Should a book ever get censored

Literature in court: censorship in Germany

Germany is currently marked by censorship. “The German autumn of books is taking place in court”, headlined the Süddeutsche Zeitung at the end of 2003. When, how and why literature in Germany has to answer to the judge and the reasons for it being banned or acquitted shows a lot of the values ​​of society. Censor interventions in the freedom of literature are not a new phenomenon in Germany. Books and their authors have always been persecuted. It is frightening that the phenomenon of censorship has not been overcome even after 1945 and until today. With the current ban on Maxim Biller's novel Esra, German censorship has reached a new, dangerous dimension.

1945 to 2004

To grasp the new quality of censorship in Germany, let's first look back at the history of Federal Republican censorship. Which works are banned and with what justification? The reasons for the verdict are repeated across history. Literature is supposed to spiritualize, glorify and ennoble the sensual. If it does not do this, it will seduce you into sexual pleasure with fatal consequences and thereby weaken social values ​​and norms. With this legal art concept, the state wants to protect its citizens or parts of the population from the harmful effects of literary texts. Books such as Nabokov's Lolita, Rochefort's The Resting Pillow or D. H. Lawrence's Lady Chatterly’s Lover were defined as obscene in the 1950s and 1960s and therefore banned as “trash”. In 1965, the ‘Youth Association for Decisive Christianity’ publicly burns examples of ‘daring literature’ in Düsseldorf; including Grass ’The Tin Drum, Nabokov’s Lolita, Camus’ The Fall and Kästner’s heart on the waist. Statements from the church that refer to such authors as “plague people” and “filthy publishers” incite the ‘healthy public sentiment’ and find broad echo in the public. An example of Germans' bias and aversion to literature dealing with sexual subjects is the 1962 trial of Jean Genet's Notre-Dame-des-Fleurs. Like most of the author's works, the book contains drastic and exact descriptions of homosexual practices and lust murders. After his book Querelle was banned in 1956, the public prosecutor's office confiscated Notre-Dame-des-Fleurs in 1960. This novel was not acquitted until 1963 after a lengthy process. The court found that the immoral passages were pushed into the background by the poetry and lyrical expressiveness of the poet. The judgment shows that the German judiciary primarily expects a work of art to “transfigure” and “ennoble” or “spiritualize” sexual representations. The German Nobel Prize laureate Günter Grass is also accused of being a “literary specialist in masturbation”. "Here, not only are sins of youth hinted at, as they occur everywhere, but orgies are ceaselessly celebrated and described in a sour way." We are talking about his novella Katz und Maus. Even after its publication in 1959, the tin drum became the subject of public protest. Following the objection of the Bremen Senate Grass, the jury of the Bremen Literature Prize withdrew the recently awarded prize with the comment that the content of the novella violated public morality. The Volkswartbund e.V. (Cologne) reports criminal charges and describes the text as “clearly lewd” and “pornography”. “We are concerned with cleanliness and decency in Germany's intellectual life. Books of the type cat and mouse bring us shame to all decent literary friends in the world. " The publisher has to employ ten experts, including Enzensberger, Jens, Martini, Kaiser and Höllerer. After these massive protests by prominent scholars and writers, the responsible minister of state withdrew the application for indexing. Had Grass not already achieved international renown through his first work The Tin Drum, the case of Katz and Maus would most likely have turned out differently. It is not only worrying that world literature is repeatedly accused, but also that these accusations in particular suffer great damage to young, unknown writers without prominent patrons and financially strong publishers. Some careers end there. But also and especially the group of not yet established writers is protected by the freedom of art.

