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“You can say anything in Germany!”

Party Foul

“He walked in wearing a swastika,” Gerrit exclaimed as he displayed the pictures from his “Berlin in the Golden Twenties” party. At a theme party in 2005, where all guests arrived dressed as a character from the 1920’s, one such guest came fully clad as an aristocratic Nazi supporter, sporting a swastika pin on his lapel. His arrival caused an uproar for those throwing the party, splitting the group into two opposing sides. One half felt that besides being an illegal “unconstitutional symbol,” the swastika was offensive and should not be allowed in the party. Still, the other side seemed to think it was the guest’s right to express himself in an artistic manner. The pin was art, they said, and an important symbol for the time period the party was celebrating. After much debate, the guest was made to remove his pin, but the greater issue of censorship in Germany is not so easily concluded.

Germany and Freedom of Speech

Freedom of speech, an “inalienable human right” according to human rights activist Sebastian Mueller, is protected under Article 5 (1) of the German constitution: “Everyone has the right freely to express and to disseminate his opinion by speech, writing and pictures and freely to inform himself from generally accessible sources. Freedom of the press and freedom of reporting by radio and motion pictures are guaranteed. There shall be no censorship.” Despite the freedoms established in these words, boundaries to these freedoms are outlined almost immediately after they are guaranteed. Article 5 (2) of the constitution reads: “These rights are limited by the provision of the general laws, provision of law for the protection of the youth and by the right to inviolability of personal honour.” These two sections of article 5 present an interesting dilemma: free speech is granted, yet restricted two lines later. In the authors’ opinion, limits to free speech seem to contradict the very idea of free speech itself. 

What are the reasons for these restrictions on free speech? How do these laws function in German society? These are the questions we intend to explore. First, we examine the “Auschwitz lie law,” which forbids the public denial of the Holocaust, and is an offence punishable by incarceration. We then continue with censorship in Germany, which takes the forms of self-censorship and official censorship under youth protection laws. In addition, we evaluate the prohibition against all signs and symbols representing unconstitutional organizations, like the swastika and other extremist symbols from both the left and the right. Foremost among our discoveries, we find that freedom of speech and censorship in Germany presents a complicated case. But we conclude that limits on freedom of speech, while accepted by the public, create a dangerous situation. While only a few restrictions exist, there is a constant risk of a slippery slope. Where do the limits stop? And if the limits were to become extreme, as we shall discuss, is there capacity or willingness within the government and among the public to control them?

Holocaust Denial and the Law

The Holocaust was one of the most horrifying events of the twentieth century. It is a shocking example of what is possible when the abuse of power is combined with the human ability to hate and act with cruelty. While the Holocaust touched the entire world, Germany felt—and continues to feel—its extreme and long-standing effects. As previously defined, the “Auschwitz lie law” makes it illegal to deny the Holocaust, and was created with Germany’s new body of law in 1949. The intent of the law must be looked at “within a historical context,” says German lawyer Johannes Eisenberg. “The German government was terrified that something like the Holocaust would happen again,” Eisenberg says. The law was thus enacted for a preventive purpose, specifically to deter future violence and racism. 

In addition to its pre-emptive goals, the Auschwitz lie law is also intended to recognize the German legal principle of “human dignity,” which demands respect for both those who died in the Holocaust and the surviving population. Human dignity is protected and defined by the first article of the German Constitution; it is an “inviolable right.” According to Sebastian Mueller, human rights expert at the German Institute for Human Rights (Deutsches Institut für Menschenrechte), human dignity is “the most important right in the German society.” To deny the Holocaust would itself deny the suffering of the victims and dishonour their lives.

