Germany

By Amy Perry

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The flag of the Federal Republic of Germany.

     The history of German government and politics is turbulent and greatly varied. The history of the rights of German citizens’ path to freedom of speech and freedom of the press are just as varied. Today, the roughly 80 million citizens of the Federal Republic of Germany live in freedom that is protected by their constitution and its bill of rights. However, it has been a long road to get to this place and things are not perfect. While citizens’ rights are broad, there are limitations as one cannot deny the Holocaust, display pro-Nazi symbols, or participate in or use pro-Nazi speech without penalty. There are also concerns regarding free expression of religion. Germany will hopefully continue to progress, but there are sensitivities to the past that at times create conflicts with current liberties.

HISTORICAL BACKGROUND

     From 1918 to 1933, Germany was governed by the Weimar Republic (so named for the city of Weimar being the seat of government). This was the first time Germany had attempted a parliamentary democracy.[i] It had some success in the beginning, but as time went on flaws emerged that made the government weak. In addition, economic depression, high unemployment, as well as low national moral following their defeat in World War I, left Germany in a vulnerable state. The country was in this weak position when Adolf Hitler became Chancellor of Germany in January 1933 and began his coordination of bringing the entire government under his command. The goal was to secure his hold on all of German society and politics.[ii]  The Nazi regime, called the Third Reich, did not even bother with a semblance of a constitution; the entirety of constitutional principle was simply the will of Hitler.[iii]

Following the end of World War II in 1945, a defeated Germany was divided in two in 1949 – into a democratic West Germany established by the United States, and a communist East Germany, part of the Union of Soviet Socialist Republics. The two political systems were, respectively, parliamentary democracy and state socialism. Neither were regimes that Germans had experienced before. West Germany, the Federal Republic of Germany, became very Americanized, while East Germany, the German Democratic Republic, retained traditional German culture and values.[iv] There was a vast difference in the governments as well. While West Germany adopted the Bonn Constitution in 1949 that gave value to human dignity, human rights, and protected liberties for their citizens, East Germany, under Communist rule, restricted the rights of their citizens. The Berlin Wall that divided East and West Berlin, and symbolically all of Germany, fell in 1989. Communism was defeated, and the country was reunited. However, reunification took much time and effort, and there were many struggles. Today, Germany is a vibrant and thriving country. Germany is an important ally of the United States, a world economic leader, and a valued member of the European Union.

FREE SPEECH

     When the Weimar Constitution was adopted in 1919, it was the first German democratic constitution, and was one of the most progressive constitutions of the time. It contained broad and extensive human rights for its citizens.[v]  The Weimar Constitution contained freedom of speech, freedom of the press, freedom to associate, and a vast number of safeguards to protect citizens’ fundamental rights against the state.[vi]  However, these rights were superseded by Article 48, which gave the president authority to suspend these rights without anyone stopping him. Liberties of speech, press, and assembly could be defined, limited, or even suspended in difficult times, which were increasing.[vii]

Under Hitler’s Nazi regime, rights of the individual were quickly terminated. Citizens were completely denied all individual freedom and liberty. Millions were arrested without cause and sent to forced labor camps, or concentration camps to be executed. The justification was simply the will of Hitler and his agenda to achieve a society he deemed worthy to be called Germany.

Bertolt Brecht was a leading dramatist in Germany in the 1920s. His most famous works were “Drums in the Night” in 1922, and “The Threepenny Opera” in 1928, on which he collaborated with the famed composer Kurt Weill. Born in Bavaria, Brecht moved to Berlin in 1924 to pursue his career. In the late 1920s his interest was piqued by the Communist Party, and, although he never officially joined, he studied Karl Marx and sympathized with the cause. Bertolt began to write political plays that criticized the government, including the Weimar Republic and the Nazi regime. He fled for his life in February 1933, and in the book burnings of 1933, his works published up to that time were destroyed.[viii]

In 1949 Germany was divided into two parts, with two different governments. West Germany adopted the Basic Law for the Federal Republic of Germany, known as the Bonn Constitution, in 1949. Beginning with human dignity, the Basic Law starts off by saying “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. (Article 1, Point 1)”.[ix] While the Federal Republic of Germany had established human dignity, free speech, free press, and the right to assemble, among other liberties, things were quite different in East Germany. Basic rights were secondary, and were not intended for the individual, but the collective. In contrast to the freedoms in the Federal Republic of Germany, citizens in the German Democratic Republic could not move freely, go on strike, dissent from the government, speak freely, or assemble. In addition, citizens of East Germany were not allowed to freely talk with Western tourists or journalists.[x]