In 1985, the action taken by the Munich District Court against the novel Perlen der Lust by Charles W. Fenton attracted a great deal of public attention. The novel describes amorous and frivolous adventures in Victorian times. Police officers search all bookshops in hundreds. They not only confiscate all available copies of the novel, but also destroy all printing plates of the volume as well as the catalogs and manuscripts of Droemer's publishing house. Obtaining an expert opinion on the risk to minors is not required, as the case is obviously very clear for the Federal Examination Board for Writings Harmful to Young People, an independent higher federal authority. Instead, Hans-Jochen Gamm, professor of education at the Technical University of Darmstadt, is quoted as saying, as a “balance sheet of sexual education”: “Young people should use meditation and asceticism as forces that prevent the wear and tear caused by the weariness and disgust of marketed sexuality Counteracting the phenomenon of love. Without asceticism, there is a danger that desires will be confused with needs, for human desire is presumably unlimited and clearly has infantile traits. The various achievements that have grown out of asceticism must be historically recognized in terms of their significance for human society ”.1
Pearls of lust is still forbidden and confiscated according to § 184 III StGB.
The prohibition of Henry Miller's Opus Pistorum in 1986 is exemplary of Federal Republican censorship. All copies of Miller's Opus Pistorum are confiscated in a large police operation in the course of which around 700 police officers search a total of 285 bookstores. The court said the novel describes “in a sensational way the most desolate sexual practices”. It derives the criminal content of the book primarily from the fact that the book is a commissioned work. The Darmstadt judges decided that commissioned work could in principle not be an art within the meaning of the Basic Law. The court does not see that the majority of occidental art is excluded from the protection area of ​​art. In 1988 the Federal Inspectorate decided, with the same reason, to include the novel in the list of writings harmful to young people. She states that the work is obviously capable of seriously endangering children and young people. Various editions of Opus Pistorum are indexed to this day by the decision of March 31, 1988.

The legal dispute over the question of whether the literary description of sexual things can be art has pervaded German jurisprudence for decades. The never-ending legal dispute over Josefine Mutzenbacher - The life story of a Viennese prostitute, told by herself, shows this clearly. After 22 years of litigation, the Federal Constitutional Court found in its decision of November 27, 1990 that in the proceedings against Josefine Mutzenbacher “the importance of artistic freedom was not properly appreciated”. The novel is about the “result of free, creative design”. One could see the stylistic devices as a “pastiche of the development novel” and interpret the protagonist as “the embodiment of male sexual fantasies that are seen as a reaction to an upbringing whose goal was the suppression of the sexual”. The Federal Constitutional Court thus repeals the decision of the Federal Administrative Court and the indexing of the Federal Inspectorate of November 4, 1982. The case is not ended by the highest instance judgment. The legal antics is just getting started. On November 5, 1992, the Federal Inspection Agency indicated Josefine Mutzenbacher again. Critics condemn the decision of the BPS as highly scandalous. A federal authority provokes the scandal and deliberately and ironically defies the highest court. The BPS writes at the end of its reasoning for the indexing (decision no. 4274 of November 5, 1992): “The excitement that this decision has once again caused among publishers is incidentally incomprehensible. (...) The accusation that has been expressed on various occasions that the decision is a ‘legal and political scandal’ does not affect the Federal Inspectorate. "

One can accuse the Federal Inspection Office of great naivety with a lot of goodwill. But one could also find that it does not fully grasp the dimension and importance of the constitutionally established fundamental rights and that it lacks the expertise that it claims for itself. The Mutzenbacher case is an example of how the effects on the literature system are not considered in any way. The principle of proportionality is simply ignored. Unfortunately, this careless handling of literary freedom continues, and further serious mistakes are made.

The indexing of American Psycho is such an internationally unique case. The novel by Bret Easton Ellis was published in 1991 by the publishing house Kiepenheuer & Witsch in a German edition. The widely acclaimed novel has been extremely controversial since its appearance in the international daily press and in the specialist field, but it has always been accepted as a genuine work of contemporary American literature. Not a single literary critic has ever questioned the legitimacy of publication and the normal free distribution by the book trade. In January 1995, the Federal Inspectorate nevertheless indexed the novel on the grounds that it was dangerous for young people to read. According to the publisher, this can be used to index entire libraries of world literature. It is noticeable that the central aspects of the novel are not recognized either in the indexing applications or in the indexing justification of the BPS. The consequences for the literature business are simply ignored. The court proceedings, which lasted for years, are ended after several instances in February 2001. The publisher can freely advertise and sell the book after six years. The damage of such a process is not only high in financial terms. For small publishers, the risk of legal action is a threat to their very existence. It is worrying that Bret Easton Ellis’s novel American Psycho appears in many languages ​​and numerous countries around the world, but is never indexed anywhere, either in the US or in Europe, except in the Federal Republic of Germany.

