Quantcast

«

»

Nov 15 2012

Secular Blasphemy in Germany

I’ve been an outspoken critic of laws that criminalize Holocaust denial in many countries around the world, but it appears that those laws are even worse than I thought. In Germany, you apparently can’t even compare something to the Holocaust without being censored by the government. Volokh quotes a German court ruling that was recently upheld by the European Court of Human Rights:

6. The applicant association is the German branch of the animal rights organisation PETA (People for the Ethical Treatment of Animals). It pursues, inter alia, the aims of preventing animal suffering and of encouraging the public to abstain from using animal products.

7. In March 2004 the applicant association planned to start an advertising campaign under the head “The Holocaust on your plate”. The intended campaign, which had been carried out in a similar way in the United States of America, consisted of a number of posters, each of which bore a photograph of concentration camp inmates along with a picture of animals kept in mass stocks, accompanied by a short text. One of the posters showed a photograph of emaciated, naked concentration camp inmates alongside a photograph of starving cattle under the heading “walking skeletons”. Other posters showed a photograph of piled up human dead bodies alongside a photograph of a pile of slaughtered pigs under the heading “final humiliation” and of rows of inmates lying on stock beds alongside rows of chicken in laying batteries under the heading “if animals are concerned, everybody becomes a Nazi”. Another poster depicting a starving, naked male inmate alongside a starving cattle bore the title “The Holocaust on your plate” and the text “Between 1938 and 1945, 12 million human beings were killed in the Holocaust. As many animals are killed every hour in Europe for the purpose of human consumption”.

8. In March 2004, three individual persons, P.S., C. K. and S. Korn, filed a request with the Berlin Regional Court to be granted an injunction ordering the applicant association to desist from publishing or from allowing the publication of seven specified posters via the internet, in a public exhibition or in any other form. The plaintiffs were at the time the president and the two vice-presidents of the Central Jewish Council in Germany. All of them had survived the Holocaust when they were children; C.K. lost her family through the Holocaust. They submitted that the intended campaign was offensive and violated their human dignity as well as the personality rights of C. K.’s dead family members.

9. On 18 March 2004 the Berlin Regional Court granted the injunction….

18. However, the Federal Constitutional Court did not find it necessary to decide whether the intended campaign violated the plaintiffs’ human dignity, as the impugned decisions contained sufficient arguments which justified the injunction without reference to a violation of the plaintiff’s human dignity. It was, in particular, acceptable that the domestic courts based their decisions on the assumption that the Basic Law drew a clear distinction between human life and dignity on one side and the interests of animal protection on the other and that the campaign was banalising the fate of the victims of the Holocaust. It was, furthermore, acceptable to conclude that this content of the campaign affected the plaintiffs’ personality rights. Referring to its earlier case law, the Federal Constitutional Court considered that it was part of the self-image of the Jews living in Germany that they belonged to a group which had been sampled out by their fate and that a special moral obligation was owed to them by all others, which formed part of their dignity.

I have little use for PETA and I am a serious carnivore myself. I think their campaign to compare eating meat to the Holocaust is quite silly. But this ruling is even worse. It’s another example of a secular blasphemy law, like a ban on flag burning. And it should be done away with.

29 comments

Skip to comment form

  1. 1
    baal

    hmmmm, maybe we could make godwins illegal in the US?

  2. 2
    eric

    I think their campaign to compare eating meat to the Holocaust is quite silly.

    I think its obnoxious, odious, and distasteful. It makes me want to go out and buy a steak, eat half, and then throw the other half in the garbage just to give them a symbolic middle finger.

    But yeah, the ruling is even worse.

  3. 3
    Jacob Schmidt

    I don’t agree with Germany’s laws on the matter, but seeing as their country was the driving force behind the holocaust (many other countries were quite complicit), I can understand a bit of craziness on the matter, especially because it’s been less than 70 years since the end of the war.

  4. 4
    composer99

    Maybe there’s a case to be made for civil sanction (a lawsuit by Holocaust survivors if they can demonstrate defamation or other unambiguous harm, perhaps?).

