Polish backslide on Holocaust is morally, legally troubling

In 1905, Spanish poet and philosopher George Santayana wisely remarked: “Those who cannot remember the past are condemned to repeat it.”

In 2018, it appears that the Polish government has suffered an incurable memory lapse now that it has enacted legislation that aims to punish — with up to three-year prison sentences — those who commit the unspeakable crime of using the three words: “Polish death camps,” or, even worse, suggest “publicly and against the facts” that Poland had collaborated with the Nazis in the extermination campaign that left millions of Jewish people dead.

{mosads}As a kind of sop, the law does not prohibit statements of wrongdoing that individual Poles may have committed against the Jews. And there is still an outside chance that the Polish constitutional court will curb or strike down the law, as both the United States and Israel have urged. Thank heavens the law does not have an extraterritorial application.

One of the most disturbing features of the current controversy is the far-fetched rationales used in its defense. Thus, Polish President Andrzej Duda stuck his foot deeper down his throat when he claimed that the legislation “protects Polish interests … our dignity, the historical truth… so that we are not slandered as a state and as a nation.”

This statement invokes the notion of group libel but shows no appreciation for how it works. Its first error is to assume that group slander is actionable at all. In the United States, in the heat of the post-World War II anti-communist fervor, the Supreme Court narrowly upheld these laws in 1952 only to reverse course by the late 1960s.

Today, both the First Amendment and the common law of defamation take the firm position that group libel is never subject to suit in court. That proposition rests on the simple truth that counterspeech is by far the better remedy to the extent that particular statements are made.

The background information on a particular subject is available to all, which means that any new statements do not have the same impact as any statements made about a single individual or small group, based on private information, to which no one else has access.

Statements on matters of public concern are not published in a void. People who are interested in a topic have already formed opinions of their own and are likely to discredit any source that does not jibe with the historical record.

If, therefore, President Duda and his allies think that statements hostile to Polish interests are wrong or incorrect, they are free to offer their own account of how history ought to be interpreted. But it is a mistake of disastrous importance for one side in a dispute to declare itself a victor before the battle in question has been fought.

The situation is made no better by the willingness of Duda to prejudge the history on which there is ample evidence the other way. To say that the Polish public institutions at the national and local level were involved in the Holocaust is not to deny that the driving force in this sorry venture was the Nazis.

But it leaves open huge areas of dispute over both the extent and the consequences of that cooperation.

Richard A. Epstein is the Peter and Kirsten Bedford senior fellow at Stanford University’s Hoover Institution.