Romania's Constitutional Court Strikes Again
By rejecting the President’s challenge to a vague hate speech law, Romania’s already infamous Constitutional Court cements the country’s lead as the EU’s worst-performing democracy—so far.
In Europe’s ongoing authoritarian drift, Romania’s Constitutional Court (CCR) deserves special recognition: it has mastered the art of dismantling democracy while claiming to defend it.
Last November, in a single move, it managed to throw Romania out of the “flawed democracy” category in The Economist's Democracy Index 2024, directly into “hybrid regime” status: the CCR annulled a whole ongoing election, on very flimsy grounds, after validating the first round.
A few days ago, on July 17, 2025, the CCR struck again: it unanimously rejected President Nicușor Dan's constitutional challenge to hate speech law modifications—a law determining sanctions up to 10 years for what could be interpreted as fascist propaganda. If you recall, fascism was generally defined by anti-parliamentarism, racism, antisemitism—a platform that absolutely nobody in Romania’s political field is running on.
One might reasonably wonder whether Romania is now racing to set a new record, plunging into the next category of The Economist’s Democracy Index—that would be “Authoritarian regime”. Perhaps before Macron catches up, dragging France with him through his own wave of lawfare and speech restrictions?
It’s starting to look like a race to the bottom. The competition is fierce—but some in Romania seem determined to fall faster than France.
The Silviu Vexler Law: When “System” Parties Unite Against Free Speech
The law at the center of this controversy didn't emerge in a vacuum. Following Romania's May 2025 presidential elections—the rerun after the CCR cancelled the December 2024 vote—Parliament quickly moved to expand hate speech restrictions through amendments to Emergency Ordinance 31/2002, championed by minority representative Silviu Vexler. (Romania's constitution stipulates that minorities get specific representation, unfortunately it often ends up in power struggles within confidential NGOs to get to nominate who will sit in Parliament—yes: it sounds much like DEI and it brings the same issues as everywhere).
The legislative process revealed the current alignment of Romanian politics: one after another, representatives from the “system” parties—PSD, PNL, USR, and UDMR—rose to support the law, positioning themselves as defenders of democracy against the rising tide of extremism. The only opposition came from the sovereigntist parties AUR, SOS, and POT, whose protests were dismissed as predictable "extremist propaganda."
The speed and unanimity of support from establishment parties were remarkable, especially given the law's problematic language. Parliament essentially criminalized the distribution of “fascist, legionary (in reference to the Romanian nationalist-mystic Iron Guard movement, named the “Legion of Archangel Michael”), racist, or xenophobic materials” without providing clear definitions of any of these terms—especially the newly introduced “Legionary” one— while expanding penalties to include up to 10 years imprisonment.
The message was clear: after months of fear campaign labelling as “legionary” the sovereigntist opposition, Romania's political establishment had decided that vague hate speech laws were one of the necessary tools to prevent certain political movements to gain more traction in democratic discourse. It was a remarkable inversion of democratic principles, presented as their ultimate defense.
President Nicușor Dan openly acknowledged the political risks inherent in such legislation, warning—in his official challenge to the law:
“The Romanian state must act firmly to prevent and combat incitement to hatred, xenophobia, and discrimination of any kind. But if it fails to do so in a balanced manner, with strict respect for constitutional provisions, the effect will be the opposite. Romanian society is highly polarized, trust in state authorities is at a low point, and any state action that refers to this polarization in an unbalanced way increases social tension and distrust in institutions.
In other words, any state action that touches upon existing polarization must provide all guarantees not to be perceived as the action of one political option—albeit a parliamentary majority—against the other.”
Georgescu’s Indictment
The arbitrary nature of the legal framework was exemplified almost immediately.
Around the same time the modification of the law was being debated, prosecutors moved to indict Călin Georgescu—the candidate whose surprise first-round victory had thrown the legacy political parties into disarray—for statements that would barely register as controversial in any functional democracy.
The specific quote that allegedly constituted criminal hate speech, and triggered a probe on him, was: “we did not fight for toys, as Avram Iancu said, but for our rights. And I add: he who fights, even alone with a handful of brave men, for his nation, his country, and for God, will never be defeated”1.
This is a paraphrase from Corneliu Zelea Codreanu's 1936 book “For My Legionaries”, where he wrote: “Since then, the belief that will never leave me has taken root: that he who fights, even alone, for God and his nation, will never be defeated.”
The legal question is whether paraphrasing historical texts constitute criminal hate speech, even when the content itself expresses religious and patriotic sentiment rather than inciting violence or hatred against specific groups? The quote's substance remains focused on faith, nation, and perseverance—themes that appear in countless political speeches worldwide2.
European vs. American Free Speech Standards
We can’t look at Georgescu’s indictment without mentioning a crucial difference between European and American approaches to speech regulation.
In the United States, the Supreme Court's Brandenburg v. Ohio standard requires that speech pose “imminent lawless action” to be criminalized. Expressing abstract beliefs about God and nation, even with historical undertones, would receive full First Amendment protection.
