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Wednesday, April 11, 2012

Issues and Attitudes in the Irving vs. Lipstadt Libel Trial

The Irving Case Unfolds:
Issues and Attitudes in the Irving vs. Lipstadt Libel Trial


Ernest Sommers


   In early January, a libel trial convened in London, pitting dissident historian David Irving against Deborah Lipstadt, an American professor of religion. Irving, the plaintiff, claims that Lipstadt libeled him in her book, "Denying the Holocaust", charging that she made many false statements about him and his associations and that as a direct result of her book his career as a professional writer has been damaged.

   In the runup to the trial, and in its early days, the press coverage has been very extensive, although, given the well-known taboo concerning Holocaust discussion in the United States, the coverage has been relatively perfunctory here. Although the case clearly concerns libels against David Irving, and not the Holocaust as such, the defense strategy appears to be to make the trial an occasion for presenting evidence on the Holocaust, with the result that opposing views on that tragedy can expect to receive wide dissemination. Consequently, a rehearsal of some of the critical issues involving not only the trial but also the Holocaust and its "Denial" seems appropriate.


THE ISSUES, THE LIBELS

   In essence, libel consists of false statements in a public arena about a person with a view to maliciously damaging that person. Therefore there are three parts that have to be considered in a libel case, although not all three have equal legal weight: whether the statements were true, whether they were made with malice, and whether or not they were damaging. In the United States, since Sullivan vs. New York Times (1964), it has been relatively difficult to bring libel actions, because false statements, unless made with provable malice, are considered covered by the First Amendment. In Britain it remains somewhat different: the defense has the burden to prove the truth of their statements, and, in addition, damage to reputation is considered, even if the statements are true.

   Irving contends that Lipstadt made false statements about him in her book: Well, what kind of statements did she make?

   Lipstadt's descriptions of Irving can be broken down into five groups. In one series of associations, she hints that Irving is a "neo-fascist" and shares the stage with terrorists like Hamas, Hezbollah, and with racists like Louis Farrakhan. Another series describes what we might call Irving's "personal relationship with Hitler:" Irving is said to have a portrait of Hitler on his desk, to have had a "religious experience" at Hitler's mountaintop retreat, and to have been an "ardent admirer" of the Fuehrer. Another group of statements accuses Irving of being of poor personal character: taking archival materials, cheating colleagues of their proper credit, and so on. A fourth category accuses Irving of being a bad historian, who misstates, falsifies, and misconstrues evidence in order to exonerate Adolf Hitler, and in general is unworthy of the title "historian." Finally, Irving is described as a leading light of "Holocaust Denial."

   Most of these statements, especially for the first three groups, are of a strict either/or model: either they are true or they are false. It would be relatively easy to establish, for example, whether or not it is true that Irving had a portrait of Hitler over his desk, and if so, that fact might be used to support the idea, along with other evidence, to support another statement, such as that Irving was an "ardent admirer" of Hitler.

   In fact, however, the documents published concerning the trial so far indicate that Lipstadt does not intend to contest most of the statements made about Irving, even though many of these statements can be easily perceived as pejorative and otherwise damaging. Instead, it appears that Lipstadt's defense will focus on the claims that Irving is not a "historian" and is a "Holocaust Denier."


DEFINING DIFFICULT TERMS

   The problem for Irving with this kind of defense is that the definition of terms is left almost entirely to Lipstadt and the indulgence of the presiding judge. What is a historian? One would normally think, someone who writes history. Obviously, Irving would be classified as a historian in this case, since he has written some 30 books of history. One can expect, therefore, that Lipstadt's side will counter by arguing that Irving's performance as a historian has been so substandard that he does not deserve to be called one. In other words, their defense against defamation will be simply to carry the case of defamation further. Yet this kind of argument makes the definition of "historian" highly subjective; it almost makes the title a matter of personal preference and personal prejudice, rather than common understanding.

   On Irving's side, there is the fact that many historians have, over the years, quoted his works, and praised his scholarship, among them, Gordon Craig, John Keegan, Joel Hayward, and Ernst Nolte. All of these are not only historians, but professional academic historians of high repute, therefore, it is difficult to see how the claim that Irving is not a historian will be sustained, unless the court wants to get into the slippery morass of defining "historian" in some kind of a prioristic or ideological-moral terms, the definition of which terms will be so designed to leave Mr. Irving beyond the pale.

   An even more daunting problem is posed by the question of whether Irving is a "Holocaust Denier." What is the Holocaust? What does denial of it consist of? Again, these are difficult questions to answer. The most general description of the Holocaust pertains to the persecution and killing of Jews by the Nazis in World War Two: but Irving does not deny this. He is skeptical of the numbers killed, the manner in which they were killed, and the lines of authority whereby they were killed, but he does not deny that millions died.

   Hence it is incumbent upon the defense of this case to argue another vague definition: in effect, the Holocaust must be defined to mean not only the persecution and loss of life experienced by the Jewish people in World War Two, but it must also be defined to include everything about the Holocaust that David Irving doesn't believe; only in this way can the charge of "Holocaust Denial" be sustained.


A SUBJECTIVE MALEDICTION

   A brief consideration persuades us that the term "Holocaust denier" is in its essence defamatory. The reason is simply obvious. The Holocaust, however defined, was a series of events. Anyone who questions any aspect of the Holocaust is therefore assuming from the outset that the questionable aspect is not unquestionably true. But there are many people who rail at the prospect of others questioning aspects of the Holocaust that they unreservedly accept as true. Therefore, when someone calls someone else a "Holocaust denier" what he or she is really saying is "this person questions something that I consider unquestionably true" and attaches the label "denier" to him or her. This cannot be done for any positive purpose, but only as a kind of imprecation.

