Free Speech and the Holocaust: Poland’s Attack on Civil Rights and the Rule of Law

What is the proper role of free speech concerning the Holocaust?  Over a dozen countries in Europe have made the denial of the Holocaust a crime.  They urge that such a step is necessary to prevent the horrors of the Nazi war crimes from ever being forgotten.  In Poland, the concentration camp Auschwitz (pictured) remains as a museum that has become a major symbol of the Holocaust.  Recently, however, the Polish government has taken steps to restrict free speech about the Holocaust, which is still a highly controversial issue in the nation.

On 26 January 2018, the Polish Sejm (Lower House of Parliament) passed a bill banning speech that implicates the government of Poland in Nazi war crimes.  The Polish Senate (Upper House) approved the bill 57 to 23 on 1 February.  On 6 February, President Andrzej Duda signed the bill.  Although Duda supports the bill, he recognized public concerns and recommended that the Constitutional Tribunal review the bill.  While the bill does not ban speaking of the participation of individual Poles in the Holocaust, it does prohibit the implication that the Polish government participated systematically in Nazi war crimes.  Violating the law could result in up to three years in prison.  Both Israeli and American government officials have criticized the law, arguing that it limits legitimate free speech and harms the memory of the Holocaust.

Image courtesy of German Federal Archive via Wikimedia, © 1945, some rights reserved

This new bill follows the trend of the right wing Law and Justice Party in attacking the rule of law, the democratic system, and civil rights since it secured a parliamentary majority in 2015.  In November 2015, five positions on the Constitutional Tribunal were opened by retiring judges.  Three retired after the election, but before a new Parliament was formed, and the other two retired in early December.  In its last days of office, the Civic Platform Party attempted to pass legislation that would nominate judges to fill all five positions.  The bill was found unconstitutional by the Constitutional Tribunal, which ruled that only the three judges who had retired in November could be chosen by the Civic Platform Party.

The newly elected Law and Justice Party passed legislation in late November invalidating all five judges and then rushed to nominate five judges on the night before the Constitutional Tribunal made its decision.  President Duda then swore in four of the five judges, who were sent to the Constitutional Tribunal to participate in its decision.  The Tribunal, however, refused to include the new judges and confirmed only the three November judges nominated by the Civic Platform Party.  The Parliament responded by passing a bill in December 2015 requiring the Constitutional Tribunal to have a two-thirds majority to make decisions and to have at least nine of thirteen members present at all times.  These standards combine to slow the work of the Constitutional Tribunal and weaken it relative to the Parliament.  The situation remains unresolved and in December 2017, the European Commission concluded that the rule of law had been ignored and referred Poland to the European Court of Justice.

Later in December 2015, the Parliament passed legislation giving the government more control over state-run media by allowing it to replace senior officials.  In February 2016, the Parliament passed a law expanding the capabilities of government surveillance by allowing access to digital data and loosening restrictions on police spying.  These laws resulted in protests by thousands of Polish citizens.

Setting recent political developments aside, Poland has long struggled with protecting civil rights, especially free speech.  During the Communist era of Polish government, free speech and free press was significantly restricted.  After 1989, a delicate balance has been struck between punishment of and reconciliation with former members of the Communist government.  The Institute of National Remembrance is tasked with the investigation of both Nazi and Communist crimes committed in Poland.  It is also responsible for the complicated and controversial process of lustration.  Originally, lustration referred to the limitation of former Communists from holding major political offices.  In 1997, however, former Communists who admitted the complete truth of their pre-1989 activities in a public confession could clean their record.  In recent years, officials have argued that it is time to make the entire Communist archives publicly available.  Such a process is complicated by the existence in the archive of falsified documents asserting Communist cooperation by many public officials.  The new Holocaust free speech law can be seen as a continuation of the Polish government’s partial censorship and protection of its own history.  The shadow of both the Nazi and Communist regimes still lingers over political life in the country.

The role of free speech is further complicated because Poland has outlawed the denial of either Nazi or Communist crimes.  The prosecution of Holocaust denial has been hotly debated both in Europe and throughout the world.  Countries such as France and Germany have argued that permitting Holocaust denial strengthens the cause of neo-Nazi groups.  The United Kingdom and especially the United States claim that such aims must be balanced with the civil right of free speech.  Holocaust denial belongs to a larger class of issues that can be classified as either hate speech or hate crimes depending on the country.  With the rise of right wing populist movements across Europe, it is likely that the issue of free speech will continue to grow in coming years.  The weakening of the Polish democracy will remain as a warning to other European governments of the importance of preserving the rule of law and protecting the civil rights of their citizens.

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