European human rights law does provide less speech protection, allowing restrictions for hate speech and historical revisionism under Article 10 of the European Convention on Human Rights. However, Article 10(2) requires that any restrictions be “necessary in a democratic society” for legitimate aims like preventing disorder or protecting the rights of others. The European Court of Human Rights has consistently held that this means restrictions must address a “pressing social need” and be proportionate to the legitimate aim pursued—requiring evidence of actual or potential harm based on context, not merely abstract offense.
By any reasonable standard, indicting someone for expressing faith in fighting for God and nation fails this test spectacularly. If hate speech laws are to mean anything beyond serving as tools for political persecution, they must target actual incitement to violence or discrimination, not vague expressions of patriotic sentiment.
The Georgescu case reveals that Romania has moved beyond even Europe's already restrictive speech standards into territory where political opposition itself can be criminalized through creative interpretation of hate speech laws. It's precisely the kind of enforcement that transforms legal restrictions from democratic safeguards into authoritarian weapons.
A New Hope? Nicușor Dan's Constitutional Challenge
Against this backdrop, the constitutional challenges filed by opposition parties (AUR, SOS, and POT) were predictably rejected by the CCR on July 10, 2025. The court declared the law met “requirements of clarity, precision and predictability” and passed the proportionality test under European human rights standards—reminding that the European Court of Human Rights permits restrictions on “totalitarian ideologies.”
But then something unexpected happened. On July 10, President Nicușor Dan—a figure with impeccable credentials within Romania's pro-European establishment—filed his own constitutional challenge to the hate speech law. For the first time since Romania's democratic crisis began, someone from “within the system” was stating what should have been obvious to anyone concerned with the ideal of free speech.
Dan's 20-page filing was a methodical demolition of the law's constitutional problems, written with precision and with the clarity of someone who understood the stakes. For NGO leaders, media figures, and civil society activists who had spent months enforcing official narratives about “threats to democracy”, “legionaries”, “Russian influence” and more, here was one of their own pointing out that vague, arbitrarily enforceable speech laws pose a threat to democratic governance.
As a free speech supporter, I have to admit that the meltdown among this crowd of censors was a delight.
A Defense of Democratic Discourse
President Dan’s constitutional challenge offered a detailed, comprehensive critique of the hate speech law, but three arguments stood out as particularly crucial for Romania’s democratic future:
The Definitional Problem: Dan pointed out that the law criminalizes “legionary” materials and organizations without ever defining what makes something “legionary.” The law defines “Legionary Movement” as a historical organization that existed from 1927-1941, but never explains how contemporary materials could be classified as promoting "legionary" ideas.
This creates what legal scholars call a “circular definition” problem. Materials are illegal if they promote legionary ideas, but legionary ideas are defined only by reference to a historical movement, without specifying what contemporary content would qualify. As Dan noted, even the Romanian Explanatory Dictionary defines “legionary” simply as “referring to legionaries”—hardly the legal precision required for criminal law.
The Cultural Content Dilemma: Perhaps most importantly, Dan addressed how the law would affect Romania's cultural and intellectual heritage. He specifically cited the case of 19th century’s national poet Mihai Eminescu, whose works contain content that could theoretically be classified as xenophobic under the law's broad definitions.
“Even Mihai Eminescu's journalism contains xenophobic ideas and concepts, including anti-Semitic ones. Even Mihai Eminescu's poetry contains xenophobic ideas and concepts, for example the Third Letter,” Dan's filing noted.
The law's exception for “art, science, research, or education” applies only when distribution serves professional or academic purposes. But as Dan pointed out, this creates a legal inconsistency where sharing Romanian literary classics might be criminalized depending on who is sharing them and in what context.
The Enforcement Arbitrariness: Most critically, Dan highlighted that the law provides no mechanism for determining which organizations should be classified as “fascist, legionary, racist, or xenophobic.” Unlike other European countries that tie speech restrictions to specific court determinations or international tribunal findings, Romania's law leaves these crucial classifications to prosecutorial discretion.
This isn’t just a theoretical issue. Romania has already developed a layered system of narrative enforcement — involving regulatory agencies, well-funded biased fact-checking organizations, and a series of players directly coordinating with platforms. Intelligence assets in newsrooms and civil society, a reality acknowledged in public statements by former officials, add to the complexity.
In this environment, where pay-per-check contracts encourage aggressive moderation, the hate speech law provides the criminal muscle for a censorship and narrative enforcement system that is already operational.
Historical Memory and Public Debate
Dan's challenge also touched on something deeper than legal technicalities: the relationship between democratic discourse and historical memory. In a country where the Communist period lasted over four decades and the transition to democracy remains incomplete, the ability to discuss historical periods openly is essential for democratic consolidation.
The law's vague definitions create a chilling effect that extends far beyond its intended targets. Should historians researching the interwar period, students studying Romanian fascism, journalists covering the rise of populism, and citizens trying to understand their country's past all face potential criminal liability if their work doesn't conform to officially approved narratives?
