Page 107 - Communication and Citizenship Journalism and the Public Sphere

96 COMMUNICATION AND CITIZENSHIP

PRIVATE BROADCASTING AND THE
FEDERAL CONSTITUTION
Although some SPD-governed Länder saw little future in the new
channels, many conservative Länder welcomed them. Not surprisingly
Lower Saxony, led by Ernst Abrecht, was one of the first to enact a law
permitting private broadcasting. If NDR could not be brought to heel by
administrative arrangements, then the CDU would establish a new private
rival to compete with it. The SPD doubted whether Lower Saxony’s new
broadcasting legislation was constitutional, however. Accordingly, the
SPD members of the Bundestag referred the new law to the Federal
Constitutional Court. The Court ruled that it was only prepared to
accept the Lower Saxony law if eight provisions were removed, and a
further twenty-nine were given the specific interpretation to them laid
down by the Court.
In its first broadcasting decision in 1961, the Court had confirmed,
and thereby institutionalized, the Allies’ view of democratic pluralism
and its implications for the formation of public opinion which were
enshrined in the FRG’s Basic Law. Article 5 guarantees the free
formation of opinion.

Everyone shall have the right freely to express and disseminate
his opinion by speech, writing and pictures and freely to inform
himself from generally accessible sources. Freedom of the press
and freedom of reporting by means of broadcasts and films are
guaranteed. There shall be no censorship. 8

The Court noted that

Article 5 of the Basic Law demands the enactment of statutes that
organise the providers of broadcasts so as to provide for an
effective participation of all relevant forces in their organs, giving
them the opportunity to air their views within the overall
programme schedule. [These statutes must] contain obligatory
content guidelines to guarantee a minimum of balance, objectivity
and mutual respect. 9

Using the public broadcasting structure as a model, the Court had
already established in 1961 the three interlinked aspects of pluralism
which, it ruled in all later decisions, would also have to be enshrined in
private broadcasting. These were pluralism in control, in organization