HEADNOTE:

The reach of the guarantee of the freedom of art (art. 5(3), first sentence, GG) in the evaluation under criminal law of a political street theater.

Order of the First Panel of July 17, 1984 -- 1 BvR 816/82 --
in the proceedings on the constitutional complaint of L. . . . -- agent: Attorney Gabriele Heinecke, Kaiser-Wilhelm-Straße 53, Hamburg 36 against a) the order of the Bavarian State Supreme Court (Bayerisches Oberstes Landesgericht) of April 30, 1982 -- 5 St 91/82 --, b) the judgment of the Kempten (Allgäu) DistrictCourt (Amtsgericht) of October 30, 1981 -- Ls 20 Js 12 777/80 --.

DECISION:

The judgment of the Kempten (Allgäu) District Court of October 30, 1981 -- Ls 20 Js 12 777/80 -- and the order of the Bavarian State Supreme Court of April 30, 1982 -- 5 St 91/82 -- violated the Complainant's basic rights unter art. 5(3), first sentence, of the Basic Law and are hereby quashed. The proceedings are referredback to the Kempten District Court for a new trial and decision.

The Free State of Bavaria is to reimburse the Complainant the necessary expenses.

EXTRACT FROM GROUNDS:

A.

Subject of the constitutional complaint is the question of whether a conviction for defamation in connection with a political street theater is to be upheld in light of the guarantee of freedom of art under art. 5(3), first sentence, GG.

I.

1. In 1947 the poet Berthold Brecht wrote the poem "The Anachronistic Procession, or Freedom and Democracy" (Der Anachronistische Zug oder Freiheit und Democracy), which drew upon a poem written in 1819/20 by Percy Baysshe Shelley; entitled "The Masque of Anarchy. Written on the Occasion of the Massacre in Manchester", this was Shelley's response to the bloody quelling of an uprising by workers in Peterloo. Brecht describes in his poem a procession through the ruins of postwar Germany, at the head of which are two placards, one bearing the word "freedom" and the other, "democracy". Members of the procession include: a priest carrying a cross made of a swastika with taped-over arms; men from the armaments industry; teachers demonstrating for the right to educate the German youth in the glories of massacre; physicians demanding communists for their experiments; planners of the gas chambers; "de-Nazified" Nazis sitting in high offices; "stormtrooper" editors calling for freedom of the press; a judge pronouncing all to be free of "Hitlerism"; . . .

In the "Capital of the Movement", six "party comrades" join the procession: oppression, leprosy, deception, stupidity, murder and robbery, which likewise demand freedom and democracy and which Brecht characterizedwith the following verses: . . .

2. During the elections to the Bundestag in 1980, political opponents of the CDU/CSU chancellor candidate, Bavaria's Minister-President Franz Josef Strauß, used Brecht's poem as the launching pad for a political street theater. According to the underlying script entitled "A Procession to Save the Fatherland, or Freedom and Democracy," Brecht's poem was to serve as the model for a procession composed of vehicles and pedestrians, whereby even without the poem, the procession was to be a "description of current reality." During the travels through the Federal Republic between September 15 and October 4, 1980, the procession was to -- and in fact did -- play scenes in communities and cities, and thepoem was also to be read.

The procession was to be led by a vehicle carrying a large bell enscribed with the words "Freedom and Democracy." This was to be followed by, among others, a jeep with a "general", a military transport with a missile and a military orchestra, three black limousines (with license plates SIE-MENS, FLI-CK, THYS-SEN, i.e., large industrial concerns), a wagon with "members of the People's Court" and a wagon with blackuniformed members of a privatesecurity force.

