Polizeiliches Filmverbot im Spannungsverhältnis von Kunst- und Meinungsfreiheit – der sog. »Mohammed-Film« im Lichte von Art. 5 GG

The official prohibition of film screenings is an infrequent and uncommon sanction in German law. Unexpectedly, the dealing with controversial films gained worldwide attention when the existence of a film with the title »Innocence of the Muslims« was made public. Purportedly, the film shows a very disadvantageous picture of the Muslim prophet Mohammed and simultaneously denounces the Muslim religion in general. Even if »Innocence of the Muslims« was indeed not displayed in Germany, the incident gave rise to several legal considerations pertaining to the possible means and the applicable rules with respect to the prohibition of film screenings today. According to the Federal Constitutional Court's (FCC) rulings in the aftermath of the so-called Mephisto decision (1971) films enjoy only subsidiary protection by freedom of speech (art. 5 para. 1 cl. 1 Basic Law) and – paradoxically – freedom of film (art. 5 para. 1 cl. 2 Basic Law), but are predominantly covered by the freedom of art (art. 5 para. 3 cl. 1 Basic Law). According to the FCC »art« mostly exists beyond legal categories and is influenced by the mutability of artistic creation. Therefore, art implies the artist's impressions and experiences which acquire visibility through a specific language of form. Additionally, artistic activities are to be affected by conscious and subconscious operations guided by a combination of intuition, fantasy and artistic skills. With this in mind the definition of art encompasses almost any kind of artistic work including films regardless of possible shortcomings in quality and contemporary judgments of the public or critics. Even though »Innocence of the Muslims« suffers from several grave technical flaws such as poor directing, a rather randomly assembled screenplay and immature acting, there is no convincing evidence so far to proof that it must be excluded from the realm of art. Pursuant to the FCC's decisions the freedom of art is currently limited by »fundamental rights of third parties and other legal values protected by the Constitution«. Since several limitations collide with the freedom of art (art. 5 para. 3 cl. 1 Basic Law) the diverging constitutional guarantees have to be balanced in a procedure named »practical accordance« (praktische Konkordanz) which rests on the idea of an as gentle and considerate as possible settlement of conflicts including a proportionality test. Instead of balancing the rights operating in favor of the film at hand with other constitutional guarantees it can be thought of transferring the well accepted argument of »taunt« speech (Schmähkritik) upon the freedom of art. A constitutional freedom is assessed as »taunted« when it is solely directed to a degradation or insult of another person without offering reasonable grounds for discussions on the merits. This transfer of the »taunt« argument which is foreshadowed in several dissenting opinions by FCC judges, but never made it to the court's majority opinion, would result in a cancelation of balancing colliding constitutional rights and values and leading to the »taunted« freedom to retreat. Even if the available film clips of about 14 minutes are malicious, tendentious and inherently prejudiced against Muslim religion and it is highly probable that the remaining film turns out similar to what has already been publicized it cannot be assumed beyond reasonable doubt that the whole film is shaped in that same fashion. With those constitutional controversies in mind it is a matter of police law how and under which circumstances the prohibition of a film screening can be enforced. In this regard, it has to be recognized that committing a criminal offence under German law simultaneously constitutes a breach of »public security« as encompassed in the general warrant to encroach a person's individual rights. As far as the public screening of the film »Innocence of the Muslims« is asserted to violate sec. 166 of the German Criminal Code – defama