Today we associate hate-speech law with human rights and the protection of minorities against prejudice and violence. Germany, like many other European countries, bans speech that incites hatred (Volksverhetzung) against people on the basis of race, ethnic origin, religion, and nationality.Footnote 1 Even Holocaust denial is illegal in certain circumstances. Such laws reflect, more broadly, a global “human rights revolution” since 1945 consisting of international treaties (e.g., the United Nation's 1948 Universal Declaration of Human Rights) and monitoring organizations promoting the right to personal dignity and freedom from discrimination.Footnote 2
Yet, few scholars and commentators are aware of or are interested in the fact that such laws developed long before 1945, and for reasons that had nothing to do with human rights. German and European laws regulating incitement to hatred date from the mid-nineteenth century. They were enacted not to protect the weak and persecuted, but, on the contrary, to crush political dissent in an era of revolutionary upheaval. Influenced by English sedition law, the first modern hate-speech codes were promulgated in France during the 1820s and 1830s to oppose an emerging socialist and workers movement. Such laws then made their way to the German states during and after the 1848 revolutions. Prussia's hate-speech law of 1851 became the basis for German federal law after unification in 1871, enshrined in Art. 130 of the Kaiserreich's criminal code, which criminalized endangering the peace through the “incitement to violence of different classes of the population” against each other. (A companion law, Art. 131, criminalized hate speech against the state itself.) Art. 130 was not enacted to protect rights, but to enforce “order” and preserve “public peace” against political dissent. Unlike today's hate-speech laws, which aim to protect pluralism in the form of social differences, Art. 130 was used to repress class, ethnic, national, and political differences. Indeed, that law became so identified with government campaigns against organized labor and Social Democrats that it came to be known as the Klassenkampfparagraph. Prosecutors also used Art. 130 against Catholics during the Kulturkampf and, later, to silence Polish nationalists in Prussia's eastern territories.
There is an extraordinary disconnect between these historical facts and scholarly discussions of legal theory. On the one hand, several legal dissertations lay out many of the empirical facts about repression in the nineteenth century and the origins of German hate-speech laws in counterrevolutionary politics. Most recently, Benedikt Rohrßen has provided an overview of the laws and legislation surrounding German hate speech from the Kaiserreich to the present.Footnote 3 On the other hand, the theoretical literature—written by political scientists, legal scholars, and philosophers—is premised on the notion that hate-speech laws are recent inventions of post-World War II European democracies reacting to the crimes of the Nazi and fascist regimes.Footnote 4 If they take note at all of the earlier history, it is to discount it as part of a repressive era irrelevant to postwar human rights law. Scholars of comparative constitutionalism, in turn, posit a set of European legal traditions, rooted in the values of honor, dignity, and community, to account for the seeming willingness of European courts to privilege the protection of the dignity of a victim subject to hateful, degrading speech over the free speech rights of those who express such hate. By contrast, U.S. courts, which are supposedly rooted in a more libertarian and individualistic culture, have generally rejected hate-speech regulations as violations of First Amendment rights.Footnote 5
James Q. Whitman's work on German “dignitarian” law exemplifies this culturalist approach to explaining the origins of hate-speech law. As he and others have correctly pointed out, many current aspects of German law on hate speech, defamation, and privacy, as well as the Federal Republic's Basic Law itself, are explicitly geared to protecting personal dignity. Seeking to explain this emphasis, Whitman, whose influential essays represent the only systematic attempt to historicize the long-term development of German dignitarian law, traces it back to the survival in modern garb of an early-modern aristocratic honor ethos. Honor, once the exclusive domain of elites in a premodern, hierarchical society, did not disappear, according to Whitman; it was democratized in the twentieth century, i.e., it trickled down—or, in his words, “leveled up”—to the masses and was reformulated in the more universalistic terms of modern dignitarian law. Once exclusive aristocratic codes of honor thus became the generalized laws of the Federal Republic guaranteeing protection of personal dignity. It is striking that Whitman—unlike most constitutional scholars, who emphasize 1945 as the turning point for modern hate-speech regulation—counterintuitively argues that it was, in fact, the Nazis who had set the stage for postwar developments through their anti-hierarchical notion of a generalized German Volk honor, which became the basis of postwar democratic dignitarian law, including its hate-speech jurisprudence.Footnote 6
This article rethinks the theoretical literature and the broad culturalist claims for German hate-speech law. Its central questions are how and why German hate-speech law, a legacy of class warfare, shifted in the course of the nineteenth and twentieth centuries from being a tool of political repression to one that promotes the human rights of minorities. Departing from a more traditional legal historiography focused on formal legal institutions and laws, this article examines law from below as social and political practice, the results of which challenge many of the assumptions and theories of the relevant literature.
The key to understanding why hate-speech law developed as it did in Germany, the article shows, lies less in a culture of dignity and an aversion to liberty than in the history of interest politics. Germany's present-day “dignitarian” legal culture evolved, in other words, not through the trickle down and generalization of an aristocratic honor-based legal tradition, but rather through the interplay between law, on the one hand, and, on the other, the strategic actions of minority interest groups and political parties seeking legal remedies for incendiary, prejudicial speech. Scholars have noted that a significant paradigm shift occurred from a class-based and authoritarian concept of hate-speech law to the present-day concept premised on the protection of pluralism and minority interests in the democratic state. They have argued, moreover, that the key turning point for this shift occurred in the post-World War II backlash against the Third Reich.Footnote 7 This article demonstrates that the essential turning point happened much earlier, during the Kaiserreich.Footnote 8 It was at this time, in the 1890s, that a grassroots Jewish advocacy and defense organization, the Centralverein deutscher Staatsbürger jüdischen Glaubens (CV), began forging a new model of hate-speech jurisprudence around defending and protecting Jews from the vitriol of antisemites.
