6. The applicant association is the German branch of the animal rights organisation PETA (People for the Ethical Treatment of Animals). It pursues, inter alia, the aims of preventing animal suffering and of encouraging the public to abstain from using animal products.
7. In March 2004 the applicant association planned to start an advertising campaign under the head “The Holocaust on your plate”. The intended campaign, which had been carried out in a similar way in the United States of America, consisted of a number of posters, each of which bore a photograph of concentration camp inmates along with a picture of animals kept in mass stocks, accompanied by a short text. One of the posters showed a photograph of emaciated, naked concentration camp inmates alongside a photograph of starving cattle under the heading “walking skeletons”. Other posters showed a photograph of piled up human dead bodies alongside a photograph of a pile of slaughtered pigs under the heading “final humiliation” and of rows of inmates lying on stock beds alongside rows of chicken in laying batteries under the heading “if animals are concerned, everybody becomes a Nazi”. Another poster depicting a starving, naked male inmate alongside a starving cattle bore the title “The Holocaust on your plate” and the text “Between 1938 and 1945, 12 million human beings were killed in the Holocaust. As many animals are killed every hour in Europe for the purpose of human consumption”.
8. In March 2004, three individual persons, P.S., C. K. and S. Korn, filed a request with the Berlin Regional Court to be granted an injunction ordering the applicant association to desist from publishing or from allowing the publication of seven specified posters via the internet, in a public exhibition or in any other form. The plaintiffs were at the time the president and the two vice-presidents of the Central Jewish Council in Germany. All of them had survived the Holocaust when they were children; C.K. lost her family through the Holocaust. They submitted that the intended campaign was offensive and violated their human dignity as well as the personality rights of C. K.’s dead family members.
9. On 18 March 2004 the Berlin Regional Court granted the injunction....
18. However, the Federal Constitutional Court did not find it necessary to decide whether the intended campaign violated the plaintiffs’ human dignity, as the impugned decisions contained sufficient arguments which justified the injunction without reference to a violation of the plaintiff’s human dignity. It was, in particular, acceptable that the domestic courts based their decisions on the assumption that the Basic Law drew a clear distinction between human life and dignity on one side and the interests of animal protection on the other and that the campaign was banalising the fate of the victims of the Holocaust. It was, furthermore, acceptable to conclude that this content of the campaign affected the plaintiffs’ personality rights. Referring to its earlier case law, the Federal Constitutional Court considered that it was part of the self-image of the Jews living in Germany that they belonged to a group which had been sampled out by their fate and that a special moral obligation was owed to them by all others, which formed part of their dignity.
The European Court of Human Rights upheld the German court’s decision, partly on the grounds of “the margin of appreciation,” which is the latitude given in close cases to national laws — a plausible position, and I fault here not the European Court but the German legal system itself — and partly because of “Germany’s history.” Two concurring judges, though, criticized reliance on Germany’s special history, and would have concluded that any country could and should (though not necessarily must) restrict such speech:
5. Here we may pause and ask, whether reasonable men could indeed or could not differ on the utterly distasteful and unacceptable comparison between pigs on the one hand and the inmates of Auschwitz or some other concentration camp, on the other hand. A few decades ago this kind of Denkexperiment, even in the American context, would only yield a result unfavourable to the applicants, because a few decades ago, reasonable persons could not possibly differ on the question we have before us in this case.
6. Apparently, things have changed to the extent that indeed both the Federal Constitutional Court in Germany, as well as our Court, are still able to say that such comparison is unacceptable, but only in the context of a country carrying a historical stigma concerning the concentration camps....
13. Here we are reminded of Immanuel Kant’s categorical imperative. His position was that every human being must be treated as an end in himself. This perhaps coincides with the German constitutional concept of dignity.
14. But when human beings in their utter suffering and indignity are, as here, compared to hens and pigs for the lesser purpose of protecting otherwise legitimate advancement of animal rights, we are no longer in the position to maintain that the human beings seen in these pictures are treated as an end in themselves.
