Newsgroup: it.politica.destra
Titolo: E' reato anche battere le mani :-((((

Mezzo milione di tedeschi sono andati a vedere il film su Hitler. "Der
Untergang" (il crepuscolo) è stato il film più visto nel suo primo fine
settimana nelle sale.
In un cinema di Berlino  due neonazisti hanno applaudito il dittatore. La
polizia li ha arrestati.
(reuters)
Daca
--
NG it.politica.destra - 
http://www.news.nic.it/manif/it.politica.destra.txt


Anche in Germania la democrazia avanza... Ma nel senso che ce n'è troppa!
Segr. Naz. MFL
--
www.fascismoeliberta.net


 Censorship in Germany? Never! Unless...
By Anton Mägerle
Prologue
In German history, censorship unfortunately has been more of a rule than an
exception. It was introduced 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
disappear 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) prohibits 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 thus be
suspended, at least theoretically, by everyday laws such as those of
criminal law.[4] In this respect, 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.
Furthermore, general laws may impose limits on a fundamental right only if
doing so serves to safeguard 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 publications 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 censorship, 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 German 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 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 judiciary 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 minorities, 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 population 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
possession, 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 country's particular
history.[12]
Indexing
The first step in the process of German censorship is the black-listing or
"indexing" of, for example, a book or pamphlet. This indexing is done by the
Federal Review Office for Youth-Endangering Media (Bundesprüfstelle für
jugendgefährdende Medien, BPjM).[13] Until 2002, this authority could only
become active after a complaint by, e.g., a public youth welfare department.
However, a more restrictive law introduced in 2002 now allows this authority
to index media without the need of a complaint. This indexing means that the
black-listed work may no longer be advertised and that it may not be sold or
otherwise made available to persons under 18 years of age. In practical
terms this means that the work ceases to exist for the public, as one can
then legally learn of its existence only by private means - or, alternately,
via the list of indexed works, which the BPjM regularly publishes in its
Report. By now this list includes thousands of printed, audio and
audio-visual works.[14] Once readily accessible by everybody, this Report is
now sold only to libraries, wholesalers, and retailers, and even libraries
have stopped giving free access to it, which renders the censorship
activities of this authority more and more obscure. This tendency to hide
its censorship activities was even more enhanced in 2002, when the law was
changed so that media, which are regarded to be an especially severe threat
to the mental development of young people, are now listed in secret lists.
The victims of this secret censorship are media whose content violates
German criminal law (libel, denigration of the dead, incitement to hatred,
stirring up the people), which includes basically all revisionist
literature.[15]
While the BPjM was initially created primarily to protect German youth from
pornography and the glorification of violence, it has increasingly also
engaged in the battle against politically or historically unpopular
literature. As early as 1990 Eckhard Jesse, who is today a Professor of
Sociology in Chemnitz, criticized that the BPjM had "in many ways turned out
to be a gateway for one-sided anti-Fascism"[16] and that its measures are
"difficult to reconcile with the principles of a liberal society [...],
because, on principle, in an open society the printed and spoken word may
not be stifled."[17]
Disgusting Hypocracy: The German soft porn magazine Neue Revue complains
about pornography on the Internet and defames John Ball's strictly scholarly
web site about interpretation of air photos from locations of the World War
II as "disgusting Nazi-Propaganda" (
http://www.air-photo.com
).
To date, this astonishing admission of the violation of human rights through
censorship under the auspices of the Federal Constitutional Protection
Office, which edited the contribution of Jesse, has received little
attention.
The decision of German courts in the case of the book Wahrheit für
Deutschland (Truth for Germany) has taken on a central significance where
the BPjM's practice of censorship is concerned. This book dealt in an
allegedly unacademic manner with the question of who bears the blame for
World War Two.[18] The BPjM black-listed it in the late 1970s. In 1994 the
Federal Constitutional Court declared this black-listing decision
unlawful,[19] but the BPjM promptly re-indexed the book on slightly reworded
grounds.[20] The author's appeal against this, as well as his complaint to
the Administrative Court of Cologne, were successful. According to the
verdict the BPjM had failed to prove that the book posed a danger to the
young people who might read it:
"The BPjM fails to realize that it is precisely the possibility for open
debate among different views which furthers the critical abilities of young
people, and this demands free and unfettered discussion. Besides instruction
in historical events, this requires particularly the critical examination of
divergent views. In its considerations the BPjM has completely disregarded
that this [...] can (perhaps) protect young people much more effectively
from susceptibility to distorting portrayals of history than indexing can,
which latter may even endow such opinions with a justified attraction."[21]
However, this verdict, as well as the Federal Constitutional Court's
previous verdict, also indicate that these principles do not apply if it is,
for example, the historiography about the fate of the Jews in the Third
Reich that is questioned. Such questioning, the argument goes, not only
represents a scientifically blatantly incorrect opinion, it also glorifies
National Socialism and disparages the Jews as a group. This does not by any
means require that the publication in question verbally attacks the Jews or
identifies itself with National Socialist ideology. Not even an open
declaration of sympathy with the Jews and a condemnation of National
Socialist transgressions in other respects will serve in the publication's
favor if the factual nature of the Holocaust is questioned at even one
single point in the work. German courts consider even one such occurrence to
be adequate proof of a glorification of the National Socialist system and of
an intention to slander the Jews.
