The Trial and Tribulations of C.J. Hopkins

(West) Germany's post-1945 'new consciousness' (Hans Mommsen) is under attack--not from Mr. Hopkins but from demographic and ideological changes, and his trials are drawing these into the open

A few days ago, American author, satirist, and Covid contrarian C.J. Hopkins was facing a judge in Berlin once more. In the long-running case—really, a ‘saga’—of tragicomical proportions, Mr. Hopkins, who stood accused of spreading National-Socialist propaganda in his satirical quest against the Branch Covidian nonsense, faced a strange situation:

He had actually won his case in the first instance in which the state was the plaintiff.

Acquittal for US author CJ Hopkins

The public (sic) prosecutor, however, then filed an appeal against the court ruling and sought a retrial. The below piece by Eva Sudholt is both a good account of what transpired a few days ago and actually quite eve-handed about it, and I herewith bring you my translation, with emphases [and snark] added.

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The Provocateur

A Swastika on a Corona Mask: This Book Cover Lands an American Satirist in Court in Berlin. 

By Eva Sudholt, Die Zeit, no. 44, 16 Oct. 2024 [source; archived version]

One week before the trial at the Berlin Court of Appeal, Christopher Jaynes Hopkins, 63, has a bad feeling. The autumn air is mild, Indian summer in Kreuzberg, but Hopkins has no real sense of the beauty of his neighbourhood these days. The provocateur seems despondent. For the second time this year, the American author has to appear in court because he has allegedly violated a peculiarity in the German penal code. Of all things, he says, against a law that he actually favours, which he has only interpreted more generously for himself, says the professional satirist.

Title 86 of the German Criminal Code prohibits the dissemination of propaganda material from anti-constitutional organisations and carries a fine or a prison sentence of up to three years. Prohibited propaganda material includes the Sturmlied of the SA, portraits of Adolf Hitler and Rudolf Hess, the Horst Wessel song, and symbols such as the Wolfsangel, the Celtic cross, the SS skull and crossbones, or, more obviously, the swastika, which got Hopkins into trouble with the law.

The swastika, the epitome of fascist symbolism in the Western world, the ultimate provocation and yet surprisingly clumsy and awkward for an author who has been celebrated in British reviews for his plays as a wordsmith, a particularly eloquent, subtle writer.

Kreuzberg has been Hopkins’ home for 20 years, where he lives and works and where his wife Julie, a New York Jew, runs a yoga studio. Hopkins, born in Miami, has lived on the West Coast and for a long time in New York, because you have to be on the off-Broadway stage to be successful as a playwright. When he won prizes with the theatre play ‘Horse Country’, a grotesque critical of capitalism, a mixture of Beckett’s Waiting for Godot and an overlong Monty Python sketch, success led C.J. Hopkins, as he now called himself, to Europe and, in 2004, to Germany. At the time, Berlin felt like San Francisco in the 1980s: free, crazy, not as hectic as New York, its inhabitants relaxed and tolerant of opinions, not bellicose, as he had experienced his fellow countrymen at the time of the second Iraq war. In Berlin, he thought at the time, nobody would let him tell them what to think. In this respect, he feels like a betrayed today. Humanly disappointed by a great love.

Hopkins Calls Himself a ‘Free Speech Absolutist’

20 years later, Hopkins is on trial in Berlin, from his point of view: because he wanted to symbolically warn of a newly emerging totalitarianism in the coronavirus era with the photo of a face mask on which he had a swastika digitally mounted, which he disseminated via Twitter. From the perspective of the public prosecutor’s office: because he violated Title 86 of the German Criminal Code with these two tweets [I mean, can you believe it?].

The ban on anti-constitutional symbols serves to preserve political peace in the Federal Republic of Germany [does it?]; their banishment from public life should be so comprehensive that any appearance of a revival or toleration of banned organisations is avoided [no worries, as Ignazio Silone told us back in 1945, ‘the Fascism of tomorrow will never say “I am Fascism”. It will say: “I am anti-Fascism”’, hence that point is quite moot]. If this communicative taboo is weakened, there is a danger that the swastika could soon become naturalised again in such a way that it can also be used by Nazi friends with impunity [so, ‘inclusion™’ and ‘diversity™’ aren’t ‘strenghts™’ at all times, you see…].

