Poland’s Women’s Strike and the Legality of Radical Forms of Verbal Protest in Defense of Democratic Principles
They say desperate times call for desperate measures. Yet is this concept applicable in law? Women protesting against the unconstitutional abortion ban in Poland found out the hard way.
On October 22, 2020, women in Poland were stripped of their rights to abortion. According to the new amendment to the Parliamentary Act on Family Planning, the Protection of Human Feti, and the Conditions Permitting the Termination of Pregnancy of January 7, 1993, the procedure is also penalized when carried out in accord with medical recommendations on embryo-pathological premises. [1] The resulting outrage, fueled by cases of lethal sepsis among women who were denied the procedure, evolved into a nationwide movement called Women’s Strike, under which opponents of the abortion ban organize mass protests often accompanied by profanity and defamatory slogans. To dissuade the public from rebelling against its conservative ideology, the ruling party—Law and Justice (PiS)—launched a sensational crusade against demonstrators who are then prosecuted under miscellaneous laws that effectively serve as pretexts to silence them. Among many others, Julia Landowska, a 22-year-old student and member of the feminist foundation Widzialne – Zmiana jest Kobieta (Seen – Change is a Woman in English), was charged with a misdemeanor for chanting “F*** PiS” through a megaphone during a spontaneous gathering in Gdansk. On January 12, 2022, the District Court of Gdansk charged and fined the young activist under Article 141 of the Code of Practice for Petty Offenses, which regulates misdemeanors such as the use of indecent language in public. [2] While the sum of 50 zlotych (approximately 10.34 USD) might seem financially innocuous, the ruling inspires a highly anticipated discussion about whether there exist any extenuating circumstances justifying radical forms of protest. Nevertheless, there is basis to claim that Julia Landowska was unlawfully charged since when used to protect democracy and the rule of law or constructively express an opinion or emotion, profanity is not indecent and therefore legal under Polish law.
“F*** PiS” is an appropriate reaction in a legal, logical, and biological sense and does not breach the Code of Practice for Petty Offenses. While the term “f***” is undisputedly vulgar, it is not by definition indecent, or “not suitable or correct” in the context of its utterance. [3] When considered in concreto, the aforementioned verb is a universally used and understood medium for declaring anger, despair, disapproval, and frustration during an event (peaceful protest) designed solely for that purpose. In Polish, “j****” [“f***”] and “k****” [also “f***”] have eleven and forty-seven distinct functions, respectively, which suggests that vulgarisms are ambiguous words whose meanings are strictly dependent on the context of their usage. [4] This conclusion is further reflected in the modest contents of the Polish Code of Practice for Petty Offenses which in no way defines the adjective “indecent” or proposes a dogma of conduct in public. In other words, individual courts are tasked with analyzing the circumstances and potentially classifying deeds as indecent. Notably, in 2018, in the case of Republic of Poland v. JJ, Judge Slawomir Jeksa argued that language evolves; vulgarisms have become casual in adolescent and adult communication, mass media, and even art. [5] Therefore, it’s unlikely that a bystander would find “F*** PiS” scandalous or personally offensive, especially knowing and willingly participating in the protest culture. This expertise on the social noxiousness of swearing was, nevertheless, blatantly ignored in Landowska’s trial.
If there were, however, a conventional agreement to classify all profanity as indecent due to cultural and aesthetical connotations, the court’s ruling would be discriminatory towards demonstrators, the majority of whom are female activists. The legal principle aequalitatem ante legem requires laws to apply equally to all citizens and, therefore, for authorities to prosecute offenses with equal dedication. In his opinion letter, Michal Romanowski—Julia Landowska’s pro-bono defendant—notes that, if his client is to be charged, so should the many rappers who vulgarly address Poland’s political situation in their lyrics. [7] Examples include Mata and his plea to “f*** Polish national TV,” Zabson singing “I f*** every government, they want to steal my money”or Cypis and his infamous three-minute repetition of “f*** PiS”—the same words that Landowska was prosecuted for. [8] Even years after the release of these songs, no legal action has been taken against the musicians. The offenses committed by the listed artists are comparable, if not identical, to those of female protesters. The state’s particular concern with swearing women is representative of the patriarchal and traditionally catholic attachment to the stereotype of female dependability, delicacy, maternalism, and sanctity; an image that Women’s Strike successfully abolished. The discussed verdict may be thus interpreted as an attack on inclusivity and equality before the law.
