The Opining State
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State and opinion? From a traditional German liberal point of view, the state does not opine. The state investigates, decides, regulates, taxes, and polices, but it does not opine. Opinion belongs to society, not to the state, and the “Element der Stellungnahme, des Dafürhaltens, des Meinens im Rahmen einer geistigen Auseinandersetzung” which, according to the established case law of the Federal Constitutional Court, characterises expressions of opinion, has no place in the mouth of the state. The state is the addressee of freedom of opinion, not its holder. It has to protect and respect and nurture it, not consume it. It has to provide procedures and institutions that keep the intellectual dispute among the free and equal diverse possible and open. Not to close it by throwing itself into the fray.
Seen in this light, the popular initiative that is currently collecting signatures in Hamburg against “gender language in administration and education” might be tempted to consider itself a wonderfully liberal cause: The state should stay out of it! It should not spoil the “naturally grown standard language” with its silly gender asterisks! It should not impose the “private language” of a “minority in the language community” on the “majority”! Administrative authorities, schools, universities and state-controlled companies, thus the goal of the initiative, should be obliged to “use the generally understandable standard language in accordance with the rules of the ‘Council for German Orthography’ in internal and external communication”.
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I have already discussed recently, with respect to the corresponding process in Thuringia, why this sort of thing leads straight to authoritarian populism. State and society cannot be separated as neatly as some good liberal souls would like. The state that stays out of it takes a stand also. What is supposedly neutral and naturally grown is almost never neutral and naturally grown, but the product of social power relations which it reproduces and is supposed to reproduce. There is always a more or less formalised “Council for German Orthography” somewhere, whose decrees are supposed to appear as neutral and naturally grown and be recognised as such by the staying-out-of-it state.
This week, one of the most bitter intellectual disputes among the free and equal diverse in contemporary Germany has reached, if not its conclusion, then at least another climax, namely the one about the scandal-ridden art show documenta 15 and how to deal with the blatant anti-Semitism that was on display there. The city of Kassel and the state of Hesse, as shareholders of documenta gGmbH, had appointed a “committee for the scientific monitoring” of the exhibition consisting of academics from various disciplines and entrusted it with the task of analysing the “works criticised as anti-Semitic … and formulating consequences of the incidents for the organisation of documenta” (p. 12). This they did and presented their final report.
The legal issues are discussed in section 6, and one may assume that this part was written largely by Christoph Möllers, the Humboldt law professor well known to most VB readers, I suppose, who also wrote a legal opinion for the Federal Minister of Culture, Claudia Roth. Möllers reconstructs who is entitled or obliged to do what to whom within the documenta constellation as follows: the artists and curators, unless their work amounts to libel or incitement to hatred, are protected from state interference in their artistic decisions by the freedom of art under Article 5 III of the German Basic Law, and this protection also extends to any interpretation of their work as specifically anti-Semitic as long as more benign interpretations offer themselves, too. On the other hand, however, the state has a constitutional duty not to advocate and disseminate and promote discriminatory anti-Semitic positions on its part. This inescapably results in a situation of collision: documenta gGmbH and its shareholders and management must do something if the artistic direction is exhibiting discriminatory art, and if necessary also enter into conflict with the artists and curators. They must not remain passive and hide behind artistic freedom, because they do not enjoy this fundamental right themselves – they are part of the state. On the other hand, they must not simply walk over the artists’ and curators’ artistic freedom and decide themselves what remains visible. Collision means conflict and must be sorted out. They have to seek dialogue, and the holders of artistic freedom, for their part, have the responsibility, assumed through the exercise of their fundamental rights, to accept this offer instead of immediately crying “censorship”. If all this is to no avail, the management can and, if necessary, must publicly distance itself from the exhibits and, if necessary, provide for contextualisation itself.
Two things seem strange to me about the argumentation. Firstly, Möllers bases the documenta management’s obligation not only on the constitutional ban on discrimination, but also on the “political decision of the current federal government as well as its predecessors in favour of a special relationship with the state of Israel out of historical responsibility”. This, according to the report, is “not authoritarian Staatsraison“, but the “result of a democratically legitimised decision, which must at least be considered as an orientation for other state decisions.” I don’t get it. How is the democratic legitimacy of a political decision a justification for restricting fundamental rights? What is that supposed to mean? What the majority decides is democratically legitimate as long as it does not violate fundamental rights of the minority. How can that be an argument for interfering with artistic freedom? Isn’t that circular?
My second point: I wonder how the report places itself, and indeed the whole panel of experts, in this constellation. Who is speaking here? Is it the state who ordered this whole thing and on whose behalf this all is taking place? Is it seven private individuals jointly exercising their freedom of opinion? Is it science, methodically rigorous and committed to nothing but the truth? I can’t figure it out. It’s obviously not the state; that’s what the panel is there for in the first place, so that the state doesn’t have to pass judgement itself. It is clearly not science either. And if these were just private opinions, another 130-pages Feuilleton article, so to speak, then I wonder what the whole effort was necessary for at all.
