An Overview of Censorship in Germany
Author: Elek Krizsan
Following the unification of Germany in 1871, significant shifts have occurred in the landscape of censorship legislation. This begs the question, what has been the effect of Germany’s censorship laws since 1871 on Germany’s modern understanding of free speech? As the nation has changed in its physical borders, leading political figures and parties, and social-cultural norms, so have the laws and constitutional amendments that dictate what is considered free speech. Unification brought about instrumental reform in the way Germany allowed its citizens to express themselves. Before 1871, the best reference for how the smaller German states policed what material could be published was the 1819 Carlsbad Decrees which came about after the murder of August von Kotzebue, a conservative writer. Austria’s Foreign Minister at the time, Klemens von Metternich, used this murder as an excuse to severely crack down on the public. The Carlsbad Decrees included three laws which all served to restrict free speech in Germany. More specifically, free speech of faculty members was limited at universities, any newspaper piece “without the foreknowledge and prior approval of the state authorities” could not be published, all publications had to be labeled with the author, editor, and publisher’s name or those involved would be punished, and any publication could be suppressed if it broke “the maintenance of peace and quiet” in Germany. 1 The lack of specificity in these rules allowed German officials to use their discretion in matters such as determining what constitutes disturbing peace and quiet, and other vague aspects of the decree. The Carlsbad Decrees are widely known for their repressive nature and goal of minimizing political opposition. With this, when the unification of Germany occurred in 1871, the newly united nation had to greatly reform its censorship laws. This marked the beginning of a long debate in united Germany over the rights Germans have to express their thoughts and opinions publicly.
Under Otto von Bismarck’s rule, the German Empire underwent a loosening of its censorship laws from 1871 to 1890, most notably due to the Imperial Press Law of 1874. Before this, the only other significant mention of the press was in Article 4 of the Constitution of the German Empire, published on April 16, 1871. The constitution vaguely stated that “the regulations for the press and for associations” were to be legislated by the Reich, but there were no other specific mentions of how the press would be controlled and under what rules they had to abide by. 2 Generally, publications remained under the same restrictive procedures that had existed pre-unification that dated back to the Carlsbad Decrees, as previously described. In 1874, however, the new Imperial Press Law that was enacted provided clarity and a departure from past precedent for Germany by guaranteeing the freedom of the press. 3 Crucially, there were exceptions as the guarantee came from a law rather than a constitutional provision. This meant that, in theory, the government retained the authority to restrict or revoke freedom of the press through this legal framework. Possible instances that would take precedence over the Imperial Press Law included the event or threat of war, or major internal political discourse that threatened to destabilize the government.
The first instance that tested the new press law was the Anti-Socialist Law of 1878, the most repressive censorship rule put forth under Chancellor Bismarck. Bismarck’s motive for passing the Anti-Socialist Law was that he felt increasingly threatened by the Socialist movement in Germany, which was in opposition to the conservative order he had maintained since unification. The 1878 law banned socialist meetings, suspended socialist publications, and outlawed socialist trade unions. 4 Despite this, socialists still ran in German elections and won seats in the Reich, published material supporting their political cause, and organized together for meetings and rallies. In addition to placing major setbacks on the German publishing industry in their mission to share information freely, the Anti-Socialist Law also initiated efforts to expand censorship into other major sectors of speech and German rights which set a precedent for future legislation.
Socialist Law was that he felt increasingly threatened by the Socialist movement in Germany, which was in opposition to the conservative order he had maintained since unification. The 1878 law banned socialist meetings, suspended socialist publications, and outlawed socialist trade unions. 4 Despite this, socialists still ran in German elections and won seats in the Reich, published material supporting their political cause, and organized together for meetings and rallies. In addition to placing major setbacks on the German publishing industry in their mission to share information freely, the Anti-Socialist Law also initiated efforts to expand censorship into other major sectors of speech and German rights which set a precedent for future legislation.
One historian, James G. Randall, remarked at the time that “a much closer relationship exists between the German Government and the leading newspapers than is the case in other countries,” illustrating how the transition into wartime restrictions was remarkably more organized and thorough compared to other nations. 8 This was not beneficial for Germany, however, as a major disconnect developed between the government and the people because of this. The disconnect was primarily due to the lack of accurate and complete information Germans had access to during WWI. The government’s mission was to omit any negative or controversial discussion from the public, and instead solely put forth positive news that conveyed a strong German state. This left Germans feeling as if they did not know the full story of what was occurring on the battlefield. The culminating effect of censorship laws in WWI was forming a general public that was upset with its government’s handling of the spread of information and sought to operate in a freer environment.
