76 Habermas: An intellectual biography
In the reasoning of the Federal Constitutional Court in Lüth, it is
likely that Habermas heard a victory for the kind of reasoning that
he and Abendroth had supported – without avail – on the social
welfare state. The result of Lüth was a much-widened role for the
judiciary as a whole in the shaping of society.
Two other cases – the first Television case and the Schmid-Spiegel
case – must have caught Habermas’s attention for the same reason
Lüth did: They illustrated the state’s positive obligations under
Article 5 to support the public sphere. The Schmid-Spiegel case
was important for underscoring the new interpretation of Article
5 as bestowing rights of an “objective” character (in contrast to the
“subjective” rights of the press against encroachment by the state).
By “objective right,” the Federal Constitutional Court meant “...
an affirmative constitutional right to institutional autonomy and
independence.”^71 Print media, as in the Schmid-Spiegel case, and
television earn this objective right from the “public function” they
perform in a liberal democracy.^72
The first Television case resulted from the decision of Adenauer
to establish a second federally operated television station on July 25,1960.^73 States led by the SPD brought a constitutional complaint
based on Basic Law Articles 30 and 70, Section 1. The Federal
Constitutional Court held that Adenauer’s action violated the
reserved powers of the states, finding that “... this modern instru-
ment of opinion-formation should neither be at the mercy of the
government nor of one single group.”^74 The governing boards of
broadcasting stations henceforth would include broad-ranging
representatives, including from political parties, religious denomi-
nations, trade unions, and employer groups.
The Schmid-Spiegel case originated with the complaint of a high-
ranking state judge, Richard Schmid, who in 1953 was accused by
the newsmagazine Der Spiegel of having communist sympathies,
even though the magazine had information that proved otherwise.
Schmid responded aggressively to the libel in a newspaper article
but was in turn accused of libel by Der Spiegel. The decision of the
(^71) Ibid.
(^72) Ibid., 403.
(^73) BVe r f G E 12:205 (1961).
(^74) Kommers, Jurisprudence, 406. While the Court endorsed the existing
monopoly of broadcast media, it did not rule out the entrance of privately
owned media in future.