Criminalized Aesthetics, Historicized Context
Examining the CJ Hopkins Affair and Free Speech Beyond America's Borders
Until August 22nd, 2023, I had no idea who C.J. Hopkins was. Then I read Matt Taibbi’s more recent interview with him over on Taibbi’s Racket News and was made a bit more aware on who he was and what was going on. In the first place, I already developed a soft spot for the guy, seeing as he was a satirist and a writer; even if someone’s satire isn’t for me, I will always appreciate the effort. I say that as someone who has never read a word (or seen the plays, since he’s a playwright) of C.J. Hopkins because what he has written matters far less to me for the purposes of this essay than what is happening to him (though at this point, I plan to check out his work to see what this fuss is about).
In short, when you look at the cover of Hopkins’ new book and look semi-carefully at the image of the white mask (which I’ve provided above), you can see a swastika faintly outlined within the confines of the mask. And if that weren’t enough, the name of the book is The Rise of the New Normal Reich. For what it’s worth, I think the title is cringe, but I’m pretty consistent in my belief that any invocation of the Third Reich under Adolf Hitler that isn’t morally and historically and symbolically airtight—which is probably impossible, given my probably-unfair standards—is probably a bad idea since it will inevitably come across as ham-fisted and hysterical, at least to someone with as jaundiced an eye as me. But my opinion on the title or the contents of the book—which are described on Amazon as involving “an unofficial history of the roll-out of the ‘New Normal’ during the 2020-2021 Covid-19 pandemic, and an analysis of this new, pathologized-totalitarian ideology that has radically transformed societies around the world”—are less relevant than what is happening to Hopkins.
You see, Hopkins lives in Germany, apparently as a permanent resident, despite being born in Miami, Florida. In Germany, in case you were not aware, it is, and has been for a very long time, wildly illegal to display swastikas and other Nazi imagery. We’ll get back to the details of these laws and my complicated (well, complicated for me) feelings on them, but the important thing to first understand is that Hopkins is now facing a legal threat from the German government, specifically from a German judge’s “punishment order” that Matt Taibbi refers to as “a Sophie’s Choice of 60 days in jail or 3,600 euros” (a characterization I can’t personally dispute). How did things come to this? To understand what exactly happened, let’s quote Matt Taibbi’s summary of the situation:
“His crime? Essentially, insulting the German health minister in a tweet, and using a scarcely-visible image of a Swastika on a mask in a book critical of the global pandemic response, The Rise of the New Normal Reich. He was first accused of this ‘crime’ in June, shortly after Roger Waters was placed under investigation for wearing his clearly satirical ‘Pink’ costume in a stage performance in Berlin. As I wrote when C.J. was charged weeks later, authorities claim that through the use of the mask image, C.J. was ‘disseminating propaganda, the contents of which are intended to further the aims of a former National Socialist organization.’ The judge in C.J.’s case has already heard free-speech argumentation from his lawyer, and this technically being a non-jury misdemeanor offense, has already ruled against those arguments. C.J. will apparently have a chance to argue for mitigation, but the decree has already been handed down. […] He used his imagery to compare the sweeping declarations of emergency power that were common around the world during the pandemic (and were particularly authoritarian in Germany) to Nazi tactics. He compared, for instance, the 2020 ‘Infection Protection Act’ to the ‘Enabling Act of 1933,’ which announced that to ‘remedy the distress of the people,’ the ‘laws enacted by the government of the Reich may deviate from the constitution.’ C.J.’s real offense seems to be a response to a tweet by Die Welt, quoting German health minister Karl Lauterbach. Portrayed in full Sprockets-style smart-glasses glory, Lauterbach is shown saying, ‘The masks always send out a signal.’ C.J. retweeted the quote, adding the image from his book cover. That’s it, that’s the offense. No matter how you feel about that exchange, that is not ‘intended to further the aims of a former National Socialist organization.’ That is using the negative connotations of Nazism to criticize a currently serving government official.”