The question surrounding the legality of radical language, at its core, concerns Polish freedom of speech principles and the extent to which it allows for the critique of state authorities. The right to freedom of speech, guaranteed by Article 54 of the Polish Constitution, Article 10 of the European Convention of Human Rights, and Article 11 of the European Union Charter of Fundamental Rights, allows for the articulation of ideas and opinions unhampered by the fear of third-party interference or repercussions. [9] This holds true in relation to all subject matters, including political authorities and their actions. On March 14, 2013, in the case of Eon v. France, the European Court of Human Rights (ECHR) ruled in favor of Hervé Eon whose words “Get lost you sad p****”, directed toward President Sarkozy, were deemed an unpunishable political comment, pivotal for achieving the goals of a democratic society. [10] The ECHR explicitly rejected the idea of restricting the freedom of expression in the area of political speech and debate or in matters of public interest and went on to reiterate that the limits of acceptable criticism are wider in regard to politicians than private individuals. The jury’s firm belief that public figures must tolerate a degree of offense and provocation in political discussion sets a precedent for cases of blunt commentary, such as that of Julia Landowska. Since all three cited legal acts have priority over the Polish Code of Practice for Petty Offenses, prosecution for the use of the phrase “F*** PiS” is a violation of national and international law and may be perceived as a form of censorship, rendering citizens unwilling and incapable of participatory involvement.
Finally, the charges are unnecessary and irrelevant in relation to the ratio legis − the reason or underlying purpose − of Article 141 of the Code of Practice for Petty Offenses which is considered to be preventing the degradation of the Polish language and culture of speech. As the district court in Poznan pointed out in the analogous Republic of Poland v. JJ trial, penalizing individual colloquialisms is unlikely to accelerate achieving the aforementioned goal; especially in a society where 8 out of 10 adults regularly use expletives. [11] The question that, therefore, naturally arises concerns the motivations of state organs in instituting legal proceedings against activists. Numerous court cases pursued on the basis of other laws serving as mere pretexts exhibit that PiS is not opposing the demoralizing character of profanity but rather its potential to condemn the party. To mention a few, Zuzanna Lesiak has been prosecuted under Article 63 of the Code of Practice for Petty Offenses for writing “F*** PiS” with chalk on the sidewalk and Miroslaw Iwanski faced charges on the premises of Article 135 of the Polish Penal Code (a compilation of Polish jurisdiction's criminal law) for the possession of a banner saying “Our president is a fool” during an election rally. [12] Although the nature of these acts corresponds to that of Julia Landowska, neither lawsuit mentions indecent language. Instead, they are concerned with inscriptions on public property and defamation, respectively.
The vulgarism “f***” has been proven as legally and contextually justified. Therefore, it cannot be considered indecent in court, and, since the freedom of speech is guaranteed by national and international legal acts—notably for the sake of an open discussion on matters of public concern—the discussed ruling against Julia Landowska is unconstitutional. Her words shall be interpreted as a legal and socially significant part of a wider response to the abortion ban and the party’s role in implementing it. However, this case is only part of the bigger picture, in which a number of activists are being harassed with lawsuits and fines for ideological differences. Law is weaponized in a totalitarian-like fashion to deprive citizens of influence over the reception of new policies. This, however, is symptomatic of the hierarchical crisis of values in Polish jurisdiction: taboos and conventions of speech are protected more fiercely than reproductive rights and democratic norms. It is therefore imperative that women like Julia Landowska appeal unlawful rulings and empower the public in acknowledging the legality of radical forms of protest. Because in a state where polite pleas and diplomacy remain unheard, it seems that only an angry “f***!” can evoke a reaction.
Edited by Lika Gegenava
Sources:
[1] Ustawa z dnia 7 stycznia 1993 r. o planowaniu rodziny, ochronie plodu ludzkiego i warunkach dopuszczalności przerywania ciazy [Act on Family Planning, the Protection of Human Feti, and the Conditions Permitting the Termination of Pregnancy of January 7,1993], Art. 4a., § 1, https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19930170078/U/D19930078Lj.pdf.
[2] Ustawa z dnia 20 maja 1971 r. Kodeks wykroczen [Code of Practice for Petty Offenses of May 20, 1971], Chapter XVI, Art.141, https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19710120114/U/D19710114Lj.pdf.
