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German Chancellor Angela Merkel expressed horror at the racist marches that roiled Charlottesville, Virginia, this past weekend. “It is racist, far-right violence, and clear, forceful action must be taken against it, regardless of where in the world it happens,” she said on German television Monday.
She might have added that such a thing wouldn’t have happened in today’s Germany — because it’s illegal.
While America protects the right of neo-Nazis, white supremacists, the Ku Klux Klan, and other hate groups to hold public rallies and express their views openly, Germany has strict laws banning Nazi symbols and what’s called Volksverhetzung — incitement of the people, or hate speech. Like more than a dozen European countries, Germany also has a law criminalizing Holocaust denial.
And while Confederate statues can be found in many American cities south of the Mason-Dixon Line, there are no statues of Adolf Hitler or Joseph Goebbels gracing public squares in Berlin, let alone Nazi flags or other Nazi art. Public Nazi imagery was long ago destroyed, and swastikas were long since knocked off the walls of Nazi-era buildings. The only Nazi imagery you’ll find is in exhibits devoted to understanding the horror of the period.
The former Gestapo headquarters complex was destroyed in the 1950s. The land it once stood on now houses the Topography of Terror, a memorial and museum made of glass and steel filled with panels that narrate the brutal history of the Nazi regime. And on streets across the country, there are small brass cobblestones called stolpersteine (literally “stumbling blocks”), which tell passersby brief biographical details of each man, woman, or child who was deported from that spot, that house, or that block.
The Civil War may have ended more than 150 years ago, but America is still dealing with how to reconcile, and memorialize, that dark period of its history. And while freedom of speech — even vile, racist speech — is an inviolate part of the US Constitution’s First Amendment, Germany’s commitment to facing its own dark past led that country to believe a mix of education — and limiting free speech — was the only way to ensure the past would remain past.
Conquering armies banned the swastika immediately after the war
In 1945, the conquering Allied powers took control of Germany and banned the swastika, the Nazi party, and the publication of Mein Kampf, Hitler’s famously anti-Semitic text, historian Jean-Marc Dreyfus explained to me.
“There was a thorough effort to get rid of Nazi stragglers and Lost Cause supporters,” adds historian Gavriel Rosenfeld.
In 1949, the new West German government legally codified the banning of Nazi symbols and language, as well as propaganda. As Middlebury College professor Erik Bleich explained in a 2011 article for the Journal of Ethnic and Migration Studies on the development of hate speech and hate crimes laws, even the “Heil Hitler!” salute was officially banned.
But that didn’t mean it all disappeared overnight. After all, millions of German who had been part of the Nazi party still lived in the country. SS veterans who had fought under an ideology that was now outlawed would meet to drink and reminisce. There was always the risk, it seemed, of backsliding, even as a new menace — communism — rose in the east.
It wasn’t until the generation that came of age in the 1960s — the baby boomers who became known in Europe as 68ers — that a full reckoning of the war and a culture of Holocaust education began to take hold. Students rose up against the suppression of memory, demanding answers to what their parents had done just 25 years earlier.
“A generation of criminals was ruling society after the war and no one talked about what they had done,” journalist Günter Wallraff told Deutsche Welle in 2008. “Discussing their crimes was not even a part of our school lessons.”
Today it’s mandatory in schools.
The law was also evolving. After a series of synagogues and cemeteries were vandalized, Bleich explains, the West German parliament voted unanimously in 1960 to “make it illegal to incite hatred, to provoke violence, or to insult, ridicule or defame ‘parts of the population’ in a manner apt to breach the peace.” Over time it was broadened to include racist writing.
Gradually, this evolved into a concept called “defensive democracy.” The idea is that democracies might need a boost from some illiberal policies — such as limits on free speech and the display of imagery, in this case, connected to the Holocaust and the Second World War — in order to keep everyone free. In 2009 the law was strengthened again, when the German Constitutional Court officially ruled that a march to celebrate Nazi Rudolf Hess was illegal under Article 130 of the Penal Code, which bans anything that "approves of, glorifies or justifies the violent and despotic rule of the National Socialists."
“Our German law centers on the strong belief that you should hinder this kind of speech in a society committed to principles of democratic coexistence and peace,” Matthias Jahn, a law professor at Goethe University in Frankfurt, told the Washington Post this week.
Germany still struggles with neo-Nazis and the far right. But even the Alternative for Germany (AfD), the far-right German party, ran into trouble earlier this year when one of its leaders seemed to minimize the Holocaust and bashed Germany’s culture of remembrance. The party voted to remove him.
By contrast, in one of our country’s most notable free speech cases, neo-Nazis were famously allowed to march in Skokie, Illinois, in 1978. This was despite the fact that the choice was made to clearly hurt the large population of Holocaust survivors, and Jews, who lived there.
“What Germany does is what Germany does,” says University of Chicago law professor Geoffrey Stone. “They learned different lessons” from history. “The lesson we learned is not to trust the government to decide what speech is okay and what speech is not okay.”
“The First Amendment does not permit the government to forbid speech because ideas are thought to be offensive or odious. That's a message we have learned over our history: that we don't trust the government to make that decision.”
If we had, he says, it likely would have been used against civil rights, women’s rights, and LGBTQ rights.
How, then, do we deal with the memorials and the continued trauma?
Earlier this year, Condoleezza Rice — who was the first woman African-American secretary of state in US history — was asked on Fox News if she wanted the South to erase the past by taking down the monuments to Confederate leaders.
“I am a firm believer in 'keep your history before you,’” she told the hosts. “So I don't actually want to rename things that were named for slave owners. I want us to have to look at those names, and realize what they did, and be able to tell our kids what they did and for them to have a sense of their own history.”
But unlike in Germany, where memorials to the victims of the Holocaust are erected on the ruins of Nazi buildings as a way to teach future generations about the sins and horrors of the past, most Confederate statues were designed to glorify the sins and horrors of the past.
Professor Kirt von Daacke, co-chair of the University of Virginia President's Commission on Slavery and the University, explains that the Robert E. Lee statue in Charlottesville was erected in 1924 “as part of the apex of white supremacist rule in Virginia and the US. It was explicitly part of a project designed to claim public space for whites only and remind African Americans that they were the dominated whose lives were worthless.”
Both the statue of Robert E. Lee and a nearby statue of Stonewall Jackson, he continues, were installed just after the KKK marched directly into the heart of the African-American community.
“These statues,” he says, were “the final act in a 30-plus-year project in Virginia ... eliminating African Americans from citizenship and the public sphere and erasing the history of the Civil War.” He sees both of them as part of a Lost Cause mythology that itself was a whitewashing of history.
“To call these statues historical is to be willfully ignorant of history,” he adds. “The statues are monuments to white supremacy, not to Lee, not to Jackson.”
That said, not everyone agrees that the obvious answer is immediate removal.
Alfred Brophy, a law professor at the University of Alabama, wrote me he believes it’s generally not the right idea to remove a statue because “we should not allow our country to forget that there was once a time when the people in power celebrated the Confederacy and its support of slavery.”
Whitewashing took place, he explains, when the history of the South was rewritten to be about “states’ rights” rather than slavery. “I think there's a ton of validity to the argument that removal of statues facilitates forgetting,” he said. “Once the public space is cleared of Confederate statues, it's easy to forget that Confederate statues once blanketed the countryside. They serve as stark reminders of the bad old days.”
He worries, though, that there is a good argument for removing them after Charlottesville. “When a monument serves as a contemporary rallying point, then we need to remove them, I suspect.”