Now it doesn’t look like Hopkins is going to jail anytime soon and Taibbi has stated that Racket News will help with the fine “if and when the matter is finally adjudicated,” so in the most bare-bones, practical sense, the issue is pretty much settled. But it’s raised some interesting points of debate regarding the recognition, depiction, and use of history, and, more pressingly, the principle of free speech. It also requires some context for those less aware of how free speech (or lack thereof; your mileage may vary) in Germany.
While many in the United States generally understand the principle of free speech in varying ways depending on what we’re talking about—i.e. whether or not it’s okay to burn flags, whether or not it’s okay to write about heinous things, whether or not it’s okay to platform actual bigots, etc.—the extremely sturdy law is often conflated with the slippery understanding of the principle. Thanks to the Supreme Court case known as Brandenburg v. Ohio in 1969, and subsequent rulings involving cases of “obscene” material and defamation (like the 1988 decision Hustler Magazine v. Jerry Falwell), free speech is about as protected as anything can be. You basically have to be giving a speech to a crowd of people, point out a bystander nearby, and say “we need to kill that guy over there right now, go on, go!” to violate the First Amendment. Racist hate speech is protected. Defending pedophilia is protected. Literally every opinion someone could possibly have and express is, legally speaking, protected. “Inciting immediate lawless action” is the bar, and as someone who appreciates free speech as much as I do, I think it’s about the best bar we can hope for. Whether or not people can live up to that standard in their principles regarding free speech is a separate conversation (well, a brief one: they usually can’t, and neither political orientation in the United States has a monopoly on it, so chill out before you start yelling about book bans in Florida). The point is this: free speech is here, it’s queer, get used to it.
Things aren’t quite the same in Germany (though they never really have been, in case it wasn’t obvious). But after the Second World War, and after the “De-Nazification” process that occurred in the years that followed, a democratization effort was put in place and this resulted in what would become Germany’s speech laws. According to Article 5 of the German constitution, German citizens (and its permanent residents, like Hopkins) guarantees freedom of speech, expression, and opinion. This applies, at least, in principle. In practice, not so much. While Germany ranks relatively high when it comes to things like press freedom, the kind of freedom Americans enjoy to say what they want as much as we want isn’t enjoyed there. When it comes down to it, really the only thing their law seems to get right by American standards is making the dissemination of pornography involving minors or animals—non-consenting beings, in other words—illegal.
From there, however, things start to take a bit of an absurd turn; again, by American standards (this qualification I keep making will make more sense later). For one, “insult” is punishable, under Section 185 of the Criminal Code; according to Article 1 of the Basic law, “satire and similar forms of art enjoy more freedom but have to respect human dignity” [Emphasis mine]. “Malicious gossip and defamation”, with the latter having, like much of the rest of the world, a much lower bar than in the United States (another really awesome feature of our country’s legal system), are also punishable. Probably most absurd to most Americans would be Section 90 and subsection A, which makes it punishable to “disparage the federal president” and “the state and its symbols” (no flag-burning for Germans).
But here is where we start veering into territory with which many Americans might start sympathizing. Writing that depicts “cruel or otherwise inhumane acts of violence in a manner that is trivializing, glorifying, or otherwise injuring human dignity” is punishable under section 181. Section 166 makes the “insulting of faiths, religious societies and organizations dedicated to a philosophy of life if they could disturb public peace” punishable (which, depending on your political affiliation, probably sounds pretty good depending on whether you’re talking about Christianity or Islam). Section 86 makes “dissemination of means of propaganda of unconstitutional organizations” punishable, i.e. what a lot of people would call “fake news” or “misinformation.” The subsection also criminalizes the “use of symbols of unconstitutional organizations,” namely things like the swastika (I assume this is the law under which C.J. Hopkins is being punished). Then, under Section 130, we have “incitement of popular hatred” (known as Volksverhetzung), which can be punishable if it’s made against particular “segments of the population” and “in a manner that is capable of disturbing the public peace.” Spelled out, this is a law against racism and antisemitism. Noble enough, I suppose, but the thinking seems to be that this law will prevent demagogues from ever making rousing, angry, spittle-flecked speeches in beer halls ever again.
