Liberalis in English

About the cases of Hans Fritzsche and Julius Streicher at the trial of Nazi criminals in Nuremberg.

The trial of the most important leaders of Hitler’s regime in Germany began on November 20th, 1945, in Nuremberg. On the bench of defendant’s at the Palace of Justice – one of the few buildings in the center of Nuremburg, which survived the English and American bombings during the war – served 21 individuals.

After the ten-month long proceedings, the International Military Tribunal rendered the verdict: twelve of the indicted (one of them by default) were sentenced to death by hanging, seven to jail – from ten years to life, three were acquitted. The death sentences were carried out on the night of October 16th, 1946 (Herman Göring escaped the hangman, as, shortly before the execution, he ingested potassium cyanide).

From among the tried and sentenced in Nuremberg high – ranking officers of the Nazi regime, most were accused of crimes such as involvement in the planning of war, the initiation and waging of a war of aggression, but, most of all, the dispensation of criminal orders, the murdering of prisoners of war and of the civilian population, mass deportations, the plunder of property, etc.

Two of the charged appeared before the tribunal not because of what they did, meaning, for example, the dispensation of criminal orders, but for what they said and wrote. They were Hans Fritzsche and Julius Streicher. This note is dedicated to their trials.

The propagandist

Hans Fritzsche, accused of the commitment of crimes encompassed in the Indictment Charter by Articles I (conspiracy, or collective plan), III (war crimes) and IV (crimes against humanity), was a deputy to the Home Press Division at the beginning period of the war, and, from 1942, the deputy chief of the Radio Division, headed by Josef Goebbels, in the Ministry of Propaganda. As the deputy to the Home Press Division, he supervised the entire, covering 2,300 titles, German daily press. In his job, he worked under the director of the German press, Dietrich, and, every day, he broadcast the “daily parole of the Reich Press Chief”.

Fritzsche earned huge popularity through his radio broadcasts “Hans Fritzsche Speaks”. His speeches, dedicated to the international military – political situation, were filled with the spirit of fanatical loyalty to Adolf Hitler and National Socialism. The ever present element in these was anti-Semitism. Among his other ideas, Fritzsche maintained that “the war was started by the Jews… and their fate has turned out as unpleasant as the fuehrer predicted”.

Although Fritzsche did much to persuade the German nation to support Adolf Hitler and the German war effort, and, moreover, proliferated the sometimes false information, he never, in his broadcasts, directly called for the murder or persecution of Jews, or the commitment of any crimes.

Jew-baiter No. 1

Julius Streicher was the publisher and the editor of the anti-Semitic weekly publication “Der Stürmer”. It was a magazine saturated with the most fanatical anti-Semitism that one can imagine, on top of it so obscene and vulgar, that even many hard-core Nazis could not read it.

In his published articles, Streicher did not limit himself to general insults or invectives against the Jews. He demanded, as claimed by the tribunal, “total and thorough annihilation of Jews”. A good example of what Streicher wrote in “Der Stürmer” can be an excerpt from his article dated May 1939:

“There must be a punitive expedition against the Jews in Russia, a punitive expedition which will expect: death sentence and execution. The Jews in Russia must be utterly eradicated”.

Whereas in an issue from February of 1944, Streicher stated:

“Whoever acts as a Jew acts is a rogue and a criminal; whoever repeats his act or wants to imitate him, deserves the same fate: annihilation and death”.

Streicher knew much about the extermination and death of the millions of Jews – he was kept up to date about the progress of the “Final Solution”. From that progress, it is worthy to say, he took extreme pleasure. In one of the issues of the magazine that he published, he wrote, among other things, that “it is wonderful to know that Hitler is freeing the world from his Jewish oppressors”.

However Streicher attended to his function as the gauleiter of Franconia (he was removed from it for moral scandals and gigantic corruption), his activity at this position did little against him at his trial. The whole indictment against him was based on what he printed as the publisher and editor of the weekly magazine “Der Stürmer”, specifically on 26 articles (12 of them written by Streicher himself), which were published between August 1941 and September 1944. In these articles, he categorically demanded the annihilation of all Jews.

