THE ABSENCE OF INTELLECTUAL FREEDOM IN THE FEDERAL REPUBLIC OF GERMANY

No doubt exists that both freedom of speech and freedom of scientific enquiry are constitutionally guaranteed in the Federal Republic of Germany (FRG). The decisive question is to which degree these basic rights are actually respected in practice.

Meaning and importance of the term »opinion«

In order to determine to which degree intellectual freedom is practically guaranteed in the FRG, the term »opinion« first has to be defined. »Opinion« in this sense means an expression of thoughts with which the holder of the opinion wants to contribute to the intellectual debate. Opinion finds expression in the assumption of positions with regard to certain issues in life; in views; assessments; interpretations; evaluations; and value judgements. Value judgements were, in fact, expressly described by the Bundesverfassungsgericht (BverfG) as judgmental views regarding facts - regardless of whether these opinions are »correct«, »wrong«, »emotional« or based on »rational« grounds, as decisions regarding the latter are of necessity of a subjective nature. In the evaluation of an expression as opinion, the element of assuming a position is decisive. In this regard the value, correctness or wisdom of the expression is of no consequence.

Without the fundamental basic right to freedom of (expressing an) opinion - which includes the freedom of information, freedom of scientific enquiry and freedom of the press as crucial elements - no freedom of decision or free will can exist for any person. »Freedom of opinion is therefore the highest good of the citizens in a free society; and the degree to which freedom of opinion is curtailed indicates the degree of subjugation« [or lack of emancipation]. Only opinions which are contrary to those held by the people in authority need to be protected by the right to freedom of opinion. »He who talks apologetically of state authority needs no protection. He is not threatened. Only the opponent is threatened. Only as freedom for the ›dissident‹ do political freedom and the freedom of expression of opinion assume their importance. It was as such that they were historically achieved through struggle: By political minorities, by those in opposition.«

The former Federal Interior Minister of the FRG, Gerhart Rudolf Baum, uttered the following wise words at the opening of the Frankfurt Book Fair in 1979: »Criticism is the life element of the political culture of a free democracy. Freedom of opinion and information guarantees this criticism. It is an essential and prominent freedom and civil right. The book is an essential ingredient of this political culture. It has always been the carrier of ideas and the conveyer of intellectual developments [...] We should not only tolerate criticism. A democratic attitude demands that its necessity be affirmed [...] It could and should not be the duty of the state or any authority in society to decide what may be printed and what not. We much rather have to guarantee the freedom to even print and read that which is completely in error, as long as this does not infringe on others rights in an injurious manner. We cannot on the one hand make an appeal to the recognition of the ›emancipated citizen‹, but on the other hand want to tutor him where his reading is concerned.« Almost nothing needs to be added to this salutary insight, except that Baum acted contrary to these principles during his tenure in office. His successors did likewise.

The questionable nature of the Bundesprüfstelle für jugendgefährdende Schriften (BPjS) - the Federal Office for the Investigation of Publications Endangering the Youth

The freedom of expressing an opinion (i.e. the freedom of speech) assumes a prominent place among human rights. It needs extensive protection, which should only in exceptional cases be appropriately infringed. Such exceptional cases occur when, for example, children, youths or the people at large need to be protected against publications, sound recordings, »art« or other forms of opinion expression. This may happen in the case of value-free communication or even propagation of violence, perversity, criminal acts, sadism, treason or terrorism. However, in practice the measures of censorship intended to protect the youth are especially employed against dissident political authors and students of contemporary history, as will become evident from the following examples.

The law Über die Verbreitung jugendgefährdender Schriften (on the distribution of publications endangering the youth) came into force on 14 July 1953. According to the official censorship authority, the so-called Bundesprüfstelle für jugendgefährdende Schriften (BPjS) or Federal Office for the Investigation of Publications Endangering the Youth , the law is meant to protect children and the youth against media that could negatively influence them in their social and ethical growth. The concept »dangerous to the youth« is vague and in the FRG tends to assume a general character. It is not to be understood as a religious or moral definition, but has to be seen specifically as a political concept.

The sociologist Ulla Otto has already during the sixties focused attention on the fact that this concept is closely associated with the accusation of being »of a pseudo-scientific nature«, which is frequently applied to »undesirable publications«, »which should preferably be eliminated«. Whereas alchemy, astrology, parapsychology, spiritism and the study of UFO's were, for example, in previous times accused of »being of a pseudo-scientific nature«, this label is at present mainly attached to »revisionist« opinions and literature. Publications contaminated with this label, and therefore considered as being of a questionable nature, are banned from German scientific libraries - in contrast to books of an anarchist, Marxist or communist nature. With the accusation of pseudo-science uncomfortable publishers are excluded from the public debate in advance. This exclusion follows in most cases upon the indexing or prohibition of the medium employed and the stigmatizing of the author concerned. In this way not only the freedom of the press is infringed, but especially the freedom of scientific enquiry, research and education is impaired.

»It has to be emphasized and made quite clear that books and publications placed on the index by the BPjS are media which can no longer be advertised. These items can also no longer be publically sold. Even the mere mention of the title of an indexed item is prohibited. The opportunities to sell such an item are in this way extremely limited. Indexed publications can practically only be acquired under the table - and thereby in practical terms also become inaccessible to adults. In factual terms indexing means censure. Already in 1967 the Bundesverwaltungsgericht (Federal Administrative Court) conceded that: ›The indexing of a publication dangerous to the youth almost [...] approaches its banning. It implies a serious infringement of the rights of the publisher and distributor. In addition to this it constitutes a sharp infringement of the right to information of adults.‹« The resultant criminalization and defamation of the author concerned are not even considered.

