Banned in Berlin

Literary Censorship in Imperial Germany, 1871-1918

Gary D. Stark

• Publisher: Berghahn Books
• Year: 2009
• ISBN:
  9781845459031
• Edition: 1
• Topic: History
• Subtopic: German History
• Index: History

Imperial Germany's governing elite frequently sought to censor literature that threatened established political, social, religious, and moral norms in the name of public peace, order, and security. It claimed and exercised a prerogative to intervene in literary life that was broader than that of its Western neighbors, but still not broad enough to prevent the literary community from challenging and subverting many of the social norms the state was most determined to defend. This study is the first systematic analysis in any language of state censorship of literature and theater in imperial Germany (1871–1918). To assess the role that formal state controls played in German literary and political life during this period, it examines the intent, function, contested legal basis, institutions, and everyday operations of literary censorship as well as its effectiveness and its impact on authors, publishers, and theater directors.

Chapter 1

THE LAW

The police want to know everything, everything.

—Der Wirt, in Lessing, Minna von Barnhelm, Act II, scene 2

Before the law, all citizens are equal—but not, it seems, before the censors.

—Otto Brahm, director of the Berlin Freie Bühne,
Deutsches Theater, and Lessing-Theater

Like their counterparts throughout Europe and North America in the nineteenth century, anyone engaged in literary or theatrical life in the German Empire did not enjoy absolute freedom to say, publish, or publicly perform whatever they wished. The law limited what subject matter writers could treat and the language they could use; it shaped and restricted institutions that mediated between writers and the public, such as the theater, press, and book trade; and it helped determine which audiences had access to which literary works or performances, and under what conditions. Some legal constraints were enacted by a popularly elected legislature, some were simple administrative (or, after 1914, military) edicts, and some, surprisingly, were requested by publishers or theater managers seeking more predictability, economic security, or legal protection. The laws restraining imperial literary life were uneven and at times confusing: different laws applied to different media, while the empire's federal structure ensured wide local variation in their nature, enforcement, and consequences. For these reasons and others, censorship laws were the subject of much public debate, especially after 1890, as popular and official forces struggled to standardize, broaden, narrow, tighten, or loosen them. Only war in 1914 and revolution in 1918 brought substantial changes to Germany's patchwork censorship system.

Control of the Printed Word

During the first half of the nineteenth century, the printed word was one of the most ruthlessly censored forums of public expression in Germany and other European states; by the last quarter of the century it was one of the freest from state control. Extensive government restrictions such as licensing and prior censorship shackled the press and book trade in most nations until 1848, but thereafter liberal reformers progressively dismantled these controls, especially prepublication censorship. By the 1860s there was substantial (but not total) freedom of the press and book trade in Great Britain, Sweden, Norway, Denmark, the Netherlands, Belgium, Switzerland, and several German states (including Prussia), while France abolished the last vestiges of state press control in 1881, and Russia not until 1905.

Prior censorship of books had ended in the German states with the revolution of 1848. Freedom of the periodical press was guaranteed in the new German Empire by the Imperial Press Law of 7 May 1874, which abolished government licensing of the press and all prepublication censorship of printed material. Although government retained the right to be informed about the contents of most periodical publications (except for artistic, scholarly, or commercial publications, publishers were to submit a copy of each issue to local police as distribution began), the Press Law placed few significant legal restraints on printed materials. (The exceptional Anti-Socialist Law, which did prohibit a wide range of socialist publications from 1878 to 1890, is discussed in Chapter 4.)

The state, however, did exercise a punitive or postpublication control over the printed word through other means. Under the Imperial Criminal Code of May 1871, for example, it was illegal to incite others, in print or speech, to disobey the law or commit criminal acts; to incite social classes to violence against each other; to knowingly fabricate or distort facts in order to incite in others contempt for state institutions or the law; to slander or libel officials, clergymen, or members of the armed forces who were carrying out their professional duties; or to maliciously slander or libel other citizens.¹ In the absence of prior press censorship, the government frequently used the Criminal Code to prosecute press opponents, especially for libel. Creative writers on the other hand were most affected by the paragraphs pertaining to lèse majesté (§§94–101), blasphemy (§166), and obscenity (§184). Because literary works dealing with the three sensitive areas of politics, religion, and sex were those most likely to put writers in legal peril, each of these offenses will be examined more closely in subsequent chapters.

