## Facts

- Two criminal convictions in Hesse were consolidated for constitutional review.
- A book distributor sold an antimilitarist paperback whose back cover contained a collage depicting a man urinating in a way that appeared directed at a German federal flag carried by soldiers.
- A magazine editor published an article about the book distributor’s prosecution and reproduced the same collage.
- Both were convicted and fined under Criminal Code § 90a(1) no. 2, which penalizes public disparagement of the federal flag and other state symbols.
- Each complainant argued that the convictions violated Basic Law Article 5, especially Article 5(3) sentence 1 (freedom of art); the editor also implicated press freedom by reproducing the image in a report.
- Lower courts treated the image primarily as an insult to the flag and upheld criminal liability without a detailed analysis of the work’s artistic context and meaning.

## Issues

1. Whether the collage and its reproduction qualified as “art” protected by Basic Law Article 5(3).
2. Whether applying Criminal Code § 90a(1) no. 2 to an artistic depiction disparaging the federal flag is categorically barred by Article 5(3).
3. What constitutional limits and methods (including balancing and narrow construction) govern criminal punishment of art that disparages state symbols.
4. Whether the specific convictions, given the context and purposes of the book and the magazine report, violated the complainants’ freedom of art.

## Decision

- The court held that the contested depictions qualified as “art” within the meaning of Article 5(3).
- The court held that Article 5(3) does not generally preclude criminal punishment under § 90a(1) no. 2 for disparaging the federal flag.
- The court reversed all challenged judgments and remanded both matters for new decisions because the lower courts’ applications of § 90a violated Article 5(3).
- The court ordered the Land of Hesse to reimburse the complainants’ necessary expenses.

## Legal Principles

- Freedom of art under Article 5(3) is broadly construed and does not lose protection merely because a work is provocative or offensive.
- Although Article 5(3) is guaranteed without an express reservation, it is not absolute; it may conflict with other constitutionally protected values, including protection of the state and its symbols.
- § 90a is not unconstitutional on its face as applied to art, but it must be interpreted and applied narrowly so that artistic freedom retains practical effect.
- Courts must evaluate the work in context (including artistic form, setting, and communicative purpose) and cannot isolate a single element as a mere insult without considering meaning and function within the work.
- Criminal sanctions against art require strict proportionality and careful balancing between artistic freedom and the state interest in safeguarding respect for state symbols; punishment cannot rest solely on offensiveness.
- Where a work is reproduced to report on a criminal proceeding involving the work, adjudication must account for the communicative function of the reproduction and the heightened constitutional sensitivity of penalizing dissemination of the work itself.

## Conclusion

The court sustained the legitimacy of criminal protection for the federal flag in principle, but held that convictions for flag-disparaging imagery violated artistic freedom when lower courts failed to apply a narrow, context-sensitive, and proportionate balancing of Article 5(3) against the state interest in protecting its symbols.


Bundesflagge (Flag Desecration Case), 81 BVerfGE 278 (BVerfG 1990)