The Kafkaesque Trial Against C. J. Hopkins
A good in-depth article on Hopkins' prosecution, the book ban and the so-called German legal system — by Ralf Hutter for Multipolar Magazine.
The US author C. J. Hopkins, who lives in Berlin, will soon be on trial in the second instance for a picture that depicts the restrictions on fundamental rights in recent years as fascist. His book has disappeared from bookshops in a non-transparent manner.
By Ralf Hutter, February 21, 2024 — English translation by DeepThought
C. J. Hopkins was acquitted in the first instance by the Berlin district court at the end of January, but he did not appear relaxed on the day of the verdict. “I'm angry that I have to be here,” said the 62-year-old American. Since August 2022, the author of essays, plays and novels has been confronted with a direct and indirect censorship machine that is second to none. He had to spend thousands of euros and invest months of work because of this, he said at the court hearing.
He was charged because of two tweets with the cover image of his book “The Rise of the New Normal Reich”, published in 2022, where the word “Reich” in English stands for National Socialism. The book itself was not incriminated, which is one of the mysterious aspects of the fight against the author by various actors.
Political climate after 9/11 caused him to emigrate from the USA
Hopkins had already been active in literature and politics in the USA. Coming from the south of the country, he was active in New York’s political-artistic scene for a while, as an article in The Atlantic magazine notes, which provides an intellectual characterization of the anti-capitalist and anti-fascist. Because one of his plays was a great success in Germany and he no longer felt comfortable in the political climate of the USA after the terrorist attacks of September 11, 2001, he moved to Berlin. He also developed his journalistic activities online under the label “Consent Factory”, ironically based on the famous media-critical book by Edward S. Herman and Noam Chomsky entitled “Manufacturing Consent” from 1988. He also spoke out on Twitter under this name.
He then made himself highly unpopular there on August 24 and 27, 2022, by agitating against the restrictions on fundamental rights based on the protection against infection - as he had been doing since their inception. Someone reported the tweets to the “HessenGegenHetze” portal under the Hessian Ministry of the Interior, which forwarded the report to the Federal Criminal Police Office. But the state was not Hopkins' only adversary. As early as August 29, he received a message from Twitter that these tweets would no longer be displayed in Germany. The author later republished the incriminated short messages as image files.
The legal prosecution was not triggered by the texts of the tweets that were directed against the obligation to wear masks, but by the image that was added both times. As on his collection of essays on the rise of the “new normality”, it depicts a white medical face mask, under which a swastika can be dimly seen.
When is a swastika allowed?
Hopkins was now charged with violating sections 86, paragraph 1, sentence 4 and 86a, paragraph 1, sentence 1, variant 1 of the German Criminal Code. Both punish the dissemination of propaganda material or symbols of unconstitutional organizations, with one explicitly referring to the Nazis.
Now, even laypeople know that the swastika is repeatedly used for critical purposes and that there must therefore be a provision that allows this. This can be found in paragraph 4 of section 86, which reads:
“Paragraphs 1 and 2 do not apply if the act serves civic education, the defense against unconstitutional endeavors, art or science, research or teaching, reporting on current events or history or similar purposes.”
Nazi comparisons are commonplace in Germany
In the court hearing, Hopkins referred to the second exceptional case, the defense against unconstitutional efforts. He wanted to “warn people of a new form of totalitarianism”. National Socialism had been a totalitarianism of the 20th century, and now a new one was threatening. In Germany, today’s political actors are constantly being compared to Nazis, so he is likewise allowed to do so.
Hopkins, who as a US Southerner had experienced legal state and social racism, then presented the following analysis: The Nazi Party had come into state institutions through elections and had based its immediate policies of disenfranchisement and concentration of power on the government and the president on laws and the Constitution. “That’s why I think I can compare measures passed by the Bundestag [German parliament] with measures of the 20th century, if they seem authoritarian to me,” he concluded.