The current judicial ban on Maxim Billers Esra is an example of the chronic ametropia of literature. In the interests of general literary freedom, this case of censorship must not be ignored, especially since it is not an isolated case. Legal action is being taken against Alban Nicolai Herbst's novel Meere and Michael Lentz's declaration of love may be faced with something similar. What these books have in common is that the writers' ex-lovers recognize themselves in the novels. They feel that their honor is attacked, not least because of the extremely clear descriptions of sexual processes. How can it be that in Germany literature that falls under the artistic freedom of Art. 5 Para. 3 is banned? With what justifications is the constitutionally protected freedom of art severely restricted?

What is literature allowed to do?

The Basic Law postulates simply and generally: "Art is free". (Art. 5 para. 3 GG) Since the freedom of art on the one hand cannot apply without restrictions, but on the other hand its limits can hardly be standardized, the question of what literature is allowed and where its limits lie, that is, when it is banned, does not concern itself only literary studies and art criticism, but also repeatedly poses great problems to the jurisprudence. The legal concept of art repeatedly collides with the conception of art in literature. Such collisions not only remain on the theoretical level, but also have very concrete effects on writers, works, the public and the literary scene. Even after 55 years of validity of the Basic Law article, the boundaries of artistic freedom remain blurred. Judges and courts are overwhelmed in their competence with judgments about the artistic character of literature. The text of the law seems to be clear: The freedom of art - like the freedom of science and research - is guaranteed without limits. In legal research, however, against this prima facie plausible, because it is directly oriented to the text, the argument is predominantly put forward that artistic development has to take into account the legal and freedom claims of others. The freedom of art is subject to some kind of barriers. But which one? Since they are not expressly formulated in the legal text, they have to be constructed.

In Germany there are several ways of legitimizing censorship in the field of literature. The reasons for the prohibition are mainly the protection of minors and the protection of honor. The Mutzenbacher judgment of November 27, 1990 points the way in the constitutional balance between the protection of minors and artistic freedom. Here the Federal Constitutional Court decides that artistic freedom is to be given greater weight than the protection of minors. The dominant decision of the Federal Constitutional Court on the question of balancing the protection of honor and freedom of art is the Mephisto judgment of February 24, 1971. The freedom of art must take second place here to the protection of personality. At the level of criminal law, it is above all sex-centered, erotic literature (Section 181 of the Criminal Code), religious-critical (Section 166 of the Criminal Code) and violent, racist and political literature (Section 131 of the Criminal Code) that is persecuted. Morality, politics and religion are thus limits that artistic freedom encounters. In Germany, in addition to criminal law, there is administrative prosecution of literature by an institution that is unique in Europe, the “Federal Testing Office for Writings Harmful to Young People” (BPS). There is no comparable authority in Austria. Since it was founded in 1954, the BPS has indexed well over 15,000 books. The German test center is an independent higher federal authority that is expressly not bound by instructions. Indexing specifically means that the book may no longer be advertised, mailing is prohibited and it may not be accessible to minors. Such a book is effectively disappearing from the market. Even today, literature that focuses on sexual matters is still the target of the censor. In Germany, literature is censored under administrative law by indexing the Federal Inspectorate, under civil law due to legal proceedings that citizens or companies bring about, and criminally censored according to the above-mentioned paragraphs of the Criminal Code.

New dimension in book censorship

What is the difference between the aforementioned cases of censorship in the West German past and today's current censorship cases, such as the proceedings against Biller and Herbst? The prosecutors in these cases are private individuals and not the state. It is therefore not a question of protecting young people or the community from any harm, but of protecting a person and their individual interests. For the writer this means that he not only has to ask himself whether he has sufficiently interwoven the sexual scenes into the overall material for justice and whether the physical has been sufficiently sublimated, internalized and spiritualized. He has to check himself whether he has adequately observed the moral limits. He has to ask himself whether his book disorientates the youth in their ideas about sexuality or whether the sex drive is stimulated. In addition, he now has to check that no one in his environment recognizes himself in any form in a character in a novel and feels offended in his honor. Interestingly, the fact of defamation is independent of the truthfulness of the descriptions. If Fontane could still write about Effi Briest in 1895: “It is a story about life and the heroine is still alive”, the following note does not help Biller in 2003 either: “The fictional characters in this novel are inspired by real people, but not with them identical to them. The plot of this novel is not a documentary representation of actual events. That is why this novel does not claim that the events described could be true or that they happened. " His book Ezra is forbidden.

