ON THE CRITIQUE OF THE PRUSSIAN PRESS LAWS ?*°

Berlin, June. Two ways are open to the Prussian for the publication of his thoughts. He can either have them printed in his own country, in which case he has to submit to the domestic censorship; or, should he meet with objections here, outside the frontiers of his own state he can still either place himself under the censorship of another state in the Confederation or take advantage of press freedom in foreign countries. In any case the state retains the right to take repressive measures against possible breaches of the law. In the first case, such measures will, in the nature of things, be applicable only very rarely, since as a rule the censorship deletes too much rather than too little and least of all does it pass anything liable to penalties. But with publications which have been effected under foreign press laws confiscation of the work and prosecution of the author can o¢cur much more readily and frequently. To form a judgment on Prussian press legislation as a whole it is most important that legal measures of repression should not be disregarded.

Since we still lack a special repressive statute on the press, the laws relating to this are scattered under various headings in the Prussian Law.’ We can for the moment disregard the penal laws against libel, indecency and the like, since we are in the main concerned only with political offences, and here we find the relevant data under the headings of high treason, insolent and disrespectful criticism or mockery of the laws of the land, and lése-majesté. As will be seen presently, these laws are, however, formulated so vaguely and, in relation to the press in particular, subject to such wide and undeniably arbitrary interpretation that

any judgment on them must essentially depend only on the practice of the courts. For if it is correct to assume that the spirit of every* legal system comes to life in the> administrators of justice, the latter’s customary interpretation of particular provisions must form an important complement to them, and previous practice does indeed influence the verdict considerably in doubtful cases.

The present author is now in a position to supplement his judgment on the Prussian press laws with an extensively motivated verdict by a Prussian court which lies before him. The author of a paper on domestic affairs printed outside Prussia was charged with all the offences listed above and, although unconditionally acquitted of the charge of high treason, was found guilty of insolent and disrespectful criticism, mockery of the laws of the land, and also lése-majesté.'°" .

The Prussian Penal Code defines the crime of high treason as follows (§ 92):

“An action aimed at a violent overthrow of the state system or against the life or liberty of its head is high treason.”

It can be assumed that for the present conditions this legal definition will be recognised as sufficiently general. This point is fairly unimportant for the press since it is not to be expected that such enterprises will be started by the press or by the kind of people whom our justice can reach. The clear word “violent” is sufficient protection against judicial arbitrariness or illiberality. Another point is, however, of the greatest importance for the press, namely, the one which refers to the unauthorised statement of opinions regarding the laws of the land. The legal definitions concerned are the following: Penal Code, § 151:

“Whosoever causes dissatisfaction by insolent, disrespectful criticism or mockery

of the laws of the land and government edicts shall incur the penalty of detention in prison or fortress from six months to two years.”

The Edict‘ of October 18, 1819, is relevant here, which lays down under XVI, Clause 2,

“that with insolent, disrespectful criticism and mockery of the laws of the land and government edicts, the issue shall not be held to be merely whether displeasure or dissatisfaction has been caused, but whether the above penalty has been incurred by such culpable utterances themselves”. !

It is, however, clear even at first glance how indefinite and

4 In the Rheinische Zeitung: our — Ed. > In the Rheinische Zeitung: our— Ed. © In the Rheinische Zeitung: Censorship Edict.— Ed.

inadequate these legal provisions are. What do insolent and disrespectful mean? Obviously either the first or the second part of the paragraph in the Penal Code is superfluous. Insolent criticism or mockery of the laws of the land is as good as declared synonymous with provocation of displeasure, and the Edict of October 18, 1819, directly expresses the identity of these concepts. The legal stipulation is, therefore, to be understood thus: whoever makes himself guilty of insolent, disrespectful criticism or mockery of the laws of the land and government edicts seeks to provoke displeasure and dissatisfaction with them and has, therefore, incurred the penalty in question.

