“Well-intentioned is often the opposite of art”: New report on anti-Semitism clauses

Things have become quiet about the so-called anti-discrimination clause, also often called the anti-Semitism clause, which the Berlin Senator for Culture Joe Chialo (CDU) introduced at the end of last year when allocating cultural funding and withdrew it just a few weeks later after much criticism. The project has not yet failed. Work on this is currently continuing across the Senate, under the leadership of the Justice Administration and the Labor and Social Affairs Administration.

However, it is undeniable that the cultural landscape, and not just that of the capital, has been under special observation since the Hamas attack on Israel last October and that there is still a need for action there.

A report commissioned by Claudia Roth (Greens) in her role as Federal Commissioner for Culture and Media now provides information about the legal framework for preventive measures à la the anti-discrimination clause. The assessment of the admissibility of such steps to combat anti-Semitism and racism in state funding for culture comes from the renowned constitutional lawyer Christoph Möllers, who teaches at Berlin’s Humboldt University.

The result is fairly clear: Möllers considers such projects in their current forms to be legally problematic or to be of little practical benefit for various reasons.

Clauses are constitutionally possible

Möllers writes in his result, which is available to the Tagesspiegel, that it is “basically possible for the parliamentary legislature to supplement the allocation of state funds to both public cultural institutions and private artists with a commitment against anti-Semitism and racism”. In fact, the lawyer even identifies a “general trend” to “tie state funding measures to additional political goals”.

According to Möllers, the decision in favor of such an instrument “despite all the understandable political and moral grief about the dramatic increase in open anti-Semitism in the cultural sector should not be limited to the statement that combating it is a correct goal.” In legal policy, too, “it is good “meant” is often the opposite of art.

Warning of a “paradigm shift”

Möllers points out that there is a risk of “politicization of decision-making practice”. He points out that, especially in Germany, where the state has a kind of monopoly position in cultural funding, the trust of the state authorities, i.e. the sponsors, in the institutions and people it supports is of particular importance. The lawyer sharply questions whether breaches of trust in the recent past – the example of Documenta 15 could probably be cited here – justify a “paradigm change” that such preventive obligations would mean in Möllers’ assessment.

Despite these fundamental concerns, Möllers also criticizes politicians’ lack of discussion about the enforceability of the measures. “Who checks whether the information is correct, who decides on the withdrawal and with what discretion?” asks the constitutional lawyer. The “potential scope for considerable downstream control of the entire public art sector” causes “understandable unease”. One cannot speak of “well-thought-out regulations” “even if one sympathizes with the issue in question”.

The report is also likely to have consequences for the work in the Berlin Senate. A request to the Senate Department for Culture and Social Cohesion to this effect has so far remained unanswered.