الرئيسية The American Journal of Comparative Law Medienwirkung und Medienverantwortung (Media Impact and Media Responsibility)by W. Hoffman-Riehm;...
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Review Author(s): Edgar Bodenheimer Review by: Edgar Bodenheimer Source: The American Journal of Comparative Law, Vol. 24, No. 3 (Summer, 1976), pp. 546-552 Published by: American Society of Comparative Law Stable URL: http://www.jstor.org/stable/840081 Accessed: 01-01-2016 22:49 UTC Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at http://www.jstor.org/page/ info/about/policies/terms.jsp JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact email@example.com. American Society of Comparative Law is collaborating with JSTOR to digitize, preserve and extend access to The American Journal of Comparative Law. http://www.jstor.org This content downloaded from 188.8.131.52 on Fri, 01 Jan 2016 22:49:42 UTC All use subject to JSTOR Terms and Conditions 546 THE AMERICANJOURNAL OF COMPARATIVE LAW [Vol. 24 CONSTITUTIONAL LAW MEDIENWIRKUNGUND MEDIENVERANTWORTUNG (Media Impact and Media Responsibility). By W. Hoffman-Riehm, H. Kohl, F. Kiibler, K. Lischer. Materialien zur Interdisziplinaren Medienforschung, Vol. I. Baden-Baden: Nomos, 1975. 205 pp. Reviewed by Edgar Bodenheimer* On 5 June 1973, the West German Federal Constitutional Court rendered a decision in a case arising out of the Lebach murders, a crime which had been committed in 1969 under sensational circumstances and had made a deep impact upon German public opinion. The decision of the Constitutional Court was not concerned with the criminal aspects of the case, but with a project set up several years after the event by a German television network to offer the viewing public a "documentary play" (Dokumentarspiel) containing a reenactment of the crime, an analysis of its sociological background and psychological motivati; on, and a portrayal of its aftermath culminating in the detection and conviction of the offenders. One of the convicted offenders brought an action to enjoin the performance of the play on the ground that his constitutional rights would be infringed by its exhibition. He was unsuccessful in the trial and appellate courts but was granted the requested injunction by the Federal Constitutional Court. The elaborate opinion published by this Court raises intricate questions of constitutional interpretation, and the Court's responses to these questions far transcend the significance which they possess for the purely national aspects of West German law. The volume under review was published in recognition of the general importance of the decision, insofar as it deals with the responsibility of communications media in a society which cherishes individual privacy and human dignity, while seeking at the same time to safeguard the right to impart information to the public free from censorship. The publication contains the full text of the decision, comments on the opinion of the Court by three lawyers and one sociologist, and a number of public documents relating to the litigation.' The facts of the case are stated by the Court with the brevity and succinctness characteristic of German judicial opinions.2 Three * Member, Board of Editors. 1. Included in these documents are, among others, the judgment of the lower court, position papers by the Ministry of Justice and the German Press Association, and the testimony of a sociologist specialized in media problems. 2. Hardly any inkling of the facts is given until one reaches page 168 of the volume (the beginning of the Court's opinion). This oddity is an indication of the overaccentuation of abstract legal reasoning prevalent in German jurisprudence, as contrasted with specificity in the statement and analysis of the facts. This content downloaded from 184.108.40.206 on Fri, 01 Jan 2016 22:49:42 UTC All use subject to JSTOR Terms and Conditions 1976] BOOKREVIEWS 547 young men(whose names are withheld) formed a close relationship, in which homosexual inclinations played a certain role.3 They had hostile feelings towards their society and wished to establish a common life far away from its geographical situs, namely, somewhere in the South Pacific. Their immediate objective was to secure the possession of firearms which they intended to use in obtaining, through the commission of criminal acts, the financial means necessary to execute their plan. In pursuit of this objective, two members of the group attacked a munitions depot of the German Army; killed four sleeping soldiers attached to the guard post, and wounded a fifth one seriously. They then seized a number of guns and a quantity of munitions. The third member of the group (hereinafter called "the complainant") felt unable to join his comrades in the actual execution of the attack. He had, however, participated in the preparations and had instructed one of the two principal actors in the art of handling a gun. Subsequently, the three men attempt to extort money from a brokerage firm by writing a letter threatening violence. The complainant approved the text of the letter, although he had no share in writing or mailing it. In 1970, the three men were arrested, tried, and convicted. The The complainant was two principal actors received life sentences. and for in to six sentenced abetting the commisaiding years prison sion of the crime. He was eligible for parole in 1973 and expected to be released in July of that year. The documentary intended for display on German television was completed in 1972 and scheduled for performance some time during the first half of 1973. Pictures of the three offenders were to be shown at the beginning of the play. In the play itself, the three men were to be impersonated by actors, but their names were