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Closing the Courtroom: Press Restrictions and Criminal Trials in Late Nineteenth Century Germany
Published online by Cambridge University Press: 15 December 2016
Abstract
In 1885 and 1886, two trials helped to precipitate a vigorous debate about when criminal proceedings should be closed to the public and when press reports on such cases should be restricted or banned altogether. First, the trial of the artist Gustav Graef for perjury and inappropriate relations with underage models featured sensationalized press reports that provoked a firestorm of public criticism. Soon afterward, press coverage of the trial of a Danish spy, Christian von Sarauw, revealed compromising details about German military planning and outraged government officials. The result was the proposal of a new law to limit public and press access to trials which posed a potential danger either to public decency or national security. Despite vigorous government efforts, this new legislation repeatedly stalled in the German Reichstag, in part because of concerns about protecting legal transparency and freedom of the press. The debates surrounding this law demonstrate the extent (and limits) to which liberal ideals such as legal transparency and freedom of the press had become embedded in Imperial German society and also the substantial power of the German Reichstag to obstruct the will of the government–even in making new laws deemed vital for national security.
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Footnotes
He thanks Helmar Nielsen for endowing the Lloyd W. Chapin Faculty Research Fellowship, without which the research for this article would not have been possible.
References
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12. There are several other recent works that provide insight into important changes underway within the legal professions and within a wider German legal culture. See for example, Ledford From General Estate to Special Interest and Hett Death in the Tiergarten.
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17. For a brief overview of the German press during the time of Bismarck, including examples of the newspapers commonly labeled pejoratively as part of the Judenpresse, see the appendix to my book Sensationalizing the Jewish Question. A more comprehensive survey of the German press during this era can be found in Kurt Koszyk's classic work Deutsche Presse im 19. Jahrhundert [German press in the nineteenth century] (Berlin: Colloquium Verlag, 1966).
18. The term Gerichtsverfassungsgesetz does not have an obvious English translation. Scholars have used a variety of terms, including “Constitution of the Courts,” “Judiciary Act,” or “Court Organization Law,” and I have chosen the latter for the sake of clarity. This law, passed in 1877, set out the hierarchy of courts, and such things as the qualifications and presiding powers of judges, and the rules for jury trials. It was distinct from the Codes of Criminal and Civil Procedure. For an explanation in English, see Ledford, Kenneth F., “Lawyers, Liberalism, and Procedure: The German Imperial Justice Laws of 1877–79,” Central European History 26 (1993): 165–93Google Scholar.
19. Kreuzzeitung, “Ausschluß der Oeffentlichkeit [Exclusion of the public],” October 2, 1885, #230, 1. The Neue Preußische Zeitung, or Kreuzzeitung , had a long and complicated history. In the years after its founding in 1849, the newspaper voiced the frustration of arch-conservative Junkers––including a young Otto von Bismarck––against the Prussian Prime Minister, Otto von Manteuffel. After Bismarck's accession to the German chancellorship, the Kreuzzeitung turned its criticism against him during periods when he cooperated with liberal parties and tended to moderate its tone when he tacked politically to the right. After 1884 (and especially after 1887), when Bismarck looked to build a “Kartell” of National Liberals and Moderate Conservatives, the paper once again viewed Bismarck with hostility. See Rohleder, Meinolf and Treude, Burkhard, “Neue Preußische (Kreuz-)Zeitung,” in Deutsche Zeitungen des 17. bis 20. Jahrhunderts [German newspapers from the seventeenth to twentieth centuries], ed. Fischer, Hans-Dietrich (Pullach bei München: Verlag Dokumentation, 1972), 209–10Google Scholar.
