Читать книгу Banned in Berlin - Gary D. Stark - Страница 12

Chapter 1

THE LAW

The police want to know everything, everything.

—Der Wirt, in Lessing, Minna von Barnhelm, Act II, scene 2

Before the law, all citizens are equal—but not, it seems, before the censors.

—Otto Brahm, director of the Berlin Freie Bühne,

Deutsches Theater, and Lessing-Theater

Like their counterparts throughout Europe and North America in the nineteenth century, anyone engaged in literary or theatrical life in the German Empire did not enjoy absolute freedom to say, publish, or publicly perform whatever they wished. The law limited what subject matter writers could treat and the language they could use; it shaped and restricted institutions that mediated between writers and the public, such as the theater, press, and book trade; and it helped determine which audiences had access to which literary works or performances, and under what conditions. Some legal constraints were enacted by a popularly elected legislature, some were simple administrative (or, after 1914, military) edicts, and some, surprisingly, were requested by publishers or theater managers seeking more predictability, economic security, or legal protection. The laws restraining imperial literary life were uneven and at times confusing: different laws applied to different media, while the empire's federal structure ensured wide local variation in their nature, enforcement, and consequences. For these reasons and others, censorship laws were the subject of much public debate, especially after 1890, as popular and official forces struggled to standardize, broaden, narrow, tighten, or loosen them. Only war in 1914 and revolution in 1918 brought substantial changes to Germany's patchwork censorship system.

Control of the Printed Word

During the first half of the nineteenth century, the printed word was one of the most ruthlessly censored forums of public expression in Germany and other European states; by the last quarter of the century it was one of the freest from state control. Extensive government restrictions such as licensing and prior censorship shackled the press and book trade in most nations until 1848, but thereafter liberal reformers progressively dismantled these controls, especially prepublication censorship. By the 1860s there was substantial (but not total) freedom of the press and book trade in Great Britain, Sweden, Norway, Denmark, the Netherlands, Belgium, Switzerland, and several German states (including Prussia), while France abolished the last vestiges of state press control in 1881, and Russia not until 1905.

Prior censorship of books had ended in the German states with the revolution of 1848. Freedom of the periodical press was guaranteed in the new German Empire by the Imperial Press Law of 7 May 1874, which abolished government licensing of the press and all prepublication censorship of printed material. Although government retained the right to be informed about the contents of most periodical publications (except for artistic, scholarly, or commercial publications, publishers were to submit a copy of each issue to local police as distribution began), the Press Law placed few significant legal restraints on printed materials. (The exceptional Anti-Socialist Law, which did prohibit a wide range of socialist publications from 1878 to 1890, is discussed in Chapter 4.)

The state, however, did exercise a punitive or postpublication control over the printed word through other means. Under the Imperial Criminal Code of May 1871, for example, it was illegal to incite others, in print or speech, to disobey the law or commit criminal acts; to incite social classes to violence against each other; to knowingly fabricate or distort facts in order to incite in others contempt for state institutions or the law; to slander or libel officials, clergymen, or members of the armed forces who were carrying out their professional duties; or to maliciously slander or libel other citizens.¹ In the absence of prior press censorship, the government frequently used the Criminal Code to prosecute press opponents, especially for libel. Creative writers on the other hand were most affected by the paragraphs pertaining to lèse majesté (§§94–101), blasphemy (§166), and obscenity (§184). Because literary works dealing with the three sensitive areas of politics, religion, and sex were those most likely to put writers in legal peril, each of these offenses will be examined more closely in subsequent chapters.

Writers violating the Criminal Code could be subject to legal action. Local state prosecutors, either on their own initiative or in response to a citizen's complaint, could, within six months of its appearance, order the immediate confiscation of any publication thought to violate the law. (Only the remaining, undistributed copies could be seized; those already in citizens' hands were beyond the law's reach.) While local police also had authority to confiscate a work, such actions had to be reviewed by the state prosecutor within twelve hours; usually, police simply marked and forwarded to the prosecutor anything they considered actionable. In keeping with the general principle in the empire that administrative actions were subject to judicial review (of which more below), if a publication were confiscated, within five days a local district court had to either uphold the action or release the work for distribution. If the court affirmed the seizure, the prosecutor had two weeks to file criminal charges against those responsible for the offending publication. (Under German law, others involved in the distribution of an illegal publication, such as publishers, printers, editors, or booksellers, were also liable to prosecution.) The fact that a work had been published abroad did not protect a defendant from prosecution or punishment; and if a specific culprit could not be tried—for example, if the identity of the author could not be determined or a defendant fled abroad or died before the trial—the publication could still be permanently prohibited.²

In Prussia and other north German states, depending on the nature of the offense, defendants in criminal cases were tried either before a local district court (Amtsgericht), where a panel of one judge and two lay people heard the case, or by a superior court (Landgericht), where a panel of judges presided. However in Oldenburg and Braunschweig and in the south German states of Bavaria, Württemberg, and Baden, crimes committed in print had to be tried in public before twelve lay jurors (Schwurgericht). (It is perhaps no accident that of the five largest book production centers, two—Munich and Stuttgart—were located in the south.) Some indicted writers thus had the opportunity of being judged by their peers rather than professional jurists, though as we shall see below, for those accused of blasphemy a jury trial in the conservative Catholic south was not necessarily an advantage. If convicted of violating the Criminal Code, a defendant was fined or imprisoned and all remaining unsold copies of the offending publication (as well as the plates used to produce it) were destroyed; if only a portion of the work were judged illegal, only that was proscribed. Courts also could acquit the defendant of any crime yet rule the publication did indeed contain illegal material and must be destroyed. All verdicts, including acquittals, could be appealed to a court of appeal (Oberlandesgericht) and ultimately to the Imperial Supreme Court (Reichsgericht); while the latter occasionally nullified a writer's acquittal and ordered a retrial, it does not appear ever to have struck down a writer's conviction.

Could authors receive fair treatment from the German criminal justice system? Some historians, pointing to the empire's massive disregard of statutory guarantees of equality before the law, have disputed its reputation as a state based on the rule of law (Rechtsstaat). Justice in the imperial era, they argue, was far from impartial; rather, there existed a socially biased, frequently manipulated system of class justice heavily influenced by the partisan interests and ideologies of the ruling classes. Most contemporaries on the other hand saw the empire as a just, liberal state with progressive criminal and civil codes and judicial procedures and as a nation where citizens' rights were protected because administrative power, including police actions, was subject to the rule of law and independent judicial review. A growing body of recent scholarship also supports this view.³

German civil servants and jurists, it is true, were recruited from a narrow social elite and most were conservative supporters of the established order. University students preparing for administrative or legal careers came from elite upper and upper-middle class backgrounds and received a narrow, practical, professional training that, by focusing almost exclusively on law and its application to practical cases, largely insulated them from all “general cultivation” and humanistic subjects, not to mention art and literature. Because the number of law graduates far exceeded the judicial and administrative positions available, the government could be selective, and selection was closely linked to political orientation. The lengthy (and costly) probationary apprenticeship through which all aspiring civil servants and judges had to pass was used as much to screen out social and political undesirables as to assess their professional competence. It is hardly surprising, therefore, that most law graduates and civil servants emerged from their illiberal training as uncritical supporters of the imperial system and its policies.

Yet this same training also produced many nonconformists and even the empire's harshest critics acknowledge the system was a training ground for thousands of liberal attorneys.⁴ Several authors whose writings later brought them into conflict with the law were, in fact, themselves products of the judicial training system: Ludwig Thoma, Hermann Bahr, Ernst von Wildenbruch, Frank Wedekind, O. E. Hartleben, Max Halbe, Carl Sternheim, and Herbert Eulenberg, for example, were either trained (and sometimes practicing) jurists or one-time legal students. And although candidates who lacked the requisite social background or political outlook had little chance of receiving an administrative post, the criteria were more relaxed for the judicial branch, which was more hospitable to liberals, Catholics, and even Jews. Furthermore, members of the German judiciary enjoyed far more independence and job security than their colleagues in administration. The Imperial Justice Laws of 1877–1879 established a modern, independent, and substantially liberal court system in Germany based on clear, fair, and uniform civil and criminal procedures. Judges were appointed for life with fixed salaries and were well insulated from political pressure. They could not be relieved of office, transferred, or pensioned against their will except by means of a judicial decision and in accordance with the law, and so they were answerable only to their fellow jurists, not to the political administration. Whereas administrative civil servants were fundamentally conservative and staunchly loyal to the monarch and his government, the German judiciary comprised a broader range of political viewpoints, including many moderate liberals; among judges “the separation of professional duty and private conviction was more normal, here there was more pluralism, here [logical] predicates and specialized professional judgments played a greater role.” ⁵

Within the judicial establishment, state prosecutors were responsible for initiating legal proceedings (although after 1879 in most German states victims of crimes and other citizens could also instigate legal action). In some smaller north German states, prosecutors came from the judiciary and returned to it after leaving the prosecutors office, so were able to act fairly independently. But in Prussia and the larger states they were state officials responsible to the Ministry of Justice and thus subject to political pressure; if they failed to prosecute certain offenses aggressively enough they could be disciplined or removed by the government. Their literary ignorance, a result of their narrow legal training, could sometimes be embarrassing. Ambitious prosecutors sometimes resorted to questionable legal maneuvers and manipulations when dealing with censorship cases. Because most hoped one day to be appointed as judges, they were often eager to compile an impressive record of prosecutions and convictions; frequently this meant finding ways to circumvent the south German requirements that all press offenses be tried before a jury, where cases were about twice as likely to end in acquittal as those tried before a panel of judges.⁶ One popular tactic involved the principle of “ambulatory venue” (fliegender Gerichtsstand), which, until its use was curtailed after 1902, allowed prosecutors some latitude in deciding where an alleged offense was to be tried. In cases involving a book or periodical for example, a defendant could be made to stand trial either in his or her place of residence, in the place the publication in question was edited or printed, or in any locality where the work was distributed. Because of this last possibility, zealous prosecutors could sometimes force south German defendants to stand trial in north German cities where there was no jury trial, or in more conservative regions where the chances of conviction were thought to be higher.⁷ In 1899 for example, the defendants charged with lèse majesté in the famous Simplicissimus “Palestine Affair” (see chapter 3) were tried and convicted in Leipzig, where the satirical journal was printed, rather than in Munich, where its editorial offices were located and all the defendants resided. The Simplicissimus staff realized if the journal continued to be printed in Leipzig, they would remain highly vulnerable: “As long as we [publish] in Leipzig, we always face the danger of being destroyed. The gentlemen there can do that, if they want to be stubborn. It would not be hard for them, if they wanted, to lock us all up, one after the other.”⁸ This was one reason the journal changed printers; after 1899, Simplicissimus was printed in Stuttgart, where Württemberg law, like Bavarian law, required jury trials for all press offenses.

Some south German prosecutors sought to avoid jury trials by charging defendants under a vague and controversial paragraph of the Criminal Code (§360, sect. 11) that levied a fine of up to 150 marks or six weeks imprisonment on anyone “who, in an unseemly manner, creates loud, disturbing noises or commits a public nuisance (grober Unfug).” Originally intended for use against street urchins and malicious mischief makers who harassed passersby, disrupted traffic, released mice in crowded theaters, or otherwise created a public annoyance, some aggressive state prosecutors stretched this statute to cover behavior that caused psychological as well as physical annoyance to the public. In south Germany, where juries were sometimes reluctant to convict defendants charged under the strictly worded laws regarding obscenity, blasphemy, or lèse majesté, and where the government itself sometimes balked at prosecuting writers unless it was confident a jury would convict, frustrated police and prosecutors occasionally charged offensive publications with “public nuisance” instead, since no jury trial was required in such cases. For example, in April 1898 the Munich prosecutor charged Maximilian Harden with public nuisance rather than lèse majesté for an article in which he openly discussed the tragic insanity of the Bavarian King Otto I, a subject considered taboo during the regency of Otto's uncle Prince Luitpold. Harden was quickly sentenced to a fourteen-day jail term.⁹ And after several unsuccessful efforts in the late 1890s to prosecute Simplicissimus for obscenity, the Munich police tried to confiscate the journal and prosecute its writers and editors for public nuisance instead. Although the state prosecutor had at first resisted such attempts, he eventually relented and in 1903 used that law to ban an offensive Simplicissimus political cartoon and fine the artist and editor thirty marks each.¹⁰ In subsequent years, whenever a jury trial seemed unlikely to result in a conviction, enraged conservatives pressured the Bavarian government to apply the public nuisance paragraph against offensive publications like Simplicissimus.11

Finally, to avoid jury trials in press cases where an acquittal was likely, south German prosecutors at times misused the Criminal Code's “impersonal process” (objektive Verfahren) provision, whereby a publication could be permanently banned even if those responsible for it could not be convicted of violating the law. At the turn of the century the Imperial Supreme Court ruled that in press cases where a defendant had been acquitted on grounds of mental incompetence, a second hearing should be held to determine whether the contents of the publication in question was indeed illegal and should be banned by means of an impersonal process. Soon, some unscrupulous prosecutors began encouraging courts to declare defendants incompetent to stand trial, for this was a way to avoid a possible jury acquittal yet leave the door open for a permanent ban of the offending publication. Bavarian authorities, frustrated by their inability to obtain jury convictions against the writers and editors of Simplicissimus, once resorted to this ploy. After police confiscated an issue of the journal in 1904 for satirizing the Bavarian Catholic Center Party and charged Ludwig Thoma and Julius Linnenkogel with blasphemy, at the preliminary court hearing the prosecutor persuaded the presiding judge to dismiss all charges against the two defendants on the grounds their “mental incompetence” absolved them of any legal responsibility for their actions. Thoma, a former lawyer, immediately saw through this scheme: “All this means is that they don't want to bring me before a jury,” he complained; “Perhaps I should be grateful that I have been acquitted?…I'm sorry that I can't appreciate this kind of mercy.”¹²

In court, defendants were represented by private lawyers who were equals to the state's judges in terms of legal training, preparation, and professional admission requirements. Members of neither the judiciary nor the civil service, defense lawyers were free from any disciplinary oversight from courts or ministries of justice. After the legal reforms of the late 1870s opened admission to the bar to anyone meeting the professional requirements, German lawyers came from increasingly diverse social backgrounds. Compared to the state judiciary, by the later years of the empire the private bar consisted of more sons of middle-class commercial and industrial families and a much higher proportion of Jews. (Before the Weimar republic, Jews were virtually excluded from the judiciary, and women from both the judiciary and the bar.) These lawyers, who in the courtroom enjoyed certain procedural advantages over the prosecution (especially after 1900), often skillfully mounted tenacious defenses of their clients and mobilized public opinion on their behalf. In several literary trials defense attorneys called prominent scholars or writers as expert witnesses to bolster the defendant's case and discredit the prosecutor's interpretation of the work in question. Such testimony was often reported prominently in the press, which regularly covered controversial censorship trials.

