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Jewish resistance to National Socialism in Weimar Germany depended heavily on legal action. Germany's Jewish population lacked the numbers, the cohesion, and the geographic concentration to compete as an entity in politics. Direct retaliation, seeking to control the streets in the manner of the Social Democratic Reichsbanner or the KPD (Kommunistische Partei Deutschlands), was unthinkable to a heavily bourgeois minority community that had spent a century emphasizing its respectability. Intellectual refutation of an essentially antiintellectual movement tended toward preaching to the converted and convinced.1 Dialogue, however, was not the only means of dealing with racism. However pervasive antisemitism may have been in the Second Reich, it never became a systematic, official policy. Its public advocates instead formed one group among that network of principled interest groups that contributed so much to Germany's relative ungovernability.
In any plural society functioning below the level of open violence, the legal process is likely to be a major agency of conflict resolution among self- serving interest groups. So it had been in Imperial Germany. German Jews were no strangers to antisemitism, but it was the kind of antisemitism that could be fought in the courts more readily than in the streets or on public platforms. Bureaucrats might be and often were unsympathetic, or ignorant of Jewish affairs. They could, however, by and large be trusted to enforce laws protecting civil and religious rights- particularly when prodded down the path of righteousness by well-prepared cases presented by good lawyers. There seemed no reason to be less optimistic about prospects for similar action in the Weimar Republic.2
In the 1920s, at least, Germany's Jewish communities had another major reason for resorting to law as a weapon against the Nazis. National Socialism, for all its universal and transcendental aspects, was still essentially a local movement. Its appeal depended heavily on local issues and grievances, usually mobilized by a few specific, charismatic personalities. Successful legal action against such regional chieftains was one means of diminishing the Nazi movement's credibility and respectability among uncommitted voters. Moreover, the character and behavior of many prominent Nazis seemed to invite legal action.3 But what form should such action take? How could it be conducted most effectively?
The prospects and the limits of using Weimar's courts to fight Nazi antisemitism are indicated in the campaigns waged by Jewish individuals and organizations against Julius Streicher. As editor of Nuremberg's notorious antisemitic newspaper Der Sffirmer, as Gauleiter of Franconia, and as one of Adolf Hitler's few intimates, he established during the Weimar years a reputation as "Jew-baiter Number One" in the hierarchy of National Socialism. The violence of his oratory and the vulgarity of his behavior alienated even his party comrades. His record of fines and prison sentences was unique, even in a movement whose leaders often boasted of their convictions in Weimar courts.4
But German Jews soon discovered that legal action in the Weimar Republic against the kind of antisemitism represented by a man like Streicher and a movement like National Socialism faced problems differing from those met and overcome under the Empire.
The alleged failure of the Weimar Republic's police and court systems with respect to the right wing has become a virtual cliche. Sometimes the legal structure is described as indifferent or hostile to republican principles; in other accounts, it emerges as strangled by the silken cord of procedural safeguards.5 This essay does not propose to challenge the existence of conservative bias in Weimar's courts. It offers, rather, a set of structural and institutional factors that, far more than generalized prejudices, handicapped the effective conduct of legal action against Nazi antisernitism between 1918 and 1933.
Weimar Germany's legal traditions were those of code law rather than case law. Its legal ethic was positivistic rather than based on natural-law concepts. Reduced to its simplest terms, this meant an emphasis on enforcing laws as they were written. In principle at least, there was little or no room for what the Nazis would later call "healthy public opinion." The attorney's craft involved neither playing to emotions nor collecting precedents, but rather finding in the legal codes articles and clauses that were relevant to his argument.
Critics from the Right and the Left were fond of describing this as "paragraph justice," sacrificing the sense of issues for mechanical reference citation. Certainly it fostered a professionalization of Weimar's courtrooms, and the tendency was further enhanced in the 1920s by a series of reforms that largely replaced juries in criminal cases by the Schoffengericht. This tribunal included both laymen and jurists but tended to be dominated, naturally enough, by the trained specialists.6
From a Jewish perspective, the most affirmative legal procedures against Nazis were criminal prosecutions initiated by the authorities. But in exactly this area, Weimar's legal system encountered a paradox. The kinds of charges that could be made to stick against Nazis like Julius Streicher, particularly when Hitler ordained the "legal path to power" after his release from Landsberg prison, did not carry severe penalties. Whatever National Socialism's ultimate designs on the Weimar Republic, its local notables could seldom be accused of specific offenses more serious than making inflammatory speeches, illegally publishing a newspaper, or disturbing the peace. This was in sharp contrast to German Communists, whose programs advocating direct action and violent revolution offered ample opportunities for successful prosecution apart from any bias on the part of the courts.7
Often, moreover, the evidence even for such charges against Nazis depended heavily on information from police reporters sent to observe political meetings. In an era prior to portable tape recorders, with speakers seldom using prepared texts, questions of who said what could be extremely difficult to prove in court beyond a reasonable doubt. Even the issue of what constituted a band, as opposed to a drum corps, could become a subject of debate.8
Even when successfully concluded, prosecution for such offenses was commonly viewed by courts and police alike as a waste of time, producing results in no way corresponding to the effort involved. Minimum sentences allowable under the law were often no more than a few weeks or months in jail, accompanied by correspondingly limited fines. By the time any reasonably competent defense attorney completed the process of filing appeals, the whole process amounted to little more than harassment, with the alleged offender back on the streets almost before his paperwork was processed.
