74 Habermas: An intellectual biography
celebrated, classic precedents. Below we examine how and why the
four cases influenced Habermas.
The Lüth-Harlan decision of 1958 was six and a half years in the
making. The case involved a filmmaker popular during the Third
Reich, Veit Harlan (1899–1964), who had directed the notoriously
anti-Semitic Jud Süss (The Jew Süss, 1940). The film fictionalizes
the eighteenth-century life of Joseph Süss-Oppenheimer (1698–
1738), a Jewish financial advisor and tax collector for the Duke of
Württemberg. It depicts Süss as a rapist and torturer of a Christian
woman who was brought to justice by an Aryan-Christian German
community. Joseph Goebbels strongly supported the making of
the film, which was hugely popular in the Third Reich. Eric Lüth,
Hamburg’s director of information, was an activist working for rec-
onciliation between Christians and Jews. In 1951, before an audi-
ence of movie producers and distributors, he called for a boycott of
Harlan’s first postwar film, Immortal Lover (Unsterbliche Geliebte) on
ethical and pragmatic grounds: The reemergence of Harlan was a
scandal that would be harmful to the German film community and
to Germany generally. Concurrently, student groups throughout
Germany protested the theatrical release of two new Harlan films,
Immortal Lover and Hanna Amon.^66
The producer and distributor of Harlan’s film filed a com-
plaint with the Hamburg Superior Court requesting that Lüth
cease and desist from his call for a boycott. The court ruled for
the distributor and against Lüth. Lüth was deemed to have violated
Article 826 of the Civil Code, which read, “Whoever causes dam-
age to another person intentionally and in a manner offensive to
good morals is obligated to compensate the other person for the
da mage.”^67 Lüth, in turn, brought a constitutional complaint to the
Federal Constitutional Court stating that his basic right to free-
dom of speech – guaranteed by Article 5 of the Basic Law^68 – had(^66) For Horkheimer’s support of the student protests, see Max Horkheimer,
“Gegen Veit Harlan. Entwurf einer Resolution” (March 19, 1951), in
Wolfgang Krausharr, ed., Frankfurter Schule und Studentenbewegung,
Bd. 2, 60.
(^67) Kommers, Jurisprudence, 368.
(^68) Ibid., 366. Article 5, 1 reads: “Everyone has the right freely to express and
disseminate his opinion orally, in writing and in pictures and to inform
himself without hindrance from all generally accessible sources. The free-
dom of the press and the freedom of reporting through radio and film are
guaranteed. There is to be no censorship.”