Whether because of press reporting of courtroom proceedings, adroit defense by lawyers in private practice, or the impartiality of German judges, attempts by overzealous police and unscrupulous prosecutors to manipulate the law against writers rarely succeeded. The German judiciary generally made an earnest effort to safeguard defendants' rights and courts displayed a surprising independence from, and even resistance to, government efforts to stifle freedom of expression through the printed word. Indeed, after resisting efforts by the state in the 1890s to make the judicial system more repressive, in the years before the war German judges began acquitting a higher percentage of defendants (especially in cases they believed to be politically motivated) and they became increasingly lenient in their sentences (issuing more fines rather than prison sentences, and shorter rather than longer incarceration). Independent jurists frequently revoked confiscations initiated by police or prosecutors, threw out indictments against authors, acquitted defendants, or imposed lighter punishments than prosecutors demanded. For the government the outcome of a censorship trial was unpredictable and frequently disappointing. (Even during the anti-Catholic Kulturkampf and the years of the harsh Anti-Socialist Law, when the Bismarckian state used the most ruthless legal weapons and exceptional laws against its opponents and the judicial system was most politicized, in over two-thirds of all press trials judges imposed significantly lighter sentences than had been requested by the prosecutor and in 20 to 30 percent of all cases they acquitted the defendants completely.) Although police, prosecutors, and even the emperor sometimes railed against such decisions, there is no evidence the administration ever exerted pressure on judges to find defendants guilty; and while judges who freed confiscated material or acquitted indicted authors were occasionally scolded, they could not be punished or disciplined by the state. The evidence is strong, therefore, that throughout most of the imperial era authors who clashed with the law because of their work could generally receive fair treatment in court.

The outbreak of war in 1914 radically altered the legal rights of writers and the press in Germany, as it did in all belligerent nations. State control of printed material expanded enormously during World War I while judicial restraints on censors all but disappeared. On 31 July 1914, Emperor Wilhelm II declared a state of war to exist in the empire and with his constitutional power formally imposed a legal state of siege (Belagerungszustand). As long as the state of siege remained in force, the military enjoyed extraordinary power over civil life: deputy commanding generals assumed executive authority in each of the twenty-five Army Corps districts. Slicing through preexisting state and regional boundaries or lapping over several hitherto independent small states, the arbitrary borders of these military districts bore little relation to the peacetime government's bureaucratic structure. While civilian administrators and communal officials continued their normal functions, they were now obligated also to obey the instructions of the district's deputy commanding general, who, in turn, was responsible only to the emperor. As Wilhelm II became an increasingly peripheral and distant figure during the war, the deputy commanding generals were virtually autonomous: they were “like rulers of independent satrapies, and they could—and to the extent they wished—resist attempts from above, from civilian or military agencies, to impose common policies or institutional constraints on them.”¹³ In the interests of public security they could issue formal police ordinances under their own authority or through the regular civilian police; failure to obey a commander's orders or his police ordinances was punishable by up to a year in prison. During the state of siege, special military courts were established to handle serious offenses (spying, treason, sabotage), the punishment for certain criminal offenses was dramatically increased, and several constitutionally guaranteed rights were suspended, including freedom of association and freedom of assembly.

Freedom of the press also ended, for all nonscientific publications were now subject to military censorship. Initially the Press Office of the Acting Army Corps Headquarters (stellvertretende Generalkommando) was responsible for censorship; after February 1915 it came under the authority of a specially created Central Censorship Office (Oberzensurstelle) attached to the acting general staff. Although these offices established policies and guidelines and issued detailed directives, local police handled day-to-day military censorship. All military-related newspaper articles and, after April 1915, other publications dealing with military issues had to be approved prior to publication; one copy of all other printed material (including periodicals, books, and pamphlets) had to be submitted to local police immediately upon publication. Early in the war some publishers voluntarily submitted materials, especially books, to the military for prepublication censorship, for they found it less expensive to have a manuscript vetted before it went to print than to risk having it banned or changes ordered afterwards. The head of the Stuttgart publishers' union claimed in 1916, “Preventive censorship lies in the interest of publishers, since its exercise protects them from penalty and great economic damage.”¹⁴

Police censors were instructed by military authorities to intervene against any printed matter that undermined the war effort by “disturbing the civil peace (Burgfrieden)” This granted them extremely broad powers, for during the war the civil peace was officially defined as “the effort to preserve the spirit of solidarity and submission to the great national goals, to prevent any endangerment of the unity of the German Volk, and never to allow the impression to arise that the determined popular will for victory is wavering.” In the interests of the civil peace, wartime censors would permit “an objective, even if pointed, representation of one's own standpoint in political and economic questions…[and] a calm discussion of the mistakes and errors of those who think differently.” But they would not allow “any insults to others,…especially any terms of abuse, derogatory comparisons, or degrading insinuations,…any attempts to impute to others selfish or base motives in the pursuit of political goals, any needless rekindling of old quarrels, or any insults between social classes, occupational groups, or religious confessions.”¹⁵ Unlike before the war, when the press often lambasted them, it was now forbidden to publish any criticism of the censors that might undermine public confidence in their activities.

To control printed materials during the war, police wielded a variety of special weapons: besides refusing to allow publication of military-related material, they could also issue formal warnings to the writers, editors, and/or publishers of material already in print; they could require that in the future certain nonmilitary publications also be submitted for prior censorship; they could issue temporary or permanent bans against all future publications of specific periodicals or publishing houses; and, in extreme cases, they could fine or imprison journalists or writers who regularly violated official directives. Decisions of the military or police censors could be appealed only to the Prussian minister of war, who seldom overruled his subordinates. Only in Bavaria did the press retain some of its prewar freedom. Because of Bavaria's special legal status in the empire, the state of siege and press censorship system there was less harsh and press offenders still enjoyed the right to a jury trial.

As authorities attributed military importance to an ever-widening circle of political issues, such as the debates over war aims or food rationing, and as the vague concept of the “civil peace” expanded to include ever more aspects of public opinion and civil life, the scope of military censorship during the war expanded enormously. As one writer complained, “Every political issue could be made into a military one, if the censor wanted. He could even transform issues of a general scholarly or artistic nature into military ones in order to bring them under his sphere of influence.”¹⁶

Censorship also became increasingly centralized and geographically uniform after 1914, as deputy commanding generals in the various Army Corps districts exchanged information and coordinated their policies concerning publications.¹⁷ This near absolute control over printed materials continued until 12 November 1918, when Germany's new republican government lifted the official state of siege, abolished all censorship, and restored the civil rights suspended during the war.

Control of the Theater

Theaters were central to the empire's cultural life; they received generous support from local rulers and municipalities and were enthusiastically attended by a broad spectrum of the populace. The English writer Henry Vizetelly, a frequent visitor to Berlin in the 1870s, observed, “The Berlinese of to-day are steady playgoers, and pass much of their time at the theatres, which, on Sunday evenings especially, are filled to overflowing.”¹⁸ On the eve of World War I the nation's theater association listed a total of 463 theaters in Germany. Along with 116 privately owned commercial theaters (the majority of which were founded after 1871), 132 were operated by city or town governments, serving as a source of civic pride. German princes sponsored some twenty royal or “court” theaters (Hoftheater) that functioned as dynastic showcases and prominent centers of social life, especially in the smaller princely residences; some sovereigns, such as Duke Georg II of Saxe-Meiningen, devoted their lives and resources to their beloved theaters. In addition to the many permanent theaters, there were also 84 traveling troupes and 112 that operated only in the summer or showed films.¹⁹ At the turn of the century, Berlin, with a population of 1.9 million and the “theater capital” of the nation, hosted three royal theaters and over twenty-five conventional commercial theaters (not counting scores of less-reputable vaudeville and variety halls) while its primary rival Munich (population nearly six hundred thousand) claimed two royal and fourteen commercial theaters.²⁰

In contrast to the relative freedom enjoyed by print media, most theaters were subject to a number of special legal restraints including stringent prior censorship. Because of the powerful and potentially dangerous impact of the spoken word upon an audience, governments have always regarded the stage with particular concern.²¹ In nineteenth-century Germany, however, state interest in theater was all the more pronounced because of a widespread “cult of the theater” that ascribed to this medium a unique moral, spiritual, educational, and even political mission. In his famous 1784 address “The Stage Considered as a Moral Institution,” Friedrich Schiller venerated the theater as a source of moral enlightenment and civic education for the broad populace, an agent of social progress, and a source of national self-consciousness and unity. Its unique power and appeal was comparable to that of religion, he believed, and he foresaw a day when the stage would replace religion as a moral force in public life.²² Popular enthusiasm for the theater flourished and spread in the nineteenth century. While local theaters may not have become sites of public worship (as the dramatist Franz Grillparzer once predicted), in many places they did become centers of public life. Prior to 1848, when political assemblies and associations were forbidden or tightly regulated, theaters provided one of the few arenas outside the church where regular mass gatherings were allowed; for middle-class audiences theaters were not merely vehicles of entertainment but sometimes served also as substitute parliaments or places where ideas and news could be exchanged.

By the imperial era, Schiller's idealized cult of the theater as an institution of personal cultivation and national consciousness was so pervasive that nearly every social stratum expressed reverence for the stage's uplifting spiritual power and national mission. At the pinnacle of the social pyramid, for example, Emperor Wilhelm II, whose aesthetic values were notoriously conservative, aggressively endorsed the “noble, idealistic viewpoint” of Schiller's famous essay. The Hohenzollern monarchy, he affirmed, had always regarded theater as a powerful weapon in the “struggle against materialism and un-Germanness (undeutsche Wesen)”; Wilhelm II believed the function of the stage, like the school and university, was to cultivate idealism and character in the younger generation, to ennoble their moral views, and to “prepare them for their task of preserving the highest spiritual values of our wonderful German fatherland.”²³ The educated bourgeoisie that formed the backbone of imperial culture held similar views. Left-liberals like Ernst Müller-Meiningen viewed the stage as a powerful political tribune comparable to parliament where, when parliamentary discourse is blocked, the popular spirit resorts to “the sharpest, most dangerous weapons of political battle: parody, travesty, satire, in short, to scorn and mockery.”²⁴ At the same time various cultural outsiders—Naturalist critics of the established culture, radical avant-garde modernists, and committed Social Democrats—also acknowledged the theater's unique spiritual power and rhapsodized over its importance as an institution that could help spark a national cultural, social, and political transformation.²⁵ This idealistic cult of the theater was regularly invoked to justify extensive state controls over theatrical productions. Prussian ministers of the interior regarded it their duty to protect the stage as “a place of cultivation and spiritual uplift for wide segments of the population” and to prevent “any performance that the uneducated ‘common man' might misconstrue”; similarly, Munich's police director considered police censorship of theaters “a positive, state-sustaining, national, and monarchical institution.”²⁶

But authorities in Germany (and elsewhere) were especially vigilant toward the theater because live theatrical performances, unlike dead printed texts, could stir an audience's emotions and thus posed a more immediate threat to public order and security. Schiller had noted how spoken dialogue on stage exercised a more profound impact and lasting influence on the senses of theatergoers than even morality or law, especially when combined with physical action and when actors directly address the audience. Dramatic art, and especially tragedy, also has a cathartic element: for centuries, dramatists have sought to create an illusion of reality that arouses the audience's empathetic identification with the characters on stage and stimulates and vicariously satisfies spectators' emotions. Viewing a theatrical production can be an intense emotional experience and a skillfully staged piece can provoke strong audience reaction. This experience, moreover, takes place within a public, social setting. Unlike the private, solitary act of reading, which the reader ultimately controls (if enraged or disturbed by what he or she reads, the experience can be immediately terminated), people who attend the theater are not isolated individuals but members of an assembled public group participating in a collective experience over which they have little control. Above all, as members of an assembled group—as part of a crowd—theatergoers are susceptible to the powerful influences of crowd psychology.

After the Paris Commune of 1870, the psychology and behavior of crowds worried many in fin-de-siècle Europe because crowd behavior was governed by potent, largely unconscious forces that easily overpower the individual personality. Gustave Le Bon articulated these fears in his influential 1895 study La psychologie des foules (The Psychology of the Crowd), where he argued an assembled group assumes new, entirely different characteristics than those of the individuals who compose it. Members of a crowd lose their individual identities, inhibitions, and the rational self-control exercised by their conscious personality, becoming automatons whose behavior is now governed by larger, irrational, unconscious forces. According to Le Bon, crowds are highly impulsive, excitable, impressionable, and sentimental; simplistic in their thinking, incapable of logical thought, they can no longer distinguish between illusion and reality. The anonymity of the crowd often gives its members a sense of unlimited power that inspires them to attempt the immediate realization of the most fantastic ideas or schemes suggested to them: “To the solitary individual, it is clear that alone he cannot burn down palaces or plunder shops, and he hardly even dreams of doing so. But as a member of a crowd, he is overcome by a sense of omnipotence that the group lends him, and he will immediately succumb to the first incitements to murder and plunder.” ²⁷ To political reactionaries like Le Bon who feared the emergence of mass or crowd politics after 1870, the crowd represented an ominous threat not only to public order and security, but to civilization itself.