And what about those honoring the memory of Christian Orthodox martyrs tortured in the communist reeducation prisons like the ones in Sighet or Pitești? What about Romania’s anti-communist resistance, in which former legionaries undeniably participated? What about internationally respected thinkers like Emil Cioran or Mircea Eliade, who had been associated with the Iron Guard in their youth? The constitutional challenge submitted by President Dan perfectly helps us understand that the law cannot rule criminalizing all this out.
This is particularly problematic given Romania's complex relationship with its World War II history. The country's role as both perpetrator and victim, its experience under both fascist and communist regimes, and the neverending scholarly debates about collaboration, resistance, and martyrdom require the kind of open discourse that vague hate speech laws inevitably suppress.
Democracy Doesn't Need Legal Precision…
On July 17, 2025, Romania's Constitutional Court delivered its unanimous response to Dan's carefully constructed constitutional challenge. The decision was remarkable both for its brevity and its complete dismissal of fundamental legal principles without engaging the core of President Dan’s arguments.
The court declared that “Nazi, fascist ideology and legionarism are historical and political concepts that cannot be relativized through legal definitions of positive law, as they reflect historical social realities that have founded real criminal political regimes.” It continued: “The normative consecration of specific offenses, as well as the purpose of the criticized law, are justified and legitimate because they aim to protect, through the specific means of criminal law [...] the essential values and principles of democracy against acts that present a major danger to the foundations of democratic political systems.”
The logic is circular: democracy must be protected from threats; these laws protect democracy from threats; therefore these laws are democratic regardless of whether they meet basic constitutional requirements for clarity, proportionality, or fair enforcement.
It's precisely the kind of reasoning that characterizes hybrid regimes: maintaining the appearance of democracy while hollowing out its substance. The language of human rights is retained, but its function is inverted — deployed not to shield citizens from power, but to justify coercive enforcement of narrative boundaries.
And since we’re talking about Romania’s Constitutional Court, and its infamous track record, we should recall that its President, Marian Enache, had an informant file at the Securitate—Romania’s political police under communism—the contents of which conveniently disappeared during the Romanian Revolution, allegedly when parts of the archive were deliberately destroyed upon order. This was reported by Radio Free Europe at the time of Mr. Enache’s appointment in 2016.
Just three years later, in 2019, the Romanians also officially discovered that former President Traian Băsescu had been an informant for the Securitate, too.
As Romania continues its downward trajectory—from hybrid regime to whatever position it ends up occupying in the Democracy Index next year—it’s worth remembering where the people in charge come from.
And now what?
A few years ago, right-wing intellectual Mihai Neamțu received a series of attacks for reciting “Rise Gheorghe”—a poem that used to circulate as samizdat under communist totalitarianism.
According to Gheorghe Piperea, lawyer and member of the European Parliament from the AUR party (Alliance for the Union of Romanians), this poem would be considered “legionary propaganda” under the new law.
Here is what the poem says:
Not for a shovel of golden-brown bread,
Not for your barns, not for your land,
But for the free air of your tomorrow,
Rise up, Gheorghe, rise up, Ioan!
For the blood of your kin spilled in ditches,
For your songs nailed to the cross,
For the tear of your sun put in chains,
Rise up, Gheorghe, rise up, Ioan!
Not for the rage clenched in your teeth,
But to shout with joy on the hills,
With an armful of skies and a capful of stars,
Rise up, Gheorghe, rise up, Ioan!
To drink your freedom from carved wooden pails,
And drown in it like the sky in swirling depths,
And shake its blossoms upon yourself,
Rise up, Gheorghe, rise up, Ioan!
To lay your burning kiss
On thresholds, porches, doors, and icons,
On all that greets you now unfettered,
Rise up, Gheorghe, rise up, Ioan!
Rise on chains, Gheorghe, on ropes,
Rise on sacred bones, Ioan!
And upward—toward the last light of the storm—
Rise up, Gheorghe, rise up, Ioan!
The irony could be breathtaking if Romania had actually created a legal framework so broad that anti-totalitarian poetry could be criminalized as totalitarian propaganda.
Time will tell.
For these verses, Radu Gyr—former member of the Iron Guard, political prisoner under King Carol II (monarchy), again under Antonescu (dictatorship), and once more under Gheorghiu-Dej (communist totalitarianism)—was sentenced to death.
I do not hold racist or antisemitic views—I’m a universalist—and I can only recognize in this poem the higher values around which people rise against tyranny.
While European speech laws increasingly serve to silence dissent through a mix of digital iron walls and legal warfare, such words call upon all the Gheorghes and Ioans to rise—along with all those who choose liberty over comfort, and immaterial values over a shovel of golden-brown bread.
I understand how unsettling that is for those who seek to tighten control over the governed and eliminate dissent and democracy, but there is no honest argument—no matter how twisted—that can turn this call for freedom into hate speech worthy of prosecution.
“Eu spun asta: noi nu ne-am luptat pentru jucării, cum a spus Avram Iancu, ci pentru drepturile noastre. Și completez: că cel care se luptă chiar și singur cu o mână de viteji pentru neam și țara lui și pentru Dumnezeu nu va fi învins niciodată”
Except France, where references to God by politicians are very rare due to very specific secularism principles and laws—known as “laïcité”.