Witness for the Persecution

An account of the trials of CJ Hopkins, author, satirist, thought criminal

Heinrich von Kleist was a prolific German writer of the late eighteenth century whose work often focussed on the consequences of rhetorical confusion, the serious problems and personal suffering caused by writing or speaking incorrectly. In 1811, at the age of thirty-four, he formed a suicide pact with a close friend, Henriette Vogel, and shot her before turning the gun on himself. On the hundredth anniversary of his suicide, the district of Schöneberg in Berlin gave Kleist’s name to a small, charming park outside the Kammergericht (Chamber Court), the highest court in the state.

Germany is a place of dark irony.

The Chamber Court occupies a huge Neo-Baroque building that takes up an entire city block, bordered on three sides by the aforementioned park and facing a quiet cobble-stoned street. I’m standing outside on a crisp blue-sky morning in September, waiting for a thought criminal named CJ Hopkins.

CJ Hopkins is an American writer, an old-school lefty liberal with “an aversion to totalitarians, fascists, and other such authoritarian control freaks who get their rocks off intimidating, and dominating, and preying on the weak.” In 2004, he emigrated “because of the fascistic atmosphere that had taken hold of the USA at that time,” believing “that Germany, given its history, would be the last place on earth to ever have anything to do with any form of totalitarianism again.”

For thirty-odd years, twenty of which he has spent in Berlin, CJ has cranked out award-winning theatre, satire, dystopian fiction, and acid-sharp commentary on political and social issues. It’s the latter which has earned him, at the age of sixty-three, a sizeable international following, mostly centred on his Substack which has thousands of paid subscribers. He’s been called “a forbidden wit” and “an expert forecaster” by Matt Taibbi. Robert F. Kennedy Jr. once referred to him as “our modern Jeremiah.”

He arrives at the courthouse in a brown trenchcoat, black beret, and sunglasses. He gives me a nod.

“Welcome to New Normal Berlin, Mike,” he says as he walks past me.

We’ve met twice before. I interviewed him remotely for my podcast, and I attended his first trial, in January 2024, at the Tiergarten District Court in Moabit, next to the infamous prison where the Nazis incarcerated and executed political prisoners.

The Crime

In May 2022, Hopkins published a book called The Rise of the New Normal Reich, the cover of which features a medical mask through which a swastika is faintly visible. In August 2022, he posted that image twice on Twitter (now X), accompanied by text.

In the first tweet, Hopkins wrote:

The #masks are symbols of ideological conformity. That's all they are. They always were. Stop pretending they're ever something else or get used to wearing them.

#Masks are not a mild remedy

In the second tweet, he quoted Karl Lauterbach, the Health Minister at the time, who had declared that “The mask always sends a signal”.

That’s it. That’s the crime.

In response, the public prosecutor’s office filed a criminal charge against CJ for “disseminating propaganda, the contents of which are intended to further the aims of a former National Socialist organization.”

Thus began what CJ has referred to as a “Kafkaesque mockery of justice.”

The Law

When people hear about how CJ ended up in court, they’re usually surprised to find out that using a Nazi symbol such as the swastika is not absolutely banned in Germany. It actually depends on context and intent, and there are significant protections for creative, editorial, and educational purposes.

Clivia von Dewitz, a German judge who wrote her doctoral thesis on the ban of Nazi symbols, explained the law under which the charge was brought in an article for Berliner Zeitung:

According to the ban on [Nazi] insignia (§ 86 Para. 1 No. 4, 86a Para. 1 No. 1 StGB), only those who distribute or publicly display Nazi symbols “which, based on their content, are intended to reflect the efforts of a former National Socialist organization” are liable to prosecution. This means that not every use of a Nazi symbol falls under the ban. On the contrary, the law confirms that only material, the content of which is directed against the free democratic basic order or the concept of understanding among nations, is considered [criminal] propaganda media (Section 86 Para. 3 StGB).

And, according to the criminal statute (Section 86 Para. 4 StGB), criminal liability is also excluded if the material serves the purposes of civic education, defense against unconstitutional efforts, art or science, research or teaching, or reporting on current events or history, or similar purposes (the so-called social adequacy clause).

