Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The German Federal Constitutional Court, overturning lower court decisions, found that an Airport had violated Ms. K’s freedom of expression and freedom of association rights with its effective “ban” on the distribution of anti-deportation leaflets at the Airport. Ms. K was a member of an activist group which had distributed the materials at check-in counters, without the Airport’s approval, to protest private airlines assisting in the deportation of foreigners. The Court observed that, although the Airport operated as a stock corporation, the state owned majority shares in the Airport and was therefore bound to conduct itself as an organ of the state and protect citizen’s constitutional rights. In assessing Ms. K’s freedom of assembly right, the court found areas intended for public gatherings or traffic, even if privately owned, are areas subject to assembly rights and since Ms. K’s actions did not threaten the safety or efficiency of operations, the interference was not proportionate. The Court concluded that by threatening criminal proceedings against the protesters should they violate the “ban”, the Airport violated Article 5.1 (Freedom of Expression) and Article 8.1 (Freedom of Association) of the German ‘Basic Law’ which sets out constitutional rights for German citizens.
The complainant, Ms. K, was a member of an activist group (“Initiative Against Deportations” or “IAD”) that objected to the fact that private airlines assisted in the deportation of foreigners. In March 2003, Ms. K and five other IAD members distributed anti-deportation leaflets at the check-in lounge of Frankfurt International Airport (“the Airport”). The Airport responded by imposing a “ban” on the group’s members from “unjustifiably” appearing at the Airport. It made explicitly clear that, should the members “unjustifiably” distribute leaflets again, the Airport would press criminal charges against them.
The Airport explained that, according to its internal regulations, any “advertisement or distribution of leaflets” required the Airport’s prior consent. It further explained that, for the purposes of smooth operation, safety, and efficiency, as a “matter of principle,” it does not tolerate “demonstrations in the terminal that [have not been] coordinated with [the Airport] beforehand.”
Ms. K petitioned the Frankfurt Local Court (Amtsgericht) for declaratory relief, alleging that, by effectively banning her from the airport by threatening criminal charges, the Airport had inter alia violated Article 5.1 (Freedom of Expression) and Article 8.1 (Freedom of Association) of the Grundgesetz, which sets out the basic constitutional rights of all German citizens. The Frankfurt Local Court found for the Airport and Ms. K appealed to the Hesse Regional Court (Landgericht), which also ruled in the Airport’s favor.
Ms. K then appealed to the Federal Court of Justice (Bundesgerichtshof) which upheld the decisions of the lower courts on the grounds that the Airport did not have a positive obligation to protect Ms. K’s rights because it was a stock corporation, not an organ of the state. Finally, Ms. K filed the present appeal with the Federal Constitutional Court (Bundesverfassungsgericht).
In a 7:1 opinion, the Federal Constitutional Court found that the lower courts erred in upholding the Airport’s ban on Ms. K and the other protestors.
The Court first observed that, although the Airport operated as a stock corporation, it was bound to conduct itself as an organ of the state, since the state owned majority shares in the Airport. The Court then cited Article 1.3 of the Grundgesetz, which states that the legislature, the executive and the judiciary are bound by the fundamental rights set out therein. The Court observed that the relationship between citizen and state is one in which the citizen is fundamentally free to act subjectively without, in principle, being accountable for those actions. On the other hand, the state and its operations are fundamentally bound, as a fiduciary of the citizen, to execute the interests of the citizen. Therefore, the citizen is not bound by a positive obligation to ensure that the rights of others can be exercised, but the state is bound by such an obligation. This obligation binds not only publicly-owned organizations, but also those that are owned by both public and private shareholders, such as the Airport.
The Court then turned to the alleged violation of Ms. K’s freedom of assembly right under Article 8.1 Grundgesetz. It found that, although such a right is not guaranteed in all private spaces, it is not restricted to purely public places either. Rather, areas intended for public gatherings or traffic, even if privately owned, are areas subject to assembly rights. The Court found that, so long as the privately-owned spaces are intended for public use, and are held out to the public and not separate from it, the Article 8.1 protections applied. Finally, the Court approached the question of whether the Airport’s interference with Ms. K’s 8.1 rights was proportionate to the legitimate aim of increasing the safety and efficiency of operations. The Court found that, given the nature of the right and the manner in which it was exercised, an interference could only be justified if Ms. K’s actions posed a direct danger to fundamental legal interests that were of equal rank to freedom of assembly. The Court found no such danger and held accordingly that Ms. K’s Article 8.1 freedom of assembly rights had been violated.
The Court then addressed the alleged Article 5.1 violation, noting that the right to freedom of expression extended even further than the right to freedom of assembly. Unlike the Article 8.1 assembly right, the Article 5.1 right to freedom of expression applied to Ms. K anywhere she may be at any time; it was not limited to public spaces or spaces intended for public use and traffic. The Court further held that the Airport’s infringement on this right was disproportionate, because it appeared to stem only from a desire to create a “feel good atmosphere” free from political discussion and controversy. The Court found that such a desire – no matter how “consumer friendly” the atmosphere it created – could not possibly justify an imposition on Ms. K’s Article 5.1 freedom of expression.
Accordingly, the Court found that the Airport had violated Ms. K’s Article 5.1 freedom of expression and her Article 8.1 freedom of association rights with its effective “ban” on the distribution by her and the IAD of anti-deportation leaflets at the Airport. It remanded the case back to the Frankfurt Local Court (Amtsgericht) for a decision consistent with its finding.
Judge Schluckebier dissented, arguing that the majority had not given proper weight to the rights of minority private shareholders in determining that the Airport was bound by the obligations of the state. Schluckebier also argued that, regarding Ms. K’s Article 8.1 rights, although Airports are places open to the public, the “airport function” remains the dominant function, and as such, the Airport’s right to serve its dominant function through restricting disruptive activity should have outweighed Ms. K’s right to assembly. Finally, Schluckebier argued that the majority had not gone far enough in considering the burden to the general public that may be caused by Ms. K’s actions. He argued that a disruption at an airport can have far-reaching consequences, and as such, the majority erred in its proportionality assessment.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression in three primary ways. First, it clarifies the German state’s positive obligations to protect the rights set out in the Grundgesetz extend to stock corporations in which the state holds a majority of shares. Second, it establishes that assembly rights apply not only to public places, but also to privately-operated places intended for public gathering or traffic. And finally, it clarifies that the right to freedom of expression extends beyond the special barriers imposed on the right to freedom of assembly; that is, freedom of expression follows an individual wherever he or she may be, regardless of whether the forum of expression is considered private or public.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Germany is a civil law country. As a Federal Constitutional Court decision, this case has a strong persuasive authority on future cases alleging violations of Article 5.1 or Article 8.1 of the Basic Law.
Let us know if you notice errors or if the case analysis needs revision.