Although government ministries had been discussing a comprehensive theater law internally since 1906, it was not until late 1911 that a formal commission consisting of representatives of government and of the theater industry was established to draft such a law. Throughout 1912 and 1913 the commission met, circulated drafts, solicited industry reaction, and refined its proposals. Much to the dismay of liberals, who hoped it would repeal both licensing and censorship, the final draft of the theater law presented to the imperial government in February 1914 did neither. It not only retained licensing of theater operators but imposed even more stringent requirements on applicants for certain kinds of entertainments. And it left the issue of prior theater censorship in the hands of each state, as before.79 The bill (actually a series of amendments to the Commercial Code) was to be submitted for Reichstag approval in July 1914, but with the outbreak of war the nation immediately turned to more pressing matters and the theater law was shelved.
Once the deputy commanding generals assumed authority over all civil administration under the wartime state of siege, legal restraints on theaters became both more stringent and more uniform. On 4 August 1914, immediately after Germany's declaration of war against France, public theaters (and many other amusements) in Berlin and most other German cities were ordered closed. When allowed to reopen a week or two later, their hours were curtailed and theaters had to conclude performances by 11 PM (after 1916, by 10 PM). In many localities authorities began refusing all applications for theater licenses on the grounds such undertakings were “not in keeping with the seriousness of the present times.”80 Where prior censorship of theaters existed, police censors were now not to make any but the most routine decisions on submitted works without first obtaining approval of the military commander. Private performances of a work (as well as all public lectures), which before the war were immune from censorship, could now be forbidden if local authorities considered it inappropriate or offensive given the “seriousness of the times.” Spontaneous additions to or deviations from the officially approved script were more severely punished. Whereas before the war any drama that had once been approved by the local censor did not need to be resubmitted again if others wanted to perform it later, authorities now declared that any works approved before the outbreak of war had to be resubmitted for approval.81 More significantly, bans issued under the commanders' authority could be appealed only to the minister of war, not through the administrative law courts. These new lines of authority and responsibility circumvented the civilian Interior Ministry; during the war the Prussian minister of the interior had to plead with his local police officials, who had gotten used to dealing directly with military headquarters on censorship matters, to please also keep him informed about their theater censorship decisions and policy recommendations.82
The military soon found it a “regrettable inconvenience” (bedauerliche Mißstand) that censorship of theaters and other popular entertainments was so uneven throughout the nation and that in some regions there was none at all. To facilitate “a more uniform execution of censorship,” therefore, several district military commanders used their emergency powers to institute formal prior censorship of theaters in cities where it had not existed.83
Such arrangements were valid only for the duration of the war; a permanent, nationwide legal settlement of censorship and other issues affecting the theater industry was still sorely needed. In late March 1917, therefore, the Reichstag formally requested the chancellor to resubmit the theater law of1914 for parliamentary approval. By then, however, the civil truce had long since broken down and serious political, social, and economic divisions plagued the war-weary nation. Since Chancellor Bethmann-Hollweg feared debate over the theater law would simply lead to “sharp differences of opinions and conflicting interests” that Germany could ill afford, he ignored the Reichstag's request.84 In May 1917 various professional associations representing Germany's writers, playwrights, stage managers, and other theater professionals held a large public meeting in Berlin to voice concern about the further erosion of freedoms on the stage since 1914 (one participant bemoaned that “already during peacetime the German stage lived in a state of emergency under a spiritual state of siege”), but their proclamations fell on equally deaf ears.85 Nothing further was done to alter Germany's complex system of theater censorship until the imperial order was overthrown and all forms of censorship were abolished on 12 November 1918.
Conclusion
Compared to other nations, even the most liberal, there was nothing peculiar about the laws restraining free literary expression in Germany. Like most of its neighbors, the empire exercised no prepublication censorship over books, journals, newspapers, and other publications, but authorities could (and did) prosecute authors or suppress certain publications that violated the nation's laws, especially those regarding blasphemy, obscenity, or lèse majesté. Moreover, like many other Western nations, Germany required privately owned commercial theaters to be licensed and required most of these to obtain prior state approval for any dramas they performed. In these ways, state oversight of literary life was no different in the German Empire than elsewhere.
Of course the devil is in the details, and what mattered in the end was how those laws were worded and interpreted, how often and impartially they were applied, and how severely offenders were punished. For example, while other nations also prohibited and punished expressions of blasphemy or lèse majesté, Germany generally defined these offenses more broadly or inflexibly and levied heavier punishments (see chapters 3 and 5). On the other hand the German legal definition of obscenity was narrower than that used in England and the US and less likely to be applied against genuine art and literature (see chapter 6). In any case the state's ability to intervene in German literary life was limited by strict, clearly defined legal guidelines and procedures. To suppress a published literary work, much less punish its author, required persuading a panel of judges—or in some states, a lay jury—that the criminal laws had been violated. This was by no means easy to do: as we shall see, German courts (and especially lay juries) frequently dismissed such charges or, if the case went to trial, acquitted the defendants, even during the repressive 1890s. Since they could never be sure whether a confiscation or criminal indictment would succeed, and since officials who overstepped their legal authority were often called to account by the independent and relatively impartial German courts (and by a vigorous free press), even the most conservative authorities were cautious about intervening against literary publications and when they did, were usually careful to observe all the proper legal procedures. 86
Theater censorship, the most pervasive and intrusive form of state intervention into literary life and one that took place on a daily basis throughout much of the empire, was also circumscribed and mitigated by legal safeguards and court decisions. The practice itself was (unsuccessfully) challenged several times in state courts. While local police censors enjoyed much latitude in censoring dramatic performances, in Prussia, Saxony, and several other states (although not Bavaria) their decisions were frequently appealed to an administrative law court. The possibility of legal appeal distinguished most of the German Empire from Britain, where the London theater censor's decisions were final. The administrative law courts sought to articulate increasingly clear and stringent criteria for banning performances and regularly overruled censors' decisions. Although some of those verdicts infuriated the emperor, he could do little to curb these courts' independence.
Such legalism served to curb arbitrary, capricious, impulsive, or idiosyncratic actions by the censoring authorities. Yet Germany's decentralized federal structure and the resulting fragmentation of its legal and administrative systems created a certain confusion, unpredictability, and even arbitrariness concerning censorship decisions within the nation as a whole. Laws, legal procedures, censorship policies, and criteria for granting theater licenses differed from state to state and