20. Mittelstädt, Otto, “Strafjustiz und öffentliche Meinung [Criminal justice and public opinion],” Preußischer Jahrbücher 56 (1885): 501 Google Scholar. Similar opinions were voiced by Carl Fuchs, a judge at the Higher Regional Court (Oberlandesgericht) in Jena, who suggested that the Graef trial demonstrated the acute need for explicit new laws to restrict press reports on closed trials. See Fuchs, Carl, “Zum Prozess Graef [On the Graef trial],” Goltdammer's Archiv für Strafrecht 33 (1885): 403–30Google Scholar. Mittelstädt was a fascinating character. Although he identified as a liberal, he is occasionally characterized by historians as an arch-conservative because of his controversial call for a renewed emphasis on corporal punishment in prisons rather than a focus on rehabilitation. For more detail on his career, see Rosenblum, Warren, Beyond the Prison Gates: Punishment and Welfare in Germany (Chapel Hill: Univ. of North Carolina Press, 2008), especially 34–40 Google Scholar.
21. See Germania, October 9, 1885, #231, Erstes Blatt, 1. Although occasionally referred to as a semiofficial organ of the Catholic Center Party, the editors of the Germania often found themselves in conflict with more moderate or liberal-leaning Catholic leaders. The paper was fairly consistent in its militant anti-Bismarckian, anti-liberal, and anti-Semitic rhetoric, and on these issues it often found common ground with the ultra-conservative Kreuzzeitung.
22. The Berliner Börsen-Courier, founded by George Davidsohn, was generally regarded as a left-liberal or freisinnig newspaper. Davidsohn fostered ties to artists, writers, and musicians, and the paper quickly became an influential force in Berlin culture. The newspaper was also one of Richard Wagner's earliest and most enthusiastic supporters in the German press. The Nationalzeitung, edited by Friedrich Dernberg, was generally aligned with the National Liberal Party. After the weakening and splitting of the National Liberal Party in the early 1880s, the newspaper wavered in its political loyalties and its number of public subscriptions dropped. See Oschilewski, Walther, Zeitungen in Berlin: im Spiegel der Jahrhunderte [Newspapers in Berlin: A reflection of the centuries] (Haude & Spener, 1975), 88 Google Scholar and Jürgen Kahl, “National Zeitung,” in Deutsche Zeitungen des 17, 177–90.
23. Kreuzzeitung, October 4, 1885, #232, 3.
24. Reichsbote, “Ein Protest [A protest],” September 30, 1885, #228, 1.
25. Kreuzzeitung, “Der Prozeß Graef und die liberale Presse [The Graef trial and the liberal press],” October 18, 1885, #244, 1.
26. “Der jüngste Berliner Skandalprozess [The most recent Berlin scandal trial],” Grenzboten 44 (1885): 145.
27. Perhaps the most infamous example of posturing in court for public consumption came a few years later during the spectacular Heinze murder trial of 1891, in which two defense attorneys, Alfred Ballien and Richard Cossmann, directly challenged judges and prosecutors and used repeated motions to delay the trial, all while ostentatiously sipping champagne at the defense table. See Hett, Death in the Tiergarten for more on the Heinze case and the changing culture of lawyers, 82–95.
28. A diversity of liberal reactions should not be surprising, as German “liberals” were themselves a diverse group. As Michael Gross points out, Leopold Sonnemann, editor of the Frankfurter Zeitung, and his People's Party, had been staunchly against the anti-Catholic Kulturkampf legislation of the 1870s, which many other liberals had supported. Despite this position, the Frankfurter Zeitung was commonly lumped in with other liberal newspapers as part of the “Judenpresse.” See Gross, Michael, The War Against Catholicism: Liberalism and the Anti-Catholic Imagination (Ann Arbor: University of Michigan Press, 2005), 272–73Google Scholar.
29. See Frankfurter Zeitung, October 11, 1885, Morgen in Bundesarchiv Berlin–Licherterfelde, Germany (hereafter BA-L), R3001/4776, Vol. 1, 2; The Germania’s perspective is available in its front page article on October 10, 1885, #232, Erstes Blatt, 1.