Maxim Biller's novel is a great love story and separation story between the successful Jewish writer Adam and the unsuccessful Turkish actress Esra. The core of the story is about family entanglements, the modern non-commitment of love, vulnerability, sadness, passion and happiness. After the relationship has failed, Adam tries honestly and ruthlessly to come to terms with why he loved Esra.It is a little story of great feelings, sad and beautiful at the same time and written in a direct and clear language that also describes the sexual without frills. German readers cannot form their own opinion because the book is forbidden there. Biller's ex-lover and her mother see themselves portrayed in the characters and feel their honor hurt. In the first hearing, a publication ban is announced and an injunction is issued. The publisher then issues a “whitewashed” edition in which all references to the Turkish origin and all street names in Munich are omitted. But this version is not accepted by the plaintiffs either. This means that the censored version of the book remains forbidden.

How do past cases differ from this and similar current censorship cases? Have the writers become more direct or have those affected become more sensitive? Is it just a media law fad? Who earns from these cases? Is a legal paradigm shift taking place here largely unnoticed by the public? In many new censorship cases, the plaintiffs refer to a violation of their personal honor, which as a term is neither socially nor legally clearly defined and is nevertheless protected, for example, by Art. 1 GG. The protection of the individual against immaterial damage such as insult, degradation, devaluation, defamation, etc. is also regulated by various criminal law paragraphs. In addition to literature, criticism, cabaret and satire, with the connection between poetry and truth, always stand on the fine line between forbidden defamation and protected freedom of expression and artistic freedom. On a case-by-case basis, these goods must be weighed up and a decision must be made on the criminal liability of statements or publications in this regard. The classic form of "defamation" refers primarily to character defects or misconduct that is said to be of those affected and thus publicly identified. Now another motive is added: the publication of sexual, erotic intimacies, which are far more likely to be ascribed to the truth than to the assumption that the author has made use of his artistic freedom and imagination.

Poetry and Truth: The Mephisto Judgment

The so-called “Mephisto decision” is the main and dominant decision in German jurisprudence on the collision between guarantee of artistic freedom and protection of personality. To this day, it has been the benchmark for judicial decision making. In the discussion, the deviating statements also retained their status. With the decision of February 24, 1971, the Federal Constitutional Court placed artistic freedom under defamation. Should the Esra case be heard before the Federal Constitutional Court, this position could now change. What was this case about?

Klaus Mann published the novel Mephisto in 1936 while in exile. Novel of a career. The novel describes the rise of the highly talented actor Hendrik Höfgen, who denies his political convictions and strips off all human and ethical ties in order to pursue an artistic career in pact with the rulers of National Socialist Germany. The fictional character Höfgens serves Klaus Mann's former brother-in-law Gustav Gründgens as a model and typical representative of intellectual followers. Peter Gorki, the adoptive son and heir to Gründgens, obtained a ban on the publication of the novel in 1964. The publisher of the book then lodges a constitutional complaint against the decision. After fundamental considerations on the content and limits of artistic freedom, the Constitutional Court comes to the conclusion that artistic freedom in this case must subordinate the protection of personality and that the prohibition of the book is thus justified. In the event of a collision between artistic freedom and personal rights, the judges do not consider it so crucial that personal data be used; the decisive factor is the mixing of real and fictional elements. For the solution, it is relevant whether and to what extent the 'image' appears so independent from the 'original' through the artistic design of the material and its classification and subordination in the overall organism of the work of art that the individual, personal-intimate in favor of the In general, the character's character is 'objectified'. In the judgment it says: “If such a consideration, taking into account the art-specific, shows that the artist has drawn or even wanted to draw a 'portrait' of the 'archetype', the extent of the artistic alienation or the extent and meaning of the 'Falsification' for the person concerned or for his memory of. ”2