Hopkins calls himself a ‘free speech absolutist’ and only wants to make an exception for Germany. He supports the ban on Nazi licence plates [you can’t have letter/number combos, such as, e.g., ‘AH 2004’ or the like (which stands for ‘Adolf Hitler 20 April’) on vanity plates] and does not want to see neo-Nazis with swastikas on German streets [no-one does; I’d personally add that I don’t want to see ‘Pride™’ flags of any stripes on public buildings either, but that’s about ‘Love™’ and not ‘Hate™’, isn’t it?]. However, title 86 is ‘very clear about how and why Nazi symbols may or may not be displayed’, he says. The problem is ‘not the law, but its reinterpretation by the Berlin public prosecutor's office’. [and this is where it gets really tricky, esp. if we consider the drastic leeway typically afforded to artists: remember when Roger Waters went to Berlin last spring and did his ‘The Wall’ staging—he, too, was under criminal investigation by the Berlin Police for ‘incitement of hate’, or Volksverhetzung: true story, as per the Berliner Zeitung’s reporting]

When coronavirus first hit the headlines in spring 2020, Hopkins was in Berlin giving writing courses for up-and-coming authors. One participant had travelled from northern Italy, where the virus was rampant, and infected everyone, including him. He was unwell for a week or ten days, then he was back on his feet. Soon, however, the WHO reported alarming figures: Covid had a global mortality rate of 3.4%. A figure that could not be maintained, but the panic had long been in the world, says Hopkins, and his liberal circle of friends in Berlin had also been put on permanent alert by the instructions of various authorities. ‘A pathologised society’, he says. People had settled into the ‘new normalcy’ [orig. Neue Normalität, the new normal] without resistance: with lockdowns, contact bans, denunciation of offences, social distancing, compulsory masks, and finally, says Hopkins, the ‘segregation of people into vaccinated and unvaccinated’.

With the restriction of fundamental rights and the widespread unity [sic] in the media, he saw a new totalitarianism emerging, not just in Germany but worldwide. Not in the sense of a global plot by power elites that conspiracy theorists saw at work at the time, a manoeuvre by billionaires staging a pandemic to take over the world—no, says Hopkins, he does not believe in such horror stories, he is only frightened by the ‘ugly side of human nature’: the drive to obey, even against one’s own conscience. Every one of his plays is about this to some extent, he says, about authoritarianism and propaganda, about how they come about and how they work.

During the coronavirus pandemic, Hopkins began to write down his observations in sarcastically bitter texts on his blog. In May 2022, he self-published them as a book under the title The Rise of the New Normal Reich—based on William L. Shirer’s 1960 work The Rise and Fall of the Third Reich, which shows the swastika on a black cover. For his book, he places it on a white face mask [the surgical ones that don’t work vs. airborne viruses].

A link between the German corona measures and the crimes against humanity under National Socialism? Hopkins says that this was not his intention, but rather that he is annoyed by his critics’ black-and-white view of the Nazi era, because this dictatorship did not begin with terror and mass murder, but with new rules and laws that were supported by the German community.

In August 2022, Hopkins was informed by Amazon that his book would not be available in Germany, Austria, and the Netherlands due to the illustration. Shortly before this, he had posted the swastika mask twice on Twitter with the statement that masks are nothing more than ‘symbols of ideological conformity’ and a link to an interview with Karl Lauterbach, in which the health minister says the sentence that, in Hopkins' eyes, sums up the coronavirus policy: ‘The mask always sends out a signal.’

