There Shall Be No Censorship

Siegfried Müller sits drunk and smiling in front of the camera, in his fighting uniform and with his Iron Cross on his chest, blissfully ignorant of whom he is being interviewed by. “Congo Müller” is the name he is known by everywhere, he boasts. In the Congo in 1964/65, he helped put down the Simba rebellion as a mercenary, an unspeakably horrific massacre. His deployment, he says, “was necessary to show the blacks that white people are there. Because whites still have a fantastic reputation in Africa today.” In the Congo, he says, they fought “not because we were fighting for the Congo (…). We fought for Europe in the Congo, for the idea of the West, and in fact, to be very precise: for Liberté, Fraternité and so on.” In South Africa, where he lives, blacks and whites are “very strictly divided, you could almost say like in the Third Reich in Germany the Jews and the Germans. The blacks have all the subordinate positions in society. (…) We whites have an incredible standard of living in South Africa.”

The film “The Laughing Man” dates from 1966 and was a product of the East-German GDR. In the same year, according to a report in SPIEGEL, a man named Helmut Soeder visited the Leipzig Book Fair in East Germany and brought a copy of the film home to West-Germany from there. When he tried to show it in public, the criminal police showed up: He would have had to submit the film to the Frankfurt Federal Office of Commerce for approval. In fact, it was (and, in theory, still is) forbidden to import films from abroad that are “suitable in terms of their content” to act as propaganda against the Freiheitliche Demokratische Grundordnung (liberal democratic basic order). On top of that, importers of films at that time (no longer) were obliged to submit a copy of the imported film to the said authority for examination within one week (§ 5 para. 1, 2 GÜV). Mr Soeder did nothing of the sort, but filed a lawsuit. And lo and behold: the Administrative Court of Frankfurt came to the conclusion that these norms were indeed incompatible with the Basic Law which, in art. 5 para. 1 p. 3, demands unequivocally: “There shall be no censorship.”

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The Federal Constitutional Court, to which the Frankfurt court referred its findings, could not bring itself to agree with that conclusion. According to the 1972 decision, the restriction on importing films from abroad (i.e. from the communist East) just had to be interpreted narrowly, i.e. limited to “films produced specifically as propaganda material and agitating against these protected interests” (i.e. concoctions of the Stasi), to be in conformity with the constitution. Censorship? Not according to the Senate. What the Basic Law precludes is only “preventive censorship”. The import ban prohibits importation, but does not prevent it: You can still import the film and show and distribute it, under the risk of being punished. If there is censorship, however, you couldn’t even take this risk in the first place.

From today’s perspective (and also for contemporaries, see the impressive dissenting opinion by Wiltraud Rupp-von Brünneck and Helmut Simon), the FCC’s conclusion in this particular case seems somewhat bizarre: a norm as irredeemably unconstitutional as § 5 paras. 1, 2 GÜV is hard to find, and it takes quite a bit of effort and empathy for the Cold War context in which the whole case took place to understand the tortured efforts of the Senate majority to save it from invalidity.

The premise, however, has much going for it. According to art. 5 para. 2 of the Basic Law, freedom of opinion / information can be regulated by “general laws” which have a repressive effect: I can say what I want but I will have to bear the (proportional) consequences. This may be repressive, but it is certainly consistent. Censorship, within the meaning of art. 5 para. 1 p. 3 of the Basic Law, on the other hand, has a preventive effect: I don’t have to bear any consequences for what I say at all, because I can’t say it in the first place. This is utterly incompatible with a Freiheitliche Demokratische Grundordnung, for which the free circulation of opinions, information, perspectives and arguments is, according to the classic FCC formula, “schlechthin konstituierend” (per se constitutive).

What befalls me as a consequence of what I have said does not fall under art. 5 para. 1 p. 3 GG from the outset. If my speech gets deleted and cancelled as a consequence of what I have said, then that is not censorship. Neither if, as a consequence of what I said, I am disinvited to say it all over again. Not even if I am punished for what I said. This is all plain and ordinary responsible-holding of mature discourse participants who are responsible for their actions and omissions, and only those who, for whatever reason, are not accustomed to being held responsible for their actions and omissions will take offense at it.

At the Hamburg Arts Academy, two members of the Indonesian artist collective Ruangrupa have recently taken up DAAD-funded guest professorships. Ruangrupa had curated this year’s Documenta exhibition and thus shares responsibility for the awful anti-Semitism scandal surrounding it. There were protests. Academic freedom is important and must be respected at all costs, assure both Hamburg’s Senator for Science Katharina Fegebank and the Federal government’s anti-Semitism commissioner Felix Klein. But “academic freedom can and must never be carte blanche for anti-Semitic ideas” (Fegebank). “Possible dissemination of anti-Semitism at German universities, especially by the staff working there, must not be enabled with public funds” (Klein).