The theater was a particularly fertile and dangerous breeding ground for unpredictable, irrational crowd behavior. Le Bon was convinced crowds think only in images, which are able to horrify, inspire, or incite a crowd to action. Theatrical performances present images in their clearest form: “Nothing arouses the fantasies of people as strongly as a theater piece. The assembled spectators simultaneously feel the same emotions…[and] sometimes the feelings suggested by these images are strong enough to…translate themselves into action…. The unreal is in their eyes nearly as important as the real. They have a remarkable inclination not to distinguish between the two.”²⁸ Indeed, Le Bon and other observers could cite examples of nineteenth-century theater audiences who had been incited to disorderly, even violent behavior by what they saw on stage: enraged lower-class theatergoers attacking actors who had depicted villains on stage; pitched verbal and physical battles between supporters and opponents of Victor Hugo's daring romantic style after his Hernani premiered in February 1830; how the opera La Muette de Portici, which depicted a seventeenth-century Neapolitan uprising against Spain, sparked demonstrations and riots that ultimately led to the Belgian revolution of 1830; and the 1896 near-riot that erupted when Jarry's absurdist Ubu Roi premiered in Paris.

German observers often cited these incidents as evidence of the unique power live theater exercised over its audience and the dangerous excesses to which theatergoers were sometimes prone. Theaters are collective enterprises in a public space; because the nature, function, and effect of that medium differed so radically from that of the press, government officials, local police, many legal scholars, and even some dramatists generally agreed it must be more stringently controlled. State supervision of the stage was considered necessary not only to safeguard the theater's special moral and national-political mission, but also to protect society against theatergoers who might, after viewing a particularly stirring performance, be transformed into a disorderly, even violent mob.²⁹

Special legal restrictions were therefore placed on playwrights, theater operators, performers, and theatergoers, the two most important of which were licensing and prior censorship. While the Press Law of 1874 had established freedom of the press by ending state licensing and censorship of that medium and created uniform regulations for the journalism profession, no comparable national law was ever passed for theaters and other public entertainments. Theaters continued to be governed by a complex, uneven patchwork of laws and ordinances that predated the empire. Some aspects of theatrical life, such as licensing, were regulated by the Imperial Commercial Code (Reichsgewerbeordnung); others, such as theater censorship, were governed by state and local ordinances that varied widely.

Germany's liberal Commercial Code, adopted by the North German Confederation in 1869 and extended two years later to the new empire, proclaimed, “The practice of an occupation is permitted to everyone.” It removed corporative restrictions and established freedom of enterprise in most occupations, but not for the theater industry. Those who wished to operate a privately owned theater anywhere in Germany (with the exception of Alsace-Lorraine³⁰) were still required to apply to district or county authorities for a license (Konzession), although royal theaters, theaters owned and financed by municipalities, and those holding only private performances not open to the general public were exempted from this requirement. Applicants could be denied a license only if authorities had evidence of their “unreliability.”³¹

During the 1870s local officials judged applicants' reliability primarily in ethical terms. As Cologne's district administrative president pointed out to officials in his district: “Since theatrical performances, especially those geared to the lower classes, can be very detrimental from a moral standpoint, it appears necessary to impose the strictest demands when considering the reliability of those who are seeking a theater license. Licenses should be granted only when the lifestyle of the applicant has been completely beyond reproach and provides no grounds for censure from a moral standpoint.”³² Even so, an enormous number of new theater licenses were granted in the years after 1869.³³

But since theater attendance lagged well behind the proliferation of new theaters and the growing number of aspiring actors, the industry soon suffered from serious overcrowding and murderous competition, a condition many observers believed was responsible for an alarming decline in the quality of theatrical life. Drama critics and officials alike lamented that easy admission into the theater industry after 1869 had turned dramatic art into the crassest kind of speculation. Many new licenses, they charged, had gone to inexperienced and undercapitalized entrepreneurs who entered the business with dreams of quick fortunes; to survive they had to pander to the crudest instincts of the masses, thereby ruining the dramatic tastes of the public.³⁴

Economic depression in the late 1870s created additional problems. Facing stiff competition, many new theaters went bankrupt, especially those whose owners lacked theatrical experience or sufficient financial resources. Several older, established houses were also driven out of business or encountered serious financial difficulties. In some cases fly-by-night theater operators simply disappeared, leaving behind huge debts and a troupe of unpaid employees and actors; many of the latter turned to busking, peddling, and begging or became a burden to local poor relief systems.

Responding to overcrowding in the theater industry and to local complaints about a growing “artistic proletariat,” in 1880 the Reichstag amended the Commercial Code, placing tighter restrictions on the granting of theater licenses. Because local officials were now expected to consider an applicant's moral, artistic, and financial qualifications, before approving a new license they began routinely checking with the theater industry's professional associations and with the Berlin police force's special theater division regarding an applicant's professional qualifications and general reputation. To further limit competition and ensure theaters did not attempt expensive productions beyond their financial means, after 1880 authorities could restrict a theater's license to one genre of performance—to light drama, for example, but not expensive operatic productions.³⁵ These measures dramatically reduced the number of new theaters licensed after 1880. In Berlin, for example, where 146 licenses had been granted during the 1870s, during the decade 1881–1890 only twenty-seven applications were approved, while fifty were denied. Most applicants rejected by Berlin authorities in the 1880s and 1890s were actors, writers, or musicians lacking the financial means or businessmen lacking the artistic experience considered necessary to operate a theater.³⁶

Originally, a license entitled one to operate a theater anywhere in the nation, but because of frequent abuses a theater license after 1896 was valid only within the state or specific district where it had been issued. Licensees were obligated to observe all local laws and ordinances; in Munich, police also admonished new theater operators to respect “religion and decency.” Licenses could be revoked if a theater failed to comply with the terms and restrictions of its license or the operator no longer met the necessary financial, artistic, or moral qualifications.³⁷ While the most common grounds for revocation was financial, this weapon was also used against theaters whose repertoire authorities found objectionable.

Besides deciding who could operate theaters, German authorities were also able to decide what was performed on stage. In most of the empire, especially in the larger cities of Prussia, Bavaria, and Saxony, the local laws and ordinances that theater operators pledged to obey required them to obtain prior police permission for any drama to be performed publicly.

State censorship of the theater was hardly unique to Germany. By the eighteenth century, monarchs throughout Europe had brought theaters under strict regulation and required a central or local censor to approve each piece before it was performed. Although the democratic revolutions of 1848 temporarily abolished prior censorship of theaters in some states (including Prussia), it was usually quickly restored after the revolutions collapsed. By the late nineteenth century only a few smaller, peripheral states (Sweden, Belgium, and Portugal) did not censor dramatic works before they were performed—although authorities there, as in every nation, had the right to stop performances that violated the criminal code or caused a public disturbance; everywhere else some system of prior censorship still existed. In Russia and Denmark, for example, all dramas had to be approved by a special central censor, while in Austria-Hungary, Spain, and Italy each work had to be submitted to and passed by the local governor or prefect. Staging a drama without approval could result not only in the loss of a theater's license but also, in Russia at least, in a stiff fine and up to three months imprisonment. Even liberal England and the Third French Republic subjected theaters to prior censorship. The English Licensing Act of 1737 and Theatres Act of 1843 required that all privately owned theaters be licensed and all new plays be submitted to the lord chamberlain for approval before being performed. The lord chamberlain—a minister of the Crown and member of the House of Lords who was neither accountable for his actions to the House of Commons nor need give any reason for his censorship decisions—could prohibit or demand deletions in any drama if he believed “it is fitting for the preservation of good manners, decorum, or public peace to do so.” This system of theater censorship remained in force until 1968. In republican France the prior censorship imposed on all Parisian theaters in March 1871 was extended to the entire nation in 1874. Before a public theater in France could announce or perform a new drama, it first had to be submitted to a special dramatic censorship commission for approval; any work banned from the Parisian stage was also prohibited throughout France. Commission decisions could be appealed to the minister of public instruction, cults, and fine arts, but his decision was final. France's censorship system functioned until 1905 when the senate suspended it because the volume of submitted scripts was more than the censors could keep up with. Beginning in 1906 French theaters were free to perform any work they wished, although local police inspectors who regularly visited the performances could close down any that endangered public order and morality, and the theater manager could be prosecuted under the regular provisions of the criminal code.

Because of its federal structure the German Empire had no uniform, national system of theater censorship like England, France, Denmark, or Russia. In the free cities of Hamburg, Bremen, and Lübeck, in the medium-sized states of Württemberg, Baden, Braunschweig, and Hesse, and in all the tiny states, privately owned theaters were not subject to any prior censorship, although in Baden theaters had to notify police in advance of works they intended to stage. (Authorities in these areas could of course halt performances that contravened the Criminal Code or whose highly offensive content presented a danger to public peace. On rare occasion, authorities in Württemberg requested a script beforehand and then forbade the theater from performing the piece.) While there were thus several localities where theaters were virtually free of censorship, these liberal regions comprised only a fraction—about 15 percent—of the empire's population, and in the tiny states there were in any case few cities and commercial theaters. Prussia, Bavaria, and Saxony—the three largest states, which between them contained over 80 percent of the nation's population and in 1900 twelve of Germany's fifteen largest cities—each subjected their theaters to some form of formal or de facto prior censorship, as did Alsace-Lorraine. ³⁸

Prussia's system of theater censorship, which was the most comprehensive in Germany and served as a model for the other major states, dated from the reactionary 1850s. Like Schiller, Berlin police president Carl von Hinckeldey regarded the theater as a “moral institution, a school…[that] the state can use as a lever for furthering general morality and all its other objectives.” In July 1851, responding to complaints from exasperated theater operators about arbitrary and unpredictable police meddling, von Hinckeldey ordained that henceforth “no public theatrical performance may take place within the greater Berlin police district without the express approval of the Police Presidium.”³⁹ All commercial theaters were required to submit to the police, fourteen days in advance, the text of any new theatrical work they wished to perform; permission was granted only if police had no objections “from a commercial or moral standpoint or for reasons of [public] security or order.” Police could immediately halt any unauthorized performance and the operator could have his theater license revoked and be fined or imprisoned for “insubordination.”

Berlin's system soon became a model for other Prussian cities. Before and during the imperial era, ministers of the interior continually urged local police throughout Prussia to adopt Berlin's theater censorship ordinance, and some cities like Breslau and Cologne complied.⁴⁰ Although police in Frankfurt, Düsseldorf, Hanover, and Aachen never formally promulgated a censorship ordinance, they nevertheless exercised a de facto prior censorship under which theaters “voluntarily” submitted works for approval; police then decided what excisions or alterations had to be made in the text or whether the work had to be dropped from the repertoire altogether.⁴¹ Berlin's method of prior censorship was also adopted in Saxony and Bavaria. After 1871 police in Dresden, Leipzig, and Munich issued ordinances nearly identical to Berlin's and these, in turn, were soon imitated by authorities in many smaller Saxon and Bavarian municipalities.⁴²

If police would not allow a drama or authorized its performance with certain conditions (for example, that portions of the text be excised or altered), a theater manager could appeal. Two avenues were open: a plaintiff had the right to appeal to a higher level within the administration (Beschwerderecht), or, in most states, could initiate a civil suit in a special external administrative law court (Klagerecht). Appeals up the administrative hierarchy—first to the county prefect (Landrat), then to the district administrative president (Regierungspräsident), the provincial governor (Oberpräsident), and even ultimately to the minister of the interior himself—were relatively fast and inexpensive. Unfortunately, they also had little chance for success since each administrative official generally relied on the judgment of his subordinates and upheld their decisions. Moreover, the administrator who heard and ruled on a complaint did not have to state the reasons for his decision.

Those with the time and money therefore usually appealed through the administrative law court system. These independent, nonpartisan courts were established in nearly every German state in the 1870s to protect citizens against the administrative abuse of power. Using formal civil court procedures (open sessions, representation by counsel, written briefs, oral testimony, cross examination, etc.) these bodies adjudicated citizens' complaints over administrative actions and ensured that administrative orders, decrees, and decisions conformed to the law. After reaching a decision these courts issued a written verdict citing the precedents and statutory bases for their ruling and billed the losing party for court costs (which could reach as high as five thousand marks).⁴³ Although practices varied, in most states the appeal of first instance was to the local district administrative council (Bezirksausschuß) or its equivalent—a partially appointed, partially elected board of administrators and lay people that handled some aspects of local self-administration and sat as an administrative law court when the need arose.⁴⁴ The council's decision could be appealed to the state supreme administrative law court (Oberverwaltungsgericht), the highest instance. These bodies were composed of judges trained as administrative officials and judges from the regular court system, who were all appointed for life and enjoyed the rights and status of other judges—that is, they were completely independent from the state legislature, the regular administration, and the ordinary civil and criminal court system. Recent studies of the Prussian Supreme Administrative Law Court confirm that it achieved a meaningful (if still somewhat limited) rule of law in Germany, was relatively liberal and citizen-friendly, and ruled surprisingly often against the police and for the individual rights of plaintiffs.⁴⁵

Because of their independence and strict adherence to legality, administrative law courts effectively safeguarded citizen's rights from arbitrary or discriminatory actions of overzealous state officials. In Prussia, Saxony, and Baden, where their jurisdiction was fairly broad, the district administrative councils and the supreme administrative law courts set important limits on the powers of the police and freed numerous dramas local police tried to ban. In Bavaria, however, the competence of the administrative law court system was more limited, especially before 1900; since judges there had no jurisdiction over what were considered purely administrative censorship decisions, censorship appeals took place entirely within the Bavarian administrative hierarchy, where they were invariably rejected. (For example, none of the censorship decisions of the Munich police director were ever reversed by his superiors.⁴⁶) Given the unlikelihood of success, few Bavarian theaters bothered to appeal the censor's decisions. And since theater licenses in Munich and other Bavarian localities were granted on the express condition that censorship ordinances be observed, any theater that sought publicly to perform a new work without first obtaining police permission could have its license revoked; moreover, under the Bavarian Police Code the theater operator could also be fined fifteen thaler or imprisoned for eight days, slightly stiffer punishments than in Berlin.

