During my time at law school, I had to good fortune to study under a great scholar of the Constitution, rather than, say, a glib community organizer. That scholar was Gerald Gunther.
Gunther was born in Germany in 1927. His Jewish family had deep roots in Germany, and Gunther said they were reluctant to leave even as the Nazi government increasingly oppressed Jews. Young Gunther, unaffected by tradition, had no difficulty assessing the situation, and was hugely relieved when his family finally left for America in 1938.
In the early 1970s, Gunther visited Germany as a feted scholar to lecture on constitutional matters. When he returned to California, we asked him about his trip.
Gunther replied that the trip was fine and that the Germans couldn’t have been nicer to him. He added, however, that they still don’t really understand the concept of free speech.
More than 40 years later, the problem endures. The German government faces growing opposition to, and revulsion towards, a policy that suddenly has produced the mass influx of Muslim immigrants, including more than a few criminals. It has responded by, in the words of the Washington Post (paper edition), trying to “enforce civility.” The government is doing this by investigating and punishing inflammatory comments about immigrants.
The government has doled out fines and probation to people for engaging in such speech. It has also reached deals with Facebook, Twitter, and Google to have these outlets remove offensive posts.
The Post says that Germany is cracking down on “hate speech” with an eye to its Nazi past. But it ignores a key part of that past — the suppression of dissent. Germany hardly repudiates its past when the government curbs the right of citizens to express vitriolically their disgust at government policies and their consequences.
Many Germans, including some on the left, understand this:
Stefan Körner, chairman of Germany’s liberal Pirate Party, argued that democracies “must be able to bear” a measure of xenophobia. He condemned the government’s deal with social media outlets to get tougher on offensive speech, saying that “surely it will lead to too many rather than too few comments being blocked. This is creeping censorship, and we definitely don’t want that.”
Unfortunately, governments often want precisely that.
According to the Post, Germans can face incitement charges for comments aimed at creating hostile feelings against a particular race. Speech that strongly denounces the wave of rape apparently perpetrated by Muslims on New Year’s Eve and connects this criminality to the Muslims and immigrant perpetrators, and/or to the government policy through which they entered the country, could be deemed to fit this definition. Suppressing such speech should be unacceptable.
The Post’s article provides only a limited sense of what speech actually is being suppressed. Here’s one example, though:
In the town of Wismar in northeastern Germany, for instance, a judge in October sentenced a 26-year-old man to five months probation and a 300 euro fine after the man had posted on his Facebook page that refugees should “burn alive” or “drown” in the Mediterranean.
This comment is awful, but not much different than what Washington Post reporter Dave Weigel once said of Matt Drudge. In a free country, it shouldn’t be fined or otherwise punished by the government.
In another case:
The home of a 26-year-old Berlin man was raided by police, who confiscated his computer and phones after he had posted the tragic image of the dead 3-year-old Syrian boy whose body on a Turkish beach became a symbol of the refugee crisis. Along with the photo, he had posted: “We are not mourning, we are celebrating!”
The comment is deplorable. However, it should be unacceptable for the police to tell citizens what they must mourn and what they cannot celebrate, or to prohibit the expression of views on such matters. In a free country, speech crosses the legal line when it advocates violence, not before.
In her New Year’s speech, Chancellor Merkel told Germans they should not listen to “those with coldness, or even hate in their hearts, and who claim the right to be called German for themselves alone and seek to marginalize others.” That’s fine. But Merkel goes a dangerous step further when she employs censorship to ensure that Germans can’t listen to these people.
This basic understanding of free speech is still lacking 80-plus years after the rise of Hitler and 40-plus years after Gerald Gunther’s return to Germany.