‘Exaggerated Dramatisation’

In August 2023, charges are brought against C.J. Hopkins. The judge at the local court criticises his Nazi comparison as ‘oblivious to history’, calls him a ‘nutjob’ [orig. Schwurbler, a derogatory slur used for ‘Covid deniers’ and ‘mandate protesters’ in recent years] in court, but nevertheless stated that in Hopkins’ case

an objective observer can easily determine that the sign is used as an expression of opposition to the methods of the National Socialist regime.

There was therefore no criminal liability, and the posts were not suitable for ‘serving to revive National Socialist ideas or even former National Socialist organisations’ [that also how I interpreted them].

C.J. Hopkins is acquitted. The public prosecutor appeals. So there is another trial in autumn 2024. And this is accompanied by unusual circumstances.

Firstly, the venue. Room 145a in the Berlin Court of Appeals is a high-security area. Apart from the clothes on your body, nothing is allowed through the airlock; even watches, pens, and small change are confiscated at the entrance. Anyone who wants to take notes is handed notes and pens by the court security service. The security measures fuel the resentment of the spectators, a small group of supporters, including the journalist Aya Velázquez, who leaked the RKI files from the coronavirus years a few months ago, apparently with the help of an informant from the Robert Koch Institute; the trial is ‘a farce’, rumours are heard in the queue outside the courtroom, people like Hopkins are being vilified as dangerous criminals in this way [having never met Mr. Hopkins in person, I will say that he does not strike me as a ‘very dangerous individual™’ whose treatment requires that kind of…well, scrutiniy?].

Secondly, the appeal. In the German Code of Criminal Procedure, it is rare for a party to apply for a so-called ‘Sprungrevision’, i.e., to appeal directly to the highest instance to review a judgement, namely the Higher Regional Court (which in Berlin is the Court of Appeals). There is no doubt about Hopkins’ authorship, no new facts need to be presented, so an appeal before the Regional Court is not appropriate. At the request of the public prosecutor's office, the Court of Appeals is now only examining whether the judge assessed the case correctly in legal terms. And because the Court of Appeals has allowed the appeal, Hopkins considers his chances this morning to be negligible.

‘Do what you want with me,’ Hopkins says to the judge

Thirdly, the hearing. In criminal cases, appeal hearings at the highest instance are rare; it is often civil judgements that are to be reviewed by the Court of Appeals, in most cases custody disputes. And because such hearings are so rare, Hopkins’ hearing takes place in the only courtroom here that is designated for criminal cases. For months, the trial of a BND [Bundesnachrichtendienst, Germany’s CIA equivalent] employee and an accomplice accused of serious treason has been taking place in this courtroom under the strictest security precautions on other days. This is the only reason why the security standards also apply to Hopkins’ hearing, as it is intended to prevent surveillance technology from entering the carefully secured courtroom. Hopkins and his defence lawyer are unconvinced by this explanation, as they could have used a room for civil cases, says lawyer Friedemann Däblitz.

It is an unusual case that is being retried here, not least because this offence usually involves those who display such symbols out of adherence to National Socialism. This is why Hopkins’ case is so much about the correct interpretation of the paragraph.

Title 86 contains a so-called social adequacy clause. It stipulates that the ban does not apply ‘if the act serves civic education, defence against unconstitutional endeavours, art or science, research or teaching, reporting on current events or history or similar purposes’. This is why Jonathan Meese is allowed to give the Hitler salute with impunity during his theatre performance, and why Der Spiegel is allowed to print a German flag with a swastika on it on the cover of a report on the rise of right-wing extremism. This is why the investigations against the artist Ottmar Hörl, whose garden gnomes stretch their right arms upwards, were dropped—the contempt for Nazi ideology is already in the depiction, just like with badges and stickers with swastikas, which are thrown into rubbish bins, broken, or crossed out. Hopkins’ negative attitude, the public prosecutor’s office criticises, is not obvious at first glance. He is not criticising National Socialism with his illustration, but rather the corona measures and in this way trivialising the crimes of the Third Reich [I’ve recently penned an essay about this issue, and I’ll relink to it in the bottom lines: it’s a bit like the conflation of criticism of Israel vs. being labelled an anti-semite, isn’t it?].