To date, appeals against the black-listing of "Holocaust-denying" books have
been uniformly unsuccessful, since German courts refuse all motions to bring
evidence in such trials.[22] Documentation, however, is very fragmentary in
this context. Older books which dispute the factuality of the Holocaust -
such as Geschichte der Verfemung Deutschlands (History of the Defamation of
Germany),[23] Hexeneinmaleins einer Lüge (Magic Square of a Lie),[24]
Feuerzeichen (Fire signal)[25] or Die 2. babylonische Gefangenschaft (The
2nd Babylonian Captivity)[26] - are not to be found on the Index of the
BPjM. On the other hand, one of the first books of this genre - a book that,
regarding its style, must certainly be accorded scientific and academic
credit, namely, Der Jahrhundertbetrug[27] (The Hoax of the Century) - was
black-listed as early as spring 1979.[28]
A work issued by the publisher Kritik-Verlag, lately of Denmark, has
achieved fame at least indirectly. In the early 1970s this publisher issued
a brochure titled Die Auschwitz-Lüge (The Auschwitz Lie), in which a former
German soldier described his experiences in Auschwitz, which are
diametrically opposed to those recounted in the well-known eyewitness
testimony.[29] At least in Germany the title of this publication became the
embodiment of what is otherwise known less polemically as Holocaust
revisionism, i.e., the thesis that there was no Third Reich policy of
extermination of the Jews. A portrait of Thies Christophersen, the
brochure's author, who was prosecuted in Germany and had fled abroad, was
used in 1995 by Amnesty International as advertisement for free speech
because even the most controversial of all opinions, namely the one that
disputes the Holocaust, ought to be protected by the human right to freedom
of speech.[30] The publication was not indexed until 1993, fully 20 years
after its first publication.[31]
Since the 1994 tightening of criminal law no change has become apparent in
the BPjM's decision-making process, and neither is any change necessarily to
be expected, since the BPjM proceeds in accordance with the Law for Youth
Protection (Gesetz zum Schutz der Jugend, or GjS), not with criminal law.
Confiscations to 1994
The second stage of German censorship is the so-called confiscation (or
seize-and-destroy) stage. This stage hardly registers with the public at
all, and even Professor E. Jesse, whom we quoted earlier, seems either not
to be aware of it or to ignore it. The confiscation of a publication takes
place on the order of a court. What happens to the confiscated copies of
such a publication is not quite clear, but it probably varies with the
police station in charge. One publisher who is quite frequently the target
of such book confiscations reported that he had been told that the books are
burned under police supervision.[32] In one case the press reported that
confiscated literature is being burnt in waste incinerators.[33]
According to information from the German Federal Government, and unlike for
indexed works, there is no office or authority which publishes an even
remotely complete list of confiscated books; similarly, the confiscation
orders issued by the courts are not published anywhere.[34] Certainly every
court that orders or revokes the confiscation of a publication is required
to communicate its decision to the Federal Criminal Investigation Office
(Bundeskriminalamt), which therefore ought to have a complete and current
list, particularly as it serves the courts as information central regarding
confiscation orders already issued.[35] However, these confiscation orders
are published only every now and then in the Bundeskriminalblatt, a
publication not readily accessible to the public. What goes for the public's
review of black-listing does not go for the actual confiscation of the works
in question. In this respect the public is left completely in the dark.
Although pornographic or pro-violent publications are also affected by
confiscations, these are not discussed here, since the destruction of
political or historical publications is a much more explosive issue from a
human-rights point of view.