Today Germany puts limitations on free speech and expression due to tough legislation that makes incitement to violence or hatred, glorification of Nazism, Holocaust denial, defamation of the President, the Federal Republic, the flag, the national anthem, or states of the Republic, a criminal act. Under a ruling in 2000 by the Federal Constitutional Court, political criticism does not qualify as insulting the Republic.[xi] Therefore, political speech is protected. The German Criminal Code, section 130 dealing with hate speech, says that those who publicly deny the Holocaust, approve of it, deny it happened, or make it trivial can face up to five years in prison and a fine.[xii] Religious expression is a freedom that is covered under the Basic Laws, but anti-blasphemy laws carry penalties under the Criminal Code. 2006 was when a man in the state of North Rhine-Westphalia was given a 1-year suspended sentence for printing a parody, ‘The Koran, the Holy Koran’, on toilet paper and then sent it to mosques and Muslim community centers. In 2011, nine operators of a far right radio program were given prison sentences for inciting hatred. Germany has also come under attack for banning religious symbols in public workplaces, which greatly affects Muslim women wearing head scarves, which is not allowed under this law.[xiii]

FREE PRESS

            It was under the Nazi regime, with Hitler in control of all Germany, that freedom of the press was a liberty that was completely removed. Instead, freedom of the press was nonexistent, as all journalism outlets were run by the state for propaganda. “The press simply became an institution of the state, and in due course it turned into an effective tool of Nazi propaganda in shaping opinions inside Germany and manipulating attitudes abroad”.[xiv] The Nazis simply ran the press for their own propaganda.

In 1949, when Germany was split into two separate nations, there was a vast difference in freedom of the press. In West Germany, under the Federal Republic of Germany, the Bonn Constitution was adopted, which ensured freedom of the press.  “Everyone shall have the right to freely express and to disseminate his opinion. Freedom of the press and freedom of reporting by radio and motion pictures shall be guaranteed. There shall be no censorship. (Article 5, Point 1).”[xv] While the Federal Republic of Germany had established free speech and free press, things were quite different in the east. Fritz Pleitgen was a West German journalist who was the bureau chief for ARD West German Television in East Berlin in the 1970s. He became hated and spied on by the Staatssicherheit, also known as the “Stasi”, the East German intelligence service. They nicknamed Pleitgen “The Tiger”. “The East German regime went to great lengths to try and prevent people in the German Democratic Republic (East Germany’s official name) from watching Western TV. And they did everything they could to stop East Germans from talking to West German reporters.” The Stasi broke into Pleitgen’s  home and his office; they tried to gather information in different ways, such as wire tapping phones. The East German officials seemed to think that Western journalists were all spies. Pleitgen and his crew came up with creative ways to circumvent the Stasi in order to interview East German residents and let their voices be heard, such as stating an incorrect address or sending out decoy news teams. Restrictions became tighter as time went on, making it more and more difficult for Western journalists to gain permission to interview East German residents. Fritz Pleitgen was among  many brave journalists who did what they could to oppose the oppressive East German regime, and gave those without the freedom to speak a voice.[xvi]

After the fall of Communism and the reunification of Germany under a constitutional democracy, there were differences and challenges that the people of Germany faced for quite some time. It took a lot of effort to reunite the nation and the peoples, and differences that had to be overcome. One such difference was the role of journalists. Journalists from the former East Germany saw their roles with more of a “missionary” attitude – advocators and educators for their audience. They did not agree with journalists from the former West Germany who readily used illegitimate techniques to gather information. It seemed that the many years of their government spying on its citizens and a lack of real journalism had a great impact on East German journalists.[xvii] Today Germany receives a high rating on the World Press Freedom Index, at number 12 out of 180 countries, which is measured by Reporters Without Borders. Reporters Without Borders considers such criteria as: “media pluralism and independence, respect for the safety and freedom of journalists, and the legislative, institutional, and infrastructural environment in which the media operate”.[xviii]

CRITICAL COMPARISON

     To compare free speech and free press rights in Germany and the United States is to take several things into consideration. There are degrees to which the two nations are similar, especially in structure, with constitutions and bills of rights, but priorities of rights differ. However, there is a vast difference in the histories of the two nations, and that has a great impact on what laws are put into place. Germany restricts hate speech, hate crimes, and Holocaust denial, among other things. In the United States most speech is protected, even the speech some citizens hate. Westboro Baptist Church is a group that pickets the funerals of fallen soldiers. They carry signs with hateful messages about homosexuals, and signs that say they are glad the soldier is dead. They believe they are spreading God’s message – that soldiers are being killed as punishment, and that they are to send a message that homosexuality is a sin. As horrific as this behavior is, as disrespectful to the fallen soldier and their family, as cruel and offensive as it is – this speech is protected. Why? Justice Brennan, delivering the majority opinion in Texas v. Johnson, stated the following: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”[xix] Another example of speech protection in the United States is this ideal of the free marketplace of ideas, which must value most speech no matter the content. In Hustler Magazine v. Falwell, Chief Justice Rehnquist quotes FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L. Ed. 2d 1073 (1978),  in the majority opinion: “[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is that speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas.”[xx]