The question arises as to whether the acts of indexing practiced by the BPjS actually protect children and the youth, or whether the concept of »protecting the youth« is not employed as a disguise to hide infringements of the freedom of scientific enquiry and opinion. This question assumes all the more relevance in view of the fact that it has never been scientifically proved that a child or youth had been »socially and ethically disoriented« by a specific book or displayed deviant behaviour as a result of being exposed to a specific publication - in complete contrast to being exposed to videos containing violence and horror. In any event, the BPjS makes it all too easy for itself by arguing in generalistic terms that publications »antagonistic to the constitution« are »socially and ethically disorientating«.

The so-called Gesetzlichen Bestimmungen zum Schutze der Jugend (Legal Regulations for the Protection of the Youth) were ratified by the Bundestag (Federal Parliament) during 1953. The following is determined by § 1 of this law: »Publications capable of ethically endangering the youth are to be listed. Among these are especially those of an immoral nature, as well as publications eulogizing criminal acts, war and racial hatred. The indexing is to be made public. A publication may not be indexed 1. on the sole basis of the content of its political, social and religious standpoints or views of the world; 2. if it serves art, science, research or education; 3. if it is in the public interest, in which case the manner of exposition has to be justified«. The problem concerning the above is clear: Who determines on which qualitative or judgmental basis what is to be considered as being of a »morally endangering nature«? Rudolf Stefen, former head of the BPjS, on 23 June 1979 conceded to the NEUEN WESTFÄLISCHEN NACHRICHTEN that the law-maker most certainly made an exemption in the case of »NS [National Socialist] material«, without defining the latter more precisely. It is common knowledge that the indexing practiced in the FRG at present is almost exclusively aimed at literature negatively labelled as being of an »extremist right-wing« nature.

Those who take exception to or refer a publication for investigation are never »the people« or »the public«. The act of denunciation is all too often performed by individuals or groups regarding themselves as moral guardians or by institutions which presume to be motivated by a noble drive to protect the interests of the youth. It is therefore a case of not the majority of free citizens, but a self-appointed guardian body which decides on the issue of morality or the social and ethical endangerment of the youth. One only needs to enter a kiosk at a station or a video shop in the FRG to determine »how strictly« practical steps are in reality taken against, for example, pornography and the propagation of violence. In view of the fact that children and youths today have almost limitless access to drugs and hardcore films of every nature, the censorship laws ostensibly formulated to protect the youth against literature dealing with matters related to politics and contemporary history assume grotesque proportions. It is therefore not difficult to conclude that in reality the matter at stake concerns »the constriction of unwanted opinions in verbal, published and illustrated format which endanger the generally prescribed view, and thereby contradicts the interests of the rulers in political and cultural matters in Germany to such an extent that they feel threatened in their very existence. The concern is therefore not aimed at publications actually endangering the youth, but at publications posing a threat to the opinion cartel and certain political and economic interest groups.« It is common knowledge that almost all ideas belonging to the nationalist, revisionist or conservative spectrum could be considered as such.

The nature and consequences of the »battle of the historians«

During June 1986 a fight erupted among German historians and other social scientists regarding the underlying methods employed in dealing with the recent past in contemporary German history. The historian Dr Ernst Nolte, professor at the Free University of Berlin, published an essay in the FRANKFURTER ALLGEMEINE ZEITUNG under the title of »Vergangenheit, die nicht vergehen will« (A past that refuses to go away). In this he aired his views on a more precise writing of history in future, based on a renunciation of the distortions and falsehoods which in many cases date from the period of »re-education« following upon the Second World War. Nolte thus presented a view in this essay attacking the until then almost untouched taboo of post-war approaches to history in the FRG. Nolte was of the opinion that recent German history had been turned into a horror picture, especially marked by a one-sided allocation of guilt and the ignoring of historical contexts. Almost simultaneously a book by Dr Andreas Hillgruber was published under the title Zweierlei Untergang. Die Zerschlagung des Deutschen Reiches und das Ende des europäischen Judentums (Double decline: The Destruction of the German Reich and the End of European Jewry). Like his colleague Nolte, this professor of history from Cologne condemned the one-sided writing of history in the FRG. The latter presented a condensed version of events and neglected an all-encompassing critical examination of occurrences - contrary to what should be expected from a study of the social sciences. Hillgruber especially touched on the taboo regarding research into the motives and guilt of the Allies as far as the outbreak of the Second World War is concerned and went on to destroy the accepted picture of the peaceful opponents of Germany acting in complete disinterest in this matter. Falling In almost the same league, Dr Michael Stürmer‹s book Dissonanzen des Fortschritts (Dissonances of Progress) likewise appeared during 1986. This historian from Erlangen and political advisor of Helmut Kohl regarding German politics stepped into the breach for a strengthening of German historical awareness. What the historians Nolte, Hillgruber and Stürmer demanded and through their utterances put into practice, was none other than the beginnings of a much-needed revisionist view of history.