It was in the 1970s that Nazi symbols were first used in a critical or ironic way. In these cases, jurisprudence failed to establish criminal liability, either at the level of the offense or by virtue of the application of the social adequacy clause, because a critical and distanced use of Nazi symbols is not punishable, especially in view of Article 5 of the Grundgesetz [i.e., the German constitution, literally “Basic Law”]. The fundamental right of freedom of expression and freedom of art enshrined therein is constitutive of a democracy.

The law is also recognised by the courts as having a “protective purpose”, a raison d’etre that comes into play when examining whether the use of a proscribed symbol falls within or outside of what is permitted. The general understanding is that the protective purpose of the ban on Nazi symbols in Germany is to prevent the minimisation or, as the Germans call it, “normalisation” of the horrors of the Nazi era and the Holocaust, and to prevent a situation in which it becomes socially acceptable for Nazis or Nazi sympathisers to begin using those symbols more widely.

“You can’t use it, for example, for fun, and CJ agrees with that,” says Friedemann Däblitz, the fresh-faced attorney defending him. “If you write a book about history you can use the symbol. If it is clear that you are using it in a ‘distant’ manner, if everyone can see that this guy doesn’t support Nazism, in those situations, the risk of normalisation is not that big.”

So how normal is the use of the swastika in German media?

Normalisation For Me, Not For Thee

In May 2024, the cover of the German magazine Der Spiegel featured a flag draped over a swastika to illustrate its lead story, an essay by Dirk Kurbjuweit titled 75 Years of the Federal Republic — and nothing learned?

Here are the covers of Der Spiegel and CJ’s book, side by side:

Both CJ and Der Spiegel used the swastika to imply that something is amiss in the world of German politics, with a subtle but crucial difference.

Der Spiegel used the swastika to suggest that the increasingly popular political party Alternative für Deutschland (AfD), “a party with extreme right-wing tendencies,” represents a nascent form of Nazism.

CJ, however, riffed on the cover of William L. Shirer’s famous 1960 book The Rise and Fall of the Third Reich to criticise the German government’s pandemic policies as “a nascent form of totalitarianism.”

The German magazine Stern has also featured the swastika and the Nazi salute on its cover.

May 2024

August 2017

Der Spiegel and Stern were not directly criticising the current German government, nor were they pressing on the sore spot of controversial pandemic policies. CJ did both. Those magazines have had no legal repercussions for their use of the swastika. Only CJ has been prosecuted.

“[M]y personal impression is this law is used completely arbitrarily against dissidents,” Däblitz tells me in an interview. “For me, everything got much worse with the beginning of the pandemic.”

The Pandemic

Pandemic restrictions in Germany were harsh. Citing advice from the Robert Koch Institute (Germany’s equivalent of the CDC), the Merkel and Scholz governments put stringent limits on the rights of the unvaccinated, in addition to lockdowns and mask mandates.

Critics at the time drew comparisons with the Nazi era, often by likening the treatment of the Jews by the Nazis to the government and media discrimination and rhetoric against the unvaccinated. In 2021, BBC News reported on the use by German Covid protestors of the infamous yellow Star of David armband with the word ‘Jew’ replaced by ‘Unvaccinated’.

While perhaps distasteful or inappropriate depending on one’s perception, it remains the case that the social repercussions of the German government’s pandemic policies are still being felt. In Germany, the loss of faith in government and the corrosion of the perception of the legitimacy of authority has been real and widespread, regardless of whether one believes the pandemic policies were well-intentioned or reasonable. The public’s (and CJ’s) suspicion regarding those policies also may not have been entirely spurious.

In late July 2024, the freelance journalist Aya Velásquez received unredacted copies of internal documents from a whistleblower at the Robert Koch Institute and published them. Sebastian Lucenti and Dr. Meyer-Hesselbarth, respectively a lawyer and a former judge writing for Cicero, claim that “the RKI protocols that were released and leaked show that a large proportion of the freedom-restricting norms created between 2020 and 2023 were tainted by the stigma of unconstitutionality from the outset.” Judge von Dewitz, in her article for Berliner Zeitung, wrote that the leaked documents “suggest that the government ordered significant parts of the measures restricting fundamental rights from 2020 to 2022 not on the basis of scientific findings, but out of political calculation, such that a new assessment of the government's actions from 2020 to 2022 is necessary.”

