A Note to Readers on the C.J. Hopkins Case

Misinterpreting the law, being outraged at prosecution and misunderstanding the criminal courts system

Tools of the trade, strewn across the table in a bar in Berlin

Düsseldorf, 24 January 2024
Filed under: Editorial

In reader comments on my reporting on the C.J. Hopkins swastika case, I’ve come across two recurring themes that I would like to address here, because I think this discussion would benefit all readers. The two opinions that have been, again and again, expressed by people in response to my writing about this case are:

1. You misinterpreted the law, as evidenced by Hopkins being acquitted

2. It is very bad for democracy / free speech that Hopkins was prosecuted

These points are somewhat connected. Let’s start with addressing the first one. I got pulled into this whole mess because, when coming across this case over the holidays, I had said that his indictment and prosecution were hardly surprising. I did not interpret the law at all in saying that. I tend to try really hard to avoid that kind of thing, because I am not a lawyer.

What I did was to interpret past indictments based on the law in question. Many readers do not seem to understand the important distinction here: I wasn’t at all talking about whether I thought that the prosecution was justified, was indeed needed or if Hopkins would win or lose the case. I was talking about how likely the prosecution was in the first place. And this brings us to the second point.

Many commenters who complain that Hopkins was indicted and prosecuted, do not seem to understand how the criminal courts system works. If someone reports something that, at first glance, looks like a crime, the police has no choice but to investigate it. Since it’s the job of the police to interpret the laws pretty strictly, they will often assume that the thing they are investigating was actually a crime. Enter the state prosecutor. Their job is to make sure that, what they also assume is a crime, is actually prosecutable. If it is, they will most likely prosecute. Their job is not to decide if the defendant is actually guilty or if the law is being interpreted in a just way. That is the job of judges. A prosecutor’s job is to prosecute.

So if you look at the law in question and at what Hopkins tweeted, it’s pretty easy to see how law enforcement could see it as a prosecutable crime. This is why, when I said it wasn’t surprising that the prosecution happened, I tried to look at the situation from the prosecutor’s viewpoint. I did not try to predict what a judge would decide, because I am not qualified to do that. So why, then, didn’t I focus on if this law was applied justly?

Having Your Cake and Eating It, Too

Because, to me, that is of little importance. I explained in my first article about this case that I did not like this law. And I also explained why. Therefore my remedy for this whole situation is not to complain about prosecutors, or about how law enforcement got tipped off to the tweets, but simply to reform the law. If you do not like what happened to C.J. Hopkins, if you agree with me that free speech is one of the most important features of a sturdy democratic society, than you need to ask yourself if the law in question is actually a good idea. In other words: Your focus should be on the legislature, not on the judicial system and the executive — they are simply doing their jobs.

This is why I don’t understand Hopkins’ weird attitude of, on the one hand, saying that he “likes this law” and then, on the other hand, being “very angry” that he was prosecuted. I mean, what is it? Do you want strict laws against Nazi symbols or do you want the right to be able to use these symbols to make a point, no matter what? You can’t have your cake and eat it, too. As it stands, the situation in Germany is pretty clear and has once again been borne out by this judgement: If you use a swastika as part of your artworks or as your rhetorical method to educate people or something along those lines, then it is quite possibly legal to do that. But you shouldn't be surprised if you’re indicted and are going to have to go through an arduous court process in order to have this established definitively.

None of this is a scandal or anti-democratic or a symptom of a totalitarian system. It is an expected result of the courts system in a democratic state under the rule of law and the laws that are currently on the books. If you don’t like the law in question, there are legitimate ways of advocating for a change. Otherwise, you’ll have to accept that this is the way it currently works over here.

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