30. Frankfurter Zeitung, October 11, 1885 Morgen in BA-L, R3001/4776, Vol. 1, 2.
31. Berliner Börsen-Courier, October 17, 1885, #527, Morgenausgabe, 2.
32. Bismarck singled out an article from the Frankfurter Zeitung as an example. Letter from Herbert von Bismarck to Schelling on February 14, 1886 in BA-L R3001/4776, Vol. 1, 4–5.
33. Hermann Jastrow, “Der deutsche Gesetzentwurf, betreffend die unter Ausschluss der Öffentlichkeit stattfindenden Gerichtshandlungen [The German draft law on court proceedings that are closed to the public],” Jahrbuch für Gesetzgebung, Verwaltung und Volkswirthschaft im deutschen Reiche [Yearbook for legislation, administration, and political economy in the German Empire] X (1886):1109–34, included in BA-L, R3001/4776, Vol. 1, 45. The proposal for this wording of the 1877 law had been made in committee by the Center Party Delegate, August Reichensperger. It was adopted against the strong initial opposition of Bundesrat representatives.
34. Legal scholars also pointed to §266 of the Code of Criminal Procedure, which spelled out what must be included in the legal rationale for a verdict.
35. Letter from Bismarck to Schelling on February 14, 1886 in BA-L, R3001/4776, Vol. 1, 4–5.
36. See the letters from Schelling to the Foreign Office on March 2, 1886 and from Herbert von Bismarck to Schelling on March 8, 1886 in BA-L, R3001/4776, Vol. 1, 6–10, 11–13.
37. It was noted during internal discussions that Elsaß-Lothringen already had a law in place (dating from 1828) which sentenced journalists who report on closed trials to a fine of 2000 Francs. See BA-L, R3001/4776, Vol. 1, 36–38. Alexandra Ortmann reports that the original proposal sent to the Bundesrat also included provisions to hold all slander trials and cases against minors behind closed doors. This legislation apparently was rejected by representatives from Württemberg and Bavaria. See Ortmann, Machtvolle Verhandlungen, 171–72.
38. Statistics from Winkler, Heinrich August, Germany: The Long Road West, 1789–1933 (New York: Oxford University Press, 2006), 227 Google Scholar. The Freisinnige Party lost a high number of seats despite dropping approximately 1% in their proportion of eligible voters; meanwhile conservative gains in Reichstag seats came despite a similar drop in popular support. This reflects the idiosyncrasies of a single-member constituency electoral system. See Sperber, The Kaiser's Voters, 193.
39. Despite Bismarck's attempts to crush it over the previous 6 years, the Socialist Party also gained a substantial number of new votes and seats in the 1884 election.
40. This would be proven shortly thereafter. Prosecutors quickly appealed the Chemnitz verdict, and it was eventually overturned by the Supreme Court. The case was sent back to the Criminal Court (Strafkammer) in Freiberg, which convicted Bebel and his associates in August 1886 and sentenced each to between 6 and 9 months in jail. As in many other such cases, the conviction still served as valuable propaganda for Socialist leaders and attracted sympathy even across party lines. This conviction almost certainly did more harm to the government than to the Socialist Party itself. See Franz Mehring, Geschichte der Deutschen Demokratie [History of German democracy], Vol. 4 (Books on Demand, 2011, Reprint of the 1909 original), 285–86 https://books.google.com/books?id=QK6BmEVzCaoC&pg=PA285&lpg=PA285&dq=bebel+freiberg+verurteilung&source=bl&ots=etROKcZcVP&sig=ZrLGGv4yOyluCsjGrlQOr4EBUjY&hl=en&sa=X&ei=U2OcVbjyPIq5ggSrnICwBw&ved=0CD8Q6AEwBg#v=onepage&q=bebel%20freiberg%20verurteilung&f=false (June 7, 2015).