The defendant was responding to an internal note from the public prosecutor’s office dated August 8, 2023, which had not been included in the penalty order against him, but which he had come across in the investigation file. It reads:
“By specifically using the swastika, the accused equates the crisis management measures of the years 2020-2022, which came about within constitutional procedures and were enacted and implemented by and through democratically legitimized institutions, with the dictatorial methods of the Nazi regime and thus - regardless of his intention - encourages the normalization of National Socialist ideas and actions. From the perspective of a third party, the crimes of National Socialism become commonplace as a result of this equation and lose their exceptional status as laid down in the Grundgesetz [Basic Law] and the legal system.”
In contrast, Hopkins’ lawyer Friedemann Däblitz raised the question in his closing statement: “Who decides whether there are anti-constitutional endeavors? The Office for the Protection of the Constitution is subordinate to the government.” So everyone must have the right to publish their own analysis if they believe that the government is acting against the constitution and shows parallels to the Nazis. In addition, the freedom of art is affected here, which prohibits individual elements of a work of art - in this case the swastika - from being viewed in isolation.
Even for the public prosecutor Hopkins is a Nazi opponent
This observation was the crux of the matter. The fact that Hopkins is an opponent of the Nazis was “clear” even to the public prosecutor present. He was also “not so much” concerned with the comparison of the recent restrictions on fundamental rights with those of the Nazis, but with the effect of the picture published by Hopkins. “Ultimately, the question is whether it is immediately apparent that the author is opposed to National Socialism,” the prosecutor stated.
This question led to a remarkable discussion: “For me, the swastika is on the front rather than showing through,” said Judge Peck after she had projected the offensive image onto the wall, whereupon Hopkins emphasized that he would never publish a picture in which a swastika was printed on something, but that it was about the aspect of concealment. In his closing statement, the public prosecutor provided an argument for this discussion for which the term “rabulism” [quibble] is not only used in law. He found that “not only when reading the image text or reflecting on it”, “not only on the second or third level” should it become clear what the author wants to say with his image. Here, “further cognitive, not entirely difficult, but also not entirely insignificant thoughts” were necessary in order to understand Hopkins’ message. The prosecutor presented all of this completely dispassionately, using tautological phrases such as “cognitive thoughts”. He added: “It would have been enough to address the swastika in the text.”
In this view, humanity has no need for satire and political criticism in graphic form. Especially as it is sometimes not immediately comprehensible, but requires reflection, and multi-level thinking. This raises the question of what level of education the public prosecutor’s office in this country assumes.
The judge ended the image analysis with her acquittal, which was announced without any time for reflection, in which she stated: “If you think about it for even a minute”, it was clear in view of the posted graphic that the defendant wanted to express an “inner distancing” from National Socialism.
Accusations of political justice crop up again and again
The oral reasons for the verdict therefore also raise the question: did the public prosecutor's office charge Hopkins for political reasons? Incidentally, the public prosecutor backed down slightly in his closing statement by demanding a sentence of only 30 daily rates, whereas the penalty order against which Hopkins had lodged an objection had been 60 daily rates, based on a daily rate of 60 euros. However, the accusation of political justice against a government critic not only affects the public prosecutor's office, but also a whole range of other authorities. The investigation was initiated by Hesse’s “Cyber Competence Center”, it was taken over by the Federal Criminal Police Office and the penalty order was sent by the Berlin District Court.
Officially, political justice is forbidden, but it is practiced time and again, and the restrictions on fundamental rights in recent years in particular have allowed it to flourish. At times, the judiciary has been involved in the direct political struggle – i.e. not only in the daily enforcement of government decisions – or has voluntarily made itself subservient to it.
It is important to first make a distinction here. A court examines the allegations made by a public prosecutor. This means that political justice can fail in court, but investigations and court proceedings can publicly harm the suspects simply by being conducted, which is an advantage for the political opponent.
However, there is a fundamental problem that is not talked about much: Germany’s public prosecutors are not considered independent enough. In 2019, the European Court of Justice ruled that they cannot simply issue European arrest warrants due to their potential political control. In other words, the public prosecutor’s offices in other European countries are (more) independent.