Guilty of the crimes?

In the opinion of the prosecutors of the Nuremberg tribunal, the activities of Streicher as well as of Fritzsche constituted crimes against humanity, described in Article IV of the Indictment Charter. Although neither Streicher nor Fritzsche personally murdered, oppressed or ordered murders, deportations, etc., without their publishing activities (in the case of Fritzsche also administrative activities as the deputy director of press and radio), all of these crimes may not have happened. Brutal acts of violence would not have occurred if certain beliefs would not have been instilled in the human minds, such as the one that the Jews were the ones responsible for the start of the war, as maintained by Fritzsche. Moreover, they would not take place without encouragement of propaganda, as was conducted by Streicher via “Der Stürmer”.

It is not enough!

The Tribunal agreed only partially with this briefly described argumentation,. As far as Fritzsche was concerned, the judges found that although his radio broadcasts were unrelentingly anti-Semitic, they did not contain calls for extermination or oppression of Jews. Moreover, it was not ascertained that he knew about the matter of Jewish eradication in the East. Finally, although his speeches sometimes contained false information, there was no evidence that he knew that the information he provided was false.

The undisputed fact that Fritzsche proliferated and reinforced anti-Semitism and encouraged the nation to support Hitler and the war efforts did not, according to the tribunal, constitute substantial grounds to declare him guilty of participation in conspiracy (Article I of the Indictment Charter), of war crimes (Article III) or finally of crimes against humanity (Article IV).

The instigator

In a different light, according to the tribunal, appeared the case of Julius Streicher. Most of all, contrary to Hans Fritzsche, he instigated the commitment of crimes in a direct and unambiguous way. Furthermore, his instigation took place at a time when “Jews in the East were murdered in the most terrifying manner”, and he himself knew about the crimes perpetrated against the Jewish population – and yet continued his “death propaganda”.

All of this was sufficient to find him guilty of crimes against humanity (the Tribunal acquitted him from the charge of commitment of crime from Article I of the Indictment Charter, as well as from participation in conspiracy, as there was no adequate evidence that confirmed that Streicher participated in the preparation or planning of the war).

The Sentence

Hans Fritzsche was acquitted of all charges brought against him. Julius Streicher – in accordance with the tribunal’s sentence of October 1, 1945 – was hung at the gallows.

Nuremberg and the freedom of speech

The trials of Fritzsche and Streicher are especially worthy of recollection in the context of the discussion over the boundaries of the freedom of speech.

The proponents of the legal repression of people, who publicly propagate, for instance, anti-Semitic or generally racist matters, often recall the sentence of the Tribunal in the case of Julius Streicher. The propaganda of hatred was recognized at Nuremberg as a crime against humanity – proclaim some, who support the placing of racists and anti-Semitics behind bars. They often forget, however, that the second of the propagandists – anti-Semitics was not only not sentenced by the Nuremberg Tribunal, even for a short punishment, but completely acquitted.

The majority of the anti-Semitic and racist propaganda, which can be found today either in some radical magazines or on certain Internet websites, has a lot more, without comparison, in common with what Fritzsche did than with what Julius Streicher presented in his activities.

Today words, tomorrow bombs?

The Nuremberg Court, as seen, was not too keen to stretch responsibility for “conspiracy”, “war crimes” or “crimes against humanity” on someone, whose only fault was the spread and publication of certain words, rather than the fulfillment (or the ordering of their fulfillment) of certain acts.

From the perspective of the freedom of speech, it was a legitimate position. Often enough, one can persuasively argue that certain acts would not take place without the effect of certain statements. “The Holocaust would not happen without the anti-Semitic propaganda”. “Today fall words, another day it will be stones (or arrows)” – sometimes argue the supporters of repression in the face of the so-called “hate speech”.