The bedrock principle of Germany’s freedom of speech is not that of protecting all speech, but of protecting the dignity of the individual. In the Basic Law for the Federal Republic of Germany, the following rights come before freedom of speech – Article 1 Human dignity, Article 2 Personal freedoms, Article 3 Equality before the Law, Article 4 Freedom of faith and conscience. Then, finally, Article 5, Freedom of Expression, arts, and sciences which includes freedom of speech and freedom of the press. Germany values human dignity above all else. It seems these are measures that were put in place to prevent atrocities from happening like they did under Hitler’s Nazi regime, and Germany is right to do so. There also must be something said for the value they place on protecting their citizens from hate speech. However, those Articles do come into conflict with some issues of present day, such as the law that prohibits religious symbols in public workplace. While the anti-blasphemy laws and anti-hate speech laws are to protect human dignity, they are at the same time taking away rights from others to freely express themselves. The laws of Germany regarding free speech seem to be at odds with one another.

 CONCLUSION

     Germany has endured many regime changes and structures of government that affected the rights of its citizens. Finally, in the last 66 years , the people of Germany have been secure in their freedom of speech and of the press. The Basic Law, the constitution of the Federal Republic of Germany guarantees those rights, although not at the expense of human dignity which comes before all else. Because of the history of human rights abuses in Germany, the government safeguards human dignity above all else to prevent such tragedies from occurring again. The government does limit the content of speech and free expression from such that would deny a person their human dignity. And so, in comparison with the broad free speech citizens of the United States enjoy, German citizens are limited. Free press in Germany must follow the same standards, although political speech, including criticism of the government, is allowed. The United States does not have such a limitation on the press. There are many similarities in the laws between the two countries, the main difference being the high value placed by Germany on the preservation of human dignity above all.

 

 

 

 

 

 

WORKS CITED

     The Bonn Constitution, Basic Law For The Federal Republic of Germany (Prepared by The Roy Bernard Company. Inc., New York, 1950), 2

Frederik Pleitgen, “How ‘The Tiger’ fought the East German Stasi”, CNN.com, http://www.cnn.com/2014/11/05/world/europe/germany-east-berlin-pleitgen/, (accessed April 13, 2015)

Conradt, David P., Gerald R. Kleinfeld, George K. Romoser and Christian Soe, Germany’s New Politics, (German Studies Review, Holli A. Semetko and Klaus Schoenbach, Arizona State University, Tempe, 1995), 54.

Fulbrook, Mary,  A History of Germany 1918-2008, The Divided Nation, Third Edition (Wiley-Blackwell, 2009), 15.

German Criminal Code, Übersetzung des Strafgesetzbuches durch Prof. Dr. Michael Bohlander

Translation of the German Criminal Code provided by Prof. Dr. Michael Bohlander

Stand: Die Übersetzung berücksichtigt die Änderung(en) des Gesetzes durch Artikel 3 des Gesetzes vom 2.10.2009 (BGBl. I S. 3214)

Version information: The translation includes the amendment(s) to the Act by Article 3 of the Act of 2.10.2009 (Federal Law Gazette I p. 3214)

© 2013 juris GmbH, Saarbrücken, http://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html, (accessed April 21, 2015)

 

“The Weimar Constitution of 1919”, A Global Ethic Now!, http://www.global-ethic-now.de/gen-eng/0c_weltethos-und-politik/0c-02-menschenrechte/0c-02-138-weimarer-verfassung.php, (accessed April 13, 2015)

Herz, John H., The Government of Germany (Harcourt, Brace and World, Inc., New York, Chicago, San Francisco, Atlanta, 1949)

Hoffmeister, Gerhart, and Tubach, Frederic C., Germany: 2000 Years, Volume III, From the Nazi Era to German Unification, New Expanded Edition (A Frederick Ungar Book, Continuum, New York, 1998)

“Germany: A positive environment clouded by surveillance”, By Index on Censorship, 21 Ausgust, 2013, https://www.indexoncensorship.org/2013/08/germany-a-positive-environment-for-free-expression-clouded-by-surveillance/, (accessed April 21, 2015).

Supreme Court of the United States, TEXAS, Petitioner, v. Gregory Lee JOHNSON., No. 88-155., Argued March 21, 1989, Decided June 21, 1989, 491 U.S. 397, 109 S.Ct. 2533, p. 414.