Hopkins’ lawyer successfully challenged this view at first instance. Hopkins’ opposition was obvious and unambiguous, his intention was to ‘defend against unconstitutional endeavours’, as stipulated in the social adequacy clause. Lawyer Däblitz also focussed on this point this morning at the Court of Appeals. There is not much room for lively debate. The public prosecutor dispassionately presents her authority's objection to the acquittal in a few sentences, without presenting any new arguments [let alone new or supporting evidence…]. Instead, Hopkins uses his right to the last word for an emotional speech in which he once again tries to explain his intentions and ends with desperate words. ‘I've had enough of this game’, he says, ‘I’m not going to plead and appeal anymore’, and finally: ‘Do what you want with me.’

After a 20-minute break, the presiding judge Delia Neumann, as expected, overturns the judgement of the district court, saying that the acquittal does not stand up to legal scrutiny. There was no clear negative use in this case, but only an indirect one, Hopkins used the swastika for an ‘exaggerated dramatisation’ of the Covid measures he criticised, and this was ultimately also a trivialisation of the [sic] genocide by the National Socialists. The case will now go back to the district court to determine a sentence.

At the exit, Hopkins kisses his wife, who has been quietly following the proceedings along with the audience. His nervousness seems to have vanished, disappointment sets in, even though he had guessed the outcome. Title 86a ends with the following wording: ‘If the offence is minor, the court may refrain from imposing a sentence in accordance with this provision.’ A glimmer of hope for Hopkins?

His defence lawyer makes it clear that he is now focusing on the constitutional complaint in order to pre-empt the proceedings at the district court. ‘If it goes through, the guilty verdict would be null and void and the Court of Appeals would have to deal with the matter again, then taking into account the decision of the Federal Constitutional Court.’ His client is not interested in ‘getting off cheaply, but in getting justice’.

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Bottom Lines

As much as I sympathise personally with Mr. Hopkins, I think there’s a gigantic misunderstanding in how ‘the law’ works in continental Europe vs. the Anglosphere.

In the former context, a good deal of the legal culture derives from, first, Roman Law (as it was ‘rediscovered’ in the middle ages) and, secondly, from the Enlightenment (and its most prominent innovation is the Napoleonic Code Civil). In any event, most European states issued new Criminal and Civil Codes ‘around 1800’, and they reflect these kinds of traditions as well as the enlightened despotism of the age.

In the present context, the difference to the Anglophone legal culture couldn’t be more glaringly obvious (as well as un-intelligible to someone from that background): there exists no 1st Amendment in continental Europe, and the proverbial ‘letter of the law’ typically takes precedence.

As an aside, this is also one of the key reasons why, time and again, injustice is possible in Europe as everyone—from the lowliest court clerk to the supreme court judges, as well as everyone working in the application of ‘the law’ (e.g., public officials)—can placate their conscience far enough by pointing to ‘the law’. If ‘the law’ says something, it therefore is, irrespective of changing circumstances, the particulars of any case (here’s looking at you, Mr. Hopkins), or anything else.

C.J. Hopkins’ ‘thought-and-deed crime’, though, is something else.

On the face of it, it’s about the ‘correct’ view of the National Socialist era (1933-45) in German history.

Given Germany’s defeat, however, this discussion also—and perhaps more prominently so—pertains to the ‘correct’ view of that history by the victors of the Second World War (in Europe 1939-45).

And that is where things become…well, extra-tricky. For background, please see this piece from earlier this week:

German History and Memory is Tested to the Breaking Point

The main problem, it seems to this author and historian, isn’t that countries/societies lie to themselves about their past. ‘They’ actually do that all the time, and every now and then, there’s a re-evaluation or modification of views. It literally happens to each and everyone (and, by way of a comparison, just think about stuff you found ‘cool’ as a teen, as opposed to, say, your present positions on any of these issues).

As I wrote in that above-linked piece:

The problem here is that post-1945 Germany cannot go to war (in principle because of lack of ± everything) but doing so will likely bring down what remains of German identity that was so carefully (re)constructed after the Second World War.