The neo-Marxist philosopher Jürgen Habermas considered it his duty to launch a counter-attack against the three »heretics«. This last surviving founding member of the socialist »Frankfurt School«, which he helped establish during the sixties in conjunction with the Marxist sociologists Max Horkheimer and Theodor W. Adorno, opened fire with an article which appeared in the ZEIT on 11 July 1986 under the heading »Eine Art Schadensabwicklung - Die apologetischen Tendenzen in der deutschen Zeitgeschichtsschreibung« (A manner of diminishing the damage - the apologetic tendency in the German writing of contemporary history). He clearly understood the latter to be a declaration of war. The non-historian Habermas, who called himself a »product of the re-education« [practiced in the aftermath of the Second World War], could not refute any of the historical insights published by Nolte and Hillgruber. However, this was not to be expected. The matter at stake was not at all a debate on the facts involved. Habermas suspected »in the first place a system dangerous to the leftist climate prevailing in West Germany until now behind the new noises made by the historians«. This »revisionist danger« in German historiography had to be combated by all possible means. As the two publicists Michael Behrens and Robert von Rimscha put it: The revolutionaries of 68 were »taking up position to defend their interpretation of history. They did not want to accept that interpretation, revision and re-interpretation are normal developments in the science of historiography«. Habermas concluded his tirade with a typical confession: »Whoever wants to call on the Germans to return to a conventional form of their national identity, destroys the only reliable basis for our ties to the West«. This makes it quite clear that political interests were in this fray far more important than the scientific dimension. The main bones of contention among those involved in this dispute were of an existential nature and revolved around the uniqueness, in the sense of a singularity of events, connected to the Third Reich. Especially this alleged uniqueness (and the associated theses of »sole war guilt« and »final solution«) is, as the political scientist Prof. Dr Bernhard Willms from Bochum once stated, »that huge guilt stick with which the Germans have been beaten on the ears for the past 40 years«.

Dr Günter Zehm, professor of philosophy, recognized this intention long ago and stated in the WELT of 24 November 1986 that »Habermas and the Marxists not only defend the post-war dogma of the so-called collective guilt, but would also like to transfer this collective guilt onto the shoulders of the following generations. The whole ›discussion‹ revolves basically around this point. As the existing ›guilty generation‹ disappears from the political arena and gradually dies out, it is now attempted to contaminate the grandchildren and great grandchildren with the germ of guilt [...] In the first place this dogma is employed to keep the Germans eternally small and ugly in order to ensure that they remain physically and psychologically open to blackmail. Secondly, the effect of causing neurosis is counted on. A chronic sense of guilt causes neurosis, and neurosis often ends in self-destructive anger. By way of this detour of German self-hatred it is still hoped to arrive at the great catharsis during which they will burn down the traditional relationships in life and from which ›true socialism‹ will finally be able to come into being«.

The inevitable result of the quarrel was that Nolte lost out on a number of commissions and appointments. Habermas was awarded an honorary doctorate by the University of Tel Aviv in April 1995 for his »courageous and principled endeavours against revisionist historians in Germany who wanted to play down the uniqueness of the holocaust, and all his efforts to preserve and strengthen the German historical awareness«.

A principled view of revisionism

The term ›revision‹ is derived from the Latin word ›revidere‹, meaning »looking at anew« or »looking back« in the sense of »to examine«. »To look anew at« or »to examine« matters is the foremost and most natural task of all scientists. It is the duty of all historians to always and repeatedly re-examine and, if need be, revise written history in the light of new insights, discoveries and research results. However, the political police of the FRG (Verfassungsschutz - or »protector of the constitution«) cares little about scientifically based definitions. Objectively seen, the term ›revisionism‹ is an expression free of value. The term assumes an entirely different meaning in their eyes: »[The] aim of ›revisionism‹, which is one of the most important fields of agitation of right-wing extremism, is the rehabilitation of National Socialism in order to make the latter acceptable again to society«. Another office of the Verfassungsschutz even indicates the following as revisionism: »The politically motivated attempt to play down or deny the German crimes committed under National Socialist rule«. The completely value-free academic term of revisionism is therefore without further ado smeared by secret agents as »detestable expression of right-wing extremism«. As if correcting errors in historiography is the sign of inferior political attitude!

Almost daily new insights are won not only in the social sciences, but especially in the natural sciences and in the field of technology. For its illustrative value an example from paleontology will serve to make this clear. Many of our contemporaries are convinced that Tyrannosaurus rex was the largest carnivorous dinosaur ever to have existed on earth. This held true until further scientific discoveries were made. In September 1995 Argentinian paleontologists discovered in north-western Patagonia the fossilized remains of an until then unknown species of carnivorous dinosaur (Gigantosaurus carolinii) even larger and older than Tyrannosaurus rex. However, anybody believing at that stage to have discovered »the Truth« and believing him/herself to be in a position to announce that the Gigantosaurus had been the largest carnivorous dinosaur to have ever existed on earth were already proved wrong the very next year. During May 1996 scientists discovered in Morocco the remains of the 20 million years older and even larger Carcharodontosaurus saharicus. This of course implied some unavoidable revisionist consequences as far as scientific knowledge was concerned. Plainly a case of unadulterated revisionism. It is only logical that what applies to paleontologists, archeologists, geneticists, nuclear physicists or any other researcher in this regard, naturally also applies to the historian. At the start of the research, the latter has doubts regarding or examines matters as they stand and considers the existing state of knowledge, before embarking on a further search for new facts or insights which may possibly lead to new conclusions.

To work in a revisionist manner is therefore nothing dishonorable. Rather the opposite is true. Despite this, the originally value-free term of ›revisionist‹ is today mainly applied to those researchers critically studying the history of the Third Reich or the Second World War. Conveniently smearing the revisionists as »right-wing extremists« has nothing to do with either a factual evaluation of their work or the necessary criticism expressed in a debate within scientific and research circles. It is exclusively politically motivated and revolves around the defamation of those considered to be political opponents.