Supreme Court of the United States, HUSTLER MAGAZINE, INC. and Larry C. Flynt, v. Jerry Falwell, No. 86-1278., Argued Dec. 2, 1987., Decided Feb. 24, 1988.,  485 U.S. 46, 108 S.Ct.876, page 55-56.

Reporters Without Borders, “World Press Freedom Index 2015: Decline on All Fronts”, http://index.rsf.org/#!/presentation, (accessed April 13, 2015).

 

“United States Holocaust Memorial Museum, Bertolt Brecht, Learn About the Holocaust, http://www.ushmm.org/wlc/en/article.php?ModuleId=10006080, (accessed April 13, 2015)

 

 

 

[i] Mary Fulbrook, A History of Germany 1918-2008, The Divided Nation, Third Edition (Wiley-Blackwell, 2009), 15.

 

[ii] Fulbrook, A History of Germany, 56.

[iii]John H. Herz, The Government of Germany (Harcourt, Brace and World, Inc., New York, Chicago, San Francisco, Atlanta, 1949), 48.

 

[iv]Gerhart Hoffmeister and Frederic C. Tubach, Germany: 2000 Years, Volume III, From the Nazi Era to German Unification, New Expanded Edition (A Frederick Ungar Book, Continuum, New York, 1998), 69, 71.

 

[v] “The Weimar Constitution of 1919”, A Global Ethic Now!, http://www.global-ethic-now.de/gen-eng/0c_weltethos-und-politik/0c-02-menschenrechte/0c-02-138-weimarer-verfassung.php, (accessed April 13, 2015)

[vi] Herz, The Government of Germany 39.

 

[vii] Herz, The Government of Germany, 39.

 

[viii] United States Holocaust Memorial Museum, Bertolt Brecht, Learn About the Holocaust, http://www.ushmm.org/wlc/en/article.php?ModuleId=10006080, (accessed April 13, 2015)

 

[ix] The Bonn Constitution, Basic Law For The Federal Republic of Germany (Prepared by The Roy Bernard Company. Inc., New York, 1950), 2

 

[x] Hoffmeister, Germany: 2000 Years, 121.

 

[xi] “Germany: A positive environment clouded by surveillance”, By Index on Censorship, 21 Ausgust, 2013, https://www.indexoncensorship.org/2013/08/germany-a-positive-environment-for-free-expression-clouded-by-surveillance/, (accessed April 21, 2015).

 

[xii] German Criminal Code, Übersetzung des Strafgesetzbuches durch Prof. Dr. Michael Bohlander

Translation of the German Criminal Code provided by Prof. Dr. Michael Bohlander

Stand: Die Übersetzung berücksichtigt die Änderung(en) des Gesetzes durch Artikel 3 des Gesetzes vom 2.10.2009 (BGBl. I S. 3214)

Version information: The translation includes the amendment(s) to the Act by Article 3 of the Act of 2.10.2009 (Federal Law Gazette I p. 3214)

© 2013 juris GmbH, Saarbrücken, http://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html, (accessed April 21, 2015)

 

[xiii] “Germany: A positive environment clouded by surveillance”, By Index on Censorship.

 

[xiv] Hoffmeister, Germany: 2000 Years, 17-18.

[xv]The Bonn Constitution, 2

 

[xvi] Frederik Pleitgen, “How ‘The Tiger’ fought the East German Stasi”, CNN.com, http://www.cnn.com/2014/11/05/world/europe/germany-east-berlin-pleitgen/, (accessed April 13, 2015)

 

[xvii]David P. Conradt, Gerald R. Kleinfeld, George K. Romoser and Christian Soe, Germany’s New Politics, (German Studies Review, Holli A. Semetko and Klaus Schoenbach, Arizona State University, Tempe, 1995), 54.

 

[xviii] Reporters Without Borders, “World Press Freedom Index 2015: Decline on All Fronts”, http://index.rsf.org/#!/presentation, (accessed April 13, 2015).

 

[xix] Supreme Court of the United States, TEXAS, Petitioner, v. Gregory Lee JOHNSON., No. 88-155., Argued March 21, 1989, Decided June 21, 1989, 491 U.S. 397, 109 S.Ct. 2533, p. 414.

 

[xx]Supreme Court of the United States, HUSTLER MAGAZINE, INC. and Larry C. Flynt, v. Jerry Falwell, No. 86-1278., Argued Dec. 2, 1987., Decided Feb. 24, 1988.,  485 U.S. 46, 108 S.Ct.876, page 55-56.

(This essay was last updated on April 30, 2015.)

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