Consequently, with the loss of WWI and the beginning of the Weimar Republic in 1918, the expansion of free speech was critical. In the Weimar Constitution, a clear prohibition on censorship in Article 118 was articulated, stating that “every German has the right, within the limits of the general laws, to express his opinion freely by word, in writing, in print, in picture form, or in any other way.” 9 Similar to the loophole in the Imperial Press Law of 1874, however, the caveat of saying “within the limits of the general laws” allowed for exceptions to be made to this constitutional article. One example of this was in the case of films. In Weimar Germany, the Film Assessment Headquarters was instituted to ensure that films being released to the public were not dangerous “to the interests of the state or in threat to public order and security.” 10 The ambiguity of this mission allowed for moral censorship to enter the stage in Germany. Officials were now working to eliminate content that was perceived as negative, which could be applied very broadly by using the rationale that whatever publication was under question made officials feel as though it posed a threat to order.
The further development of this moral censorship was exemplified with the 1926 Law to Protect Youth from Trashy and Dirty Writings (Gesetz zur Bewahrung der Jugend vor Schund und Schmutzschriften). This law sought to ban “publications deemed dangerous to children and youths from public display, street vending, and sale to individuals under eighteen,” thus protecting the youth of Germany from corrupt and destructive content. 11 The campaign against schund (or trash) in Germany was a widespread movement for years before the 1926 law. People believed publications of material such as pornography were the root of immorality in Germany and needed to be eradicated. It was publicly known and promoted that “the kind of nation patriots desire[d] Germany to be had no room for Schund.” 12 The passion that went into conveying the importance of this message and overall moral censorship from numerous religious and political groups gave the 1926 law immense weight as officials widely applied this legislation to content deemed improper for German minors. As the power and influence of moral censorship grew, this greatly impacted the relationship between growing nationalism and German culture post-1871. This nationalism was essential to the build-up of WWII in Nazi Germany.
Within the next six years after the Law to Protect Youth from Trashy and Dirty Writings Law was enacted and Nazi Germany was founded, more restrictions were put on the press and film industries. Each new limitation contributed to the increasingly disproportionate amount of information being published on behalf of the government and what was the free expression of German publishers. The decisive blow to free expression was the founding of the Ministry of Propaganda on March 14, 1933, under Nazi control. This agency had the main purpose of ensuring that all publications released to the German public promoted a supportive message of Hitler and his government. Material that did not abide by their strict guidelines was promptly censored and taken out of circulation. The Ministry relentlessly surveyed printed material, the radio, and films for any disobedience. Additionally, the Nazis took radical measures to expand their sphere of influence during this era, specifically through the Enabling Act of 1933 which stripped the Reichstag of its legislative authority and placed it with Hitler who could now rule by decree. 13 Soon after, the Editor Law (Schriftleitergesetz) of 1934 was passed which effectively banned people of non-Aryan descent from working as journalists in Germany. 14 With hundreds of German journalists losing their jobs as a result of this legislation, the press sector felt its freedom and sovereignty dwindle. One of the most symbolic moments of Nazi repression was the book burnings that occurred. This campaign entailed publicly lighting books or other written material on fire in large piles if they were opposed to Nazism. The imagery of watching physical books burn to a crisp for offering an opposing ideological view to the German government was critical in cementing the Nazi Party’s seriousness regarding censorship and compliance.
In comparison to their other European counterparts at the time, Germany’s regulations on the press were by far some of the strictest. The reason Germany had been able to reach this extent by the 1930s was that stemming back over 60 years to the unification of Germany, there had continuously been insufficient opposition to limiting free speech. This is not to say that there was no resistance to each new regulation that was published, but rather Germans were relatively in alignment with some of the earlier, morally based censorship laws, such as those regarding protecting the youth. Germans were not wholly opposed to blocking their children from having access to mature and inappropriate content, but agreeing to these policies partly enabled the passage of other more restrictive measures later on. The misleadingly liberal policies, The Imperial Press Law of 1874 and Article 118 of the Weimar Constitution, were only two countermeasures against the dozens of other laws and organizations that were enacted during this time frame of 1871 to the 1930s that sought to enforce tight restrictions on the press. With this, the Nazi era represented a shift from previous aggressive censorship for the “betterment” of the German state, to a dictatorial regime silencing any form of nonconformity or objection.
Following the end of World War II when East and West Germany were founded in 1949, their constitutions outline the renewed prohibition on censorship, however, they also listed familiar caveats. The constitution of the Federal Republic of Germany, or West Germany, stated in Article 5 that “freedom of the press and freedom of reporting by radio and motion pictures are guaranteed [and] there shall be no censorship,” however, right below this it states “these rights are limited by the provisions of the general laws [and] the provisions of law for the protection of youth” which almost exactly mirrors the exceptions made pre-WWII. 15 Having experienced the consequences of extensive censorship, West Germany consciously returned to previous approaches in regulating the publication of content. Predictably, the restrictions imposed on the press in the 1950s and 60s gave rise to familiar challenges observed in preceding decades.