Hate-Speech Law as Class Politics
Modern hate-speech law began as reactionary, counterrevolutionary politics. There had been earlier laws limiting demeaning, hateful speech. Prussia's 1794 law code, the Allgemeines Landrecht (ALR), banned expressions of incitement against the state and against certain religious groups, as well as speech that dishonored individuals. Art. 151, for example, punished, with a prison sentence of up to two years, speech that caused the “disapproval (Tadel) or ridicule (Verspottung) of the country's laws” and “citizen discontent with the government.” In a similar vein, Art. 214 criminalized speech “insulting” and “dishonoring” a state-approved “religious society.”Footnote 9 Defamation laws on honor insults, which made up a lengthy section of the ALR, punished “disparaging gestures, words, or behavior” that insulted or slandered an individual person.Footnote 10
It was not until the uprisings of 1848–1849, however, that the Prussian authorities saw fit to control speech that defamed whole classes of people. Indeed, the notion of “class” itself—as opposed to the older term estate (Stand)—was the product of the same disruptive forces spurring the 1848 revolutions, namely, the economic, social, and political changes accompanying the transition from a corporate society of ascribed status and roles to the type of class society associated with modern industrial capitalism.Footnote 11 Prussia led the legislative way: on June 30, 1849, King Friedrich Wilhelm IV issued a press ordinance that included a hate-speech paragraph punishing (with a fine of up to two hundred Thaler, or two years in prison) anyone convicted of “seeking publicly to incite hatred or contempt of members of the state against each other.” In retrospect, Art. 17 of the press ordinance represented an important moment in the history of hate-speech regulation. It was a product of, and reaction to, the age of democracy and the class antagonisms of nineteenth-century mass politics. Censorship, one of the chief evils of the old regime, had been banned outright in the early days of the revolution. Overnight and under immense pressure, Prussia dismantled its system of preventive censorship in a March 17, 1848 law (slightly modified in April) that guaranteed freedom of association, assembly, and the press. The result was an explosion of speech—pamphlets, newspapers, clubs, meetings—that was critical in driving the revolution. Reacting against this phenomenon, the June 30 law was part of a broader counterrevolution, already underway for months, seeking to rein in free speech, as well as what conservatives considered to be its worst result: the emergence of activist, radicalized workers, politicized by newly-formed leftist clubs and publications. In November 1848, the military marched into the capital, dissolved parliament, imposed martial law, and immediately suspended all recently won civil rights, including freedom of the press. Martial law was a stopgap measure at a time when the monarchy, seriously weakened, was reluctant to prevent other reforms. Progress toward constitutionalism thus continued in the watered-down form of the December 5 constitution, a document that the monarchy imposed by fiat. Elections to a bicameral parliament followed in early 1849, based on a fairly democratic suffrage. The elections resulted in a lower house composed of a strong faction of liberals and even some radical democrats. The political stage was thus set for clashes with the government, of which the restoration of civil liberties was one of the most pressing.Footnote 12
The counterrevolution was proceeding apace, but it was doing so in an extremely volatile situation. The government was facing resistance in both the streets and the parliament, and, on the international front, the looming threat of the Frankfurt Parliament's national constitution, which threatened to dissolve the German Confederation (1815–1866) and reconstitute Germany on the revolutionary basis of national sovereignty. It was in this context that the government set severe limits on freedom of expression in March 1849 by bringing before the Landtag a package of three draft bills regulating the press, the public posting of signs and notices, as well as the right to association and assembly. The bills were a direct response to a barrage of criticism of martial law by the Left, which culminated in left-liberal deputy Benedikt Waldeck's formal appeal for its abolition and for the restoration of civil liberties.
The bills attempted a trade-off, offering to lift martial law in exchange for new regulations on speech. The assembly and association bill, for example, introduced police-state measures that, besides other draconian measures, required all associations dealing with public matters to furnish the authorities with their statutes and constitutions, to notify the authorities before any meeting dealing with public matters, and to request police permission to conduct outdoor meetings. The press bill intentionally avoided an incendiary return to outright (i.e., preventive) censorship, opting instead for elaborate post-publication police and judicial oversight. Besides criminalizing incitement to hate, the bill proposed holding not only the author but also potentially the editor, publisher, printer, and distributor of a publication legally responsible for any illegal content. It also required that information on all periodicals and newspapers be submitted to the police before publication, demanded that copies of all publications be delivered to the police as well, criminalized the selling or distribution of writing that “harms good morals,” and gave the police wide confiscatory powers.Footnote 13
We know the reaction of the lower house of parliament to the first two bills, which underwent debate. The same cannot be said for the press law, because on April 27, before debate could commence, the king dissolved the lower house. It would never again meet as a democratic body. When it reconvened in the summer of 1849, its composition was radically altered to the right as a result of the introduction of a new three-class suffrage law.Footnote 14 In the meantime, the monarchy had issued by fiat the press law of June 30, 1849, which would be incorporated almost verbatim into Prussia's 1851 criminal code as Art. 100. It stated that “whoever endangered the public peace by inciting [anreizen] hatred or contempt of members of the state against each other” would be punished with either a fine of twenty to two hundred Thaler or a sentence of one month to two years in prison. With one notable change (discussed later), this law later became Art. 130 of the Kaiserreich's penal code.Footnote 15
When introducing the bills to parliament on March 8, 1849, Interior Minister Otto Theodor von Manteuffel could not have been clearer about the underlying conflicts motivating his proposal to restrict freedom of expression. If critics wanted the lifting of martial law, he explained, passage of these bills was the condition, the only way to rein in the “pathological agitation” (krankhafte Aufregung) of the early days of the revolution. At stake was nothing less than an epic battle: on one side stood the forces of order, i.e., the authorities and their allies, who were the defenders of “law and order” and the protectors of “civilization” itself. On the other side stood anarchy and “terrorism,” meaning activities that contradicted “the natural relations between employer and employee.” The “demagogues” and their easily “deluded” (getäuschte) “rabble” (Pöbelmassen) agitated among the “workers and apprentices,” presenting “impudent” (ungehörige) demands to improve their conditions; they took part in mass meetings, gathered petitions, and joined democratic clubs demanding new laws. They attacked property, destroyed factory machinery, stormed the Zeughaus (artillery arsenal) waving the banner of the “red republic,” and accosted ministers and deputies in the streets. Manteuffel indicted “abuse” of the press as the crux of this disorder because of the way it mobilized the masses with its “poisonous slander and depravity (Entsittlichung)” in fliers, posters, songs, and images.Footnote 16
The idea of “incitement” was central to Manteuffel's thinking about social disorder: “powerful excitation” must be held in check; “pathological agitation … roused (aufstachelt)” the masses, causing anarchy. Incitement produced “hatred”—the emotion that drove sedition and violence in the masses “against everything of lasting permanence” and tradition. Hatred turned into a weapon “discharged” in criminal outrages. This position was summed up in the written justification (the so-called Motive) submitted with the bill: “Public attacks on property and family, which are the foundations of civil society, constitute a special offense, as do incitements aimed at causing hatred and contempt among citizens, because the latter endanger the foundations of the life of the state and the general welfare and security.”Footnote 17
The Left outrightly rejected Manteuffel's narrative. What they saw was not a battle between order and anarchy, but rather an attempted power grab by the government that had momentous implications for the future of the state and the country. The Left saw the bills in the context of a broader struggle with the government over whether Prussia would evolve into a constitutional state or return to the absolutism of the past. Positions crystalized during the ensuing debate about the bills: on the one side, a discourse about order, on the other, a counternarrative of freedom and the Rechtsstaat. Underlying all of this were the ongoing events of class warfare— the incited passions and violence of the Paris June Days, street barricades, worker insurrections, and radical clubs—and the national political drama over the creation of a German nation-state. In this context, debate over technical details about the policing of public meetings inevitably gave rise to the airing of opposing political philosophies about fundamental constitutional rights and the nature of the state.