The Nazis were skilled in operating at the legal system's fringes. National Socialists seldom had trouble finding attorneys willing and able to manipulate a complex, often contradictory structure in the interests of their clients. The motives of the attorneys were mixed. Streicher's longtime lawyer, Harms Krafft, seems to have acted from a combination of ideological conviction, professional pride, and financial considerations. Nazi cases were a steady source of income and publicity. In 1925, for example, Krafft informed his client that the total cost of one particular trial would be in the neighborhood of 12,000 marks, with a quarter of the sum required immediately and as much as possible of the whole in cash.9 But Krafft also developed into a first-rate trial lawyer, able to stand against the best the prosecutors could offer.
Krafft's principal client, moreover, was a man well able to make a favorable courtroom impression. The rhetoric of patriotism was a familiar defense in Weimar Germany for everything from petty theft to political murder. And Julius Streicher was an authentic war hero. He had been given a battlefield commission in recognition of his skill and held Bavaria's highest decorations for bravery. He had returned from the battlefield to the honorable calling of schoolteacher-a calling he unwillingly abandoned when his political convictions made it impossible for him to keep silent any longer in the face of Germany's degradations. So, at least, ran the defense's line of argument in most Streicher trials. Even when there was no lay jury to be impressed by the rhetoric, courts frequently took it into account, at least in imposing penalties.10
After 1924 Streicher had still another card to play. In that year he was elected to the Bavarian Landtag, a status conferring parliamentary immunity. This was not an automatic license for misbehavior. Nevertheless, it made prosecution conditional upon the suspension of the offending deputy's immunity by the Landtag. Originally immunity was a liberal measure, designed to prevent interrupting parliamentary processes by petty harassment. The question of a deputy's right to reject his immunity for any reason was at best open. The right was considered public, not private: a privilege of parliament and ultimately of the electorate. In Bavaria, indeed, suspension of that right was originally intended to favor the deputy, allowing him to initiate libel suits to protect his honor. By 1928 the procedure had changed to allow a deputy who was also an editor to be called to account for libelous statements in his newspaper. On the whole, however, delegates from all the parties, right to left, were reluctant to approve the process. It was a form of professional courtesy. The politicians also feared to set a precedent that might someday work against them. Any prosecutor who insisted on the suspension of immunity for any reason short of a major felony ran a corresponding risk of making enemies no career-minded official could contemplate with equanimity.11
Relatively few Nazis before 1930 could claim parliamentary immunity. Nevertheless, Streicher's status as a legislator highlights another, more general reason why Weimar's courts were reluctant systematically to initiate criminal charges against National Socialists. Four decades of experience with Social Democracy under the Empire had taught them wisdom. Socialist politicians and newspapers had been subjected to every twist and turn of the legal system, plus a broad spectrum of quasi-legal measures. All that was achieved was more publicity. Well before the Republic's foundation, an increasing number of police officials and judges had concluded that a political movement with a sufficiently large cadre of members and a sufficiently broad base of support could not be destroyed by the normal processes of law, except at disproportionate cost to the legal system itself.12
Streicher and his movement might not be political outlaws, but they also did not have a free hand. Although antisemitism as such was not illegal in the Weimar Republic, its manifestations could be challenged by private citizens in two ways. One involved libel suits, private actions initiated by groups or individuals seeking redress for unwarranted insults. The other required demanding prosecution under two paragraphs of the Weimar criminal code. Paragraph 130 involved the suppression of speeches or writings calculated to incite class violence; Paragraph 166 forbade "offenses against religion," whether Christian or Jewish.
From the beginning of his public life, Julius Streicher was submerged in libel suits. In this area, his outstanding Jewish opponent was Nuremberg's Social Democratic lawyer Max Silssheim. Silssheim was an assimilated Jew, a man to whom neither religious affiliation nor ethnic heritage was particularly important. But he also proved one of National Socialism's most formidable legal adversaries during the Kampfzeit. Streicher's first conviction resulted from a lawsuit based on a series of attacks on Siissheim published in a v61kisch newspaper. Both on his own behalf and as principal attorney of Nuremberg's anti-Nazi mayor Hermann Luppe, Silssheim. fought Streicher to a standstill until his death from natural causes in 1933, just after the Machtergreifung. His repeated courtroom successes indicate the potential of legal action properly and systematically applied.13 Individual libel actions, however, had their limits. In 1925 Streicher was taken to court by a Nuremberg city official, Julius Fleischmann. The case had a political background. Nuremberg, like many German cities in the Weimar era, was characterized by an expanding municipal government under a powerful, assertive mayor. This represented a significant change from earlier, more modest patterns of administration, particularly because of Mayor Luppe's commitment to make up for four years of wartime neglect of housing and public services.
The other side of that particular coin was a geometric expansion of government authority in most phases of everyday life. Even before 1914, a broad spectrum of conflicting communal pressures had existed in Nuremberg. The new approach to city government combined with Luppe's personality, which could be both abrasive and authoritarian, generated a significant level of protest and antagonism. For Streicher the best way to mobilize that antagonism was by a drumfire of vicious personal attacks on Luppe and key members of his administration.14
For a year, Fleischmarm was pilloried for everything from alleged rudeness to subordinates to alleged favoring of tax relief for businesses at the expense of housing for workers. Then in May 1925, Der Sturmer began a series of articles accusing Fleischmarm of stealing socks and underwear from the baggage of his comrades while they were in the front lines. According to Streicher, this "typical Jew" had found himself a safe rear-echelon post while better men died for Germany. Fleischmann's superiors regarded him as too cowardly to lead a squad and too stupid to command a platoon, but his light fingers nevertheless earned him a distinctive nickname: Sockenmauser.15
In the heavily nationalistic climate of postwar Nuremberg, only a committed leftist could afford to ignore such accusations. Fleischmarm filed libel charges. In court it was revealed that most of Streicher's information came from an ex-paymaster of Fleischmann's battalion, an admitted antisernite who also acknowledged that he had not witnessed the thefts. Instead, a corporal directly responsible for the baggage had "confessed" that Fleischmann had tricked him into stealing from the packs. According to the paymaster, Fleischmann had pleaded for mercy until the supply officer and the battalion commander agreed to drop the matter. Streicher's "case" appeared to have collapsed definitively when the corporal iri question denied under oath that Fleischmann ever stole anything.
