Free Speech

Polish Bill Would Outlaw Statements That Accuse Poles of Complicity in Nazi Crimes

More censorship creep in Europe, which already forbids a wide range of claims about history.

|The Volokh Conspiracy |

The lower house of the Polish Parliament has passed a bill that would, in relevant part, make it a crime (1) to "publicly and contrary to facts, ascribe to the Polish people or to the Polish State responsibility or partial responsibility" for Nazi crimes, "other crimes against peace or humanity," or "war crimes," or (2) to "otherwise grossly reduce the responsibility of the true perpetrators of those crimes." There would be an exception for "acts that are part of artistic or scientific activity" (an exception that would presumably also cover academic historical claims, but likely not political claims). The crime would be punishable by up to three years in prison, and apparently would apply to such speech anywhere in the world, not just in Poland. (Translation thanks to my father Vladimir Volokh.)

The law is apparently targeted at, among other things, people calling the Nazi death camps in Poland "Polish death camps," or to fault Poles generally for complicity with Nazis. As the Jerusalem Post (Herb Keinon & Lahav Harkov) reports, some have indeed argued that many Poles were so complicit, though of course Poles generally were among the great victims of Nazis as well; presumably this would be a crime if the bill passes.

I'm opposed to laws criminalizing Holocaust denial for many reasons, but one of them is the "censorship envy"—and the normalization of censorship of historical claims—that leads such laws to breed many more laws. For other examples, see the French fine against noted historian Bernard Lewis for his statements about the deaths of Armenians during World War I (Lewis had stressed that the killing happened, but argued that it was not part of a deliberate campaign of extermination by the Turks), and the EU genocide denial directive that calls for criminalizing allegedly "denying," "condoning," or "grossly trivializing" various events that are much more historically controversial than the Holocaust.

In any case, there's still time for this Polish proposal to be rejected; I hope that indeed happens, or else it too would likely lead to further censorship creep.

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  1. You can’t wave away history with a law. People keep trying though.

    1. I suppose that this is sensitive topic for many, so please understand that I do not intend to offend anyone. And I certainly understand and indeed agree with the futility of “censoring” thoughts and speech.

      But history tells me that the German Nazis along with their Soviet allies attacked Poland on September 1, 1939. Poland was “history” in a matter of a few short weeks. After that calamity for the Polish people (and indeed all the inhabitants of that country; Jewish, Ukrainian, Lemko, Rusyn, and Polish), Poland for all intents and purposes ceased to exist.

      You don’t hear too much of anything historically being attributed to “Poland” from the Third Partition in 1795 until after WWI. So in what historical sense could those concentration camps be “Polish”? It simply does not accord with history or practice in other respects.

      So indeed let’s not wave away the history.

      1. You don’t hear much about the Polish government between the third partition and WWI, but that doesn’t mean you don’t hear about Poland or the Polish.

        1. You might have heard of “Poland” as an aspiration but not in any sense as a political reality. And certainly the Polish people and Polish language were still around.

          The point remains: there is no meaningful sense during during WWII in which one could attribute any official actions in relation to the concentration camps to “Poland.” So why then call the concentration camps “Polish?” It is a misuse of language and a factual misattribution of responsibility.

          And, in any case, it’s a stupid law likely meant to educate through intimidation. But it’s worthwhile understanding why the Polish government is so sensitive. After all, more than three million Poles plus nearly all the Polish Jews died in those camps.

  2. Thanks for that interesting post , if that improvised translation , does fit the original meaning , then , one may claim that : ” contrary to facts ? ” is problematic , for it is undermining the very underlying fact ( subjective fact or perception ) that the polish nation , had nothing to do with those crimes . For if somebody would present contradicting facts , what then ?? It does render it hypothetical yet , and indeed :

    That tension between freedom of speech , and academic freedom , well presented by the respectable author of the post, has been solved somehow , by the Israeli legislator , by establishing a crime ( denial of the Holocaust ) not merely for denying it , but , out of , or with the intent to sympathizing with the perpetrators ( the Nazis ) here I quote article 2 of the :

    Denial of Holocaust (Prohibition) Law, 5746-1986

    A person who, in writing or by word of mouth, publishes any statement denying or diminishing the proportions of acts committed in the period of the Nazi regime, which are crimes against the Jewish people or crimes against humanity, with intent to defend the perpetrators of those acts or to express sympathy or identification with them, shall be liable to imprisonment for a term of five years.

    Thanks

    1. There is no tension and that is not a solution. It is ironic that Israel is aggrieved by, and garish that it would object to, censorship in this context.