The growing wave of indexing and banning applied against dissident political and historical publications

As will become clear from the following, the wave of indexing and banning of dissident publications of a political or historical nature building up since the seventies was in many cases aimed against American scientists and publishers. Dr Eckhard Jesse, professor of political science, confirms that the late seventies can be considered as a ›turning point‹ as far as the manner in which the BPjS operated is concerned. Since then »decidedly sharper action against right-wing extremist literature can be established«. Some examples of the ensuing measures of persecution are presented below.

A book by the American scientist Prof. Arthur Butz, which had been published in the German language under the title Der Jahrhundert-Betrug (The Hoax of the Twentieth Century) two years earlier, was indexed during 1979. As justification it was stated that the book »is conducive to the establishment of an antagonistic attitude towards Jews and absolves the National Socialist system from the accusation of a systematic destruction of the Jews [...] the work by Butz [...] does not [...] serve science, as one does not detect efforts to arrive at truthfulness«. This is a justification of unbelievably unscientific nature, as it is a very subjective matter to judge whether one (who is »one«?!) can detect an effort to arrive at the truth.
Circumstances surrounding instructions to remove important passages from the book Geschichte der Deutschen (History of the Germans) by the historian Prof. Dr Hellmut Diwald from Erlangen caught attention during the eighties. A widely published historical falsification connected to German concentration camps and the so-called final solution was rectified by the author on pages 163 to 165 of this book. This did not meet with approval from the opinion cartel. Although Diwald personally had retracted none of his written words - and later even broke off the relationship to his publisher, the latter had the following editions of the work edited by third parties and removed the passages which contradicted accepted dogma. Diwald confronted these Stalinist-like acts of censorship in the book Mut zur Geschichte (Courage in Historical Matters) which appeared in 1983. He quite rightly accused a considerable number of his colleagues of one-sidedness and betrayal of the scientific ethos.
The book Auge um Auge, a German translation of the factual treatise by the American journalist John Sack which originally appeared under the title An Eye for an Eye, was scheduled for publication by the Piper-Verlag during 1995. The publisher had already advertised the book in the press when it was suddenly withdrawn. According to the head of the firm, Viktor Niemann, this was done to prevent provoking »any misunderstandings« during the fiftieth commemoration of the liberation of Auschwitz. The 6 000 copies of the first edition were destroyed without further ado. This shameful behaviour was justifiably criticized, e.g. in a letter by Christian Riester which appeared in the FRANKFURTER ALLGEMEINE ZEITUNG of 21 February 1995. This reader was of the opinion that »The argument of the Piper-Verlag for not distributing the book by John Sack is already an astonishing construction. Discussions are thus to be managed, and that in the right direction. Does one proceed from the premises that the citizen has in the meantime been so distracted by the daily flood of reports on the subject of dealing with the past that he is no longer in a position to recognize and evaluate historical facts? I think one should describe the actions of the Piper-Verlag for what it is: Censorship«.
The former scientific director at the Institute for Research into Military History in Freiburg (now located at Potsdam), Dr Joachim Hoffmann, recorded his insights in a document titled Stalins Vernichtungskrieg 1941-1945 (Stalin's War of Destruction 1941 - 1945) during 1995. In this work the scientist took little cognisance of persisting taboos, dogmas and prohibited ideas, but all the more tried to analyze all the actions of all those concerned in the outbreak of the »Great Patriotic War«, as Soviet propagandists liked to call the war between Germany and the Soviet Union. In this groundbreaking work Hoffmann provided evidence that, contrary to the views expressed in prevailing contemporary historiography, this war actually did start as a preventative blow by the Germans. According to his research, the German campaign came just in time to thwart a planned Soviet invasion of Germany. Hoffmann's superiors, Wilhelm Deist and Manfred Messerschmidt, demanded that the Soviet contributions to the invasion be deleted. They expected Hoffmann to delete all references to the shared responsibility of the Soviet Union and Germany for the destruction of Poland in 1939, as well as the deletion of all references to Soviet methods of waging a war of destruction. In other words, historical facts had to be hidden from the public and history falsified. In reaction to this, Hoffmann wrote in his foreword that »Contrary to the letter and spirit of the constitutionally guaranteed freedom of scientific research, it is today unfortunately to be recommended that many passages of historiographic text be submitted for examination to determine a possible ›contravention of the law‹ - which is a most degrading state of affairs«.
The Kriminalpolizei (Criminal Police) of Tübingen, acting on a judicial order issued by the Amtsgericht (Court of) Tübingen (Az. 4 Gs 1085 /97), seized the last available copies of the book Hellmut Diwald - sein Vermächtnis für Deutschland, sein Mut zur Geschichte (Hellmut Diwald - his legacy to Germany, his courage in historical matters) and prohibited its further distribution on 15 December 1997. It should be noted that this book, spanning 540 pages, contains 40 contributions by 33 distinguished representatives of the disciplines of history, political science, sociology, economics, journalism, the churches, the judiciary and the German parliament. To justify the seizure and subsequent banning it was stated that in one sentence in the Latin language of the contribution »Die Kampagne gegen Hellmut Diwald von 1978 /79 - Richtigstellungen« (The Campaign against Hellmut Diwald of 1978/79 - some corrections) by Prof. Dr Robert Hepp of the University of Osnabrück the holocaust was denied, which thereby subscribed to the definition of the criminal act of »incitement of people«. The sentence concerned reads as follows: »Ego quidem illud iudaeorum gentis excidium, ratione institutum et in ›castris extinctionis‹ gaso pernicioso methodice peractum, veram fabulam esse nego«. The formulation of the sentence in question was translated by the state court of Tübingen to read as follows: »I, in any case, deny that the planned intention and in ›destruction camps‹ by means of deadly gas methodically executed destruction of the Jewish people is a true story«. Such a statement would in terms of Federal German law indeed have legal consequences. However, it is significant to note that not only philologists focused attention on the fact that the relevant sentence could also be translated in a completely different way, namely to read as follows: As far as I am concerned, I would contest that the planned intention and in ›destruction camps‹ with poison gas executed destruction of the Jewish people represents a genuine fairytale". However, such a statement would actually mean that Hepp in no way wanted to question the holocaust, but - to the contrary - wanted through the Latin formulation to express that he held the events to be true and not as a fairytale. Despite this contention, the judges of the state court of Tübingen concluded that the footnote clearly (!) subscribed to the definition of the criminal act of incitement of the people, as well as of offending and dishonouring the memory of the dead. The book was therefore to be destroyed. The office of the State Prosecutor of Oldenburg was in the meanwhile unable to recognize the alleged obvious state of affairs. They withdrew the charges against the cited authors (StA Oldenburg, Az. 1613-6-102 Js6370/96). The damage to freedom of information and scientific enquiry resulting from the above proceedings could unfortunately not be undone by the latter finding.