    At any rate, criminal sanction does not seem to be defensible.

  5. 5
    composer99

    Further to my comment #4:

    (1) What I meant to append to the first paragraph was “but I very much doubt it”. Holocaust denial in and of itself might be implicit defamation against Holocaust survivors (although I doubt that such an interpretation has held up in court if indeed anyone has ever attempted to argue it), but Six Degrees of Kevin Bacon, Holocaust-style, does not appear to be.

    (2) Also, a guarantee of ‘human dignity’ and the notion of ‘personality rights’ as noted in the ruling strikes me as vague & ill-defined, at least in comparison to, say, rights to property & person, or for that matter rights to conscience/speech. Certainly, in my non-expert opinion, much too vague on which to base any kind of case law.

  6. 6
    Gretchen

    I don’t agree with Germany’s laws on the matter, but seeing as their country was the driving force behind the holocaust (many other countries were quite complicit), I can understand a bit of craziness on the matter, especially because it’s been less than 70 years since the end of the war.

    PETA has also compared the raising of animals for food to slavery, and despite America’s history we somehow have managed not to censor that.

    I have little use for PETA and I am a serious carnivore myself.

    Me too– occasionally a light-hearted carnivore– but I would consider PETA a lunatic organization if I were the veganiest vegan out there.

  7. 7
    brandon

    I had a conversation with a German coworker about this a while ago. I said that even though Holocaust deniers are awful people, they should still have a right to say what they say. He responded that I shouldn’t be trying to push my American views on them, and I don’t know what it’s like. He said that the Germans are so ashamed of the Holocaust that they have no national pride, and waving around a flag like Americans do is considered distasteful. And the German people are so starved of a national identity that squelching free speech rights is considered a fair trade-off.

    If what he said is at all representative of what Germany believes, then they prioritize recovering their national pride over granting free speech rights to people who make light of the Holocaust. Not saying I agree with him at all, but it’s something to think about.

  8. 8
    Gretchen

    Funny. I don’t really have “national pride,” and find it a rather odious concept– “distasteful” is quite a good word, actually. But I think one of the indisputably best things about America is how much it values freedom of speech.

  9. 9
    Olav

    Crayzz #3, I agree. I live 5 km from the German border. I find it somewhat reassuring that Germans are taking the memory of the Holocaust so seriously. They are totally humourless about it: you don’t make Holocaust jokes in Germany, nor do you use it in any sort advertising campaign. The reason is that there are still people who think it did’t happen, or that it wasn’t so bad, or that it wasn’t bad enough and that they should be allowed to finish the job. German law bans the banalisation of the Holocaust in order to prevent that such neo-Nazis should feel encouraged.

    Also, I think the actual infraction on freedom of speech in this case is small to the point of being almost unnoticeable. PETA can still argue in Germany that they think animals are cruelly mistreated or whatever their argument is. They just can’t do it by using Holocaust comparisons.

    Speaking of “secular blasphemy”, I don’t think freedom of speech should be dogmatically sacred either. There can sometimes be legitimate reasons to have some restrictions in place. I am sure such exceptions exist in the country of the First Amendment too.

  10. 10
    jamessweet

    They took the phrase Godwin’s Law literally, I guess.

  11. 11
    Gretchen

    Speaking of “secular blasphemy”, I don’t think freedom of speech should be dogmatically sacred either. There can sometimes be legitimate reasons to have some restrictions in place. I am sure such exceptions exist in the country of the First Amendment too.

    They do, but they are very tightly conscribed, and usually pertain to cases in which physical or financial damage can be demonstrated to be a direct result of the speech. Being blasphemous, secular or otherwise, doesn’t cut it.

  12. 12
    Olav

    Gretchen #11:

    Being blasphemous, secular or otherwise, doesn’t cut it.

    But the case in Germany also has nothing to do with blasphemy. That is just the label that Ed stuck to it to make his point. I often agree with him and I like this weblog very much, but in this case I think he is mistaken. The Holocaust is not sacred in Germany but it is certainly taken very seriously, as anyone should expect.