The First Trial

At his first trial, in Room 500 of the Tiergarten District Court, the prosecutor asked CJ if he understood the law in Germany with regards to the use of Nazi symbols. If he had played dumb and pretended to be an ignorant foreigner unaware of the rules of his host nation, the charges would probably have been dropped. Instead, he was honest. He said that he knew full well the history and weight of Nazi symbolism in Germany, and he knew the law as well, including the prohibited and permitted uses of the swastika.

“I don't want Nazis, neo-Nazis parading around in Germany with swastikas either,” CJ told me in an interview before the trial. “And I have to say, although I'm generally a free speech absolutist, I understand that law and I actually agree with it.”

When asked by the judge to give his intentions in posting the image, he stated that it was “to warn people about the emergence of a new form of totalitarianism that is hidden behind the official corona narrative just as the swastika is hidden behind the mask in my artwork.” This drew an involuntary derisory guffaw from the judge. He continued: “I absolutely compared a new form of totalitarianism to Nazi Germany, a twentieth century form of totalitarianism.”

In his opening argument, the prosecutor suggested that CJ was “relativising the Holocaust,” “relativising the Nazi tyranny which is also the aim of supporters of this ideology in a different form,” and equating the Nazi regime to “civic management of 2020 to 2022 which came about within constitutional procedures and was enacted through democratically legitimised institutions...and thus contributes, regardless of his intention, to the normalisation of National Socialist ideas.”

Permitted to respond, CJ pointed out that the well-documented rise of the Nazis likewise took place “within constitutional procedures” and “through democratically legitimised institutions,” closing by saying “I think I'm allowed to compare these [pandemic] measures with measures which took place in the twentieth century.”

He went on to describe instances where public figures had compared current events to the Nazis without subsequent charges from the German authorities, to which the judge responded by saying “We're talking about symbols, not words.”

Speaking of symbols, in that particular courtroom, the ornate ceiling featured two plaster rosettes with fasces in-set, and there were two more examples of the fasces at the entrance to the building. The name of the fasces symbol, a bundle of sticks bound together with an axe head attached, is the root from which the word ‘fascism’ is derived. If you squint, you’ll also see the fasces on either side of the Speaker of the House’s dais in the US Congress.

At the end of the proceedings, CJ read a prepared statement to the court, his voice occasionally betraying his emotions.

“The German authorities have had my speech censored on the Internet, and have damaged my reputation and income as an author,” he said. “One of my books has been banned by Amazon in Germany. All this because I criticized the German authorities, because I mocked one of their decrees, because I pointed out one of their lies. This turn of events would be absurdly comical if it were not so infuriating. I cannot adequately express how insulting it is to be forced to sit here and affirm my opposition to fascism.”

At the end of his statement, the thirty-seven members of the audience in the gallery broke out in applause and calls of “Bravo!” The judge shouted for order and threatened to clear the courtroom. Everyone was ordered to stand up. The judge delivered a stern chiding and, after a moment of suitable silent contrition, the room was allowed to be seated and the door was closed.

She then pronounced her verdict: “Freispruch”. Not guilty.

The judge dedicated half the time spent in delivering the verdict to ensuring CJ was made aware of how little she thought of him. She considered him to be arrogant, ideologically-driven, and incorrect in his views on the pandemic. He was wrong to claim that mask mandates and similar policies were driven by the government's desire to force compliance, and to equate safety measures with brainwashing. She told him that his was a “subjective emotional position” but that “objectively, the German public doesn't agree with you.” By acquitting him, she said, she was proving him wrong in his assessment of Germany as a nascent totalitarian state.

Upon delivering the verdict and ending the proceedings, the judge put on a medical mask and exited the courtroom. You couldn’t make it up.

In the written verdict published after the trial, the judge made it clear that, "when taking into account the text associated with the use of the mask, it can easily be seen that the connection to National Socialism is made in an emphatically negative sense."

Within the seven-day period allowed by law, the public prosecutor’s office applied to the Chamber Court for a “revision” of the verdict using a line of reasoning that Däblitz found highly questionable.

