Germans Prohibited From Thinking

Scott Idleman sidleman at wi.rr.com
Fri Feb 5 21:15:26 PST 2010


I agree entirely that there are differences and that some of these
differences, such as the legal mode or form of the government's censorship,
can be considered significant.  

But Robert Sheridan's post asked "[w]hy . . . we in the U.S. allow pretty
much unfettered expression on life and death subjects while Germany
doesn't."

I first questioned the extent to which we truly do allow "pretty much
unfettered expression," citing examples of government censorship of certain
symbols or literary works that have racial or racist components.  I then
suggested that the contours or limits of our doctrine of expression might,
like Germany's in Professor Sheridan's theory, be shaped by forces such as
fear.  (I must confess to not knowing what Professor Sheridan means by "life
and death subjects," and thus I don't know how that phrase's intended
meaning might affect my assessment.)

There is no doubt that the forms and degrees of government action in the
German and U.S. examples are different when broadly viewed, which is why I
did not suggest that they were the same or equivalent.  Yet I thought it
equally problematic to imply or believe that "the regulation or toleration
of expression in the United States is always, categorically, and clearly
distinguishable from the German situation."

My focus, quite simply, was on the existence of and reasons for the
government censorship in the first place, looking at both countries, not
just Germany.  Once that assessment has been made, in fact, I suspect that
the reasons for the differences in mode and degree of legal sanction may
also become clearer.

Scott

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, February 05, 2010 19:37
To: 'CONLAWPROFS professors'
Subject: RE: Germans Prohibited From Thinking

	It seems to me that there's a very big difference between government
decisions about what speech to exclude from government-run schools and
government-run libraries and government decisions about what speech to
criminalize.

	Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> bounces at lists.ucla.edu] On Behalf Of Scott Idleman
> Sent: Friday, February 05, 2010 2:45 PM
> To: 'Robert Sheridan'; 'CONLAWPROFS professors'
> Subject: RE: Germans Prohibited From Thinking
> 
> Robert Sheridan's distinction could explain the particular question of
Mein
> Kampf's availability in the United States when compared to Germany.  But
> it's not clear to me that the regulation or toleration of expression in
the
> United States is always, categorically, and clearly distinguishable from
the
> German situation.
> 
> Instead of banning the use of the swastika altogether, we tolerate the
> banning of the confederate flag in certain contexts, e.g., on the t-shirts
> of public high school students, and instead of banning Mein Kampf, we
> tolerate the removal from public schools (either class reading lists or
even
> libraries) of older books that are seen from the vantage point of 2010 as
> depicting African-Americans in mocking or degrading ways.
> 
> Perhaps this homegrown intolerance arises from Americans' own fear or
guilt
> regarding their country's particular history of slavery and racial
> discrimination, though the range of potentially offensive communications
> today--what some might call the dominion of political
correctness--suggests
> that there's more to it than just the nation's record of racial injustice.
> 
> In short, I would hope that any effort to explain the suppression of ideas
> and expression in Germany, which I certainly consider a worthwhile
inquiry,
> might also shed light on contemporary efforts to suppress certain ideas or
> symbols in the United States.
> 
> Scott Idleman
> Marquette University
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Robert Sheridan
> Sent: Friday, February 05, 2010 11:45
> To: CONLAWPROFS professors
> Subject: Germans Prohibited From Thinking
> 
> http://tinyurl.com/yfkp363
> 
> Link above is to an article in NYT, today, text below the comment:
> 
> If there's one place where thinking about Hitler might be encouraged,
> not stifled, it's Germany, not to mention the U.S. Yet Germany has gone
> the other way when it comes to expression on this subject.
> 
> Why do we in the U.S. allow pretty much unfettered expression on life
> and death subjects while Germany doesn't?
> 
> A theory: The willingness to tolerate expression is a function of fear.
> Our history of fear of Hitler is different than Germany's, a country
> that he led to disgrace and destruction with Allied help. This isn't to
> excuse the gag order but to try to understand it.
> 
> I wonder whether it would make any sense at all in Germany to throw the
> subject open to discussion. The fear must be that there would be more
> neo-Nazi reaction in favor than scholarly influence against.
> 
> Very different from our FA doctrine.
> 
> See the remarks of Mr. Kramer, below.
> 
> rs
> 
> MUNICH - In Germany, an author is granted an ironclad copyright for 70
> years after his death, apparently even if he is subsequently regarded as
> one of the greatest mass murderers in history and a dark stain on the
> national character.
> 
> Hitler
>
<http://topics.nytimes.com/top/reference/timestopics/people/h/adolf_hitler/i
> ndex.html?inline=nyt-per>'s
> copyright on "Mein Kampf," in the hands of the Bavarian government since
> the end of the Nazi regime, has long been used to keep his inflammatory
> manifesto off the shelves in Germany
> <http://www.nytimes.com/info/germany?inline=nyt-geo>. But with the
> expiration date looming in 2015, there is a developing showdown here
> over the first German publication of the book since the end of World War
> II.
> 
> Experts at the respected Institute of Contemporary History
> <http://www.ifz-muenchen.de/index.php?id=4&L=1> in Munich say they want
> to prepare a critical, annotated version of the book for release when
> the copyright expires 70 years after Hitler's suicide in his Berlin
bunker.
> 
> "We hope to prevent neo-Nazi publications by putting out a commented,
> scholarly edition before that," said Edith Raim
> <http://www.ifz-muenchen.de/edith_raim.html>, a historian at the
> institute. "'Mein Kampf' is one of the central texts if you want to
> explain National Socialism, and it hasn't been available in a commented
> edition at all in Germany."
> 
> But the Bavarian government opposed the idea, citing respect for victims
> of the Holocaust. In a statement Thursday, the Bavarian Finance Ministry
> said that permits for reprints would not be issued, at home or abroad.
> "This also applies to a new annotated edition," said the statement,
> adding that the state would use "all means at its disposal to proceed
> against any violations."
> 
> There was also disagreement as to whether the book might be banned as
> Nazi propaganda. The Bavarian government said that even after expiration
> of the copyright, "the dissemination of Nazi ideologies will remain
> prohibited in Germany and is punishable under the penal code."
> 
> But Ms. Raim said that diaries by prominent Nazis like Joseph Goebbels
> and Heinrich Himmler were already available.
> 
> Unofficial copies of "Mein Kampf" are easily accessible on the Internet
> already, and the book is legally published abroad, including in the
> United States.
> 
> Hitler wrote the book, which detailed his hatred of Jews, his desire for
> revenge against the French and the need for more space or "Lebensraum"
> in the east for Germans, while in Landsberg prison in Bavaria after the
> failed Beer Hall Putsch in 1923. The first volume of the book was
> published in 1925 and the second the next year.
> 
> More than 12 million copies of "Mein Kampf" were in circulation by 1945.
> The cities of Munich and Nuremberg, among others, gave it away to young
> couples as a wedding present, according to the Bavarian state library.
> 
> Stephan J. Kramer, secretary general of the Central Council of Jews in
> Germany <http://www.zentralratdjuden.de/en/topic/2.html> in Berlin, said
> the publication of "Mein Kampf" continued to split the Jewish community
> in Germany, with many Holocaust survivors opposing its publication. "I
> have the highest respect for this opinion, but on the other hand I'm
> saying very openly: The copyright is going to be waived anyway. It's a
> matter of time before the book is available in shops and libraries," Mr.
> Kramer said.
> 
> Mr. Kramer said that with the book available on the Internet, it was
> important to have the work put in context by a responsible group like
> the Institute of Contemporary History. "Those who are already on the
> wrong side already have the book and already read it from their own
> point of view," he said. "Let's get it out there, and let's get it out
> there with a commentary."
> 
> 
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