Defending the bill's plan for police surveillance of political meetings and associations, the conservative deputy Adolf Heinrich Graf von Arnim-Boitzenburg argued that a “healthy check” on freedoms was required to prevent “incitement” of the people, as well as mutually hostile relations among “individual classes of the population” that might lead to violence. But at the same time, he also emphatically rejected charges of “Junkerthum.”Footnote 18 Arnim's colleague Georg von Viebahn, also seeking to distance himself from that “Junkerthum” and the crassest reactionaries, argued that support of the bill did not mean a return to the pre-March days of absolutism: “none of us” wants that, he claimed. Still, “limits have to be made” in the interest of “public order,” since complete freedom of assembly and association opened the doors to “agitation” (Aufregung).Footnote 19 Its “herd” (Heerd), Hans Hugo von Kleist-Retzow put it, is the Volksversammlung (public meeting)—its air, the “secret clubs.”Footnote 20
The Left, by contrast, cast the bill within a broad narrative about constitutional principles. Giving the police the power to “dissolve public meetings” and associations, undermined the very basis of a “free civil society.” It was the very definition of “despotism.”Footnote 21 Referring to the “spirit of absolutism” behind the bills, Jodocus Temme rattled off a list of similar laws from the past under French and German regimes.Footnote 22 Whereas Franz Ziegler, who was reminded of the “old police state,” pointed out (as did other critics) the bill's violation of the December 5 constitution, Anton Dierscke warned that it would undermine the basis of a future, unified German state.Footnote 23 The path to controlling violent mass passions lay not in stifling speech, they argued, but rather in its liberation. Freedom of speech and the open articulation of differences of opinion, von Borries argued, were necessary preconditions for the development of a “politically mature citizenry.”Footnote 24 Turning the notion of mass violent passions against the Right, radical journalist Karl Grün warned that without free speech, the terrible “class warfare” seen in Paris in 1848 could very well repeat itself in Berlin.Footnote 25
Let us pause for a moment and return to the theoretical literature on the development of Germany's dignitarian legal culture. If one looks purely at the formal law, the developments described up to this point seem to support Whitman's theory of a dignity culture developing out of aristocratic honor. For centuries in the German lands, the regulation of hateful speech was closely associated with the protection of honor through defamation and insult law. The concern with protecting honor was critical because, in the premodern world of corporate estates, a hierarchy of differential honor undergirded the social structure, including the elite status and special rights and privileges of the aristocracy. Accordingly, as we have seen, the Prussian ALR of 1794 was replete with regulations against insult. Its provisions criminalizing hate expressions against religious associations suggest how laws minimizing hateful speech had, over time, been extended from protecting the social hierarchy and aristocratic status to protecting religious peace. Such laws included the criminalization of actions inciting mutual “hate” and “bitterness” among religions, as well as anti-religious “insults” (Beleidigungen) that involved “dishonoring” behavior and gestures (Geberden). The 1849–1851 laws against hate speech represented, in this sense, a continuation of the process, further extending and generalizing the legal discourse of hate by linguistically transferring it from the old corporate order to the new circumstances of democratic politics at mid-century.
An examination of daily life and politics outside the formal law nevertheless reveals the severe limits of this thesis of a dignitarian culture generalized from an aristocratic ethos. In reality, the dynamics revolved around a power struggle between monarchy and legislature over the nature of the state—absolutism versus constitutionalism—with hate-speech regulation being closely associated with the forces of absolutism and reaction. The opposition between absolutism and constitutionalism did not align smoothly, however, with the categories of (aristocratic) honor/dignitarianism versus libertarianism—with the former winning out in the new hate-speech laws—because the Left's libertarian opposition to limits on civil liberties had nothing to do with its rejection of notions of honor. On the contrary, liberals were deeply wedded to a culture of honor.Footnote 26 What they opposed was the nexus of aristocratic honor, corporatist hierarchy, and absolutism. While they attacked hate-speech laws as a form of censorship by the authoritarian state, liberals and leftists were nevertheless working to liberalize, not eradicate, honor laws.Footnote 27 In other words, the dichotomy underlying the culturalist thesis— between a dignitarian culture associated with aristocratic honor, and a libertarian culture emphasizing free speech and individual rights—is false. Instead, libertarianism in Germany was perfectly consistent with a dignitarian culture of honor.
