Constitutionalizing Communications: The German Constitutional Court's Jurisprudence of Communications Freedom

Abstract

In the United States, the debate over communications issues as disparate as network neutrality and public broadcasting seems to be carried out in a constitutional vacuum. While an effective response to these issues might call for some affirmative action by the government, the First Amendment is framed as a negative - government shall make “no law” infringing the freedom of speech. This paper explores the very different system that results from a constitution that is phrased in the affirmative, guaranteeing freedom of the press and broadcasting. The German post-war constitution was built on the ashes of a fascist dictatorship that had misused mass communications; its post-war constitution was structured to make such a catastrophe as unlikely as possible in the future. Broadcasting in particular was claimed for the project of democracy. In a dozen or so seminal cases from 1961 to the present, the German Constitutional Court has linked the electronic media to “opinion-building” in both the personal and public spheres. As in the United States, the German Court has been vigilant in detecting and forbidding government actions that might chill this process. Unlike the United States, however, the German Court has also seen potential dangers to speech emanating from the private sector, and required German legislators to take affirmative steps to protect speech - the free flow of information and opinion in society - against such dangers. The German Court’s jurisprudence provides a theoretical framework rich in implications for a world where - increasingly, and in different ways - information is power.