[3] Cambridge English Dictionary, s.v.“indecent (adj.)”, accessed July 18, 2022, https://dictionary.cambridge.org/dictionary/english/indecent.
[4] Jacek Antczak, “Slownik polszczyzny rzeczywistej, czyli jak mówi polska ulica. Same wulgaryzmy.” [“The Dictionary of Real Polish or, in Other Words, Polish Street Language. Profanity Only.”], Nasze Miasto Wroclaw, January 8, 2011, https://wroclaw.naszemiasto.pl/slownik-polszczyzny-rzeczywistej-czyli-jak-mowi-polska/ar/c11-728358.
[5] Republic of Poland v. JJ, IV Ka 818/18, (District Court in Poznan, 24 September, 2018), http://orzeczenia.poznan.so.gov.pl/details/$N/153510000002006_IV_Ka_000818_2018_Uz_2018-10-10_001.
[6] Benjamin Bergen, “What Profanity Teaches Us About Ourselves”, TIME, September 13, 2016, https://time.com/4474754/profanity/.
[7] Michal Romanowski, “OPINIA PRAWNA o j**** PiS” [“OPINION LETTER on F*** PiS”], 22 August, 2021,10, https://monitorkonstytucyjny.eu/wp-content/uploads/2021/08/Opinia.pdf.
[8] Mata, “Patoreakcja”, track 15 on Mlody Matczak, SBM Label, 2021, https://open.spotify.com/album/4ENjA7NcKA4tl6ZRlGGCRo; Zabson, “Mlody Boss”, Internazionale, 2020, https://open.spotify.com/album/5YrvIzVhfvEpZ7WrrUKSQ7; and Cypis, “JBC PIS”, Cypisolo, 2020, https://open.spotify.com/track/44J77nq2VvOA50IWM8W9Mc.
[9] Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r.[Polish Constitution of April 2,1997], Chapter II, Art.54, https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19970780483/U/D19970483Lj.pdf; European Convention on Human Rights, Sec. I, Art.10, https://www.echr.coe.int/documents/convention_eng.pdf; and Charter of Fundamental Rights of the European Union, Chapter 2, Art. 11, point 1, https://www.europarl.europa.eu/charter/pdf/text_en.pdf.
[10] Eon v. France, 26118/10, 11, (ECHR March 13, 2013), https://www.lovdata.no/static/EMDN/emd-2010-026118.pdf.
[11] Republic of Poland v. JJ, IV Ka 818/18, (District Court in Poznan, 24 September, 2018), http://orzeczenia.poznan.so.gov.pl/details/$N/153510000002006_IV_Ka_000818_2018_Uz_2018-10-10_001.
[12] “Komunikat Badan: Wulgaryzmy w Zyciu Codziennym” [“Research Statement: Profanity in Everyday Life”], CBOS, BS/136/2013, October, 2013, 2, https://www.cbos.pl/SPISKOM.POL/2013/K_136_13.PDF; Ustawa z dnia 20 maja 1971 r. Kodeks wykroczen [Code of Practice for Petty Offenses of May 20, 1971], Chapter VIII, Art.63, https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19710120114/U/D19710114Lj.pdf; Oktawia Kromer, “Aktywistka skazana za napis kreda na ulicy pod siedziba PiS w Warszawie. Pojdzie do wiezienia?”[“Activist Sentenced for a Chalk Inscription on the Street in front of the PiS Headquarters in Warsaw. Will She Go to Jail?”],wyborcza.pl, January 4, 2022, https://warszawa.wyborcza.pl/warszawa/7,54420,27968945,aktywistka-moze-pojsc-do-wiezienia-za-napis-kreda-na-ulicy.html; Ustawa z dnia 6 czerwca 1997 r. Kodeks karny [Penal Code of June 6, 1997], Chapter XVII, Art. 135, §2, https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19970880553/U/D19970553Lj.pdf; and PAP, “Nazwal prezydenta Dude durniem. Wyrok sadu.”[“He Called President Duda a Fool. Court’s ruling.”], Onet.pl, 16 July, 2021, https://wiadomosci.onet.pl/lodz/miroslaw-iwanski-nazwal-prezydenta-dude-durniem-wyrok-sadu/wpf75q.