The Left lost the battle over hate speech in 1849–1851. But in the ensuing decades, it would do what it could to dilute and contain such laws in the interest of protecting free speech (“libertarianism”) and the Rechtsstaat. Predictably, Art. 100 (together with its companion, Art. 101, which regulated hate speech against the state) was indeed used to prosecute political opponents of the regime and quickly became a hated tool of absolutist reaction. Bowing to such criticism, the 1869 draft bill for the criminal code of the North German Confederation contained a concession: the insertion of the word “hostility” (Feindseligkeit) to specify and narrow punishable forms of behavior. During an 1870 Reichstag debate, liberals were able to weaken the scope of Art. 100 even further through a small but significant word change: from “Feindseligkeit” to “Gewaltätigkeiten” (violence): as Eduard Lasker explained, there was an important difference between outlawing an internal feeling (Feindseligkeit), as opposed to behavior that objectively causes illegal acts of violence (Gewaltätigkeiten). Forbidding the former—which Gottlieb Planck rightly clarified by definition as present in every “class struggle”—does nothing but “hinder free criticism of social classes and public discussion.” Prussia's “Kautschuk-Paragraphen” (Art. 100 and 101) had, in their vagueness, done just that. The result was arbitrary, unjust, politically motivated prosecutions and the widespread muzzling of critical debate on public matters.Footnote 28 Indeed, those paragraphs had become so detested and controversial that Reichstag conservatives barely bothered to muster a defense, and the measure consequently passed in 1870. It was later incorporated into what became Art. 130 of the Reich penal code.Footnote 29
In subsequent years, the government tried on multiple occasions—in 1875–1876, in 1878, and in 1894–1895—to crack down on dissident speech by broadening Art. 130. Its unsuccessful draft bills attempted to add text that would have criminalized verbal attacks on property, religion, marriage, and the family.Footnote 30 Each time, the bills were beaten back by opposition from the Left and the center. These bills, and the political debates they produced, suggest how hate-speech law in the Kaiserreich remained a flashpoint for struggles over governance and state power, pitting pro-democratic forces against authoritarian ones. Beginning in the 1870s, that struggle centered on the rising socialist movement, and through the 1890s, hate-speech politics closely tracked battles against the Social Democratic Party (Sozialdemokratische Partei Deutschlands, SPD). Introducing to the Reichstag in 1875 a bill that would have punished “attacking … the institutions of marriage, the family, or property,” Justice Minister Adolph Leonhardt spoke of the “dangerous social and church-political disturbances (kirchenpolitische Wirren)” and of sinking “respect for the authority of the state,” implicitly referencing both Social Democracy and the ongoing anti-Catholic campaigns of the Kulturkampf.Footnote 31 Catholics were indeed at risk of prosecution under Art. 130 during these years. An addendum to the law, Art. 130a (the so-called Kanzelparagraph), had been added to the penal code in 1871: aimed at silencing Catholic critics of the state, it punished, with a sentence of up to two years in prison, any priest or other “religious officials” (Religionsdiener) who publicly discussed “matters of state” in a way that “endanger[ed] the public peace.” In 1876, a legislative proposal aimed at sharpening that law was defeated.Footnote 32
As the subsequent Reichstag debates made clear, everyone nevertheless understood that the true intent of the bill was to thwart the Socialists. Archconservative and future Prussian Minister Robert von Puttkamer expressed outrage that it was currently legal in Germany to make public speeches in support of “free love” and the eradication of private property.Footnote 33 Offering a historical overview, Philip, Prince of Eulenburg, explained that Art. 130 was “directed against Social Democracy,” a “staatsfeindliche” party that was not only advocating atheism and a “red republic,” but also, as he put it in frightening terms, hypnotically seducing and manipulating workers into revolt against “other classes.”Footnote 34
As in 1849, the Left countered such attacks by launching a defense of civil liberties and by voicing concerns about the threat to civil rights and free speech. The events of mid-century remained the reference point: France's “hated” September Laws (1835); the bad old days of Prussia's Art. 100, with its vague wording that had given infinite flexibility to repressive judges and courts, which rendered opinions based on arbitrary, subjective feelings. One must not go back there, warned Lasker.Footnote 35 Violent class conflict in France—embodied in the Paris June Days of 1848 and the Paris Commune of 1871—lurked in the background and were invoked by critics of the bill to insist on the futility and danger of a harsh, authoritarian approach to socialism and free speech.Footnote 36 Ludwig Bamberger, thinking in pragmatic terms, argued that the September Laws against the Saint-Simonian socialists simply did not work. Indeed, their effect had been the opposite of what had been intended, leading to the ensuing bitterness, anger, repression, and subsequent radicalization of the June Days and eventually to the Paris Commune. Bamberger compared unfavorably the violence in repressive France to the political peace that had prevailed in England, with its free press. If, he argued, socialism was, at present, the most dangerous movement in Germany, it was because German conservatism was so repressive. The conservatives, not the socialists, were the real danger.Footnote 37 Acutely aware of the threat that Art. 130 posed to the Catholic Church, Ludwig Windthorst, the leader of the Catholic Center Party, joined in criticising the bill. He admitted that, yes, the SPD was indeed a threat, but that force and repression were not the ways to defang the movement; one must instead support a free press while, at the same time, improve the conditions of—and propagate Christian principles among—the working classes.Footnote 38
Given the repeated and passionate attention devoted to hate-speech laws, it is noteworthy that the actual number of cases going to trial annually was miniscule (it was only in the double digits), and convictions were even lower (in the single digits).Footnote 39 Yet, trial numbers do not reflect the real impact of the laws on free speech. They do not include, for example, the large number of house searches for and confiscations of publications, with Art. 130 serving as the section of the criminal code most frequently used by the authorities to justify such seizures.Footnote 40 At the same time, perceptions about the threat posed by Art. 130 prosecutions grew with a series of Reichsgericht (Supreme Court) rulings, which—contrary to the intentions of the liberals who had approved the wording of Art. 130—upheld convictions for hate speech even when statements by defendants contained only the most indirect links to potential violence. Such convictions (i.e., ones involving nonviolent expressions) were precisely what liberals like Lasker had sought to avoid by replacing “Feindseligkeit” with “Gewaltätigkeiten” in 1870. Moreover, state prosecutors treated hate-filled statements by anti- and pro-government voices unequally, prosecuting the former even when no link to violence could be found, while failing to bring charges against the latter when it used forms of speech that were equally or even more inflammatory.
