Testing the Boundaries

BERLIN —  Of all the gadflies tormenting the German body politic, two are especially annoying to authorities, though it is hard to say which they would more like to swat: the mischievous habitues of cyberspace, putting pornography and other forms of unwholesomeness on the Internet, or the hard-liners of the old East German Communist Party, today restructured--some would say retrenched--as the Party of Democratic Socialism.

Now, in Angela Marquardt, German prosecutors have both pests neatly rolled up in one.

Marquardt, a socialist Joan of Arc with Technicolor hair, is scheduled to go to trial today in Germany’s most recent attempt to sort out what is and what is not proscribed electronic speech.

Germany is one of the more venturesome countries in this frontier realm of the law, having already indicted the head of CompuServe Corp.’s German subsidiary on pornography charges and begun investigations of various other online services.

Felix Somm, the CompuServe executive, wasn’t accused of cranking out pornography himself, but of unknowingly making it available on his network. His case, which angered both international business people and Internet devotees, is still open, and he has resigned his position.

Now comes Marquardt: The former PDS deputy chair put a link on her home page, referring readers to the August 1996 issue of the Berlin underground newspaper Radikal. With a few clicks of the mouse, a visitor to her home page can thus jump to Radikal, which is practically unavailable in Germany, and read its clinically competent instructions for sabotaging trains.

Which is hardly an academic matter in Germany. Protesters here have already tried to block trains carrying everything from soon-to-be-deported asylum-seekers to nuclear waste. In some cases, protesters have stood relatively harmlessly on the tracks in blocking formation. But in other cases, they have succeeded in snagging trains with grappling hooks hung from overpasses, shutting down rail service for hours.

German officials say they support free speech in general, but want to halt dissemination of certain “criminal texts,” such as articles encouraging people to commit crimes like these.

History-conscious Germany has tried to criminalize other forms of speech as well, such as child pornography or denials that the Holocaust took place. Displaying the swastika is illegal here, as is sending a neo-Nazi newsletter through the mail.

Most Germans not only tolerate these restrictions but welcome them. An American 1st Amendment absolutist might frown, but Germans argue that it is the Americans who are naive: Germany knows firsthand, they say, what miseries can befall a society when a lunatic master-propagandist like Joseph Goebbels is given free rein.

Marquardt’s indictment, like Somm’s before it, represents an attempt to extend these postwar traditions from the print media into cyberspace--a tricky proposition, because the Internet knows no national boundaries and can’t be governed by domestic press laws, however well accepted they are at home.

“If you want to regulate the Internet, you can’t apply normal press and media legislation, but that is precisely what they are doing in Germany,” says Hermann Neus, chairman of the telecommunications and multimedia committee of the American Chamber of Commerce in Germany. “It’s baroque! I sometimes feel like a foreigner here, even though I’m German.”

Marquardt’s case, experts say, is the first in which the defendant is the creator of a home page and the alleged offense is creating a link leading visitors to a “criminal text.”

In the issue of Radikal that Marquardt links visitors to, the writers first tell readers how to locate railway switch boxes, then add: “What you do with the contents of this switch box is up to your imagination. The possibilities run from cutting the cable (with an insulated tool, of course) to total destruction.”

Anonymous Radikal writers revealed that they had tried placing ignition devices in two switch boxes on the busy Berlin-Magdeburg line but that this gambit “turned out to be a flop.”

“We welcome a public discussion of [such] militant actions,” they wrote, “in order . . . to give other people the possibility of carrying out direct actions themselves.”

Marquardt, 26, says she does not advocate violence to advance political goals and says she didn’t put the link on her home page as a way of urging people to sabotage trains. “I do not like everything in that magazine,” she said.

“But I think it’s important to carry on these discussions in public, in order to keep violence from becoming glorified,” she said. “The deeper you drive such discussions underground, the greater the mythology around violence grows.”

Self-serving nonsense, retorts the Berlin prosecutor’s office.

“She refers to freedom of opinion, but at the same time she completely forgets that freedom of opinion is valid only within the framework of the applicable laws,” spokesman Ruediger Reiff said. “One such law is, no one is allowed to encourage someone else to commit a crime. You can’t publish instructions for how to sabotage a train without being punished for it.”

Though Marquardt didn’t compose the illegal texts herself, added Reiff, she knowingly made it easier for people to read them, and that, too, is a crime. “This case can be compared to that of a person who stuffs Radikal into people’s mailboxes, knowing what it contains,” Reiff said. “Ms. Marquardt has not written these texts herself, but she has contributed to their dissemination.”

But Marquardt says: “That’s like punishing the spoon because you don’t like the soup. It’s not the Internet’s fault that there are such things as child pornography, right-wing extremism or the publication Radikal.”

This matter comes just as German legislators are trying to enact a new communications law, which, among other things, attempts to codify the question of who is liable for the propagation of illegal forms of electronic speech. In general, the proposed law appears to release from liability access providers, such as CompuServe, that unknowingly introduce texts that are illegal in Germany.

The law has already passed the lower house of Parliament and is expected to go through the upper house in early July and take effect Aug. 1.

A spokesman for CompuServe in Ohio said his firm had not yet examined the bill and could not say how it would affect CompuServe operations in Germany.

Other communications industry players here expressed relief that the proposal appears to help firms like CompuServe. But they noted that it does not address a number of significant matters in which there is inherent ambiguity--including the question of possible prosecution of link creators such as Marquardt.

“The German law is well-intentioned, but it is not crisp enough,” the American Chamber’s Neus said. “So in the future, things will have to be resolved by the courts. And in Germany, before you can get to the constitutional court, it takes five years. Until then, you have to obey the law, even if it is stupid. Of course, this is not the best situation for investors.”

While noting that he disagrees with her far-left politics, Neus praised Marquardt for her willingness to test the new electronic free-speech law in the courts. “She is a very brave, and a very brilliant, lady,” he said. “I wish there were more people like her. Perhaps she belongs to the wrong political party.”

But Reiff, of the Berlin prosecutor’s office, argued that Marquardt is just grandstanding.

“This [case] gives her the chance to express her opinions in public, something she normally wouldn’t be able to do,” he said. He was referring to the Party of Democratic Socialism’s inability to attract any sort of following outside of the former East Germany.

Meanwhile, Marquardt finds irony in her situation as a former citizen of the repressed East running afoul of the censors in the free West.

“I don’t want to compare this to East Germany, because there it was much worse,” she said. “But it’s remarkable that a democracy like the Federal Republic of Germany, which always criticized the lack of freedom of opinion in the East, should practice this kind of censorship. I would think that Germany could withstand such opposing discussions.”