“The prosecutor…decided that if you use the symbol to bring a criticism, this criticism has to be against Nazism,” he explained. “It’s not okay if this criticism is directed against, for example, the government, because in this case it is not clear enough that you are also opposing Nazism.”

The prosecution had pivoted from arguing that CJ was disseminating Nazi propaganda to claiming that he was breaking the law by not specifically criticising Nazis.

“[T]he prosecutor in Germany is not free, it's part of the executive,” Däblitz told me during a podcast recording with him and CJ several months later. “It's part of the government, and they execute what the government wants.”

“The prosecutor is trying to rewrite the law in a much narrower way than it is written,” CJ added. “I believe that the prosecutor just wants to punish me. And so they're pulling arguments out of their ass. And this was really the only argument that they could try to make to continue this prosecution.”

The Second Trial

I join around two dozen familiar faces from the first trial in January, as well as journalists from Berliner Zeitung, Tagesspiegel, Der Spiegel, The Epoch Times, and Legal Tribune Online, in shuffling through airport-style security during which we are emptied, searched, patted, and prodded. A maximum of thirty observers are allowed into Room 145a of the Chamber Court, and no personal items are permitted. We are issued with a blue biro and a handful of blank looseleaf paper on request. The cause of the heightened security is described by Lisa Jani, the court’s press liaison, as being due to an ongoing espionage trial of a German intelligence agent who is accused of colluding with a Russian businessman on behalf of the FSB, Russia’s security service. To prevent anyone placing listening devices in the courtroom, we all have to submit to special measures.

“It would only make sense if this is really the only room available and it's not possible to get another room,” Däblitz tells me in an interview. “So I numerous times had some contact with the people working there and found out there are actually other rooms at least of the same size.”

“It's absolutely unnecessary,” CJ adds. “I see it as just a bald, a blatant attempt to discourage public attendance and to discourage press coverage.”

Once inside, the first thing that catches the eye is a wall of bulletproof glass about fifteen feet high separating the gallery from the area where the proceedings will be held. CJ, Däblitz, and a translator sit at the defendant’s table, set at the foot of a raised dais from which three judges and a new prosecutor frown down.

The ceiling is cross-hatched with a grid of clouded glass through which diffuse light falls. The carpet is a hotel-style mash-up of turquoise, puce, and duck egg, clashing with the wooden benches that we shuffle along to take our seats.

The prosecutor trying the case, which involves the use and interpretation of a symbol, is named Jung. The universe is not without a sense of humour.

In a British or American courtroom, the judge is seated in front of and above both the defendant and the plaintiff. Both parties come before the court as supplicants, pleading for justice, and the judge sits apart, emphasising their (hopeful) impartiality.

A German courtroom makes a strikingly different impression. The judges and the prosecutor sit on the same level, above the defendant, separated only by several metres of wooden panelling. It lands immediately: The prosecutor and the judges are on one side, the defendant on the other. Something about the layout makes me wonder if the fix is in.

Kathrin Jung, the prosecutor, opens with a desultory run-through of her side’s revised argument, which has already been submitted to the judges in writing, along with Däblitz’s defence. It is a scant few minutes before it is over.

Däblitz makes the argument that the prosecutor is attempting “a blurring of the law” and that “[t]he protective purpose of the law is, above all, to preserve the constitutional order” which “is therefore also to preserve the freedom of expression.” The purpose of CJ’s tweets was “to ward off unconstitutional efforts,” he adds. “Those who are determined to support the values ​​of the free democratic basic order should not have to face the risk of prosecution.”

At the end, CJ is given the opportunity to make a statement. Reading from a printout in German, he once again presents his position to the court.

“[H]ere I am, on trial in criminal court for the second time. The German authorities had my Tweets censored. They reported me to the Federal Criminal Police Office. They reported me to The Federal Office for the Protection of the Constitution, the German domestic Intelligence agency. My book is banned in Germany. The German authorities investigated me. They prosecuted me. They put me on trial for tweeting. After I was acquitted, that wasn’t enough, so they have put me on trial again. They defamed me. They have damaged my income and reputation as an author. They have forced me to spend thousands of Euros in legal fees to defend myself against these clearly ridiculous charges.”

While he reads, I see a couple of the journalists sitting in front of me chuckle or sigh dismissively.

