What Happens Where Free Speech Is Unprotected
C. J. Hopkins is one of the very few Americans to follow through on the quadrennial promise, sworn by countless millions, to leave the country because they didn’t like the result of a particular general election.
You probably haven’t heard of C. J. Hopkins. A playwright, satirist, and self-described “old lefty,” Hopkins, who is now 62, was working in New York’s downtown experimental-theater scene in the early years of the 21st century when he began to “grow sick of the atmosphere” during the run-up to the Iraq War. “I helped organize those big protests before the invasion,” Hopkins told me, and “was active a little bit in the anti-globalization stuff, the anarchists.” Serendipitously, around that time, one of his plays took off in Europe, and in the summer of 2004, he packed his bags for Berlin, thus sparing himself the agony of witnessing George W. Bush’s reelection up close.
Having fled his native country for Germany nearly 20 years ago because of what he describes as America’s “really oppressive” climate of opinion, Hopkins now has reason to reconsider the wisdom of that decision. Facing criminal charges for a tweet, he is getting a taste of his adopted country’s limited tolerance for free expression.
[From the December 2022 issue: Monuments to the unthinkable]
I first met Hopkins in 2012, when I was a student in a scriptwriting workshop that he was teaching for expats in the Kreuzberg neighborhood of Berlin. With his bushy beard, ponytail, hand-rolled cigarettes, and penchant for left-wing political digressions, he reminded me of the Dude, Jeff Bridges’s immortal hippie stoner in the Coen brothers’ The Big Lebowski.
I wasn’t long for Berlin—this famous “hedonist paradise” was distracting me from a book I needed to write. But that was not the last I was to hear of Hopkins. During the early throes of the 2016 presidential election, he began distributing, via email, posts from his blog, Consent Factory, Inc., whose name is a tribute to Noam Chomsky and Edward S. Herman’s 1988 anti-mainstream-media screed, Manufacturing Consent. In these missives, Hopkins regularly tore into his favorite target, “GloboCap,” a portmanteau for “global capitalism.” Although I found much to disagree with in his rants, their sardonic tone and outrageous hyperbole tended to put a smile on my face by the time I reached his trademark ironic sign-off, “All best wishes from sunny Berlin.”
I was still following his posts intermittently when the coronavirus pandemic struck. Then the latent libertarian side of Hopkins’s leftism emerged as he became a vociferous critic of lockdowns and an opponent of vaccinations, both of which he claimed were elements of a nefarious GloboCap plot. In posts titled “The Germans Are Back” and “The Covidian Cult,” Hopkins blasted what he termed the “New Normal” of mass obedience, “pathologized totalitarianism,” and demonization of dissenters like him. Hopkins inevitably brought his writings over to Substack, and though not the movement-joining type, he expressed sympathy toward the Querdenker, a group of fringe self-styled “lateral thinkers” whom Germany’s domestic-intelligence service placed under surveillance for their sometimes-violent anti-lockdown protests. A self-published 2022 collection of his essays, The Rise of the New Normal Reich, features a blurb on its cover from Robert F. Kennedy Jr. praising Hopkins as “our modern Jeremiah.”
More controversial than this endorsement was the image accompanying it: a face mask that bore the very faint image of a swastika.
[Read: Is Germany capable of protecting its Jews?]
Bowing to national laws prohibiting Nazi insignia, Amazon banned the sale of the book on its platform in Germany, the Netherlands, and Austria. (“The book is clearly also banned in actual German bookstores,” Hopkins claimed, because “numerous readers have tried to order it in person at bookstores, and have been told it is ‘unavailable.’”) The author was perturbed but unrepentant, publishing his correspondence with Amazon’s content-review team on his site. In August 2022, Hopkins posted an image from the cover of his book on X (formerly Twitter), with a message in German declaring that “masks are ideological-conformity symbols.” Three days later, in a tweet responding to an article featuring a quote from the German health minister endorsing the use of face masks, Hopkins republished the image.
Then, this past May, Hopkins received a letter from the Berlin state prosecutor’s office announcing that it had launched an “investigative procedure” against him for violating the German penal code, namely article 86a, which prohibits the dissemination of “propaganda, the contents of which are intended to further the aims of a former National Socialist organization.” The investigation led to charges, and Hopkins’s case goes to trial on January 23, according to his Substack. If found guilty, he faces either a fine of 3,600 euros (about $4,000) or 60 days in jail.