The way in which censorship and criminalization is used in equal measure to prevent the circulation of unwanted opinions or books in the FRG is to a large extent the order of the day. In no case has any of those denouncing others taken the trouble to talk to the »suspect«, let alone discuss the contents of his/her books (which in most cases have been bestsellers).

Can historical truth be prescribed by law?

The acting director of the Hannah Arendt Institute in Dresden, Prof. Dr Uwe Backes, dared to utter a statement which, basically, should be considered a matter of course, namely that »More than 50 years afterwards it should be possible for the generations since born to also ask unconventional questions in a sober and objective way during the scientific discourse. Young scientists have to be allowed to tackle uncomfortable topics«. Nothing wrong with this opinion, one would think. Reality is something else.

As has already been indicated, publications may not be put on the index list if they serve the interests of art, science, research or education. Without presenting any relevant proof, the BPjS assumes that especially those authors intent on presenting an incorrect (sic!) view of the causes of the Second World War, or trying to condone, excuse or deny National Socialist crimes, appeal to the clauses referring to science and research. However, according to the BPjS a medium only serves science, research and education if it penetrates to the essential, employs careful observation and reports facts accurately. The study should therefore be devoted to serious matters. The question remaining to be answered is that of who - and on the basis of which qualifications - consider themselves competent to dispute the seriousness of a scientist's approach to his/her research, and consequently to decide whether dishonourable motives are involved or whether his/her findings are wrong?

During the middle of the nineties political influence in the administration of justice started to openly manifest itself in the FRG. When the American citizen Fred Leuchter addressed a meeting in Germany about the theme of the destruction of Jewry during the time of the Third Reich in November 1991, the educationist Günter Deckert simultaneously translated parts of the so-called Leuchter Report. On the basis of this translation the district court of Mannheim sentenced Deckert to one year imprisonment and a fine of DM 10 000 for »incitement of the people« during his first trial. Both the defense and the prosecution appealed against the court's findings. Thereupon the federal high court found on 15 March 1994 that the case had to be heard again, as the offence of »incitement of the people« had not been sufficiently substantiated by the judges in Mannheim. On 22 June 1994 the court in Mannheim again handed down a suspended sentence of one year imprisonment. At the same time the judges conceded the accused's firmness of character and clear motives. Deckert was a man of »high intelligence« and »a responsible personality with strength of character and strong principles«. Despite this, Deckert was subsequently remanded to several years in custody for not sufficiently distancing him from the contents of his translation. This begs the question of since when and where, except in the FRG, does a translator, doing a simultaneous translation, have to distance him from a text not compiled by himself and written in a foreign language?

For many representatives of the FRG the eventual sentence was not harsh enough. The government spokesperson Schäfer, for example, commented that »ominous signals« emanated from the court in Mannheim's findings, which he regretted. Federal Chancellor Helmut Kohl found the findings »completely incomprehensible«, whichever way one looked at it. The former leader of the SPD in the Bundestag or Federal Parliament described the findings as the »most unbelievable juridical scandal« of the past decade. The German P.E.N. considered laying charges of »incitement of the people« against the judges, but eventually satisfied their outrage by appealing to the then Federal President Roman Herzog to intervene. The JEWISH WORLD CONGRESS went as far as to claim that the judges' findings constituted »an attack on the Jewish people«. What ensued could have been foreseen. For having pronounced positively on Deckert's character the (Social Democratic!) judges Wolfgang Müller and Rainer Orlet were suddenly suspended by the president of the court; a comfortable way to prepare for their premature dismissal. In what can be described as a typical climax for the FRG, the suspension did indeed lead to the premature pensioning of judge Orlet. The Federal High Court as court of appeal revised the lower court's findings on 22 June 1994. Deckert's sentence was at the same time increased to two years imprisonment, without suspension. The sentence was also carried out. Only very few in the media experienced a final brief attack of bad conscience. On page 2 of both the WELT and the FRANKFURTER ALLGEMEINE ZEITUNG of 30 August 1994 it was stated that »A man like Deckert would not have been punished in the Netherlands, Great Britain or Denmark. In no [other] country in Europe would he have been brought before a court«.