41. It should also be noted that the upper house of Parliament, the Bundesrat, which was dominated by conservative elites, had previously angered some liberals by failing to move forward on two legal reforms that had substantial liberal support in the Reichstag: compensation for wrongly convicted defendants and the introduction of a full appeals process for criminal courts (Strafkammern). See Fritz Friedmann, Die Öffentlichkeit der Gerichtsverhandlungen, ihre Vorzüge und Schäden [The openness of court proceedings, its advantages and disadvantages] (Heine: Berlin, 1887), 1.
42. Jastrow, “Der deutsche Gesetzentwurf.” Jastrow's pamphlet was only one of several public comments on the legislation by active jurists. See also Friedman, Die Öffentlichkeit der Gerichtsverhandlungen; Fuchs, “Zum Prozess Graef”; Kleinfeller, Georg, “Das Reichsgesetz betreffend die unter Ausschluß der Öffentlichkeit stattfindenden Gerichtsverhandlungen vom 5. April 1888 [The federal law concerning trial proceedings closed to the public, from April 5, 1888],” Der Gerichtssaal 39 (1887): 417–70Google Scholar; and von Bar, Ludwig, “Der Ausschluss der Öffentlichkeit bei Gerichtsverhandlungen [The exclusion of the public in trial proceedings],” Die Nation 5 (1887/1888): 173–76Google Scholar.
43. Jastrow, “Der deutsche Gesetzentwurf.”
44. Ibid.
45. Hamburger Nachrichten, November 18, 1886 in BA-L, R3001/4776, Vol. 1, 47–48.
46. The offending issue of the Berliner Börsen-Zeitung (November 28, 1886, #557, 1. Beilage), which reported on the treason trial of the conservative newspaper editor Prohl from Kiel, is present in BA-L, R3001/4776, Vol. 1, 49–57, as are subsequent exchanges among Herbert von Bismarck, Hermann von Schelling, and Leo von Caprivi on their continued national security concerns.
47. Stenographic report of the Reichstag session on March 18, 1887 in BA-L, R3001/4776, Vol. 1, 75ff.
48. Stenographic report of the Reichstag session on March 18, 1887 in BA-L, R3001/4776, Vol. 1, 75ff.
49. Sperber, The Kaiser's Voters, 190.
50. Ibid., 194, 197. Again, the dramatic changes in the number of seats earned by a party did not always match actual vote totals in the complex electoral system of Imperial Germany. The primary loser of this election, especially in terms of seats lost, was the left-liberal Freisinnige Party.
51. A version of this amendment would later be put forward by the Freisinnige (left-liberal) Deputy August Munckel, and would be adopted into law. See Rheinbaben's amendment in Verhandlungen des Deutschen Reichstags [Proceedings of the German Reichstag], (1887, 4), Aktenstück #152, 1145 http://www.reichstagsprotokolle.de/Blatt3_k7_bsb00018470_00367.html (June 19, 2015).
52. Both Kulemann and Rintelen were prominent judges: Kulemann served on a regional court in Braunschweig, and Rintelen, whose father had been a Prussian justice minister, served first on the Berlin Kammergericht and later on the Supreme Court (Reichsgericht) in Leipzig. Their amendment petitions are in the Reichstag record, available online at www.reichstagsprotokolle.de (April 10, 2014) and are also included in BA-L, R3001/4776, Vol. 1, 92ff.
53. This time, the case was against the anarchist Johann Neve. Apparently, Neve had been arrested in Belgium and then secretly transported to Germany for prosecution. Press reports on his apprehension and transfer had caused embarrassment for both governments and a strain on relations between the two countries. Letter from Herbert von Bismarck at the Foreign Office to Schelling on October 23, 1887 in BA-L, R3001/4776, Vol. 1, 98.
54. Ibid.
55. See the eventual law, “Gesetz, betreffend die unter Ausschluß der Oeffentlichkeit stattfindenden Gerichtsverhandlungen von 5. April 1888 [Law regarding court proceedings closed to the public, from April 5, 1888],” Deutsches Reichsgesetzblatt 19 (1888): 133–35Google Scholar.