Only now is it possible to view the law clearly. To place the concepts insolent and disrespectful side by side was a blunder on the part of the legislator liable to cause the greatest confusion. It is possible to be disrespectful without being insolent. Disrespect is a deficiency, an act of negligence, a mistake made in haste, which can happen to the best of people; insolence presupposes the animus injuriandi, the malicious intent. And now, to crown it all, mockery! What a far cry from “disrespect” to “mockery”! And yet both carry the same penalty. These two concepts are not merely quantitatively different, not merely different degrees of one and the same thing—they are essentially different in quality, quite incommensurable. If someone is approaching me to whom I am under an obligation, and I notice him and give him a wide berth sO as not to greet him, that is disrespectful, if I look him boldly in the face, pull my hat down over my eyes and in passing dig my elbow into his side, that is insolent, but if I thumb my nose in his face and make grimaces, that is mockery. Certain people even consider it disrespectful not to notice them.* And are these different things to be put under the same heading in a law? In any case, “disrespectful” should be deleted here and put in a separate paragraph or, rather, omitted entirely. For displeasure and dissatisfaction can never be intended by disrespectful criticism since disrespect is always committed unintentionally, unwittingly, or at least without ill intent. Hence, if the word disrespectful is kept here, it is thereby pronounced that each and every criticism of the state affairs seeks to provoke dissatisfaction and is therefore punishable. But this would be in complete contradiction to our present censorship conditions. In short, the whole confusion is caused by the word disrespectful being taken over from the censorship instructions, where it belongs, into the law. In censor-

* In the Rheinische Zeitung the last two sentences are omitted.— Ed.

ship cases it may be left to the judgment of the censor as a police officer, as long as censorship is a police measure, whether he considers something to be “disrespectful” or “well-intentioned”; censorship is an exception, and more precise definitions will always be impossible here. But such a vague concept, such latitude for subjective interpretation should not be present in the Criminal Code, least of all where difference of political views is bound to come into play and where the judges are not jurymen but servants of the state. That this critique of the law is correct, that the charge of confusion of concepts is well founded, may be best demonstrated by the practice of the courts. I cite the above-mentioned verdict, dated 5th April of this year? and already published.

The author of the printed paper in question outlines in it a description of the censorship as exercised, be it noted, in Prussia towards the end of 1840, the following passages from which were found incriminating:

“As is known, neither the smallest newspaper article nor writings of more than twenty printed sheets may be published here without examination by the censor; if the subject is pohtical, the examination devolves in most cases on a police agent, who, the stipulations of the censorship regulations (of October 18, 1819) being so vague, has to be guided solely by the special instructions of the minister. Completely dependent on the minister and responsible to him alone, this censor is compelled to delete everything which is not agreeable to the individual views and intentions of his superiors. If the author lays a complaint against him, he meets, as a rule, with rejection or obtains his due after such a long time that he can no longer make use of it. How else can one explain the fact that since the praise accorded to decent publicity in 1804 not the slightest criticism of the procedure of the most subordinate official can be found in any Prussian newspaper or in any book printed here, that even the remotest reference to the public interest must first flee beyond the Prussian borders in order to be published (of course, no one will include here the Home Affairs column of the Staatszeitung‘).

“And even here it is not safe from that autocracy of officials which causes so much concern and which Frederick William III rightly described as the inevitable consequence of suppressed publicity; in order that no unfavourable judgment ot the actions of officials, no outspoken comment of any kind on our conditions may come into Prussia through such foreign papers, they are either prohibited or their editorial boards made amenable by well-known methods. We are not, unfortunately, exaggerating! French newspapers are indeed permitted, but most of them are not allowed to enter Prussia as printed matter, so that one copy of such a paper would cost more than 400 talers a year in postage; only the appearance is preserved, in reality such permission is tantamount to prohibition. A different method is used with German newspapers. If their editors are not already on their guard in their own well-understood interest, if they accept an article about Prussia

7 In the Rheinische Zeitung the words “dated 5th April of this year” are omitted.— Ed. » Johann Jacoby.— Ed.

© Allgemeine Preussische Staats-Zeitung.— Ed.