Up to 1994 it was still possible to keep track of all the confiscated
publications with political or historical content. The most spectacular case
was no doubt the confiscation of the revisionist book Der Auschwitz-Mythos
(The Auschwitz Myth). Due to the book's 'Holocaust-denying' theses, the
author, a former judge, was stripped of his doctorate, and his pension was
reduced.[36]
Another interesting case are the confiscations of the books published by the
revisionist Jew Joseph Ginsburg, under the pseudonym J. G. Burg. His
Holocaust-denying books also fell victim to German book burning, even
though - being a Jew, and in light of the contents of his writings - he
could hardly be accused of anti-Semitism.
Germany today:
105,678 Criminal Prosecutions
Because of "Thought Crimes"
During the Last Ten Years:
Year
Right
Left
Foreign
Sum
1994
5,562
185
235
5,982
1995
6,555
256
276
7,087
1996
7,585
557
818
8,960
1997
10,257
1,063
1,029
12,349
1998
9,549
1,141
1,832
12,522
1999
8,698
1,025
1,525
11,248
2000
13,863
979
525
15,367
2001
8,874
429
353
9,656
2002
9,807
331
467
10,605
2003
9,692
431
1,340
11,463
Total:
90,395
6,397
8,886
105,678
. Right: "Offenses with right wing extremist background", that is:
"Propaganda Offenses" and "Stirring up the People" . Left: "Offenses with
left wing extremist background", generally referred to as "other offenses"
. Foreign: offenses committed by foreign extremists, mainly against the
German law of organizations ("Vereinsgesetz") by Kurds in the prohibited
Kurdish Liberation Army PKK[37]
Especially right-wingers are
persecuted in Germany.
Up to the winter of 1996, and where political and historical publications
are concerned, the BPjM itself had listed the confiscation of only a few
issues of the Swiss-based revisionist periodical Der Eidgenoss. The various
issues of the revisionist periodical Historische Tatsachen (Historical
Facts), on the other hand - which have long been subject to confiscation,
and which are published by the same publisher whose book Wahrheit für
Deutschland the BPjM has now been trying for over 20 years to ban - are not
mentioned.[38] It was not until the spring of 1997 that the BPjM updated its
list, particularly with four books by the Swiss revisionist author Jürgen
Graf. With one exception, however, these books had all been confiscated
before late 1994, and one had already been de-indexed again in 1995.[39] The
BPjM itself is thus even less clear on the state of confiscations than is
the author of the present article.
Confiscations after 1994
This 'moderate' confiscation policy changed radically after the revised §
130 StGB took effect on December 1, 1994. Even though the time from December
1, 1994 (the date the new § 130 StGB came into force), and mid-1997 (the
authorship date of this article) is only two and a half years, the list of
books ordered seized and destroyed during this period is about as long as
that of the books which to our knowledge were confiscated in the previous 45
years of the Federal Republic of Germany's existence.
It is important to note that in most instances the court case reference
numbers given refer not only to the confiscation proceedings directed at the
books themselves, but refer also to concomitant criminal trials of authors,
editors, publishers, booksellers, sometimes even against the printers and
multiple-copy purchasers of the publications in question. Criminal
prosecution of the purchasers of prohibited publications is initiated even
if the books were bought at a time when they were not yet prohibited. In
actual fact almost all such trials are of this retroactive nature, i.e.,
they deal with cases where books were bought before they were confiscated,
since as a rule it is no longer possible to obtain the books at all after
they have been violently withdrawn from the market.
In reply to an inquiry the Ministry of Justice of the Federal Land of
Baden-Württemberg has stated that in the time between the end of 1994 and
mid-1996, in Baden-Württemberg alone, there were 32 cases of preliminary
proceedings being instituted against private individuals for their multiple
purchases of such books.[40] Projected to cover all of Germany, this figure
indicates some 250 to 300 such criminal cases.
Revisionist books which, to our knowledge, have not even been black-listed
yet - such as Feuerzeichen or Die 2. babylonische Gefangenschaft - were not
the only victims of this new wave of censorship. Books with strictly
political content, such as In Sachen Deutschland (In the Matter of Germany)
or Wolfsgesellschaft (society of wolves), were also destroyed. Both these
books deal in an unpolemic but rejective manner with the problems of
multiculturalism and the supposed incompetence of German politicians.
However, since this openly negative attitude allegedly represents incitement
against the foreigners in Germany and against the establishment political
parties and their representatives, in other words since the books endangered
the internal peace of the Federal Republic, they were confiscated.