to be In March 1973, mentioned frequently throughout the performance. the German Constitutional Court issued a preliminary injunction against the showing of the play. The complainant rested his request for a permanent injunction, among other more technical grounds, on Art. 2 of the Bonn Constitution of 1949, which guarantees the right to the free development of one's personality. He stated that he intended to return to his home town after his release and look for work, and that his reintegration into the local community would be seriously jeopardized by a rehashed account of his dereliction. He also asserted that the projected documentary would defame and degrade him in the eyes of the public by prying into the intimate details of his life, especially by playing up the homosexual syndrome far beyond its role in the actual events, and would thus violate his dignity as a human being in contravention to 3. Although the issue of homosexuality was not without significance in the decision of the case, all the Court said about it in its statement of facts was that the relations of the men "had in part a homosexual component" This content downloaded from 220.127.116.11 on Fri, 01 Jan 2016 22:49:42 UTC All use subject to JSTOR Terms and Conditions 548 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 24 the Constitution.4 The television network, on the other hand, invoked Art. 5 of the Constitution, guaranteeing the freedom of the press and other media of communication. The decision of the intermediate appellate court, from which an appeal was taken to the Constitutional Court, held that the complainant's right to privacy, including his right not to have his picture published without his consent, was rendered inoperative by the fact that he had become a public figure due to the notoriety of his crime. Under these circumstances, the freedom of the communications media to broadcast information on matters of public interest was not subject to the restrictions which the laws protecting personal honor and reputation provide for individuals who cannot be classified as known figures of contemporary history. The Constitutional Court disagreed with this reasoning. It took as its starting point the position that the individual's right to be let alone stood, as a matter of general principle, on an equal plane with freedom of communication by the media of information. If a clash should occur between these two constitutional values, a careful judical weighing would have to take place in order to determine which of the two interests ought to yield to the other in the light of the particular circumstances of the case. A public reporting of a crime, accompanied by publication of the names and pictures of the offenders, was sure to produce an intrusion into their personality sphere because of the stigmatic consequences of such reporting. In spite of these adverse effects for the individual, the public interest in receiving factual information about the commission of serious crimes, including the identity of the criminals, should in the Court's opinion normally take precedence over the offender's desire for anonymity.5 The Court then went on to declare that the case at hand was not concerned with the problem of original crime reporting. It involved a reenactment and editorial analysis of the Lebach murders by means of a documentary play to be televised several years after the relevant events occurred, at a time not far removed from the complainant's release on parole. Thus there was an acute danger that the complainant's reintegration into society would be rendered more difficult or even thwarted by a publicity which would reinflame the antagonism of the public against the perpetrators of the crime. The Court deemed the impediment to complainant's rehabilitation to be heightened by the fact that the issue of homosexuality was played up prominently by the television show, despite the fact that the trial court, as far as the complainant was concerned, had ascribed a rather limited motivating role to it. All considered, the Court concluded that the performance of the play would infringe the complain4. Art. 1 of the Bonn Constitution provides that "the dignity of man shall be inviolable." 5. The Court wished to recognize certain exceptions to this principle, however, as for instance in the case of juvenile offenders. This content downloaded from 18.104.22.168 on Fri, 01 Jan 2016 22:49:42 UTC All use subject to JSTOR Terms and Conditions 1976] BOOKREVIEWS 549 ant's constitutional right to be let alone and should for this reason be prohibited. The constitutional provision protecting the "dignity of the human being" was cited as an additional ground for the injunction. The Court also justified its disposition of the case by reference to the significant stake which society as a whole has in the rehabilitation of convicted offenders as a guaranty against recidivism. It is of interest to the legal comparatist to speculate on how the highest court in the United States would have dealt with the problem of media control presented in the Lebach case. Inasmuch as the German Constitutional Court in that case issued an injunction against the performance of a play, it imposed a sanction which in American constitutional nomenclature would be labelled a "prior restraint" on freedom of communication. In its decision in New York Times Co. v. United States,6 in which the Court turned down a request by the U.S. Government for an injunction against publication of a classified Defense Department study on the Vietnam War, the brief per curiam opinion of the Court stated that "any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity."7 Although none of the individual opinions substantiating the reasons for the denial of the injunction was