Writers violating the Criminal Code could be subject to legal action. Local state prosecutors, either on their own initiative or in response to a citizen's complaint, could, within six months of its appearance, order the immediate confiscation of any publication thought to violate the law. (Only the remaining, undistributed copies could be seized; those already in citizens' hands were beyond the law's reach.) While local police also had authority to confiscate a work, such actions had to be reviewed by the state prosecutor within twelve hours; usually, police simply marked and forwarded to the prosecutor anything they considered actionable. In keeping with the general principle in the empire that administrative actions were subject to judicial review (of which more below), if a publication were confiscated, within five days a local district court had to either uphold the action or release the work for distribution. If the court affirmed the seizure, the prosecutor had two weeks to file criminal charges against those responsible for the offending publication. (Under German law, others involved in the distribution of an illegal publication, such as publishers, printers, editors, or booksellers, were also liable to prosecution.) The fact that a work had been published abroad did not protect a defendant from prosecution or punishment; and if a specific culprit could not be tried—for example, if the identity of the author could not be determined or a defendant fled abroad or died before the trial—the publication could still be permanently prohibited.²

In Prussia and other north German states, depending on the nature of the offense, defendants in criminal cases were tried either before a local district court (Amtsgericht), where a panel of one judge and two lay people heard the case, or by a superior court (Landgericht), where a panel of judges presided. However in Oldenburg and Braunschweig and in the south German states of Bavaria, Württemberg, and Baden, crimes committed in print had to be tried in public before twelve lay jurors (Schwurgericht). (It is perhaps no accident that of the five largest book production centers, two—Munich and Stuttgart—were located in the south.) Some indicted writers thus had the opportunity of being judged by their peers rather than professional jurists, though as we shall see below, for those accused of blasphemy a jury trial in the conservative Catholic south was not necessarily an advantage. If convicted of violating the Criminal Code, a defendant was fined or imprisoned and all remaining unsold copies of the offending publication (as well as the plates used to produce it) were destroyed; if only a portion of the work were judged illegal, only that was proscribed. Courts also could acquit the defendant of any crime yet rule the publication did indeed contain illegal material and must be destroyed. All verdicts, including acquittals, could be appealed to a court of appeal (Oberlandesgericht) and ultimately to the Imperial Supreme Court (Reichsgericht); while the latter occasionally nullified a writer's acquittal and ordered a retrial, it does not appear ever to have struck down a writer's conviction.

Could authors receive fair treatment from the German criminal justice system? Some historians, pointing to the empire's massive disregard of statutory guarantees of equality before the law, have disputed its reputation as a state based on the rule of law (Rechtsstaat). Justice in the imperial era, they argue, was far from impartial; rather, there existed a socially biased, frequently manipulated system of class justice heavily influenced by the partisan interests and ideologies of the ruling classes. Most contemporaries on the other hand saw the empire as a just, liberal state with progressive criminal and civil codes and judicial procedures and as a nation where citizens' rights were protected because administrative power, including police actions, was subject to the rule of law and independent judicial review. A growing body of recent scholarship also supports this view.³

German civil servants and jurists, it is true, were recruited from a narrow social elite and most were conservative supporters of the established order. University students preparing for administrative or legal careers came from elite upper and upper-middle class backgrounds and received a narrow, practical, professional training that, by focusing almost exclusively on law and its application to practical cases, largely insulated them from all “general cultivation” and humanistic subjects, not to mention art and literature. Because the number of law graduates far exceeded the judicial and administrative positions available, the government could be selective, and selection was closely linked to political orientation. The lengthy (and costly) probationary apprenticeship through which all aspiring civil servants and judges had to pass was used as much to screen out social and political undesirables as to assess their professional competence. It is hardly surprising, therefore, that most law graduates and civil servants emerged from their illiberal training as uncritical supporters of the imperial system and its policies.

Yet this same training also produced many nonconformists and even the empire's harshest critics acknowledge the system was a training ground for thousands of liberal attorneys.⁴ Several authors whose writings later brought them into conflict with the law were, in fact, themselves products of the judicial training system: Ludwig Thoma, Hermann Bahr, Ernst von Wildenbruch, Frank Wedekind, O. E. Hartleben, Max Halbe, Carl Sternheim, and Herbert Eulenberg, for example, were either trained (and sometimes practicing) jurists or one-time legal students. And although candidates who lacked the requisite social background or political outlook had little chance of receiving an administrative post, the criteria were more relaxed for the judicial branch, which was more hospitable to liberals, Catholics, and even Jews. Furthermore, members of the German judiciary enjoyed far more independence and job security than their colleagues in administration. The Imperial Justice Laws of 1877–1879 established a modern, independent, and substantially liberal court system in Germany based on clear, fair, and uniform civil and criminal procedures. Judges were appointed for life with fixed salaries and were well insulated from political pressure. They could not be relieved of office, transferred, or pensioned against their will except by means of a judicial decision and in accordance with the law, and so they were answerable only to their fellow jurists, not to the political administration. Whereas administrative civil servants were fundamentally conservative and staunchly loyal to the monarch and his government, the German judiciary comprised a broader range of political viewpoints, including many moderate liberals; among judges “the separation of professional duty and private conviction was more normal, here there was more pluralism, here [logical] predicates and specialized professional judgments played a greater role.” ⁵