Such arguments are not, in a simple way, false. Thinking logically, the Holocaust would not have occurred if the minds of the pre-war Germans were not instilled with certain notions about Jews. Similarly, the crimes that occur these days in many European countries (thankfully seldom in Poland) of a racist character would not take place if the minds of their perpetrators would not be instilled with certain ideas on the subject of national, ethnic or religious groups, whose members become the victims of such attacks.

Where will we finish?

But these kinds of arguments about the limitation of the freedom of speech may be applied to several other statements, not only to racist or neo-Nazi propaganda. Let’s take a couple of examples. It seems, for instance, apparent that impetuous uproars, which often result in enormous material losses, and regularly accompany the meetings of such organizations as the World Bank, the World Trade Organization, the World Economic Forum or the International Monetary Fund, would not take place if the minds of some (but really of many) people would not be instilled the belief, propagated by the intellectual critics of globalization, that these institutions are responsible for wars, economic crises, unemployment, destitution, the devastation of the environment, and the entire evil that prevails in the countries of the third world.

The crimes of the radical animal rights activists, such as the arson of stores with furs or the demolition of labs, which conduct experiments on animals, would most likely not happen if their perpetrators, under the influence of certain publications, films, speeches or Internet websites, would not care about the fate of the animals killed for their fur or used in experimental labs.

The arson of laboratories that conduct genetic experiments or damage the plantation of genetically modified food would not happen if not for the spread of the view that experiments in the area of genetics carry with them threats against human health and life and the natural environment.

Such acts of violence, such as arson and the destroying of abortion clinics, or the murder of abortion doctors (a wave of such crimes went through the United States in the 90s) would not take place, logically speaking, if the propaganda of the pro-life supporters did not instill the belief that the termination of a pregnancy is a grave crime.

Each intensive spread of determined beliefs carries with it, indefinite in the near future, risk of indirect contribution to aggressive behaviors…

As the Supreme Court Justice Oliver Wendell Holmes argued when he ruled in “Gitlow vs. People of State of New York”, thus protecting the freedom of speech of a man, who published and proliferated a manifest, which called for a Communist revolution and a forceful abolition of the government, “every idea is an incitement”, and the only difference between the expression of an opinion and instigation is more specifically shown by the speaker’s (or the publisher’s) enthusiasm for the possible result of his opinion.

Streicher vs. Fritzsche

Streicher evidently demonstrated such enthusiasm, while Fritzsche did not display it. Does that mean that the former was hung justly, while the latter was justly acquitted?

A controversial decision

Let’s suppose that, in the light of the raised charges, the Tribunal justly acquitted Hans Fritzsche.

However, according to the competent experts of the Nuremberg trial, the case of Streicher was treated superficially by the International Military Tribunal. As shown by one of the secondary participants of the trial, Telford Taylor, in his book, “The Anatomy of the Nuremberg Trials: a Personal Memoir”, the entire trial against Streicher lasted all of two and a half days (one day for the reading of the charges, the remaining one and a half for the deposition of the accused and the presentation of the defense’s arguments). At court, no concrete proofs were presented that proved that the propaganda that he spread directly or even indirectly contributed to the crimes of the Holocaust. The examination of the witnesses did not establish that the reading of “Der Stürmer” encouraged anyone to commit any concrete crimes.

Crimes against humanity?

Doubts of purely legal nature can also be pointed out. Streicher was sentenced according to Article IV of the Indictment Charter, in other words, for “crimes against humanity”. The definition of those crimes, as contained in the International Military Tribunal Charter, was as follows:

“Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Court, whether or not in violation of the domestic law of the country where perpetrated.”

Instigation to such crimes (where there should be a distinction between the issuing of orders and instigation in press, as practiced by Streicher) was not mentioned.

Why?

Why then did the Nuremberg Tribunal send Streicher to the gallows? Without doubt, the anti-Jewish propaganda practiced in “Der Stürmer” was unacceptable to a normal man. From a moral point of view, Streicher’s activities clearly deserved the highest condemnation.

However, moral condemnation and a sentence in a trial (especially a death sentence) are two different things.