Johannes Eisenberg, however, offers a different perspective on the law. He is in the minority of Germans who disagree with the law and see it as unnecessary. “This is not the best way to deal with the issue,” he says. The Auschwitz lie law, Eisenberg argues, does not serve the purpose for which it was created. The law was intended to prevent the spread of racist ideals and the formation of extreme violent political parties, but the ideas that these laws were meant to extinguish still exist. Klaus Farin, an expert on youth culture, shares this same opinion. “Racism, terrorism, and neo-Nazism still exist. There are still places where minorities do not feel safe. The laws did not get rid of these political and social problems of intolerance.” 

Eisenberg and Farin advocate transparency.  As Eisenberg puts it, “the best way to deal with these dangerous opinions is to discuss them.” He feels that such extreme political and social views should be out in the open so that society is aware of them. If these ideas were freely presented, he believes, there would be a venue to refute them and a greater possibility of fighting against them. When such political views exist only underground, however, they fester. “They grow bigger and stronger without an outside influence to contradict them,” Eisenberg says. Farin echoes this opinion, “It should be the duty of the public to stand up against these ideas, to fight them. There is no possibility of doing this if ideas are forbidden.” But, while Eisenberg and Klaus view the law as a contradiction to the idea of free speech, it is important to note that most Germans do not share this opinion. The historical context in which the law was created and the social import of the Holocaust makes the law necessary for most Germans.

Censorship in Germany

A very important distinction to make about restrictions on free speech in Germany, including the Auschwitz lie law, is that they are retroactively applied, with no material being censored before its publication. Only an already published book that denies the Holocaust, for example, may appear before the Court and be charged with being unconstitutional, offensive, or harmful to youth. The absence of any formal legal measures to prevent the initial publication of documents may account for the popular perception that “you can say anything in Germany.” In a recent informal survey, conducted by the authors during halftime of a World Cup match, 70 percent of respondents indicated that they “do not believe that the Government has the right to restrict speechm” while 73 percent reported that they are “satisfied with the current free speech law in Germany.” These results (small sample size notwithstanding) seem to indicate that many Germans see no apparent contradiction between their liberal free speech values and Germany’s laws. In actuality, public perceptions of Germany’s laws may be substantially different from the laws themselves. However, this general satisfaction with the status quo says much about Germans’ confidence in their own free speech laws. 

Historically, this has not always been the case. Political activist and German filmmaker Rosa von Praunheim, notorious as an aggressive and often controversial proponent of gay rights, recalls when his progressive films were censored by German television: “I had problems in 1971 with my first film on gay issues, which was taken off the air. It took three years until it was shown. Another film of mine in 1973, ZDF television cut 30 minutes of the film. And I had to cut out sex scenes several times. In 1979, I did a film showing very direct scenes, and the film was never shown on TV.” Despite German television’s resistance to these films, other media outlets proved vital. Von Praunheim maintains that, in contrast to today’s press, the support and interest of the news media was critical to raising awareness about sexuality and censorship. Von Praunheim describes the press as “very supportive then.” Today, he says, “they wouldn’t care much.” In testing the limits of German society, these battles with censorship represent a pivotal point in the history of Germany’s free speech debate. 

Whereas censorship in Germany in the 1950s and 1960s was characterized by sharp opposition to any sexual content in the mainstream media, and the 1970s and 1980s by sexual reticence and Cold War tensions and transitions, censorship in the post-reunification period has a different focus. Self-censorship, an individual’s choosing to refrain from voicing unpopular opinions, is cited by a number of press and media figures as the greatest inhibition to free speech in Germany today. While Turkish journalist Ismahan Alboga confidently asserts that “you can say anything in Germany,” she also believes that her personal responsibility as a supporter of Turkish rights in Germany sometimes influences her journalistic choices. “If I cover a migrant story in the news, I take time to think about the way I frame the story. Will this benefit integration or make things worse? Even if the story is true, completely factual, I always try to weigh this as a consideration.” Alboga’s migrant background can sometimes play an integral part in her approach to news coverage, and she says that self-censorship plays a larger role in her work than any government law. In a country where many believe speech is virtually unrestricted, the concept of self-censorship often varies according to the personal values of the individual, and many continue to see it as the greatest limitation on free speech in Germany. 