During April 1994 the Federal Constitutional Court confirmed that those questioning the »Auschwitz lie«, and therefore the killing of millions of Jews by means of poison gas during the time of the Third Reich, would henceforth no longer be protected by the constitutional guarantees regarding freedom of expression. The second largest human rights organisation after AMNESTY INTERNATIONAL, namely HUMAN RIGHTS WATCH, commented as follows on the court's ruling: »The court's ruling appeared to unduly restrict the protected right to free speech and expression«. As a direct result of the court's decision, the Bundestag on 20 May 1994 passed an »Auschwitz Lie Act«. In § 130 paragraph 3 of this law it is explicitly stated that »Whoever publicly or in a meeting condones, denies or minimizes an act described in § 220a paragraph 1 [›Genocide‹] performed under the reign of National Socialism in a way apt to disturb the public peace, is liable to be sentenced to five years imprisonment or a fine«. This law, being totally irreconcilable with the concept of a constitutional state, provoked serious criticism. The liberal publisher Horst Meier, who in the past had often publicly intervened in the interests of the freedom of expression of political dissidents, condemned the »Auschwitz Lie Act« in sharp terms. In the leftist-liberal TAGESZEITUNG he described »The linkage of the politics of history and a monopoly of force« as a »witness to the impoverishment of democracy«. In an extensive presentation of his views, Meier emphasized that aggravating the paragraphs dealing with »incitement of the people« had »potentially put the political freedom of all at risk and has corrupted the faith in democracy«.

During a live interview on the 3-SAT television programme Bei Ruge on 10 March 1996, the Federal Minister of Justice, Edzard Schmidt-Jortzig, conceded that »Our view of freedom of opinion does, in fact, differ from that in the USA, that you know and have already referred to before. We shall - and I find this to a certain extent depressing - in the near future be subjected to a formal accusation by the USA on the basis of the Auschwitz lie, hm, no, not an accusation, a formal bad reputation incurred via the United Nations, because we restrict freedom of expression in this way and by these means«.

Max Güdes, former Attorney General and parliamentary representative of the Christian Democratic Union (CDU), did not view political justice without apprehension. According to him, the matter cannot depend on enforcing a questionable deterrence by severe punishments, but should rather be left to the much more important issue of achieving consensus in the daily debate of public opinion or among righteous citizens. Even the SÜDDEUTSCHE ZEITUNG, untainted by any revisionist ambitions, took note of the new turn of events. On 8 October 1998 it reported on good justification that the Federal Constitutional Court had established that »not only valuable, but also false, even objectionable opinions are protected«. »It would actually be absurd for the state to determine which opinions enjoyed freedom of expression. However, this is exactly what happens in the new paragraph 130 III of the criminal code. The law-maker determines historical facts and threatens with prosecution not only those denying these, but also any attempt at re-interpretation of such facts, namely to present them as less harmful. [...] But whoever resorts to criminal law, travels along a dangerous road. He [or she] threatens intellectual freedom.«

Prof. Dr Gottfried Dietze, expert on human rights at the John Hopkins University, expressed the opinion that paragraph 130 of the criminal code goes against the »tried and trusted judicial protection of freedom of expression and thereby disregards the framework of what is generally acknowledged.« He then proceeds to ask »whether it also falls outside the framework of the constitution and has to be declared unconstitutional. The establishment of the constitution was a praiseworthy decision against the National Socialist authoritarian state. Measures at that time taken to prevent a relapse into dictatorship are understandable, even if these restricted fundamental rights in this regard. Whether, in view of the fact that the danger of such a relapse does no longer exist, provisions like those contained in par. 130 of the StGB (criminal code) are justified half a century later is doubtful and I want to negate this«.

The political scientist Prof. Dr Hans-Gerd Jaschke found the political justice meted out against the right-wing as »politically loyal justice, which especially revolves around the application of judicial sanctions against individually incriminating opinions, but in the final instance is concerned with the regulation of societal communication by the state [..] Political justice against the right-wing [...] is therefore especially aimed at the level of publically communicated opinions and sentiments. The criminal law becomes operational against the Right much earlier than against the Left [...] That opinion may not be made liable to punishment, that also those opinions going against historical truth are legitimate at an individual level, that the general nature of the law prohibits the criminalizing of specific opinions, and that the state prosecutor cannot be a sanitation officer to protect society from infection by ideology, are basic principles of the liberal constitutional state. All these revered basic principles of the constitutional state are seldom applied where the right-wing is concerned.«

The »truth paragraph« (paragraph 130 III of the criminal code) means nothing less than the short-circuiting of intellectual debate by the state and thereby prevents the development of free political expression, which is unworthy of an actually freedom-loving state, as this is repeated ad absurdum. The increasing measure in which special laws are sanctioned and applied against the public uttering of opinion to enhance the prosecution of authors, editors, publishers and scientists are clear indications of the one-sided curtailment of the freedom of the press, opinion and scientific enquiry in the FRG and consequently of the curtailment of intellectual freedom in that state.

Historical truth cannot in the long term be prescribed by law. This truth had already to be acknowledged during medieval times. The justification by the Catholic Church of their judgement against Galileo Galilei on 2 June 1633 clearly approaches the obstinacy displayed by the Federal German authorities in this regard: »A declaration that the earth does not find itself in the centre of the world and remains motionlessly there, but that it moves, also that it moves daily, is in equal measure absurd and in philosophical terms false, while presenting at least a deviation of faith in theological terms.«

Freedom of scientific enquiry is no longer guaranteed: The case of Germar Rudolf

In a detailed letter printed in the readers' columns of the FRANKFURTER ALLGEMEINE ZEITUNG on 8 September 1994, Prof. Dr Ernst Nolte found the courage to say that he, as someone not learned in the natural sciences, was unable to disprove the arguments of some revisionists as far as the technical impossibility of the application of Zyklon B for the purposes of mass extermination is concerned. This highly rated historian furthermore conceded that he himself had previously come into possession of »undeniably authentic« documents and have treated these as such, but that the documents concerned eventually under close scrutiny proved to be fakes. Nolte concluded with the scientifically and ethically sound declaration that questions concerning authenticity and probability had to be treated as objects of scientific enquiry and discussion. On these grounds he pleaded for a scientific approach to the arguments of the »Auschwitz revisionists«. This approach has until now been completely neglected. Rather the contrary has been the rule: Researchers active in this field are in due course treated as criminals and judicially prosecuted.