It is impossible to discuss every prohibited book adequately within the
scope of this article. We shall therefore focus on only one case, namely the
first seize-and-destroy order that was issued after the legal revision of
December 1, 1994. This order was carried out in late March 1995 against the
scientific handbook Grundlagen zur Zeitgeschichte (German original of
Dissecting the Holocaust), which deals very critically with the Holocaust.
Since then, 1,000 persons, primarily from the ranks of academia, have spoken
out publicly in support of de-indexing this book,[41] and two distinguished
historians have even testified in court that the book is scientific and
academic in nature and thus ought to be protected under Article 5 Section 3
of the Constitution, where freedom of research is guaranteed without
limitations.[42]
Meanwhile, the Ministry of Justice of Baden-Württemberg has announced that
this constitutional provision is not sacrosanct. The Ministry has ruled that
destruction of a scientific work is permissible if said work unduly
restricts the fundamental rights of a third party.[43] This interpretation
is not new, as the German Constitutional High Court decided already in 1985
in the matter of Wilhelm Stäglich/Der Auschwitz-Mythos, that the freedom of
science is no longer granted when its results allegedly attacks the human
dignity of Jews.[44] The implications of this are that scientists may not
postulate certain theses and may not question or seek to refute certain
establishment theses when this perhaps runs counter to Jewish interests.
This ruling of the German Constitutional High Court is quite obviously a
violation of human rights, for this interpretation strikes at the heart of
the fundamental right to freedom of research, i.e., the right to freedom of
choice in the selection of one's theses and the right to openness of
research findings (cf. Karl R. Popper[45]). Publications of subject
specialists have confirmed that this approach is clearly
unconstitutional.[46]
The trial concerning the book Grundlagen zur Zeitgeschichte - that is,
concerning the freedom of its authors, editor, publisher, printer, sellers
and buyers - will likely drag on for several more years and is indeed a
crucial case which will contribute significantly to shaping the future
course of human rights in Germany.
Personal Fates
Naturally, every trial for printing, publishing or disseminating a
prohibited work also involves at least one personal fate. Exactly how many
persons have been punished in recent years for their will to disseminate
publications which were outlawed afterwards is not known; the aforementioned
figure of several hundred preliminary proceedings, however, would indicate
that the number is substantial. In the following we shall touch on only four
of the most prominent examples from recent years. (The corresponding court
case reference numbers may be found with the entries for the books in
question, in the appended list of confiscated books.)
First and foremost, we would mention the case of Günter Deckert, the former
Federal Chairman of the German right-wing Nationaldemokratische Partei
(National Democratic Party). This case even attracted international
attention. As early as 1994 Deckert was sentenced to two years' imprisonment
for having interpreted, in an assenting manner, an American speaker's
English-language presentation which disputed the mass extermination of the
Jews in Auschwitz.[47] This case has been partially recounted in the book
Der Fall Günter Deckert (The Case of G.D.), co-edited by Deckert
himself.[48] This book, in which Deckert supported his revisionist views
with new arguments, as well as the sale of 50 copies of the revisionist
anthology Grundlagen zur Zeitgeschichte, resulted in renewed proceedings
against him, the bottom line of which was that he was sentenced to another
20 months' imprisonment in spring 1997. He is supposed to be released from
jail in August 2000 - after almost 5 years.
The second-worst fate struck a long-time publisher from Vlotho, the
academically accredited political scientist Udo Walendy. In December 1996 he
was sentenced, in his last possible appeal, to 15 months' imprisonment for
four issues (nos. 1 (2nd ed.), 59, 60 and 64) of his revisionist series
Historische Tatsachen, a series which includes 77 issues to date. In May
1997 the County Court of Herford struck a supplemental blow, as it were, by
sentencing Walendy to yet another 14 months' imprisonment for his issues 66
and 68. Subsequently, Walendy's license as a publisher was withdrawn in
September 1999, so it is no longer permitted to Herrn Walendy to publish or
distribute any media.[49] This case shows especially clearly how German
censorship has escalated since the introduction of the relevant legal
revisions in late 1994: while none of Walendy's issues had had any criminal
consequences for the author prior to the revision, fully six of the twelve
issues that appeared afterwards resulted in trials and convictions, even
though neither the style nor the content of the periodical had changed in
any way.[50]
Our third example is the fate of academically accredited chemist Germar
Rudolf, who also publishes under the pseudonym Ernst Gauss. For drawing up
and disseminating a chemical and technical expert report known as Das
Rudolf-Gutachten (The Rudolf Report), which claims to disprove the mass
gassings in Auschwitz, he was sentenced in June 1995 to 14 months'
imprisonment and has since been prosecuted and persecuted for authoring or
editing various revisionist books and brochures (for example, Grundlagen zur
Zeitgeschichte, Prof. Dr. Ernst Nolte: Auch Holocaust-Lügen haben kurze
Beine, Auschwitz: Nackte Fakten, Kardinalfragen zur Zeitgeschichte, various
issues of the Journal Vierteljahreshefte für freie Geschichtsforschung). He
avoided his first prison sentence as well as the trial for editing the book
Grundlagen zur Zeitgeschichte by fleeing into exile.[51] Wigbert Grabert,
the publisher of the book Grundlagen zur Zeitgeschichte, was unable to avoid
his punishment, and was fined DM 30,000.00.
