The Open Secret

What, if anything, is the link between freedom of speech and the Holocaust?

Agents of genocide: The Governor of the Polish General Government, Hans Frank (center), with senior members of his administration, 1942

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My recent article on Substack, “A Gaffe for the Ages,” generated a fair number of comments. Most of them agreed with me about the absurdity and cluelessness of CBS News anchor Margaret Brennen’s claim that “free speech weaponized genocide” in Germany during the Nazi era. But others sought to defend what she said, sometimes rudely, and still others posed a counterfactual: Suppose the pre-Nazi German government had tried to derail the Nazi movement by suppressing freedom of speech? For instance, what if Hitler’s political memoir, Mein Kampf, had been banned? Might that have prevented the Nazi seizure of power, and by extension the Final Solution?

As Mr. Orwell observed, no argument is refuted until it has had a fair hearing, so instead of summarily dismissing these claims and suggestions, let’s discuss them.

It so happens that the government of the Weimar Republic did try to suppress the Nazi Party by various measures that in America, we would categorize as First Amendment violations. There were hate speech laws on the books, and during the Kampfzeit, (time of the struggle for power) as the Nazis called it, there were various bans imposed on the Party and on Hitler himself, who was prohibited from speaking in public in many of the Länder (states) between 1925 and 1927. There were also bans on Nazi Party newspapers, on street marches, and on wearing the Party uniform in public. However, these anti-Nazi sallies were sporadic and usually short-lived.

But could a serious attempt to suppress the Nazi Party, which by 1929-30 had become a genuine mass movement, have checked Hitler’s rise to power? That seems doubtful, as it would certainly have required a nationwide police action, backed by the Army. Given the political and economic situation in Germany at the time, this was never a realistic possibility. The governments before Hitler’s appointment as chancellor were weak and ineffectual, unsupported by a Reichstag majority, reliant on presidential emergency powers. Nor could the loyalty of the police and the Army necessarily be relied upon. Democracy and the will to defend it were moribund if not dead in the last few years of the Republic, and an attempt to suppress the Nazi Party by force entailed a serious risk of civil war.

As for Mein Kampf, banning a book that scarcely any German ever read in full would hardly have stalled the momentum of Hitler’s rise. It was of course a perennial best seller during the twelve-year lifespan of the Thousand-Year Reich—but for most people it was a coffee-table book, displayed as a patent of loyalty to the regime.

This brings us to the larger question, compelled by Ms. Brennen’s claim: Is it fair and accurate to draw a straight line between freedom of speech and the Nazi campaign to exterminate the Jews of Europe?

While it would be idle to deny that Hitler, Goebbels, and the Nazi Party exploited freedom of speech during the Kampfzeit, it disappeared in Germany on January 30, 1933, the day that President von Hindenburg appointed Hitler as chancellor. And on that day, the Final Solution, the Endlösung, did not exist, except in embryo form, as a program to make Germany itself judenrein—clean of Jews.

To achieve that goal, between 1933 and 1939, the National Socialist regime systematically stripped German Jews of their citizenship rights and excluded them from the mainstream of society. Jews were expelled from the civil service and the officer corps of the armed forces. They were expelled from the professions; for example, Jewish physicians were prohibited from treating German patients. Jews living in Germany who were citizens of other countries were deported. Both marriage and extramarital sexual relations between Jews and Germans were prohibited. These and other restrictions were formalized in the notorious Nuremberg Laws (1935).

The stated goal of these policies was to force the Jews of Germany to emigrate. But this proved problematical, since many countries, including the United States, were disinclined to take in large numbers of Jewish immigrants. Plans, rather fanciful, to relocate Germany’s Jews en masse to Madagascar or Palestine fell through. Up to 1939, therefore, the regime had to content itself with persecution, repression, and periodic outbursts of violence like the Kristalnacht pogrom (November 9-10, 1938). On the eve of war in 1939, only around half of German Jews had left the country.

Historians are generally agreed that it was the Second World War, and particularly Germany’s occupation of Poland and the western USSR, that radicalized the Nazi regime’s attitude toward the Jews. There were almost three and a half million Jews living in Poland in September 1939. In the USSR, there were another three million Jews. And in the countries of Eastern Europe that to a greater or lesser degree came under German control, there were hundreds of thousands more—445,000 in Hungary alone. Thus in the eyes of the Nazis, the “Jewish Question” had suddenly become much larger and much more urgent. Not just Germany proper but Greater Germany, the coming empire, the whole of Europe up to the Ural Mountains, had to be made judenrein.

The regime had already gained experience with the systematic elimination of undesirables via the Aktion T4 program, the mass killing of “undesirables”: people with disabilities including mental illness, mental retardation, congenital disabilities, and chronic illnesses. Aktion T4 ran from September 1939 through 1945 and is estimated to have killed up to 300,000 people. The methods employed included lethal injection, shooting and diesel exhaust in improvised gas chambers. These methods were scaled up and refined to facilitate the Final Solution.

The war itself facilitated genocide in several ways. War hysteria was a useful motivating force: With Germany engaged in a struggle for its existence, portraying Jewry as an existential threat to the nation made it easier for the agents of genocide to rationalize their actions. War also facilitated the secrecy deemed necessary to carry out the Final Solution. And Germany’s eastern conquests, particularly that area of Poland called the General Government, provided a killing ground that was remote from prying eyes.

After the war, many Germans protested that they knew nothing of the Final Solution, which took place so far away from their towns and villages. But though they may not have known the details, they did know, or at least suspect, that terrible things were happening in the east. What had become of the Jews of Germany? One knew that they’d been deported—but to where, and to what fate? Answers to those questions came from soldiers on leave from the Eastern Front, SS and police troops who were involved in this or that aspect of the genocide, civilian administrators, and military government officials in the occupied eastern territories. All such people, speaking sotto voce to family and friends, contributed to the swirl of disquieting rumors that circulated in Germany during the war. The Final Solution was an open secret.

But freedom of speech was not “weaponized” to enable the mass extermination of six million Jews and countless hundreds of thousands of other victims. The converse was the case: The fog of war and the regime’s suppression of the rights embodied in our First Amendment facilitated a conspiracy of silence effective enough to let the machinery of death grind on without interference, almost to the end.