was excluded.
To avoid or evade state censorship, many authors and theater directors naturally claimed their works or productions were private in nature, not intended for public consumption or dissemination, and so immune from censors. German authorities thus continually faced the problem of defining the boundary between public and private, distinguishing between the public literary and theatrical activities that were legally censorable and the “private” ones that were not.
There were a surprisingly large number of private, amateur theatrical societies theoretically exempt from all state control. Munich contained over forty such groups in the period between 1890 and 1914. In Berlin, the police reported some 393 associations of this kind in 1871 and 889 in 1880; by 1890 a total of 1,301 private theatrical associations had been registered in the capital, although, as police noted, “it can probably be assumed that a large number of these have since been dissolved or no longer exist in reality.”49
Some of these groups were legitimate private, nonprofit undertakings with praiseworthy educational or artistic goals, such as Otto Brahm's Freie Bühne Verein (Free Stage Association). Founded in 1889 and modeled on Andre Antoine's Théâtre Libre in Paris, the Freie Bühne held private performances on a subscription basis for members only and was created to stage Naturalist plays banned (or unlikely to be approved) by the censor or new works that commercial theaters were unlikely to produce for financial reasons. (Julius Hart, one of the founders, maintained the creation of the Freie Bühne was “above all a way of rapping the nose of the police censor.”50) Within a year it attracted over one thousand members from the educated middle class (primarily writers, artists, academics, journalists, and members of the free professions) and soon spawned a number of imitators in other cities (Hamburg-Altona, Leipzig, Hanover, Munich, Nuremberg) and even a working-class Freie Volksbühne (Free People's Stage, discussed in chapter 4).
Many private theaters, however, were really attempts to evade licensing and censorship regulations (as well as fire and safety ordinances) by exploiting the legal confusion over the distinction between public and private, amateur and commercial. For example, many so-called nonprofit theaters did in fact charge admission for their performances by selling mandatory programs at the door, charging everyone a stiff coat check fee, or requiring “voluntary contributions” from everyone in the audience. And some groups that claimed to be staging only private performances for their members were openly catering to the general public: the performances were often widely advertised beforehand and club memberships were sold at the door. Operators of legitimate theaters frequently complained about the unfair competition they faced from these unlicensed, uncensored enterprises masquerading as private or amateur theatrical associations.
To curb such abuses and evasions, police in Berlin, Munich, and other cities continually scrutinized uncensored private performances to ensure they were indeed closed to the general public; if a supposedly nonprofit theater was collecting admission in some other guise, vigilant police required it to obtain an operating license under the Commercial Code.51 More importantly, authorities suspected private theatrical societies like the Freie Volksbühne not only of holding public performances but also of being outlets for subversive, socialist ideas and so waged a long struggle to force these theaters to submit to the same censorship as commercial ones (see chapter 4). Throughout the imperial era the state continually sought to broaden the legal definitions of “public” and “commercial activity” in hopes of thwarting those theatrical playhouses that tried to escape state control by claiming private or nonprofit status. Originally the administrative law courts resisted such attempts, but after the 1890s the judiciary supported a more circumscribed definition of what constituted a noncensorable private performance, especially where socialist organizations were involved.52
Local Discretion or National Uniformity?Theater Law Between Left and Right
The extensive controls local authorities wielded over the public stage and the wide regional variations in such laws became an increasingly contentious issue after 1890. Politicians on both the Right and the Left challenged the right of local authorities to regulate and censor theaters—the Right because they considered local police too lax, the Left because they considered them too severe. After 1890 both Right and Left attempted to remove jurisdiction over theatrical life from individual cities and states and place it instead under uniform federal law, be it the Criminal Code or the Commercial Code. To do so, however, involved a transfer of power not only from the separate German states to the federal government but also from the appointed administrative bureaucracy (police and government) to the popularly-elected Reichstag, which wrote federal law, and to the independent judiciary, which interpreted it. Because such changes would have upset the delicate constitutional balances of the Bismarckian empire—where every pressure was neutralized by a counterpressure and substantial barriers blocked any fundamental changes to the system, either progressive or reactionary—any attempts to reform German theater law were staunchly opposed and effectively blocked by the imperial government.
During the 1880s and early 1890s theater managers and liberals who opposed any form of prior theater censorship repeatedly questioned the legality of the censorship ordinances of Berlin and other cities. Arguing such regulation violated both the Prussian constitution of 1850 (which guaranteed freedom of expression and assembly and forbade imposing censorship or other limitations on the press except by legislative act) and the Press Law of 1874 (which guaranteed freedom of the press), they appealed first to the regular courts, then to the administrative law courts to invalidate all censorship ordinances. Prussian, Saxon, and Bavarian courts, however, repeatedly upheld the police's right to exercise prior censorship over theatrical performances. Such control, courts ruled, was part of the police's legitimate duty to “protect public peace, order, and security”; and because police banned only a work's public performance, not its publication or circulation in print, these prohibitions did not violate freedom of the press or other constitutionally guaranteed rights.53
The imperial government, like the states and courts, regarded police censorship ordinances as a strictly local matter and refused to become involved. Several influential groups, however, wanted censorship placed under central, imperial control. Soon after courts affirmed the right of local authorities to censor theater performances, the Right attempted to legislate more uniform national standards that could check the independence of local theater censors. In the mid-and late 1890s a right-wing coalition of Catholics, Conservatives, anti-Semites, and moral purity associations, angered over the complete lack of theater censorship in some regions and the laxity of censors where it did exist, made a concerted effort to standardize and toughen theater censorship by bringing it under the provisions of the national Criminal Code. To do this, they sought to attach a special “theater paragraph” to the government's controversial “Lex Heinze”.
Shocked by revelations about urban vice and moral corruption that surfaced during the recent notorious murder trial of a Berlin pimp named Heinze, in February 1892 the imperial government introduced a bill in the Reichstag proposing stiffer punishments for a wide range of morally offensive activities, from prostitution to advertising contraceptive devices. During initial debate over this bill (which was quickly tagged the “Lex Heinze”) the Catholic Center Party complained that despite police censorship many German theaters performed shamelessly immoral and indecent works that were as harmful to the nation's moral fiber as prostitution and pornographic literature.54 In the Reichstag commission to which the bill was referred, anti-Semites like Adolf Stöcker joined Centrists in charging that theater censorship as currently practiced in Berlin and other large cities was “intolerable” and “not worth a penny.” Not only were censors far too lenient, but once they approved a work a theater could then point to the authorities' permission as a defense against anyone who later complained about the material. To goad police into exercising tighter control, the commission's Center and anti-Semitic members proposed adding a special clause to §184 of the Imperial Criminal Code making it a criminal offense for anyone to stage (veranstalten)
