Twice in August 2022 the American playwright, satirist and longtime Berlin resident C.J. Hopkins tweeted cover art from his book on The Rise of the New Normal Reich. This art featured an image of a Covid-era medical mask with a barely-visible white swastika superimposed upon it. In his first tweet, Hopkins wrote that "Masks are symbols of ideological conformity. That's all that they are, and that's all they ever were. Stop pretending that they were ever anything else or get used to wearing them." In his second tweet, Hopkins simply quoted Health Minister Karl Lauterbach's notorious statement that "Masks always send a signal".

For those tweets, Amazon Germany promptly banned Hopkins's book, and eight months later the Berlin state prosecutor's office informed Hopkins that he was under investigation, because it believed his tweets violated German criminal statutes against "the use of symbols of unconstitutional and terrorist organisations". In January of this year, Hopkins was tried before the Tiergarten Berlin District Court and acquitted. In many countries that would be the end of it, but in Germany double jeopardy is not a thing. The prosecutor appealed, and Hopkins found himself on trial once again, this time before the Berlin Court of Appeals. Yesterday, the appellate court overturned his acquittal and found him guilty. He has been referred back to the Berlin District Court for sentencing.

I never tire of saying that there is no free speech in Germany, however much our Basic Law claims to guarantee freedom of expression. Yet Hopkins's conviction is farcical even in the context of German criminal statutes and jurisprudence. To understand why, we must wade through some technicalities, but it's worth it, I promise.

A variety of legal mechanisms have been used to forbid the reproduction of Nazi symbols and slogans since Germany's defeat in World War II. The purpose is to impose a general taboo on the discursive accoutrements of National Socialism. Since 1968, these prohibitions occur in sections 86 and 86a of the German Criminal Code. These statutes forbid the "dissemination" of propaganda material or symbols that are "intended to further the activities of a former National Socialist organisation".

The words "intended to further" are very important here. Using National Socialist symbols and phrases critically or with hostility is generally not forbidden. And there is a further exemption as well. Later on in the statute we read that no criminal offence occurs "if the act [of reproduction or dissemination] serves to further civic information", if it is intended "to prevent unconstitutional activities, to promote the arts or science, research or teaching, reporting about current or historical events, or similar purposes". This is the so-called "social appropriateness clause", and courts have interpreted it widely, applying it even to the ironic or sarcastic use of Nazi symbols.

This is not just crazy legal exegesis from Eugyppius. Clivia von Dewitz, a sitting judge who wrote her doctoral thesis precisely on this area of German law, said much the same two weeks ago in an editorial for the Berliner Zeitung. In that piece, she explained why "the Tiergarten District Court was fully justified in acquitting C.J. Hopkins":

In its judgment, the court concluded that the defendant had not committed a criminal offence under the symbol-prohibition statute... with his two posts on X. According to the judgment, both posts... "made it readily apparent, when the associated text... was taken into account, that the allusion to National Socialism was expressed in an overtly negative sense".

Furthermore, the posts were not at all intended to promote the revival of National Socialist ideas or even former National Socialist organisations. This is because people with neo-Nazi aims would never use the symbols of National Socialist organisations in a visual context expressing their rejection of them... In short, the court found that an American citizen had used Nazi symbolism without intending to glorify the Nazi regime in any way.

Indeed, the prosecutor's argument - that Hopkins had made himself criminally liable because his anti-Nazi sentiments were not immediately clear "upon reading or considering his caption" - is totally idiotic. To be confused about this at all, you'd have to also think Hopkins was promoting Covid masks with his tweets and even celebrating them because they are medically useless symbols of ideological conformity. Could any minimally sentient person believe this was his message? Anything, up to and including "I disavow this swastika and I hate Nazis" can become ambiguous with sufficient stupidity.

In short, Hopkins's case was not even close, because it was a) basically impossible to read his tweets as promoting National Socialism in any way, and b) even if some ambiguity attached to a) (which it does not), the "social appropriateness" clause exempts him. Thus, in order to overturn Hopkins's acquittal and convict him, the Berlin Appellate Court had to devise a remarkably unconvincing masterpiece in special pleading:

Presiding [Appellate] Judge Delia Naumann emphasised that the law... is about banishing Nazi symbolism from the public sphere. The threat of punishment is intended to prevent its revival and normalisation. Therefore, it is not enough to invoke the use of the symbol in the context of criticising state action, according to Naumann. Hopkins had only criticised the Covid restrictions, in particular the compulsory wearing of masks, but had not openly and unequivocally expressed his rejection of National Socialism.

