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Is Maintaining a Public Sphere in Society as a Whole an Objective of Article 5 of the Basic Law?

Is Maintaining a Public Sphere in Society as a Whole an Objective of Article 5 of the Basic Law?

At the end of September, the first expert workshop for the sub-project 3 of the Hamburg section of the Research Institute Social Cohesion (RISC) took place. The workshop's goal was to discuss from a constitutional law perspective which preconditions German constitutional law on communication assumes for the conception of successful public communication. The workshop also discussed the consequences for the state if the preconditions for a functioning "societal conversation" were not (or no longer) in place.

The Hamburg project "Integration-Related Remit and Functions of Public Service Media" of RISC focuses on public service media offerings and their role in creating social cohesion. The first part of the project is primarily concerned with the understanding and scope of a cohesion-related functional mandate for public service media providers. Against this backdrop, a small circle of experts in the field of broadcasting constitutional law discussed the complex issues with the project team.

Interdisciplinary Introduction

In its first part, the workshop was intended to provide a comparison between the results of communication studies and constitutional law by linking and discussing current findings of empirical research on use and impact with the fundamentals of the constitutional discourse on processes of free individual and public opinion-forming. Prof. Dr. Wolfgang Schulz opened the discussion with an introduction on the shared understanding of the Research Institute Social Cohesion (Forst in Deitelhoff et al.) and the previous conceptual debate within and outside the FGZ. Afterwards, Prof. Dr. Uwe Hasebrink gave a presentation on the topic of "Individual and Public Opinion Formation from the Perspective of Media Usage Research". 

The findings he presented show (among other things) that interest in news has remained largely stable over the years in relation to the population as a whole. In social media, news providers are also the most important sources of information, but - depending on the platform - non-journalistic sources are also gaining in importance, especially among younger people. Furthermore, he highlighted the pronounced media scepticism that exists in subgroups of society, despite the recent increase in general trust in news.

Particularly relevant for the workshop was Hasebrink's insight that everyday patterns of media use are closely linked to perceptions of social reality and political attitudes. In the question and answer session that followed, Hasebrink confirmed that, for example, the audience's interest in public service media and interest in social cohesion are closely interwoven, because media are part of socialisation processes from the very beginning, whereby milieu-specific characteristics must be taken into account.

In addition, he addressed the question of whether only a moderate interest in news could be depicted as a separate group in surveys. Although there is an increasing number of people who do not use established journalistic services, there is no reason for concern from the perspective of social integration as long as they do not turn away from society. The workshop was able to draw on this basis of communication science.

Constitutional Communication Standards for Public Service Media

The exchange that followed Uwe Hasebrink's impulse presentation was characterised by three guiding questions, which also serve to structure the presented report:
  • Firstly, what basic conditions of public communication processes does Article 5 (1) of the Basic Law assume, so that the individual and public formation of opinion and formation of will can take place openly and freely?
  • Secondly, does the constitution on communication contain a guarantee of the conditions for the institutional provision of journalistic-editorial services?
  • Thirdly, what performance does Art. 5 para. 1 GG expect from public service media providers with regard to a successful "social conversation"? Is social cohesion a prerequisite or a result of Art. 5 GG?

Basic Conditions of Public Communication Processes

The starting point for the first guiding question was the following quotation from the Spiegel ruling of the Federal Constitutional Court of 1966: "The function of the free press in the democratic state corresponds to its legal status according to the constitution". (BVerfGE 20, 162 (175)). Consequently, it was about the conceptual challenge in dealing with constitutional interpretations, as well as working with bridging concepts (e.g. diversity) that can lead to approaches to the relationship of constitutional communications law to social cohesion.
Prof. Dr. Ladeur presented his understanding of freedom of opinion and freedom of the press as `fundamental rights to a process' in a keynote speech. He called for a stronger focus on technological and social change. In this context, he said, it was less a question of the various forms of media, but rather of who would produce quality content in the future. In this respect, there is an increased need for knowledge regarding self-organised processes of structure and the formation of order for new forms of generating knowledge.