In the course of the trial, however, the unfortunate official's entire wartime career was brought before the public. Julius Fleischmann had volunteered, like so many German men, at the outbreak of war in 1914. As a university graduate, he was quickly promoted to the grade of Vizefeldwebel, a rough equivalent to staff sergeant or platoon sergeant. Then in the battle of Verdun, while commanding a halfplatoon during an attack, he lost touch with his men, appearing on the objective only after its capture and consolidation. Shortly afterwards he requested without success, first that his unit be withdrawn, and then that he be allowed to go to the rear because of illness. Instead, Fleischmann's superior relieved him of his command and ordered him back to the trenches.
Fleischmann remained under a cloud. Although he was transferred to another battalion, his reputation accompanied him. His new commander regarded him as a coward who did not attempt to rehabilitate himself, and made no secret of that negative opinion during the trial. The unfortunate Fleischmann found himself not only pleading that he had been pinned down by a French machine gun on the day in question, but also testifying that he never wore army-issue socks because of foot problems.
The court found Streicher guilty and fined him 900 marks plus costs. The penalty, higher than usual in such cases, reflected the court's judgment that after so many years it no longer mattered whether a junior NCO had failed to do his full duty in a fire fight. But Streicher had succeeded in creating a climate of hurrah-patriotism that led even the court sententiously to describe Fleischmann's conduct as "unsoldierly." The nickname Sockenmauser continued to generate laughter in parlors and taverns. Der Starmer's editor did not exaggerate when he boasted that if he had been sentenced for libel, Fleischmann was convicted of cowardice.16
The Fleischmann case has been described here in such detail because it was a paradigm of the individual libel suits filed against Der Sffirmer during the Weimar era. Streicher's unofficial motto as editor of Der Stiirmer was "Something always sticks." (Es bleibt immer etwas hfingen.) In the 1920s, Franconia and Nuremberg were still networks of neighborhoods ruled in large part by what anthropologists call a shame culture. It was exceedingly difficult to contemplate with equanimity the public exposure of one's private life, especially for the business and professional men who were Streicher's favorite targets. Streicher's accusations, moreover, were not always entirely invented; "a small kernel of truth" might be the basis for a massive lie.17 But any libel suit puts the plaintiff on trial alongside the defendant. Few people with anything in their pasts that might be remotely worth concealing were willing to risk being dragged through the mud in open court, no matter how favorable the final verdict.
Nor did victory mean vindication. Weimar's libel legislation was a heritage from the Second Empire. It was designed to protect honorable people from the mistakes or the malice of those less honorable. The shame of being found guilty was considered a major deterrent. In that context, although courts that sentenced Streicher often mentioned that he was not acting from "base motives," this opinion did not necessarily indicate sympathy for his point of view. Libel was a legal concept, but German law recognized a difference between libels perpetrated from principled conviction and those reflecting malice, or a desire for profit to be obtained from the fabrication of a scandal. Social Democratic politicians, editors, and lawyers had long insisted on that particular point under the Empire. Now the shoe was on the other foot.18 Critiques of motive had no effect on politicized fanatics who gloried in punishment incurred for a righteous cause. German Jews obtained judgment after judgment against Streicher and his journalistic associates for every form of libel and slander. But these neither forced Streicher out of business nor deprived him of his political legitimacy among Franconia's voters.
Less risk of personal embarrassment was involved in seeking to charge Streicher and Der Sturmer with inciting to violence under Paragraph 130. A mercharit sent two copies of Der Starmer to the Central Franconian Ministry of the Interior, along with a letter declaring it a scandal that this sheet was allowed to besmirch the honor of worthy men. If local police forces could not suppress it, then higher authorities must act. A 68-year-old grain dealer asked the Dinkelsbiihl District Office to help prevent a Gasthaus across the street from hanging out Der Sturmer weekly. Its slogans and cartoons, the complainant declared, were damaging a business which had had high standing in the community since 1862.19 Similarly, when Streicher declared in Regensburg that it was every good German's duty to break the necks of Jews "morally," the local rabbi suggested to the city council that the difference between moral and physical neckbreaking was too subtle for him. When, however, the Regensburg prosecutor inquired into the possibility of pressing charges, he learned that the Bavarian Landtag was unlikely to lift Streicher's parliamentary immunity for such a statement. Short of a direct call to take to the streets, it was so difficult to prove legally that a specific newspaper article threatened public peace and safety that the politicians in practice gave themselves the benefit of the doubt.20 In 1929 the ReichsbundJudischer Frontsoldaten, a forthright defender of the honor of Jewish veterans, challenged Der Sturmer's masthead slogan, Die Juden sind unser Ungluck. The Reichsbund was informed that the slogan was too vague to be actionable.21
From the perspective of hindsight, such arguments seem naive. The officials making them emerge as raw material for concentration camps and execution squads in Hitler's emerging New Order.22 Yet the relationship between words and behavior remains difficult to establish-a point recently illustrated by the debate over antipornography legislation in the U.S. A German Jewish community historically committed to free speech and free thought was less than comfortable when cast in the role of censors. From the authorities' point of view, Henrich Gareis, head of the Polizeidirektion Niirnberg-Farth, was typical in vigorously insisting that he did his best to explain to groups and individuals what the police could and could not do in coping with anti-Jewish propaganda and activities. Not every criticism of a Jew was a self-evident crime. This might be obvious, but it was no less true.23 Moreover, as one rural district office put it, it was necessary for local authorities to maintain the confidence of all citizens in the troubled times facing Germany. This could not be done by deliberately harassing a party that included an increasing number of respectable men and women among its members and sympathizers. Nazis, too, had their legal rights.24
Such an attitude reflected an image familiar in Germany, that of public officials as above and outside political conflicts, acting as theoretically neutral umpires to resolve interest-group conflict. But the presumed neutrality that made action unlikely under Paragraph 130 suggested that Paragraph 166, crimes against religion, offered a promising alternative source of prosecutions. In March 1922, Streicher delivered a rambling speech in which he linked medieval anecdotes of Jews as ritual murderers to the recent disappearance of three Nuremberg children. Imperial Germany had witnessed several spectacular trials in which upholders of the ritual-murder legend were found guilty of religious libel. Paragraph 166 and the precedent seemed to apply.