The sentence by Felix Klein, taken at its word, is evidently wrong. Possible dissemination of anti-Semitism at German universities, especially by the staff working there, is and has been enabled with public funds for years, and how wouldn’t it be? We are Germans after all, anti-Semitism has been deeply entrenched in our culture and history for centuries; who are we to rule out that some publicly funded person at some German university will possibly disseminate anti-Semitism? Of course such dissemination is and remains possible every day. Who would expect anything else?

If, however, someone indeed disseminates anti-Semitism, then there must be consequences. But only then. Everything else is censorship.

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The two Ruangrupa guest professors Reza Afisina and Iswanto Hartono claim that they have nothing to do with anti-Semitism at all. Many do, even Viktor Orbán (against whose recent public appearance in Berlin the Bildzeitung and Volker Beck apparently had no objections). Perhaps the two artists have indeed disseminated anti-Semitism. In which case one could demand the withdrawal of their guest professorship as a consequence. This would then have to be proven. By those who make that demand. And no, the mere suspicion of being close to people who have worked with folks who have not distanced themselves from BDS in a sufficiently clear way proves exactly nothing.

The protesters who bombed the semester-opening ceremony at the Hamburg University of Applied Sciences shouted “anti-Semitism is not an opinion!” and, brace yourself: “throw the Nazis out!”. Imagine if this call had been heeded: At the Hamburg Arts Academy, Congo Müller’s compatriots finally agree on where the Nazis come from. From Indonesia!

Speaking of Congo: Do you know David van Reybrouck’s book? It was a big bestseller a few years ago. It’s unspeakably horrible to read what we Europeans have done there and are still doing. Hard to bear, really.

There is a new book by David van Reybrouck. It is about the Indonesian struggle for independence from the Dutch colonial power. “Indonesia put itself at the forefront of the decolonisation that soon engulfed Africa and changed the political map forever,” says the publisher’s announcement. Another world-shaking event that I know almost nothing about. Extraordinarily exciting. I definitely want to read this!

The week on Verfassungsblog

… summarised by PAULINE SPATZ:

With the Russian war of aggression on Ukraine, questions about national defense, alliance contingency and the Bundeswehr are once again particularly acute. For the new VerfassungsPod series, our editors JOCHEN SCHLENK & MAXIMILIAN STEINBEIS spoke with experts about the defense constitution, defense, out-of-area missions and the turning point.

KIM LANE SCHEPPELE & GÁBOR MÉSZÁROS show in the second part of their series on Hungary’s supposed concessions in the conflict with the EU that the Hungarian government’s “Anti-Corruption Task Force” cannot meet the EU’s demand for effective anti-corruption measures.

GIACOMO DI FEDERICO reconsiders the fears fueled by Ursula von der Leyen’s comment prior to the Italian elections to draw conclusions on the institutions’ duty to respect and promote the EU’s founding values.

DANIEL HAEFKE looks at the “constitutional Catholicism” of the New Right.

SASCHA WOLF explains the legal framework and the background of the censorship accusations against ZDF in connection with rapper Danger Dan’s laudation for pianist Igor Levit.

PAVEL DOUBEK examines whether and how the Czech Constitutional Court succeeded in resolving the conflict between religious protection and freedom of artistic expression.

The UK Supreme Court this week considered the second Scottish independence referendum. SIONAIDH DOUGLAS-SCOTT analyses the key findings of the hearing.

Triggered and supported by a popular initiative, the Mar Menor lagoon in Spain now enjoys legal standing as the first natural entity in Europe. BLANCA SORO MATEO & SANTIAGO ÁLVAREZ remain sceptical.

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After the 5th Congress of the World Conference on Constitutional Justice, MAX STEUER reflects on a question of the relationship between judges and academics.

France’s refusal to take care of the family members of Daesh-involved French citizens detained in Syria violates human rights. JULES LEPOUTRE explains why the Strasbourg ruling does too little and comes too late.

LEON ZÜLLIG comments on the proposed reform of the Schengen Border Code and asks what “free movement” still means today.

MARTIN NETTESHEIM analyses in a longread two opposing Opinions of Advocates General at the ECJ on the relationship between data protection law and private autonomy.

In Iran, citizens keep protesting against the femicidal and tyrannical regime. MARZIEH TOFIGHI DARIAN sees the failure of Iran’s constitutional order approaching.

The Supreme Court of India recently recognised the right of unmarried women to abortion, which SURBHI KARWA comments on.

ANTOINE DUVAL & DANIELA HEERDT explain what the International Olympic Committee’s Strategic Framework on Human Rights is all about.

GWINYAI MACHONA counters recent attempts to discredit the “postcolonial debate” and celebrate the abolition of slavery as a “Western achievement”: the colonial legacy is not so easily discarded.

That’s all for now. All the best, and see you next week!

Max Steinbeis