But then, finally, we get to the part where, at least for me, things get a bit more complicated. Also according to Section 130, in subsection 3, it is illegal and punishable to deny the Holocaust. This specification was put into law in 1994, “after a federal appeals court overturned the sentence of a far-right German politician who had organized a lecture describing the gassing of Jews at Auschwitz as a hoax,” as explained by Dan Glaun at PBS. If one is convicted of this crime, they can go to prison for up to five years; it’s even more severe in Austria, where it’s a crime that can result in a ten year sentence. In fact, famously in 2006, the even more infamous Holocaust-denying historian David Irving was sentenced to three years in an Austrian prison after being arrested in 2005 for “trivializing the Holocaust” in speeches he had given in Austria back in 1989. The story of David Irving and his record on Holocaust denial is a long and fascinating one that involves litigating history in a courtroom, but that’s a story for another time (and probably a full episode of History Impossible). The point is that unlike the United States—where you can claim anything you want, up to and including, say, proclaiming that it was the Jews killing Germans at Auschwitz and not the other way around (chill out Germany/Austria; it’s just a joke)—you can’t even entertain the notion that you don’t buy what the conspiratorial jerks among us call “the official narrative” (as if that makes it less trustworthy by default). Anything that trivializes (i.e. doesn’t sufficiently recognize the obvious horror of) the Holocaust is, quite literally, verboten.
So if it wasn’t obvious, by American standards (there the line is again!), this law, along with the law against “incitement of popular hatred,” are pretty self-evidently awful laws when it comes to anyone who takes free speech seriously, as both a value and a law protecting that value. They are indeed that self-evidently awful to me. If someone proposed them in the United States (and there are plenty who would approve of them), I would do my best to vote anyone promoting such laws into the dirt. Hence why it makes plenty of sense to be beyond annoyed (if not outraged) at how C.J. Hopkins, an American citizen, is being treated by the German government for his free speech. Especially considering that what got him in trouble is something so mundane (calling government officials—the German health minister in Hopkins’ case—Nazis is one of Americans’ favorite pass times, after all).
And yet…
This is Germany we’re talking about. It’s not the United States. And as much as I find the value of free speech sacrosanct, I must remind myself that that is largely because I am a United States citizen living in the United States. The harsh truth is that, well, C.J. Hopkins is a U.S. citizen living in Germany. From a purely practical standpoint, he really should not have expected any outcome different from this (and if he did expect it, that suggests a level of cynicism that I don’t want to entertain past this sentence, since I don’t know the man’s work or reputation). Hopkins’ mistaken belief that he’d be living under American standards within German borders aside, this calls to mind the debates being had in the mid-2010s, especially during the height of the refugee crisis occurring in Europe, about the question of a country’s values being shifted by the influx of people with far different, less democratically-friendly values.
Obviously, this debate is much older than 2015, but this was the most recent instance with the greatest resonance, thanks to events like the mass sexual assaults occurring in Berlin on New Year’s Eve 2015-2016. The way many men from North African and Middle Eastern countries saw and treated women in their homelands did indeed influence their behavior—objectively abhorrent and, you know, illegal—on that night. Less extreme, but no less controversial, is the continued practice of female genital mutilation (FGM) in some Muslim communities—namely Somali ones, especially in my hometown of Minneapolis. It was enough of issue that a bill was introduced to combat the practice back in 2017 (something Minnesota Rep. Ilhan Omar opposed, for what it’s worth; that is a matter of record I refuse to be forgotten as long as I have ties to Minnesota’s Fifth District). Those of us disgusted by the tolerance (or dismissal) of such an awful practice, as well as the abhorrent way 1,200 women had been treated in Germany, made the argument that these were values that had no place in our society; these people who did these things were our guests, however permanent their residency was and is. If we’re to be consistent on this position, the same standard should apply to people like C.J. Hopkins, who voluntarily lives in Germany. He, too, is their guest and his values are clearly not theirs, at least legally speaking. And he violated those values, regardless of how innocently, and how unfairly he’s been treated. Imagine you invited someone to stay at your house for an indefinite period of time and they decided to paint your walls bright red (or pick whatever garish color you hate) without consulting you. They’re welcome to stay there as long as they need, but…it’s still your house. This person doesn’t get to do what they want to your house just because they live in it. Perhaps this analogy is a little too harsh in degree, but I think it’s at least apt to explain the principle at stake.