When applying the laws to the Mephisto novel, the Federal Constitutional Court came to the conclusion that the 'image' Höfgen did not make enough independence in relation to the 'original image' Gründgens due to the artistic design of the material and its imagination in the overall structure of the novel Execution is not sufficiently 'transcended'. In this way the individual, personal-intimate does not step back sufficiently in favor of the general, symbolic character of the figure ’. In her dissenting opinion on the judgment, Judge Rupp von Brünneck draws attention to the contradiction that the court accuses the author, on the one hand, of having alienated his protagonist too much, i.e. providing his protagonist with fictitious character traits and behaviors that do not correspond to the real Grundgens, and at the same time one accuses Klaus Mann of alienating too little. Judge Stein criticizes that the one-sidedly reality-oriented approach is appropriate for a documentation or a biography, but not for a novel that does not aim at a truthful portrayal of reality. “The artistic representation cannot therefore be measured against the standard of the world of reality, but only against an art-specific, aesthetic standard.” 3 The problematic of the Mephisto decision becomes very clear here. In the Esra case, too, it is about this weighing of interests between defamation and artistic freedom, the problem of recognizing and alienating the protagonist and her environment.

Until recently, private individuals rarely took action against literary works. The Biller case shows that this is changing decisively, almost unnoticed by the public. Protection of personality and freedom of art and expression are actually on an equal footing with each other. Can the state forbid writers to use the experiences of their lives and the experiences of those around them in their novels?

Free speech is life (Salman Rushdie)

“What is the work of a writer?” Asks Maxim Biller in his statement for the Munich Regional Court on the Esra trial. “Inspired and animated by the reality in which he lives and which he experiences, he creates fictions that we call narrative, novel, novella or poem ...” Every writer draws on experience, life is always material for books; if one withdraws that, one withdraws any basis for the literary work. All great writers, be it Goethe, Proust, Thomas Mann, Büchner, etc., fall back on life, on their own life. The constitutional judgment records this and defines the essence of artistic activity as “the free creative design in which impressions, experiences, experiences of the artist are brought to immediate view through the medium of a certain formal language. All artistic activity is an intermingling of conscious and unconscious processes that cannot be triggered rationally. Intuition, imagination and artistic understanding work together in artistic creation; it is not primarily a communication, but an expression and the most direct expression of the artist's individual personality. ”4 Here, however, one demands a rational separation of conscious and unconscious processes and denies Biller this direct expression of his personality. He is not allowed to deal with his view of his environment. Is art even possible in such a vacuum, far removed from reality? If Biller, like many other writers, cannot write anything other than with autobiographical references, doesn't this limitation also prevent the writer from freely practicing his profession?

German courts do not sufficiently differentiate between the biographical non-fiction book, which aims at authenticity, factuality or, as last autumn, purely at sensation, and a novel form that interweaves autobiographical and fictional elements; a centuries-old tradition of literature. The judge's ban on Bohlen's biographical celebrity gossip went through the press with media coverage. Herbert Grönemeyer and Reinhold Messner are suing their biographers, there are preliminary injunctions against the biographies of Susanne Juhnke and ‘Naddel’. People buy these books because of the precarious places and the injunction works like a stamp of approval. In these cases, censorship is effective in advertising and promotes circulation. Those who feel that their honor has been attacked and who submit injunctions against these printed products are themselves in the media circus of intimacy. If the complaints in the category 'non-fiction' 'are still understandable, because a biography or autobiography about existing persons should be verifiably truthful as a non-fiction book, then these events divert the attention of the literary public from those processes that are real interventions in the freedom of literature .
In the Biller case, defamation by breach of trust stands against artistic freedom and the right to free professional practice. The court will have to weigh very carefully. It is about the fundamental question of how the state presents the freedom of the reader and the author in relation to the interests of an individual. Does individual protection outweigh the freedom of a community? Isn't it part of the general life risk of a writer's lover that this love is not only processed mentally but also artistically by the author? Is it possible to use state protection to have a liaison with a writer? Is that still proportionate? Isn't that the price that individuals have to pay for a free society?