In a way, successive German governments are caught between a rock and a hard place: they must go to war with Russia together with the West, but doing so is poised to destroy Germany. Not so much because of the physical destruction a war with Russia will likely cause, but also because it will be a de facto return to the policies espoused by German leaders and thinkers since the 1830s. Talk about irony here.

In fact, it might as well be that the true German ‘revolutionary’ in this regard would be—Bismarck whose so-called Reinsurance Treaty (Rückversicherungsvertrag) was a kind of ‘grand bargain’ with Tsarist Russia and the one moment of clarity in German foreign policy in the past 200 years that was not 112% in favour of waging ‘holy war’ against Russia. Talk about irony, once more.

If you don’t trust me on this, here’s renowned historian Hans Mommsen (as cited by Tom Brady in his 2009 German Histories, at 405):

For most Germans now going to Berlin, our history starts in 1945 or with the Holocaust…We have developed a new national consciousness, one formed from the terrible legacy of Auschwitz.

A bit further down (416, references omitted), Brady writes the following:

Following the twelve-year Nazi dictatorship, which attempted to install, under the name of ‘positive Christianity’, a racist civil religion above the existing confessions, postwar German politicians remained ultra-wary of establishing a democratic civil religion and tended to leave the custody of morality in the churches’ hands [they now afford that ‘privilege’ to NGOs]. Rolf Schieder explains how this functioned: ‘The German system of established churches and confessional competition has been responsible for the fact that the civil-religious division of labor between political and religious institutions is much more strictly managed than in the USA.’ Yet this order is now breaking down. Since the unification of the two Germanys in 1990, around 30 percent of the citizens adhere to no organized religion, the levels of practice among those who do is falling steadily, and a growing fraction of Germany’s population comprises non-Christian immigrants. However Germans of future generations deal with the issues these trends raise, it will not be in terms of confessions in the old sense.

The post-1945 consensus in the old West German Federal Republic is breaking down.

‘Reunification’ with the former GDR—really, a kind of ‘Anschluss 2.0’—brought a sizeable chunk of Germans into the new Bundesrepublik whose post-1945 ethos was not grounded in the ‘new consciousness’ alluded to by Hans Mommsen.

In addition, recent mass immigration of esp. non-Europeans has further ‘diluted’ both (in a strictly quantitative sense) the stock of West Germans who adhered to this post-1945 ‘new consciousness’.

Out of about 84m residents, Germany boasts a population of 13.9m who were ‘foreign-born’; but this number alone obscures a crucial fact: ‘in 2019, 40% children under 5 years old had migrant background’ (Wikipedia):

26% of Germans of any age group (up from 18,4% in 2008) and 39% of German children (up from 30% in 2008) had at least one parent born abroad…

In 2022, 41% of the under-15 age group had a migrant background, 36% of the 15 to 49-year-old age group had a migrant background and 19% of the age group above (50+)

All told, soon the share of those whose (only) connection to the ‘new consciousness’ will result from the German public school system will exceed the share of those from the old West German Bundesrepublik.

Once this happens, we may expect a certain amount of ‘turbulence’, both domestically and internationally.

These are the circumstances of the Kafkaesque trial and tribulations of C.J. Hopkins: it is an ‘old régime’ desperately using all its options to cling to power in the face of drastic demographic changes, which impart significant changes on Germany’s ‘new consciousness’.

What Mr. Hopkins has done, for better or worse, is putting his finger on a gaping wound that, so far, cannot be discussed openly in polite society for a variety of reasons.

That is Mr. Hopkins’ offence, and as much as I sympathise with his plight, I fear that the Constitutional Court, while holding perhaps comparable sentiments towards him, may rule against him nonetheless ‘for reasons of state’.

It wouldn’t be the first time this happened, and Mr. Hopkins’ fate is certainly not singular.

As a member of the German Kulturnation, I shall conclude by saying, ‘thank you’, Mr. Hopkins, for doing what, apparently, no German-speaker can bring himself to doing.