the outbreak of war had to be resubmitted for approval.81 More significantly, bans issued under the commanders' authority could be appealed only to the minister of war, not through the administrative law courts. These new lines of authority and responsibility circumvented the civilian Interior Ministry; during the war the Prussian minister of the interior had to plead with his local police officials, who had gotten used to dealing directly with military headquarters on censorship matters, to please also keep him informed about their theater censorship decisions and policy recommendations.82
The military soon found it a “regrettable inconvenience” (bedauerliche Mißstand) that censorship of theaters and other popular entertainments was so uneven throughout the nation and that in some regions there was none at all. To facilitate “a more uniform execution of censorship,” therefore, several district military commanders used their emergency powers to institute formal prior censorship of theaters in cities where it had not existed.83
Such arrangements were valid only for the duration of the war; a permanent, nationwide legal settlement of censorship and other issues affecting the theater industry was still sorely needed. In late March 1917, therefore, the Reichstag formally requested the chancellor to resubmit the theater law of1914 for parliamentary approval. By then, however, the civil truce had long since broken down and serious political, social, and economic divisions plagued the war-weary nation. Since Chancellor Bethmann-Hollweg feared debate over the theater law would simply lead to “sharp differences of opinions and conflicting interests” that Germany could ill afford, he ignored the Reichstag's request.84 In May 1917 various professional associations representing Germany's writers, playwrights, stage managers, and other theater professionals held a large public meeting in Berlin to voice concern about the further erosion of freedoms on the stage since 1914 (one participant bemoaned that “already during peacetime the German stage lived in a state of emergency under a spiritual state of siege”), but their proclamations fell on equally deaf ears.85 Nothing further was done to alter Germany's complex system of theater censorship until the imperial order was overthrown and all forms of censorship were abolished on 12 November 1918.
Conclusion
Compared to other nations, even the most liberal, there was nothing peculiar about the laws restraining free literary expression in Germany. Like most of its neighbors, the empire exercised no prepublication censorship over books, journals, newspapers, and other publications, but authorities could (and did) prosecute authors or suppress certain publications that violated the nation's laws, especially those regarding blasphemy, obscenity, or lèse majesté. Moreover, like many other Western nations, Germany required privately owned commercial theaters to be licensed and required most of these to obtain prior state approval for any dramas they performed. In these ways, state oversight of literary life was no different in the German Empire than elsewhere.
Of course the devil is in the details, and what mattered in the end was how those laws were worded and interpreted, how often and impartially they were applied, and how severely offenders were punished. For example, while other nations also prohibited and punished expressions of blasphemy or lèse majesté, Germany generally defined these offenses more broadly or inflexibly and levied heavier punishments (see chapters 3 and 5). On the other hand the German legal definition of obscenity was narrower than that used in England and the US and less likely to be applied against genuine art and literature (see chapter 6). In any case the state's ability to intervene in German literary life was limited by strict, clearly defined legal guidelines and procedures. To suppress a published literary work, much less punish its author, required persuading a panel of judges—or in some states, a lay jury—that the criminal laws had been violated. This was by no means easy to do: as we shall see, German courts (and especially lay juries) frequently dismissed such charges or, if the case went to trial, acquitted the defendants, even during the repressive 1890s. Since they could never be sure whether a confiscation or criminal indictment would succeed, and since officials who overstepped their legal authority were often called to account by the independent and relatively impartial German courts (and by a vigorous free press), even the most conservative authorities were cautious about intervening against literary publications and when they did, were usually careful to observe all the proper legal procedures. 86
Theater censorship, the most pervasive and intrusive form of state intervention into literary life and one that took place on a daily basis throughout much of the empire, was also circumscribed and mitigated by legal safeguards and court decisions. The practice itself was (unsuccessfully) challenged several times in state courts. While local police censors enjoyed much latitude in censoring dramatic performances, in Prussia, Saxony, and several other states (although not Bavaria) their decisions were frequently appealed to an administrative law court. The possibility of legal appeal distinguished most of the German Empire from Britain, where the London theater censor's decisions were final. The administrative law courts sought to articulate increasingly clear and stringent criteria for banning performances and regularly overruled censors' decisions. Although some of those verdicts infuriated the emperor, he could do little to curb these courts' independence.
Such legalism served to curb arbitrary, capricious, impulsive, or idiosyncratic actions by the censoring authorities. Yet Germany's decentralized federal structure and the resulting fragmentation of its legal and administrative systems created a certain confusion, unpredictability, and even arbitrariness concerning censorship decisions within the nation as a whole. Laws, legal procedures, censorship policies, and criteria for granting theater licenses differed from state to state and frequently from city to city; as a result, authorities in different places regularly made very different decisions about the same work. At the same time, however, the legal peculiarities of some regions and the absence of any uniform national approach to theater censorship created enclaves where censorship was negligible or even nonexistent and islands of tolerance or immunity where it was difficult to convict for a press offense. As shall become clearer in subsequent chapters, this diversity and disunity of censorship laws and practices, while certainly frustrating for German writers and theater operators, served also to protect their freedom of expression.
Although in the years before World War I theater censorship decisions were becoming more centralized within Prussia, Saxony, and Bavaria, and more coordinated between these states, several attempts to establish a more nationally unified censorship system were successfully resisted by various interests. The issue was part of the larger unresolved problem of Germany's national unity and as such was caught up in the empire's constitutional deadlocks, where the powers of the central state (the imperial government) stood against those of the local states (especially Prussia and Bavaria), and the powers of the monarchy, administration, and police contraposed those of the Reichstag and judiciary. Efforts to centralize and standardize censorship laws, particularly theater censorship, miscarried also because ultimately they contravened the legal basis for censorship: to protect public peace, security, and order. To justify banning the public performance of a drama and to have it upheld by the courts, authorities had to argue persuasively that the piece was likely to lead to a public disturbance or somehow cause harm to the audience. This in turn depended upon many contingencies: the nature of the audience; the nature of the surrounding community (or in more modern parlance, “community standards”); unique political, religious, social, or other conditions in that place at that particular time; and so on. Germany was extremely diverse: the populace of Berlin differed enormously from that of Iphofen, Bavaria, and conditions in Hamburg were not like those in Krotoszyn, Posen. The more censors could point to specific local situations as grounds for their actions, the easier it was to defend them; where the situation was different and the work posed little or no threat to public order, a different decision would be in order. However much some groups, whether on the Left or the Right, desired more consistency in censorship decisions, the great diversity of local situations made it difficult (if not impossible) to establish uniform national standards and have all decisions made from one central office. Faced
