SULLUM: Poland’s Holocaust bill is a hate speech ban

In Poland, as in several other European countries, it is a crime to deny the Holocaust. Soon, thanks to a bill that was approved by the lower house of the Polish parliament on Friday, it may also be a crime to discuss the Holocaust too frankly.

The pending ban on references to Polish complicity in Nazi genocide, which has provoked outrage in Israel and around the world, may seem inconsistent with the ban on Holocaust denial. But the two taboos are of a piece with each other and with Poland’s prohibition of ethnic insults — a fact that should give pause to American fans of European-style speech regulation.

The Polish bill makes it a crime, punishable by fines and up to three years in prison, to accuse “the Polish nation, or the Polish state, of being responsible or complicit in the Nazi crimes committed by the Third German Reich.” The legislation was motivated largely by anger at the common use of phrases like “Polish death camps,” which could be read to mean that the war crimes committed by Germans in occupied Poland were a project of the Polish government.

“German Nazi crimes are attributed to Poles,” Deputy Justice Minister Patryk Jaki complained last week. “And so far the Polish state has not been able to effectively fight these types of insults to the Polish nation.”

Some of these “insults” happen to be true, since part of “the Polish nation” was “complicit in the Nazi crimes.” Poles saved Jews, but Poles also murdered Jews, under Nazi instruction and on their own initiative.

Acknowledging that complicated and troubling reality could expose people to criminal liability under the proposed law, notwithstanding its focus on statements “contrary to fact” and its exemption for people engaged in “artistic or scientific activities.” The bill, which applies to mistakes as well as deliberate misrepresentations, charges the government with determining what is true and whose motives are elevated enough to shield them from prosecution.

The impact of such a system goes far beyond the people who are actually fined or imprisoned, since the possibility of an investigation encourages self-censorship. The result — people afraid to speak their minds, lest they attract unwanted attention from the government — hardly seems consistent with the “freedom to express opinions” and “disseminate information” guaranteed by the Polish constitution.

The same could be said of the Polish laws that make a criminal out of anyone who minimizes or denies Nazi war crimes or who insults or incites hatred against people based on their nationality, ethnicity, race, or religion. These are fuzzy categories that invite arbitrary and unpredictable enforcement, chilling speech that might offend the sensibilities of protected groups.

The proposed ban on charges of Polish complicity in the Holocaust is similar in logic as well as impact, since it criminalizes “insults to the Polish nation,” a kind of group defamation. The same principle that is aimed at protecting minorities from verbal oppression can be easily adapted by majorities seeking to suppress speech that makes them uncomfortable.

We need not look abroad to see how slippery the concept of hate speech can be. Last year Howard Dean, former governor of Vermont and former chairman of the Democratic National Committee, argued that the University of California at Berkeley’s decision to cancel a speech by conservative commentator Ann Coulter did not raise any constitutional issues because “hate speech is not protected by the First Amendment.”

Dean was wrong about that, since “hate speech” is not a legally relevant category in the United States, and his loose use of the phrase demonstrated why making it so would be dangerous. Why bother to argue with your opponents when you can have them arrested?

The Polish legislators who want to criminalize speech that offends them are trying the same shortcut. The only way to close it off is by rejecting, once and for all, the illiberal idea that people have a right not to be offended.