Thursday, January 26, 2012

Suing Julius Streicher for Anti-Semitic Libel

 Julius Streicher was the editor of Der Sturmer, a Nazi tabloid that most Nazis apparently were embarrassed by. Streicher's hate filled preaching against Jews would earn him a spot at Nuremberg, where he was hanged. I my mind he serves as the ultimate example of the limits of free speech. From the perspective of the Nuremberg prosecution, Streicher was not merely a journalist, who held anti-Semitic opinions and used the press to make his opinions known, but part of a conspiracy to facilitate the murder of Jews by dehumanizing them.

It is important to keep in mind the distinction advanced by John Stuart Mill. Speech in of itself causes no empirical harm to others and therefore is a protected liberty. Being able to pursue one's own good in one's own way as long as one does not cause physical harm to others means that one is free to hold any opinion, from the virtues of cannibalism to putting Jews into ovens, no matter how offensive they might be to others and engage in theoretical discussions with others about them even for the purpose of convincing others of the rightness of such opinions. The moment, though, that one speaks with the intention that other people act in a certain way, such speech ceases to be speech and becomes an action. If such "speech" leads to physical harm, such as people being stamped upon in the rush to exit a crowded theater after someone shouted fire, then it is no different from any other action that leads to physical harm. In the case of Nuremberg this principle was important as without it none of the defendents could likely have been charged; the criminal actions in question where actually carried out by other people. Most of the defendents simply gave orders; in Streicher's case he simply helped convince people to carry out those orders.

It should be noted that this restriction on speech is different from modern notions of banning hate speech. Hate speech is defined based on its ability to cause non-physical harm, such as feeling hurt and dehumanized, to others. For the purposes of hate speech it is irrelevant whether the speech actually caused physical harm or if it was intentional.      

Streicher had an earlier brush with Jewish "censorship" in January of 1935 when Rabbi Solomon Gliksman of the Orthodox Congregation Ohel Yitzchak in Danzig attempted to sue him for libel. For those of you not familiar with post World War I Eastern European politics, Danzig was a politically oddity hanging between Germany and Poland. While Danzig was a German city, the Treaty of Versailles made it a "free city" under Polish control. Danzig fell under Nazi control in 1933, but because it technically was not German territory, it became the one "German" city in which Jews could legally strike back. 
Gliksman wrote to the police chief and the attorney general, denouncing Streicher and Bruno Schnorkowski, the main distributer of Der Sturmer in Danzig:

They have transgressed against paragraph 166 of the Penal Code insofar as they have allowed to circulate about 300 copies of the "Sturmer" number 2, 1935, which contained expressions blaspheming God and His laws, in the period of the 7th till the 15th of January 1935, in the Free City of Danzig. There is no doubt that the abominable manner in which the "Sturmer" attacked Jehovah and the Bible has also offended the circles of the Churches existing within the jurisdiction of the Free City of Danzig. For Jehovah is obviously not only the "Jewish God", as the "Sturmer' informs his readers but the Universal God. "Jehovah" is the original pronunciation of the Tetragrammaton, the group of four letters representing the ineffably holy name of the Supreme Being in the Hebrew text of the Old Testament, which as is well known, forms the basis of the New Testament.

The assertion that the Holy Scriptures  are a horribly criminal romance is then to be considered a detestable defamation of the Old Testament which constitutes preeminently the basis of all prevailing theological social and ethical concepts. Concerning this I call to witness the experts Count O'Rourke, Bishop of Danzig, Dr. Kalweit, the emeritus General Superintendent at Danzig, and Dr. J. Gruen, the Rabbi of the Jewish Community of Danzig. (Shlomo Gliksman, The Forgeries and Falsifications in the Antisemitic Literature and My Lawsuit against Julius Streicher & Co. pg. 86-87.)

Unfortunately for Gliksman, this attempt to, at the very least, stop the distribution of Der Sturmer in Danzig did not come to much. In April the attorney general wrote back:

A lawsuit against the Editor-in-Chief, the assistant editors and publishers of the "Sturmer" cannot be conducted in Danzig, since the accused live in Germany and are obviously not citizens of Danzig.

Concerning the worker Mr. Schnorkowski, the law-suit against him had to be discontinued for subjective reasons: As the "Sturmer" is not forbidden in Danzig, there is no reason to suppose that the defendant had even the slightest idea of becoming criminally liable by circulating these periodicals.

Finally, the conduct of an objective proceeding of confiscation, according to paragraph 42 of the Penal Code, is unnecessary as the editions of the "Sturmer" challenged by you are no more in stock circulation. For the same reason it is unnecessary to take a stand on the question of the guilt liability of the contents of the periodicals." (pg. 92.)

Note that Gliksman argument was not based on the liberal principals of Mill used at Nuremberg. Instead he argued based on a hate speech principles. Considering that the speech in question was against the Bible and that he wanted to call Catholic priests as friendly witnesses, it should be clear that hate speech is really just the traditional charge of blasphemy brought up to date to make it palatable to modern values.    

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