From Class to Ethnicity and Race
By the turn of the century, hate-speech prosecutions were focusing less on the socialist movement. Instead, they were increasingly targeting the speech of members of the Polish nationalist minority (and, to a much lesser extent, Danish nationalists), as well as antisemites. This development reflected the spread and intensification of nationalism and “race” as organizing tools of mass politics and as integral categories of thought in the age of imperialism and great power rivalries, a shift that, in German and European politics, would only intensify in the twentieth century.
The move from class to ethnicity in hate-speech politics can be seen in the court system, with Reich criminal statistics showing a geographical displacement of Art. 130 prosecutions toward the Prussian East, home to a large and discontented population of Poles suffering under policies of Germanization.Footnote 41 The discontent erupted in the Reichstag in 1906, when Bernard von Chrzanowski, a deputy representing Posen, and his Polish Party colleagues introduced a bill to revise the law in order to put a stop to expansive and unjust Reichsgericht rulings that critics had long bemoaned.Footnote 42 Chrzanowski launched into a graphic description of the Polenverfolgungen (persecution of the Poles) and of the ways in which German police, prosecutors, and judges had created “provocation” (Erregung) and “embitterment” in the population by treating expressions of Polish nationalism as hate speech.Footnote 43 He began with the case of a Polish publicist whom Posen's Strafkammer II court had sentenced to one-and-a-half years in prison for an article calling for Germany's defeat in ongoing international tensions between England and Germany. The latter, the article declared, was Poland's “biggest and oldest enemy” and sought the “destruction” (Ausrottung) of the Polish people. True, the article displayed little “sympathy” for Germany, Chrzanowski admitted. But, he argued, it in no way met the definition of incitement to violence under Art. 130. Chrzanowski continued with a litany of popular songs, poems, picture postcards, and other visual images ranging across Polish life that had been banned and prosecuted, brandishing copies of the sources on the Reichstag floor in a dramatic “show and tell” (Anschaungsmethode). What rankled was not only the repression but also the biases of the authorities and the blatant partiality with which justice was meted out, sparing German racist hate speech against Poles, even when it outrightly called for violence. Defending Chrzanowski's motion, Center deputy and fellow Catholic Karl Bachem accused the judiciary of using Art. 130 as an ersatz for Hoch- und Landesverrat (high treason and treason).Footnote 44
The political debates about and jurisprudence regarding Polish nationalist speech indicated a shift in the use of the law from class conflict to ethnic, racial, and national struggles. Yet, the Polish speech issue continued to be fought within the established paradigm of class conflict—a paradigm of law and order, censorship, and the repression of social differences and political dissent in the interests of the powerful. In this paradigm, hate-speech law was the cause of discrimination, not its solution—a fact that could not have been made any clearer in the views articulated by its socialist and Polish critics. As SPD Reichstag deputy Arthur Stadthagen put it when calling for its complete abolition, Art. 130 was not an “instrument of justice”; it was a “political weapon… of the ruling classes… [used] against political opponents.”Footnote 45 This version of hate-speech law was radically different from the more familiar post-1945 paradigm of human rights protection.
The move toward a human rights paradigm began many decades before 1945 in a second shift at the turn of the century toward an ethnic politics of hate-speech jurisprudence in which Jews invoked Art. 130 to sue antisemites. By the 1890s, antisemitism had gained a foothold in the Reichstag through the establishment of new, fringe, anti-Jewish political parties and through the cooptation of antisemitism by traditional conservatives (as seen, for example, in the Conservative Party's Tivoli program of 1892), while making strong inroads into the universities and into numerous political and cultural organizations that made up German civil society.Footnote 46 Jewish activists, desperate to silence the growing vitriol of the antisemitic movement, began upending the prevailing paradigm of hate speech by arguing that Jews constituted a “class” deserving protection under Art. 130.Footnote 47 In doing so, they were forcing Art. 130 jurisprudence to defend the rights of a persecuted minority group, something for which the law had not been originally intended. The activists who promoted this new interpretation of Art. 130 were the leaders of a Jewish defense and advocacy group, the Centralverein deutscher Staatsbürger jüdischen Glaubens (CV), one of hundreds of extraparliamentary interest groups blooming in the era of mass politics in the late nineteenth-century.
Founded in 1893 as a direct reaction to the mounting threat of antisemitism, the CV was the first mass organization devoted to the cause of systematically defending and promoting the equal rights of German Jews.Footnote 48 Educated, middle-class, liberal professionals (mostly lawyers), the CV's founders and leaders were a new breed of Jewish leader wrought by the post-emancipation era of legal equality, national unification, industrialization, and representative institutions. They were fighters and activists who refused to play by the old rules and were unwilling to tolerate quietly the many indignities Jews still faced. They proceeded from the assumption that Jews deserved the full equal rights of citizenship, and were ready to use the tools of law, publicity, and electoral politics to achieve the changes they sought.
