No.14, July 20, 1998

GERMAN GOVERNMENT FORCED TO GO TO DAMAGE CONTROL

Washington Embassy tries to Justify Suppression of Free Speech

WASHINGTON -- Panicked by mounting world condemnation of its harsh repression of unpopular opinions, the German government has issued through its embassy here a full statement explaining its actions. In the newsletter, Freedom of Speech and Recent Legal Controversies in Germany, the anonymous author agrees: "Freedom of opinion and expression is one of the basic human rights affirmed in … the constitution of the Federal Republic of Germany."

This document was designed to assure that the Nazis' suppression of individuals' rights could never occur again. Article 5 confirms freedom of thought and expression for individuals along with freedom from censorship.

The embassy then claims that "like the legal codes of other nations," the Article also sets out possible limitations on the freedom of expression where this collides with "individual rights".

The right to free speech even covers statements that may be harsh and extreme and may appear defamatory.

The has however recently clashed with criminal law in recent cases involving "political statements" and the use of the Internet to disseminate what the embassy lumps together as "right-wing propaganda and pornography."

On this point, the statement is hedged with embarrassment and special pleadings.

"In cases where expression of opinion is combined with a claim of fact, the right to express that opinion is protected by the Basic Law to the extent that its basis in fact can be verified."

Precisely this plea, of truth, or justification, has been disallowed in countless German court cases ending with the imprisonment of the accused.

The German Criminal Code, in its Sections 185, 189 and 194, is unique in prohibiting the defamation of the dead.

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"The statement that Jews were not persecuted during National Socialism," argues the embassy document, "is clearly false."

In dealing with what it calls denial of the Holocaust, (an otherwise meaningless phrase invented by Atlanta professor Deborah Lipstadt) German criminal law clearly finds itself in conflict with the right to express one's opinion. The courts currently hold that the injury to the personal honor of those defamed (dead Jewish citizens) takes precedence over the constitutional right to freedom of expression

In April 1994, the Federal Constitutional Court therefore confirmed that Holocaust revisionism is excluded from the constitutional guarantee of freedom of opinion. "The opinion expressed is not particularly deserving of protection," the judges ruled, "stemming as it does from a claim of fact that has been proven untrue. This court has consistently protected the personal honor of those defamed above the right of others to make patently false statements."

Offenders may also be prosecuted under Section 130 of the Criminal Code, which makes incitement (Volksverhetzung) a punishable offense.

Germany is not, the embassy smugly remarks, the only nation placing Holocaust revisionism beyond the limits of free speech. France's Fabius-Gayssot law passed in 1990 makes it a criminal offense to dispute the facts of the Holocaust as recognized by the 1945 Nuremberg war crimes tribunal. A similar law exists in Italy.

The European Union Council of Ministers agreed in March 1996 on a "Joint Plan of Action" against Holocaust revisionism and "other hate crimes." [The embassy did not mention that Britain refused to endorse the plan].

The Ministers proclaimed the need for international cooperation to prevent revisionists from exploiting national differences in laws by moving from one country to another.

Justifying the arrest of US citizens Gary Lauck and Hans Schmidt for activities committed at home, on US soil, the embassy statement continued that while the German authorities suspected that Schmidt had returned to the United States, they could not ask for his extradition "since his activities are protected under American law."