A Schweinfurt court ruled that Streicher brought no proof of his allegations except legends. Whatever might have happened in 1322, there were no grounds to believe anything resembling ritual murder existed in Germany six centuries later. Streicher was therefore sentenced to two weeks in jail. An appellate court, however, reduced the sentence to a fine. Its grounds deserve examination. Attacks on the Jewish religion, the court declared, were liable to criminal penalties. But Streicher argued that his antisernitism was based not on religious, but on racial grounds. He had collected a mass of historical evidence which, he believed, supported his position. The judges could not deny out of hand the possibility that if the kind of dark and criminal superstitions described by Streicher did exist, they might lead to cruel deeds. In any case, it was not the court's responsibility to offer a legal ruling on the accuracy of Streicher's research. Streicher gave the impression of a man acting from conviction, even if he was a crackpot. A fine seemed a more suitable penalty than a "dishonorable" term in jail.25
An equivocal approach was also embodied in a decision rendered by the Schoffengericht of Coburg on 17 October 1924. That court acquitted Streicher of the charge of libeling the city's mayor by calling him a Jew. To call someone a Jew, the court declared, was not in itself a libel. The statement must be accompanied by attacks on the plaintiff's character or behavior. Streicher had declared that the mayor had flat feet. Since flat-footedness was "known to the court" as a frequent Jewish problem, Streicher's statement could be interpreted as exposing the mayor to ridicule. On the other hand, Streicher was a leader of the Franconian Nazi movement, One of the major elements of this movement was its racially based antisemitism. To rule this position illegal would be essentially a political judgment. The court therefore decided the case by not deciding it. Since the Coburg town council had pressed the charges, the court concluded that they were claiming the mayor as their employee. Since this was not the case, the plaintiffs had no standing, and the case was dismissed.26
A strong case can be made that such a decision could have been reached only in Coburg. This city had been a Nazi stronghold from the earliest days of the movement. Certainly a court expressing the opinion that Jews were flat- footed can hardly be described as a center of enlightenment.27 The ruling, however, cannot be entirely dismissed as antisemitism camouflaged as a legal decision. This small-town Schoffengericht had to grapple with an issue that was a key not only to the entire National Socialist movement, but also to the way in which the German Jewish community viewed itself and wished to be viewed under the law. Were German Jews anything other than German citizens of the Mosaic faith? Existing laws protected the Jewish religion. To extend legal recognition to the Jews as a class or a race could have unpleasant implications. The Streichers might be more easily punished, but their point would have been conceded: Jews would legally be a separate ethnic community. And even militant individuals and organizations among Germany's Jews were reluctant to accept the possible consequences of such a course of action. Not only did it challenge a century of collective affirmation as "German citizens of Mosaic faith"; it also suggested the possibility of being governed by laws differing from those applied to the rest of the country.
Streicher, in short, had found a legal loophole that he was able to turn to maximum advantage in the next decade. He and his attorneys continued to insist that his attacks on the Jews were politically motivated, and therefore part of his civic right to free speech. They were, moreover, attacks on the Jews as a race, not as a religion-and as a result not covered by Paragraph 166.
By the mid-1920s, it was clear that coping with Streicher's brand of antisemitism could not be left to individuals. The Frankenfiihrer's challenge demanded organization and determination-and a certain willingness to grapple with what Sartre eventually called the dirtyhands problem: the difficulty of combating evil without oneself becoming soiled by the methods employed.
