Appendix 3: Censorship in Germany? Never! Unless… ANTON MÄGERLE Prologue In German history, censorship unfortunately has been more of a rule than an exception. It was in- troduced by the Catholic Church in the form of the Inquisition. However, it was left to the well- known Austrian statesman Metternich to perfect the system of suppressing freedom of speech by means of a comprehensive spy and surveillance apparatus. Neither the German Empire nor the Weimar Republic were particularly soft in their dealings with unwelcome literature,1 but the worst reputation was doubtless acquired by the Third Reich, which managed, within the twelve years of its existence, to black-list some 10,000 books. While these books were not burned, they did disap- pear from the shelves of bookstores, to be banished to library archives.2 But what is not nearly as well known is the fact that it was the Allied ‘liberators’ of Germany who staged the greatest campaign of book destruction that mankind had ever seen. Among the victims of Allied displeasure were 34,645 titles as well as, comprehensively, all school textbooks published between 1933 and 1945; not only were these no longer permitted to be printed and sold after the war – they also had to vanish from the archives of many libraries.3 In the years from 1946 to 1952, the Soviet Occupation Power published four such lists (“Liste der auszusondernden Literatur”, or list of proscribed literature) of titles earmarked for destruction. In accordance with the instructions in the censors’ introduction to the second and third volumes, the first three of these lists also went into force in the western Occupation Zones. The German Constitution In its Article 5, Section 1, Clause 3, the current German Constitution (Grundgesetz, or GG) pro- hibits censorship. Section 2 of that same Article, however, limits this freedom from censorship as per the regulations imposed by “general laws”, among other things. A fundamental human right can 1 For more see Claus Nordbruch, Sind Gedanken noch frei? Zensur in Deutschland, Universitas, Munich 1998. 2 The opinions about this differ slightly: acc. to Dietrich Strothmann, Nationalsozialistische Literaturpolitik, 3rd ed., Bouvier, Bonn 1985, some 12,500 books, acc. to Dietrich Aigner, Die Indizierung “schädlichen und unerwünschten Schrifttums” im Dritten Reich, vol. XI of the Archiv für Geschichte des Buchwesen, Buchhändlervereinigung, Frankfurt/Main 1971, the number was less than 10,000. 3 For some more details see, e.g., Martin Lüders, Nation und Europa, vol. 47(9) (1997), pp. 7-11. The list of all books banned by the Allies (Liste der auszusondernden Literatur) was recently reprinted by Uwe Berg-Verlag, Top- penstedt (Germany) 1983/84 (Deutschen Verwaltung für Volksbildung in der sowjetischen Be- satzungszone/Ministerium für Volksbildung der Deutschen Demokratischen Republik (ed.) Liste der auszuson- dernden Literatur. Index der in der sowjetischen Besatzungszone verbotenen Bücher nach dem Stand vom 1. April 1946; Erster Nachtrag zum Index der in der sowjetischen Besatzungszone verbotenen Bücher nach dem Stand vom 1. Januar 1947; Zweiter Nachtrag zum “Index” der in der sowjetischen Besatzungszone verbotenen Bücher nach dem Stand vom 1. September 1948; Dritter und letzter Nachtrag zum “Index” der in der sowjetischen Be- satzungszone verbotenen Bücher nach dem Stand vom 1. April 1952, 4 vols., Zentralverlag, Berlin (East) 1946-1948, 1953). It can be found completely at vho.org/censor/tA.html. 567 GERMAR RUDOLF (ED.) · DISSECTING THE HOLOCAUST thus be suspended, at least theoretically, by everyday laws such as those of criminal law.4 In this re- spect, the German Federal Constitutional Court (Bundesverfassungsgericht) has determined that “general laws” are such that do not prohibit a specific opinion, or freedom of speech per se. Fur- thermore, general laws may impose limits on a fundamental right only if doing so serves to safe- guard another fundamental right. In accordance with the principle of proportionality, the benefits of both conflicting fundamental rights must be weighed against each other.5 Further restrictions imposed on freedom of speech by Article 5 Section 2 GG serve the protection of young people and of personal honor. According to rulings of the German Federal Constitutional Court, the core significance of the human right to freedom of speech is that censorship of publica- tions is permitted only if these publications are at least a constant or typical source of endangerment to the young people who might read, hear or watch them. Regarding injury to honor, the Federal Constitutional Court has ruled that such injury generally has not occurred if no insulting expressions have been used. Criminal Law The German Criminal Code (Strafgesetzbuch, StGB) has at its disposal tools facilitating censor- ship, particularly in §§ 185, 189 and 130f. While §§ 185 and 189 (slander, disparagement of the memory of persons deceased) may be subsumed under the category of “injuries to honor”, §§ 130f. (incitement