Television journalist Marcus Pohl, who jokes that “there is no free speech law in Germany,” nonetheless agrees with Alboga and believes that his work is directly affected by censorship. In contrast to the direct censorship that von Praunheim experienced in the 1970’s, Pohl argues that the form of censorship that he experiences has taken a more “indirect,” market-driven form. “You have to censor yourself,” he says, “because as a journalist, you want your views to reflect public opinion, which in most cases means the mainstream. In television journalism, you have to do something that people want to see.” Pohl regards the opinions of the mainstream as one of the most potent forms of censorship and recognizes the influence capitalism has had on journalism and public discourse. 

Similar to Alboga, von Praunheim sees self-censorship within the film industry as the predominant form of restriction on free speech. “These days,” he says, “censorship is more or less in the heads of filmmakers, so that they only offer scripts which are safe.” By referring to internalized norms as the cause of censorship, von Praunheim blames filmmakers for their lack of temerity but is equally critical of the public, offering a pessimistic analysis of the influence of today’s public on the media. “Censorship in Germany seems very hidden. In East Germany, every word you said could have been dangerous. Now in capitalistic Germany, you seem to be able to say what you want, but nobody cares or listens.” Von Praunheim’s critique links censorship and apathy, but it is unclear whether apathy or self-censorship is ultimately most responsible for censorship in Germany today. According to Alboga and Pohl, the self-censorship that occurs as a result of concern for public perception has changed the nature of German censorship. Although von Praunheim attributes some of today’s censorship to apathy, all three share the opinion that self-censorship has a more profound effect than any existing German law.

Censorship, Youth Protection and Music

While these journalists and von Praunheim believe that the majority of censorship in Germany today is self-enforced, the landscape of German censorship is entirely different for German music, particularly hip-hop. Hip-hop, an African-American musical form that developed in American inner cities starting in the 1970s, has become increasingly popular in Germany, as evidenced by its prevalence on German radio, in German record stores, and in German clubs. Hip-hop is especially popular among minority and immigrant German communities, but many critics remain troubled by hip-hop lyrics that are often violent and misogynistic. This is a central issue for Markus Straiger, who, as owner of the German hip-hop record label Royal Bunker, is directly affected by censorship in all its forms. One of these forms includes youth protection laws enacted by the government. The law deals with hip-hop, and music generally, in a way that is similar to how it deals with other forms of provocative art. No music is censored before publication, but complaints about songs or movies may be forwarded to a review board. The review board—the Federal Department for Media Harmful to Young Persons—designates the most problematic works to an “A” or “B” list, and items on both lists remain off limits to minors. Some of the more chauvinistic hip-hop can be found on the “A” list, while Nazi music, for example, consistently finds its way onto the even more taboo “B” list, which is designed to protect German children. 

In response to claims that hip-hop music should be censored because of its offensive content, Straiger contends that open dialogue, rather than censorship, can be a more productive means of fostering tolerant attitudes. “As a label executive,” he says, “I’m often asked about sexism in music. I think it’s necessary that things that are in your head should be spoken, so you can discuss them. To me, it’s more dangerous when you can’t discuss and things are suppressed.” By arguing that discussion is a more productive way to safely resolve societal disputes, Straiger defends the principle of free speech and makes a case for democratic discourse rather than dictatorial enforcement.

Perhaps even more disconcerting than sexism in German rap, the emergence of Nazi rap groups in recent years complicates the problem of censorship for German hip-hop artists. Despite the problematic nature of these groups, rapper, author, and hip-hop activist Jan Kage dismisses their significance. “Nazi hip-hop doesn’t really exist. I’d say only 5 percent [of the German hip-hop scene] has even heard of them, and outside of the hip-hop scene, no one is conscious of them. … They’re dangerous and are irresponsibly using fascist metaphors, but they’re not really Nazis. … They don’t deserve attention.” In characterizing Nazi rap groups as inconsequential, Kage reminds us of a potentially more challenging aspect of censorship—censoring underground and unpopular groups who often remain outside the mainstream.