“Why, rational people might ask, have I been subjected to this special treatment, while Der Spiegel, Stern, Die Tageszeitung, and many others who have also tweeted swastikas, have not?”

Five feet away from me, the reporter from Der Spiegel squirms a little while taking notes.

“It has nothing to do with punishing people who disseminate pro-Nazi propaganda. It is about punishing political dissent, and intimidating critics into silence. I’m not here because I put a swastika on my book cover. I am here because I put it behind a “Covid” mask.”

Just like the first trial, at the end of his statement the gallery erupts in applause and cheers to the annoyance of the judges.

The presiding judge, Delia Neumann, declares a forty-five minute break so that her and the other two judges, Dr. Ammann and Dr. Brunozzi, can deliberate and return a verdict.

In the corridor outside, I notice that on the clipboard showing the docket for today’s trial, the names of CJ and his lawyer have been misspelled: ‘Hopkings’ and ‘Däbitz’. CJ sits on a bench with his wife and tries to relax.

The time passes surprisingly quickly.

After we’re all seated, the judge begins to read her verdict. She reads for twenty minutes with barely any inflection or pauses. I find myself wondering how the judges managed to deliberate, reach a consensus, and write a twenty-minute verdict in forty-five minutes. Judge Neumann stops reading abruptly, stands up and leaves. We’re ushered out of the gallery. I turn to the person next to me and ask what happened. He shrugs.

“Guilty,” a helpful fellow observer says, leaning over.

In the words of Kurt Vonnegut, so it goes.

The Verdict

The official statement of the Chamber Court declares that CJ Hopkins has been found “guilty of using symbols of unconstitutional organizations.”

Referring to the judge’s ruling in the first trial, the Chamber Court calls her line of reasoning “legally incorrect” because “[t]he protective purpose of the law is to banish the use of symbols of unconstitutional organizations from the picture of political life, regardless of the intention behind it.” The Court’s statement continues by emphasising that “the communicative taboo” preventing the use of the swastika in daily life “must be maintained so that people do not become accustomed to such symbols.”

Däblitz is taken aback. “They left out what my core argument was,” he says. “My core argument was he was objecting to unconstitutional activities and in these cases it is explicitly allowed to use the swastika, and they didn’t say anything about that.”

When asked about “the communicative taboo”, Däblitz is adamant that according to the law as written “you can use [the swastika] to speak up against unconstitutional activities because this law, basically, wants to protect a free order, with freedom of speech, because a free democratic society needs freedom of speech, so basically that’s the ultimate goal and that’s why they want to ban Nazis and also Nazi symbols.”

The Chamber Court, it would seem, has either changed the law or is at odds with it.

Milling around on the steps of the block-sized building, nobody who attended the trial, from the Court’s press liaison to journalists to members of the public, gives the same answer when asked what the verdict actually meant, what the reasoning behind it was, how it related to the law in question, and what the implications are going forward. Confusion reigns.

Däblitz confirms that he and CJ will be applying to have the case heard at the Constitutional Court, the highest legal authority in the country. It’s their last chance, a Hail Mary, and, as he puts it, “they’ll probably refuse to hear the case.” The alternative is that the lower court will now decide on a sentence.

What Now?

Over wine and flammkuchen at a café in the Neukölln neighbourhood, I ask CJ what he thinks his sentence will be if the Constitutional Court doesn’t accept his case.

“They could do anything,” he says. “I could get three years in jail.”

His wife, who happens to be Jewish, holds his hand and watches him lovingly. I can see that she’s worried.

I ask him how it feels to have moved here from America specifically because of what he felt was a rising tide of fascism, only to have this happen.

The convicted thought criminal shakes his head. “This country broke my heart.”

In the famous German novella Michael Kohlhaas, published in 1810, the eponymous protagonist is wronged and sets out for justice, only to find that the system will not let him have it. In despair, he cries out: “I will not abide in a country in which my rights are not protected.”

That novella was written by Heinrich von Kleist, the suicidal author whose name adorns the park that surrounds on three sides the courthouse where Germany broke CJ’s heart.

Germany is indeed a place of dark irony.

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You can make contributions to CJ’s defense fund here, read his work on Substack and Consent Factory, and follow him on X where he is @CJHopkins_Z23.