of the people, incitement to hatred) are a mixed grouping of injuries to honor, injury to human dignity (Article 1 GG), and endangerment of the public peace, a conceptual chimera which we shall not investigate in greater detail here. The autumn 1994 revision of § 130 StGB (the so-called Lex Deckert) decreed, among other things, that it is a criminal offense “publicly or in an assembly, and in a manner likely to lead to a breach of the peace, [to] endorse, deny or trivialize any act committed under National Socialist rule [which was] of the type specified in § 220a Section 1 [i.e., genocide, A.M…]” This is precisely the scenario which the Federal Constitutional Court has actually ruled out: this law criminalizes a specific opinion about one detail of the history of only one single, past regime. From this perspective alone, this “hastily passed and unthought-out”6 “special law against freedom of speech”7 would seem to be unconstitutional, and it has been criticized commensurately in Ger- man legal subject literature, where it is described as being, in effect, “an attack on the intellectual freedom of dissidents”8 and “virtually the classic example of a norm […] directed against a specific opinion.”7 “The legitimacy of this regulation is dubious at the very least. One can already question whether a lie is a criminal wrong at all; one must question whether the mere denial of a historical fact, in the absence 4 Two recent studies of censorship in Germany, highly to be recommended: Jürgen Schwab, Die Meinungsdiktatur. Wie “demokratische” Zensoren die Freiheit beschneiden, Coburg: Nation Europa Verlag, 1997, 338 pp.; Claus Nordbruch, op. cit. (note 1). 5 The Federal Constitutional Court’s decisions were quoted from: Karl-Heinz Seifert, Dieter Hömig (eds.), Grundge- setz für die Bundesrepublik Deutschland, 2nd ed., Nomos Verlagsgesellschaft, Baden Baden 1985. 6 Eduard Dreher, Herbert Tröndle (eds.), Strafgesetzbuch, 47th ed., Beck, Munich 1995, Strafgesetzbuch, 47th ed., MN 18 regarding §130. 7 Stefan Huster, “Das Verbot der ‘Auschwitz-Lüge’, die Meinungsfreiheit und das Bundesverfassungsgericht”, Neue Juristische Wochenschrift, 1995, pp. 487ff., here p. 489. 8 Daniel Beisel, “Die Strafbarkeit der Auschwitz-Lüge”, Neue Juristische Wochenschrift, 1995, pp. 997-1000, here p. 1000. 568 ANTON MÄGERLE · CENSORSHIP IN GERMANY? NEVER! UNLESS… of any characteristics of agitation, may be described and dealt with as incitement of the people, of all things.”9 The concept of “denying” something which the state deems true is a new element in German criminal law and poses problems which it seems quite impossible for criminal procedure to solve. In order for denial to objectively constitute a criminal offense, it must be done deliberately; that is, the denier must know that he is not telling the truth and the judge must prove this knowledge, which in and of itself is already virtually impossible. But in order to be able to also punish (especially) the so-called ‘criminals of conviction’ who are convinced that they are telling the truth, the German ju- diciary has concocted an entirely new definition of intent: “In this case, intent can only be the knowledge that one’s conviction puts one into conflict with that which ‘general opinion’ indisputably regards as a historical fact. Admittedly, in a state under the rule of law this places a system of criminal law based on guilt squarely at the crossroads [to criminal law based on arbitrariness]. Just as Auschwitz will ever remain a nightmare for the Germans, the ‘Auschwitz Lie’ will clearly remain the same for German criminal law.”10 However, the revised § 130 StGB includes regulations which even go considerably further. It criminalizes not only dissident views of certain aspects of National Socialist persecution of minori- ties, but in a sense anything and everything which could be considered incitement to hatred against population subgroups of potentially any definition. In this regard the foremost German criminal law commentary observes that this amendment means that practically any kind of criticism of popula- tion subgroups – however they are defined – can become a criminal offense, since the legal right that is supposed to be protected (the anti-discrimination rule) is rendered too general and vague in this Section.11 Furthermore, it also permits precautionary censorship, as it were, by providing for the confiscation of publications or other data carriers which are allegedly intended for distribution. The judiciary holds that the intent to distribute prohibited publications exists if a person has in his or her posses- sion, more than one single copy of a data carrier. That this new German law is difficult to reconcile with international human rights standards is a fact openly acknowledged by Germany’s leading politicians, but it is excused by virtue of the coun- try’s particular history.12 Indexing The first step in the process of German censorship is the black-listing or “indexing” of, for exam- ple, a book or pamphlet.