or Prussian officials which causes displeasure in Berlin, rebukes and complaints are brought against them by the Prussian Government (we are prepared to prove this to any doubters with documents), the names of their correspondents are demanded under threats, and the profitable Prussian market is kept open to them only on humiliating conditions.”*

After this description the accused remarks that censorship exercised in this fashion becomes arrogant tutelage, virtual suppression of public opinion, and eventually leads to a highly questionable autocracy of officials, equally dangerous to king and

people. Now what is to be said about this passage? Would not a book written in this tone today receive the Prussian imprimatur? Do not all Prussian newspapers pass exactly the same judgment on the censorship of that time? Have not much stronger things already been said about still existing institutions? And what does our verdict say?

“A subject must not express himself in such a way on the laws and government edicts; the assertions that even the remotest reference to the public interest must flee beyond the Prussian borders in order to be published, that the censorship as exercised in Prussia involves arrogant tutelage, virtual suppression of public opinion, contain insolent criticism in word and spirit and violate the respect due to the state. The allegation, moreover, that a highly questionable autocracy of officials, equally dangerous to king and people, is promoted thereby, clearly proves the tendency to cause displeasure and dissatisfaction with the institutions so described. During the present proceedings the accused tried to prove that his judgment on the administration of the censorship is founded on fact, and in this respect he has referred to a number of special cases in which articles of journalistic content have been refused the imprimatur. He has also referred to a correspondence which took place between Chief Government Privy Councillor Seyffert and the editor of the Leipziger Allgemeine Zeitung as proof that this newspaper was indeed under the influence of the Prussian Government?

“These references are, however, clearly irrelevant; for, without mentioning the fact that isolated examples prove nothing whatever about the value or otherwise of a state institution, even assuming the correctness of the judgment formed by the accused, the form in which he has expressed it would leave intact the charge of insolence and disrespect. He does not judge in a manner of calm consideration, but condemns with expressions which, were they directed against persons, would indubitably have to be regarded as insults.” ©

Further on it reads:

“The accused remarks about the municipal legislation: ‘Above all, the Municipal Order of the year 1808 must be clearly distinguished from the revised one of the

* Vier Fragen beantwortet von einem Ostpreussen, S. 8-10.— Ed. > In the Rheinische Zeitung this last sentence is omitted.— Ed. © J. Jacoby, Meine weitere Verteidigung wider die gegen mich erhobene Beschuldigung

der Majestatsbeleidigung und des frechen unehrerbietigen Tadels der Landesgesetze, S. 13, 16, 20, 33-34. Ed.

year 1831. The first bears the liberal character of that time and respects the independence of citizens; the second is favoured in all cases by the present government and urgently recommended to the cities.’ This opposition of the words ‘liberal character of that time’ and ‘the present government’ contains the insolently critical assertion that the present government is not only illiberal, but also that it in general has no respect for the independence of citizens(??). The dishonest intention and the reprehensible tendency of his publication are, however, made particularly manifest in the examples which the accused submits as proof of the parallel he has drawn, since the regulations which he instances from the two municipal orders are herein reproduced in part incorrectly, in part incompletely and in distorted fashion.” *

I can pass over the excerpts which follow and which lead into too great detail all the more so because, even admitting the incorrectness and incompleteness of the incriminating description, this would by no means be proof of “dishonest intention” and “reprehensible tendency”. I will quote only the conclusion:

“When one considers that inter-estate dealings are given no publicity whatever, that, in consequence, at elections and on all other occasions the educated classes display an obvious indifference, and finally that the liberal Rhenish-Prussian estates twice rejected this kind of municipal legislation, in 1826 and in 1833, one will hardly be inclined to accept the much vaunted Prussian municipal order as representing the counterweight of the independent consciousness of the people against ministerial arbitrariness, still less as a substitute for constitutional representation.”