Since its foundation in 1893 the Centralverein fur deutsche Smatsbarger jadischen Glaubens had kept a careful eye on all forms of antisemitism. Its tactics combined positive emphasis on Jews as full members of the German community with social pressure and legal action against anyone who attacked this position. This organization was a logical choice to challenge Streicher.28
The Centralverein opened its direct offensive against Der Sturmer in 1926, demanding that the authorities take action against an issue of the paper that featured an article on alleged ritual murder in Poland, accompanied by a lurid cartoon that showed Jews butchering a nude blonde and drinking her blood. The Centralverein described the material as insulting the God of all monotheistic religions. Refusing to proceed against Streicher meant that any libelous fanatic could besmirch the holiest beliefs of other groups and count on being shielded by the courts. What was the status of the Jewish religion when Streicher needed only to say that he was referring to the Jewish race in his fantastic charges in order to walk off scot-free?29
This powerful argument was met by Bavaria's best bureaucratese. The Nuremberg prosecutor conceded the Centralverein's right to disagree with the court's interpretation of the religious content of any given article in any given paper. But the concession only reinforced the prosecutor's point that questions of literary or theological interpretation were seldom subject to legal resolution.30
Here again, more than antisemitism or indifference was involved. The Republic's laws against religious libel were subject to consistent criticism from socialists, liberals, and freethinkers of every stripe, who regarded such legislation as a relic of a paternalistic sociopolitical order. The Centralverein was thus open to attack for trying to restrict free speech in a republic that, to its critics, already restricted too many freedoms.31
On a more technical level, German courts were aware of the difficulty of obtaining convictions for religious libel that carried more than token sentences. Prosecutors were reluctant to waste time on matters they considered more suitable for decision in the public forum than in the courtroom. And even when fines or prison terms were imposed, the possibility that they would deter repetition of the offense was virtually nil. The legal paragraphs and penalties involving blasphemy were aimed at village atheists, not politicized ideologues like Streicher.
The Centralverein also quickly discovered something the citizens of Nuremberg had known for years: Trials merely gave Streicher another public forum for his arguments. In the spring of 1928, Der Sffirmer was taken to court for one of its monotonously sernipornographic essays on "The Jew and the German Woman." When a Nuremberg court returned a verdict of acquittal, the Centralverein appealed the case to Munich. Streicher seized the opportunity to proclaim in open court that the Jews were out to destroy him. When the prosecutor protested, Streicher declared that the trial was not being held at his instigation and that anyone who tried to silence him had to be a better man than Streicher himself, who had fought for Germany while the prosecutor spent his war behind a desk. He concluded by proclaiming that if the official would step outside, he would give him a lesson in manners that anyone could understand.32
A day in jail for being ruled in contempt was a small price to pay for such publicity. How many little men, employees of every type, whitecollar or blue, read Streicher's words with envy? Here was a man who cringed before no one and nothing. Streicher even emerged as a vocal advocate of prison reform, including improved working conditions for the guards. He spent so much time behind bars that he knew the conditions in Bavaria's jails better than any bureaucrat.33
By the fall of 1928, the Centralverein of Bavaria decided that a more systematic offensive against Der Sturmer was necessary. Its legal department read the paper's every issue from April to October, then submitted its opinions. Der Stfirmer was described as objectively inaccurate and as an insult to peaceful Christians as well as Jews. But given existing legislation, it was for all practical purposes impossible to stop the sale of a particular issue of any newspaper unless it overtly incited to class hatred or high treason, or was clearly pornographic. In any case, by the time the machinery of the law took effect, a paper like Der Sturmer with its limited and loyal clientele was usually all but sold out. The best that could be achieved was the harassment of street vendors and small shopkeepers. On the other hand, if it was possible to prove that a paper's overall tone was offensive to religion, street sales could be forbidden, and stores could be required to check each issue for content. The attorney's advice, couched in cautious language, was to keep close watch on Der Sturmer for one major offense against Paragraph 166, then bring it to trial with every legal and intellectual source the Centralverebi could make available. Picking on smaller incidents was likely to generate a reverse effect from that intended.34
As they awaited their opportunity to strike, Centralverein officials continued to read every issue of Der Sturmer and offer support to those attacked in its pages. Few victims chose to act with that support. At the same time, Der Sturmer obstinately avoided breaking any major stories that invited legal action. Finally the Centralverein decided to proceed with the material at hand.
"The Great Nuremberg Ritual Murder Trial" began on 29 October 1929. The Centralverein's lawyers had built a case in two areas. The first charged Streicher, his associate Karl Holz, and Der Sturmer with presenting certain unsolved deaths as possible ritual murders. The tone of the articles in question, the plaintiffs declared, attacked all Jews through misinterpreted or misapplied Talmudic quotations-a clear attack on Judaism as a religion. The second category of charges involved the repeated assertions in Der Sturmer that Jews could commit perjury in gentile courts and were not required to respect gentile laws concerning property.
Expert Centralverein witnesses traced the origins of both lines of argument, demonstrating that they were purely theoretical legal devices dating from previous millennia. On the other hand, it was possible to cite quotation after quotation from Jewish law prohibiting perjury and dishonesty under any circumstances, condemning such behavior as punishable before God and threatening one's place in the World to Come. Streicher countered with his own stable of witnesses and citations, making a surprising amount of the defense presentation himself, without the frenzy that usually accompanied his public presentations.
In its decision, the court stressed the difficulty of evaluating exact meanings of certain sections of Jewish law, particularly when presented in translation. The judges agreed that it was difficult to determine the exact extent to which specific arguments in the Zohar, the Talmud, or the Torah might be considered valid in contemporary German society. They also conceded that the defendants gave the impression of being extraordinarily well-read in Jewish law and its esoterica. These very facts, however, worked to their condemnation. A man with the specific knowledge Streicher had manifested day after day in court should be well aware that he could not hope to use material dating from the Middle Ages to describe behavior patterns in the Weimar Republic. He should also be aware that the meanings of the passages cited were by no means as plain as Der Sturmer asserted week after week.
