Power and rule have always required justification. For centuries, the justification by God’s will and by the doctrine of divine right have been trying to legitimate power and rule of nobility of kings and emperors in Europe. The European Age of Enlightenment attempted to change this with only limited success, because autocrats since the late 18th century have been using and reinterpreting in their sense the concepts of Enlightenment to stick to their autocracy.
There was an additional justification by historiography: systems of power and rule were represented as results of “historical lessons” “without alternative”, e.g. in Europe and Germany as “lessons from two World Wars and the National Socialist dictatorship”. The reverse side is that this included and still includes historical misinterpretations, that is, the subjective alteration of historical facts to benefit power and rule and not the historical truth; unpleasant facts that question the reigning power and rule were and are not welcome.
Justifications for claims of power and rule need to be made public. This is the purpose of the instruments of the culture industry and the media. And there is need for a certain “community of attitude” and “conformity” because, if true freedom of expression, art and press existed, the risk would be too high, that claims of power and rule are threatened.
For a country like Germany, which directly after World War II was under foreign rule of the victorious powers, there are interesting testimonies for this. One example is an Allied Control Authority directive dated 12 October 1946 regarding the limitations of the freedom of press. The media were obliged not to publish any articles “spreading rumours which have the goal to undermine the unity of the Allies, evoking distrust or hostility of the German people against one of the occupation forces; which contain criticism directed against decisions of the conferences of the Allied powers regarding Germany or against decisions of the Allied Control Authority; which rouse Germans towards insurgency against democratic measures of one of the zone authorities in their zones.”
The last point is of special interest: its wording became pioneering for the language regime in the coming decades. “Democratic measures” of the zone authorities are mentioned, even though these authorities had neither been elected by any Germans, nor had there been any referenda regarding these measures.
However, after World War II there were various aspects to German history. There were also influential persons who seriously thought that the time of autocracy and concentration of power should be over and that the rights of the citizens and the people should be the centrepiece of political order – in actuality and not just fictitiously and to justify power and rule. This was also connected to a “Naturrechtsrenaissance in Deutschland nach 1945” (Renaissance of Law of Nature in Germany after 1945) – this is the somewhat shortened title of an essay by Arndt Künnecke in the scientific journal Annales in 2013. These ideas have found expression in numerous phrasings in the Western German “Grundgesetz” (Basic Law) of 1949, particularly in Articles 1 through 20, which have created a basis that can still challenge claims for power and rule based on written law.
These basic rights include freedom of expression in Article 5 of the Grundgesetz.In more than 60 years of jurisdiction, the “Bundesverfassungsgericht” (German Supreme Court) has repeatedly justified their decrees founded on this basic right. In 1958, the Lüth sentence was a landmark decision. It stated: “The basic right for freedom of expression is, as the most immediate expression of human personality in society, one of the noblest human rights […]. For a free and democratic state, it is an essential constitutive element as it is crucial for a permanent intellectual argument, the vital principals of dissenting opinions […]. To some extent it is the basis of any freedom […].”
Considering this statement clarifies that freedom of expression also includes a variety of opinions and that it is this variety which enables the “permanent intellectual argument” invoked by the court. In concrete political life, “truth” can neither be deduced nor decreed. Something like a political “truth” can only be based on a wide, equal, open and honest exchange and dialog of various opinions, in the framework of a consensus in fundamental ethical questions.
However, this statement surly does not coincide with the “lack of alternatives politics” suffered by Germany at least since Angela Merkel became chancellor … and it is only logical that the resistance against these politics has grown substantially inside and outside of Germany. This resistance is an indication that the rights of the citizens and the people have not yet been forgotten. It is not surprising that many citizens are no longer relying on the media, which more and more have become the instrument of justification for power and rule. Therefore, other media have gained importance.
Comprehensibly many points of today’s media are being criticized. Today’s media reporting is also part of freedom of expression and opinion, which is good. Some media are abusing the basic right of freedom of expression. But the terms of this basic right have been cast: Article 5 of the Grundgesetz provides legal provisions for the protection of minors and the right of personal honour. In Article 5 the Supreme Court has provided for a wide scope of interpretation. In addition, there are limits to the freedom of expression set by general law. However, in its 1958 decision the Supreme Court declared that any potential limitations of the freedom of expression must be assessed in view of the high importance of this basic right.
Having all this in mind, we must be highly alarmed that the German state is now intending to limit the freedom of expression and that its representatives are already speaking about legislative proposals. “A novel law is planned to ban the spreading of false reports. But in actuality the law serves the conservation of the power structures”, as the internet page of the German weekly Freitag stated on 27 December 2016. And on 27 December, the German weekly Junge Freiheit writes: “The idea that the public needs to be protected from ‘destabilization’ through ‘fake news’ is presumptuous and authoritarian. Citizens can recognize nonsense and folly without a governess; there is no danger for opinion formation and the democratic discourse. The current laws regarding the violation of personal rights are sufficient.” Many voices are arguing along different lines – and this is also a good thing. On 23 December 2016, even the federal head of the German Journalist Association declared in a press statement, it was “undisputed that the public discourse should not be damaged by ‘fake news’. But there should not be an agency deciding what is true and what is not.” This savours too much of a “Ministry of Truth”.
It is not difficult to find an explanation for the attempts to restrict the freedom of expression. The highest representatives of our state, that is our politicians, are upset that the justification attempts for their claims of power and rule no longer work.
Appropriately, on 26 December 2016 the Viennese philosopher Konrad Paul Liessmann stated on [the German federal radio station] Deutschlandfunk: “In politics there have always been phenomena of demagogy, of propaganda, of promises, of campaign promises which of course are not kept, because politics of course have a lot to do with strategy, with retention of power, with tactics. Even in Machiavelli you can read that, if the retention of power is at stake, the prince, the ruler, has the licence to lie. This is crystal clear! That means lying is an ancient phenomenon.”
It makes sense to create a German “Centre for defence against disinformation” under these circumstances. However, in this situation the fox will guard the hen house: The Federal Minister of the Interior intends to organize this “centre” as a “combined unit” under the Federal Press Office in the Office of the Federal Chancellor. And, per Spiegel online of 23 December 2016, a memorandum written for the Minister states: “In view of the elections of the ‘Bundestag’, we should act swiftly.” This leaves no open questions!
In 1783, six years before the French Revolution, Immanuel Kant answered the question “What is enlightenment?” with a statement against violence. Here we can read: “A revolution may provide a relief from personal despotism or greedy or bossy oppression, but never a true reform of thinking. Instead, new prejudices will, just like the old, become the themes of a thoughtless mob. This enlightenment requires nothing but freedom – and the most innocent of all that may be called ‘freedom’: freedom to make public use of one‘s reason in all matters.”
In 2017, we must assume that polarisations through targeted provocations will increase. Direct confrontation with state power is no solution. However, it is prudent and far-sighted to reasonably promote the freedom of expression. There are good arguments for it. And today’s German citizens also do not want to move backwards here. It is evident that German citizens must be upfront with each other, work together on equal footing, determined and clear in the matter … and humane in their interactions. •
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