Some theaters were exempt from these punctilious controls. Royal court theaters (of which there approximately two dozen in the empire) were financed by the local king, duke, prince, or count but still normally open to the public. They were not subject to government licensing or censorship, but the royal intendants who operated them carefully avoided controversial modern works, filling their repertoires with safe classics instead. These officials (most of whom were high nobility with military or bureaucratic but little or no theatrical experience) also exercised their own careful prior censorship over scripts: Botho von Hülsen, for example, while serving as intendant of the Royal Theater in Berlin from 1869 to 1886, spent hours at night scrutinizing scripts word-by-word, eliminating anything that might be remotely offensive or carry a double meaning. It was no wonder the acerbic critic Maximilian Harden, surveying theatrical life in the capital, considered the Royal Theater boring and its “shameful repertoire” to be “simple artistic bankruptcy and the complete renunciation of any leading position in German theater life.”⁴⁷ Not all court theaters were so stuffily conservative, however. In small Saxe-Meiningen, Duke Georg II developed one of Europe's most innovative and influential theaters and laid important groundwork for the modern, realistic theater; in 1886 his Meininger Players held Germany's first public performances of Ibsen's controversial Gespenster (Ghosts). Munich's royal Residenztheater had performed Ibsen's Stützen der Gesellschaft (Pillars of Society) in 1878 and Ein Puppenheim (A Doll's House) in 1880, while the Hoftheater of Stuttgart premiered his Wenn wir Toten erwachen (When We Dead Awaken) in 1900.

The more than one hundred municipal or state theaters owned and operated by a local government were also not subject to police censorship, although since the municipal government oversaw their repertoires and operations, they too exercised a self-censorship that resulted in inoffensive, noncontroversial offerings. Thus in Münster the director of the municipally owned theater had to receive permission from the city council for every work to be performed, while in Mannheim the city's National Theater established a standing subcommittee of board members to “ensure that no uncensored works are performed, and no offense against religion, good morals, and also no politically inflammatory material takes place.”⁴⁸

“Private” theaters on the other hand, which were also exempt, posed constant headaches for the authorities. The licensing requirements of the Commercial Code and local ordinances requiring prior censorship of theatrical works applied only to commercial (gewerbmäßig) theaters operated for a profit—that is, those charging admission—and to public performances. Clubs or associations whose members staged informal performances solely for their own enjoyment or for educational purposes were not required to obtain an operating license, provided they did not charge admission and used only amateur performers who received no pay. Likewise, any private theatrical performance that was closed to the general public did not need any prior police approval. Thus church and educational organizations, amateur theatrical clubs, literary societies, and various other “closed” (that is, private) associations could freely stage theatrical productions for their own members or for a small circle of invited guests as long as the general public was excluded.

To avoid or evade state censorship, many authors and theater directors naturally claimed their works or productions were private in nature, not intended for public consumption or dissemination, and so immune from censors. German authorities thus continually faced the problem of defining the boundary between public and private, distinguishing between the public literary and theatrical activities that were legally censorable and the “private” ones that were not.

There were a surprisingly large number of private, amateur theatrical societies theoretically exempt from all state control. Munich contained over forty such groups in the period between 1890 and 1914. In Berlin, the police reported some 393 associations of this kind in 1871 and 889 in 1880; by 1890 a total of 1,301 private theatrical associations had been registered in the capital, although, as police noted, “it can probably be assumed that a large number of these have since been dissolved or no longer exist in reality.”⁴⁹

Some of these groups were legitimate private, nonprofit undertakings with praiseworthy educational or artistic goals, such as Otto Brahm's Freie Bühne Verein (Free Stage Association). Founded in 1889 and modeled on Andre Antoine's Théâtre Libre in Paris, the Freie Bühne held private performances on a subscription basis for members only and was created to stage Naturalist plays banned (or unlikely to be approved) by the censor or new works that commercial theaters were unlikely to produce for financial reasons. (Julius Hart, one of the founders, maintained the creation of the Freie Bühne was “above all a way of rapping the nose of the police censor.”⁵⁰) Within a year it attracted over one thousand members from the educated middle class (primarily writers, artists, academics, journalists, and members of the free professions) and soon spawned a number of imitators in other cities (Hamburg-Altona, Leipzig, Hanover, Munich, Nuremberg) and even a working-class Freie Volksbühne (Free People's Stage, discussed in chapter 4).

Many private theaters, however, were really attempts to evade licensing and censorship regulations (as well as fire and safety ordinances) by exploiting the legal confusion over the distinction between public and private, amateur and commercial. For example, many so-called nonprofit theaters did in fact charge admission for their performances by selling mandatory programs at the door, charging everyone a stiff coat check fee, or requiring “voluntary contributions” from everyone in the audience. And some groups that claimed to be staging only private performances for their members were openly catering to the general public: the performances were often widely advertised beforehand and club memberships were sold at the door. Operators of legitimate theaters frequently complained about the unfair competition they faced from these unlicensed, uncensored enterprises masquerading as private or amateur theatrical associations.

To curb such abuses and evasions, police in Berlin, Munich, and other cities continually scrutinized uncensored private performances to ensure they were indeed closed to the general public; if a supposedly nonprofit theater was collecting admission in some other guise, vigilant police required it to obtain an operating license under the Commercial Code.⁵¹ More importantly, authorities suspected private theatrical societies like the Freie Volksbühne not only of holding public performances but also of being outlets for subversive, socialist ideas and so waged a long struggle to force these theaters to submit to the same censorship as commercial ones (see chapter 4). Throughout the imperial era the state continually sought to broaden the legal definitions of “public” and “commercial activity” in hopes of thwarting those theatrical playhouses that tried to escape state control by claiming private or nonprofit status. Originally the administrative law courts resisted such attempts, but after the 1890s the judiciary supported a more circumscribed definition of what constituted a noncensorable private performance, especially where socialist organizations were involved.⁵²

Local Discretion or National Uniformity?Theater Law Between Left and Right

The extensive controls local authorities wielded over the public stage and the wide regional variations in such laws became an increasingly contentious issue after 1890. Politicians on both the Right and the Left challenged the right of local authorities to regulate and censor theaters—the Right because they considered local police too lax, the Left because they considered them too severe. After 1890 both Right and Left attempted to remove jurisdiction over theatrical life from individual cities and states and place it instead under uniform federal law, be it the Criminal Code or the Commercial Code. To do so, however, involved a transfer of power not only from the separate German states to the federal government but also from the appointed administrative bureaucracy (police and government) to the popularly-elected Reichstag, which wrote federal law, and to the independent judiciary, which interpreted it. Because such changes would have upset the delicate constitutional balances of the Bismarckian empire—where every pressure was neutralized by a counterpressure and substantial barriers blocked any fundamental changes to the system, either progressive or reactionary—any attempts to reform German theater law were staunchly opposed and effectively blocked by the imperial government.

During the 1880s and early 1890s theater managers and liberals who opposed any form of prior theater censorship repeatedly questioned the legality of the censorship ordinances of Berlin and other cities. Arguing such regulation violated both the Prussian constitution of 1850 (which guaranteed freedom of expression and assembly and forbade imposing censorship or other limitations on the press except by legislative act) and the Press Law of 1874 (which guaranteed freedom of the press), they appealed first to the regular courts, then to the administrative law courts to invalidate all censorship ordinances. Prussian, Saxon, and Bavarian courts, however, repeatedly upheld the police's right to exercise prior censorship over theatrical performances. Such control, courts ruled, was part of the police's legitimate duty to “protect public peace, order, and security”; and because police banned only a work's public performance, not its publication or circulation in print, these prohibitions did not violate freedom of the press or other constitutionally guaranteed rights.⁵³

The imperial government, like the states and courts, regarded police censorship ordinances as a strictly local matter and refused to become involved. Several influential groups, however, wanted censorship placed under central, imperial control. Soon after courts affirmed the right of local authorities to censor theater performances, the Right attempted to legislate more uniform national standards that could check the independence of local theater censors. In the mid-and late 1890s a right-wing coalition of Catholics, Conservatives, anti-Semites, and moral purity associations, angered over the complete lack of theater censorship in some regions and the laxity of censors where it did exist, made a concerted effort to standardize and toughen theater censorship by bringing it under the provisions of the national Criminal Code. To do this, they sought to attach a special “theater paragraph” to the government's controversial “Lex Heinze”.

Shocked by revelations about urban vice and moral corruption that surfaced during the recent notorious murder trial of a Berlin pimp named Heinze, in February 1892 the imperial government introduced a bill in the Reichstag proposing stiffer punishments for a wide range of morally offensive activities, from prostitution to advertising contraceptive devices. During initial debate over this bill (which was quickly tagged the “Lex Heinze”) the Catholic Center Party complained that despite police censorship many German theaters performed shamelessly immoral and indecent works that were as harmful to the nation's moral fiber as prostitution and pornographic literature.⁵⁴ In the Reichstag commission to which the bill was referred, anti-Semites like Adolf Stöcker joined Centrists in charging that theater censorship as currently practiced in Berlin and other large cities was “intolerable” and “not worth a penny.” Not only were censors far too lenient, but once they approved a work a theater could then point to the authorities' permission as a defense against anyone who later complained about the material. To goad police into exercising tighter control, the commission's Center and anti-Semitic members proposed adding a special clause to §184 of the Imperial Criminal Code making it a criminal offense for anyone to stage (veranstalten) an indecent theatrical performance. Under this statute any citizen whose sense of shame and morality had been grossly violated by a performance, even one approved by police, could initiate criminal proceedings against the theater owner.⁵⁵ A Prussian Interior Ministry representative objected that involving the Criminal Code and public prosecutors in administrative matters such as theater censorship would create endless conflicts between police and the courts. Although the commission defeated the Center's proposed theater paragraph by one vote, the bill that did emerge was so extreme in other regards that it proved unacceptable to the government. After declining to promote it in the Reichstag, in 1894 the imperial government allowed the Lex Heinze to die.

But the issue lived on. Infuriated that existing laws could not keep Hauptmanns Die Weber (The Weavers), Sudermann's Sodoms Ende (Sodom's End) and other modernist works off public stages (see chapters 4 and 6), Centrists, private morality associations, and other conservatives continued to complain about the debasement of the theater's noble spiritual and social mission. One Center delegate lamented in the Prussian parliament in early 1895 that the theater had sunk from a place of cultivation and spiritual uplift “to a place for depicting immorality and misconduct, offering sensual stimuli and subversive tendencies, and for mocking religious belief. I think that [in combating such developments] one cannot be too strict.” Rather than providing people with harmless entertainment or literary and artistic stimulation—which was the theater's true purpose—modernist works instead “are promoting and reinforcing wanton ideas about morality and order, irreligion, and various impulses in the state directed toward dissatisfaction, disorder, and revolution.” ⁵⁶

In January 1895 the Center and its allies in and out of parliament revived the campaign for more repressive theater censorship by reintroducing the Lex Heinze into the Reichstag, but no action was taken on it during the 1895–1897 session. A new draft bill, with an even tougher version of the theater paragraph that had just barely been rejected by the Reichstag commission in March 1893, was submitted by the Center in December 1897. This proposal would add to §184 a clause (§184b) stating: “Whoever stages (veranstaltet) or directs (leitet) public theatrical performances, operettas, choral or declamatory recitals, exhibitions of people, or similar presentations that are capable of provoking a scandal by grossly violating the sense of shame and morality, shall be punished by up to one year imprisonment or by a fine of up to one thousand marks.”⁵⁷ The Center's demands for a drastic reform of theater censorship laws were seconded by hundreds of citizens, who in January 1898 signed a petition to Emperor Wilhelm II calling for “stricter censorship of theatrical performances, stricter censorship of publications that report on the theater,…passage of the Lex Heinze, and a tightening up (Verschärfung) of the Criminal Code concerning the entire area of immorality.”⁵⁸

The Center's new Lex Heinze was again submitted to a parliamentary commission, but one now dominated by Center Party members. During deliberations the government's representatives once more objected to dragging judges and the courts into an arena that was the sole prerogative of the police, while the commission's liberal and socialist members warned that placing theaters under the Criminal Code posed a serious threat to modern drama in Germany and to many “classical” works as well. The Centrists and their allies, although claiming the statute was directed primarily against low music halls and vaudeville theaters, indicated they would not mind if it were also applied to certain modern dramatists like Hermann Sudermann and even some immoral classics. In the end the rightist majority on the commission not only refused to exempt serious, legitimate theatrical performances from the proposed law but broadened its provisions still further to punish any performer who appeared in an indecent performance. This law, Center delegates reiterated, was intended to safeguard against the “hardened [police] officials” (abgebrühten Beamten) who were not doing their duty to keep objectionable works off the stage; at the least, they hoped it would persuade the government “to proceed more energetically in this area.”⁵⁹