Picking up on the CDU/CSU's campaign slogan "Freedom, Not Socialism", the procession was to carry such banners as "Freedom, Not Butter", "For Victory in the Third World War", "Freedom, Not Communism", "For Germany in the Borders from 1937", "Freedom, Not Politics", "For the Right to a BILD Newspaper" (i.e., a conservative tabloid), "Freedom, Not Expropriation", "Freedom for Us", "Freisler, Not Spandau", etc. The procession was to end with the so-called "wagon of strife",for which was provided in the script:

"After the procession has made such a great effort to bang the campaign drum for him, it is now time for Franz Josef Strauß to make a personal appearance: alongside the chauffeur in a large, open sedan, somenone wearing his mask is either to be sitting or else standing with one hand on the windshield and waving with the other or swinging a sign with the words "Freedom and Democracy" (he must have the sign by him at all times). In short, Strauß plays the part of the champion he wishes to be, the very best that one can imagine, etc. However, as required by the poem, he must be sitting, initially hardly noticeable; also in the vehicle are the six figures of strife in the form of the "six party comrades" from the "brown house": oppression, wearing the mask of Heydrich; leprosy, as Hitler; deception, as Goebbels; stupidity, of course as Ley; murder, as Himmler; and robbery, as Göring. This ensemble in the vehicle does not, however, paint a harmonious picture. On the contrary: accompanying the following verses from Brecht is a depiction of the heated battle waged incessantly by Strauß. (For instance, in the television "dispute" with Golo Mann about Hitler: "You consider him to be more intelligent than I have", and "You little Philistine . . . narrow-minded nationalist . . . driven between insanity and crime".)."

When the catch phrases are recited (oppression, deception, etc.), the relevant puppets (strife figures) were to stand and then be pushed back -- at first, successfully -- to their places by the person representing the Bavarian Minister-President; shortly before the end of the poem, all six figures were to rise and block the view of Strauß, leaving only visible the sign "Freedom and Democracy" heldby him. For this scene, the script provided:

"The character of the battle, as well as the way it is likely to end (politics seeking the "advantages" of Hitler fascism without revealing its detriments is impossible and would only lead to an even greater catastrophe), must be made clear. This is to be accomplished by having the battle take place between a person wearing the Strauß mask and figures that move about in a mechanical, machine-like fashion, i.e., by figures that can be expected to continue to arise even when Strauß makes every effort to prove that he is "better" than they are."

3. The Complainant was assigned the role in this "Anachronistic Procession" of depicting Strauß in the last vehicle, and to this end, he wore a white mask with the latter's facial features. On the morning of September 15, 1980, the procession advanced to the location in Sonthofen assigned to it by the County Office, where it then took up position according to the script and was inspected for whether the conditions imposed upon it by the administrative authorities were being observed. The top of the last vehicle was removed, such that the six puppets became visible. The Complainant sat or stood on the passenger seat and was wearing the mask. Following requests from journalists and police officers, he repeatedly turned to face the puppets, holding up a sign bearing the words "Hitler has to die once and for all". A hydraulic lift was also activated in the vehicle, which caused the puppets to rise and then return to their places. Brecht'spoem was, however, not recited.

On September 25, 1980, the procession reached Kassel. As it began to take up position prior to the reading of the poem, the top of the last vehicle was once again removed, such that the puppets became visible for the surrounding crowd. The Complainant stood in the vehicle next to the driver and again was wearing the white mask.

II.

The District Court deemed these facts to represent a defamation of the Bavarian Minister-President -- who had filed a criminal complaint and joined the criminal proceedings introduced against the Complainant as private prosecutor (Nebenkläger) -- in two concurring cases and sentenced the Complainant, as well as the organizerof the procession, to fines.

The conviction was based on the following considerations:

The Complainant declared that he had no personal interest in the private prosecutor, in contrast to his political feelings with regard to the latter. He stated that he had done his best to follow the directions in the script, and although he had fought with the puppets during the play, he had not at any time given the impressionthat he (i.e., Strauß) was close friends with them.