The willingness of the CV's leaders to confront antisemites publicly and head on was a controversial move in the Jewish community, which, for centuries, had learned to survive discrimination and persecution by making itself inconspicuous and avoiding at all costs antagonizing the gentiles, instead seeking special protections from rulers (hence the term Schutzjude). In the minds of its leaders, the CV was replacing the supplications of the “medieval Schutzjude” with a set of modern claims for equal rights and dignity. Eugen Fuchs, the first head of the CV's Rechtsschutzkommission (legal division) and a leader in moving the CV in its formative years toward legal activism, explained that for hundreds of years, Jews in the ghettos had been forced to remain quiet and passive while haters “insulted” (beschimpften) and trampled “Jewish honor and religion.” No longer. Jewish rights must be actively defended and antisemites confronted directly, he urged a CV assembly.Footnote 49 The CV's strategies involved public education and, increasingly because of leaders like Fuchs, the use of the law courts. The two were closely linked: directly challenging antisemites in the courtroom would enlighten the public about the false and invidious nature of antisemitic claims, while, at the same time, help to stop potential outbreaks of anti-Jewish violence inflamed by such claims.Footnote 50
In bringing hate-speech claims against antisemites to the attention of state prosecutors, the CV was forcing the law in a new direction and thus, in effect, ushering in a legal and political paradigm shift. The hate-speech paradigm that had developed out of the 1848 revolution was modeled on class conflict. The legally protected interest (Rechstgut) safeguarded by this law was not rights—let alone minority rights—but public order and the interests of the majority (i.e., the interests of property, nation, and state). The kinds of legal cases this paradigm generated remained consistent over many decades, namely, those of censorship in the interests of Prussia's and Germany's existing power and property relations. In 1851, for example, Friedrich Harkort, a Westphalian industrialist, publicist, and member of the Prussian lower house, was prosecuted for publishing a pamphlet criticizing “Junkerthum,” a cause célèbre that was still being cited sixty years later in debates about Art. 130.Footnote 51 In 1863, Ferdinand Lassalle faced a similar charge for a speech and a pamphlet that had allegedly incited the “hatred and contempt” of “the workers against the bourgeoisie, the propertyless against the propertied classes.”Footnote 52 Rosa Luxemburg received a two-month prison sentence in 1906 for a speech at the SPD's congress in Jena in which she called for support of the mass strike. Since voicing such support was not in itself illegal, the court focused its attention on the way in which Luxemburg had spoken and the impression her speech had supposedly had on the audience. Accordingly, it convicted her because, as the SPD newspaper Vorwärts paraphrased it, the court determined that she had “worried” (beunruhigt) the bourgeoisie and put the propertyless classes into a violent frame of mind, thus violating Art. 130.Footnote 53
The CV's lawsuits were of a different order. One example was the case of the radical antisemite Walter von Pückler, whose violent, venomous rants against Jews were the subject of numerous court proceedings. In an 1899 speech that appeared in his pamphlet, Down with Israel (Nieder mit Israel), he declared: “The German is good-natured and forbearing, but if his wrath is ever awakened… then he forcefully claims the right to a beating and thrashes and thrashes and thrashes until there is nothing more to cut to pieces.”Footnote 54
The CV immediately initiated a lawsuit. Pückler was eventually acquitted (the court dismissed the speech as merely “rhetorical”), but the CV's interventions did lead to confiscation of the pamphlet and to the eventual convictions of editors Johannes Wilberg, Wilhelm Bruhn, and Karl Sedlatzek of, respectively, the Staatsbürger-Zeitung and the Deutscher Generalanzeiger for reprinting the speech.Footnote 55 Other instances of antisemitic hate speech that the CV pursued in the courts included accusations about the ritual murder of Christian children and of the intentional sale of contaminated food to gentiles, as well as attacks on the Talmud for sanctioning perjury and other defamatory charges based on anti-Jewish stereotypes and myths.Footnote 56
Departing from the nineteenth-century's class-based paradigm of repression, these lawsuits were about the defense of what would come to be known in liberal societies as “minority rights,” a forerunner of the notion of hate-speech law in the post-Holocaust era. Yet, the CV clearly did not invent the rights paradigm out of whole cloth. On the contrary, it is not even clear that, without the benefit of hindsight, its activists recognized their own behavior as a paradigm shift. This was because the laws themselves, though primarily about class conflict, were interpreted from the very beginning to be applicable to many different kinds of hate speech—and thus potentially to protecting a range of social and religious groups, including Jews. A clause in France's 1835 law regarding incitement against “classes of the population”—on which Prussian and German hate-speech statutes were based, and which continued to be cited by the Reichsgericht well into the twentieth century—had been interpreted to apply not only to hate speech directed against status and professional “classes,” but also to hate speech against religious groups and to chants such as “down with the Jews” (à bas les juifs).Footnote 57 Decades later, the Reichsgericht would likewise recognize a broad definition of “class” under Art. 130 to include groups with distinctive characteristics, as well as those that “develop out of a basis in society, according to property and profession, occupation and trade, education and origin [Herkommen].”Footnote 58 It was not until 1899, however, that the court extended the status of “class” to Jews. Authoritarian laws for preserving the peace were intertwined from the beginning, in other words, with Enlightenment ideals about tolerance. This is even clearer in another section of the penal code that the CV often employed: Art. 166, which outlawed insults against a religion, a statute that merged the heavy hand of the state with longstanding Enlightenment ideals of religious tolerance.Footnote 59
To the extent, then, that existing law made potential provision for the prosecution of anti-Jewish speech, the CV's move toward suing antisemites seems merely to be a natural extension of the laws themselves. But what was neither “natural” nor (one presumes) intended by the authors of these laws were the methods, language, and agency of CV intervention at the turn of the century. That intervention centered around a new political phenomenon and context, namely, the grassroots extraparliamentary interest group authorizing itself to intervene in matters of justice, and engaging directly with the public within the framework of mass democracy. The CV's language was that of the modern—and still deeply controversial—demand by Jews for rights and protections as equal citizens, a discourse that was dramatically expanding the definition of antisemitic hate speech, from words associated with violence to a whole range of demeaning and dishonoring speech directed against Jews and Judaism. All of this was happening not because of the largess of enlightened absolutism, but rather as a result of active pressure from below.
The way in which the CV used the penal code—Art. 130, as well as defamation laws and other sections of the penal code—reflected, in turn, a particular vision of Jewish inclusion that was rooted in the CV's liberal, secular, middle-class culture. As an outsider group struggling for inclusion in a deeply ambivalent and often hostile majority society, German Jews in imperial Germany faced the classic dilemma of all minority struggles—whether religious, racial, ethnic, gender, or sexual in nature—in the modern nation-state: how to assert equality as a universal right of citizenship while preserving and defending the particularities and differences of group identity. Jews answered the fraught question of difference and equality in various ways, from the Zionist critique of integration to Orthodoxy's emphasis on reinforcing the boundaries of religious community within the German state. The CV's integrationist strategy, which developed as a result of more than a century of emancipationist struggles, was consistent with its members’ deep attachment to the German state and nation (the founding of the Kaiserreich in 1871 had been central to Jewish emancipation), as well as to the secular ideals of political liberalism and a culture of Bildung and self-improvement.Footnote 60 Appropriating many of the values of the majority gentile society, the CV's secular, bourgeois culture of Bildung, liberalism, and nationalism was balanced by its assertive claim for the rights of Jews as enlightened, moral, patriotic citizens, as well as its defense of the equality of a modernized, enlightened Judaism within the nation-state. The assertion of “class” status under Art. 130 was tailor-made for this type of integrationist politics, providing the CV with a legitimate basis—within a universalistic discourse on constitutional rights—to claim at once (“class”) difference and equality.
