GERMAN LAW JOURNAL
[Vol. 07 No. 04
freedom of expression claim ought to be successful against a person who invites only those who share his political views to a private dinner party and excludes the advocate of a flat tax. The general point is that in liberal societies individuals may often do things and act on reasons that public authorities may not act upon. The idea of private autonomy, the central organizing principle of private law, expresses this idea. When individuals are effectively constrained by constitutional rights in the same way as public authorities, this undermines the idea of private autonomy. The total constitution, it seems, is a twin of the total state. Both of them fail to appropriately respect the idea of private autonomy.
This argument is unpersuasive. It is true that the liberal commitment to private autonomy implies that individuals may often do things that public authorities may not. The dinner host who excludes flat tax adherents does not violate their right to freedom of expression. But it does not follow that constitutional rights are not appropriately applied to private law and the relationships between private individuals. It merely follows that when applying constitutional rights to the private context the autonomy interests of the other party need to be taken into account when determining the limits of the rights. The fact that A has a right to freedom of speech may imply that the state may not discriminate against him on the basis of the content of his political beliefs, but it does not follow that another individual may not discriminate against him on that basis. In the latter context the right to freedom of speech needs to be balanced against the right of the inviting dinner host to determine freely whom he invites into his house for dinner. Within the context of proportionality analysis the relevant difference in the context of application can be taken into account. Constitutional rights guarantees, as applied to conflicts between private individuals, take into account the principle of private autonomy as a countervailing concern. The task of the FCC engaged in constitutional rights adjudication is to assess whether the decision of a civil law court or by the private law legislator concerning the relationship between individuals did in fact take into account the competing constitutional principles at stake and strike a reasonable balance between them.
Finally, the application of constitutional rights to the private context does not undermine an important point of rights, which is to provide individuals with a private sphere within which they need not be concerned with being held publically accountable.61 When determining whether an individual has a right to exclude someone from a dinner party because of his political views, the question is not whether his behavior deserves public approval or criticism. The question is not whether he behaved reasonably when excluding people from his dinner party
For such an understanding of rights, see J. HABERMAS, BETWEEN FACTS AND NORMS 109 (1996).