When presented to the Reichstag in January 1900, the commission's bill was vehemently opposed by Liberals, Progressives, and Social Democrats. (Social Democratic delegates used several clever obstructionist tactics to prevent quick passage of the bill, allowing its other opponents time to organize.) The measure also provoked a powerful extraparliamentary mass-protest movement that reached well beyond the intellectual and artistic community and soon became one of the broadest-based fronts of public protest ever to arise in the prewar empire. In February and March writers, artists, publishers, journalists, academics, progressive politicians, and even members of the business community hastily organized “Goethe Leagues for the Protection of Free Art and Learning” (Goethebund zum Schutze freier Kunst und Wissenschaft) in Berlin, Hamburg, Munich, Breslau, Dresden, Düsseldorf, Stuttgart, Bremen, and four smaller cities. Goethe Leagues sought to unite intellectuals of all political persuasions and intellectual outlooks in order “to protect freedom of art and learning in the German Empire against attacks of every kind”; their immediate task was to combat the “unprecedented repressive attempts against the free spirit” proposed in the Lex Heinze.⁶⁰ To defeat the bill, throughout the spring of 1900 these liberal pressure groups enlisted prominent representatives of the artistic and scholarly communities, including the heads of respected art academies, against the Lex Heinze; they staged mass protest meetings attended by thousands of citizens; they sent to the Reichstag petitions signed by nearly all the nation's leading writers, artists, musicians, scholars, publishers, book dealers, and a few industrialists; they published numerous appeals and declarations in the liberal press; and they met with Chancellor von Hohenlohe, the imperial minister of justice, and other government representatives and party leaders to lobby their case.⁶¹

The imperial government had never liked the bill: Chancellor Hohenlohe, a moderately liberal Bavarian Catholic once described as “an artist in the avoidance of catastrophe,”⁶² found the theater paragraph too extreme and favored passage of a more moderate bill. So too did the Bavarian government's delegate to the Bundesrat, the parliament's upper house that represented the individual state governments and that had to confirm any bill passed by the Reichstag. He and other members of the Bundesrat were suspicious of the bill because it shifted power from the states to the central imperial authorities. Some prominent leaders in Bavaria were also concerned that a rigid national law would stifle Munich's rich artistic and intellectual life, undermining its reputation as a lively cultural center that equaled Berlin and in some areas (such as its innovative, modernist theatrical life) even surpassed the nation's capital. The Center and the bill's other supporters on the Right slowly realized that to retain the imperial government's lukewarm support, to overcome the Social Democrats' obstructionist tactics and win Reichstag approval for other provisions of the bill, and to assure its approval by the Bundesrat, the controversial theater paragraph would have to be sacrificed. In April, therefore, they reached a compromise with the government and the Lex Heinze's liberal opponents under which the theater paragraph and other repressive clauses were dropped. The remainder of the bill was then approved by the Reichstag in late May and became law in June 1900.

The battle over the Lex Heinze and its defeat in 1900 marked an important turning point in imperial Germany's polices of literary censorship. As subsequent chapters will show, since approximately 1890 a loose but influential coalition of politically and culturally conservative forces had been profoundly disturbed about the direction being taken by modern art, and by the theater in particular. Largely in response to their pressure and complaints, state and local authorities had been exercising—or attempting to exercise—an increasingly stringent censorship over German literary life, especially over the theater, and the 1890s witnessed the empire's most dramatic and controversial confrontations between writers and the state. The fight over the Lex Heinze that ended in 1900 was a showdown between antimodern cultural conservatives and an unusually diverse and broad-based coalition of forces united in opposition to the designs of the cultural Right, albeit for different reasons. That coalition included artists and intellectuals who enthusiastically supported artistic modernism, but also more moderate members of the educated middle class as well as Social Democrats who, while perhaps unsympathetic toward artistic modernism, nevertheless feared a victory for the Right would also endanger more traditional, classic art and literature. These groups, in turn, were joined by some conservative authorities in states like Bavaria who wanted to preserve states' rights against further centralization. The unprecedented political cooperation over this issue between middle-class liberals and the hitherto isolated Social Democrats—a partnership in which the Socialists often played a leading role and were accepted on more-or-less equal terms—also opened up new political possibilities for the future and helped further integrate Social Democrats into the imperial political system. Finally, the dramatic mobilization and politicization of the German artistic and intellectual community over the Lex Heinze was itself a significant new development and signaled a shift in the balance of cultural power. Whereas the political power of the cultural Right and state intervention against modernist literature had been in the ascendant before 1900, after that date both began to recede. To be sure, liberals failed to abolish theater censorship and state intervention into literary life continued after 1900, but censors now intervened in fewer areas, on a more modest scale, and with less effectiveness than in the 1890s. This softening of state opposition to modernist culture corresponded to what some have argued was a general “civilizing of power relationships” throughout the empire after 1900: the authorities, more concerned about avoiding criticism and scandal, used their powers more cautiously and relations between the police and citizenry became less tense.⁶³

Their successful campaign to defeat the Right's efforts to bring dramatic art under tighter censorship again emboldened the Left, which immediately launched a counter campaign to free theaters completely from the burdens of the law. Having failed in their earlier judicial challenges to local theater censorship ordinances, after 1900 the coalition of liberal intellectuals, the Progressive Party, and Social Democrats that emerged during the Lex Heinze controversy adopted a new strategy to eliminate theater censorship and licensing by means of nationwide legislation.

Rather than disbanding after defeating the Lex Heinze in the spring of 1900, the Goethe Leagues redoubled their efforts to defend the nation against what one prominent league spokesman called any “muzzling or subjugation of spiritual and intellectual life.” Another leader compared the movement to a national guard that takes up its weapons whenever needed to defend the borders of free artistic creativity.⁶⁴ Having beaten back the most immediate threat to freedom of art and learning, leaders of the Goethe Leagues pledged themselves to keep watch against any new attacks on intellectual freedom: “Our task is also to exercise a sharp, eternal, ever-ready vigilance against the silent and not-so-silent work of the Reaction, to train the German nation to exercise this vigilance for itself, and to educate the nation about the meaning and incalculable importance of a free national culture, of an independent scholarship and art.”⁶⁵ When representatives of local Goethe Leagues met in November at a national conference in Weimar, they approved a resolution condemning censorship of theatrical performances by local authorities and demanding its abolition everywhere in Germany. German dramatic art, they declared, was an expression and manifestation of the German national spirit and it was time to treat it as a national, not local matter. The existing uneven patchwork system of local theater censorship contravened a truly national German culture, the resolution continued: it placed in the hands of local authorities, whose decisions frequently contradicted each other, important dramatic and artistic questions that should really be decided on a nationwide basis by the German people itself. The Union of German Goethe Leagues, condemning theater censorship as an antiquated and “unworthy tutelage [for] the German nation,” announced it would petition the Reichstag to abolish censorship by means of a national law and called upon “all friends of a free German art” for support.⁶⁶

In November 1900 the Progressive Party presented the Goethe League petition to the Reichstag and two months later introduced a motion to abolish all local theater censorship by amending the Commercial Code. To the paragraphs of the code that required the licensing of all theater and music hall operators, Progressives proposed adding a clause clearly stating that no prior approval is necessary to stage an individual dramatic work in a legitimate theater or to hold declamatory, musical, pantomimic, or plastic performances on the popular stage.⁶⁷

In Reichstag debates early the next February, Progressives condemned the confusing, haphazard hodgepodge of local censorship ordinances that were both unconstitutional (in Prussia) and violated the spirit of the nation's Commercial Code, which established freedom of occupation. They cited numerous instances where local police censors had recently issued irrational, arbitrary, and contradictory decisions (works banned in one locale but not others, important works by respected authors that should not have been forbidden at all but were, etc.), and argued if Germany were to have a truly national, rather than a local, particularistic literature, then the issue of prior theater censorship must be settled on a uniform, national basis. “Are we not one people, with one language and one literature?” a Progressive speaker asked. Yet from the illogical system of local censorship “one would almost conclude that we don't even have a local state literature, but rather simply a city literature! This is an abomination!” Theater censorship, Progressives maintained, was an area where the Reichstag and federal government must—and legally did—have ultimate jurisdiction. They called upon the Reichstag to undertake the difficult but necessary task of “finally looking into the Augean stables of particularistic police law—to examine it closely in regard to its legal compatibility vis-à-vis the provisions of the imperial constitution and the Imperial Commercial Code.” If one wanted a true state of law (Rechtsstaat) rather than an arbitrary police state, the Reichstag had to ensure local police power did not contravene national legal norms; and the place to start was by affirming the supremacy of the national Commercial Code over all individual, local police ordinances and arbitrary rulings. To Progressives, prior censorship of theatrical performances was an unnecessary form of police tutelage; the existing provisions of the Criminal Code were adequate to deal with any theater excesses, for if a performance did indeed violate the law, police always had the authority to halt it and prosecute those responsible. Dramatic art should enjoy the same freedom enjoyed by writers who published their work and who were subject only to the controls of the Criminal Code: “We want every author, every theater director, every actor to assume his own direct responsibility before the common Criminal Code; we want the actor and the director to bear responsibility for his work, just as authors [now] do for the contents of their books. And if state authorities take energetic measures under the provisions of the existing criminal statutes, then surely we have no more need for any [prior] censorship.”⁶⁸

The Progressive's bill received enthusiastic support from Social Democrats (SPD), who expressed pleasure that bourgeois liberals had finally joined them in the fight against arbitrary, monopolistic police power. All forms of censorship, the SPD agreed, were to be condemned and art and intellectual inquiry must be liberated from censorship and other restrictions.⁶⁹

The parties of the Right, however, staunchly opposed the bill. Both Conservatives and Free Conservatives, who customarily defended the status quo and resisted any attempt to reduce Prussian state rights or strengthen either the central (imperial) government or the Reichstag, urged the bill's rejection. Prior censorship of theatrical performances was needed now more than ever, they argued, to protect the more susceptible elements of the population from immoral, subversive, and harmful works. Relying simply on the Criminal Code and intervening only after a performance had taken place was foolhardy and dangerous, for by then the harm would already have been done. What was needed was stricter, not looser state control over theaters; and because local police were most familiar with their own city and were in the best position to judge what works may be harmful there, it was they who were in the best position to exercise prior theatrical censorship.⁷⁰

Like Conservatives, the Center Party of course also wished to tighten, not abolish prior theater censorship. With delicious irony the Catholics pointed out that Progressives were now arguing the antithesis of what they had argued during the recent Lex Heinze debate. To prevent passage of the Center's theater paragraph, Progressives had earlier maintained that the “prophylactic actions” of local police censors and their legal authority to prevent immoral performances from taking place were more than sufficient to control excesses in theatrical life; indeed, Progressives had just argued that prior censorship was far preferable to and more efficient than invoking criminal penalties against theater directors. Yet if the Progressives had reversed themselves on this issue, so too had the Center, which now returned to its traditional position of defending state's rights and opposing any extension of central or federal authority. Regulation of the theater industry and censorship of theatrical performances were state and local matters, the Center speaker declared, one in which the Reichstag and imperial government should not interfere. Indeed, the Center reminded other parliamentarians how during the Lex Heinze debate the government had resisted any judicial and legislative encroachment on administrative matters; even if the Progressives' proposed bill were passed by the Reichstag, the Center warned, it would undoubtedly be vetoed in the Bundesrat, which represented the individual state governments. The Center maintained that rather than preventing local authorities from exercising prior censorship over theaters, the Reichstag should be encouraging them to exercise it more stringently.⁷¹

National Liberals were conflicted about the Progressives' bill. On the one hand they agreed police censorship of serious drama was often excessive and ultimately harmful to German culture, and many proscriptions by local authorities had been senseless and unnecessary. Like the Progressives, Liberals objected to the lack of uniform censorship ordinances throughout the Reich and desired a single nationwide standard. But while favoring abolition of prior censorship for the legitimate, serious stage, Liberals insisted it be retained for more popular entertainments such as music halls, vaudeville, and cabarets; and in those states where no censorship currently existed, they wished to see it instituted. Because the Progressives' bill would have abolished all forms of prior stage censorship, National Liberals in the end opposed it.⁷²

Throughout the debate the government maintained the same position as during the controversy over the Center's theater paragraph. Using a concurrent debate in the Prussian Landtag as an opportunity to address the issue, the Prussian minister of the interior defended the legality of existing police censorship ordinances and reiterated that jurisdiction over theater censorship belonged to individual states, not the central government. Centralization or standardization of theater censorship was ill advised, he warned, for conditions varied from locality to locality and only local authorities were in a position to decide what would be harmful in their area. While admitting many mistakes had been made in individual censorship decisions and there was, perhaps, the need for improvement in how censorship was actually practiced, the minister warned that abolishing prior censorship altogether would endanger public order, security, and morality. Moreover, he pointed out to Progressives that a system of prior police approval actually protected theater operators from later arbitrary police intervention.⁷³ (This was precisely what had disturbed the Center about prior censorship and why they had pushed for a special theater clause in the Criminal Code.)

At the end of the lively debate, in late February 1901 the National Liberals moved that the Progressives' bill be sent to a commission for study. After two extremely close and inconclusive votes on this motion produced a deadlock, it was discovered the Reichstag lacked a quorum. No further action was taken on the Progressives' bill, which died on the floor.⁷⁴

Despite parliamentary defeat of the Right's theater paragraph and of the Left's bill to end all theater censorship, the movement to fundamentally reform and standardize the laws governing the theater industry persisted for another decade and a half. Concerned over fierce competition, declining revenues, strained management-labor relations, and a host of other problems, after the turn of the century representatives of the entertainment industry mounted a campaign for new legislation to eliminate abuses, raise the national status of the theatrical profession, and protect their economic interests. Although disagreeing on specifics, the various associations and unions representing Germany's actors, playwrights, theater owners, theatrical agents, and stage employees were united in their desire for a comprehensive, national theater law, similar to the Imperial Press Law of 1874, which would govern all aspects of the entertainment business—from licensing, censorship, royalty rights, and taxation to actors' contracts, pensions, and the legal status of cinemas, vaudeville, and other forms of popular entertainment.⁷⁵ As a result of their constant lobbying for a comprehensive reform of theatrical law, beginning in early 1909 the Reichstag formally and regularly petitioned the imperial chancellor to draft and submit to parliament an imperial theater law (Reichstheatergesetz).