The accused were, in short, guilty as charged of libeling the Jewish religion under Paragraph 166 of the Weimar Penal Code. Streicher and Holz might leave the court to the accompaniment of a cheering, singing crowd of over 400 people, but the original verdict stood on appeal. Streicher was sentenced to two months in prison, Holz to three and a half months. The sentences represented a sharp reduction from the prosecution's recommendation of eight months for Streicher and ten for Holz. The court justified its decision on the grounds that the defendants had not acted from the "dishonorable" motive of personal gain. As was the case in earlier, similar decisions, the lighter sentences were not meant to suggest that Jews were fair game, but to indicate the political nature of Streicher's antisemitism. In effect, it was possible, the court ruled, to punish him for going too far in specific instances. The validity and the acceptability of his general political position, however, were not appropriate matters for the law to settle. That was up to Germany's voters.35
The trial made headlines throughout Germany. Streicher's racial views received more publicity than if Der Sturmer had been allowed to publish unchallenged. Most of the publicity was negative. Editors everywhere were shocked at the ignorance and vulgarity of Franconia's National Socialists. Yet within weeks of the verdict, the Nazi Party tripled its 1927 vote in the Thuringian Landtag elections. Within a year, the Reichstag elections marked a decisive breakthrough for the Nazis on the national level. In Nuremberg the Nazi vote increased from 24,000 in 1928 to 60,000-24 per cent of the votes cast. In some rural districts of Upper and Middle Franconia, over 40 per cent of the voters chose National Socialism.
Was the legal system, then, completely useless? Certainly exposing the Nazis in court had not deterred even local voters from casting their ballots for the movement. The Centralverein sought a new approach, one as yet untried by any opponents of Der Sturmer. Among Streicher's favorite slogans was Don't buy from Jews. (Kauft nicht bei Juden.) When challenged, he declared that this was a positive, not a negative, policy: Germans should patronize their own kind. His legal footing, however, was limited. Weimar's antiboycott legislation, dating from Imperial days, combined the principles of laissez-faire liberalism with a perspective originally antisocialist. Anything that might be interpreted as group action against a business or group of businesses was liable to legal penalty. Given reasonable evidence that Nazis were encouraging boycotts of specific businesses or professional men, courts had acted quickly and decisively. And the Centralverein had solid legal opinions that a representative Sturmer issue included at least three articles that could serve as the basis for pressing charges under the antiboycott laws.36
Principle was one thing, practice another. Boycott trials tended to reinforce images of the Jew as interested only in money. Attempts at fighting boycotts also required careful planning regarding choice of lawyers and collection of evidence. Verbal statements were difficult to try in court. Above all, the Centralverein advised, try to find three or four businessmen who could claim and prove economic hardship as a result of a boycott.37 Such recommendations might be good law, but especially in small towns they were virtually useless as advice. How many storekeepers would be willing to testify against their customers, particularly given the instability of Weimar's retail economy by the 1930s? And how many people would be willing to assume the increasing physical risks?
In the spring of 1932, the Centralverein informed the Ansbach District Office that the Jewish community of Leutershausen was being terrorized by Nazi hooligans whose deeds included window breaking. The reply was that the recent presidential election results in Leutershausen had been 791 votes for Hitler, 122 for Hindenburg, and 38 for Dusterberg, the candidate of the right-wing Stahlhelm. The attitudes suggested by such a voting profile were bound to cause "a certain concern" among Jews. The District Office had instructed the Leutershausen Gendarmerie to do all it could to alleviate this concern, and to furnish the Jews the legal protection to which they were entitled. But there were not enough policemen in Bavaria to provide emotional security for Jews living in such a Nazi stronghold.38 Such circumstances were not supportive of antiboycott activity.
Even as the Machtergreifung approached, Nazi agitators were not given a completely free hand. In April 1932, they plastered Nuremberg with posters bearing the slogan Die Juden sind unser Unglack. The local branch of the Centralverein protested to the police. The Nuremberg authorities decided that the placards could not be defined as a danger to public security. Their message, long familiar from the masthead of Der Sturmer, was not a direct incitement to violence. The Centralverein staged a protest meeting of its own and appealed to the Bavarian Ministry of the Interior. What had been locally tolerated for years as part of a newspaper, the Centralverein argued, was not necessarily acceptable as a political poster. The Munich authorities promptly agreed that the laws regulating public security could be interpreted to forbid this kind of inflammatory material.39
In October, with the Nazis at the doors of power, Der Sturmer once again directly experienced the legal limits of antisemitism. A gentile girl in the North German city of Paderborn, impregnated by the son of her Jewish employer, died when her lover bungled an abortion. He then tried to dispose of the corpse by dismembering it and distributing it about the countryside. The time and the circumstances seemed tailored for a Sturmer triumph. But when the paper presented the case as a ritual murder as opposed to a sex crime, it was suspended without ceremony, and its responsible editor tried and sentenced for religious libel.40
The familiar cliche that Weimar's legal system was not particularly interested in protecting Jews, and avoided doing so when it could, requires significant revision, at least in its Franconian context. The regional legal system included active and potential Nazi sympathizers. Yet in general, the courts of northern Bavaria sustained the Jewish legal position even in one of Nazism's strongholds. The problem lay less in the system than in the Nazi challenge to it. German courts were markedly reluctant to become involved in what they regarded, rightly or wrongly, as questions of partisan politics. Judges and prosecutors tended to see Streicher's Jewish accusers, the Centralverein in particular, as attempting to do in court what they could not do at the ballot box, namely, put Der Sturmer out of business and Streicher out of politics. Such beliefs gave an advantage to those forces, usually on the Righi, that were willing to play the game, at least on the surface. Nazis like Streicher stressed their adherence to the letter of the law until the German people gave them power to alter its spirit.