It is relatively easy for public prosecutors to obtain search warrants from the courts. Perhaps this is because the courts do not yet hear the other side, but that should not be an excuse. In any case, it is symbolic that Europe’s largest public prosecutor’s office, the Berlin office, is based in the regional court building. Raids on politically active people that are subsequently declared unlawful by another court are not uncommon.
Public prosecutors are therefore sometimes whistled back by the courts, but the courts are not free of political motives either (especially as it is always the courts that issue search warrants). It’s a fundamental problem: people often don’t realize that something they think is normal or obvious is not so clear-cut, and their view is therefore politicized.
The lawyer Jessica Hamed already stated in an interview in February 2021 as experience from lawsuits against corona regulations: “Almost every court decision cites the RKI as the final, incontestable technical authority.” This shouldn’t really be the case, especially not as a mass phenomenon, because the Robert Koch Institute [RKI; German “CDC”] is a sub-authority of the Ministry of Health and therefore part of the executive branch. If a series of courts refuse to review such an authority in matters of fundamental rights, then the separation of powers no longer applies – and that is what happened, as Hamed reported:
“After none of the courts were prepared to deal with our criticism of the RKI’s statements, I took a case against the RKI on behalf of a client – unfortunately without success.”
And then there was the case of Weimar family court judge Christian Dettmar. In 2021, he had to endure proceedings for obstruction of justice, including house searches, because he had prohibited two schools from ordering children to wear masks – while the prevailing legal opinion (which then also prevailed in court) only allows an administrative court to take such a step. Oliver García, managing director of the major legal information portal dejure.org, published a review of this case in June 2021. He emphasized:
“It would be adventurous if the Erfurt public prosecutor’s office were to request a search solely on the basis of a different assessment of a legal issue that has not been clarified by established case law or a supreme court ruling.”
He then quoted from a public statement that the public prosecutor’s office did exactly that, and analyzed that the raid due to an unwelcome declaration of jurisdiction by the judge “can have no other effect - and actually no other purpose - than to intimidate the judiciary (at least in Thuringia) into not expressing such an opinion. This is tangibly unlawful”. In April 2023, the Netzwerk Kritische Richter und Staatsanwälte [KRiSta; ~Network of critical judges and public prosecutors] published an even longer essay on the instrumentalization of the repressive apparatus against the now convicted judge Dettmar.
García made two interesting comments in this context. Firstly, two years earlier, Thuringia’s Minister of Justice had “decided in a crisis meeting together with the Attorney General and the local public prosecutor’s office that an investigation against the ‘Center for Political Beauty’ would be dropped and the investigating public prosecutor reprimanded”. This shows the political influence on the judiciary (which in the Dettmar case was either exercised against the committed judge, or at least not in his favor). On the other hand, García pointed out the offensive political approach of the courts:
“In the heated atmosphere that has arisen in some places as a result of the Weimar decision, some family court judges have come up with the idea of switching from defense to attack.”
They imposed horrendous fines on people who wanted to use court applications to protect children from restrictions on fundamental rights. García’s first impression of the coronavirus discourse was already recorded on May 6, 2020:
“While virologists and epidemiologists are still researching the mutation potential of the coronavirus, the virus and journalism have worked hand in hand to mutate the legal-political framework for action based solely on the suggestive power of the former and the interpretative power of the latter, and to create a parallel media reality in its place.”
What is remarkable about this statement is not only the comparatively early clairvoyance of the author, but also the fact that a lawyer who is not known as a political activist uses the adjective “legal-political” in a fundamental judicial crisis, thereby denying the official categorical separation of justice and politics. After all, nothing has changed in terms of the “framework for action” under fundamental law.
Judge reprimands Hopkins despite acquittal
The political charge of a court due to the parallel media reality mentioned by García also became apparent in the Hopkins case. Immediately after the acquittal was announced, Judge Peck could not restrain herself from reprimanding the acquitted man. As the defendant had explicitly opposed things such as compulsory masks and had spoken of at least potentially totalitarian policies, the judge accused him of “perhaps pursuing totalitarian ideas himself” because “people were persuaded by the science and perhaps it was also about consideration”. She also used consideration to explain Hopkins’ denunciation of following orders. That the government had lied was “a subjective impression” of Hopkins. She concluded with the statement:
“Your comments were ideological drivel, but that is not punishable by law.”