And last but not least, we would mention the case of Hans Schmidt, an
American citizen born in Germany. He is the head of a US-based right-wing
organization that claims to represent the interests of the German-Americans
in the United States. In this capacity he has for many years annoyed
numerous prominent persons in Germany with Open Letters. When Schmidt
visited Germany in the summer of 1995, he was held in custody, awaiting
trial, for more than five months, since one of these Open Letters, in which
he had described the German elites as "infested by Jews and Freemasons",
allegedly constituted incitement of the people. Schmidt avoided prosecution
by fleeing to Florida.[52]
The fact that there is no publicly accessible list of confiscated books
makes it difficult in some cases to determine whether or not a confiscation
order exists. Sometimes one only learns of confiscations by the various
public prosecutors' offices in the course of full-blown criminal
investigations. If proceedings are then stopped or abandoned for reasons
other than supposed innocence (for example, a legally valid conclusion to
the proceedings, lapse, or a consolidation with other proceedings,
frequently accompanied by the withholding of evidence such as the
confiscated books), the legal state of the confiscation proceedings - i.e.,
with respect to the 'weapon', the book - often remains unclear. And quite a
few of the censored publishers and authors are not very co-operative, as
they do not want to see their case dragged into the public. They fear damage
to their reputation, so they stay silent, too. Obviously, the general
confusion regarding the law in matters of German book confiscations is a
constant uncertainty factor for every publisher, bookseller and book buyer.
For this reason a trend towards preventive self-censorship is becoming
increasingly manifest in Germany: to avoid the incalculable risk of criminal
prosecution, one is less and less inclined to pick up politically or
historically hot potatoes which a judiciary might choose to single out as
being right-of-center. This silent, hidden censorship is admittedly the most
effective and thus the most dangerous one that can be. That in the long term
this must bring catastrophic effects on social and political life in Germany
seems not to interest anyone.
Now it does not really matter what one thinks of the theses advocated by
this group of persons. The fact is that the human right to freedom of speech
must be indivisible, as Professor R. Dworkin already put it in Index on
Censorship.[53] And since none of the cases described here involved any
calls to violence, instructions for violent acts, or trivializations of
violence - at most, violence is disputed for certain historical events, or
portrayed as less than generally usual in other accounts - the harshness
with which the German judiciary proceeds against these dissidents is
incomprehensible and unjustified.
If the cases described herein affected any other persons or groups, then
there would be a worldwide outcry in the press, denouncing such human rights
violations. But since the victims are after all only the right ones, the
matter is ignored and hushed up. But from an objective perspective there is
no difference between, for example, Communists and Jehovah's Witnesses being
imprisoned in the Third Reich for their beliefs, and right-wingers and
Revisionists being thrown behind bars in the Federal Republic of Germany
today for the sake of their publications. Human rights remain human rights.
They go for leftist radicals just as for right-wingers.
Considering the results of a more comprehensive, highly recommended study
about the deterioration of civil rights in Germany in general,[54] one must
conclude that Germany's tradition of free speech is rather underdeveloped.
The general German attitude behind this - 'tough measures are justified to
prevent the repetition of this dark (Third Reich) chapter of our history' -
is understandable, but it is wrong, too, since it leads to the paradox and
perverse situation where, in order to prevent the persecution of minorities
and the burning of books, minorities are persecuted and books are burned.
This is exactly the situation we are facing in Germany today. In light of
her history, the only correct position for Germany to take would doubtless
be the strict and impartial granting of human rights for everyone - and that
is not to suggest that this time they ought to be denied the other side for
a change, either. Obviously, where human rights are concerned, Germany is
caught in a historical vicious circle, or, to use a different metaphor: the
pendulum is swinging wildly from one extreme to the other. It is high time
that it came to rest in the middle.