This pleading did not, however, exonerate the Complainant. The Court stated that it first put itself in the position of an impartial, sensible passerby, who, prior to the start of the actual reading of the poem, sees the vehicle with the puppets and the Complainant wearing the white mask. The fact that such an observer sees the figures all sitting together "in one boat" would, said the Court, give the impression that the private prosecutor is intimately associated with the leaders of the Third Reich. For the Court, the further connection to be drawn -- namely, that on the basis of this harmonious grouping, the private prosecutor is to be equated with leading Nazis and that he has made their political aims his own -- was also not broken by the fact that the Complainant held a sigen bearing the words "Hitler has to die once and for all" or that he stood on the passenger seat over and above the puppets. The Court felt that this could also be taken to mean that an end has to be put to the discussion over Hitler and the Third Reich, or that the private prosecutor, while holding himself to be superior to the proponents of the Third Reich, has not clearly distanced himself from them but rather today represents the figurehead for their ideas. The fact that the private prosecutor fought with the puppets during the recitation of the last verse of the poem and repeatedly pushed them back into their seats was held by the Court to be irrelevant for a non-identification of the private prosecutor with leading Nazis: in both cases, the poem was not read. The Court also stated that the Complainant was not able to rely on the circumstance that as a theatrical renditionof Brecht's poem, the entire "Anachronistic Procession" represented a form of art falling within the purview of art. 5(3) GG. Although this could at best apply to the performance itself, perhaps also to the procession's journey through the countryside, it in no event pertained to the preparations necessary for this, such as the arrangement of the procession. The vehicle with the Complainant was found by the Court to lack any direct relation to the performance itself; it did not take part in the action and also was not directly attached to it. The poem was not recited, and the actions and gestures symbolizing it were not performed. For this reason, the Court found it unnecessary to comment on the issue ofprotection for art, particularly since art. 5(3) GG does not shield defamation.

The appeal by the Complainant and the organizer of the procession, which in particular asserted a violation of art. 5(3), first sentence, GG, was dismissed by the Bavarian State Supreme Court as clearly unjustified.

III.

1. By way of his constitutional complaint, the Complainant asserts a violation of his basic rights under art. 5(3), first sentence, art. 5(1), art. 3(1), art. 3(3), art. 2(1) and art. 1 GG. . . . (reasoning by the Complainant)

2. The Bavarian State Minister of Justice, who in addition to the private prosecutor was given opportunity to comment in the proceedings below, considers the constitutional complaint to be inadmissible, since the justification for it was not timely substantiated. . . .

He further stated that in any case, the constitutional complaint was unjustified. . . .

B.

The constitutional complaint is admissible. . . .

(elaboration by the Court)C.

The constitutional complaint is justified. The attacked decisions violated the Complainant's basic rights under art. 5(3), first sentence, GG.

I.

The constitutional complaint is directed against decisions in criminal prosecutions, which in principle are not to be reviewed by the Federal Constitutional Court with regard to the determination of facts or the interpretation and application of criminal law. At the same time, however, the Court must ensure that the ordinary courts observe the norms and standards of basic rights. In so doing, the limits on its possibilities for intervention turn particularly on the intensity of the asserted impairment to basic rights: the threshold of a violation of objective constitutional law, which the Federal Constitutional Court is required to correct, is reached when the decision of criminal courts evidences errors in the determination of facts or in interpretation that result from a fundamentally incorrect appraisal of the significance of a basic right -- in particular, with regard to the extent of its protective scope -- and whose substantive importance is also of some weight for the case at issue (cf. BVerfGE 66, 116 [131] -- Springer/Wallraff --; in the context of the guarantee of freedom of art, cf. also BVerfGE 30, 173 [188, 196 f.]). Furthermore, the more severely a conviction in result affects the basic-rights sphere of the person convicted, the stricter the requirements to be placed on the reasoning behind this interference and the more extensive the Federal Constitutional Court's review possibilities (cf. BVerfGE 42, 143 [148 f.] -- DGB --).

In and of itself, a criminal conviction as a sanction for criminal wrongdoing is of greater intensity than a civil-law conviction requiring forbearance, revocation or compensation (BVerfGE 43, 130 [136] -- Political Handbill --). In criminally sanctioning an action that may be covered by the guarantee of freedom of art, there is the added danger that the negative effects for the exercise of this freedom, which is unconditionally guaranteed due to its special significance, could resonate beyond the case at issue. When faced with such cases, review by the Federal Constitutional Court cannot be limited to the question of whether the attacked decisions are based on a fundamentally incorrect appraisal of the significance of art. 5(3), first sentence, GG, in particular, on the extent of its protective scope. Isolated interpretational errors are just as unable to be left out of consideration (cf. BVerfGE 42, 163 [169]; BVerfGE 43, 130 [136 f.]; BVerfGE 54, 129 [136]; BVerfGE 66, 116 [131]).

