In a tortuous ruling that threatens to have a chilling effect on discussions of “new” German anti-Semitism, the District Court of Cologne recently upheld a restraining order that forbids author Henryk Broder from describing the discourse of a virulent critic of Israel as “anti-Semitic” in a post on a popular German blog.
The case opposed the famously caustic Broder, one of Germany’s best-known political commentators, and Evelyn Hecht-Galinski, the daughter of the late Heinz Galinski, one of the leading figures in Germany’s small postwar Jewish religious community. (For background, see my earlier article, “What Is a Jew in Germany Permitted to Say Against a Jew in Germany?”) Some (see, for instance, here in the Jerusalem Post) have called the ruling a “partial victory” for Broder, since the court allowed that he might still describe Hecht-Galinski’s remarks as anti-Semitic in other contexts, provided the grounds for the description are “sufficiently” explained. But until such time as this qualification has been put to the test, it is hard to see it as much more than a legal fig leaf designed to cover up the seriousness of the court’s infringement of free speech rights.
Thus the court’s own press release underscores that, “by virtue of this ruling, the statement that the plaintiff makes anti-Semitic remarks has not been prohibited outright. A similar statement that is sufficiently well grounded [mit dem erforderlichen Sachbezug] would be permissible.” It then goes on to specify, however, that whether a charge of anti-Semitism is sufficiently sachbezogen — literally, “objectively oriented” — is up to the courts to decide on a case-by-case basis. In light of the potential costs involved — Broder was required to pay some €3600 in court costs, to say nothing of legal fees and lost time — who under such circumstances will be prepared to run the risk of uttering the charge?
In an open letter to Germany’s WDR public broadcasting service published in May on the popular collective blog Die Achsen des Guten [The Axis of Good], Broder had written that Hecht-Galinski’s “specialty is intellectually vapid anti-Semitic anti-Zionist phrases [antisemitische-antizionistische gedankenlosigkeiten].” The text now appears on the blog with the word “anti-Semitic” replaced by “xxxxxxxxxxxxx.” Under the terms of the court order, should Broder restore the original version, he would incur either a €250,000 fine or a six-month jail sentence.
To help non-German-speaking readers appreciate what is at stake in the court’s ruling, here are two samples of recent statements by Ms. Hecht-Galinski:
I know how the Israeli-Jewish lobby operates. There is one [an Israeli-Jewish lobby] and there’s nothing to say to the contrary. In the meanwhile, they describe themselves this way. (WDR radio, May 3, 2008)
[The] Jewish-Israeli lobby and its networks are at work … [around] the whole world and thanks to America the power [of the “lobby”] has become so great. (Deutschlandfunk radio, March 9, 2007)
(Longer quotes are provided in “What Is a Jew in Germany Permitted to Say Against a Jew in Germany?”)
Ms. Hecht-Galinski has also defended two German bishops who compared the West Bank to the infamous Warsaw Ghetto, where Nazi authorities herded the Jewish residents of Warsaw during the German occupation of Poland. In an interview with the German public radio station Deustchlandfunk, Hecht-Galinski described the bishops’ comparisons as “very moderate [sehr moderat]” and regretted the fact that the head of the German Bishops Conference, Cardinal Lehmann, had apologized for them. Hecht-Galinski has indeed herself repeatedly ventured such comparisons between Nazi Germany and Israel and even suggested that it is somehow urgent to do so. Moreover, when asked to introduce herself on the WDR radio program that was the original subject of Broder’s letter, Hecht-Galinski described herself as a “critic of Jewish and Israeli policies and human rights violations.” Jewish and Israeli: making as clear as possible that Ms. Hecht-Galinski considers herself to be a critic not only of the state of Israel but also of, well, Jews.
Several points are particularly noteworthy in the Cologne District Court’s ruling, the text of which has been made available to the author.