The effectiveness of the German youth protection law is an important matter for debate. Pohl, Straiger, and Kage all recall their experiences with an explicit song of their childhood—“Claudia”—involving a girl engaging in sexual activities with her dog. “We thought it was fucking funny,” says Kage, “and the fact that it was banned just drew more attention to the music, no matter how juvenile it seems now. You can’t protect the youth because they’re going to find the material anyways. And because the more absurd and out there it is, the more it’s interesting.” Straiger and Pohl also remember being drawn to that song because it was forbidden. 

Eisenberg echoes the childhood experiences of Kage, Pohl, and Straiger and further explains that censoring music accomplishes the opposite of its goals. “Censorship only makes the music more enticing. Forbidden music is insanely popular, especially among youth who are already against the state.” Therefore, by attempting to keep youth from allegedly dangerous music, Eisenberg believes that the state only further pushes them towards it and the ideals the music supports. Kage even suggests that certain musical artists use censorship as a marketing tool to spark youth interest. This phenomenon, it seems, is an unintended consequence of the state’s censorship laws. Not surprisingly, none of these interviewees advocate harsher censorship controls, even for Nazi music. Instead, artists like Kage have a different approach to combating troubling and unsettling music. “If I had a record label,” Kage says, “I wouldn’t play Nazi music, but I also wouldn’t ban it. That’s democracy. Maybe it’s even better if they put it out so that we can respond to it. We of course have the better arguments.” For Kage, music censorship is not only a fruitless endeavour. It is essentially undemocratic. 

Unconstitutional Symbols

Music is not the only art form affected by censorship. The visual arts—and in particular, visual symbols—are also an important medium affected by freedom of speech law. German Judge Dirk Reuter has spent a great deal of his career studying the affects of censorship, and is an expert on unconstitutional symbols. As previously mentioned, German law forbids the use of symbols tied to forbidden groups, like the Nazi swastika. Symbols, Reuter says, hold a particular power in the public eye. “A symbol is perhaps the most powerful political tool, certainly more powerful than written political word. …When one sees a symbol, he sees in it what he wants. One can forget those aspects of a political or social party he doesn’t agree with and only have the symbol represent what speaks to him.” In this way, symbols are political unifiers; they allow all supporters to come together under one general idea, rather than a specific policy. It is for this reason, Reuter claims, that symbols like the swastika should be banned. If these symbols were still allowed in a public arena, he argues, it would be far too easy to ignite extremist political views and activity. As seen time and time again, Germany’s limitations on free speech and expression are meant to temper unwanted political activity and ideology. The banning of certain political symbols is no different. 

It might seem that a swastika is an obvious example of a symbol that would be banned under German law, but since no specific symbols are defined in the law, even the case of the swastika is complicated. In June 2005, for example, a German student was charged by a federal state court for wearing what was deemed an unconstitutional symbol when he displayed an antifascist sign: a crossed-out swastika. He was fined and sentenced to perform community service, and the distributor of these crossed-out swastikas was also fined. The courts ruled that a swastika in any form (crossed-out or not) still refers to the Nazi Party and should not be displayed. Claudia Roth, former chairwoman of the German Green Party and current member of the German Parliament for the Greens, responded by purposefully wearing a crossed out swastika; she chose to bring her case to court to fight against what she thought to be an unjust act. Reuter shares Roth’s outrage. “Banning the antifascist sign would be wrong,” he says. “People should have the right to fight for what they believe in. … Banning the symbol would also in a way support the Nazi.” 

This case demonstrates the danger of censorship. Laws banning unconstitutional symbols were written to forbid dangerous political ideals from spreading among the public, but as shown in this case, these same laws also have the power to make fighting against these dangerous ideals impossible and, paradoxically, illegal. Here lies the central argument for having unlimited free speech. 