II.

The performance of the "Anachronistic Procession" falls within the protective scope of the basic right of freedom of art (art. 5(3), first sentence, GG), and the attacked decisions are to be measured against this to the extent describedabove.

1. In accordance with its wording and sense, this protected freedom is principally comprised of an objective basic-rights norm regulating the relationship of the arts to the State. At the same time, this provision guarantees to everyone active in this area an individual right of freedom. It pertains equally to the area of artistic creation and to the area of rendition and propagation of a work of art providing the public with access to it (BVerfGE 30, 173 [188 f.]). This guarantee was adopted in the Basic Law as a response to the suffering experienced by artists during the period of National Socialist rule. This fact is also of importance for the interpretation of art. 5(3), first sentence, GG: the guarantee of freedom of art may be limited neither by restrictive value judgments as to the term "art" nor by broad interpretation of or analogy to the limitation clauses of other constitutionalprovisions (BVerfGE 30, 173 [191]).

2. The field of "art" is to be determined by the inherent structural qualities stemming from the very essence of art. However, the resulting reach of the Constitution's guarantee of freedom of art and what this means in detail cannot be defined by a term equally valid for all forms in which artistic activityis expressed and for all types of art (cf. BVerfGE 30, 173 [188 f.]).

a) Previous attempts by art theory (including reflections by practicing artists on their work) have failed to come up with a workable definition of the subject matter "art". As a result, it is not possible to resort to an established term of "art" from the extra-legal sphere. The fact that there is no consensus whatsoever in art theory as to objective standards also has to do with a special feature of artistic life: the express aim of the "avantgarde" is to expand the borders of art. This goal, as well as a widespread mistrust on the part of artists and art theoreticians against rigid forms and strict conventions, are inherent features of the field of art deserving of respect, which indicatesthat a broad definition of art may lead to appropriate solutions.

b) Even though it is impossible to define art in general, this does not dispense with the constitutional duty to protect the freedom of art, i.e., to decide in applying the law in a given case whether the conditions of art. 5(3), first sentence, are fulfilled.

Literature and case law may very well have developed formulae and delineation criteria for the practical application of laws that use the term "art" as a statutory element. But these are, however, not enough for the interpretation of the constitutional guarantee, since the interpretation of statutes is guidedby the various purposes they pursue.

Farther-reaching attempts to come up with a constitutional definition of the term have, as far as can be seen, only dealt with partial aspects; they can only claim to be valid for individual sectors of artistic activity (from the extensive literature, cf., e.g., Roperz, Die Freiheit der Kunst nach dem Grundgesetz, dissertation Heidelberg 1963; Erbel, Inhalt und Auswirkungen der verfassungsrechtlichen Kunstfreiheitsgarantie, 1966; Knies, Schranken der Kunstfreiheit als verfassungsrechtliches Problem, 1967; von Noorden, Die Freiheit der Kunst nach dem Grundgesetz [art. 5 Abs. 3 Satz 1 GG] und die Strafbarkeit der Verbreitung unzüchtiger Darstellungen [§ 184 Abs. 1 Nr. 1 StGB], dissertation Cologne 1969; Müller, Freiheit der Kunst als Problem der Grundrechtsdogmatik, 1969; Vogt, Die Freiheit der Kunst im Verfassungsrecht der Bundesrepublik Deutschland und der Schweiz, dissertation Zurich 1975; each with numerous references). At the same time, however, these efforts all evidence viewpoints that in their entirety make it possible to reach a decision whether the fact pattern in a given case falls within the protective scope of art.5(3), first sentence, GG.