The first point is the distinction that the court draws between an “average reader” and a specialized — “for example, academic” — public. The expression “anti-Zionist anti-Semitism” is in fact commonplace in German discussions of so-called “new” German anti-Semitism, including but not limited to academic discussions. The restraining order against Broder implies that while one can speak in general of the phenomenon, the naming of concrete cases could always be subject to prohibition and/or sanction. It is seemingly in order to deflect this criticism that the judges of the Cologne District Court called in the help of the mythical “average reader”: “someone who is in principle not (especially) familiar with the subject.” It is from the perspective of this “average reader,” the judges argued, and not from that of the specialist, that it is to be evaluated whether the charge of anti-Semitism constitutes defamatory “abusive criticism” [Schmähkritik].
And, lo and behold, they ascertained that it does:
From the perspective of the average reader, the application of the concept “anti-Semitic” is especially grave and like hardly any other well suited to depreciate [the person] connected to it in the eyes of the public. This has to do with the terrible consequences that anti-Semitism has brought about precisely in Germany.
The argument is bizarre in multiple ways — not least of which because it implies that from the perspective of a specialist the charge of anti-Semitism would somehow be less serious! But it is, above all, the court’s transformation of the well-known ravages wrought by German anti-Semitism into grounds for affording Germans, so to say, “special protection” against the charge of anti-Semitism that gives cause to pause and represents a second point of note.
A third and final point is the vast field covered by the notion of “abusive criticism” as compared to the narrow concept of defamation employed in British or American jurisprudence. In the American or British courts, truth is an absolute defense against defamation charges. This is to say, for example, that if X is a child molester, I have the right to say that X is a child molester: I do not have to provide a complete catalog of all the evidence proving the fact every time I make the claim. According to the Cologne court’s ruling, however, even a true statement can represent defamatory “abusive criticism,” provided it is not accompanied by “sufficient” grounds. This obviously implies a sort of hyper-regulation of speech on the part of the German courts. Given, moreover, that the court has done nothing to specify the threshold for “sufficiency,” the potential for arbitrariness in the application of this power is virtually unlimited. Broder himself, for example, has been accused by some of “Islamophobia.” Will he now be able to obtain restraining orders against the authors of such charges?
Of course, it could be argued that what constitutes anti-Semitism is more a matter of interpretation or opinion than what constitutes child molestation or, say, plagiarism or other more typical subjects of personal defamation suits. But this is all the more reason why in a liberal democratic society it is not a suitable matter for the courts. In any case, if there is such a thing as “anti-Zionist anti-Semitism,” then there is little room for doubt that the fulminations of Evelyn Hecht-Galinski on the “Jewish-Israeli lobby” constitute an example. The similarities between the latter and the morbid phantasms of the Nazis on the power of “international Jewry” are obvious for even just a minimally historically informed observer.
“Wehret den Anfängen!” is a slogan that is frequently cited in contemporary German political discussions. It means “beware the beginnings!” and it is supposed to connote vigilance toward the reemergence of National Socialism and associated forms of ideology. The motto of the Cologne District Court in the matter of Hecht-Galinski v. Broder might rather be “Beware of those who beware the beginnings!” The ruling will surely limit the ability of Germans to remain vigilant as concerns the most dangerous legacies of German history.
Never one to avoid a fight, Henryk Broder published a new letter to the WDR on the Achsen des Guten blog.
In it, he refers to Hecht-Galinski making
anti-Semitic anti-Zionist statements … inasmuch as she compares the situation of Palestinians in the “ghetto” of Ramallah or Gaza with the situation of Jews in the Warsaw Ghetto, inasmuch as she speaks of a worldwide “Jewish-Israel lobby” and thereby resurrects the classical anti-Semitic cliché of the Jewish world conspiracy, and inasmuch as she defames everyone who does not share her opinions as agents of an “Israel lobby.”
It remains to be seen whether Hecht-Galinski will take up the gauntlet and seek a new restraining order and, if so, whether the German courts will then find Broder’s new version of his charge to be “sufficiently” grounded.