   It is important to note in this regard that the definitions of "Holocaust denial" will be as variable as the personal preferences of the person slinging the term about. To some, it is very important that Adolf Hitler be defined as the main cause and prime mover of the Holocaust. Hence, a "Holocaust denier" to this person would be anyone who questions Hitler's involvement. To another, anyone who questions mass gassing is a denier, because the gas chamber is a very important part of the accuser's mental furniture. To still others, anyone who questions the six million total death count will be liable for the secular excommunication that "denier" labeling entails. Hence, there is no global, clear-cut, or universally accepted opinion of what constitutes "Denial" in the first place.

   The variability of "Holocaust denier" definitions makes it clear that such definitions are completely subjective. They encapsulate, not some kind of rational or consensual perspective, but are simply the laundry lists of grievances of individuals who are upset that someone is questioning one or another of their sacred verities. Attempts to sort out this mess by aligning a number of definitions only worsens matters, because then one finds oneself picking and choosing from a mass of personal angers to arrive at an impersonal value, which is impossible. To put it another way, one cannot derive objective intellectual concepts from subjective opinions.


LIPSTADT'S VAGUE DEFINITION

   Surprising as it may seem, Lipstadt's definitions of "Denial" in her book tend to be rather vague. The term is repeatedly used without clear definition. "Deniers" are variously characterized: as plague spreading rats [xvii], as liars [2], and as "fascists and antisemites with a specific ideological and political agenda" [4], by which she appears to mean that they are pro-National Socialist, as those who "deny the Holocaust happened" [21] and further she claims that their "central assertion" is that Jewish groups and Zionists have used the Holocaust as a means of acquiring reparations and the world's sympathy and support [23].

   The curious thing about these characterizations of "Deniers" is that there is very little about the facts of the Holocaust being discussed here. The innuendo of her word usage is that David Irving is a plague spreading rat, a liar, a fascist, an anti-Semite with a political agenda, who accuses Jewish groups and Zionists of making up the Holocaust for their own ends. That is the way she uses the term in her book. Hence, those are the claims that should be proved or disproved about David Irving. Not one of these characterizations engages any facts of the Holocaust, except the very vague one that "it happened." Therefore, it is unclear why the Lipstadt defense has found it necessary to commission an apparently vast number of treatises on Holocaust history.

   It is always possible that Lipstadt's defense at the trial may consist of attempting to define "Denial" in some other way than it is expressed in her book, but it is unclear how that strategy can be countenanced. After all, the words she uses in her book to describe "Deniers" are clear-cut. Moreover, it is over the words in that book over which she is being sued.


HEAVY BUT UNEVEN COVERAGE

   Since it is the apparent defense strategy to argue about the Holocaust, it is apparent that we will hear much about it during the trial. Already in the first few days, Mr. Irving has made it clear that, while he does not deny the Holocaust, he does shy away from the word, considering it imprecise, and that, while he grants that millions of Jews probably died or were killed, he questions whether they died in extermination camps from poison gas.

   Hand in hand there has been extensive media coverage that can only help to bring the issues of Holocaust revisionism into the open, and, one hopes, defuse the current climate of hysteria, taboo, and criminalization that surrounds open discussion of the Holocaust. For example, several US papers ran articles prior to the trial and on the first day: the coverage of the Los Angeles Times, a few days before the trial began, was particularly noteworthy for being featured on the front page, and several other papers carried an extremely fair initial report from the Associated Press. However, after the first day, there has been little if any coverage in the United States.

   On the other hand, all of the British dailies have been covering the trial extensively, at least in its early stages, and this does well to desensitize the British public to the Bogey that "Holocaust Denial" has become. In addition, the coverage has been balanced, detailed, and very fair.


CONSEQUENCES

   Forecasting the course of a trial such as this is difficult, not least because it is clear that the matters that will be discussed -- the facticity of the Holocaust or the definition of "historian" -- are not really what this libel case is about. In the same way, it is really rather silly to expect a judge to be making ex cathedra pronouncements on this subject. This does not mean that Judge Gray may not feel compelled to make stirring declarations about the "unquestionable reality" of the Holocaust. It simply means that such statements will carry no weight, not only with revisionists, who will deride them as politically opportune, nor with the majority of the thinking public, who do not normally look to the courts to tell them what to think. More to the point, whatever declarations Judge Gray might make in this regard will have nothing to do with the crucial issues, that is, whether Deborah Lipstadt libeled David Irving in his book, or caused him damage.

   It may be that the defense, then, may hope to use the trial for the purposes of propagating their view of history, confident that the Judge would never dare to contradict the reigning public opinion on these matters. That such may be their strategy is indicated by the statements of Lipstadt's advocate, Rampton, in his opening address on January 11, which implies that, while libel may have been committed, it receives a cosmic benediction insofar as it makes it possible to lay Mr. Irving low:

"This is obviously an important case. That is not, however, because it is primarily concerned with whether or not the Holocaust took place or the degree of Hitler's responsibility for it. On the contrary, the essence of the case is Mr Irving's honesty and integrity as a chronicler - I shy away from the word historian' -- of these matters. For if it be right that Mr Irving, driven by his extremist views and sympathies, has devoted his energies to the deliberate falsification of this tragic episode in history, then, by exposing that dangerous fraud in this Court, the Defendants may properly be applauded for having performed a significant public service, not just in this country, but in all those places in the world where anti-Semitism is waiting to be fed."
   Samuel Johnson once made a thoughtful remark that "patriotism is the last refuge of a scoundrel." Inasmuch as the defense appears to be wrapping itself in the banner of anti-Semitism, the better to cloak the transgressions of the defendants, it seems that idealism, too, may be a refuge of scoundrels, who assert the necessity of destroying another human being, in the name of tolerance.
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