It might further be argued that the established pattern of Jewish protests against Nazi propaganda in general and Julius Streicher in particular produced an insensitivity almost as significant in its impact as overt hostility. A considerable proportion of the charges against Streicher during the rise of Nazism in Franconia was filed by citizens from the comfortable middle class- the kind oi people who, whatever their ethnic identity or formal political affiliation, traditionally expected to be treated with deference when they walked into a police station and who were always ready to go over an officer's head and complain to his superiors. Such an individual was not likely to generate much sympathy when he presented a familiar set of legally vague accusations with the demand that they be pursued immediately, particularly when it was increasingly clear that such charges led at best to time- consuming, inconclusive trials bringing no credit to any official involved.
The well-established problems of obtaining meaningful convictions for such charges as religious libel also clarify the negative attitude of local law-enforcing agencies toward Jewish anxieties. The offenses for which Streicher was repeatedly brought into court simply could not be stretched into penalties heavy enough to deter or silence their perpetrator.
An obvious response is that of Mr. Bumble, a character from Charles Dickens: the law is an ass, an idiot. Even during Weimar's life, political theorists like Carl Schmitt recognized the law's dangerous tendency to confuse legality with legitimacy, placing sworn enemies on the same footing as committed supporters in a vain effort to be acceptable to everyone. Certainly legal positivism, in all its complex ramifications, inhibited developing an activist approach to National Socialism in general, and to National Socialist antisemitism in particular. But this position had widespread support both among politicians of all persuasions who favored parliaments as the normal source of legislation, and in a social order that at everyday levels was significantly litigious. Keeping judges above the battle and restricting the scope of their decisions, as far as such things were possible, seemed a reasonable way of avoiding a collapse into Hobbesian chaos, with no one trusting the legal system enough to use it in matters of real importance.
The Weimar Republic's courts handed down sentences and judgments; they did not try to sway hearts and minds. Like many German institutions in the twentieth century, they chose the easier path. But our own experiences in the 1980s, which have shown too clearly the limits of judicial activism and judicial legislation, suggest that hostility to the Republic in general and Jews in particular were not the only causes of the court system's shortcomings in Weimar Germany.41
1. See Marjorie Lamberti, "Liberals, Socialists, and the Defence Against Antisemitism in the Wilhelminian Period," Leo Baeck Institute Yearbook 25 (1980):147-62; and PeterPulzer, "DiejCidische Beteilungan der Politik," in Juden im Wilhelmischen Deutschland, ed. W. E. Mosse and A. Paucker (Tilbingen, 1976), pp. 143-239. These essays demonstrate the Imperial roots of the limitations of direct Jewish involvement in the political process. For a discussion of the limits of rational arguments against biologically based racism, see Walter Zvi Bacharach, "Jews in Confrontation with Racist Antisemitism, 1879-1933," Leo Baeck Institute Yearbook 25 (1980): 197-219. See also Ruth Pierson, "German Jewish Identity in the Weimar Republic," Ph.D. diss., Yale University, 1970.
2. Studies of the evolution of Jewish self-defense under the Empire include Ismar Schorsch, Jewish Reactions to German Anti-Semitism (New York and Philadelphia, 1972); Marjorie Lamberti, Jewish Activism in Imperial Germany: The Struggle for Civil Equality (New Haven and London, 1978); and Jehucla Reinharz, Fatherland or Promised Land: The Dilemma of the German Jew, 1893- 1914 (Ann Arbor, 1975). Sanford Ragins in Jewish Responses to Anti-Semitism in Germany, 1870-1914 (Cincinnati, 1980) provides a useful critical survey. For a description of the structure and status of the antisemitic movement in Germany, see W. Jochmann, "Struktur und Funktion des deutschen Antisemitismus," in Juden im Wilhelmischen Deutschland, pp. 389-477; and Richard S. Levy, The Downfall of the AntiSemitic Political Parties in Germany (New Haven and London, 1975).
3. See, for example, Donald R. Tracy, "The Development of the National Socialist Party in Thuringia," Central European History 8, 1 (Mar. 1975): 23-50; Rainer Hambrecht, Der Aufstieg der NSDAP in Mittel- und Oberfranken (1925-1933) (Nuremberg, 1976); and Geoffrey Pridham, Hitler's Rise to Power: The History of the NSDAP in Bavaria, 1923-1933 (London, 1973).
4. For a discussion of Streicher's career, see Dennis E. Showalter, Little Man, What Now? "Der Sturmer" in the Weimar Republic (New Hamden, CT, 1982); and William P. Varg, The Number One Nazi few-Baiter: A Political Biography of Julius Streicher, Hitler's Chief Anti-Semitic Propagandist (New York, 1981).
5. See Emil Gumbel, Vom Fememord zur Reichskanzlei (Heidelberg, 1962); and H. and E. Hannover, Politische Justiz 1918-1933 (Frankfurt, 1960). For a more balanced treatment, see Hans Hattenauer, -Zur Lage der Justiz in der Weimarer Republik," in Weimar: Selbstpreisgabe einer Demokratie, ed. Karl D. Erdmann and H. Schulze (Diisseldorf, 1980), pp. 169-76. Donald L. Niewyk, "Jews and the Courts in Weimar Germany," Jewish Social Studies 38 (1975): 99-113 goes far to rehabilitate the legal system's objectivity where Jewish issues were concerned, but fails to develop some of the specific difficulties involved in making cases.