And to be fair, I don’t want to be too harsh on Hopkins and I do think these different values Germany has toward free speech has to be examined more closely. But unfortunately, I’m history-minded more than I’m politically-minded; I can’t simply say “well their free speech values are bad and should be more like ours” even though I agree in principle that they are and should be. And when it comes to the history I’ve studied most closely, it kinda sorta involves Germany and Germany during a very particular time in its history, as most of you know. Debate can and should be had about the so-called “De-Nazification” of Germany in the years following the Second World War. While I personally believe it probably put too much pressure on the German populace—many of whom were simply patriotic, rather than diehard believers in things like Nazi racial theory or the war itself—I understand the impulse in the face of all the horror the Allies encountered as they closed in on Berlin. Back in the late 1940s, saying “never again” was visceral and real and sincere; the Allies, while certainly jockeying for power and influence in the postwar world, wanted to make sure something like Hitler’s regime not only would not, but could not happen again. In the context of the horror of the war’s and the Holocaust’s aftermath, that motivation makes sense. We should take it as face value.
There is also the concept of national guilt to consider. Many Germans were horrified by the footage that came out of the death camps, and, when not dealing with the partition of their country by the Soviets and the Americans, had to live with the knowledge of what their state had done. They live with it to this day, thanks largely to the propaganda fed them by the Soviets and Americans during De-Nazification. Again, it might feel or even be unseemly to do that to an entire nation, but it’s important to remember the context in which it was happening. Trying to foist existential guilt on white Americans in the 2020s for the institution of slavery this was not; it was part of an immediate reaction to the most destructive, global war in world history. Appreciating that context helps us understand the place the Germans were and, however unfairly many might see it to be, are currently in, culturally. C.J. Hopkins, like many Americans overseas, thought his cultural standards would map nicely onto another modern nation without considering that important historical context (or he did consider it and simply didn’t care). In that sense—with Germany’s extremely weighty historical context—I don’t think it’s unfair to suggest that he is more responsible for the situation he finds himself in than the German authorities are. And again, I may hate the standards being applied. But it’s not my country. If what was happening to Hopkins in Germany was happening here, you’d better believe I’d join everyone on the picket line because I do believe that censorship, even in this context, is a moral wrong. I even think it’s just stupid, from a practical standpoint; it’s become almost passé to suggest that censorship only makes the forbidden ideas all the more enticing, especially for those who would be animated by them. Americans’ love of free speech might create a greater incentive to seek out censored material, but assuming this is a human trait, the way Germany handles censorship isn’t great.
But Germany is not my country to fix. Their standards are not American standards. We have our robust speech protections in the United States and it’s probably my favorite thing about our culture and our laws. As much as I may believe that every country should have such freedoms—especially those that are ostensibly democratic—I can understand why most don’t, especially if their recent history is so recently soaked in blood. I realize many will want to point to the United States’ own recent history and suggest the amount of blood we spilled is comparable to that of Germany and therefore it’s rather rich of me to say Germany needs to be subject to different standards. Perhaps that’s a fair point. But no country has a monopoly on causing horrible suffering in its past, and Americans’ ability to speak freely—however limited it’s been in practice—is part of what makes us, well, us. Ask anyone from outside the United States. Then ask that same person what defines German culture. I can’t read minds and I can’t predict the future, but I guarantee you the answers will never match.
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Thanks for reading. Since my take on the topic might be a bit more contentious than usual, I welcome and encourage feedback in the comments. I will attempt to defend what I’ve written here, but I can also understand any pushback I might get and would love to see where I might have gone wrong in my analysis.