The panel’s mandate was to clarify which of the exhibits shown at documenta 15 were anti-Semitic, and why, and what to do about it. The classification of a work of art as anti-Semitic is not a matter that can be settled along legal or scientific criteria, but one of interpretation, about which opinions can differ, a question of “Stellungnahme, des Dafürhaltens, des Meinens im Rahmen einer geistigen Auseinandersetzung“, and thus something that the state of Hesse and the city of Kassel – liberal to that extent after all – stay away from. Just as the state can only organise an exhibition like documenta without harming the constitutionally guaranteed autonomy of art if and to the extent that it leaves all artistic decisions to people who are protected by artistic freedom, the state can only get the question of what, beyond the undisputed and indisputable cases, is subject to the anti-Semitism verdict answered without harming the intellectual dispute between the free and equal diverse if it leaves the answer to society and does not itself, as the state, jump into the fray.
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As a supposed way out of this dilemma, it has put together that committee of experts to give these answers on its behalf, while remaining entirely a part of society. Can that work? The majority of the panel (two members were lost along the way “because they felt that their perspectives from postcolonialism research were not sufficiently represented by the panel’s focus on anti-Semitism”, p. 11) comes to the conclusion that not only the undoubtedly and indisputably anti-Semitic banner “The People’s Justice” and the also rather unambiguously anti-Semitic print from the “Archive des luttes des femmes en Algérie“, but also a number of other exhibits are under urgent suspicion of anti-Semitism, in particular the film series “Tokyo Reels”, Palestinian propaganda films from the early 1970s, whose contextualisation and temporary suspension the committee had already demanded in September 2022 while the exhibition was still running, against the resistance of the artistic directors and the management. Why it considers this encroachment on artistic freedom to be justified in the case of “Tokyo Reels” and not in the case of the piece from the lutte des femmes archive (p. 115) is not entirely clear to me, but anyway: what kind of body is this that, on behalf of the state, issues such a demand in the first person plural (see p. 53)? And then accuses the artistic direction of not wanting to take responsibility because it opposes such “censorship”? Aren’t they thereby (as Patrick Bahners pointed out) proving them right in retrospect?
The state that stays out of it also takes a position. With non-binding Meinungspflege that takes place under an undefined and uncontrolled state mandate, it channels the intellectual dispute, determines which Jews are considered “Jewish mainstream” enough to talk to and which are not, prepares to pre-define as a “standard of action for the entire organisation and its instances” for the BDS-infested cultural world what it must treat Israel-related anti-Semitism in the future (p. 132). Whatever that is, it is not liberal.
The week on Verfassungsblog
… summarised by PAULA SCHMIETA:
Many legal scholars are highly concerned about the proposed changes to Israel’s constitution. LORRAINE E. WEINRIB & ERNEST J. WEINRIB are the authors of a statement signed by Canadian Law Professors and Jurists, and they do not mince their words but remind yet again of the dangers the proposal by the Israeli government holds.
A children’s fairy-tale book is withdrawn from circulation because it features same-sex relationships and is later labelled as “harmful to children under 14 years of age”. This, the ECtHR ruled in Macatė v. Lithuania, violates Art. 10 ECHR. ELISABETH GREIF & LINDA GREUTER argue that the ECtHR missed an opportunity to demonstrate a modern understanding of protection against discrimination.
In response to the energy crisis the EU Council adopted controversial measures based on Art. 112(1) TFEU. LEIGH HANCHER examines the measures taken, as well as the challenges lodged against them before the CJEU. Hopefully, so Hancher, this crisis driven approach will not become ‘the new normal’.
LISA-MARIE LÜHRS looks at the conflict over the distribution of competences between the EU and its member states. Lühr’s proposed solution relies on the political process. Instead of another court, it might be better to create a parliamentary mediation committee.
The EU’s new Digital Services Act (DSA) requires social media platforms to consider fundamental rights when moderating content online. AMELIE RÖHLING & JOHANNES WEIL explore potential implications of Art. 14(4) DSA using online protest from Iran as an example.
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Since the BGH abandoned its case law on “Störerhaftung” (breach of duty of care) for sharing platforms, there has been a debate as to whether the now perpetrator-based liability is also applicable to mere intermediary services. FELIX REDA warns of the dramatic consequences that such liability would bring and reviews the latest developments.
NICOLAS HARDING comments on the renaming of Federal Home Secretary Nancy Faeser’s Twitter account. The governmental account is at risk of being misused for party-political purposes. This could not only advantage Faeser in the Hessian election campaign but could also be unconstitutional.
In the wake of the planned electoral law reform, THOMAS GSCHWEND scrutinises the direct mandate. He doubts that there is a special relationship between citizens and direct mandate holders in comparison to list candidates. More important than the number of direct mandates is the fact that elections are held in constituencies at all, so Gschwend.
On the occasion of the 10th anniversary of the founding of the AfD, WERNER KRAUSE, DENIS COHEN & TARIK ABOU-CHADI warn the CDU/CSU parties that copying the AfD’s extreme positions is likely to backfire, according to their study.
MORITZ WEISS advocates politicising the delivery of arms to Ukraine. He argues that arms deliveries should be geared to German goals and interests rather than to the ethical dogma of justice. Such a politicisation would have the advantage of being able to point out limits and alternatives and would be less exposed to accusations of double standards.
Finally, our lively blog debate Comparative Legal Perspectives on Abortion concludes with articles written by IRENE MAFFI, SUNHYE KIM and with a conclusive post by EVA MARIA BREDLER & VALENTINA CHIOFALO.
That’s it again for this time. All the best to you and see you next week! And as I said, please don’t forget to donate!
Max Steinbeis
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