Notes
[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,
Toppenstedt (Germany) 1983/84 (Deutschen Verwaltung für Volksbildung in der
sowjetischen Besatzungszone/Ministerium für Volksbildung der Deutschen
Demokratischen Republik (ed.) Liste der auszusondernden 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 Besatzungszone 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
.
[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.), Grundgesetz 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.
[9] Karl Lackner, Strafgesetzbuch, 21st ed., Munich, 1995, MN 8a regarding
§130; the criticisms of this article are legion; cf. Hans A. Stöcker, Neue
Zeitschrift für Strafrecht, 1995, pp. 237-240; Manfred Brunner, Frankfurter
Allgemeine Zeitung, Aug. 17, 1994; Ernst Nolte, ibid., Sept. 8, 1994; Ronald
Dworkin, Tageszeitung, May 17, 1995; Horst Meier, Die Zeit, Sept. 15, 1995;
Horst Meier, Merkur 12/1996: 1128-1131.
[10] Theodor Leckner, in Adolf Schönke, Horst Schröder (eds.),
Strafgesetzbuch, 25th ed., Beck, Munich 1997, p. 1111.
[11] Ibid., p. 1103.
[12] Federal Minister of Justice Edzard Schmidt-Jorzig, Ruge. NeunzehnZehn:
"Ehrenschutz für Soldaten - Gesetz gegen die Meinungsfreiheit?", 3-SAT,
March 10, 1996, 19:10; same, Mut, no. 351, 11/1996: 32-35; Wolfgang
Schäuble, Frankfurter Allgemeine Zeitung, April 24, 1996, p. 41.
[13] Until 2002, this authority carried the name Bundesprüfstelle für
jugendgefährdende Schriften, BPjS.
[14] The latest "comprehensive listing", Gesamtverzeichnis indizierter
Bücher, Taschenbücher, Broschüren und Comics, Stand 30.4.1993, includes
about 2,500 titles. Some 120 more have since joined the ranks. The list of
indexed video tapes is about the same length. Added to this are several
hundred electronic sound and data carriers. The current indexing lists are
published in the periodical of the Federal Review Office for
Youth-Endangering Publications, BPjS aktuell. To order: Bundesprüfstelle,
Postfach 26 01 21, D-53153 Bonn, Germany.
[15] See the German government website 
www.bmfsfj.de
 for more information.
[16] Eckhard Jesse, "Streitbare Demokratie und 'Vergangenheitsbewältigung'",
in Bundesamt für Verfassungsschutz (ed.), Verfassungsschutz in der
Demokratie, Carl Heymanns Verlag, Cologne 1990, p. 304, cf. p. 289.
[17] Ibid., p. 287; cf. also p. 303: "Liberal society may not stifle or
suppress the free exchange of ideas and points of view."
[18] Udo Walendy, Wahrheit für Deutschland, 3rd ed., Verlag für Volkstum und
Zeitgeschichtsforschung, Vlotho 1976; engl.: Truth for Germany, ibid.
[19] Ref. 1 BvR 434/87.
[20] JMS-Report, February 1/1995, pp. 52-54.
[21] Ref. 17 K 9534/94.
[22] In article 244 the German Code of Criminal Procedure provides for the
option to refuse evidence if the point at issue is self-evident, which is a
fundamental premise on the part of the courts, where the Holocaust is
concerned ("judicial notice").
[23] Franz J. Scheidl, self-pub., 6 vols., Vienna 1967. Most of the books
mentioned here can be found on the web site 
vho.org
, some of them even in an
English translation (at least linked to).
[24] Emil Aretz, Verlag Hohe Warte, Pähl 1973.
[25] Ingrid Weckert, Grabert, Tübingen 1981; ordered seized and destroyed in
1995; in English: Flashpoint: Kristallnacht 1938, Institute for Historical
Review, Newport Beach (CA) 1991.
[26] Steffen Werner, 2nd ed., Grabert, Tübingen 1991; ordered seized and
destroyed in 1995.
[27] Arthur R. Butz; in German: Verlag für Volkstum und
Zeitgeschichtsforschung; in English: The Hoax of the Twentieth Century,
Institute for Historical Review, Newport Beach (CA) 1976, 1992.
