2 Views on 1st Amendment : As Americans Decry What They See as Online Censorship, Germans Wonder What All the Fuss Is About

When it comes to free speech, Germany ranks right up there with the Iranian mullahs--or so it seems to Internet enthusiasts horrified by the eagerness of governments in the U.S. and around the world to censor the nascent medium.

“Germany continues to take a leading censorship role,” complained a recent article in the trade publication Interactive Week, under the headline “Censorship Wave Spreading Globally.” That’s been a popular theme among U.S. online activists since CompuServe Inc. late last year temporarily blocked worldwide access to about 200 newsgroups, many of them exchanging sexually explicit material, because of complaints to its Munich, Germany, office.

Angry gays in San Francisco even went so far as to slosh beer in front of the local branch of the Goethe Institute, a German cultural office, to protest restrictions on online information about safe sex.

But on this side of the Atlantic, Germans are bewildered by all the fuss.

“This is not censorship,” protested Gerhard Zierl, spokesman for the justice ministry in Bavaria, the southern German state of which Munich is the capital. “I have read about all that reaction in the United States and I think it is a big misunderstanding.”

Two societies, two wholly divergent opinions on free speech. The great Internet-access controversy offers an interesting example of how countries that look similar on the surface can have profoundly different attitudes about crucial cultural issues--with difficult implications for the trans-border Internet.

Germany, like America, is a largely secular, capitalist democracy. No citizen here forces women to wear veils. There are nude beaches aplenty and even a gleaming new pornography museum in the heart of Berlin. U.S.-style Christian fundamentalism is largely viewed as a weird, even ridiculous, foreign phenomenon--evidence, at the very least, of a prudish streak in U.S. society.

Yet for all that, people here not only tolerate controls on certain off-center forms of information, they demand them. And when public servants move to enforce such controls, it’s no more seen as censorship is, say, the Motion Picture Assn. of America applying ratings to Hollywood movies.

“I think it’s correct to say that the German government is not trying to censor, it’s trying to enforce the existing law, with which everyone agrees,” said Hendrik Fulda of the Chaos Computer Club, a liberal-minded German group that crusades on computer-privacy issues.

Fulda, it should be noted, used an unprintable word when asked what he thought about the U.S. Congress’ move to outlaw “indecent” material on the Internet.

Part of the difference between German and American attitudes lies in widely differing understandings of just what constitutes censorship. But part of it also lies in Germany’s painful modern history and the generalized sense of responsibility it has given many here about cleansing the world of hatred and violence.

This belief--that society has great potential for evil and that the sources must be controlled--helps Germans tolerate state intrusions that many Americans would fight as overarching Big Brotherism.

All Germans must register with the police, for instance, whether they have had run-ins with the law or not; few here see this as an unacceptable invasion of privacy. Prosecutors may imprison certain suspects for months without formally charging them. Nationwide, Germans conform to regulations controlling such harmless practices as gardening and car washing--so it’s unsurprising that “nobody spills their beer,” as Zierl puts it, over one more set of regulations governing activities such as the viewing of pornography or the reading of Nazi literature.

But the rules that Germans take so thoroughly for granted became an international issue late in 1995, when representatives of the Bavarian state prosecutor’s office paid an unannounced call on the Munich offices of CompuServe. Munich police had told the prosecutors that individuals could download child pornography via CompuServe; the prosecutors now wanted to know whether this was true, and warned managers that they might be violating German law by making such material available.

CompuServe, fearing prosecution, swiftly cut off all access to more than 200 newsgroups involved. Because it did not have a way to cut off access only to Germans, it blocked the sites worldwide, affecting users in 146 countries.

The company was deluged with angry phone calls, from users demanding to know what had happened to the missing 200-plus sites.

A closer look revealed that some of these were electronic meeting places for people who wanted to talk about forms of sexual activity that are not illegal in Germany, such as gay sex. CompuServe has since reopened all but five of the sites--those that exchange pornography involving children. It is also offering new filtering options for other sites.

But the damage to Germany’s reputation was already done. CompuServe’s decision to close the newsgroups had led to the unshakable opinion abroad that “the German government” was censoring the Internet in sweeping ways.

This, Zierl said, is the heart of the misunderstanding. “After the prosecutor acted, CompuServe overreacted and blocked too many sites,” he said.

“A public prosecutor cannot act as a censor,” he added, explaining it from the German point of view. Only the government, a political entity, can “censor,” he said, by imposing its opinions on an unwilling society. (The German Parliament does have a commission studying electronic media and the law, but it has a three-year timetable, a broad agenda and no immediate plans to draft new pornography laws.)

A prosecutor, by contrast, can only enforce laws that society has already accepted, Zierl said.

The laws in question here number precisely two. The German Constitution guarantees free speech--thus that porn museum standing boldly across the street from Berlin’s most central train station. But child pornography and Nazi materials are explicitly excluded. These exclusions were enacted in the years after World War II and few Germans, either then or since, have made a serious effort to label them censorship.

“Of course, there are people [in Germany] who really strive to protect free speech,” Zierl said. “But they are really a minority. The majority think that protecting society from child pornography and neo-Nazi materials is more important.”

More or less the same thing happened in January, in the southwestern city of Mannheim. The public prosecutor there approached online access providers not about child pornography, but about Nazi ideology, particularly the writings of Ernst Zuendel, a German-born revisionist historian who lives in Toronto and who claims that the Nazis did not really commit mass murder against the Jews.

Zuendel’s materials are clearly illegal in Germany; it’s a crime here to deny the Holocaust. What the Mannheim prosecutor wanted to test was whether online providers could be charged as Zuendel’s accomplices, merely by delivering his writings. The prosecutor did not order anybody to block Zuendel’s site, but the threat of a court test was enough to make T-Online--a service of the German telephone monopoly, Deutsche Telekom--voluntarily close access to Zuendel’s site on the World Wide Web.

This, Zierl said, is further proof that the German state is not censoring anything, since CompuServe and T-Online both acted voluntarily. Even computer civil libertarian Fulda is less upset with the German prosecutors than with the online providers themselves.

“The prosecutors in Germany don’t really understand what the Internet is,” he said. “They are learning, and it is a very slow process.”

CompuServe, for its part, had an opportunity to go to court in a modern, democratic country and sort out important legal issues--imponderables about data ownership and who is really to blame when, say, a computer-savvy minor downloads violent pornography that his parents do not want him to see. The manufacturer? The child himself? The online access provider?

For now, these questions remain unanswered, Fulda complained. “We Germans know about this [1st Amendment] which you have in the United States and we think it’s a very cool idea,” he said. “We think CompuServe should have just acted as an American company, gone to court and fought about this point. CompuServe is a big company, and it has good lawyers and the money to do this.”

But Marielle Bureick, CompuServe’s spokeswoman in Munich, said the matter may still end up in court. “It’s not over,” she said, explaining that the Munich prosecutor is still investigating and may file charges this spring.

She said the employees at CompuServe’s German subsidiary have mixed feelings about that prospect. “It would be better if we had to go to court and find out whether we’re responsible or not,” she said. “After all, we would really like to know what is going on. We don’t need online restrictions; there are a lot of laws around already. But we would like to know which laws apply to us.”

On the other hand, she noted, it would not be CompuServe that would be liable for any violation of German child pornography laws; it would be an individual--Felix Somm, the subsidiary’s general manager. This, she said, makes the company less gung-ho about a court battle.