Censorship in the Federal Republic of Germany

The Federal Republic of Germany guarantees freedom of speech, expression, and opinion to its citizens as per Article 5 of the constitution. Despite this, censorship of various materials has taken place since the Allied occupation after World War II and continues to take place in Germany in various forms. According to the Reporters Without Borders Press Freedom Index, however, Germany is currently ranked 20th in the world in terms of press freedom. [ [http://www.rsf.org/article.php3?id_article=24025 Reporters sans frontières - Annual Worldwide Press Freedom Index - 2007 ] ]

During the Allied occupation of Germany, the media were controlled by the occupying forces. The policy rationales differed among the occupying powers, but there was resentment in literary and journalistic circles in many parts of the country. Undesired publishing efforts were unilaterally blocked by the occupying forces.

Since the publication of the German "Grundgesetz", there have been two kinds of censored media in Germany. The first is material that is considered offensive or indecent; such media are placed on the "Index" and restricted in their publication, and distribution to minors is illegal. The second is material that is considered anti-constitutional, dangerous to the state. The underlying concept is "streitbare Demokratie" (militant democracy) that legally hinders the rise of all anti-constitutional and thus undemocratic movements. The media concerned are banned outright, with criminal penalties for infringements. An example is the outright ban on material which supports National Socialism.

Allied occupation

During Allied occupation of West Germany in the years following World War II, all printing was subject to Allied approval. Although no formal censorship process was in placeFact|date=July 2008, the Allies -- particularly the Americans -- carefully monitored emerging literature for content they considered harmful. Sympathy with the Nazi cause and criticism of the occupation were considered worthy of censorship. (See Denazification)

The U.S. Army took control of German media. The Information Control Division of the U.S. Army had by July 1946 taken control of 37 German newspapers, 6 radio stations, 314 theaters, 642 cinemas, 101 magazines, 237 book publishers, and 7,384 book dealers and printers. [http://www.psywarrior.com/mcclure.html] Its main mission was democratization but the agenda also included the prohibition on any criticism of the Allied occupation forces. [http://www.gwu.edu/~nsarchiv/coldwar/interviews/episode-4/lochner2.html] . In addition, on May 13, 1946 the Allied Control council issued a directive for the confiscation of all media that could contribute to Nazism or militarism. As a consequence a list was drawn up of over 30,000 book titles, ranging from school textbooks to poetry, which were now banned. All copies of books on the list were confiscated and destroyed; the possession of a book on the list was made a punishable offense. All the millions of copies of these books were to be confiscated and destroyed. The representative of the Military Directorate admitted that the order was in principle no different from the Nazi book burnings. [ [http://www.time.com/time/magazine/article/0,9171,776847,00.html Read No Evil] Time magazine, May 27, 1946]

The censorship in the U.S. zone was regulated by the occupation directive JCS 1067 (valid until July 1947) and in the May 1946 order valid for all zones (rescinded in 1950), Allied Control Authority Order No. 4, "No. 4 - Confiscation of Literature and Material of a Nazi and Militarist Nature". All confiscated literature was reduced to pulp instead of burning. [Note: In August 1946 the order was amended so that "In the interest of research and scholarship, the Zone Commanders (in Berlin the Komendatura) may preserve a limited number of documents prohibited in paragraph 1. These documents will be kept in special accommodation where they may be used by German scholars and other German persons who have received permission to do so from the Allies only under strict supervision by the Allied Control Authority] It was also directed by Directive No. 30, "Liquidation of German Military and Nazi Memorials and Museums." An exception was made for tombstones "erected at the places where members of regular formations died on the field of battle."