      1. Read my clarification down there . Also , it is a reasonable solution , at least in this sense , that it doesn’t bar academic research or new insights and opinions to be presented further . Because , actually , who would deny atrocity out of sympathy to perpetrators ?? So, the Q shall always back to the issue :

        Whether it is a fact or not ( the occurrence of the atrocity ) . If the issue is merely factual , then , such prohibition , has no effect !! For , only with the clear intent of sympathy or alike to the perpetrators , a person shall be punished as prescribed by that law .

        Not heaven on earth , but far greater better ?.

        Thanks

        1. A person who, in writing or by word of mouth, publishes any statement denying or diminishing the proportions of acts committed in the period of the Nazi regime, which are crimes against the Jewish people or crimes against humanity, with intent to defend the perpetrators of those acts or to express sympathy or identification with them, shall be liable to imprisonment for a term of five years.

          —-

          “I, Hans Germanfritz of Freiburg, have performed an independent analysis of the relevant historical records which I have access to, and I conclude that the actual number of Freiburg residents killed by the Nazi regime could not have been more than 40% of the officially recognized number.

          I post my conclusion here on Facebook to rehabilitate the memory of my grandparents and many other Freiburg residents, who have been unfairly characterized as perpetrators of genocide due to their inaction while the genocide, which they must have been aware of due to its alleged local scale, was being carried out.”

  3. This dispute mostly sets one belligerent, authoritarian, right-wing government against another belligerent, authoritarian, right-wing government.

    The better approach to such a dispute is to resist the urge to enjoy the show and instead to oppose censorship on principle.

  4. Just clarification to my comment above :

    Tension between : freedom of speech , academic freedom , and : the crime of denying atrocities of such .

    Thanks

  5. It would seem freedom of speech would have, in this scenario, the ability to set up a “firewall” preventing a war of words leading to a diplomatic row, leading to god knows what.

    Freedom of speech, Freedom of religion, Freedom of thought, is what enables separation of church and state, and separation of honor and state.

    Leave religion to the religious, history to the historians, science to the scientists, and truth to the individual, not the collective.

  6. Another reason to oppose censorship, in this and other cases, is that it gives credibility to the censored statement, the authors of which may point out that a likely reason for suppression of a statement is that it is impossible to refute it by evidence and argument. That is not always the motivation for censorship, but it often is. (Recall that in English law truth was not a defense against the charge of seditious libel – in fact, it was an aggravating factor.)

    What I find particularly ironic about this case is that what seems to have triggered the legislation is the use of the phrase “Polish death camps”, which does not necessarily imply any Polish responsibility for the camps. In noun phrases of this type, in English and in other languages, the thematic relationship between the formal modifier and modified phrases can be of many types. “Polish death camps” might refer to death camps operated by Poles, but it might equally well refer to death camps located in Poland but operated by Germany, which was indeed the intended meaning. There is the larger issue of the extent of Polish responsibility for the Holocaust lurking in the background, but as far as the immediate triggering incident is concerned, this is much ado about nothing.

  7. I have experience with this stuff on Wikipedia. An article where Poles are mentioned together with antisemitism brings attempts to “fix” the article, along with claims that there wasn’t any. This is true about antisemitic events long before the Holocaust.

  8. The most worrying part of this to me is the claim of worldwide jurisdiction. I recall the case a few years ago when a British person speaking in Britain (where holocaust denial is legal) was extradited to Austria and imprisoned for it there.

    Does the SPEECH Act protect Americans against all foreign speech laws that would violated the First Amendment if enacted here? (I’m thinking not just this one but Canada’s “hate speech” law, too.) If the answer is no, that’s something President Trump and the present Congress may well be willing to fix.

      1. Hmmm… I guess I screwed up the html. What I meant to say was “even under the EU’s European Arrest Warrant rules…”

  9. I guess in general there’s two things mixed together in this story.

    On the one hand, the Polish government is trying to punish people for publishing certain knowing falsehoods, which I think should be OK. (I have an issue with the US Supreme Court’s Stolen Valor case.)

    On the other hand, they’re trying to rewrite history by punishing people that are definitely not falsehoods, or at least not knowingly false. That will almost certainly get Poland in trouble with the ECtHR. The question is whether the current Polish government is in any mood to care…

  10. It appears there is a positive development with Poland having the courage to recognize that individual justice is more important than protecting it’s collective honor.

    Reason breeds justice.

  11. Brutal Monday in NE, but life goes on and thankful to see martinned’s comments after a long absence.
    Sarcastro, Loki, NTOJ, Rev Al, Brett, (forgive Acanemy award speech- forgot so many) a lowly NE lawyer lovrs reafing this site. Thanks

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