Within the judicial establishment, state prosecutors were responsible for initiating legal proceedings (although after 1879 in most German states victims of crimes and other citizens could also instigate legal action). In some smaller north German states, prosecutors came from the judiciary and returned to it after leaving the prosecutors office, so were able to act fairly independently. But in Prussia and the larger states they were state officials responsible to the Ministry of Justice and thus subject to political pressure; if they failed to prosecute certain offenses aggressively enough they could be disciplined or removed by the government. Their literary ignorance, a result of their narrow legal training, could sometimes be embarrassing. Ambitious prosecutors sometimes resorted to questionable legal maneuvers and manipulations when dealing with censorship cases. Because most hoped one day to be appointed as judges, they were often eager to compile an impressive record of prosecutions and convictions; frequently this meant finding ways to circumvent the south German requirements that all press offenses be tried before a jury, where cases were about twice as likely to end in acquittal as those tried before a panel of judges.⁶ One popular tactic involved the principle of “ambulatory venue” (fliegender Gerichtsstand), which, until its use was curtailed after 1902, allowed prosecutors some latitude in deciding where an alleged offense was to be tried. In cases involving a book or periodical for example, a defendant could be made to stand trial either in his or her place of residence, in the place the publication in question was edited or printed, or in any locality where the work was distributed. Because of this last possibility, zealous prosecutors could sometimes force south German defendants to stand trial in north German cities where there was no jury trial, or in more conservative regions where the chances of conviction were thought to be higher.⁷ In 1899 for example, the defendants charged with lèse majesté in the famous Simplicissimus “Palestine Affair” (see chapter 3) were tried and convicted in Leipzig, where the satirical journal was printed, rather than in Munich, where its editorial offices were located and all the defendants resided. The Simplicissimus staff realized if the journal continued to be printed in Leipzig, they would remain highly vulnerable: “As long as we [publish] in Leipzig, we always face the danger of being destroyed. The gentlemen there can do that, if they want to be stubborn. It would not be hard for them, if they wanted, to lock us all up, one after the other.”⁸ This was one reason the journal changed printers; after 1899, Simplicissimus was printed in Stuttgart, where Württemberg law, like Bavarian law, required jury trials for all press offenses.

Some south German prosecutors sought to avoid jury trials by charging defendants under a vague and controversial paragraph of the Criminal Code (§360, sect. 11) that levied a fine of up to 150 marks or six weeks imprisonment on anyone “who, in an unseemly manner, creates loud, disturbing noises or commits a public nuisance (grober Unfug).” Originally intended for use against street urchins and malicious mischief makers who harassed passersby, disrupted traffic, released mice in crowded theaters, or otherwise created a public annoyance, some aggressive state prosecutors stretched this statute to cover behavior that caused psychological as well as physical annoyance to the public. In south Germany, where juries were sometimes reluctant to convict defendants charged under the strictly worded laws regarding obscenity, blasphemy, or lèse majesté, and where the government itself sometimes balked at prosecuting writers unless it was confident a jury would convict, frustrated police and prosecutors occasionally charged offensive publications with “public nuisance” instead, since no jury trial was required in such cases. For example, in April 1898 the Munich prosecutor charged Maximilian Harden with public nuisance rather than lèse majesté for an article in which he openly discussed the tragic insanity of the Bavarian King Otto I, a subject considered taboo during the regency of Otto's uncle Prince Luitpold. Harden was quickly sentenced to a fourteen-day jail term.⁹ And after several unsuccessful efforts in the late 1890s to prosecute Simplicissimus for obscenity, the Munich police tried to confiscate the journal and prosecute its writers and editors for public nuisance instead. Although the state prosecutor had at first resisted such attempts, he eventually relented and in 1903 used that law to ban an offensive Simplicissimus political cartoon and fine the artist and editor thirty marks each.¹⁰ In subsequent years, whenever a jury trial seemed unlikely to result in a conviction, enraged conservatives pressured the Bavarian government to apply the public nuisance paragraph against offensive publications like Simplicissimus.¹¹

Finally, to avoid jury trials in press cases where an acquittal was likely, south German prosecutors at times misused the Criminal Code's “impersonal process” (objektive Verfahren) provision, whereby a publication could be permanently banned even if those responsible for it could not be convicted of violating the law. At the turn of the century the Imperial Supreme Court ruled that in pre...