    Again, the forces that caused the Holocaust still exist today and they should not be given any encouragement at all.

  13. 13
    Gretchen

    Okay Olav, please clarify the distinction you see between “sacred” and “taken very seriously” here, and why it makes Ed wrong.

  14. 14
    Nick Gotts

    Speaking of “secular blasphemy”, I don’t think freedom of speech should be dogmatically sacred either. There can sometimes be legitimate reasons to have some restrictions in place. I am sure such exceptions exist in the country of the First Amendment too.

    Of course they do: copyright and leaking military secrets for a start. But copyright violations are blasphemy against the sacred right to private property, so they can’t be allowed – and indeed, the laws against this type of blasphemy are continually being strengthened, and wherever possible, pushed onto other countries. Similarly, leaking military secrets is blasphemy against the sacred US of A itself.

  15. 15
    RH

    Although I think Holocaust denial laws, and laws banning the Nazi party are not the right approach I think it is absolutely vital that when talking about this kind of thing we take into account the context.

    1. Germany has a VERY different history than the US with respect to the Holocaust, denial of the Holocaust, and the modern Nazi party.

    2. If you are talking about Germany’s denial of free speech in the case of the Holocaust we should remember that the context is a country where essentially all other speech is permitted not somewhere like China or Iran. Arguments can be easily overstated.

    3. In this case PETA was clearly trying to be provocative, likely intending to be hauled into court for more publicity than they would otherwise get.
    I seriously doubt you would have any trouble publishing an academic paper about similarities and differences between the Rwandan genocide and the Holocaust in Germany (though I could be wrong).

  16. 16
    Olav

    Gretchen #13, with pleasure.

    The Holocaust (or rather, the memory of it and of the nation’s responsibility) is not sacred in Germany in the sense that it is holy for its own sake, that its worship is mandatory or prescribed, or that it is possible for one to could commit the nonsensical crime of blasphemy against it. The Holocaust is not a religious concept, it is a real thing that has happened.

    Taking it seriously is making sure that it doesn’t happen again. And that no proponents may start to feel justified.

  17. 17
    Gretchen

    Ummm, Olav, did you miss the whole point of the “secular” in “secular blasphemy”?

  18. 18
    Olav

    RH #15, völlig einverstanden.

  19. 19
    criticaldragon1177

    Ed Brayton,

    Peta is such a joke, I wish people would just make fun of them instead of arresting them for saying offensive things.

  20. 20
    Olav

    Gretchen #17, no I did not miss it. But I believe it is just a nonsensical retorical device. There is no such thing as “secular blasphemy” except perhaps in some metaphorical sense. And as I tend to more concrete thinking I do not see how such metaphore would apply in this case. No one in Germany worships or venerates the guilt of the Holocaust.

    PETA was not accused of anything rembling blasphemy or secular blasphemy. It was accused of denigrating the effects of the Holocaust. Which you cannot do in Germany not because it offends them, but because they know what it leads to.

  21. 21
    composer99

    Gretchen:

    (1) Do you agree with context-dependent time/place/manner constraints on speech (such as, say, the case of the street preacher posted here at Dispatches this past Tuesday)?

    (2) And if so, do you agree that being the country that perpetrated the Holocaust is a context that matters with regards to constraints on Holocaust-related speech?

    (3) If not, can you point to some line of argument that relies on something more than the dictionary definitions of ‘secular’ and ‘blasphemy’ – e.g. some case law/jurisprudence, or maybe sociological research – to support your disagreement?

  22. 22
    Artor

    While I support the goal of reducing cruelty to animals, I don’t buy the argument that “meat is murder.” Banning PETA’s adds only serves to bring them more attention, and perhaps more sympathy. Allowing their absurd, over-the-top adds to air instead serves to show people how ridiculous PETA is these days. do they have any credibility left?

  23. 23
    Gretchen

    Olav said:

    There is no such thing as “secular blasphemy” except perhaps in some metaphorical sense. And as I tend to more concrete thinking I do not see how such metaphore would apply in this case. No one in Germany worships or venerates the guilt of the Holocaust.

