C.J. Hopkins and the Swastika
How I got called a "fascist German creep" for defending tenets of the German constitution I don't even like much
I had a pretty weird experience over the holidays. While being stuck in the middle of Sweden in a blizzard with a broken-down car, I was reading Substack. I came across a note by C.J. Hopkins about being prosecuted in Germany for tweeting a swastika superimposed on a medical mask to criticise the politics of pandemic measures. I vaguely remembered having read a piece by Matt Taibbi about this prosecution earlier and felt like I should add a German perspective to the American one. That's why I posted my own note on this:
At that point, I scarcely knew who C.J. Hopkins was. I only knew him from Taibbi's coverage of the prosecution. I didn't even remember that he lived in Berlin. In any case, I didn't mean to make a point about Hopkins. What mostly concerned me was the general ignorance of German law that seemed to me to be on display here. More specifically, the laws that make it illegal to use the insignia of the NSDAP (colloquially known as “the Nazi Party”) and the state it controlled.
I’ve been exposed to this kind of ignorance — or in some cases carelessness — throughout my whole career as a journalist. And actually even before that, when I was doing a podcast about Linux and open source news. I've seen it mostly from Americans, but to a lesser extent also from Brits. I’ve always found this remarkable, because the laws in question are a direct result of the de-Nazification of German society after the Second World War which was enacted by the British and American governments on the territory that later became the Federal Republic of Germany. Our country's constitution, including its anti-Nazi laws, were heavily influenced by those two governments.
Don’t get me wrong: That isn’t a bad thing. But it’s kind of remarkable that people from those countries, including those much older than myself, are this ignorant about it.
The laws in question include those that make it illegal to use symbols of "anti-constitutional organisations", and specifically those of the Nazi party and the Führer state, in almost all public contexts1. This was obviously aimed at halting a resurgence of the ideas and institutions of the Third Reich. The swastika is the premier example of a symbol that is outlawed under this law.
Obviously, exceptions exist. Material that uses the symbols of Nazism in a historic context, for example, is excepted from prosecution in many cases. So is news coverage of all kinds. The exceptions also cover art, like paintings, photographs, but also literature (where the law is largely only applicable when it comes to book covers or illustrations) and theatre plays. And, obviously, movies. One of my favourite films of all time, Das Boot, is a very good example of this.
Any actual historical materials or those produced for the purpose of educating people about the history of fascism and the Third Reich are, obviously, also excepted in many contexts. On a side note, it's interesting that the jury is still out if these exceptions apply to video games, because it has not been clearly established by the courts that video games are art. Unlike art, consumer products are generally not protected under these exceptions — whether they portrait things in their historic context or not. So if you produced a Hitler action figure and tried to sell it in Germany, you’d probably get prosecuted under criminal law.
Fascist German Creeps
Anyway, back to C.J. Hopkins. The guy actually replied to me and seemed to take my observations quite personal. To the point of calling me a "fascist creep".
I found this quite surprising. Especially because I rather sympathise with the guy. I've been pretty vocal about disagreeing with these laws for a long time. I don't think they actually accomplish anything productive. You won't get rid of groups of people, and much less their ideas, by outlawing some symbols.
If neo-Nazis want to clearly label themselves, why aren't we letting them? It makes them much easier to fight. And make no mistake, that is what we should do. We should fight the enemies of democracy, not their symbols. Besides, it's not like outlawing their symbols has hampered these people in any way. Neo-Nazi organisations and far-right parties have existed in Germany since the war and new ones pop up all the time. If anything, fighting over the symbols has caused us to neglect the more important fights that will actually protect democracy. We are like a doctor who's combating the symptoms of a disease while letting the cause of it fester in the background.
When to Illustrate Something with a Swastika
Nonetheless, part of being a socially responsible citizen in a democracy is respecting the laws of the land, even if you don’t agree with them. And that is why I was pointing out that if you put a swastika on a book cover in Germany and the book in question isn’t a historical textbook, a novel set during the Third Reich or a satirical piece, you might get indicted under criminal law.
When I was writing my note, I was under the mistaken impression that the prosecution was about his book cover. When I got back from Sweden, I read up on the case and remembered that it was actually about a tweet that included the book cover.
I don’t think these tweets qualify as art or as education about the Holocaust or the Third Reich. And they don’t sound much like satire. What that is, in my opinion, is an edgy PR move to drum up some controversy about a book that deals with the idiotic pandemic measures of governments all around the world (including the German one). At the time, I myself saw some quite totalitarian tendencies in these policies and I did also draw some comparisons to the Weimar Republic and the rise of fascism in Germany. But notice how I didn’t slap a swastika on anything? Why not? Because I am conscious about the law I’m living under. And you can make your point without being that gaudy — probably more effective, too.
Covering the Case
From what I have since read of Hopkins’ argument in this case, he believes his use of the swastika was excepted by § 86 StGB under the proviso of section 4, which states that use of such symbols is allowable if the use is furthering civic education or the defence against anti-constitutional efforts. That is certainly something one can argue, but I’m not sure if the court is going to agree with it. Looking back at past cases — including the attempts at defence by actual neo-Nazis — would lead me to believe it won’t. But then, I’m obviously not a lawyer and who knows? Despite his having tried quite hard to insult me, I do wish Hopkins luck. As I said, I don’t think these kinds of laws and prosecutions are productive. We should spend our energy fighting actual enemies of the constitution.
He says he intends to fight the case all the way to the Constitutional Court, and maybe he should. Maybe this is a precedent the country needs. If in doubt, side with the artist, the writer and the journalist against the state. That’s generally a good rule of thumb to defend democracy and freedom against power creep and corruption, I think.
Whatever the court will decide, I am planning to travel to Berlin next week to cover Hopkins’ formal objection to having been convicted in this case. Having been personally insulted over this on Substack has made me quite interested in the whole thing. I will, of course, try to stay as objective as possible in writing about this. As much as that’s possible under the circumstances.
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This is enshrined in German criminal law in § 86 and § 86a StGB, which finds its justification in constitutional article 21. In the over 70 years of the existence of the Federal Republic of Germany, there have been a large number of legal debates on how these laws apply. Nonetheless, there’s a pretty clear direction evident in decisions by the judiciary and the legislature.
A noteworthy element of this case is its meta level. There is an argument here that the state tries to silence critique of the government by (ab)using the penal code. By doing so the state would actually confirm that the critique is correct (ideological conformity). I don't see how the state can "win" this case from an ethical standpoint.
The exemption does not only relate to art. It reads:
"Paragraphs 1 and 2 shall 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."
So it pretty much depends on the entire context of the use of the symbol. There is no offence if the use of the symbol is not meant and cannot be mistaken to mean supporting an unconstitutional organisation, but clearly expresses opposition to that organisation.
Nice T4 btw 👌