Dr Rolf Kosiek, chairman of the GESELLSCHAFT FÜR FREIE PUBLIZISTIK (Society for the Freedom of Publication), wrote in a circular released on 6 April 1999 that it has for some time become a matter of concern that judicial action against publishers and authors were increasingly being taken on the basis of the strengthening of the Special Law for the Inhibition of the Freedom of Speech and the Press in the Field of Contemporary History (discussed in more detail in the next section of this report), which had come into effect during December 1994. Kosiek also criticized the »disproportionately high fines or jail sentences« with which the vocational classes concerned are threatened. This kind of judicial persecution represents a new attempt, against the spirit of the constitution, »at abolishing freedom of speech and the press, with the aim to silence right-wing publications and economically ruin them«. In much the same vein the EUROKURIER already two years earlier had focused attention on the judicial prosecution of unwanted publishers. The increased political pressure on dissident publishing houses and measures against books from the right-wing were, according to this news magazine on current affairs surrounding books and publishers, evidently intended to destroy independent publishing houses striving towards freedom in political and ideological matters.

An anthology of topics related to contemporary history published by Ernst Gauss (the pseudonym used by Germar Rudolf Scheerer) under the title Grundlagen zur Zeitgeschichte (Basic Issues in Contemporary History) was seized together with the print-blocks during 1995. In a letter written by the publisher, he inter alia reported on the house search carried out at his home as follows: »On 30.9.1993 the State Prosecutor of Stuttgart [...] entered my home with about 10 officials from the State Criminal Investigation Office to confiscate all material in any way linked to the preparation and distribution of my report on the chemical evidence relating to the gas chambers at Auschwitz. In addition to my entire archive of sources and all correspondence, I was robbed of my electronic data processor and all data material. On 18.8.1994 the State Prosecutor again entered my home [...] What I in any case found extremely hurtful was the fact that they also took the material I needed for my defence in the upcoming court case«. The Grundlagen zur Zeitgeschichte was seized and banned. The author, a qualified chemist, was subsequently dismissed without notice by the MAX PLANCK INSTITUTE. In addition, Germar Rudolf Scheerer was sentenced to 14 months imprisonment for »incitement of the people« by the Stuttgart District Court on 23 June 1995. This sentence was confirmed by higher authority during the spring of 1996, which made Rudolf decide to leave the country and settle in another country not known for the persecution of political views characterising the FRG. The leftist intellectual and publisher Klaus Wagenbach called this kind of political proceedings »censorship trials«. Which they indeed are.

Conclusion

The theoretically guaranteed intellectual freedom in the FRG is in practice severely restricted and subjected to tightly-woven blocking mechanisms of a party-political and media nature, as well as to judicial restrictions. The realisation of intellectual freedom has not been achieved: In the FRG books are censored and placed on index, while opinions are increasingly being suppressed and »banned«. At the beginning of 1996 the sales chairperson of the German Book Exchange, Marianne Fricke, as the foremost personality of her society protested against the alarming extent of the rampant censorship in Germany, saying inter alia that »It is unbearable to contemplate that it is left to the individual moral precepts of some state prosecutors to arbitrarily seize books«.

Personal integrity and courage are clearly needed to express an opinion in the FRG, especially as far as matters outside the currently acceptable taught opinion or contrary to published opinion are concerned. »The other side«, especially dissident political and historiographical opinions, is not really heard in this state. The opposite is rather true. The latter kind of opinions are often distorted, ignored or the authors thereof even criminally prosecuted. Especially since the nineties of the previous century, thousands of imprisonments (»preventative arrests«), ten thousands of in the meantime severely increased fines and prison sentences (both suspended and otherwise) and an uncountable number of bannings of meetings have been visited upon mainly conservative, nationally inclined or revisionistically active Germans. At the same time almost no such measures have been taken against the representatives of other political opinions like, for example, those of a communist or anarchist nature. Nowadays more political prisoners are incarcerated in the »democratic« FRG than were previously imprisoned in what was known as the communist GDR (German Democratic Republic or so-called East Germany): According to the WELT of 7 April 1997, 5 800 people in that year alone had been criminally prosecuted in connection with the uttering of unallowable opinions - especially as far as contemporary history is concerned. This figure has in the meantime almost doubled for the year 2 000. NB: These individuals were not convicted as the result of having committed terrorism or any other condemnable act, but simply because they were guilty of presenting contrary opinions or harbouring »thought crimes«.