As regards art, in the U.S. zone it was just as censored as all other media; "all collections of works of art related or dedicated to the perpetuation of German militarism or Nazism will be closed permanently and taken into custody.". The directives were very broadly interpreted, leading to the destruction of thousands of paintings and thousands more were shipped to deposits in the U.S. Those confiscated paintings still surviving in U.S. custody include for example a painting "depicting a couple of middle aged women talking in a sunlit street in a small town" [http://culturalpolicy.uchicago.edu/workshop/goldstein.html#anchor2346344] Artists were also restricted in which new art they were allowed to create; "OMGUS was setting explicit political limits on art and representation". [http://culturalpolicy.uchicago.edu/workshop/goldstein.html]

The publication "Der Ruf" ("The Call") was a popular literary magazine first published in 1945 by Alfred Andersch and edited by Hans Werner Richter. "Der Ruf", also called "Independent Pages of the New Generation", claimed to have the aim of educating the German people about democracy. In 1947 its publication was blocked by the American forces for being overly critical of occupational government. [cite web
url = http://www.nytimes.com/books/99/12/19/specials/grass-meeting.html
title = Historical Analogy
accessdate = 2007-11-04
author = Theodore Ziolkowski
date = 1981-05-17
publisher = New York Times] Richter attempted to print many of the controversial pieces in a volume entitled "Der Skorpion" ("The Scorpion"). The occupational government blocked publication of "Der Skorpion" before it began, saying that the volume was too "nihilistic". [cite web
url = http://www.literaturkritik.de/public/rezension.php?rez_id=5863&ausgabe=200304
title = Geburt als Skorpion, Tod als Papiertiger
accessdate = 2007-11-01
author = Doris Betzl
date = 2003-04-03
work = Rezensionsforum Literaturkritik, No. 4
publisher = Literaturkritik DE
language = German]

Publication of "Der Ruf" resumed in 1948 under a new publisher, but "Der Skorpion" was blocked and not widely distributed. Unable to publish his works, Richter founded Group 47.

The Allied costs for occupation were charged to the German people. The newspaper that revealed that the charges included for example the cost for thirty thousand bras was banned by the occupation authorities for revealing this. [ [http://www.independent.org/publications/tir/article.asp?issueID=47&articleID=599 Did the United States Create Democracy in Germany?] the Independent Institute]

Constitution and the Index of Harmful Materials

In May 1949, the German Grundgesetz, the new constitution, was passed and control of West Germany passed officially into German hands. Article 5 contains a section protecting freedom of expression:

:"Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship."

However, there is a limiting provision:

:"These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honor." [cite web
url = http://www.bundestag.de/htdocs_e/parliament/function/legal/germanbasiclaw.pdf
title = German Basic Law (official translation)
accessdate = 2007-11-04
author = German Federal Government
format = PDF
pages = p.15
language = English (translation)]

This provision enabled the creation of the Bundesprüfstelle für jugendgefährdende Medien, or the Federal Examination Department for Media Harmful to Young Persons. The Department is responsible for maintaining the Index of Harmful Materials. Materials on the Index are severely restricted in their sale and distribution: they cannot be sold by mail, and many materials can only be sold "under the counter". While their advertisement and marketing is censored in general, these publications themselves are not.

Items on the index include pornography, graphic media which glorify war and violence, materials considered to be anti-constitutional (such as the writings of the Red Army Faction), and material likely or intended to induce hate. [cite web
url = http://www.bundespruefstelle.de/bpjm/information-in-english.html
title = Information in English
accessdate = 2007-11-04
publisher = Bundesprüfstelle für jugendgefährdende Medien
language = English (translation)]

Material that is considered unconstitutional is also dealt with by the Bundesamt für Verfassungsschutz (Federal Office for the Protection of the Constitution) and maybe brought to trial in court. The Verfassungsschutz often operates via "V-Personen" (recruited members of unconstitutional groupings working under cover for the state) who keep track of and counter unconstitutional political movements and their projects.This concept of "streitbare Demokratie" (self-defending democracy) was developed as a late response especially to the rise of the NSDAP, but also KPD, that turned the democratic Weimar Republic into the Nazi regime.

National Socialism and Holocaust denial

German protections for freedom of ideas and expression are superseded by various provisions against "anti-constitutional" politics, which usually (but not exclusively) refers to Neo-Nazism.