    People in the UK don’t worship or venerate poppies, either. The point is that there is a subject matter which is symbolic and declared off limits. PETA did not even deny the Holocaust– they affirmed it, and affirmed the horror of it in order to try and affirm the horror of what they believe to be animal abuse. Just as with religious blasphemy, the law says “Speak about this topic as we require, or do not speak about it at all.”

    composer99 said:

    Do you agree with context-dependent time/place/manner constraints on speech (such as, say, the case of the street preacher posted here at Dispatches this past Tuesday)?

    No. But I’ll answer your second and third questions as well anyway.

    Banning a certain type of speech entirely is not a “time/place/manner constraint.” It’s banning speech. A time/place/manner constraint entails that there are times/places/manners in which a country (being, after all, the entity which makes these laws) permits such speech, and Germany does not.

    I understand why Germany does not– you don’t need to continue explaining it. I simply firmly believe that such a ban doesn’t come close to accomplishing what they want it to do, and in fact contributes to the misery of the totalitarian regime that once existed by continuing the totalitarian practice of dictating what people are permitted to say about it.

  24. 24
    Olav

    Grete #23, let’s wrap up this back-and-forth. It doesn’t appear as though we are convincing each other of anything. I have just a few more remarks. You will have the last word of course.

    You say:

    PETA did not even deny the Holocaust– they affirmed it, and affirmed the horror of it in order to try and affirm the horror of what they believe to be animal abuse.

    Just for clarification: PETA is not seen by the German court as affirming the horror of the Holocaust. It is seen as disparaging it. If you can compare anything which is wrong in your eyes, from animal cruelty to not receiving enough pocket money from your parents, to the horror of the Holocaust then that banalises the real horror and crimes which were committed. And that leads to people thinking that perhaps the Holocaust was not so bad, or not bad enough, as I tried to explain above.

    Banning a certain type of speech entirely is not a “time/place/manner constraint.” It’s banning speech. A time/place/manner constraint entails that there are times/places/manners in which a country (being, after all, the entity which makes these laws) permits such speech, and Germany does not.

    You seem to adhere to the school of thought that says there is either absolute freedom of speech, or there is absolutely no freedom of speech. But I think most people will recognise that Germany putting some restrictions on the way you can publicise about the Holocaust (for instance in a campaign such as PETA’s) does not mean it is an unfree country. Modern Germany is a democracy and a Rechtstaat. Of course it is not a perfect place but it ranks at the top of countries where freedom of speech and civil and human rights in general are respected and protected. Except that to keep it that way, they feel they need to keep in check the expression of certain anti-human ideas which have led to such atrocities in recent history.

    Perhaps it is interesting to note that this attitude can be traced back to the denazification programmes that were imposed, immediately after WWII, on the German people by the British and American occupiers. The allies did a good job there, I think. It was pure wisdom. They made it virtually impossible to ever deny what had taken place.

    I simply firmly believe that [..]

    I know it just a figure of speech but this is telling. It almost seems as if it is you who objects to some perceived seculare blasphemy… I am sure you did not mean it that way ;-)

    Kind regards, have a good day.

  25. 25
    Pen

    1. @7 I’m not German, but I agree that it was the Holocaust that made patriotism into a rather distasteful vice throughout a lot of western Europe. Pre-Holocaust, patriotism was based on the supposed identity between people, land, language and state (i.e. on being indigenous) something Americans never had. Now we all say ‘look where that leads’ and we haven’t adopted American-style concepts of patriotism. I couldn’t agree more with Gretchen @8 and hope we’ve seen the back of the concept for good.

    2. The fear of the Holocaust and the ethical question we are pummeled with in our schools, whether German or not, is how could so many ordinary people allow such a thing to happen? I don’t think anyone knows the answer but I think they were certainly primed for it by certain kinds of speech. I think the Germans fear so too and are motivated not just by ‘guilt’ (I think that’s a very bad term) but by fear of possible recurrences. I fear so too – the Holocaust was not the first outbreak of genocide in history and I see no reason it should be the last unless we learn to prevent such things.

