Volokh, Eugene
Fri, 05 Feb 2010 17:38:39 -0800
It seems to me that there's a very big difference between government decisions about what speech to exclude from government-run schools and government-run libraries and government decisions about what speech to criminalize.
Eugene
> -----Original Message-----
> From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-
> boun...@lists.ucla.edu] On Behalf Of Scott Idleman
> Sent: Friday, February 05, 2010 2:45 PM
> To: 'Robert Sheridan'; 'CONLAWPROFS professors'
> Subject: RE: Germans Prohibited From Thinking
>
> Robert Sheridan's distinction could explain the particular question of Mein
> Kampf's availability in the United States when compared to Germany. But
> it's not clear to me that the regulation or toleration of expression in the
> United States is always, categorically, and clearly distinguishable from the
> German situation.
>
> Instead of banning the use of the swastika altogether, we tolerate the
> banning of the confederate flag in certain contexts, e.g., on the t-shirts
> of public high school students, and instead of banning Mein Kampf, we
> tolerate the removal from public schools (either class reading lists or even
> libraries) of older books that are seen from the vantage point of 2010 as
> depicting African-Americans in mocking or degrading ways.
>
> Perhaps this homegrown intolerance arises from Americans' own fear or guilt
> regarding their country's particular history of slavery and racial
> discrimination, though the range of potentially offensive communications
> today--what some might call the dominion of political correctness--suggests
> that there's more to it than just the nation's record of racial injustice.
>
> In short, I would hope that any effort to explain the suppression of ideas
> and expression in Germany, which I certainly consider a worthwhile inquiry,
> might also shed light on contemporary efforts to suppress certain ideas or
> symbols in the United States.
>
> Scott Idleman
> Marquette University
>
> -----Original Message-----
> From: conlawprof-boun...@lists.ucla.edu
> [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Robert Sheridan
> Sent: Friday, February 05, 2010 11:45
> To: CONLAWPROFS professors
> Subject: Germans Prohibited From Thinking
>
> http://tinyurl.com/yfkp363
>
> Link above is to an article in NYT, today, text below the comment:
>
> If there's one place where thinking about Hitler might be encouraged,
> not stifled, it's Germany, not to mention the U.S. Yet Germany has gone
> the other way when it comes to expression on this subject.
>
> Why do we in the U.S. allow pretty much unfettered expression on life
> and death subjects while Germany doesn't?
>
> A theory: The willingness to tolerate expression is a function of fear.
> Our history of fear of Hitler is different than Germany's, a country
> that he led to disgrace and destruction with Allied help. This isn't to
> excuse the gag order but to try to understand it.
>
> I wonder whether it would make any sense at all in Germany to throw the
> subject open to discussion. The fear must be that there would be more
> neo-Nazi reaction in favor than scholarly influence against.
>
> Very different from our FA doctrine.
>
> See the remarks of Mr. Kramer, below.
>
> rs
>
> MUNICH - In Germany, an author is granted an ironclad copyright for 70
> years after his death, apparently even if he is subsequently regarded as
> one of the greatest mass murderers in history and a dark stain on the
> national character.
>
> Hitler
> <http://topics.nytimes.com/top/reference/timestopics/people/h/adolf_hitler/i
> ndex.html?inline=nyt-per>'s
> copyright on "Mein Kampf," in the hands of the Bavarian government since
> the end of the Nazi regime, has long been used to keep his inflammatory
> manifesto off the shelves in Germany
> <http://www.nytimes.com/info/germany?inline=nyt-geo>. But with the
> expiration date looming in 2015, there is a developing showdown here
> over the first German publication of the book since the end of World War
> II.
>
> Experts at the respected Institute of Contemporary History
> <http://www.ifz-muenchen.de/index.php?id=4&L=1> in Munich say they want
> to prepare a critical, annotated version of the book for release when
> the copyright expires 70 years after Hitler's suicide in his Berlin bunker.
>
> "We hope to prevent neo-Nazi publications by putting out a commented,
> scholarly edition before that," said Edith Raim
> <http://www.ifz-muenchen.de/edith_raim.html>, a historian at the
> institute. "'Mein Kampf' is one of the central texts if you want to
> explain National Socialism, and it hasn't been available in a commented
> edition at all in Germany."
>
> But the Bavarian government opposed the idea, citing respect for victims
> of the Holocaust. In a statement Thursday, the Bavarian Finance Ministry
> said that permits for reprints would not be issued, at home or abroad.
> "This also applies to a new annotated edition," said the statement,
> adding that the state would use "all means at its disposal to proceed
> against any violations."
>
> There was also disagreement as to whether the book might be banned as
> Nazi propaganda. The Bavarian government said that even after expiration
> of the copyright, "the dissemination of Nazi ideologies will remain
> prohibited in Germany and is punishable under the penal code."
>
> But Ms. Raim said that diaries by prominent Nazis like Joseph Goebbels
> and Heinrich Himmler were already available.
>
> Unofficial copies of "Mein Kampf" are easily accessible on the Internet
> already, and the book is legally published abroad, including in the
> United States.
>
> Hitler wrote the book, which detailed his hatred of Jews, his desire for
> revenge against the French and the need for more space or "Lebensraum"
> in the east for Germans, while in Landsberg prison in Bavaria after the
> failed Beer Hall Putsch in 1923. The first volume of the book was
> published in 1925 and the second the next year.
>
> More than 12 million copies of "Mein Kampf" were in circulation by 1945.
> The cities of Munich and Nuremberg, among others, gave it away to young
> couples as a wedding present, according to the Bavarian state library.
>
> Stephan J. Kramer, secretary general of the Central Council of Jews in
> Germany <http://www.zentralratdjuden.de/en/topic/2.html> in Berlin, said
> the publication of "Mein Kampf" continued to split the Jewish community
> in Germany, with many Holocaust survivors opposing its publication. "I
> have the highest respect for this opinion, but on the other hand I'm
> saying very openly: The copyright is going to be waived anyway. It's a
> matter of time before the book is available in shops and libraries," Mr.
> Kramer said.
>
> Mr. Kramer said that with the book available on the Internet, it was
> important to have the work put in context by a responsible group like
> the Institute of Contemporary History. "Those who are already on the
> wrong side already have the book and already read it from their own
> point of view," he said. "Let's get it out there, and let's get it out
> there with a commentary."
>
>
> _______________________________________________
> To post, send message to Conlawprof@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as
> private. Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
>
> _______________________________________________
> To post, send message to Conlawprof@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as private.
> Anyone can subscribe to the list and read messages that are posted; people can
> read the Web archives; and list members can (rightly or wrongly) forward the
> messages to others.
>
_______________________________________________
To post, send message to Conlawprof@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
Please note that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.