In the German Democratic Republic (GDR), or East Germany, their practices regarding censorship closely resembled efforts made by the Nazi state. While East Germany was not nearly as repressive as the Nazis, they still had a great deal of influence over the press. The GDR’s ability to maintain tight control came from the fact that theaters, cinemas, publishing houses, newspapers, and radio and television stations were all state-owned. 16 Thus, the state’s direct influence over the media was apparent, as it had been under the Nazi Party. This was further supported by the GDR’s intense procedures that mandated procuring preliminary approval from state agencies before publishers could continue producing their content. Those who did not obtain approval could not continue their projects without facing harsh punishments. The difference for East Germans who were being restricted by the GDR in the 1950s compared to those in Nazi Germany, however, was that now there was West Germany as an outlet. Despite their internal issues, West Germany had looser censorship laws which East Germans could take advantage of by listening to their radio and television shows. This provided the average East German with external content not coming directly from the state. Throughout the 1950s to 80s, demand for West German content grew exponentially in East Germany.
Since the reunification of Germany in 1990, the constitution that was used by the Federal Republic of Germany since 1949 has remained in place, known as the Basic Law, with amendments having been made over the years. Due to this, censorship remains outlawed by Article 5, but now there are also numerous regulations outlined in the German Criminal Code that specify the limitations on freedom of speech and the press. Most notably, section 130 states that hate speech “against a national, racial, religious group or a group defined by their ethnic origin” and Holocaust denial can be punishable with imprisonment. 17 While combating racist and xenophobic hate speech is a basic pillar in most modern countries, Germany goes a step further in its Criminal Code to also declare that insulting someone or participating in malicious gossip can result in a serious fine or imprisonment. 18 These strict measures listed in the Criminal Code are taken seriously today in Germany both on a political and general societal level. Additionally, the Federal Review Board for Media Harmful to Minors is a German agency that is specifically designed to monitor and censor media today that could potentially be harmful to minors. This board directly reflects the long-term effects of Germany’s perspective on censorship for minors as there has been a continuous effort through each government to protect young people from potentially violent, inappropriate, or harmful content.
While Germans have long accepted stronger censorship laws in return for maintaining peace and order, this has become increasingly difficult with the rise of the Internet. Monitoring written publications, television and radio shows, and films were efforts that the German government mastered over many decades, but the Internet has risen in immense popularity with the start of the 21st century, forcing the German government to act swiftly to ensure their censorship principles are being upheld online. This has caused many problems. Most recently with the Network Enforcement Act (NetzDG) that was enacted in January 2018, there has been widespread criticism of the policy for wrongly censoring people’s writing. This issue arose because of the time-sensitivity outlined in the new law. Essentially, if any content containing hate speech or fake news is posted on a social media platform with over 2 million German users on it, the content must be taken down within 24 hours to one week or the platform will face a fine of up to 50 million Euros. 19 The severity of the fine for companies that do not abide by this new legislation has incentivized these organizations to hastily delete content that, upon further inspection, does not break Germany’s Criminal Code regarding hate speech and fake news. 20 This has brought a major backlashagainst the German government for over-censoring people’s free speech and raises the question of what is too much censorship in a modern context. Germany has generally had more restrictions on its speech since unification in 1871 creating a long-standing precedent of what is okay to be controlled by the government and what is not. The Internet, however, has created a space where international communication is effortless, therefore changing the landscape in which Germany’s legislation applies. Today, Germany has one of the highest rates of free speech alongside its European allies. 21 In a global context, the regulations that preside over Germany are minimal compared to what people in non- democratic countries face. Still, on popular social media platforms that are commonly used across the world, it is easy to review Germany’s recent censorship laws and label them as overly restrictive. From an outside perspective, this may be true, but for Germans, their modern censorship rules are the most lenient they have ever been.
Germany’s historical journey with censorship laws has not only shaped its domestic landscape but has also had implications for the broader European and global context. Germany’s experiences, particularly during periods like Nazi rule, serve as a cautionary tale on the fragility of free expression in the face of authoritarian regimes. Notably, the commitment to free speech by Germany in its post-war constitution has influenced broader European norms and has contributed to the region’s collective emphasis on democratic values. Furthermore, on the global stage, Germany’s current approach to censorship, especially in the digital age, sets an example for other nations dealing with similar challenges. The implementation of laws like the Network Enforcement Act reflects Germany’s proactive stance in addressing online hate speech and disinformation, prompting discussions globally about the difficult balance between protecting public discourse and preserving individual freedoms online. As a large, influential nation, Germany’s policies and principles on censorship continue to influence and contribute to the evolving standards of free expression on an international scale.
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