    3. I’ve lived in Europe knowing what the fate of my Jewish husband and daughter would have been if we had been there a mere 60 years ago. I’m haunted in the sense that not a week goes by when I don’t think of it. Educating my daughter about it is an emotionally and morally complicated task for me. Trivialising, or even ‘surprise’ exposure to Holocaust imagery places an extra burden on me for sure and one I may not be up to managing. I also believe any mistakes I make in my daughter’s education could lead to further harm, so a little support from society is well received.

  26. 26
    composer99

    Gretchen:

    If you disagree with time/place/manner constraints, of any kind, on speech, do you also disagree with, say, constraints based on defamation or death threats? Or indeed, with any constraint whatsoever?

  27. 27
    khms

    Also, a guarantee of ‘human dignity’ and the notion of ‘personality rights’ as noted in the ruling strikes me as vague & ill-defined, at least in comparison to, say, rights to property & person, or for that matter rights to conscience/speech. Certainly, in my non-expert opinion, much too vague on which to base any kind of case law.

    However, this happens to be what Article 1 of the German constitution says, and indeed we have quite a lot of case law about what this actually means in practice.

    Article 1
    [Human dignity – Human rights – Legally binding force of
    basic rights]
    (1) Human dignity shall be inviolable. To respect and protect
    it shall be the duty of all state authority.
    (2) The German people therefore acknowledge inviolable and
    inalienable human rights as the basis of every community,
    of peace and of justice in the world.
    (3) The following basic rights shall bind the legislature, the
    executive and the judiciary as directly applicable law.

    The first section is approximately equivalent to the US first amendment, and so this is sort of analogous to the US “pursuit of happiness” thing, I’d guess.

  28. 28
    composer99

    khms:

    I stand corrected.

    Gretchen:

    Leaving aside my desire to precisely understand your position on free speech:

    I do not think laws criminalizing Holocaust denial/trivialization are necessary in North American jurisdictions. I am not entirely convinced that they are necessary in Germany. Nevertheless, the reasoning behind your objections appears to be specious.

    In the first place, of course, you appear to base your objection on what you firmly believe. Well, this blog is chock-a-block full of people who advocate for or against positions solely on the basis on what they firmly believe, and I rather doubt that you would accept firm belief alone as necessary & sufficient to make or revoke a law. So I fail to see why you feel justified in adopting the same standard with respect to German laws regarding Holocaust denial.

    In the second place, your claim to the contrary notwithstanding I daresay you do accept time/place/manner restrictions on speech – namely, that there are times/places/manners in which religious advocacy is reasonably restricted (such as, say, prohibiting government officials/employees from advocating for their religious beliefs while acting in their capacity as government agents).

    In the third place, contra your claim, the German law as written is not an absolute ban:

    § 130 Public Incitement (1985, Revised 1992, 2002, 2005)

    (3) Whoever publicly or in a meeting approves of, denies or belittles an act committed under the rule of National Socialism of the type indicated in Section 6 subsection (1) of the Code of Crimes against International Law, in a manner capable of disturbing the public peace shall be punished with imprisonment for not more than five years or a fine.

    (4) Whoever publicly or in a meeting disturbs the public peace in a manner that assaults the human dignity of the victims by approving of, denying or rendering harmless the violent and arbitrary National Socialist rule shall be punished with imprisonment for not more than three years or a fine. (…)
    [Emphasis mine.]

    Clearly, Germans are still free to believe whatever they want about the Holocaust and say whatever they want – just not in as many public spaces as Canadians or Americans are.

    I don’t know the case law/jurisprudence clarifying the code (as khms showed me up from my earlier statements) – do you?

    In the fourth place, bluntly put, if you’re going to sincerely characterize contemporary German law as ‘totalitarian’ then you haven’t absorbed well enough what actually happened during totalitarian rule over Germany.

  29. 29
    composer99

    A correction to the above:

    Well, this blog Ed routinely shares stories chock-a-block full of people who advocate for or against positions solely on the basis on what they firmly believe

Leave a Reply

Switch to our mobile site