While the theater industry campaigned for a centralized codification of theater law, artists and liberal intellectuals renewed their efforts to abolish theater censorship nationwide. Each spring between 1901 and 1904 delegates to the national congress of German Goethe Leagues resoundingly condemned local theater censorship and petitioned the Reichstag to end, by means of national legislation, the “particularistic” local censorship ordinances. Such ordinances, they charged, subverted not only intellectual and artistic freedom but also national unity: one league leader argued the current system encouraged antinational particularism by dividing the empire into a series of isolated police districts, separated from one another by a “Chinese Wall.” These annual Goethe League petitions, although widely and sympathetically reported in the liberal press, were routinely rejected by the Reichstag on the grounds jurisdiction over theater censorship rested with individual states, not the Reichstag.⁷⁶ As the movement for a comprehensive national theater law grew, however, the Left began to see it as another vehicle for finally abolishing theater censorship in the various states. In 1903 Progressives again condemned the use of theater censorship as a “hideous chapter in the narrow-minded, particularistic, reactionary spirit.” In the Reichstag they expressed hope for a bold new imperial theater law that, besides rectifying other civil and legal problems plaguing theaters, would also bring a uniform, nationally legislated settlement to the censorship question.⁷⁷ Between 1903 and 1911 Progressive delegates in the Reichstag and in the Prussian and Bavarian state parliaments regularly attacked the irrationality and futility of local theater censorship. By 1911 their calls for a new theater law that would end censorship throughout the empire were also being seconded by the Social Democrats.⁷⁸

Although government ministries had been discussing a comprehensive theater law internally since 1906, it was not until late 1911 that a formal commission consisting of representatives of government and of the theater industry was established to draft such a law. Throughout 1912 and 1913 the commission met, circulated drafts, solicited industry reaction, and refined its proposals. Much to the dismay of liberals, who hoped it would repeal both licensing and censorship, the final draft of the theater law presented to the imperial government in February 1914 did neither. It not only retained licensing of theater operators but imposed even more stringent requirements on applicants for certain kinds of entertainments. And it left the issue of prior theater censorship in the hands of each state, as before.⁷⁹ The bill (actually a series of amendments to the Commercial Code) was to be submitted for Reichstag approval in July 1914, but with the outbreak of war the nation immediately turned to more pressing matters and the theater law was shelved.

Once the deputy commanding generals assumed authority over all civil administration under the wartime state of siege, legal restraints on theaters became both more stringent and more uniform. On 4 August 1914, immediately after Germany's declaration of war against France, public theaters (and many other amusements) in Berlin and most other German cities were ordered closed. When allowed to reopen a week or two later, their hours were curtailed and theaters had to conclude performances by 11 PM (after 1916, by 10 PM). In many localities authorities began refusing all applications for theater licenses on the grounds such undertakings were “not in keeping with the seriousness of the present times.”⁸⁰ Where prior censorship of theaters existed, police censors were now not to make any but the most routine decisions on submitted works without first obtaining approval of the military commander. Private performances of a work (as well as all public lectures), which before the war were immune from censorship, could now be forbidden if local authorities considered it inappropriate or offensive given the “seriousness of the times.” Spontaneous additions to or deviations from the officially approved script were more severely punished. Whereas before the war any drama that had once been approved by the local censor did not need to be resubmitted again if others wanted to perform it later, authorities now declared that any works approved before the outbreak of war had to be resubmitted for approval.⁸¹ More significantly, bans issued under the commanders' authority could be appealed only to the minister of war, not through the administrative law courts. These new lines of authority and responsibility circumvented the civilian Interior Ministry; during the war the Prussian minister of the interior had to plead with his local police officials, who had gotten used to dealing directly with military headquarters on censorship matters, to please also keep him informed about their theater censorship decisions and policy recommendations.⁸²

The military soon found it a “regrettable inconvenience” (bedauerliche Mißstand) that censorship of theaters and other popular entertainments was so uneven throughout the nation and that in some regions there was none at all. To facilitate “a more uniform execution of censorship,” therefore, several district military commanders used their emergency powers to institute formal prior censorship of theaters in cities where it had not existed.⁸³

Such arrangements were valid only for the duration of the war; a permanent, nationwide legal settlement of censorship and other issues affecting the theater industry was still sorely needed. In late March 1917, therefore, the Reichstag formally requested the chancellor to resubmit the theater law of1914 for parliamentary approval. By then, however, the civil truce had long since broken down and serious political, social, and economic divisions plagued the war-weary nation. Since Chancellor Bethmann-Hollweg feared debate over the theater law would simply lead to “sharp differences of opinions and conflicting interests” that Germany could ill afford, he ignored the Reichstag's request.⁸⁴ In May 1917 various professional associations representing Germany's writers, playwrights, stage managers, and other theater professionals held a large public meeting in Berlin to voice concern about the further erosion of freedoms on the stage since 1914 (one participant bemoaned that “already during peacetime the German stage lived in a state of emergency under a spiritual state of siege”), but their proclamations fell on equally deaf ears.⁸⁵ Nothing further was done to alter Germany's complex system of theater censorship until the imperial order was overthrown and all forms of censorship were abolished on 12 November 1918.

Conclusion

Compared to other nations, even the most liberal, there was nothing peculiar about the laws restraining free literary expression in Germany. Like most of its neighbors, the empire exercised no prepublication censorship over books, journals, newspapers, and other publications, but authorities could (and did) prosecute authors or suppress certain publications that violated the nation's laws, especially those regarding blasphemy, obscenity, or lèse majesté. Moreover, like many other Western nations, Germany required privately owned commercial theaters to be licensed and required most of these to obtain prior state approval for any dramas they performed. In these ways, state oversight of literary life was no different in the German Empire than elsewhere.

Of course the devil is in the details, and what mattered in the end was how those laws were worded and interpreted, how often and impartially they were applied, and how severely offenders were punished. For example, while other nations also prohibited and punished expressions of blasphemy or lèse majesté, Germany generally defined these offenses more broadly or inflexibly and levied heavier punishments (see chapters 3 and 5). On the other hand the German legal definition of obscenity was narrower than that used in England and the US and less likely to be applied against genuine art and literature (see chapter 6). In any case the state's ability to intervene in German literary life was limited by strict, clearly defined legal guidelines and procedures. To suppress a published literary work, much less punish its author, required persuading a panel of judges—or in some states, a lay jury—that the criminal laws had been violated. This was by no means easy to do: as we shall see, German courts (and especially lay juries) frequently dismissed such charges or, if the case went to trial, acquitted the defendants, even during the repressive 1890s. Since they could never be sure whether a confiscation or criminal indictment would succeed, and since officials who overstepped their legal authority were often called to account by the independent and relatively impartial German courts (and by a vigorous free press), even the most conservative authorities were cautious about intervening against literary publications and when they did, were usually careful to observe all the proper legal procedures. ⁸⁶

Theater censorship, the most pervasive and intrusive form of state intervention into literary life and one that took place on a daily basis throughout much of the empire, was also circumscribed and mitigated by legal safeguards and court decisions. The practice itself was (unsuccessfully) challenged several times in state courts. While local police censors enjoyed much latitude in censoring dramatic performances, in Prussia, Saxony, and several other states (although not Bavaria) their decisions were frequently appealed to an administrative law court. The possibility of legal appeal distinguished most of the German Empire from Britain, where the London theater censor's decisions were final. The administrative law courts sought to articulate increasingly clear and stringent criteria for banning performances and regularly overruled censors' decisions. Although some of those verdicts infuriated the emperor, he could do little to curb these courts' independence.

Such legalism served to curb arbitrary, capricious, impulsive, or idiosyncratic actions by the censoring authorities. Yet Germany's decentralized federal structure and the resulting fragmentation of its legal and administrative systems created a certain confusion, unpredictability, and even arbitrariness concerning censorship decisions within the nation as a whole. Laws, legal procedures, censorship policies, and criteria for granting theater licenses differed from state to state and frequently from city to city; as a result, authorities in different places regularly made very different decisions about the same work. At the same time, however, the legal peculiarities of some regions and the absence of any uniform national approach to theater censorship created enclaves where censorship was negligible or even nonexistent and islands of tolerance or immunity where it was difficult to convict for a press offense. As shall become clearer in subsequent chapters, this diversity and disunity of censorship laws and practices, while certainly frustrating for German writers and theater operators, served also to protect their freedom of expression.

Although in the years before World War I theater censorship decisions were becoming more centralized within Prussia, Saxony, and Bavaria, and more coordinated between these states, several attempts to establish a more nationally unified censorship system were successfully resisted by various interests. The issue was part of the larger unresolved problem of Germany's national unity and as such was caught up in the empire's constitutional deadlocks, where the powers of the central state (the imperial government) stood against those of the local states (especially Prussia and Bavaria), and the powers of the monarchy, administration, and police contraposed those of the Reichstag and judiciary. Efforts to centralize and standardize censorship laws, particularly theater censorship, miscarried also because ultimately they contravened the legal basis for censorship: to protect public peace, security, and order. To justify banning the public performance of a drama and to have it upheld by the courts, authorities had to argue persuasively that the piece was likely to lead to a public disturbance or somehow cause harm to the audience. This in turn depended upon many contingencies: the nature of the audience; the nature of the surrounding community (or in more modern parlance, “community standards”); unique political, religious, social, or other conditions in that place at that particular time; and so on. Germany was extremely diverse: the populace of Berlin differed enormously from that of Iphofen, Bavaria, and conditions in Hamburg were not like those in Krotoszyn, Posen. The more censors could point to specific local situations as grounds for their actions, the easier it was to defend them; where the situation was different and the work posed little or no threat to public order, a different decision would be in order. However much some groups, whether on the Left or the Right, desired more consistency in censorship decisions, the great diversity of local situations made it difficult (if not impossible) to establish uniform national standards and have all decisions made from one central office. Faced with the difficult choice of local diversity and contradictory censorship decisions on the one hand or more uniformity, consistency, and national predictability on the other, the government usually preferred the former, while many on both the Right and the Left, having lost confidence in local decision making, preferred the latter. Substantial changes to the censorship system became possible only after the outbreak of the war, when the exigencies of national mobilization and the need for more administrative centralization and bureaucratic intervention allowed the military to sweep aside legal technicalities, long-standing constitutional balances, and deference to local considerations. Only then did the system become more uniform and centralized.

Since, in the end, so much about literary censorship in imperial Germany depended on the local censor, it is to these censors we now turn.

Notes

1. Reinhard Frank, ed., Das Strafgesetzbuch für das Deutsche Reich, nebst dem Einführungsgesetze, 8.-10. rev. Aufl. (Tübingen, 1912); Justus Olshausen, Kommentar zum Strafgesetzbuch für das Deutsche Reich, 8. Aufl. (Berlin, 1909); Franz Eduard von Liszt, Lehrbuch des deutschen Strafrechts, 9. Aufl. (Berlin, 1899).

2. Ewald Löwe, ed., Die Strafprozeßordnungfür das Deutsche Reich mit Kommentar, 12. Aufl. (Berlin, 1907); Franz Eduard von Liszt, Das deutsche Reichs-Preßrecht, unter Berücksichtigung der Literatur und der Rechtsprechung (Berlin and Leipzig, 1880), 123–29, 142–44; Heinz-Dietrich Fischer, ed., Deutsche Kommunikationskontrolle des 15. bis 20. Jahrhunderts (Munich, 1982), 132–35; Alex Hall, Scandal, Sensation and Social Democracy: The SPD Press and Wilhelmine Germany 1890–1914 (Cambridge, 1977), 46ff., 64–72.

3. For negative assessments of the imperial legal system see Hans-Ulrich Wehler, The German Empire 1871–1918, trans. Kim Traynor (Dover, NH, 1985), 127–29; Wehler, Deutsche Gesellschaftsgeschichte. Dritter Band: Von der ‘Deutschen Doppelrevolution bis zum Beginn des Ersten Weltkriegs 1849–1914 (Munich, 1995), 857, 1238–39; and Albrecht Funk, Polizei und Rechtsstaat. Die Entwicklung des staatlichen Gewaltsmonopols in Preussen 1848–1914 (Frankfurt, 1986). More positive appraisals are offered by Thomas Nipperdey, Deutsche Geschichte 1866–1918. Band I: Arbeitswelt und Bürgergeist (Munich, 1990), 655–65, and Band II: Machtstaat vor der Demokratie (Munich, 1992), 118–34, 182–93; Retallack, Germany in the Age of Kaiser Wilhelm II, 34–42; and Kenneth F. Ledford, From General Estate to Special Interest: German Lawyers 1878–1933 (Cambridge, 1996), 1–85. Nipperdey states unequivocally, “The German Empire of 1871 was a Rechtsstaat. That is a central part of its constitutional reality…. The rule of law—despite some breakdowns—was entirely beyond doubt; the German order remained a just, legally-determined one in which even the little man, far more than seventy years earlier, was able to claim his rights and be afforded after all a modicum of justice.” (2: 182, 193).