In the opinion of the appellate court, it is not enough that the comparison of arbitrary Nazi rule with the criticised state actions also entails a critical view of National Socialism. Instead, a clear criticism of National Socialism must also be expressed, otherwise National Socialism would be trivialised. Naumann pointed out that using swastika relativised the National Socialist genocide of six million Jews.

The Appellate Court here invents a special category of discourse - "criticising state action" - where more stringent rules apply. As Hopkins and his defence attorney point out, it is totally fine to use the swastika to accuse one's political opponents of totalitarianism or fascism, as Der Spiegel did in May 2024:

That image "criticise[s]" whatever it is that Spiegel editors imagine "Right-wing extremism" to be, but it also nowhere "openly and unequivocally express[es]" any "rejection of National Socialism." (Amusingly, the Spiegel cover is far easier to misread in a pro-Nazi sense than Hopkins's mask tweets. Anyone totally ignorant of what Der Spiegel is and what it stands for could easily assume it was some kind of neo-Nazi message, while you have to be a total moron to read Hopkins's tweets as affirming National Socialism.)

Der Spiegel doesn't have to do that because it is not criticising the state. Hopkins, however, used a swastika to attack Government Covid policies, and so he faces much greater scrutiny. The hostile journalists of the Legal Tribune Online (linked above), desperate to make the appellate court's arguments coherent, speculate that the Spiegel cover is exempt because it falls under the "social appropriateness" exception, but the problem is that there is no way Hopkins should not receive the same protection. Only the judge's plain distinction can make sense of the ruling: "Criticising state action" is another category of criticism, separate from all other categories of criticism, and it is subject to harsher limitations. Ironically, if actual card-carrying neo-Nazis ever were to take control of our political system, this legal standard would make it much harder for dissidents to point that out.

None of this matters, of course. Appeals courts get to be wrong and it doesn't matter, you're just fucked. Hopkins's conviction is now legally binding; to have it overturned, he'll have to appeal to the Federal Constitutional Court.

This whole sorry story is about two things:

It is, most directly and in the first place, one in a series of prosecutions intended to harass critics of the Covidian hygiene dictatorship. German authorities are specifically eager to target those guilty of "delegitimising the state", a new category of pre-criminal political offence dreamed up by the bureaucrats in the Federal Office for the Protection of the Constitution during the Covid pandemic. Being house arrested and coerced into accepting doubtful and experimental medical injections caused many to notice that the Federal Republic was engaging in authoritarian tactics remarkably reminiscent of illiberal regimes, so our constitutional protectors decided they needed to put a stop to this via all the authoritarian and illiberal methods at their disposal.

But that's only the immediate the context. Hopkins's conviction, more broadly and in the second place, is about who may wield the weapons of history. The decades-long tabu that the German state has laid upon National Socialism now endows the Hitler era with remarkable polemical force. The state and its supporters would like to secure for themselves the exclusive use of the Nazi cudgel, and to define the political opposition as the only appropriate target of Nazi comparisons. Yesterday, the Berlin Appellate Court outlined a novel legal theory that should make enforcing its monopoly ever so slightly easier. It comes just in time, because the years ahead will be hard. The Federal Republic is growing every day more illiberal, as our elites become ever further detached from popular sentiment and the interests of their own people. If they are to stay in power, they will need to crack down on the ambient discontent of the rabble. They will do this by banning political parties, by intimidating ordinary people who dare to express their opinions and by prosecuting the odd satirist who says inconvenient things at inconvenient times by turning their own ideological shibboleths against them.

Although I suspect we disagree on many things, I consider Hopkins a friend, and I admire him for his courage and his stubbornness. His conviction comes at considerable personal cost, but I hope he recognises that it also hurts the malign forces who presently rule the Federal Republic, and damages the credibility of their efforts to instrumentalise the law for shallow, transparent political ends. That has been his service to Germany, and I will never forget it.
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