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.
Read More: On the Unjust and Ridiculous Conviction of C.J. Hopkins