3. a) The Federal Constitutional Court has stressed that essential for artistic activity is "free creative composition in which the artist's impressions and experiences are given direct conception through the medium of a certain language of forms." Accordingly, all artistic activity is an intertwinement of intentional and unintentional processes, which cannot be rationally unravelled. Intuition, phantasy and artistic sense all work together in artistic creativity; the latter is not a message but rather an expression, i.e., the most direct expression of the artist's individual personality (BVerfGE 30, 173 [189]). Similar efforts in the literature to describe this in substantive, value-oriented terms likewise emphasize the qualities of creativity, the expression of personal experiences, the rendering of form, as well as communicative depiction of sense impressions (cf. Scholz, in Maunz/Dürig/Herzog/Scholz, GG, art. 5 Abs. 3, Rdnr. 24, 29; Scheuner, Die Bundesrepublik als Kulturstaat, in Bitburger Gespräche, Jahrbuch 1977-1978, p. 113 [126]; Württenberger, Vom strafrechtlichen Kunstbegriff, in Festschrift für Eduard Dreher, 1977, p. 79 [89]; Geiger, Zur Diskussion über die Freiheit der Kunst, in Festschrift für Gerhard Leibholz, 1966,p. 187 [191]).

Viewed in this light, the "Anachronistic Procession" satisfies the above-described requirements. Creative elements are to be found not merely in Brecht's poem but also in the manner in which it is performed. The poem and its rendition may be viewed as having been given sufficient "form". Historical experiences of a general and personal nature are to be expressed -- tailored to meet the currentpolitical situation -- and given direct conception.

b) If the essence of a work of art is considered to be that from a formal, typological perspective, the requirements of a certain type of work are fulfilled -- i.e., if one takes as a basis a formal definition of art relating only to the activities and results of, e.g., painting, sculpture or poetry (cf. Müller, supra, especially pp. 41 f.; Knies, supra, p. 219) -- then the "Anachronistic Procession" also cannot be denied the quality of an art work. The poem underlying its performance is just as much a classical form of artistic expression as the rendition of it in theatrical form, which was played out by actors (with masks and props) according to specific stage directions. This result is unchanged by the fact that a special form of "street theater" was performed; permanent stages do not takeprecedence to travelling theaters, a theatrical form with a long tradition.

c) Another characteristic feature of artistic expression is that it can be interpreted in any number of ways. As a result, it is possible to draw from the performance a variety of meanings, such that it provides a practically inexhaustible, multilevel source of information (cf. von Noorden, supra, pp. 82 ff.). The "Anachronistic Procession" displays this feature. Particularly the above-described special form of street theater gives rise to a distancing from the audience; the spectator is aware that he is witnessing a "play". By bringing it up to date and making references to contemporary persons and events, the poem is most certainly given a specific path from among the many interpretations to which it is subject; its statement, however, continues to remain open to a variety of meanings, particularly since this statement is not directly but, on the contrary, indirectly composed of diverse elements (for instance, placards, puppets, costumed persons, groupsof persons, etc.).

d) Thus, the performance of the "Anachronistic Procession" falls within the protective scope of art. 5(3), first sentence, GG. This result is not changed by the organizers' principal, undisputed political intentions. The fact that an artist deals with current events does not permit binding rules and value judgments to be placed on artistic activity; the area of "art as commitment" isnot excepted from the guarantee of freedom (BVerfGE 30, 173 [190 f.]).

III.

1. The autonomy of art, and the fact that it is subject to its own laws, are unconditionally guaranteed by art. 5(3), first sentence, GG; the barriers found in art. 2(1) GG or those under art. 5(2) GG are neither directly nor by analogy applicable (BVerfGE 30, 173 [191 f.]). On the other hand, freedom of art encounters limits directly in other provisions of the Constitution that likewise protect a fundamental right in the Basic Law's constitutional order. This particularly applies to the right of personality protected by art. 2(1) in conjunction with art. 1(1) GG. However, freedom of art for its part places limits on the right of personality. In determining this in a given case, an impairment to the right of personality -- here, in the form of defamation -- is not sufficiently established in court proceedings when freedom of art is not taken into consideration: it needs to be clarified whether this impairment is so severe that freedom of art must give way; an insignificant impairment or the mere possibility of a severe impairment is not sufficient here in view of the high standing of freedom of art. But if a severe impairment to the right of personality can clearly be established, then it may not be justified by freedom of art.