4. For example Wehler, Deutsche Gesellschaftsgeschichte, 744.

5. Nipperdey, Deutsche Geschichte, 2: 133–34.

6. In the 1870s the overall acquittal rate in press cases was 18.5 percent, while for those heard by the Bavarian Geschworengerichte the rate was 30.3 percent. By the 1880s the acquittal rate of the nonjury courts in press cases was 30 percent. Fischer, Deutsche Kommunikationskontrolle, 141.

7. Ludwig Thoma, “Gegen die Staatsanwälte,” in Gesammelte Werke (Munich, 1932), 7: 369–70; Robin J. V. Lenman, “Censorship and Society in Munich, 1890–1914, With Special Reference to Simplicissimus and the Plays of Frank Wedekind,” (PhD diss., Oxford University, 1975), 7–8, 11–12.

8. Korfiz Holm to Albert Langen, 22 Mar. 1899, Das Kopierbuch Korfiz Holms (1899–1903). Ein Beitrag zur Geschichte des Albert Langen Verlags und des “Simplicissimus, ” ed. Helga Abret and Aldo Keel (Berne, 1989), 58; Heine to Holm, 15 Jul. 1899, StBM, Nachlaß Thomas Theodor Heine.

9. The case involved Hardens article “König Otto” in Die Zukunft VI Jg., no. 29 (16 Apr. 1898): 97–102. See chapter 3.

10. StAM/PDM 1046. The case involved the May 1903 cartoon “Gesandtenerziehung.” See chapter 6.

11. The Catholic Bayerische Kurier, for example, urged the Bavarian government to use §360 sect. 11 against Simplicissimus since §184 had proven so unsuccessful in the past. Lenman, “Censorship and Society,” 94, n. 3.

12. Thoma quoted in Ann Taylor Allen, Satire and Society in Wilhelmine Germany: Kladderadatsch and Simplicissimus 1890–1914 (Lexington, KY, 1984), 184. For more on this case, see chapter 5. Thoma later crusaded relentlessly to have such questionable legal practices stopped. See his “Gegen die Staatsanwälte,” 370–373.

13. Roger Chickering, Imperial Germany and the Great War, 1914–1918 (Cambridge, 1998), 34. For an example of how independent-minded deputy commanding generals resisted implementing some censorship policies even when pressured by the War Ministry, see Karl Brunner's report to the PrIM, 29 July 1916, LAB A, Rep 30 Berlin C, Tit. 121, Bd. 16985.

14. Quoted in Wolfgang G. Natter, Literature at War, 1914–1940: Representing the “Time of Greatness” in Germany (New Haven, CT, 1999), 44.

15. PrIM to local police, 9 Feb. 1915, quoted in Kurt Koszyk, “Entwicklung der Kommunikationskontrolle zwischen 1914 und 1918,” in Pressekonzentration und Zensurpraxis im Ersten Weltkrieg. Text und Quellen, ed. Heinz-Dietrich Fischer (Berlin, 1973), 164; and definition of Burgfrieden in Oberzensurstelle's 1917 Zensurbuch, reprinted ibid., 210.

16. Kurt Mühsam, quoted in Ernst Fischer, “Der ‘Schutzverband deutscher Schriftsteller' (19091933),” Archiv für Geschichte des Buchwesens 21 (1980): 192. Indeed, in 1915 the military's chief censorship office admitted it was not possible “to sharply distinguish between political, military, and economic questions [so] it is left to the judgment of the authorities…to decide which writings they wish to view as political.” Quoted in Natter, Literature at War, 225, n. 20.

17. PrWM memo of 1 Apr. 1916 to all stellvertretende Generalkommandos (a copy was also sent by the PrIM to all local police and RPs), and Saxon IM memo of 20 Jun. 1916, LAB A, Rep 30. Berlin C, Tit. 121, 16985.

18. Henry Vizetelly, Berlin Under the New Empire: Its Institutions, Inhabitants, Industry, Monuments, Museums, Social Life, Manners (London, 1879; reprint New York, 1968), 2: 236.

19. Schöndienst, Geschichte des deutschen Bühnenvereins, 229.

20. LAB A/74, Th 5; Gerdi Huber, Die Klassische Schwabing: München als Zentrum der intellektuellen Zeit- und Gesellschaftskritik um 1900 (Munich, 1973), 240.

21. On state control of theater in nineteenth-century Europe see Robert J. Goldstein, ed., The Frightful Stage: Political Censorship of the Theater in Nineteenth-Century Europe (New York and Oxford, 2009).

22. Friedrich Schiller, “Die Schaubühne als eine moralische Anstalt betrachtet,” in Sämtliche Schriften, 5 vols. (Munich, 1968), 5: 92–101. A translation, “The Stage Considered as a Moral Institution,” has been published in Frederick Ungar, ed., Friedrich Schiller: An Anthology for Our Time (New York, 1959), 263–83.

23. Arthur Brehmer and Max Grube, “Der Kaiser und die Kunst,” in Am Hofe Kaiser Wilhelms II, ed. A. Brehmer (Berlin, 1898), 360; Wilhelm II's “Rede zu Kunstpersonal der Königlichen Schauspiele, 16 Juni 1898,” in Reden Kaiser Wilhelm II, 98–99.

24. Die Theaterzensur. Fünf Vorträge, gehalten in der Versammlung des Berliner Goethebunds in der Philharmonie am 8. III. 1903 (Berlin, 1903), 33.

25. See Conrad Alberti [pseudonym of Konrad Sittenfeld], Was erwartet die deutsche Kunst von Kaiser Wilhelm II? Zeitgemäßige Anregungen von ***. (Leipzig, 1888), 70, and Franz Mehring, Gesammelte Schriften. Bd. 12: Aufsätze zur ausländischen Literatur. Vermischte Schriften, ed. Thomas Höhle, Hans Koch, Josef Schleifstein (Berlin, 1976), 268. On the importance of drama and theater to avant-garde modernists and Social Democrats, see Peter Jelavich, Munich and Theatrical Modernism: Politics, Playwriting, and Performance, 1890–1914 (Cambridge, MA, 1985) and Vernon Lidtke, The Alternative Culture: Socialist Labor in Imperial Germany (New York, 1985), 136–58. Americans recognized that “in Germany the theater is taken most seriously and is looked upon as an educational factor, quite as important as the church, State or school.” (“Owing to the Complex Rules as to Religious Subjects and the Deference Due to Royalty the Berlin Censor Has His Hands Full,” New York Times, 27 Sept. 1908, SM8.)

26. PrIM memo, 5 Dec. 1899, LAB A/74, Th 25; remark by PrIM to Prussian parliament, 19 Feb. 1903, quoted by Wolfgang Schulze-Olden, “Die Theaterzensur in der Rheinprovinz (1819–1918)” (Inaug. diss., Cologne, 1965), 26; comment by MPD, 19 June 1907, quoted by Lenman, “Censorship and Society,” 244.

27. Gustav Le Bon, Psychologie der Massen, trans. Rudolf Eisler (Stuttgart, 1982), 21. Le Bon's work was translated into German in 1908.

28. Ibid., 44.

29. See for example Dr. Leuthold, “Theaterpolizei,” in Wörterbuch des deutschen Verwaltungsrechts, ed. Karl Freiherr von Stengel (Freiburg, 1890), 2: 625–26; Otto Opet, Deutsches Theaterrecht (Berlin, 1897), 149–50; Dr. von Bar, “Rechtmäßigkeit und Zweckmäßigkeit der Theaterzensur?” Deutsche Juristenzeitung 8 (1903): 205–6; Wilhelm von Polenz, “Über die Grenzen des Unanständigen in der Kunst,” Das Magazin für die Literatur des In- und Auslandes 62, no. 24 (17 June 1893): 384–85.

30. When the Commercial Code was extended to Alsace-Lorraine in 1888, any prior state regulations relating to theaters remained in effect. Since an 1864 French law abolished all licensing requirements for the theater, during the imperial era those who wished to operate a theater in Alsace-Lorraine needed no license.

31. Robert von Landmann and Gusta Rohmer, Kommentar zur Gewerbeordnung für das Deutsche Reich, 5. Aufl. (Munich, 1907) 1: 257.

32. Köln RP, 24 Mar. 1879, quoted in Schulze-Olden, “Theaterzensur in Rheinprovinz,” 114. Kurt Heinzmann, Deutsches Theaterrecht (Munich, 1905), 25ff.; Leuthold, “Theaterpolizei,” 625.

33. One authority claimed that in 1870 alone ninety new theaters were licensed in the North German Confederation and the number of theaters in Berlin increased from nine to sixteen. Whereas Germany had fewer than two hundred prior to 1869, by the mid-1890s it had six hundred. L'Arronge, Deutsches Theater, 24; G. Wahnrau, Berlin, Stadt der Theater. Der Chronik. I. Teil (Berlin, 1957), 457; Annemarie Lange, Berlin zur Zeit Bebels und Bismarcks. Zwischen Reichsgründung und Jahrhundertwende (Berlin, 1972), 95–97; Verwaltungsbericht des Königlichen Polizei-Präsidiums zu Berlin für die Jahre 1871–1880 (Berlin, 1882), 62–63; [Zweiter] Verwaltungsbericht des Königlichen Polizei-Präsidiums von Berlin für die Jahre 1881–1890 (Berlin, 1892), 67.

34. See especially L'Arronge, “Das Theater und die Gewerbefreiheit,” Nord und Süd (Oct., 1881), and his Deutsches Theater, 21, 31; PrIM memo of 30 Mar. 1879, quoted in Schulze-Olden, “Theaterzensur in Rheinprovinz,” 72; Alberti, Was erwartet die deutsche Kunst? 101–3. Similar charges can be found in Wahnrau, Berlin, 457, and Charlotte Engel-Reimers, Die deutschen Bühnen und ihre Angehörigen. Eine Untersuchung über ihre wirtschaftliche Lage (Leipzig, 1911), 20–22.

35. Landmann and Rohmer, Kommentar, 1: 257; Arthur Wolff, “Theaterrecht,” in Wörterbuch des Deutschen Staats- und Verwaltungsrechts, 2. Aufl., ed. Karl von Stengel and Max Fleischmann (Tübingen, 1914), 3: 590–91; Leuthold, “Theaterpolizei,” 625; Heinzmann, Deutsches Theaterrecht, 25–41; Dritter Verwaltungsbericht des Königlich-Polizeipräsidiums von Berlin für die Jahre 1891–1900 (Berlin, 1902), 376; Hessische IM decree of 20 Mar. 1912, “Ausführungsverordnung zur Gewerbeordnung,” Hessiche Regierungsblatt, 1912.

36. [Zweiter] Verwaltungsbericht, 66–67; Berlin police report of 2 Mar. 1901, LAB A/74, Th 5; Dritter Verwaltungsbericht, 376–78.

37. Wolff, “Theaterrecht,” 590–91; Landmann and Rohmer, Kommentar, 1: 262; Oscar Blumenthal, Verbotene Stücke (Berlin, 1900), 10; Heinzmann, Deutsches Theaterrecht, 29–41; Leuthold, “Theaterpolizei,” 625. A PrIM circular of 5 Dec. 1899 urged local authorities to remove “ungeeignete Elemente von der Gewerbe als Theaterunternhemer” by revoking their licenses, and to ensure that such elements did not receive licenses in the future. LAB A/74, Th 25.

38. Wenzel Goldbaum, Theaterrecht (Berlin, 1914), 67–68; Dr. Schmid, “Theaterzensur,” Zeitschrift für die freiwillige Gerichtsbarkeit und die Gemeindeverwaltung in Württemberg 51 (1909): 14849; Amtmann Bazille, “Die Theaterzensur in Württemberg in rechtlicher und verwaltungspolitischer Hinsicht,” Württembergische Zeitschrift für Rechtspflege und Verwaltung II, no. 4 (1 April 1909); Albert Hellwig, “Die Filmzensur in Württemberg. Ihre Notwendigkeit, ihre rechtliche Grundlagen, und ihre zweckmäßigste Gestaltung,” Zeitschrift für die freiwillige Gerichtsbarkeit und die Gemeindeverwaltung in Württemberg 55 (Jan. 1913): 21; Hellwig, Rechtsquellen des öffentlichen Kinematographenrechts. Systematische Zusammenstellung der wichtigsten deutschen und fremden Gesetze (Mönchen-Gladbach, 1913); Hamburg police order of 21 Oct. 1898, StAH, Nr. 2170, Vol. 23; Michaela Giesing, “Theater, Polizei und Politik in Hamburg um 1900,” Makse und Kothurn 42, no. 2–4 (1996): 122, 133–34.

39. Maria Sommer, “Die Einführung der Theaterzensur in Berlin,” Kleine Schriften der Gesellschaft für Theatergeschichte, Heft 14 (Herbst 1955/Sommer 1956): 32–42 (quote from 41); Heinrich H. Houben, Polizei und Zensur. Längs- und Querschnitt durch die Geschichte der Buch- und Theaterzensur (Berlin, 1926; reprinted as Der ewige Zensor, Kronberg, 1978), 106ff.

40. PrIM to all OPs, 28 July 1884, cited in Schulze-Olden, “Theaterzensur in Rheinprovinz,” 76, 78, 80; PrIM memo of 9 Apr. 1895, LAB A/74, Th 24.

41. Frankfurt PP to Regierungsreferent of Erfurt, 13 June 1893, HHStA/407, Nr. 25, Bd. 2. Also Frankfurt Polizeiverordnung of 25 Nov. 1889, in Ewald's Polizei-Verordnungen für Frankfurt am Main (1906), 1; Frankfurt PP to Intendant der Stadttheater, 5 Sept. and 14 Sept. 1891, HHStA/407, Nr. 25, Bd. 1; Frankfurter Finanzherold, 14 Nov. 1891 and General Anzeiger, 9 Dec. 1891; Frankfurt RP to PrIM, 17 Oct. 1904, GStA PK/1000, Nr. 7, Bd. 3; and HHStA/407, Nrs. 408, 409; Schulze-Olden, “Theaterzensur in Rheinprovinz,” 67–81, 95–97; OP Hanover to PrIM, 2 July 1895, GStA PK/1000, Nr. 4, Bd. 2.

