## Facts

- A German publisher sought to publish Klaus Mann’s novel *Mephisto* in West Germany; the novel had been published abroad in 1936 and later in East Germany.
- The novel depicts the rise of a talented actor, Hendrik Höfgen, who advances his career through opportunistic collaboration with Nazi authorities and is portrayed as morally corrupt.
- Readers familiar with the theater scene could readily identify Höfgen as based on actor Gustaf Gründgens due to multiple matching biographical details and chronology, despite a general disclaimer that characters were “types.”
- After Gründgens’s death, his adoptive son and sole heir sued and obtained civil judgments enjoining the novel’s printing, distribution, and publication in West Germany, claiming a severe distortion and defamation of Gründgens’s personality and memory.
- The publisher filed a constitutional complaint challenging the injunction as a violation of the Basic Law’s protection of artistic freedom and disputing the scope of post-mortem personality protection.

## Issues

1. Whether the novel qualifies as “art” protected by the Basic Law’s guarantee of artistic freedom, and whether a publisher may invoke that protection.
2. Whether artistic freedom is subject to constitutional limits arising from other constitutional values, including human dignity and the general personality right.
3. Whether post-mortem personality protection can justify an injunction against publishing a literary work that closely tracks and denigrates an identifiable deceased person.

## Decision

- The constitutional court held that *Mephisto* is art within the meaning of the constitutional guarantee of artistic freedom, and that the publisher could invoke that freedom.
- The court ruled that artistic freedom is not unlimited and may be restricted by colliding constitutional values, particularly human dignity and the general personality right.
- The court affirmed that the general personality right includes post-mortem protection of a deceased person’s dignity and social reputation, enforceable by heirs against grave distortions.
- Applying a balancing approach, the court found the character portrayal sufficiently tied to Gründgens and sufficiently damaging to his post-mortem personality interests to justify the publication ban.
- The constitutional complaint was dismissed as unfounded, and the injunction remained in effect.

## Legal Principles

- “Art” is constitutionally protected as free creative expression that renders the creator’s impressions and experiences through a chosen formal medium; this protection extends to dissemination by publishers.
- Even without an explicit statutory limitation clause, artistic freedom may be limited by other constitutional goods of equal rank; conflicts are resolved by balancing aimed at giving each value effective scope.
- The general personality right, grounded in human dignity, can extend beyond death to protect the deceased’s memory and social respect from serious distortion and denigration.
- In “roman-à-clef” settings, the closer the fictional figure is to a recognizable real person and the more severe the humiliation or reputational injury, the stronger the justification for restricting publication.

## Conclusion

The court upheld an injunction against publishing a literary work that, while constitutionally protected as art, portrayed an identifiable deceased individual in a manner found to gravely impair post-mortem personality interests and human dignity, making the restriction constitutionally permissible.


Mephisto Case (F.R.G. Fed. Const. Ct.), 30 BVerfGE 173 (1971)