Hopkins sees his ordeal as part of a broader “criminalization of dissent” sweeping the Western world. “Basically anyone prominent, halfway prominent, and even little fish like me, if you get on the radar of challenging the official ideology, the program of the day, they’re making examples of people is basically what it is,” he told me. Against his lawyer’s advice, Hopkins republished the tweets in his Substack newsletter—sparking, as he reported, a second criminal investigation, this time for minimizing Nazi crimes. “They can silence me for a while if they want,” he wrote defiantly. “But they cannot make me silence myself.”
So far, although he retains U.S. citizenship, Hopkins’s case has attracted little attention in the American media. But his predicament offers an important opportunity to examine how we think about the most loaded political symbols—and to cherish the exceptional free-speech culture ensured by America’s First Amendment.
On its face, the charge against Hopkins seems specious. Although the display of Nazi imagery is generally prohibited in Germany, the country’s criminal code allows the display of such symbols for “civic education, countering anti-constitutional activities, art and science, research and education, the coverage of historic and current events, or similar purposes.” In 2016, to illustrate the success of the far-right Austrian Freedom Party in that year’s presidential election, a satirical German television show featured an image of a schnitzel in the shape of a swastika. After an investigation, a court ruled that the image—obviously intended to lampoon the radical right—was legally permissible.
[Daniel Finkelstein: An untold story of the Nazi-Soviet Pact]
To argue that Hopkins was advancing National Socialism by imposing a swastika over a face mask is absurd. He was clearly doing the opposite: invoking a symbol of what is widely regarded as the most evil and destructive ideology in human history to express his feelings—however histrionic—for state-promulgated public-health policies he dislikes. Hopkins was “comparing the evolution of one system which I think is totalitarian in nature to the evolution of another totalitarian system that we all know,” he told me, not glorifying fascism.
“So much of my stuff is hyperbolic, and so much of what I do is way over the top, and it’s intended to do that,” Hopkins conceded when I suggested that his style of expression devolves too readily into reductio ad Hitlerum. He was keen to point out that he vocally opposed the fellow anti-vaccine activists who donned yellow stars in the early days of the pandemic. “Not a good idea, folks,” Hopkins said he told them. “We’re not Jews; they’re not exterminating us.” Hopkins prefers that COVID-19 nonconformists instead don the red triangle, which the Nazis used to identify political dissidents (many of whom they killed).
Some might argue that, as a permanent resident of Germany, Hopkins ought to have known what he was getting into by conjuring the country’s ultimate taboo, and that his posturing as a sort of latter-day Martin Niemöller, the anti-Nazi theologian, would not endear him to his hosts. “Of course; it’s Germany,” he said, when I put this to him. “Of course they’re hyper about anything that is promoting the Nazis and, frankly, God bless them. That’s the way I feel about it; I’ve always supported it and understood it even though I’m a free-speech absolutist.”
One can call his method of argument likening anti-COVID policies to Nazism misguided, intellectually lazy, or tasteless—I personally find it to be all three—but endorsing “the aims” of National Socialism it is not. Which strongly suggests that Hopkins is being punished not for promoting an outlawed political movement from the German past but for criticizing a government of the German present. Such a conclusion is only reinforced by the second proceeding against Hopkins for the tweet ridiculing one particularly powerful member of that government, the country’s health minister.
[Daniel Schulman: America’s most dangerous anti-Jewish propagandist]
That a citizen could be tried on these grounds in a Western democracy should trouble us, and Germany’s unique experience as the birthplace of Nazism offers no justification. On the contrary, precisely because that fraught history gives Germany ample reason for vigilance about support for fascism, it must be scrupulous in how it regulates expressions of said support. According to the country’s criminal code, expression aimed at “countering anti-constitutional activities,” as Hopkins’s swastika-branded mask clearly was, is protected.
A government that prosecutes a writer for calling its policies fascistic unwittingly validates the criticism. Even if some find Hopkins’s views and the way he expresses them offensive, that does not lessen the danger that his prosecution represents. A society’s commitment to freedom of expression is tested not by the easy cases but by the hard ones—by protecting, as the Supreme Court Justice Oliver Wendell Holmes Jr. once wrote, “freedom for the thought that we hate.” Hopkins may have turned his back on America, but he has gained a new appreciation for America’s founding principles.