15. Clearly, these human beings, not only Jewish but of all nationalities, in a concentration camp, are here treated as an instrument for the advancement of animal rights. If their image is so instrumentalised, little is left of their human dignity, I’m certain, even in the context of German constitutional law.
A few thoughts:
1. I don’t think Germany’s history should be seen as reducing, in this respect, the free speech rights of Germans today. From a moral perspective, human rights ought not turn on the 65-year-old crimes of one’s countrymen, or of one’s listeners’ countrymen.
From an instrumental perspective, the chief reason free speech is valuable because restrictions on speech are likely to harm public debate in the present and in the future. People in Germany, like in all countries, have to face the question of how to judge the welfare of animals compared to the welfare of humans. People in Germany, like in all countries, have to judge how to evaluate the past actions of the Nazis. People in Germany, like in all countries, have to learn about what happened during World War II — and, as I have argued, restrictions on the freedom to debate such questions actually tend to lead to people having less confidence in the truth; as I’ve written before,
What is our main assurance that conventional wisdom among historians or scientists is likely to be correct, even when we ourselves lack the expertise to personally evaluate the question? Precisely the fact that scholars have reached and maintained a consensus on the conventional wisdom, in the face of others’ unfettered freedom to challenge and try to rebut that consensus. But say that factual criticism of a historical or scientific theory were banned, even using a ban limited only to criticism that a jury finds to be false and insincere. Confidence in the consensus view would then be less justified. First, we could not know whether the continued consensus stems from scholars’ not being exposed to outsider challenges, rather than from its continued scholarly acceptance despite the challenges. Second, we could not know whether the continued consensus is more apparent than real, because scholars who do find themselves having doubts are deterred from expressing them.
Restricting speech in Germany is thus just as dangerous as restricting it anywhere else. And whatever force there might be in arguments that some country’s situation is special because of a current menace — e.g., that this speech, even if not very dangerous in other countries is unacceptable dangerous in this one — I don’t think this argument can be made here, or is being made here: I would think that the risk of another Holocaust in Germany is no greater, and likely rather less, than in most other countries.
2. But of course this isn’t a case about Holocaust denial. The PETA people aren’t trying to deny that the Holocaust occurred — in fact, their argument is relying on its occurrence. Nor are they trying to encourage hostility or discrimination against Jews (not that I think this should suffice to justify restrictions on speech, but this is a common argument in favor of such restrictions).
Indeed, consider how far down the slope we’ve slipped, just as the ACLU and other free speech maximalists have predicted. Bans on advocacy of genocide, and “hate speech” more broadly gets banned. Holocaust denial isn’t quite that, but it might lead to that, so it’s banned, too. Unsurprisingly, this leads to punishment of other historical claims (see here, with regard to historian Bernard Lewis’s punishment in France for supposedly presenting an insufficiently “balanced presentation” of the killings of Armenians by the Ottoman Turks during World War I). Collecting and sale of Nazi memorabilia — well, that doesn’t advocate for anything as such, or deny anything, but that gets banned, too.
Now comparing certain actions to the Holocaust — again, with no denial of history, or advocacy of hostility to any ethnic or religious group — is punishable, too, on the grounds that it “banalise[s] the fate of the victims of the Holocaust.” Because government officials disagree with PETA’s viewpoint that the killing of animals really is pretty much as bad as the killing of humans, they suppress PETA’s expression of that viewpoint using references to the Holocaust. (I should note that I don’t agree with PETA’s view about the equivalence of the killing of animals and the Holocaust, either; I just think that it should be free to express that view.)
As I suggest in the title, this is secular blasphemy law (much as flag-burning laws are secular blasphemy laws, though I think even more dangerous, because they apply to a wider range of expression). The Holocaust is elevated to a sacred symbol that people can only use in officially approved ways. And, as the slippery slope so far shows, there’s no reason to think that this will remain here; indeed, such decisions encourage other groups to seek similar protection for their secular-sacred historical references. This is one reason I much prefer America’s free speech approach to the more “flexible” Western European approach.
Thanks to commenter Martin Holterman (martinned) for the pointer.