A nascent human rights paradigm was thus developing within the existing framework of hate speech. This shaped the very meaning of rights protection in the courts, making any CV legal victory possible only through the assimilation of anti-antisemitism into the prevailing paradigm of class difference. In its 1899 ruling upholding Art. 130 protections for Jews, for example, the Reichsgericht explained why Jews qualified as a “class”: “There exists with Jews [class] differences with respect to descent [Abstammung], belief, and other traits… They are German, but among Germans, they form a special class.”Footnote 61 This ruling opened up new legal avenues for Jewish defense, but was itself problematic because, as some in the Jewish community rightly feared, it could be used to justify a new exclusionary politics based on alleged Jewish otherness.
Protecting Jews (to the extent that the state was willing to bring such cases and that the courts were willing to rule in its favor) dovetailed with official opposition to organized antisemitism—not necessarily because of sympathy for Jews, but because of the subversive, anti-government positions of radical antisemites. The CV faced other formidable obstacles in the courts: jurists refused to recognize Jews as a protected “class,” prosecutors refused to bring indictments, and convictions were hard to achieve. Widespread, conventional antisemitism within the courts themselves was part of the problem, making prosecutors and judges less interested in taking on such cases and less willing to bring convictions. Some judges complacently invoked the prevalence of certain antisemitic libels in dismissing heinous anti-Jewish hate speech as benign, arguing that other instances of said libel could not be connected with outbreaks of violence. It should be noted that such arguments were put forth even though the Reichsgericht had upheld the legal principle that proof of a direct link between incitement to hate and (potential) violence was not required under Art. 130. Other courts agreed with arguments by antisemitic defendants that their words were to be taken merely as “figurative” (bildlich), not literal—or that the Jews, as a “race” and not a class, were not entitled to sue under Art. 130.Footnote 62 Such obstacles meant that the legal path of Jewish self-defense was destined to fail in the long run. But there were also some notable victories—the most important of these during the Kaiserreich being the Reichgericht's 1899 ruling allowing Jews to sue as a “class” under Art. 130. That ruling set a precedent for numerous Art. 130 cases against far-right antisemites during the Weimar Republic, when the Prussian state, unlike its Kaiserreich counterpart, would actively pursue prosecutions (the conservative bent of the Weimar judiciary meant, however, that such prosecutions generally did not succeed).Footnote 63
At the political level as well, the CV's paradigm-shifting activism faced the unwelcoming realities of the Kaiserreich's identity politics—for there was a political logic to the Klassenkampf version of hate speech, and it was one that worked against Jewish activists forging a human rights application of the law. A crucial problem was that the identification of Art. 130 with the authoritarian state deprived the Jewish legal defense cause of its natural allies on the Left, putting leftists and liberals by definition in opposition to hate-speech laws, even though the CV was allied with the progressive parties in electoral politics.Footnote 64 Social Democrats, as we have seen, were victims of the law. Moreover, the SPD, while at the forefront in opposing antisemitism (this included August Bebel's important 1893 analysis, Antisemitismus und Sozialdemokratie), was wholly uninterested in the defense of Jews as Jews.Footnote 65 According to dialectical materialism, antisemitism (and other ethnic and religious divisions) was a product of the misery and dislocations caused by capitalism. Widely identified with capitalism in the popular mind, Jews were thus ready scapegoats for middle-class groups suffering such dislocations. According to this interpretation, antisemitism would eventually disappear when socialism had eradicated the underlying economic causes. In the meantime, Jews had been given the tools, with emancipation, to pursue equality and complete assimilation within the capitalist order. Later, in the Weimar Republic, the repeated pleas of the CV to strengthen laws against antisemitic speech foundered, in part, on the lack of interest of socialist and liberal politicians, who were more concerned with the threat to free speech that such laws posed.Footnote 66
Whereas the SPD sought to smash the “capitalist-Junker state,” the CV and most German Jews, acutely aware of their recent gains at the hands of that state—and of the fragility and incomplete nature of those gains—were at constant pains to prove their loyalty to the government; they were, in fact, some of Germany's most fervent nationalists. Both the antisemites and the socialists consequently represented, for the CV, a frightening new revolutionary politics in a “new key.”Footnote 67 At the same time, fear of appearing to be disloyal citizens and of igniting an antisemitic backlash prevented the CV from following the same path the Catholics had pursued in the 1870s and forming a Jewish political party. The CV was nonetheless fascinated by the Catholics and closely monitored the Center Party and its affiliated organizations as models for pursuing aggressive ethnic politics.
