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:

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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.

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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.

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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.