On these words the verdict comments:

“This passage, too, obviously contains mocking criticism and likewise betrays the tendency to provoke dissatisfaction and displeasure. He who is only concerned to be useful to the Fatherland will not strive to prove that previously a line was followed which was more beneficial to the people and which is now increasingly being abandoned and replaced by a tendency harmful to the common good. Such a comparison of the earlier, allegedly better, condition with the present one is perfectly unnecessary for revealing the supposed deficiencies of the present system; it can therefore have no other purpose than to encourage the view that the well-being of the nation is not in such good shape now as formerly, in order thus to provoke displeasure and dissatisfaction.” ©

Enough of excerpts, which, by the way, I could multiply tenfold! ¢ Practice confirms only too well what has been said above about the law. The concept of disrespect, which belongs within the competence of the police, of censorship, here shows its detrimental effects. By transplanting it to the field of the law the latter is made

2 J. Jacoby, Vier Fragen beantwortet von einem Ostpreussen, S. 11; J. Jacoby, Meine weitere Verteidigung..., S. 13-20.— Ed.

> J. Jacoby, Vier Fragen..., S. 8-10.— Ed.

© J. Jacoby, Meine weitere Verteidigung..., S. 13-20.— Ed.

4 In the Rheinische Zeitung this sentence is omitted.— Ed.

dependent on censorship, which at the given time may be more severe or more lenient. If censorship happens to be oppressive, as in 1840, the slightest criticism is disrespectful. If it is lenient and* humane, as now, that which was formerly deemed insolent is today barely disrespectful. Hence the contradiction that in the Rheinische and Kénigsberger Zeitung things receive the Prussian imprimatur which in 1840 were not only forbidden but even punishable.‘ Censorship must by its nature be fluctuating; the law must, however, stand firm until it is repealed; it must be independent of variations in police practice.

And now, to crown it all, the “provocation of displeasure and dissatisfaction”! That is, indeed, the purpose of all opposition. When I criticise this‘ legal stipulation I do indeed intend to provoke dissatisfaction with it, and not only‘ in the people but even if possible in the government. How can one criticise anything without intending to convince others of the—to put it mildly—imperfection of that which is being criticised, that is, to awaken dissatisfaction with it? How can I criticise here and praise there, how can I think something to be bad and good at the same time? It is downright impossible. I am also honest enough to say straight out that I have every intention of provoking discontent and displeasure against §151 of the Prussian Penal Code with this article, and yet I cherish the conviction that I am not criticising it “insolently and disrespectfully”, as this paragraph says, but “decently and with good intent”, as the censorship circular | says. The censorship circular has, however, sanctioned this right to provoke dissatisfaction and, to the glory of the Prussian nation, everything possible’ has already been done since then to awaken dissatisfaction and displeasure. This part of the paragraph has thereby in effect been repealed and the culpability of “disrespectful criticism” significantly limited. Proof enough that the paragraph contains a mixture and confusion of heterogeneous legislative and press-police definitions.

This is to be explained quite simply by the period in which the laws of the land were codified, by the conflict between the liberal enlightenment of that epoch and the Prussian ancien régime of the time. To entertain discontent with the government, with state

In the Rheinische Zeitung the words “lenient and” are omitted — Ed. Kéniglich Privilegirte Preussische Staats- Kriegs- und Friedens-Zeitung.— Ed. In the Rheinische Zeitung this sentence is omitted. — Ed.

In the Rheinische Zeitung: a.— Ed.

In the Rheinische Zeitung: and not indeed.— Ed.

In the Rheinische Zeitung: a great deal.— Ed.

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institutions, was then not much better than high treason and, at the very least, a crime on which it was possible to base a nice little investigation and sentence.

Lése-majesté has little interest for us. The Prussian journalists have up to now had the tact to leave the person of the king out of it. This is anticipation of the constitutional principle of the inviolability of the royal person and can only be approved.

The above paragraph is herewith highly recommended to the Commission for Revision of the Laws; in the meantime we propose to continue in the well-intentioned and decent fashion here indicated to awaken more than a little discontent and dissatisfaction with all obsolete and illiberal survivals in our state institutions.