Banned in Berlin. Gary D. Stark

court, defendants were represented by private lawyers who were equals to the state's judges in terms of legal training, preparation, and professional admission requirements. Members of neither the judiciary nor the civil service, defense lawyers were free from any disciplinary oversight from courts or ministries of justice. After the legal reforms of the late 1870s opened admission to the bar to anyone meeting the professional requirements, German lawyers came from increasingly diverse social backgrounds. Compared to the state judiciary, by the later years of the empire the private bar consisted of more sons of middle-class commercial and industrial families and a much higher proportion of Jews. (Before the Weimar republic, Jews were virtually excluded from the judiciary, and women from both the judiciary and the bar.) These lawyers, who in the courtroom enjoyed certain procedural advantages over the prosecution (especially after 1900), often skillfully mounted tenacious defenses of their clients and mobilized public opinion on their behalf. In several literary trials defense attorneys called prominent scholars or writers as expert witnesses to bolster the defendant's case and discredit the prosecutor's interpretation of the work in question. Such testimony was often reported prominently in the press, which regularly covered controversial censorship trials.

      Whether because of press reporting of courtroom proceedings, adroit defense by lawyers in private practice, or the impartiality of German judges, attempts by overzealous police and unscrupulous prosecutors to manipulate the law against writers rarely succeeded. The German judiciary generally made an earnest effort to safeguard defendants' rights and courts displayed a surprising independence from, and even resistance to, government efforts to stifle freedom of expression through the printed word. Indeed, after resisting efforts by the state in the 1890s to make the judicial system more repressive, in the years before the war German judges began acquitting a higher percentage of defendants (especially in cases they believed to be politically motivated) and they became increasingly lenient in their sentences (issuing more fines rather than prison sentences, and shorter rather than longer incarceration). Independent jurists frequently revoked confiscations initiated by police or prosecutors, threw out indictments against authors, acquitted defendants, or imposed lighter punishments than prosecutors demanded. For the government the outcome of a censorship trial was unpredictable and frequently disappointing. (Even during the anti-Catholic Kulturkampf and the years of the harsh Anti-Socialist Law, when the Bismarckian state used the most ruthless legal weapons and exceptional laws against its opponents and the judicial system was most politicized, in over two-thirds of all press trials judges imposed significantly lighter sentences than had been requested by the prosecutor and in 20 to 30 percent of all cases they acquitted the defendants completely.) Although police, prosecutors, and even the emperor sometimes railed against such decisions, there is no evidence the administration ever exerted pressure on judges to find defendants guilty; and while judges who freed confiscated material or acquitted indicted authors were occasionally scolded, they could not be punished or disciplined by the state. The evidence is strong, therefore, that throughout most of the imperial era authors who clashed with the law because of their work could generally receive fair treatment in court.

      The outbreak of war in 1914 radically altered the legal rights of writers and the press in Germany, as it did in all belligerent nations. State control of printed material expanded enormously during World War I while judicial restraints on censors all but disappeared. On 31 July 1914, Emperor Wilhelm II declared a state of war to exist in the empire and with his constitutional power formally imposed a legal state of siege (Belagerungszustand). As long as the state of siege remained in force, the military enjoyed extraordinary power over civil life: deputy commanding generals assumed executive authority in each of the twenty-five Army Corps districts. Slicing through preexisting state and regional boundaries or lapping over several hitherto independent small states, the arbitrary borders of these military districts bore little relation to the peacetime government's bureaucratic structure. While civilian administrators and communal officials continued their normal functions, they were now obligated also to obey the instructions of the district's deputy commanding general, who, in turn, was responsible only to the emperor. As Wilhelm II became an increasingly peripheral and distant figure during the war, the deputy commanding generals were virtually autonomous: they were “like rulers of independent satrapies, and they could—and to the extent they wished—resist attempts from above, from civilian or military agencies, to impose common policies or institutional constraints on them.”¹³ In the interests of public security they could issue formal police ordinances under their own authority or through the regular civilian police; failure to obey a commander's orders or his police ordinances was punishable by up to a year in prison. During the state of siege, special military courts were established to handle serious offenses (spying, treason, sabotage), the punishment for certain criminal offenses was dramatically increased, and several constitutionally guaranteed rights were suspended, including freedom of association and freedom of assembly.

      Freedom of the press also ended, for all nonscientific publications were now subject to military censorship. Initially the Press Office of the Acting Army Corps Headquarters (stellvertretende Generalkommando) was responsible for censorship; after February 1915 it came under the authority of a specially created Central Censorship Office (Oberzensurstelle) attached to the acting general staff. Although these offices established policies and guidelines and issued detailed directives, local police handled day-to-day military censorship. All military-related newspaper articles and, after April 1915, other publications dealing with military issues had to be approved prior to publication; one copy of all other printed material (including periodicals, books, and pamphlets) had to be submitted to local police immediately upon publication. Early in the war some publishers voluntarily submitted materials, especially books, to the military for prepublication censorship, for they found it less expensive to have a manuscript vetted before it went to print than to risk having it banned or changes ordered afterwards. The head of the Stuttgart publishers' union claimed in 1916, “Preventive censorship lies in the interest of publishers, since its exercise protects them from penalty and great economic damage.”¹⁴

      Police censors were instructed by military authorities to intervene against any printed matter that undermined the war effort by “disturbing the civil peace (Burgfrieden)” This granted them extremely broad powers, for during the war the civil peace was officially defined as “the effort to preserve the spirit of solidarity and submission to the great national goals, to prevent any endangerment of the unity of the German Volk, and never to allow the impression to arise that the determined popular will for victory is wavering.” In the interests of the civil peace, wartime censors would permit “an objective, even if pointed, representation of one's own standpoint in political and economic questions…[and] a calm discussion of the mistakes and errors of those who think differently.” But they would not allow “any insults to others,…especially any terms of abuse, derogatory comparisons, or degrading insinuations,…any attempts to impute to others selfish or base motives in the pursuit of political goals, any needless rekindling of old quarrels, or any insults between social classes, occupational groups, or religious confessions.”¹⁵ Unlike before the war, when the press often lambasted them, it was now forbidden to publish any criticism of the censors that might undermine public confidence in their activities.

      To control printed materials during the war, police wielded a variety of special weapons: besides refusing to allow publication of military-related material, they could also issue formal warnings to the writers, editors, and/or publishers of material already in print; they could require that in the future certain nonmilitary publications also be submitted for prior censorship; they could issue temporary or permanent bans against all future publications of specific periodicals or publishing houses; and, in extreme cases, they could fine or imprison journalists or writers who regularly violated official directives. Decisions of the military or police censors could be appealed only to the Prussian minister of war, who seldom overruled his subordinates. Only in Bavaria did the press retain some of its prewar freedom. Because of Bavaria's special legal status in the empire, the state of siege and press censorship system there was less harsh and press offenders still enjoyed the right to a jury trial.

      As authorities attributed military importance to an ever-widening circle of political issues, such as the debates over war aims or food rationing, and as the vague concept of the “civil peace” expanded to include ever more aspects of public