
The State administration thus does not claim for itself the right to set the value standards for the listing decision using its own, monocratically structured civil servant machinery. Rather, it makes available a forum in which the conflicting value conceptions are established and the decision regarding a specific work is made on the basis of a consultation. It is thus precisely in the interest of artistic freedom that the participation of the group representatives is meant to ensure that, for the listing decision, the crucial viewpoints are collected and the values supporting them are established and balanced against each other.
c) Nor do we harbor any misgivings regarding the choice of fields from which, under the Act's §9(2), the group representatives are called upon to cooperate in making the FRA's decisions.
In particular, it is unobjectionable that, in contrast to religious communities (§9(2) (No. 8)), groups defined by their world view ("Weltanschauung") are not taken into account. This does not violate the principle of equality. Admittedly, the churches' dedicate their work in caring for youths to their religious backgrounds. Churches are asked to participate in the FRA's work, however, primarily because they have for so long involved themselves especially deeply in child and youth counseling. When it comes to youth protection, this is not true to the same extent for communities defined by their world view.
Further, it is not objectionable that political parties and unions cannot supply Group Members. Unlike the broadcasting commissions, for example, the FRA deals not with supervision of the relevant societal forces, but with the participation of those circles that are especially qualified to evaluate the youth-endangering character or artistic meaning of writings.
The legislature also has not unconstitutionally ignored substantive fields from which viewpoints could be gleaned that one could expect to be essential for the decision. It enjoyed a measure of discretion in drafting §9(2). It also was allowed to consider that the panel's ability to perform would suffer from any increase in its size. We cannot see any indications that it exceeded this discretion and failed to take account of important groupings.
d) §9(2) also defines with sufficient determinacy the circles to be involved. As explained above (I.3.d), the requirement of determinacy is satisfied when interepretation problems can be overcome using customary legal methods. The enumeration in §9(2) guarantees that this is so. Of course it may be that certain areas of overlap exist between the realms of art and literature; but previous practice shows that the resulting problems of drawing boundaries between the two can be solved.
2. However, the parliament as legislature has not by itself regulated essential questions concerning the FRA's composition, not even through a delegation of regulatory power that satisfies the requirements of the Basic Law's Art. 80(1), second sentence.
a) The theory of essentialness (cf. supra I. 3. a) does not only answer the question of whether a particular subject must be statutorily regulated. It furthermore is decisive concerning precisely how far such regulations should go (cf. BVerfGE 34, 165 ; 49, 89 [127, 129]; 57, 295 ). This results from the obligation, when drawing boundaries between the competing liberty rights, to supply those who administer the Act with content that details to what degree they may restrict the Art. 5(3), first sentence scope of freedom which the decision regarding a listing affects (cf. also BVerfGE 6, 32 ; 20, 150 ; 80, 137 ). Among the subjects whose essential guidelines the legislature must regulate is the formation of the administrative procedure by which the competing liberty rights' boundaries are set. A procedure must be set up that is both oriented to this task and, at the same time, suited to effect that which the Basic Law's Art. 5(3), first sentence seeks to guarantee (cf. BVerfGE 53, 30 ; 65, 76 , each with further citations). The mandate to realize basic rights through appropriate procedural provisions is addressed first to the legislature (E 73, 280 ). If the administrative procedure directly affects positions that are protected by basic rights, then the procedural provisions must, in the interest of those positions, be set in legally binding terms. That has not sufficiently occurred here.
b) It is unobjectionable, however, that the legislature does not demand from the Group Members any qualifications test. The goal of their participation is to bring in views held in the knowledgeable circles. Thus there are no sufficient grounds for demanding from the Group Members proof of their qualifications above and beyond their group membership.
The Act ensures a compulsory exchange of the combating views, with the goal of producing the most comprehensive survey of all concerns. It does so in a manner that sufficiently preserves the Art. 5(3), first sentence claim to freedom enjoyed by the work threatened with a listing. The requirement of a qualified majority (the Act's §13) guarantees both that minority views cannot simply be outvoted and that a listing is possible only when a clear majority is convinced of its necessity.
This principle is effectively augmented by the quorum set by the Act's §9(3). It secures the protection of the minority and at the same time guarantees that none of the competing concerns will one-sidedly be ignored. If one wished - as the Complainant appears to have in mind - to place in question the FRA's activity simply because one or two Group Members consistently failed to appear, then this would place in the hands of a few Group Members power to prevent the constitutionally anchored protection of children and youths which the Act serves. On the other hand, in the interest of the threatened Art. 5(3), first sentence liberty right, the Act's §9(3), second sentence, in connection with §13, ensures that when the number of FRA members decreases the weight of the remaining votes decreases as well. If only nine members are present, seven rather than merely two-thirds must vote for a listing if it is to occur.
c) The procedure for choosing the Group Members, however, is insufficiently regulated.
The procedure to be set in legal norms must take account of the interest in obtaining the most comprehensive investigation of all the viewpoints that the FRA must consider when making its decision regarding a listing. Therefore, the legislature must more precisely specify which groups of persons and organizations out of those circles named in the Act's §9(2) are to be considered for supplying members. It further must regulate how individual members are to be chosen. In doing so, it must attempt to completely comprise, at least in their general tendencies, all the views represented in the participating circles.
The Act does not contain such regulation, not even in the form of a sufficiently determinate delegation of regulatory power. The powers delegated to the regulatory body do not concern the selection procedure. This also is particularly true for the Act's §23, which deals only with the FRA's procedure and contains no provisions for selection of members.
3. These shortcomings, however, must be endured until passage of a new regulation, or until the end of 1994 at the latest. It accords with this Court's jurisprudence that we not, through our decision, create a situation that is even less in line with the constitution than the present situation. This excludes any possibility of viewing the present regulation not merely as incompatible with the constitution, but also as void, since as a consequence the FRA could then no longer be active at all in protecting children and youths. Protection of children and youths from an endangerment of their personality development - a protection anchored in the constitution's basic rights - requires a temporary continuation of the present legal situation, despite its shortcomings. On the other hand, it would not be compatible with the other liberty rights affected by a listing, namely with the Basic Law's Art. 5(3), first sentence guarantee, to maintain this situation over an unforeseeable length of time.
Four years must be seen as an appropriate amount of time.
The other contentions are not well-founded.
1. The citation mandate (the Basic Law's Art. 19(1) second sentence) is not violated. It applies only to those basic rights that may be limited only on the basis of express legislative authorizations (cf. BVerfGE 21, 92 [93; 24, 367 [396 ff.]; 64, 72 [79 ff.]). These do not include the basic right contained in Art. 5(3) first sentence.
2. The contention that the FRA was granted evaluative discretion in violation of inter alia the Basic Law's Art. 2(1), in connection with Art. 20(3), 19(4) first sentence, and 103(1), falls short as well.
3. The listing of the paperback also does not violate Art. 5(1) third sentence's prohibition of censorship. The constitution prohibits only a prior censorship ("Vorzensur"), which means the prior preventive insertion of an administrative proceeding, before completion of which the work may not be published (cf. BVerfGE 33, 52 [71 ff.]). The Act does not provide for such a proceeding. It contains only the bases for authorization of repressive measures. In fact, the paperback was not listed until four years after its publication. Due to the Act's §18a, it already was clear upon publication of the novel in 1978 that these measures might be imposed. But this merely increased the foreseeability of the threat of repressive state action; it did not simultaneously give to such action preemptive preventive characteristics (cf. id., p.73).
Judges: Herzog, Henschel, Seidl, Grimm, Söllner, Dieterich, Kühling, Seibert.
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