6 - German Broadcasting Freedom

Summary

The German approach to positive communicative freedom shows a constitutional court taking a substantial role over structural aspects of broadcasting, doing through constitutional law things that might be pursued elsewhere, if at all, through legislation or government policy without direct reference to free speech. This chapter extracts ideas and techniques relevant to positive dimensions of the freedom, lessons which might be adapted into different democratic contexts and cultures. Despite various weaknesses in the approach, how German law supports the freedom and why it does so have wider significance for free speech. The court acts in a small number of ways to support some aspects of positive communicative freedom. But the court framing the freedom, through its precautionary approach, appears to have substantial effects. The example suggests that, if courts do not promote structural diversity, adequate and varied financing and independence for media, positive free speech may not be realised to any democratically sufficient degree.