[28] Gesamtverzeichnis indizierter Bücher, Taschenbücher, Broschüren und
Comics, Stand 30.4.1993, p. 8: Index No. E 2765, Bundesanzeiger no. 95 of
May 22, 1979.
[29] Thies Christophersen, "Die Auschwitz-Lüge", Kritik issue no. 23,
Mohrkirch: Kritik Verlag, 1973, available today from Vrij Historisch
Onderzoek, Berchem Belgium.
[30] The leftist Tageszeitung (Berlin) reported on this in a surprisingly
fair manner, Dec. 12, 1995.
[31] Bundesanzeiger of Sept. 30, 1994.
[32] Wigbert Grabert, of Grabert Verlag in Tübingen, to the author.
[33] Abendzeitung (Munich), March 7./8., 1998: "The remaining copies are
occasionally being burnt in a wast incinerator.", regarding R. J. Eibicht,
Hellmut Diwald; cf. Zur Zeit (Vienna), no. 9/1998 (Febr. 27): "65 years ago
this happened publicly, today this is being achieved on the quiet in waste
incinerators."
[34] Admission of the Federal Government, Bundestagsdrucksache 13/4222,
March 26, 1996, p. 6. Germar Rudolf tries to compile a list of books
confiscated in Germany, see 
vho.org/censor/Censor.html
. Due to lack of
official information, this list is necessarily incomplete. Links to
confiscated books that are available online can be found there, so no
further URLs are given for them in this article's footnotes.
[35] Richtlinien für das Strafverfahren und das Bußgeldverfahren (Guidelines
for penal procedure and fining procedure), No. 208, II + IV; according to
Gerd Pfeiffer (ed.), Karlsruher Kommentar zur Strafprozeßordnung, 3rd ed.,
Beck, Munich 1993, p. 2174.
[36] Cf. Wigbert Grabert (ed.), Geschichtsbetrachtung als Wagnis, Grabert,
Tübingen 1984; see also DGG, "Bundesverwaltungsgericht im Dienste der
Umerzieher. Erstmalig Doktorgrad aus politischen Gründen aberkannt", in
Deutschland Geschichte und Gegenwart 36(3) (1988), p. 18 (online:
vho.org/D/DGG/DGG36_3_2.html
); DGG, "Unglaubliches Urteil im Fall Dr.
Stäglich", ibid., 36(1) (1988), p. 7 (online: .../DGG36_1_1.html); DGG,
"Vernunft wird Unsinn ... Späte Rache für den 'Auschwitz-Mythos'", ibid.,
31(1) (1983), pp. 19f. (online: .../DGG31_1.html); DGG, "Ende der
Wissenschaftsfreiheit?", ibid., 29(3) (1981), p. 38 (online:
.../DGG29_3_1.html).
[37] Bundesministerium des Inneren (ed.), Bundesverfassungsschutzbericht
(Report of the German Office for the Protection of the Constitution),
Bundesdruckerei, Bonn 1995-2002, quoting data as provided by the German
Federal Bureau of Investigation (Bundeskriminalamt). Since the German
government keeps changing the online addresses of their publications, only
the addresses of the two latest reports are given here:
2001: 
www.bmi.bund.de/Annex/de_20737/Verf...ssefassung.pdf
;
2002: 
www.bmi.bund.de/Annex/de_24336/Verf...richt_2002.pdf
.
[38] However, the black-listing of two of these issues is mentioned:
Historische Tatsachen no. 23 ("Zigeuner bewältigen eine 1/2 Million"),
Decision No. 4208, Bundesanzeiger 204 of Oct. 31, 1991, and Historische
Tatsachen no. 36 ("Ein Prozeß, der Geschichte macht"), Decision No. 4029,
Bundesanzeiger 64 of March 31, 1990.
[39] Jürgen Graf, Auschwitz. Tätergeständnisse und Augenzeugen des
Holocaust, Neue Visionen, Würenlos 1994; confiscated by the Mannheim County
Court, 41 Gs 2626/94, released by the Mannheim District Court, 5 KLs 7/95.
[40] Landtag (state parliament) of Baden-Württemberg, 12th session, Paper
12/334, Parliamentary question by Rep. Michael Herbricht REP, "Appell der
500" Stuttgart, Aug. 27, 1996. Position of the Baden-Württemberg Ministry of
Justice, Stuttgart, Sept. 23, 1996, Ref. 4104 - III/185, Dr. Ulrich Goll.
