C.J. Hopkins Acquitted in Berlin
Court finds satirist's use of a swastika to criticise anti-pandemic measures legally justified
US-born playwright and political satirist C.J. Hopkins is of the firm opinion that countries in the West are threatened by what he calls "a new kind of totalitarianism". Living and working in Berlin, he says he saw this new form of totalitarianism manifest itself in the government's anti-pandemic measures. To protest what he saw as injustice in society, he posted two critical tweets in 2022 that equate face masks with the principal symbol of conformity of this new totalitarian state. To draw parallels between this new phenomenon and the Third Reich, as the culturally most prevalent example of totalitarianism in Germany, he included his book cover in these tweets. His book cover shows a medical mask superimposed with a swastika.
As a result, he was indicted under article 86a of the German criminal code (StGB), which prohibits the use of symbols of Nazi state organs — the swastika being the most widely known one — in many public contexts. Last year, the local district court in Berlin Tiergarten found him guilty of this crime and sentenced Hopkins to pay a fine of €3,600 or spend 60 days in jail. These proceedings were part of a Strafbefehl, a way for German courts to hold simplified and shortened court proceedings in cases of minor crimes. Hopkins appealed against this decision and appeared before the local district court (Amtsgericht Berlin Tiergarten) today to plead his case.
Punishment for Political Dissent
After about an hour and a half of proceedings, Hopkins was acquitted in both incidents of having used a swastika illegally. Having the last word after the prosecutor and his attorney, he read out a long statement, explaining that he was "very angry" at having to defend himself. Crying at times during his testimony, especially when he mentioned his Jewish wife, he explained that there could be absolutely no doubt in his opposition to the Nazi state — and totalitarianism of all kinds. He found it extremely insulting, he said, to be even accused in this way. He demanded the prosecution and the court "call things by their actual names": That he was being punished with this prosecution, not for having used a swastika as a symbol of the Third Reich or for having opposed democracy or the German constitution, but that he was being punished for having said things the government did not want to hear.
Hopkins underscored that he was all in favour of the law in question. "I like this law. I don't want Nazis to wave swastika flags in the streets of Berlin. I am a free speech absolutist, but I make an exception in this case to account for Germany's particular history." He said that it had been obvious that he had used the swastika in his tweets to oppose Nazism, to oppose totalitarianism and to warn his readers about it. He then asked the court that, if it had to convict him, to at least admit that his prosecution was about him opposing pandemic measures and not to fight people who sympathise with the Nazis as per the actual spirit of the law. In his well worded — if overly long — statement, he alleged pretty openly that the court would be working as part of a totalitarian system, and not in the name of democracy, if it were to convict him.
In her final statement, the judge made clear that she did not appreciate this rhetoric. The judge, who had earlier in the trial hinted that she might be acquitting the defendant when she pointedly asked the prosecutor if he needed to read out the defendant's criminal record1, pointed out that the very fact of the acquittal speaks for itself. That Hopkins would not have been acquitted under a totalitarian system. She rejected Hopkins charges against the court and suggested that what he saw as symbols of a new totalitarian state might have just been people complying (for example with mask mandates) out of consideration for others. With other words, she did not agree with what she saw as a personal opinion of the defendant. But she did agree with him that it was obvious, from his tweets in question, that he was strongly opposed to Nazi rule and the symbols of its state and as such, he clearly was not guilty as charged.
Ruckus in the Gallery
When the "not guilty" verdict was read out, the chambers erupted in cheers. There were about 50 people attending the proceedings, enough to necessitate a move to a bigger courtroom than was originally planned, but very few press. The only colleagues from a publication of note in attendance were from the German edition of The Epoch Times. No mainstream German publication I offered this piece to elected to buy it from me, either.2 When the cheers erupted, the judge was on the verge of throwing everyone out and continuing with the reading of her verdict in closed chambers.
When she ended her statement with the line that she considered the defendant's long statement, by and large, as "a load of ideological twaddle" but that this kind of thing "wasn't illegal after all" and she, as such, had to acquit him, there was another short outburst, this time of outrage, from the gallery. Hopkins had obviously brought fans. And they very nearly cost us the ability to report on the judge's justification for her judgement.
The prosecution had demanded to fine Hopkins €1,800; the court decision is not final yet, as the state prosecutor can still appeal it within a week from today. Judging from the early hint by the judge to move to acquittal, and also by the expression on the face of the prosecutor during the sentencing speech by the judge, I feel this is rather unlikely. Of course, the state prosecutor’s office might still decide to appeal nonetheless.
A Victory for Free Speech
Hopkins' attorney seemed to judge the legal situation of his client to also being in favour of the judgement remaining unchallenged by the prosecution. In the end, it had come down to whether the court found it plausible that Hopkins had used the swastika in a context that made it clear that he opposed the Nazi state — it clearly did so, and even the prosecutor did not deny this. He only doubted that readers of the tweets might not understand this. A line of thinking the judge clearly didn't follow. As such, Hopkins' use of the swastika fell outside of use as a propaganda symbol for attacking the rule of law and the German constitution. Whether he was free to use it under the free speech provisions allowable for art or educational material was not investigated by the court. Although, in his defence statement, Hopkins's attorney said he believed that Hopkins' speech in the tweets was also protected under these provisions.
As the judgement stands, Hopkins was allowed to pronounce the mask mandates of the German government as symptoms of a new kind of totalitarian system and he was allowed to use the swastika to draw clear parallels to German totalitarianism and its practices during the Third Reich. Whether one agrees with him or not, or approves of his methods, he won a clear victory for free speech in Berlin today.
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Hopkins, as it turns out, has no criminal record in Germany. The significance of this question was that this detail is important when determining the extend of punishment in case of a guilty verdict. In indicating that she wasn't interested in this detail, the judge hinted early on that she might be acquitting the defendant of all charges.
For a topic that seems to strike straight to the heart of German political sensibilities and interests, this story is surprisingly absent in the German press — today as well as when the first verdict came down last year. One would think that such a case, concerning somewhat of a public figure, no less, would garner more attention.
CJ Hopkins certainly didn't "bring" me. I flew from Scotland of my own volition to witness this judicial process deeming it to be an important case for free speech and freedom of the press. The outcome was just.
Good. Let's see whether his book can be bought again in Germany.