Subsequently, the question was discussed whether Article 5 (1) of the Basic Law was conceptually "overloaded" by constantly expanding the objective-legal content beyond the provision of the framework conditions. If one subscribes to the view that the previous communicative and media system is fundamentally changing, then the law must also react to this. It is questionable whether a necessity for the formation of legal order can be recognised. In view of the fundamental change that society is undergoing as a result of digitalisation, the role of the legislator was also discussed.
On the one hand, there was a plea for open regulation and more regulated self-regulation and, on the other hand, for attentive observation of this change, which is not yet complete. Therefore, caution was called for in the restructuring of the existing media system, because empirical evidence so far did not indicate a move away from classic sources of information.

Article 5 of the Basic Law and the Provision of Journalistic-Editorial Services

The second complex followed on from the debate (also conducted in public) regarding the institutional promotion of quality journalism and a journalistic "basic provision". A prerequisite protection for the free individual and public formation of opinion was affirmed by many discussants. Media freedoms as well as the protection of personality and the protection of the formation of political will were encompassed by this. Consequently, Prof. Dr. Rossen-Stadtfeld argued in favour of a design based on access to social communication and protection against instrumentalisation by (non-) state power. This multi-dimensional positioning could be achieved through institutional autonomy, and in this respect, the current form of institution was fundamentally suitable for the tension between freedom and protection.

Im Hinblick auf die verfassungsrechtlichen Gewährleistungsgehalte argumentierte Prof. Dr. Müller-Terpitz, dass die Verfassung keine institutionellen Garantien enthalte. Der Gesetzgeber sei entsprechend frei und könne theoretisch die Generierung von Public-Value-Inhalten jenseits der traditionellen Akteure anregen.

Prof. Dr. von Cölln bezog sich auf die letzte Entscheidung des BVerfG und erklärte, der öffentlich-rechtliche Rundfunk sei weiterhin als Existenzvoraussetzung für den privaten Rundfunk zu verstehen. In Bezug auf die Presse würde der potenzielle Verlust an Bedeutung traditioneller Printmedien nicht zur Folge haben, dass der Staat sie finanzieren müsse. Die Verlagerung führe dazu, dass Neues entstehe.

Auch Prof. Dr. Schuler-Harms erklärte, eine Institutionalisierung der Print-Presse sei verfassungsrechtlich eher abzulehnen, weil sie in dieser Form nicht von der Verfassung verlangt wird. Prof. Dr. Schulz wies an dieser Stelle auf die Spiegelfunktion der Medien für das politische System sowie das potenzielle Bedürfnis hin, die Leistungen und Funktionen abzusichern, die für eine Demokratie erforderlich sind.

Article 5 of the Basic Law and Social Cohesion

The final question discussed by the participants was whether social cohesion is a prerequisite or a result of Article 5(1) of the Basic Law. There was broad agreement that social cohesion is not the direct result of programme activity in broadcasting, but can rather be understood as a normative standard in the interpretation and implementation of the programme mandate. A central proxy term here is diversity. If diversity is reflected in the broadcasting offer, the programme shows corresponding possibilities of broad social inclusion. The core of an understanding of public service broadcasting as a cohesive infrastructure is to find oneself as a recipient in the content and points of view presented and to see and understand other points of view.
The discussion about formats of public service broadcasting that understand and implement social cohesion as a quasi-educational mandate appears problematic against the background that it is precisely not the task of public service broadcasting to generate its own conception of social cohesion among recipients. The fact that the broad acceptance of the programme as an indicator of the fulfilment of the mandate is quite ambivalent was seen as a challenge, because it creates quota pressure, which has a structurally negative effect on the representation of broad diversity.


The lively discussion demonstrated the pertinence of the questions the project is trying to answer. Thoughts and ideas will be incorporated into further work on answering the leading jurisprudential question in the project. Further perspectives on the function of public service media providers for social cohesion will be compiled in the context of an event with actors from (media and cohesion) practice, which is planned for 2022.


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