Is Tweeting “Andrzej Duda is a moron” a Crime?: The Troubling Potential for Abuse in Poland’s Defamation Laws

, by Nicholas Kulawiak

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Is Tweeting “Andrzej Duda is a moron” a Crime?: The Troubling Potential for Abuse in Poland's Defamation Laws
Flickr: Copyright All rights reserved by Patrick Chartrain

From intellectuals like Czesław Miłosz to labor organizers like Lech Wałęsa to surrealist artists like “Major” Waldemar Fydrych and the Orange Alternative, impactful dissidents have shaped recent Polish history. Yet that proud dissident tradition has increasingly come under threat, as the ruling Law and Justice Party (PiS) has sought to deploy the Polish justice system to target and deter intellectual elites and attack opposition figures.

This trend is most startlingly reflected in the case of Jakub Żulczyk, a well-known writer who in November 2020 called President Andrzej Duda a “moron” (debil) on Twitter. His comment came after Duda congratulated Joe Biden on “a successful presidential campaign” while noting that “nomination by the Electoral College” had not yet occured. Duda’s tweet played into Donald Trump’s baseless narrative that the election result could be overturned by the Electoral College, reflecting the close ties that developed between the two leaders.

Now, Żulczyk says he is being charged under Article 135 of the Polish Criminal Code, which holds that publicly insulting the President of Poland can result in a prison sentence of up to three years. Poland’s Criminal Code also includes articles criminalizing defamation of the state, state symbols, and state institutions. Even defaming foreign heads of state and symbols is prohibited, making Poland among the most OSCE countries in limiting speech that could be taken as insulting the state or its leaders.

Indeed, back in 2012, then-OSCE Representative on Freedom of the Media Dunja Mijatović called on Poland to decriminalize defamation of the head of state. Mijatović declared that “criminal sanctions for insulting heads of state are out of place” in a modern democracy, “especially since the European Court of Human Rights has for decades overturned such verdicts.” Her remarks came after a man who created a website with a game in which users could hurl vegetables at an image of President Bronisław Komorowski was convicted under Article 135. In its verdict, the court made a point of noting the “clearly sexual, erotic dimension” of the images of Komorowski.

Though an appeals court eventually threw out the decision, another case followed. This one was against a blogger who, in reference to Komorowski and then-Prime Minister Donald Tusk, wrote that Poland was run by two “Russian cwele” (cwel is a profane insult that emerged from prison slang). Even more innocent instances like that of a man who in 2006 called then-President Lech Kaczyński a “thief” after reportedly drinking six liters of cherry liquor ended up in court, raising important questions about deployment of state resources on such trivial matters.

Given this background, Żulczyk’s case is not unprecedented, at least at face value. Yet pre-2015 defamation cases seem to not have had an overarching political bent, a critical contrast to the increasingly political basis for post-2015 deployment of defamation laws.

Since PiS’ ascent to power in 2015, the party has explicitly stoked polarization as an electoral strategy. This context makes defamation laws like Article 135 very dangerous. Moreover, PiS’ weaponization of the judicial system means that Żulczyk’s case might be a harbinger of what is to come: ostensibly separate branches of government colluding to stifle dissent by targeting prominent public voices in “the world’s most autocratizing country.”

Whereas Komorowski made it clear that he had nothing to do with the Article 135 cases brought against individuals who defamed him and said he could “manage without such protection,” it does not seem that Poland’s current leaders will be as gracious when it comes to defending state symbols and leaders.

For example, in 2018, a poet was fined for posting a video of himself singing a slightly altered version of the national anthem that mentioned refugees. A 2018 Pride March that featured a flag with the Polish coat of arms in rainbow colors resulted in a criminal investigation. In December 2020, a man was sentenced to six months of community service for drawing a penis on an election poster for Andrzej Duda. Lesser-known individuals than Żulczyk are currently in court for defaming Duda.

A 2016 Pew Research Center study of 36 countries around the world indicated that support for free expression in Poland was topped only in the US. However, a subsequent Pew study from 2019 indicated that only 49 percent of Poles believe it is “very important that opposition parties can operate freely.” This is a relatively low number that seems even lower when compared to Hungary (68 percent) and Czechia (58 percent), two of Poland’s regional peers.

The tension between high support for free expression and relatively low support for democratic norms that facilitate free expression mirrors the inconsistencies in PiS’ position. In 2012, when Komorowski was President and Jarosław Kaczyński was opposition leader, the latter proclaimed himself a “decided supporter of abolishing” Article 135. Now, PiS is in power, and even as Kaczyński proclaims that Poland will be an “island” of free-speech in a Europe taken over by political correctness, his party has energetically enforced speech-limiting defamation laws.

Ultimately, while Żulczyk’s case is an instructive example, its specifics should not overshadow the larger picture: the defamation laws currently on the books are useful tools in PiS’ grand strategy of limiting public debate and crafting an exclusive national narrative. Targeting independent media outlets is one tactic. Taking on academics whose findings complicate the myth of Poles exclusively being bystanders during the Holocaust is another. And now, having done away with what Jarosław Kaczyński termed the “legal impossibilism” of an “over-idealistic understanding of division and balance of power among the branches of governments,” PiS can deploy Poland’s wide-ranging and broadly applicable defamation laws to muzzle prominent voices like Żulczyk’s.

Simply by taking Żulczyk to court, the government has sent a message, reminding those who might think to make a note of dissent over social media that consequences will be paid.

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