In practice the expression of political and historiographic opinions by dissidents does not enjoy the theoretical judicial protection of freedom of expression guaranteed by the fifth clause of the German constitution - and this at the cost of the dignity and honour of those involved. Political justice applied with regard to personal inclinations and a one-sided curtailment of the freedom of opinion - including the freedom of information, scientific enquiry and gathering - have meanwhile become the order of the day in the FRG. Even if one dares to publically focus attention on this abuse, the displeasure of the establishment is soon incurred: In his Bundesverfassungsschutzbericht (Report by the Protector of the Constitution) of 1998 the Interior Minister, Otto Schily, who had described himself as a »liberal communist« while acting as lawyer for the terrorist RAF (Red Army Fraction) during the seventies, suggested that an »important theme of right-wing extremist publications« is devoted to criticism of the »alleged loss of freedom of expression«. According to the libelous assertions of this former liberal communist, »right-wing extremists in this regard speak of ›GDR light‹, ›opinion dictatorship‹ or ›censorship system‹«. The »publication Sind Gedanken noch frei? Zensur in Deutschland [Are thoughts still free? Censorship in Germany] by Dr. Claus Nordbruch« also belongs to this category of literature. It is significant to note that the mentioned book has formed the basis of further studies and scientific dissertations outside Germany, for example at universities in the United States of America.

The increasing curtailment of freedom of the press and opinion in the FRG has meanwhile led to noteworthy protests within and outside Germany. Since the middle of the nineties protest against the prevailing state of affairs has increasingly been building up among scientists, publishers, authors and book traders. An Apell der 100 (appeal by the 100) had, for example, appeared in the FRANKFURTER ALLGEMEINE ZEITUNG of 17 May 1996, declaring that »The freedom of opinion is in danger! We, the undersigned, have to our alarm lately been necessitated to take notice that special laws and criminal proceedings are to an increasing extent being applied against publishers, editors and authors - also against scientists - as a result of their qualified utterances relating to certain questions concerning contemporary history.

Especially the juridical practice of applying the concept of ›public knowledge‹ over the past few years in order to reject without investigation all new evidence presented by the defense in support of such utterances borders on the bending of justice, transgresses against human rights and is unworthy of a democratic constitutional state.

Scientific research and public discussion of these, especially for Germany, important questions are by these means unacceptably restricted, delaying or completely preventing the necessary process of determining the truth. Without wanting to take sides with regard to the controversial questions under consideration we, as citizens of the state fully aware of our responsibilities, with great concern focus attention on the dangerous conditions pertaining to the constitutionally guaranteed expression of opinion, as well as of scientific enquiry and education, and turn to all responsible people and the public inside and outside the country to make an effort to ensure that such infringements of both human rights and the free democratic basic order are prevented in future«.

Similar appeals to the public conscience followed, like the Appell der 500 (appeal by the 500) in the STUTTGARTER ZEITUNG and the STUTTGARTER NACHRICHTEN of 19 July 1996 »which warns against the restriction of the freedom of opinion in our country and in which increasing action by the Police and Judiciary against editors, authors and scientists ›as a result of their qualified utterances pertaining to specific questions concerning contemporary history‹ is criticized«. An Appell der 1000 appeared in the WESTFALEN-BLATT on 13 and 18 September 1996. These appeals were characteristically listed in the relevant Verfassungsschutzberichte (Reports of the Protector of the Constitution) of the Federal German internal secret service (Verfassungsschutz) as the adoption of opinions threatening the constitution.

In South Africa, the politically independent organisation Friends of Freedom of Speech on 28 May 1997 inter alia demonstrated in front of the German embassy in Pretoria and handed over a protest note. The protest note inter alia referred to the following: »This note of protest refers to the excessive violations of freedom of speech in Germany, where hundreds of books, newspapers and magazines are forbidden just for expressing opinions which do not suit the authorities. Dozens of authors, booksellers, journalists, publishers, editors, scientists and even ordinary individuals of any age are imprisoned or sentenced to pay severe fines. We regard this state of affairs as unacceptable. We strongly condemn the prohibition of opinions. The political and intellectual climate in Germany has become unbearable. We are deeply infuriated by the increasing restrictions on the once constitutionally guaranteed right to freedom of opinion. We challenge the diplomatic representatives of Germany in South Africa to demand the abolishment of especially the politically motivated laws aimed at curtailing the freedom of expression. In particular, we call upon the immediate release of all political prisoners«.

An Appell für die Pressefreiheit (appeal for the freedom of the press) initiated by the retired Federal Attorney General, Alexander von Stahl, appeared in the FRANKFURTER ALLGEMEINEN ZEITUNG and in the SÜDDEUTSCHE ZEITUNG on 1 February 2001. The appeal was signed by dozens of scientists, publishers, parliamentary representatives, authors and editors. In it the signatories protested against the fact that the postal bank (like many other banks) closed the business accounts of unpopular (that is politically opposed) authors and publishers, thereby threatening the very survival of the latter.

The intellectual and political repression in the FRG has for years been increasing in intensity. For this reason it is finally necessary to deliver a clear plea for the authentic democratic constitutional state. »A free state system is inter alia distinguished by the fact that its citizens possess the right to [freely] express their opinions verbally or in print, as well as the right to physical integrity and dignity. Opinions can never be uniform in a genuinely pluralistic state. Only from continuing conflict of opinions can a free system develop the ability to find solutions to the always continuing search for answers to various questions. Arguments and counter-arguments are the point around which such a free system revolves and in which it is anchored - also and especially if opinions may deliberately be kept controversial and are allowed to be sharply formulated.« However, a system which disguises policy on opinion by means of liberal pretexts; moralistically applies the »stick of Fascism« against political dissidents and attempts to shut them out of the process of public opinion formulation; which vilifies them in public; which implements the banning of opinion and prohibits people from pursuing their chosen careers; which infiltrates agents provocateur and spies into organizations belonging to potential political adversaries and uncomfortable opposition parties, often with the aim of activating third parties to commit criminal transgressions, »in reality represents totalitarianism. In this sense the FRG is a totalitarian state«.