Banned in Berlin. Gary D. Stark

       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