2. The District Court failed to recognize the constitutional requirements resulting from this:

a) Artistic expression is subject to, and in need of, interpretation; an indispensable element of this interpretation is the view of the work in its entirety. It is thus improper to separate isolated parts of a work of art from their overall context and then to investigate whether they represent a criminal offense. It is thus constitutionally objectionable for the District Court to base ist ruling on the finding that the incriminating events took place outside of the actual performance, thereby drawing the conclusion that art. 5(3), first sentence, GG was not applicable. In so doing, it overlooked the purely practical necessity of having to make preparations openly (arrangement of the procession) or undertake regroupings (i.e., in Kassel). It must also be taken into consideration here that in modern theater, visible preparations may very well be a part of the overall artistic concept.

The symbolic depiction by puppets and placards may also have a declaratory function outside of the performance. But the organizers sought to avoid precisely this by covering up the procession in its cross-country journeys. This appraisal is not changed by the fact that the procession was not able to begin promptly with the performance in Sonthofen. Neither the Complainant nor the organizers were responsible for this; rather, it was attributable to administrative requirements. Moreover, they are not to be burdened with the taking of pictures by the police to "secure evidence". Photographs by journalists fall within thearea of publicity, comparable to rehearsal photos common at permanent theaters.

Similarly, it is -- as is made clear by the foregoing -- constitutionally improper that a determination of defamation was made only on the basis of the "wagon of strife" and not, as required by art. 5(3), first sentence, GG, on aconsideration of the procession in its entirety.

b) Furthermore, the District Court failed to recognize that an overall view thus required would have revealed a variety of interpretations.

It is unnecessary to reach a definitive ruling here as to which standard is to be applied when artistic statements are demmed to be criminal offenses, particularly since it is hardly possible to do so in general or for all art forms. A person completely inexperienced with artistic embodiments is certainly unable to set standards, particularly as regards the understanding of art; on the other hand, it is also not correct to refer to a person with comprehensive education in the arts, at least not in those cases -- such as here -- where the expression is directed on the open street to a randomly composed audience. It is sufficient here to ask how a passerby who was willing to view the entire procession and the performanceof the poemmight comprehend the depiction of the "wagon of strife".

Under these circumstances as well, it is very well possible that a viewer could take this to mean that the private prosecutor is sitting with leading Nazis in the same vehicle, that he is to be equated with them and that he is pursuing their political goals. But special consideration of the contents of the poem could just as well give the impression that a battle is to be staged against these leading Nazis -- however, one that is as hypocritical and mendacious as the distancing from the Nazi past depicted in Brecht's poem.

Still another observer could come to the conclusion that the private prosecutor is battling -- though without success -- manifestations of National Socialism. A viewer who were to place the script's intentions at the front of his considerations would view such a battle similarly; however, he would also be aware that the private prosecutor, depicted as an influential, law-abiding politician, is urgently in need of such a delineation and that the old Nazi ideas could once again prevail.

In any event, in selecting from among these interpretational possibilities suggested by its description of the facts (other possibilities in no way appear to be ruled out), the District Court erred in opting, with the aid of the figure of the "sensible passerby", only for the criminally relevant one by resorting merely to a random, naive viewer who ignored the "battle" with the puppets. Thisalso represents a violation of art. 5(3), first sentence, GG.

3. The attacked decisions are based on these errors. It cannot be ruled out that if they had observed the described constitutional requirements, the Courts would have decided otherwise. The decisions are therefore quashed; the matter is hereby referred back to the District Court. In the new trial and decision, the Court is to observe the above-described principles on the relationship between freedom of art and the general right of personality.

Judges: Dr. Herzog, Dr. Hesse, Dr. Katzenstein, Niemeyer, Dr. Heußner, Dr. Niedermaier, Dr. Henschel.

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