In the case of the French author Nadine Trintignant, who dealt with the murder of her 41-year-old daughter Marie in writing, the murderer, her partner Cantat, is suing the book. Bertrand Cantat, a well-known singer, beat her daughter Marie so brutally at the end of July 2003 that the woman fell into a coma and died of the injuries. Cantat's lawyer wants a court to stop the delivery of the book Ma Fille, Marie. It is a case of prejudice as the process has not yet been completed. The whole book is a crime, says the lawyer. But his application for a restraining order was denied. Nadine Trintignant specifies the facts, she just doesn't mention Cantat's name. He is referred to as "the killer". In the book the mother writes to her daughter: “He was big and strong, your murderer, and you were small and delicate. He stopped you on your resume with ease. He wanted to wipe you out so that no one else could see you ... ”

In this case, the mother is allowed to process the pain and her subjective view in this form. The Paris court recognizes a “cathartic function” of the book, which was submitted in October 2003 with 140,000 copies.

Isn't it also a human right to write a book about himself, to deal with his own individuality, with his own pain, with his own story? Is the violation of someone's honor, who actually only feels hurt by the publication, to be valued more highly than the writer's protection of personality and the freedom of literature? The court must decide whether the concept of honor is to be seen predominantly in the sense of static, constant human dignity or whether it is based on a social and thus dynamically changeable concept of honor, which primarily results from the social behavior of the individual. In its decision it will have to bear in mind that the freedom of all readers is ultimately opposed to the feeling of an individual who sees himself recognized and represented. But who actually knows Esra? If he is a person of public interest, then he must be able to endure more. If it is not, then the group of people who know and recognize it is limited anyway. Apart from that, it doesn't matter to the reader anyway whether Esra actually exists or is a fantasy product. It is only through the court process that one becomes interested in who is behind the character Esra. “Esra” is more public than Biller could ever do.
The question of fiction and reality arises anew: How true is fiction and how fictional is the truth? Novels that are divided into fictional and real parts become illegible. What happens to Biller's novel is the most effective form of de-literarization. Incidentally, isn't it a naive claim that the author wants to present everything as it actually was? Can the reality of a work of art, which is primarily on the aesthetic level, be measured against non-artistic standards? Don't the same standards apply to a biography or a documentary as to a novel? From a literary point of view, pure facts always need the evaluating, sifting, structuring hand of the author and the illustrative, enlivening, concretizing imagination of the poetic self. According to Iser, fiction arises through selection and combination, since the story as a narrative needs its own poetic instruments in order to achieve its visualization work towards the readers. The goal of the presentation is not the external truth of the facts, but the internal truth of the fictions shown. The boundary between factual and fictionality is basically fluid in literary work. Dividing fact and fiction apart is absurd in itself. Great art always speaks of the world and contains a piece of it.

The Index on Censorship addresses the problematic relationship between the constitutional goods protection of personality and freedom of art and freedom of expression in a British ironic way. To celebrate the 25th birthday in 1997, a “SELF censorship KIT” with instructions for use was distributed at the entrance:
1. Write freely whatever you can think of.
2. Look at what you wrote. Are you sure you haven't offended anyone?
3. Check again. Unfortunately, someone is offended somewhere. Erase immediately.
4. Oh dear, now someone is offended again - because you erased it. Please start from the beginning.
How can art arise under such conditions? Doesn't the protection of the personal honor of the individual ultimately stifle the freedom of the general public? The basic intention of the Basic Law is to protect the individual from the state. Now the sense of honor of a single citizen is enough for what should be denied to the institutions of the state. In such a case, does the constitution have to protect the freedom of art not only against state interference, but also against access by sensitive individuals?

Personal dignity is undoubtedly a valuable asset that is worth protecting. But individual freedom also includes personal responsibility. This means personal responsibility for your own actions, for your own life and, moreover, responsible handling of the law. The rampant power of the individual over the community sets in motion a powerful, complex censorship machine in which everyone insists on their rights. Tolerance, plurality and freedom are the values ​​of our old Europe, without which all important works of culture and literature would not have come into being. The freedom of art is a threatened good that is worth protecting. This fundamental right may only be restricted in very serious cases. The novels by Biller, Herbst and others do not belong in this category.

Published 22 March 2004
Original in German

Contributed by Wespennest © Anja Ohmer Wespennest Eurozine

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