Some theaters were exempt from these punctilious controls. Royal court theaters (of which there approximately two dozen in the empire) were financed by the local king, duke, prince, or count but still normally open to the public. They were not subject to government licensing or censorship, but the royal intendants who operated them carefully avoided controversial modern works, filling their repertoires with safe classics instead. These officials (most of whom were high nobility with military or bureaucratic but little or no theatrical experience) also exercised their own careful prior censorship over scripts: Botho von Hülsen, for example, while serving as intendant of the Royal Theater in Berlin from 1869 to 1886, spent hours at night scrutinizing scripts word-by-word, eliminating anything that might be remotely offensive or carry a double meaning. It was no wonder the acerbic critic Maximilian Harden, surveying theatrical life in the capital, considered the Royal Theater boring and its “shameful repertoire” to be “simple artistic bankruptcy and the complete renunciation of any leading position in German theater life.”47 Not all court theaters were so stuffily conservative, however. In small Saxe-Meiningen, Duke Georg II developed one of Europe's most innovative and influential theaters and laid important groundwork for the modern, realistic theater; in 1886 his Meininger Players held Germany's first public performances of Ibsen's controversial Gespenster (Ghosts). Munich's royal Residenztheater had performed Ibsen's Stützen der Gesellschaft (Pillars of Society) in 1878 and Ein Puppenheim (A Doll's House) in 1880, while the Hoftheater of Stuttgart premiered his Wenn wir Toten erwachen (When We Dead Awaken) in 1900.
The more than one hundred municipal or state theaters owned and operated by a local government were also not subject to police censorship, although since the municipal government oversaw their repertoires and operations, they too exercised a self-censorship that resulted in inoffensive, noncontroversial offerings. Thus in Münster the director of the municipally owned theater had to receive permission from the city council for every work to be performed, while in Mannheim the city's National Theater established a standing subcommittee of board members to “ensure that no uncensored works are performed, and no offense against religion, good morals, and also no politically inflammatory material takes place.”48
“Private” theaters on the other hand, which were also exempt, posed constant headaches for the authorities. The licensing requirements of the Commercial Code and local ordinances requiring prior censorship of theatrical works applied only to commercial (gewerbmäßig) theaters operated for a profit—that is, those charging admission—and to public performances. Clubs or associations whose members staged informal performances solely for their own enjoyment or for educational purposes were not required to obtain an operating license, provided they did not charge admission and used only amateur performers who received no pay. Likewise, any private theatrical performance that was closed to the general public did not need any prior police approval. Thus church and educational organizations, amateur theatrical clubs, literary societies, and various other “closed” (that is, private) associations could freely stage theatrical productions for their own members or for a small circle of invited guests as long as the general public was excluded.
To avoid or evade state censorship, many authors and theater directors naturally claimed their works or productions were private in nature, not intended for public consumption or dissemination, and so immune from censors. German authorities thus continually faced the problem of defining the boundary between public and private, distinguishing between the public literary and theatrical activities that were legally censorable and the “private” ones that were not.
There were a surprisingly large number of private, amateur theatrical societies theoretically exempt from all state control. Munich contained over forty such groups in the period between 1890 and 1914. In Berlin, the police reported some 393 associations of this kind in 1871 and 889 in 1880; by 1890 a total of 1,301 private theatrical associations had been registered in the capital, although, as police noted, “it can probably be assumed that a large number of these have since been dissolved or no longer exist in reality.”49
Some of these groups were legitimate private, nonprofit undertakings with praiseworthy educational or artistic goals, such as Otto Brahm's Freie Bühne Verein (Free Stage Association). Founded in 1889 and modeled on Andre Antoine's Théâtre Libre in Paris, the Freie Bühne held private performances on a subscription basis for members only and was created to stage Naturalist plays banned (or unlikely to be approved) by the censor or new works that commercial theaters were unlikely to produce for financial reasons. (Julius Hart, one of the founders, maintained the creation of the Freie Bühne was “above all a way of rapping the nose of the police censor.”50) Within a year it attracted over one thousand members from the educated middle class (primarily writers, artists, academics, journalists, and members of the free professions) and soon spawned a number of imitators in other cities (Hamburg-Altona, Leipzig, Hanover, Munich, Nuremberg) and even a working-class Freie Volksbühne (Free People's Stage, discussed in chapter 4).
Many private theaters, however, were really attempts to evade licensing and censorship regulations (as well as fire and safety ordinances) by exploiting the legal confusion over the distinction between public and private, amateur and commercial. For example, many so-called nonprofit theaters did in fact charge admission for their performances by selling mandatory programs at the door, charging everyone a stiff coat check fee, or requiring “voluntary contributions” from everyone in the audience. And some groups that claimed to be staging only private performances for their members were openly catering to the general public: the performances were often widely advertised beforehand and club memberships were sold at the door. Operators of legitimate theaters frequently complained about the unfair competition they faced from these unlicensed, uncensored enterprises masquerading as private or amateur theatrical associations.
To curb such abuses and evasions, police in Berlin, Munich, and other cities continually scrutinized uncensored private performances to ensure they were indeed closed to the general public; if a supposedly nonprofit theater was collecting admission in some other guise, vigilant police required it to obtain an operating license under the Commercial Code.51 More importantly, authorities suspected private theatrical societies like the Freie Volksbühne not only of holding public performances but also of being outlets for subversive, socialist ideas and so waged a long struggle to force these theaters to submit to the same censorship as commercial ones (see chapter 4). Throughout the imperial era the state continually sought to broaden the legal definitions of “public” and “commercial activity” in hopes of thwarting those theatrical playhouses that tried to escape state control by claiming private or nonprofit status. Originally the administrative law courts resisted such attempts, but after the 1890s the judiciary supported a more circumscribed definition of what constituted a noncensorable private performance, especially where socialist organizations were involved.52
Local Discretion or National Uniformity?Theater Law Between Left and Right
The extensive controls local authorities wielded over the public stage and the wide regional variations in such laws became an increasingly contentious issue after 1890. Politicians on both the Right and the Left challenged the right of local authorities to regulate and censor theaters—the Right because they considered local police too lax, the Left because they considered them too severe. After 1890 both Right and Left attempted to remove jurisdiction over theatrical life from individual cities and states and place it instead under uniform federal law, be it the Criminal Code or the Commercial Code. To do so, however, involved a transfer of power not only from the separate German states to the federal government but also from the appointed administrative bureaucracy (police and government) to the popularly-elected Reichstag, which wrote federal law, and to the independent judiciary, which interpreted it. Because such changes would have upset the delicate constitutional balances of the Bismarckian empire—where every pressure was neutralized by a counterpressure and substantial barriers blocked any fundamental changes to the system, either progressive or reactionary—any attempts to reform German theater law were staunchly opposed and effectively blocked by the imperial government.
During