National Socialist parties

National Socialism is banned outright in Germany as anti-constitutional; it is illegal to found or belong to a Nazi party. Any party considered to be National Socialist can be banned by the Bundesverfassungsgericht, Germany's highest court. Likewise, publications in support of such groups are automatically placed on the Index, and some may be banned altogether. [cite web
url = http://bundesrecht.juris.de/stgb/__86.html
title = German Penal Code (section 86)
accessdate = 2007-11-04
work = Strafgesetzbuch]

Materials which express sympathy with National Socialism, however, are a more complicated manner. Ordinarily the printing of these materials does not constitute membership of a National Socialist organization and is therefore allowed. These materials are almost always placed on the Index.

The Index also proscribes symbols that are strongly identified with the Nazi Party (such as the Swastika) or that are symbols used often by neo-Nazi successor organizations or racist organizations in general.

There is a debate about whether the German NPD is National Socialist and there have been attempts to ban it.

Mein Kampf

Printing and public distribution of Hitler's book "Mein Kampf" is not allowed due to copyright. After Hitler's death in 1945, the copyright to all his works reverted to the Free State of Bavaria, where Hitler had his official residence despite living in Berlin. These rights will expire at the end of 2015, after which the legal status of the book is dubious. [cite web
url = http://www.publishersweekly.com/article/CA6464614.html
title = Is It Time To Republish Mein Kampf in Germany?
accessdate = 2007-11-04
author = Dermot McEvoy
date = 2007-08-01
work = Publishers Weekly] Private ownership and trade is allowed so long as it does not "promote hatred or war". The lesser-known "Second Book" is legal to print and trade, but it appears on the Index.

In 1999, "Mein Kampf" was the second highest selling book on Amazon.com to addresses in Germany. The German government pressed Amazon to stop selling the book to German addresses in accordance with its ban; Amazon originally resisted, but then relented, temporarily stopping shipment to "all" non-US addresses. Later that same year, Barnes and Noble ceased sales of the book to Germany under pressure from German publishing company Bertelsmann. [cite web
url = http://www.venable.com/docs/resources/ebookmeinkampf.cfm
title = The Mein Kampf Minefield
accessdate = 2007-11-04
author = Joshua Kaufman
date = 1999-09-07
work = Legal Times]

Holocaust denial

Holocaust denial is a crime in Germany. § 130(3) of German penal code reads:

:"He who, publicly or in assembly, approves, denies, or trivializes [genocide] committed under the regime of National Socialism in a way that is suitable to disturb the public peace, is subject to imprisonment up to 5 years or a monetary fine." [cite web
url = http://bundesrecht.juris.de/stgb/__130.html
title = German Penal Code (section 130)
accessdate = 2007-11-04
work = Strafgesetzbuch]

Perpetrators of Holocaust denial can be tried in absentia and declared "persona non grata", thus being barred from entering the country. Extradition treaties as relate to Holocaust denial are subject to political asylum pleas, but a "persona non grata" who enters Germany can be immediately arrested. Furthermore, a German arrest warrant based on the offense of Holocaust denial is deemed executable in many EU states, thus, a Holocaust denier's entry into any EU state could lead to arrest and extradition to Germany (or any other state where such denial is an offense, such as Austria, and which has issued an arrest warrant).

Among those who have been charged with Holocaust denial in Germany are the following:

*David Irving, who was declared "persona non grata" and has not returned to Germany;
*Germar Rudolf, who was sentenced to prison but fled jurisdiction; he was deported from the United States in 2005;
*Ernst Zündel, received a five year prison sentence on February 15, 2007 in Germany,
*Frederick Toben, an Australian citizen, who had an appointment with a German public prosecutor in Mannheim with whom he wanted to discuss Holocaust denial; at the end of the conversation with the prosecutor, Toben was presented an arrest warrant which the prosecutor had already obtained beforehand. A German court sentenced him to a prison sentence of ten months.

See also

* Abmahnung
* Chilling effect

References