In doing so, the judge overstepped her authority and highlighted the aforementioned problem that laws are always applied by people whose often unreflective understanding of what is normal and appropriate influences their professional work. A judge does not normally have any special medical expertise, nor is she authorized to issue political censure as long as the views she dislikes are legal. Many people enjoy chatting about politics with strangers, but no one wants to be told off for their political views by a doctor during a treatment or by a craftsman during a repair.
Twitter, Amazon and the book trade against Hopkins
But justice is not Hopkins’ only problem. His two incriminated tweets can no longer be seen in Germany - or rather: from German IP addresses - as Twitter informed him on August 29, 2022. The day before, the report office “HessenGegenHetze”, which reports to the Hessian Ministry of the Interior, had submitted a complaint against the tweets to Twitter, as the ministry confirmed to Multipolar. The fact that Twitter removed the tweets from circulation without examining the legal situation is not surprising, as the platform’s cooperation with the so-called “censorship-industrial complex” (a term based on former US President Eisenhower’s famous speech about the military-industrial complex) is well known, especially since its many interventions in the coronavirus discourse.
The far bigger problem for Hopkins, however, is the book trade. On the afternoon of August 29, 2022, he received a message from Amazon that his current book – whose cover image without a book title had been reported to Twitter the day before – was in breach of Amazon’s content guidelines for Germany and would therefore no longer be sold there.
In an article on his blog, in which Hopkins depicts other books available on Amazon with much clearer swastikas than on his, the author has copied his communication with Amazon on this matter at the end. The online giant does not respond to his references to the German legal situation, but simply confirms the sales ban, which also applies to the Netherlands and Austria. Hopkins has since established that it is possible to order the book to Germany via foreign Amazon portals.
Amazon does not respond to requests
How Amazon became aware of the book, which was not brand new at the time, remains a mystery. Its message to Hopkins came a day before the report about his tweets was sent from Hesse to the Federal Criminal Police Office. “HessenGegenHetze” did not contact Amazon, according to the State Ministry of the Interior. Apparently, either the person who reported Hopkins to the reporting portal also contacted Amazon, or there is an interface between Twitter and Amazon that works very quickly.
Amazon did not respond. The press office left a written inquiry a week before Hopkins' court hearing unanswered, as did a written inquiry and a message on the answering machine a week later. The telephone number provided is marked “Mobilbox”—apparently telephone calls are not welcome.
But there is also a strange problem in the normal book trade. Hopkins’ book has long since disappeared from the “Directory of Available Books”. An industry insider told Multipolar: “The book is not listed by any of the three book wholesalers in Germany.”
A visit to a Berlin bookstore reveals that “Zeitfracht”, the largest of these three wholesalers, offers two other of Hopkins’ books. Why does “Zeitfracht” no longer offer “The Rise of the New Normal Reich”, Hopkins’ most recent book? The press spokesperson answers this question: “We are adapting our range according to popularity and demand.” When I pointed out that this did not answer the question, there was no further reply.
Nobody did it, nobody knows anything
When asked by Multipolar, the public prosecutor’s office, the Federal Criminal Police Office and the Berlin police stated that they had not taken any action against the distribution of the book. A week after his court hearing, Hopkins contacted his US-based distributor Ingram and was referred to Ingram’s German partner BoD. The author publishes his books via an on-demand model, which means that they are only printed when they are ordered. BoD is owned by the wholesaler Libri. No explanation could be obtained from either of them.
The legal case has not yet been settled either, as the public prosecutor’s office has now challenged Hopkins’ acquittal.
Perhaps C. J. Hopkins now has the chance to become the Kafka of the 21st century as a novelist. For a story about a man facing sinister institutions and suffering from unclear accusations from unclear actors, he only needs to process his own experiences.
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This article was first published on Multipolar on February 21, 2024
About the author:
Ralf Hutter, born in 1981, studied sociology and is a freelance journalist.