56. Verhandlungen des Deutschen Reichstags (1888, 2), Aktenstück #138, 593 http://www.reichstagsprotokolle.de/Blatt3_k7_bsb00018650_00151.html (April 10, 2014).
57. See Verhandlungen des Deutschen Reichstags, 50. Sitzung 1887/88, 2., 1 März 1888, 1199 http://www.reichstagsprotokolle.de/Blatt3_k7_bsb00018648_00509.html (June 22, 2015).
58. Singer had no training as a jurist; his target, Paul Kayser, however, was a Senate president at the Supreme Court in Leipzig. See Verhandlungen des Deutschen Reichstags, 55. Sitzung 1887/88, 2., 7 März 1888, 1340 http://www.reichstagsprotokolle.de/Blatt3_k7_bsb00018648_00650.html (June 19, 2015).
59. A gifted lawyer, Windthorst had served twice as the Hanoverian Justice Minister in the 1850s and early 1860s. See Verhandlungen des Deutschen Reichstags, 47. Sitzung 1887/88, 2., 27 Februär 1888, 1146 http://www.reichstagsprotokolle.de/Blatt3_k7_bsb00018648_00456.html (June 19, 2015).
60. See Verhandlungen des Deutschen Reichstags, 50. Sitzung 1887/88, 2., 1 März 1888, 1197 http://www.reichstagsprotokolle.de/Blatt3_k7_bsb00018648_00507.html (June 19, 2015).
61. Just as during the Graef trial, there were multiple newspapers that carried Heinze trial transcripts, and these accounts were often published as post-trial pamphlets. This summary comes from Kreuzzeitung, September 28, 1891, #452, Abend.
62. See Geheimes Staatsarchiv Preußischer Kulturbesitz, Berlin, Germany (hereafter GStAPK) I. HA Rep. 89, Nr. 17725, Vol. 5, 44ff. for the original telegram from Flügeladjutant von Scholl on behalf of Kaiser Wilhelm II on October 3, 1891; See also GStAPK I. HA Rep. 84a, Nr. 8095, 2ff. for responses within the Prussian Justice Ministry.
63. On the Heinze case as the start of a moral panic, see Hett, Death in the Tiergarten, 78ff; and Dickinson, Edward, “The Men's Christian Morality Movement in Germany, 1880–1914: Some Reflections on Sex, Politics, and Sexual Politics,” Journal of Modern History, 75 (2003): 59–110 Google Scholar.
64. This was during the Moltke–Harden trial, at which the journalist Maximilian Harden was accused of libel for publishing rumors about a homosexual affair between Kuno Graf von Moltke and Philipp Fürst zu Eulenburg-Hertefeld, two close associates of the Kaiser. See Domeier, Der Eulenburg-Skandal, 112.
65. For an example of such public petitions during the Eulenburg Affair, see the Reichstag petition by a variety of women's organizations in January 1908 asking for a strengthening of the 1888 Law Regarding Court Proceedings Closed to the Public, and especially a sharpening of §184 StGB, the “Lex Graef” in Verhandlungen des Deutschen Reichstags, Aktenstück #813, 4819 http://www.reichstagsprotokolle.de/Blatt_k12_bsb00002887_00789.html (June 16, 2015). On subsequent attempts to limit public and press access to trials, especially those involving private personal or family matters, see Ortmann, Machtvolle Verhandlungen, 171–172. The Lex Graef was finally dropped as part of the Fourth Criminal Law Reform Act of 1973 because of its “lack of practical usefulness.” See Burkhard Jähnke, Heinrich Wilhelm Laufhütte, and Walter Odersky, eds., Strafgesetzbuch. Leipziger Kommentar [Criminal law: Leipzig commentary], 11th ed., Vol. 9, §§339–58, Nachtrag zum StGB, Gesamtregister (Berlin: De Gruyter, 2006), 59 n.5 https://books.google.com/books?id=8WZbrufrCLMC&pg=PR4&lpg=PR4&dq=%C2%A7%C2%A7+339-358;+Nachtrag+zum+StGB;+Gesamtregister+2006&source=bl&ots=oX1iMgJ_gh&sig=f_kEPufqqqYkZWkLgvDDf__oxNY&hl=en&sa=X&ei=rIeUVZ3xL8WTsAWy0Y34Dw&ved=0CB4Q6AEwAA#v=onepage&q=unter%20hinweis&f=false (July 1, 2015).