Conclusions: Where does Freedom of Speech go from Here?

“The law is a living organism. If it’s working correctly, it changes with the times.” These were the words of Sebastian Mueller, when asked what direction he thought free speech would take in the future. For Judge Reuter, this question was simply impossible to answer. “Who knows?” he responded. Perhaps recent events in Bavaria are a good indicator. In June 2006, Edmund Stoiber, Prime Minister of Bavaria, made a call to his constituents for harsher blasphemy laws, which would essentially put further restrictions on free speech. This initiative could be seen as a turn towards a conservative era in Germany, but both Mueller and Eisenberg assert that Stoiber’s view are shared by few—and are unlikely to have much political or legislative success. 

Perhaps these laws are stable and will change very little in future. The majority of the people we surveyed were content with the free speech laws in Germany—including even their limitations. This belief, however, does not mean that Germans place any less value on their right freedom of speech; quite to the contrary, the principle of freedom of speech is held in the highest esteem. The German people’s content is based upon their acceptance of the need to balance all rights, such as human dignity, that are protected by the German Constitution. Furthermore, many member of the media repeatedly told us that legal censorship or limits on free speech almost never affects them. Self-censorship as a result of personal responsibility and societal pressures, factors that are outside the realm of law, are what truly affect the media today.

While it seems that most Germans are happy with the current state of the law, the views of Eisenberg, Farin, and music personalities Straiger, Kage, and others remain an important part of the debate. As we have seen, censorship and limits to free speech are not always productive, and in the music world, the youth protection laws have, instead of keeping adolescents from dangerous material, encouraged them to seek it out. Furthermore, censorship of certain political views and symbols can allow these views to gain new life beneath the surface, without any possibility of resistance. The Claudia Roth case presents a perfect example of what can happen when censorship laws are applied blindly, and an ambiguous law with the power to censor symbols perceived to be dangerous also holds the power to censor symbols with the potential to benefit society. One survey respondent, defending unlimited free speech, eloquently articulates this need for unrestricted dialogue in a free society. “The restriction of freedom of speech is a restriction of one’s horizon. Who can decide what’s right or wrong?” 

 

References

 

Interviews 

Ismahan Alboga, German-Turkish Journalist, June 19, 2006

Johannes Eisenberg, Lawyer, June 22, 2006

Klaus Farin, Archiv der Jugendkulturen, June 26, 2006

Jan Kage, Author/Rapper/ Activist, June 26, 2006

Sebastian Müller, Deutsches Institut für Menschenrechte , German Institute for Human Rights, June 21, 2006

Rosa von Praunheim, Filmmaker/ Activist, June 24, 2006 (email correspondence)

Marcus Pohl, Television Journalist, June 22, 2006 

Justice Dirk Reuter, Judge, June 23 2006 ( phone interview)

Markus Straiger, Hip-hop record label Royal Bunker, June 22, 2006

Websites

Wikipedia: www.wikipedia.org (topics researched : Holocaust Denial, Ernst Zundel, Life Runes, David Iriving, Censorship) ( 27 June 2006)

Anti-Defamation League: www.adl.org ( 27 June 2006)

The History and Origin and Runes: www.tarahill.com/runes/runehist.html ( 27 June 2006)

EuroDocs, English Euopean Documents: eudocs.lib.byu.edu/index.php ( 27 June 2006)

Survey

Informal Survey data conducted on 20 German participants at Prenzlauer Berg bar, June 20, 2006

Literature

Siem, Roland and Spiegel, Josef. Zensiert Diskutiert Unterschlagen. Münster:Verlag für Kulturwissenschaft , 2004.

Online Article

Götsch, Antonia. Vor Gericht wegen eines Anti-Nazi-Symbol .23 März 2006. Spiegel Online, www.spiegel.de/unispiegel/wunderbar/0,1518,407112,00.html ( 27 June 2006)

 

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