Robert Sheridan
Fri, 05 Feb 2010 22:33:48 -0800
We prohibit what we fear the most by criminalizing it. "Compassing the death of the monarch" i.e. portraying or writing about it, thus envisioning and to that extent suggesting it as an idea worthy of consideration, was forbidden as treason, based (I've looked it up in Cohen & Varat) on the Statute of 25 Edward III (1351). Treason carried a grave penalty under Edward III. See "Braveheart" starring Mel Gibson.
The South, in the U.S. before the Civil War, prohibited Northern abolitionist publications from being disseminated in the South, from newspapers to other literature threatening the institution of slavery, including interdiction of the U.S. Mail, especially after the Nat Turner Rebellion. The gag order in the House that John Quincy Adams of MA flayed mercilessly is another example of censorship of an idea for fear that someone might help bring it to fruition. Both examples above can, I believe, be characterized as 'life and death matters' to those most concerned at the time who had power to impose the ban.
U.S. FA doctrine got its fresh start as case-law during WWI in the time of Hand and Holmes when the life-and-death fear in the U.S. was that socialism or communism as developed since 1848 during the revolutions in Europe and with the writings of Marx and Engels were seen as quite terrible threats to the American way of life especially in view of the successful Communist Revolution in Russia in 1917. People like Debs were thus sentenced to twenty years in the federal penitentiary for vocal opposition to the war before crowds. People like Schenk and his successors, such as Gitlow, were similarly convicted and sentenced for violation of the Espionage Act for spouting the Communist Manifesto with its advocacy of violent overthrow of the U.S. government or for interfering with recruiting for the military which was being used after the war in 1918 on the side of the Whites in opposition to the Reds.
The Court had considerable trouble dealing with expression during the time that the fear was greatest and it upheld more convictions than would be permitted since Brandenburg (1969).
McCarthyism and Cold War thinking and rhetoric were life and death matters for us because in the bipolar world of that era, the proxy shooting wars that broke out, such as Korea and Vietnam, in which the ideologies were pitted against one another even when, as in Vietnam, there may have been another credible explanation for the conflict there before we intervened, such as either an independence movement from French colonial domination or a civil war, or both.
Brandenburg is significant to me because it comes up NOT in the context of litigants fighting a Cold War case, but because it comes up in the context of a by then largely discredited Ku Klux Klan white supremacy era case.
Perhaps this made it easier to decide in favor of a more expansive interpretation or definition of free speech, as I don't recall the country being up in arms over Brandenburg as it went through the courts or even after it was decided. The country was far more concerned about the Vietnam war than the KKK, generally speaking.
I presume that the justices, representing as I think they do, the dominant cultural modes in the country of their time, were not as concerned, meaning afraid, either of the KKK or the resurgence of white supremacy as during the heyday of Jim Crow and slavery. After all, 1954 saw the Brown v. Board decision and 1964 and 1965 saw the Civil Rights and Voting Rights Acts pass after the assassination of JFK. Old fears were diminishing.
Not being quite as fearful, the (almost all-white) Court was able to give expression to the widest guaranty of expression to date, one that has stood for over forty years. (Thurgood Marshall was appointed in 1967 and was thus on the Court for the Per Curiam opinion in Brandenburg and did not write separately, again according to a quick look at a secondary source).
For Germans, I suspect that Hitler is a life and death matter, now as well as then. I don't know how to describe it otherwise without diminishing the historical and cultural significance of the matter. I don't blame anyone for being afraid. That's why I didn't come down foursquare and say that Germany was totally wrong in banning publication and discussion of Mein Kampf. In terms of American FA principle they're quite on a different track, but we don't write law for them and we have our own history and fears to deal with. Free thinking is not unknown to Germany. See M. Luther.
I can say that Germany is banning a certain amount of thought, and did, by virtue of the caption to the post. The fear, I imagine, is quite as real there as the fear in the U.S. of 'Socialism' that I believe existed in the day of Holmes. The Lochner era, begun in 1905 with the so-called 'bakery case' and grounded, I believe in fear of creeping socialism, lasted until 1937, with the demise of the so-called "Old Court" (the so-called 'switch in time') before the New Deal Court began its growth under FDR. I don't know what the Old Court would have thought of the taxpayer bailout of Wall Street, not to mention GM. By their lights we must've gone Communist in 2008, if not a long time before, Comrade.
rs Scott Idleman wrote:
I agree entirely that there are differences and that some of these differences, such as the legal mode or form of the government's censorship,can be considered significant.But Robert Sheridan's post asked "[w]hy . . . we in the U.S. allow pretty much unfettered expression on life and death subjects while Germany doesn't." I first questioned the extent to which we truly do allow "pretty much unfettered expression," citing examples of government censorship of certain symbols or literary works that have racial or racist components. I then suggested that the contours or limits of our doctrine of expression might, like Germany's in Professor Sheridan's theory, be shaped by forces such as fear. (I must confess to not knowing what Professor Sheridan means by "life and death subjects," and thus I don't know how that phrase's intended meaning might affect my assessment.) There is no doubt that the forms and degrees of government action in the German and U.S. examples are different when broadly viewed, which is why I did not suggest that they were the same or equivalent. Yet I thought it equally problematic to imply or believe that "the regulation or toleration of expression in the United States is always, categorically, and clearly distinguishable from the German situation." My focus, quite simply, was on the existence of and reasons for the government censorship in the first place, looking at both countries, not just Germany. Once that assessment has been made, in fact, I suspect that the reasons for the differences in mode and degree of legal sanction may also become clearer. Scott -----Original Message----- From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, February 05, 2010 19:37 To: 'CONLAWPROFS professors' Subject: RE: Germans Prohibited From Thinking 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 ofMeinKampf's availability in the United States when compared to Germany. But it's not clear to me that the regulation or toleration of expression intheUnited States is always, categorically, and clearly distinguishable fromtheGerman 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 orevenlibraries) 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 orguiltregarding 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 politicalcorrectness--suggeststhat 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 worthwhileinquiry,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/index.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 Berlinbunker."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 asprivate.Anyone can subscribe to the list and read messages that are posted; peoplecanread the Web archives; and list members can (rightly or wrongly) forwardthemessages 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.
_______________________________________________ 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.