42. Dresden police instituted prior theater censorship on 24 Dec. 1876 and Leipzig on 10 Mar. 1894. Goldbaum, Theaterrecht, 67; G. Krais, “Über Theaterzensur,” Blätter für administrative Praxis 51 (1901): 29 n. 2, and Schmid, “Theaterzensur,” 148. Munich's censorship ordinance, which closely paralleled Berlin's, is quoted in Krais, “Über Theaterzensur,” 31ff. and Lenman, “Censorship and Society,” 214–15.

43. Court costs even at the first instance could run into thousands of marks; in Oct. 1895 the Bezirksausschuß ruled against the Neue Freie Volksbühne and assessed it costs totaling three thousand marks. (See chapter 4.)

44. District administrative councils in Prussia consisted of the district administrative president—a professional civil servant and a judicial officer appointed by the state—and four laymen elected by the provincial assembly. While on most councils these laymen generally came from a narrow elite of estate owners and upper-middle-class businessmen, Berlin's tended to be slightly more democratic: the Berlin District Administrative Council that ruled on Hauptmanns Die Weber in March 1893, for example, had as its four lay members a Techniker, a Maurermeister, a Verlagsbuchhändler, and a Bankier. (VL, 1: 342–44)

45. Kenneth F. Ledford, “Formalizing the Rule of Law in Prussia: The Supreme Administrative Law Court, 1876–1914,” Central European History 37, no. 2 (2004): 203–24; Nipperdey, Deutsche Geschichte, 1:662ff; 2:118–19; Michael John, “Constitution, Administration, and the Law,” in Chickering, Imperial Germany, 202–3; and even Wehler, German Empire, 128.

46. “Gesetz betreffend die Einrichtung eines Verwaltungsgerichthofes und das Verfahren im Verwaltungsgerichtssachen,” Gesez- und Verordnungsblatt für den Freistaat Bayern, 1878, 369ff; Lenman, “Censorship and Society,” 95 n. 2, 216.

47. Maximilian Harden, Berlin als Theaterhauptstadt (Berlin, 1888), 14. To avoid embarrassment to his royal employer, von Hülsen went so far as to change words like Serrenissmus to Ein Großer and Monarch to die erhabene Regierung. Charlotte Klinger, “Das Königliche Schauspielhaus unter Botho von Hülsen, 1869–1886” (Diss. phil., Berlin, 1954), 203–4.

48. Hans Schorer, Das Theaterleben in Münster in der zweiten Hälfte des 19. Jahrhunderts (Emsdetten, 1935), 146, 158; Wilhelm Herrmann, “Mannheimer Theaterzensur im 19. Jahrhundert,” Mannheimer Hefte, no. 2 (1976): 74–78.

49. Verwaltungsbericht, 64; [Zweiter] Verwaltungsbericht, 294. Another 443 such groups came into existence between 1890 and 1896, when police ceased keeping records on them. (Dritter Verwaltungsbericht, 383.) On Munich see Nipperdey, Deutsche Geschichte, 1:793.

50. Julius Hart, “Die Entstehung der ‘Freien Bühne': Persönliche Erinnerungen von Julius Hart,” Velhagen und Klasings Monatshefte 24, Bd. 1 (1909/10): 291–92.

51. Berlin police Tagesbefehl of 17 July 1875, LAB A/74, Th. 3; BPP to PrIM 10 Oct. 1888, LAB A/74, Th 952; [Zweiter] Verwaltungsbericht, 64; Charlottenberg PP decree, 18 July 1896, LAB A/74, Th 3796; Lenman, “Censorship and Society,” 233, 237; Michael Meyer, Theaterzensur in München 1900–1918. Geschichte und Entwicklung der polizeilichen Zensur und des Theaterzensurbeirates unter besonderer Berücksichtigung Frank Wedekinds (Munich, 1982), 58–59, 286–87; Schulze-Olden, “Theaterzensur in Rheinprovinz,” 131. As an example of how dramatist Ferdinand Bonn tried to use bogus “private” performances to circumvent a police ban on his work, and how police continually thwarted him, see LAB A/74, Th 496.

52. See decisions of Pr OVG of 25 Aug. 1883, 4 Jan. 1895, and 5 Oct. 1906, and the discussion of the Freie Volksbühne and Neue Freie Volksbühne in chapter 4.

53. Verdicts of Berlin Schöffengericht, 29 May 1883, Berlin Landgericht, 30 Oct. 1883, Royal Kammergericht, 31 Jan. 1884, and Pr OVG, 2 May 1892, 12 Jun. 1892, 1 Dec. 1892, 3 Jan. 1894. Also Pr OVG, 3 Jan. 1909, Bavarian Verwaltungsgerichthof, 19 Jan. 1896; Saxon OVG, 16 Mar. 1901; Württemberg ambassador in Bavaria to Württemberg Foreign Minister, 3 Jul. 1908, in HStA Stuttgart, E151cII, Nr. 270a.

54. Center delegate Rintelen, quoted in Peter Mast, Künstlerische und wissenschaftliche Freiheit im Deutschen Reich 1890–1901 (Rheinfelden, 1980), 141–42.

55. Von Heller to Bavarian Justice Minister, 4 Mar. 1893 (Auszug von Bericht über Gerichtsverhandlungen), in BHStA, MA 76 781; Mast, Künstlerische und wissenschaftliche Freiheit, 141–42; Robin J. V. Lenman, “Art, Society, and the Law in Wilhelmine Germany: the Lex Heinze,” Oxford German Studies 8 (1973): 94–95.

56. Remarks by von Heereman, 21 Feb. 1895 in Prussian Landtag, quoted in Manfred Brauneck, Literatur und Öffentlichkeit im ausgehenden 19. Jahrhundert. Studien zur Rezeption des naturalistischen Theaters in Deutschland (Stuttgart, 1974), 250.

57. Quoted in Mast, Künstlerische und wissenschaftliche Freiheit, 142.

58. Petition to Wilhelm II, “Gegen die Corruption der Bühne,” Jan. 1898, GStA PK, Rep. 77, Tit. 435, Nr. 23, Bd. 2, Bl. 87ff.

59. Mast, Künstlerische und wissenschaftliche Freiheit, 152–54; Lenman, “Art, Society, and the Law,” 96–97.

60. Max Halbe (founder of the Munich Goethebund) to Munich police, 15 Mar. 1900 and police report on the Munich Goethebund, StAM/PDM, 2401; press reports in Vorwärts 27 Mar. 1900 and Börsenblatt für den deutschen Buchhandel, 28 Mar. 1900. The charter of the Berlin Goethebund, founded by Hermann Sudermann, stated: “The purpose of [this] association is to resist all attacks on the free development of artistic and scholarly life, in particular by guaranteeing its legal protection.” Satzungen des Berliner Goethebunds, undated [Mar. 1900] in Deutsches Literaturarchiv, Marbach, Cotta Archiv, Nachl. Sud. xxv4.

61. Andreas Pöllinger, Der Zensurprozeß um Paul Heyses Drama “Maria von Magdala” (1901–1903) (Frankfurt, 1989), 32–40, 118–49; Hermann Sudermann, Drei Reden, gehalten von Hermann Sudermann (Stuttgart, 1900); Huber, Das klassische Schwabing, 88–90; Lenman, “Art, Society, and the Law,” 100–104, 107; Meyer, Theaterzensur in München, 15–27.

62. Gordon A. Craig, Germany 1866–1945 (New York, 1978), 262.

63. Nipperdey, Deutsche Geschichte, 2:128.

64. Hermann Sudermann, in Die Theaterzensur. Fünf Vorträge, 3–14.

65. M. G. Conrad, “Goethebund,” Die Gesellschaft, 16, Pt. 2 (1900): 69.

66. Petition of Verband der deutschen Goethebunds, 10/11 Nov. 1900, in Deutsches Literaturarchiv, Marbach, Cotta Archiv, Nachl. Sudermann, XXV3. See also Dritter Verwaltungsbericht, 335.

67. StenBer/RT, 10. Leg. Periode, II. Session, Drucksache 16 (Bd. 189, 281).

68. Remarks by Ernst Müller-Meiningen, Dr. H. Pachnicke, and A. Traeger, StenBer/RT, 10.Leg. Per., II.Session, Sitzung von 30. Jan., 6 Feb., and 20 Feb. 1901, Bd. 180, 1016–27, 1160–61, and 1459–65; quotations from 1022, 1019, 1026–27.

69. Remarks by A. Stadthagen, ibid., 6 Feb. 1901, Bd. 180, 1164–73.

70. Remarks by Dr. Stockmann, ibid., 30 Jan. 1901 and 20 Feb. 1901, and by Himburg, 6 Feb. 1901, Bd. 180, 1028–34, 1163–64, 1465–67.

71. Remarks by H. Roeren, ibid., 6 Feb. 1901, 1152–59 and his remarks in the Prussian Landtag, 15 Feb. 1901, StenBer/Pr, 27. Sitzung am 15.2.1901, Bd. 442, 1721–28.

72. Remarks by Bassermann, 6 Feb. 1901, StenBer/RT, Bd. 180, 1148–52.

73. Remarks by PrIM, 13. Feb. 1901, in StenBer/Pr, 19. Legislaturperiode, III. Session, 25. Sitzung am 13. Feb. 1901, Bd. 442, 1503–19.

74. Debate and votes on 20 Feb. 1901, StenBer/RT, Bd. 180, 1467–76.

75. Protokoll der Delegierten Versammlung der Genossenschaft Dtr. Bühnenangehöriger zu Berlin am 11. Dec. 1902, 19; Engel-Reimers, Die deutschen Bühnen, 740–72; Josef Urban, “Von der Notwendigkeit und dem Inhalt eines Reichstheatergesetzes. Die privatrechtlichen Probleme des Bühnenrechts nach geltenden Rechte und den deutschen und österreichiscen Gesetezentwürfen” (Inaug. diss., Griefswald, 1915); Richard Treitel, Bühnenprobleme der Jahrhundertwende in Spiegel des Rechts. Theaterrechtlichen Aufsätze, ed. Manfred Rehbinder (Berlin, 1990).

76. BHStA, M Inn 72 737, Nr. 643, 61. Bericht des Petitionskommission [Feb. 1905]; “Die Theaterzensur in der Reichstagkommission,” Vossische Zeitung, 8 Mar. 1905; Frankfurter Zeitung, 28 Apr. 1903; Huber, Das klassische Schwabing, 91.

77. Remarks by Müller-Meiningen in Der Tag, 8 Mar. 1903, quoted in Schulze-Olden, “Theaterzensur in Rheinprovinz,” 23, and in Reichstag, 19 Feb. 1903, StenBer/RT, X. Leg. Periode, II. Session, 262. Sitzung 19 Feb. 1903, Bd. 187, 8024–30.

78. Remarks by Müller-Meiningen, StenBer/RT, 203 Sitzung 10 Feb. 1909, 6824, and 145. Sitzung, 11 Mar. 1911, 5360–61; Remarks by Barth in StenBer/Pr, 16. Sitzung, 7 Feb. 1903, Bd. 459, 1015–21 and by Hirsch (SPD), 25 Sitzung 13 Feb. 1911, Bd. 555, 1788–93; StenBer/ Bav, 156. Sitzung vom 20 June 1906, IV. Band, 842–95.

79. “Entwurf eines Gesetzes, betreffend Änderung der Pars. 33, 33a, 33b, 35, 40, 42a, 45, 49, 147, 148 der Gewerbeordnung,” StenBer/RT, 13. Leg. Periode, 1. Session, Bd. 304 (Anlagen zu den Stenographischen Berichten; Berlin, 1914), Aktenstück 1431. See also GStA PK, Rep. 120 BB, IIb1, Nr. 37, Adh. 2, Bd. 1, Bl. 214–222, and Schöndienst, Geschichte des deutschen Bühnenvereins, 226ff.

80. Schulze-Olden, “Theaterzensur in Rheinprovinz,” 126.

81. See my “All Quiet on the Home Front: Popular Entertainments, Censorship and Civilian Morale in Germany, 1914–1918,” in Authority, Identity and the Social History of the Great War: Essays in Comparative History, ed. Frans Coetzee and Marilyn Shevin-Coetzee (Providence, RI, 1995), 77, n.7.

82. Stengel and Fleischmann, Wörterbuch des Verwaltungsrechts, 1:398; OVG decisions of 7 Oct. 1915 and 21 May 1917; Schulze-Olden, “Theaterzensur in Rheinprovinz,” 99–100; PrIM to Prussian Polizeipräsidenten, 7 May 1917, LAB A/74, Th 134.

83. OK in den Marken to PrWM, 29 Dec. 1914, LAB A/74, Th 134; LAB, Rep. 2, Abt. I, 3446; Schulze-Olden, “Theaterzensur in Rheinprovinz,” 99–100.

84. StenBer/RT, 23 Mar. 1917, 2625.

85. The “Kartell freier Kunstverbände,” consisting of the Protective Association of German Writers (Schutzverband deutscher Schriftsteller), Goethe League, Association of German Dramatists (Verband deutscher Bühnenschriftsteller), Union of Artistic State Managers (Vereinigung künstlerischer Bühnenvorstände) and Society for Theater History. See Arthur Eloesser's comment in Die Zukunft der deutschen Bühne. Fünf Vorträge und eine Umfrage, ed. Reichsverband deutscher Schriftsteller (Berlin, 1917), 78. Also Fischer, “Der ‘Schutzverband',” 192–94.

86. See Lenman, “Censorship and Society,” 314–17.