From: Peter Herngaard <pethern@inet.uni-c.dk>
Date: Sat, 20 Dec 1997 12:52:02 +0800
To: cypherpunks@cyberpass.net
Subject: Re: Hate speech in Germany...
In-Reply-To: <199712061913.UAA21991@basement.replay.com>
Message-ID: <199712200441.FAA22257@inet.uni2.dk>
MIME-Version: 1.0
Content-Type: text/plain




I apologize for not answering this in due time, 
but I was only subscribed to fight-censorship and not to Cypherpunks. 

nobody@replay.com (Anonymous) wrote: 
>Peter Herngaard wrote:
>>Mr. Frissell asserts that Germany lacks rights such as freedom of
>>speech and association.  This is not true.  The German Basic Law
>>provides for everyone the right to freedom of speech, religion and
>>association.  However, Germany prohibits hate speech i.e. National
>>Socialism and incitement to racial, religious and national hatred.
>
>I believe this is exactly what Mr. Frissell had in mind.
>
>Incidentally, I heard that last year there were a series of raids on
>bookstores for "hate" literature.  One of the books seized was Art
>Spiegelman's "Maus".  The justification was that it glorified
>violence.  (Feel free to correct me if this is baseless rumor. ;-)

No. It is entirely correct as far I know.
As I have pointed out before, the present state of freedom of
expression in Germany is lower than in Denmark. 
After the World War I believe that the rrohibition of racist
speech and nazism was necessary as a step further in the
denanification.
But this is no justification anymore.
Is should not suprise anyone that the laws have also been used
against left-wing organizations and publications such as Radikal
and The Kurdish Worker's Party. 
The Compuserve incident was allegedly about "child pornography"
and nazi propaganda but only gay related newsgroups was removed.


>>>Reply to Duncan Frissell:
>>>If the German people desired to abolish the Radikalenerlass they
>>>could do so simply by changing their goverment precisely as
>>>U.S. citizens could abolish use of capital punishment against
>>>minors.  Is there any difference?
>>
>>There is a difference, in that calling for the abolition of laws
>>banning 'hate speech' can easily be labelled as 'hate speech' in
>>themselves.
>>
>>I think it's true for banana republics.  However, as far I know
>>itsn't illegal in Germany to call for the abolition of all hate laws.
>>But calling for the abolition of human rights is certainly against
>>the law.
>
>!!! It sounds as if in Germany one may not discuss even the most basic
>political philosophy without violating the law.
>
>I'm not sure what is meant by "calling for the abolition of human
>rights".  What would be some examples of things somebody could say and
>what would be the penalties?  (Presuming you are allowed to give
>examples, that is.)

If an organization  advocates the use of violence or promotes ideas 
contrary to the Constitution that's ground for denial of tax
execption and later prohibition by a court. 
Advocating that all Jews should be expelled would certainly be
considered unconstitutional and a criminal offence. 
The difference from Germany to the United States is the
difference in the constitutional provissions. 
The German Basic Law expressly proscribes limitations to speech
and association rights while the First Amendment restraint on
goverment interference is written in absolute terms.
I know of course that the First Amendment is not interpreted literally by
the Supreme Court i.e. Chaplinsky v. New Hampshire, Miller v.
California, Roth v. United States, Paificca Foundation v. FCC. 
But the  U.S. Supreme Court seems to require any law affecting
political speech preserves a content neutrality meaning that
seditious libel (Brandenburg v. Ohio 1969) and hate speech (RAV v.
City of St Paul of Minnesota 1992) is protected against
punishment by the goverment. 
This doctrine is unfortunately unknown in Europe and Canada where the
tradition of consensus
democracy always guaranteed liberty for majoritarian views.
Even with the rattification of The European Convention of the
Protection of Human Rights freedom of speech guaranteed within
Article 19 was expressly limited to preserve public morals,
public health, national security etc. 
Someone may correct me if I am wrong in the understanding that
the First Amendment does not allow the enactment of any statute
proscribing breach of public morals as an offence except
obscenity. 
The European Court of Human Rights has upheld most conviction
concerning public morals such as blasphemous libel and hate
speech.
It should also be noted when we discuss Germany and hate speech
than the international, European and Canadian, classification of
hate speech is different from yours.

For instance, The United Nations International Convention on
Civil and Political Rights Article 20 not only allow punishment
of hate speech but even compell the signatories to prohibit
racist speech by law.
Germany and Denmark can rely on the "international community"
justifying criminalization of hate speech and even membership in
organizations that "discriminates" on the ground of race and
religion. 

I like your First Amendment more than the European and Canadian
approoach. 

My intention was not to justify the German criminalization of
speech but merely to explain the reason for the law as I see it,
a law I do not support.

>>In addition, we do not prohibit pornography, and obscenity is a
>>non-existent legal category.
>
>Another good point.  Many in the U.S. have become so accustomed to
>these speech restrictions that it seems normal.

Yes. 
Banning a film with redeeming social and artificial value is to
me an obscene act-)

In this matter, Denmark and Netherland is _more_ liberal than
the U. S.
That would not happen in Denmark or Sweden.
Denmark is not the worst censor of hate speech in Europe.
In fact, the United Nations criticizes us every year for
allowing the Danish National Socialist Movement (the Danish
equivalent to the losers in The National Alliance).

However, we still have several restriction on freedom of speech
such as an obscure statute  dealing with
"Insult to the Majesty" and another dealing with blasphemy. 
Our libel laws are also very burdensome.
The police can sue you for libel hurling you in court to prove
your statement even when not directed at a named police officer.
Prof of truth is not necessarily a defence.
It is often enough to prove that the statement was likely to
damage the reputation of the plaintiff.
With my non-lawyer experience the defendant often have to prove
that the statement is true and made in the public interest.
There is no defence requiring a public figure to prove actual
malice and reckless disregard for truth.
In recent moths, an individual who criticized the police as an
institution was convicted for making a statement in a newspaper
likely to undermine the police's reputation in the eyes of the
public.
This sounds very much like a seditious libel offence in
particular when the statement is directed at a state institution.