concurred in by more than two Justices, it may be gathered from a close analysis of the decision that six of the Justices were willing to uphold an injunction against publication of information whose disclosure would result in direct, immediate, and irreparable damage to the defense or security of the nation. This exception would be as inapplicable to the facts of the Lebach case as the narrowly-conceived exceptions in cases of obscene publications8 and incitements to the commission of violence.9 The Lebach case involves injury to reputation and privacy, and in this area the protection given to individuals by the U.S. Supreme Court against publication of matters of public interest has been severely restricted even in the absence of prior restraints. The Court has held that public officials and public figures may not recover damages for a defamatory falsehood relating to a matter of public interest unless the defamatory statement was made with knowledge of its falsity or with reckless disregard of the truth.10 The Court has also taken the position that truth is a constitutionally required defense, in actions based on defamation or privacy, when the subject of a newsworthy publication is a public official or public figure.1 In 6. 403 U.S. 713 (1971). 7. Id. at 714. 8. See Freedman v. Maryland, 380 U.S. 51 (1965); Kingsley Books Inc. v. Brown, 354 U.S. 436 (1957). 9. Near v. Minnesota, 283 U.S. 697, at 716 (1931). 10. New York Times v. Sullivan, 376 U.S. 254 (1964); Curtis Publishing Co. v. Butts, 288 U.S. 130 (1967). 11. Garrison v. Louisiana, 379 U.S. 64, at 72-73 (1964); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, at 490 (1975). The reportage in the television play was essentially truthful. There may have been a partial exaggeration This content downloaded from 22.214.171.124 on Fri, 01 Jan 2016 22:49:42 UTC All use subject to JSTOR Terms and Conditions 550 THE AMERICANJOURNAL OF COMPARATIVE LAW [Vol. 24 view of the notoriety of the Lebach events, the impact of these decisions upon an identical case transposed to an American scenario could be avoided only by a judicial determination that the plaintiff had ceased to be a public figure four years after the crime, or that the use of his name in the documentary play was no longer a matter of public interest.12 A case involving invasion of privacy rather than damage to reputation was Cox Broadcasting Corp. v. Cohn.13 The father of a deceased rape victim brought action against a broadcasting company to recover damages on the ground that the company, contrary to the terms of a Georgia statute, had identified his daughter by name during the television coverage of the trial of the rapist. The Court held that a state may not, consistent with the guarantee of freedom of communication, impose sanctions on the accurate publication of a rape victim's name obtained from the indictment of the alleged offenders. The chief reason given by the Court for this conclusion was that the interest in privacy ceases when the information conveyed to the public appears on a public record. It is not certain, however, that this holding would be extended to a situation in which the controlling factor is the right to resocialization of a released convict. The cautioning statement by Justice White that the decision should not be construed to guarantee media access to records such as juvenile-court transcriptsT4 would seem to suggest that the Court was not ready to lay down an all-embracive principle to the effect that any and all information contained in a public record was open to unlimited disclosure. The Lebach judgment offers food for thought not only to the constitutional lawyer concerned with the reconciliation of conflicting social values but also to the jurisprudential scholar interested in the analysis of judicial reasoning processes. The mode of argumentation used by the Court discloses an almost complete absence of deductive reasoning consisting in the application of a given major premise (embodied in a constitutional, statutory, or judicial norm) to the facts of the case. It evinces, instead, an endeavor on the part of the Court to find a normative basis for its decision by meshing together and synthesizing conflicting constitutional mandates deemed by the Court of the importance of homosexuality in the relations of the men, but this involved a possible misinterpretation of primary motivations rather than a falsification of facts. 12. In Briscoe v. Readers Digest, 4 Cal. 3d 529, 483 P.2d 34 (1971), the plaintiff complained that defendant had published an article describing the hijacking of a truck by plaintiff which had occurred eleven years before the disclosure; that plaintiff, after serving his term of punishment, had become a law-abiding citizen; and that the use of his name in the article was not 'newsworthy" under the circumstances. The California Supreme Court held that these allegations constituted a cause of action for invasion of privacy. The delinquency in this case had not, however, drawn the degree of public attention produced by the Lebach murders. 13. Supra n. 12. 