66. This article has focused primarily on the debates surrounding the Graef and Sarauw trials, specifically regarding the exclusion of the press and public audience from the courtroom. During this same period, there were also substantial public discussions about the effectiveness of jury courts (Schwurgerichte) as an institution and the role of “lay-judges” in criminal trial proceedings. This part of the debate about Öffentlichkeit will be explored in more detail as part of my upcoming book manuscript on the Graef trial.
67. Ortmann, Machtvolle Verhandlungen, 169.
68. Ibid., 168–170. Part of the problem here is that Ortmann's book makes minor, but still essential, errors in the timeline of these debates. She correctly points to the 1885 Graef trial as a point of origin for debates about restricting public access to controversial trials, but she then misattributes concerns about national security to that case rather than to the Sarauw trial. She also wrongly suggests that the oath of secrecy was originally intended to apply to all closed trials (instead of solely to those cases posing a threat to national security). Finally, she erroneously claims that §184b StGB, which I refer to here as the “Lex Graef,” was passed as part of the 1900 Lex Heinze reforms instead of as part of the 1888 law. This last error allows Ortmann to suggest that the passage of the 1900 measure represented an additional successful attack on the open courtroom and the rights of the press. In truth, all attempts to pass additional restrictions on press reporting after the Heinze case—as well as after later scandalous trials—failed completely.
69. See Verhandlungen des Deutschen Reichstags, 50. Sitzung 1887/88, 2., 1 März 1888, 1195 http://www.reichstagsprotokolle.de/Blatt3_k7_bsb00018648_00505.html (June 21, 2015). Emphasis in the original transcript.
70. See Verhandlungen des Deutschen Reichstags, 50. Sitzung 1887/88, 2., 1 März 1888, 1195 http://www.reichstagsprotokolle.de/Blatt3_k7_bsb00018648_00505.html (June 21. 2015). This is actually Meyer quoting his own statement from an earlier Reichstag session.
71. As was often the case, when German justice officials and prosecutors were denied one tool to achieve their goals, they quickly turned to others. In a government appeal of the 1885 acquittal of August Bebel and several Socialist colleagues at Chemnitz, the Supreme Court issued a ruling that made it easier for prosecutors to charge defendants with being part of secret conspiracies that violated anti-Socialist Laws. After August Bebel and his associates were convicted in a retrial, a wave of further Socialist prosecutions followed. According to Franz Mehring, however, press coverage of this new wave of trials often tended to be rather sympathetic to the defendants, even within many non-Socialist newspapers. Therefore, although government prosecutors successfully convicted and imprisoned many Socialist leaders, they could never destroy the party's organization or public appeal. See Mehring, Geschichte der Deutschen Sozialdemokratie, 286.
72. Hett, Death in the Tiergarten, 25. Hett mentions that the judge in the retrial of Gotthilf and Anna Heinze ordered that the proceedings be held in a closed court without press attendance; Hett also reports, however, that this decision provoked a significant public backlash.
73. For complaints by Prussian leaders about the difficulty of prosecutions under obscenity statutes, see GStAPK I. HA Rep. 77 Preußisches Innenministerium, Tit. 657 Kunstsachen, Nr. 3, Vol. 1. It should be noted that Prussian prosecutors had often been instructed to use other statutes instead––such as disturbance of the peace (grober Unfug) under §360 Part 1 Nr. 11 of the Penal Code––to pursue charges against purveyors of obscene material and thus avoid the need to define “lewdness” in court.