7. This revolutionary aspect of German Communism is particularly stressed in the GDR. See, for example, Kurt Finker, "Aufgaben und Rollen des Roten Frontkdmpferbundes in den Klassenschlachten der Weimarer Republik," Militfirgeschichte 13 (1974): 133-74; and R. Meister and H. Voigt, "Der Kampf der KPD ffir den Aufbau proletarischer Wehrorganisationen (Sommer 1921- Herbst 1923)," Militdrgeschichte 12 (1973): 525-33.
8. See the report of Nuremberg Police Commissioner Muselmann on 20 May 1928 and Streicher's reply of 8 June 1928 in Stanford, CA, Hoover Institution NSDAP Hauptarchiv [hereafter cited as HA], Microfilm Reel 85, Folder 1733.
10. For a discussion of Streicher's wartime career, see Manfred Ruhl, "Der Sturmer und sein Herausgeber," Diplomarbeit, University of Erlangen, 1960, pp. 37ff.; and Carol Ehlers, "Nuremberg, Julius Streicher, and the Bourgeois Transition to Nazism," Ph.D. diss., University of Colorado, 1975, p. 78.
11. "Tagung der deutschen Parlamentsdirektion von 29. September bis 1. Oktober in Braunschweig," in Parlamentspraxis in der Weimarer Republik: Die Tagungsberichte der Vereinigung der deutschen Parlamentsdirektion 1925 bis 1933 (Dusseldorf, 1974), pp. 163-75. For a general discussion, see Paul Bockelmann, Die Unverfolgbarkeit der Abgeordneten nach deutschem Immunitdtsrecht (Gottingen, 1951).
12. See, for example, Alex Hall, Scandal, Sensation, and Social Democracy: The SPD Press and Wilhelmine Germany, 1890-1914 (Cambridge, 1977); Dieter Fricke, Bismarcks Prdtorianer: Die Berliner politische Polizei im Kampf gegen die deutsche Arbeiterbewegung 1871-1898 (East Berlin, 1962); and August Harvey Maehl, August Bebel: Shadow Emperor of the German Workers (Philadelphia, 1980).
13. For examples of Sussheim's successes, see the court decision of 21 Mar. 1922, reprinted in Julius Streicher im Kampf um sein Recht, Nachlass Streicher, AL 10; Nachlass Streicher, AL 79: Sdssheim's statement of 20 Oct. 1928; and the account of Streicher's 1928 disciplinary hearing before the Nuremberg Disciplinary Court for Non-judicial Officials in Varga, Number One Nazi Jew- Baiter, pp. 179-80.
14. See Hermann Hanschel, Oberburgermeister Hermann Luppe: Nurnberger Kommunalpolitik in der Weimarer Republik (Nuremberg, 1977); and for a more general discussion, W. Hoffman, Zwischen Rathaus und Reichs kanzlei: Die Oberburgermeister in der Kommunal- und Staatspolitik des Deutschen Reiches von 1890 bis 1933 (Stuttgart, 1974).
15. -Judische Frechheit im Rathaus," Der Sturmer [hereafter cited as DS1, 12/1924; "Oberfinanzrat Dr. Fleischmarm in seinem obrigkeitlichen Amt," DS, 7/1925; "Dr. Julius Fleischmann," DS, 19/1925; Karl Holz, "Der Einbruchdiebstahl des st5dt. Oberfinanzrates Dr. Julius Fleischmann," DS, 21/1925,
16. Nachlass Streicher, AL 76 includes much material about the trial, including the court decisions of 5.3.26 and 8.3.26. Compare the accounts in the conservative Frfinkische Kuricr of 17.10.25 with the articles "Der Sockenmauser Prozess," DS, 43/1925 and "Sockenmauser-Prozess," DS, 11/1926.
18. Hall, Scandal, Sensation, pp. 64ff.; and Peter Fliess, Freedom of the Press in the German Republic 1918-1933 (Baton Rouge, LA, 1955). For a contemporary discussion of libel as a legal offense, see Moritz Leipmann, Die Beleidigung (Berlin, 1919).
22. See such local histories as Utho Grieser, Himmlers Mann in Nurnberg (Nuremberg, 1971), pp. Iff ., 275ff.; Hambrecht, Der Aufstieg der NSDAP, pp. 275ff.; and Hanschel, Oberbiirgermeister Hermann Luppe, pp. 220ff.
24. Kdl 11, 689: report of District Officer Rothenburg, 8 Sept. 1931. v25. HA, 84/1730: judgment of 10 Nov. 1922. A complete copy is also available in Julius Streicher im Kampf um sein Recht, Nachlass Streicher, AL 10.
28. See Arnold Paucker, Der judische Abwehrkampf gegen Antisemitismus und Nationalsozialismus in den letzten Jahren der Weimarer Republik (Hamburg, 1968); idem, "Zur Problematik einer jildischen Abwehrstrategie in der deutschen Gesellschaft," in Juden im Wilhelmischen Deutschland, pp. 479548; and W. J. Cahnmann, "The Nazi Threat and the Central Verein: A Recollection," in Conference on Anti-Semitism, 1969, ed. H. A. Strauss (New York, 1969), pp. 27-36.
30. Ibid.: reports of 24 Sept. 1926, 25 Sept. 1926, and 26 Oct. 1926; HA, 86/1744: report of 11 Jan. 1929. Also see HA, 91/1884: report of 5 Nov. 1928, which discusses the general problem of making a case against a newspaper under Paragraph 130.
35. HA, 3A/498: copy of decision; HA, 24/499: report of 4 Nov. 1929. Compare the accounts in "Der grosse Nilrnberger Ritualmordprozess," DS, Sondernummer 2/1929; "Ritualmordprozesssturmer," DS, 50/1929; and "Juden und Germanen," DS, 51/1929.