14. Id. at 496. This content downloaded from 126.96.36.199 on Fri, 01 Jan 2016 22:49:42 UTC All use subject to JSTOR Terms and Conditions 1976] BOOKREVIEWS 551 to stand towards each other in a position of basic equality.15 As was pointed out earlier, conflicts between freedom of information and the right to privacy must be resolved, in the opinion of the Court, by a judicial determination of concretized priority depending on the specific constellation of facts in the case at bar. The Court intimated, however, that it was possible to develop some general yardsticks for dealing with the problem in typically recurring situations.16 Thus, the freedom of reporting crimes immediately after their detection should be wider, with respect to the disclosure of the offender's identity, than in cases of reenactments of the crime after the acute interest of the populace in the events had subsided. Even in cases of original crime reporting, the public interest in information should be held to increase or decrease in proportion to the greater or lesser severity of the offense.17 Thus, in cases of minor crimes, the freedom of reporting may under certain circumstances have to give way to the offender's concern for protection of his anonymity. The Court also suggested that the interest of a released or soonto-be-released convict in his reintegration into society should be accorded greater weight in assessing the scope of media freedom than less consequential-desire to avoid stigmatic exposure his-socially because of emotional sensitivity. Furthermore, the Court declared that a reporting of crimes by television, because of its particularly strong visual and auditory impact on the listener, should be considered a more far-reaching encroachment on personality rights than a newspaper account. Thus, the methodology followed by the Court was the use of persuasive reasoning, designed to appeal to the common-sense and feelings of justice of the professional and lay community, in laying down some rationales for harmonizing constitutional principles found to be "in a state of tension."'8 Only the very last step in the decisionmaking process was the syllogistic application of a rule of priority arrived at by the Court after an elaborate effort at justifying the rule in the light of the concrete facts of the case. This approach may come as a surprise to lawyers in common law countries, who often assume that the deductive method of judicial reasoning enjoys a monopoly in the civil law orbit. This is no longer true, however, in many civil law countries, and especially not in Germany. Furthermore, the derivation of a legal result from a more or less well-defined norm becomes impracticable when the constitution of a country contains a set of general postulates whose high level of abstraction (evidenced by phrases such as "free development of the personality" 15. This mode of reasoning is analyzed by Bodenheimer, Jurisprudence: The Philosophy and Method of the Law 392-397 (Rev. ed. 1974), where further references are found. 16. 35 Entscheidungen des Bundesverfassungsgerichts 202, at 221 and 225 (1973). 17. Id. at 232. 18. Id. at 219. This content downloaded from 188.8.131.52 on Fri, 01 Jan 2016 22:49:42 UTC All use subject to JSTOR Terms and Conditions 552 LAW THE AMERICANJOURNAL OF COMPARATIVE [Vol. 24 or "dignity of the individual") precludes the drawing of clear lines of demarcation from potentially conflicting constitutional precepts. The reception of the Lebach judgment in West Germany was overwhelmingly positive.19 In the United States, the reaction to the decision might be expected to be more mixed. It will be felt by some that the German Constitutional Court, by issuing a restraining order against the performance of a television play, was exercising a form of "censorship" over the communications media. It is worth noting that this argument was not even mentioned by the Court, even though Art. 5 of the Bonn Constitution expressly proscribes censorship of the written or spoken word. The Court's silence on this point finds its probable explanation in the conception of censorship prevailing in German constitutional literature. According to this view, censorship consists in the planful surveillance of intellectual activity for purposes of suppressing ideas or presentations deemed to be dangerous; it does not exist when constitutional protection is given to the reputation, honor, or privacy of an individual against a publication infringing these rights.20 Although restrictions on freedom of expression appear to be subject to a heavier presumption of invalidity in the United States than in West Germany, the scope of this freedom here is not unlimited.21 Privacy and the laws against libel set certain barriers to untrammelled speech and communication, but these barriers tend to disappear or at least falter when the right of the citizens to be informed about matters of public concern is involved. As was intimated earlier, a court in the United States might be willing to entertain a suit for damages in a situation similar to Lebach. It is, on the other hand, highly improbable that the United States Supreme Court, barring a fundamental change in its attitude towards prior restraints, would lend its approval to the type of remedy administered by the German Constitutional Court. The question might be raised, however, whether any relief short of an injunction could have effectively protected the future of an individual who had paid his debt for a crime and was anxious to restore his lacerated bonds with the society to which he belonged. 19. Medienwirkung und Medienverantwortung74 (1975). 20. Id. at 49. 21. Two recent decisions of the United States Supreme Court demonstrate that the severe limitations on the scope of protection accorded to public officials and public figures in defamation and privacy suits (see supra n. 10 and 11) are inapplicable to plaintiffs who are not public persons. Gertz v. Robert Welch, 418 U.S. 323 (1973); Time, Inc. v. Firestone, 96 S. Ct. 958 (1976). On the other hand, the same Court has decided that reputation is not a right entitled to federal protection under the due process clause, since it does not implicate any "liberty" or "property." Thus, the protection of reputation is entrusted entirely to the states of the Union. Paul v. Davis, 96 S. Ct. 1155 (1976). This content downloaded from 184.108.40.206 on Fri, 01 Jan 2016 22:49:42 UTC All use subject to JSTOR Terms and Conditions