The hearing before the Nuremberg Tribunal did not prove that the publication “Der Stürmer” was the cause of any of the crimes perpetrated during World War II. The connection of the publishing activity of Streicher with those crimes was a result of logical thinking – not concrete evidence. It did not mean, of course, that no such connection existed. But in a criminal trial, one rule should stand true: In dubio, pro reo (When in doubt, in favor of the accused). In the case of Streicher, there is doubt if such a rule was applied.

Perpetrator or swine?

It is not out of the question that the decision to hang Streicher was affected by elements, which should not have been examined in the first place. Most of all, Julius Streicher was, as far as his appearance, way of speech and manners were concerned, an exceptionally repulsive figure. Observers of the Nuremburg process depicted him as: “brutal, coarse, vulgar, swinish” – just to name a couple names. It is also probable that the Court’s decision in Streicher’s trial was affected by the prospect that the public opinion would revolt if Streicher was not punished equally with the worst of the offenders.

Hung for such a reason?

Streicher was sentenced for crimes against humanity, the definition of which did not clearly cover behaviors such as instigation. From the perspective of the rule “In dubio, pro reo”, the case against him would look completely different if he was tried for crimes, which by definition encompass certain statements, such as, for example, inciting to commit crimes or calling for racist hatred. Evidence for his commitment of such crimes would be more than substantial.

The sentence of Streicher’s trial was not the only decision of the Nuremberg Tribunal, which for these or other reasons can raise serious doubts. As Joseph E. Persico writes in his book, “Nuremberg: Infamy on Trial”, “the trial of Streicher was the first example that the fundamentality of individual verdicts could be debated into infinity”.

As the evoked author states: “Today we always debate whether the violence presented in films and television programs contributes to the exertion of violence of the recipients, and we still do not have an answer”. Was there a simple way, leading from the raging anti-Semitism of “Stürmer” to the gas chambers of Auschwitz? Streicher and his activities were despicable. It may be worth to note, however, the example of Francis Biddle (the American judge of the Nuremberg Tribunal) and postulate the question: is despicability a crime, which is punishable by death?

* The mentioned opinion by Justice Holmes in the case of Gitlow versus People of State of New York, in which, calling on an earlier – actually formulated by him – opinion of the U.S. Supreme Court in the case of Schenk versus United States (1919), he defended the thesis that statements, which propagate the forceful abolition of the government, may be punishable only if they take place in such circumstances that they result in direct and clear danger of commitment of criminal activities, was a dissenting opinion. The seven-person majority of justices of the U.S. Supreme Court (the sentence of Justice Holmes was supported by the equally liberal in the matter of the freedom of speech Justice Louis Brandeis) decided then that although the First Amendment of the U.S. Constitution, which states, among other things, that “Congress shall make no law…abridging the freedom of speech, or of the press”, protects (thanks to the 14th Amendment) the freedom of speech from restriction by state authorities, and not only, as the authorities of the state of New York, appearing on one side of this trial, tried to contend and how often was claimed at that time by the federal authorities in the legal literature, nevertheless guaranteed by it freedom is not absolute and does not prohibit state authorities from punishing for statements “inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace” – and more so does not prohibit the establishment of injunctions of such statements, which, as the court maintained, “endangering the foundations of organized government and threatening its overthrow by unlawful means”. The accepted in Gitlow’s case position that authorities may see as crime any propagation of activities against the law – even when the propagation of such activities has a purely abstract and general character, without calling for concrete criminal acts, and the possibility of effective revolutionary propaganda being completely minuscule, was in a final way abolished in the case of Brandenburg versus Ohio (1969), in which the U.S. Supreme Court uniformly stated that the guarantees of freedom of speech and press, as provided by the 1st and the 14th Amendments of the Constitution, “do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”. This last position holds true in American law at this time.

Bartłomiej Kozłowski

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The article was initially published (under a different title) in the section “Kartka z kalendarza” on the website Polska.pl.

Translated by: Karolina Kuczyc
January 13, 2008