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OpinionColumnistsCathy Young

Danger of legislating history of the Holocaust

Poland’s new law to limit some discussion of it could easily be abused.

The iconic rails leading to the former Nazi

The iconic rails leading to the former Nazi death camp of Auschwitz-Birkenau prior to a visit by Pope Francis in Poland in 2016. Photo Credit: AP / Alik Keplicz

Some say a controversial new law in Poland amounts to rewriting history and suppressing the truth about the Holocaust. Others counter that it is about protecting historical truth. But a bigger question is whether acceptable claims about history should be legislated.

The law, signed by Polish President Andrzej Duda last week despite criticism from the United States, Israel, and other countries, has a section titled “Protecting the reputation of the Republic of Poland and the Polish Nation.” It provides penalties, from a fine to imprisonment of up to three years, for anybody who publicly claims that Poland is collectively “responsible or co-responsible for Nazi crimes committed by the Third Reich.”

The controversy over the bill reflects Poland’s complicated history during World War II. Millions of Poles were killed by the Nazis and hundreds of thousands fought in the resistance; many risked their lives to rescue Jews. Yet there were also many collaborators, some of whom participated in the killing of Jews — a fact Polish government officials have recently tried to downplay or deny.

Critics say the law is intended to boost flattering national myths of innocence and virtue and would stifle research and conversation on difficult facts. Some even worry that Holocaust survivors who talk about their experience may be charged if they mention their suffering at the hands of Polish persecutors.

Others say the fears are overblown and based on faulty reporting, since the law exempts “artistic or academic activity.” And yet concerns about the repressive potential of supposedly limited speech-infringing laws usually tend to be well-founded. It is troubling that the law, still up for review by Poland’s constitutional court, allows penalties even for “unintentional” offenses.

Meanwhile, writing in the Jewish magazine The Forward, Polish journalist and historian Marcin Makowski defends the law as a measure to protect the historical record. He compares it with laws criminalizing Holocaust denial that exist in 16 countries, including Poland and Israel. Germany has a broader law against Nazi propaganda and hate speech that also can be used to prosecute Holocaust deniers.

Of course, one can argue that Holocaust denial laws target propaganda that blatantly denies facts and insults survivors and their families, while the Polish law seeks to protect the national image from uncomfortable debates.

And yet the logic in Makowski’s comparison is hard to refute: Once you’ve empowered the state to punish undesirable versions of history, who decides where to draw the line? Authoritarian regimes can use the same model to suppress challenges to nationalist propaganda. In 2014, Russia instituted penalties both for denying Nazi crimes and for spreading “false information” about the Soviet Union’s actions in World War II (read: politically incorrect discussion of the Soviet regime’s own atrocities). Now, Poland, which is also sliding toward authoritarianism, might be going down the same path.

Whether Holocaust denial laws are useful is far from clear. Princeton philosopher Peter Singer, a grandchild of Holocaust victims, has argued that prosecuting deniers won’t convince those who share their beliefs, but only make them think that “people are being imprisoned for expressing views that cannot be refuted by evidence and argument alone.”

The United States has no laws punishing Holocaust denial, yet anti-Semitism and Holocaust denialism are more marginalized here than in most European countries. Exposure and free debate are still the best way to counter lies. Well-intentioned bans on odious opinions can be turned against unpopular speech. At a time when many American progressives question First Amendment absolutism, the Polish law should be a reminder of its value.

Cathy Young is a contributing editor to Reason magazine.

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