[41] "Appell der 100 · Die Meinungsfreiheit ist in Gefahr!", Frankfurter
Allgemeine Zeitung, May 17, 1996; in the Stuttgarter Nachrichten and the
Stuttgarter Zeitung on July 19, 1996, with 500 signatures; in the
Westfalen-Blatt on Sept. 13 and 18, 1996, with 1,000 signatures each.
[42] Expert reports by Prof. Dr. Ernst Nolte and Dr. Joachim Hoffmann,
Tübingen County Court, Ref. 4 Gs 173/95; the latter was published in
Vierteljahreshefte für freie Geschichtsforschung, 1(3) (1997), pp. 205ff.;
an English translation was printed in G. Rudolf, Dissecting the Holocaust,
2nd. ed., Theses & Dissertations Press, Chicago, IL, 2003, pp. 563-566
(online: 
www.vho.org/GB/Books/dth/fndHoffmann.html
).
[43] As a reaction to the appeal referred to in note 41 during the
parliamental session referred to in note 40, see IDN, "'Appell der 500' vor
Landtag", DGG 44(4) (1996), S. 9f. (online: 
vho.org/D/DGG/IDN44_4.html
);
VHO, "Zur Wissenschaftsfreiheit in Deutschland. Justizminister Württemberg:
Wissenschaftsfreiheit ist nicht existent", Vierteljahreshefte für freie
Geschichtsforschung 1(1) (1997), pp. 34-37 (online:
vho.org/VffG/1997/1/VHOWiss1.html
)
[44] Federal Constitutional Court, ref. 1 BvR 408f./83, reprinted in W.
Grabert, op. cit. (note 36), pp. 287ff.
[45] Karl Raimund Popper, Objektive Erkenntnis, 2nd. ed., Hoffmann & Campe,
Hamburg 1984.
[46] Cf. also Daniel Beisel, op. cit. (note 8).
[47] Incidentally, this American citizen, Frederick A. Leuchter, was
arrested in Germany shortly before he was to appear on a major German
television show. He fled to the United States when he was released from
pre-trial detention, to await his trial in freedom.
[48] G. Anntohn, H. Roques, DAGD/Germania Verlag, Weinheim 1995
[49] Oberkreisdirektor Herford, ref. 32/
33.31.10.
[50] U. Walendy has published a separate issue on his own case: Historische
Tatsachen no. 69: "Ausgehebelte Grundrechte", and no. 77 "'Vv'-Strafhäftling
Walendy", Verlag für Volkstum und Zeitgeschichtsforschung, Vlotho/Weser
1996/1999. Of course it is necessary, when reading this work, to distinguish
carefully between facts and the author's opinions, which are perforce
subjective.
[51] About Germar Rudolf see Wilhelm Schlesiger, Der Fall Rudolf, Cromwell
Press, London 1994 (Engl. online at 
www.vho.org/GB/Books/trc
); Herbert
Verbeke (ed.), Kardinalfragen zur Zeitgeschichte, Vrij Historisch Onderzoek,
Berchem 1996 (Engl. online at 
www.vho.org/GB/Books/cq
). Naturally, the need
to distinguish carefully between facts and the subjective opinion of the
author(s) applies in this case as well. See also online "Hunting Germar
Rudolf", 
www.vho.org/Authors/RudolfCase.html
.
[52] Hans Schmidt has also reported on this: Jailed in "Democratic" Germany.
The Ordeal of an American Writer, Milton/FL: Guderian Books, 1997, 490p.
Again, it is necessary to distinguish carefully between facts and the
author's subjective opinion. The Australian citizen Dr. Fredrick Toben
shared Schmidt's fate in spring 1999 when he traveled to Germany in order to
challenge the censorship of the German authorities. He was subsequently
arrested and sentenced; see his website at 
www.adelaideinstitute.org
.
[53] R. Dworkin, "A new map of censorship", in Index on Censorship, 1/2
(1994), pp. 9-15; cf. R. Dworkin, "Forked tongues, faked doctrines", ibid.,
no. 3 (1997), pp. 148-151.
[54] G. Rudolf, "Discovering Absurdistan", The Revisionist 1(1) (2003), pp.
203-219 (online: 
vho.org/tr/2003/2/Rudolf203-219.html
).
Dal 1994 al 2003 oltre 100.000 persone sono state perseguite in Germania per
"crimini di pensiero". Pensate che il Fascismo, spaventosa dittatura
italiana, col tribunale speciale per la difesa dello Stato dal 1927 al 1943
processò 5.619 imputati condannandone 4.596...
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