The political dynamics of hate-speech law after 1945 could not have been more different. The defense of minority ethnic and religious groups’ right to dignity that emerged in West Germany in the wake of the Holocaust meant that anti-antisemitism and the Jewish cause became synonymous with democracy. It was the SPD, at this point, that (unsuccessfully) spearheaded special legislation in 1950 that included prison sentences for public attacks on groups of people that were based on their “race, belief, or worldview,” or that violated the “human dignity or rights” of a person belonging to an attacked group.Footnote 68 The eventual reformulation of Art. 130 that became West German law in 1960 and that, for the first time, incorporated the language of human rights by punishing attacks on “human dignity” (Menschenwürde), was passed with unanimous support by the Bundestag.Footnote 69
In shifting the focus toward interest politics, I do not mean to dismiss the role of culture. Issues of honor and individual dignity—the basis of Germany's “dignitarian” legal culture—were and remain central to hate-speech law in Germany. In fact, the defense of Jewish honor had always been a driving force for the CV itself. To cast its honor culture in terms of the trickle down of a surviving aristocratic ethos, however, is to misunderstand the central dynamics of both honor and hate-speech politics at the time. By the late nineteenth century, the ideas about honor held by marginalized and disempowered groups like Jews had fully merged with a modern politics of democratic rights.Footnote 70 This was why Eugen Fuchs saw nothing contradictory in arguing for defending simultaneously the equal “rights” of Jews and their “honor.”Footnote 71 Claiming Jewish “honor” meant claiming inclusion in the nation as fully equal citizens. Moreover, the dignitarian culture of CV activists should be seen not as a determining structure, but as part of a shifting value system that interacted with a range of other historical factors. CV leaders thought in terms of Jewish honor, but they were also highly pragmatic and resourceful. Their strategic thinking blended the high-minded defense of Jewish honor with pragmatic calculation, as they weighed their options in individual cases and considered factors such as the potential for a successful conviction, as well as the relative significance of the case for the Jewish community as a whole. There were certain kinds of cases—Religionsbeschimpfung (religious insult) and Aufreizung zum Klassenhaß (incitement to class hatred)—Fuchs explained, that were so important to Jewish honor and “Selbsterhaltung” (self-preservation) that they transcended all other considerations.Footnote 72 CV leaders were also constantly calculating which sections of the penal code could be invoked most successfully. Incitement to class hatred was one possibility, but the extant laws on defamation (Art. 185 ff.), a statute that criminalized the insulting of a religious society (Art. 166), as well as the charge of public nuisance were also useful. The CV creatively exploited all these statutes, treating them interchangeably and strategically on a case-by-case basis in accordance with many factors, including the type of violation, the chances of success in the courtroom, as well as the severity of the attack.Footnote 73
Conclusion
Even before the Holocaust, changes from below were forcing a new definition of hate speech, gradually moving it from class warfare toward minority rights. That shift affected the jurisprudence of the courts but not the actual wording of the law, which remained unchanged until 1960. Forestalling the decades-long project of a revised penal code, the upheavals of wars, fascism, and postwar allied occupation were one reason for this continuity. To be sure, it was only after World War II that the impetus and fitting conditions were present for a formal legislative revamping of hate-speech law as human rights protection. For it was only then that anti-antisemitism was prioritized by the state and came to be closely identified with political stability and the maintenance of democracy. But the law in practice had been changing for many decades, making the very idea of a Klassenkampf-definition of hate speech deeply problematic. In the various penal reform draft proposals put forward during the Weimar period, Art. 130 was slated to disappear altogether, to be merged into a general paragraph governing offenses related to “instigating punishable acts.” The entire notion of “class” in Art. 130 draft legislation had become too “contested,” “unwieldy,” and “narrow,” failing to address the “political and religious antagonisms” (Gegensätze) underlying incitement to violence.Footnote 74 As this article has argued, the legal battles over Jewish inclusion in the nation-state were the most important reason for this state of affairs, as well as for the growing disjuncture between the law on the books and the realities in the courtroom.
Yet, any memory of the role played by Jewish activists and plaintiffs in this history largely disappeared from the legislative record after World War II. The discourse of Bundestag deputies working out a new hate-speech law in the 1950s revolved around a strict opposition between the old Klassenkampf Art. 130, which was viewed as an empty relic of an earlier age, and a newly revised Art. 130 to be adapted to the present problem of post-Holocaust, resurgent antisemitism.Footnote 75 Legal scholars subsequently adopted wholesale the underlying assumptions of this legislative discourse: that is, of a definitive break with an authoritarian past defined in opposition to a postwar political culture of tolerance and pluralism.Footnote 76
In postwar legislative debates, one senses only indirectly the more complicated story told here. It can be detected, for example, in the stray comment of a parliamentary deputy during the Bundestag debate on the SPD's 1950 bill that conflated “Klassenhetze” with antisemitic hate speech, a conflation unthinkable in the very different legal and historical context of, for instance, the United States.Footnote 77 That said, the tangled history of German Jewish responses to antisemitism was very much present in the minds of lawmakers when it came to the charged issue of whether the new Art. 130 should make explicit references to the categories of race, nation, and religion. It is ironic that it was the leadership of Germany's decimated Jewish community that resisted such wording, insisting instead on the more generalized protection of “parts of the population (Teile der Bevölkerung).”Footnote 78 The more specific the law, the closer it came to being perceived as particularly aiming to protect Jews. This threatened to upend the delicate balance of difference and equality under the old “class” version of Art. 130, isolating and segregating Jews, it was feared, as a different and “privileged” group and thus playing into the hands of antisemites.
There are important theoretical and methodological implications in shifting the focus from 1945 (or, alternatively, from 1933) to the 1890s. One of these underlines the importance of “history from below” in the practices of the law. Jewish grassroots activism, as this article has shown, helped drive the developing jurisprudence of hate speech in the Kaiserreich. Still relatively new, this approach to legal history, which draws from social and political history, anthropology, as well as cultural studies, emphasizes the agency of actors (both within and outside the judicial system), the interactions between text (law) and context, and the disputed meanings of laws. Such a focus challenges the assumptions of a dominant periodization that has made 1945 the “zero hour” (Stunde Null) of modern hate-speech law and that has disregarded continuities from the nineteenth century. It also prompts doubts about the sharp dichotomy drawn in the scholarship between (German/European) dignitarian and (U.S.) libertarian legal cultures. It is certainly the case today that there are striking differences between the ways in which German and American courts and societies treat hate speech. But understanding those differences in terms of long-standing traditions and static cultures proves less helpful when one begins to examine the political dynamics of how and why such laws were first created and subsequently modified over time. Those dynamics, from the 1848 revolutions to 1914, witnessed the shaping of both the law and notions of honor—i.e., of what types of anger, hate, and critique constituted illegal speech under what circumstances—within the context of fundamental political struggles over questions of power, equality, and the nature of the state.
