Defamation ruling: Holocaust is undeniable

Discriminating between good, bad, and totally unacceptable historical method

28 LAW SOCIETY JOURNAL August 2005

Post-modernism, with its emphasis on point of view and the relativity of truth, has its limits.

These limits emerged in the trial of David Irving v Penguin Books and Another, a six-year legal marathon triggered in 1996 by a British author of well-received books on the Nazi regime, David Irving, who asserted that American historian and teacher of modern Jewish and Holocaust studies at Emory University, Professor Deborah Lipstadt, had libelled him in her book, “Denying the Holocaust: The growing assault on truth and memory” (1993). Irving protested Lipstadt had called him “a denier, a Hitler partisan and a right-wing ideologue”. (She agrees she did).

Lipstadt was in Sydney recently to give lectures on the Holocaust during Limmud Oz, the Festival of Jewish Learning and Culture, and between times to discuss her newly released account of the trial, History on Trial: My day in court with David Irving.

Anyone seeing her interviewed by the ABC’s Lateline presenter, Tony Jones, will sympathise with her protest to her Scottish QC Richard Rampton that she be allowed to talk to the media in London during the preparation for the trial, because “I do media well”.

She does indeed, as LSJ can also testify. But she reports having been unable to deflect some radio and television talkshow hosts elsewhere from taking what she considers an alarming line on David Irving’s stance.

For some in the media, denial is an intriguing idea. They conceive denial as a possible ‘other side’ of the Holocaust story.

To anyone conversant with the vast post-war writings on the Nazi regime there is nothing ‘intriguing’ about claiming Hitler never gave an order to annihilate the Jews of Europe, that the Jews who died in concentration camps had died of typhus or some other illness, or that there were no gas chambers in Auschwitz.

Rather, the claims can only be dismissed as lies, while Irving’s libel suits recall Goebbels’ observation that the big “impudent” lies Hitler talks about in Mein Kampf will succeed only for as long as dissent is squashed by the state.

Pursuing Lipstadt in a six year trial process and filing suit against others who have challenged his writing can only be seen as an attempt by Irving to use a state institution to protect his lies from exposure.

Had he been an American writer, says Lipstadt in her book, the guarantees and freedom of the press which have evolved over centuries out of the First Amendment to the USA Constitution, would have scuttled any attempts by him to harass critics of his work.

It would have been up to him to prove the critics wrote falsely, not Lipstadt’s responsibility to prove that what she wrote was true: as the Brits have it, words written are untrue until proven true.

“Absurd,” Lipstadt told one of her American interviewers.

She was even more flabbergasted to discover that under English law, if she failed to respond to Irving’s charge, she would give him the decision by default, a point largely overlooked by those members of the Jewish community who advised her to ignore the complaint.

Lipstadt’s regret over the differences between English and US laws on defamation is heartfelt. Little wonder: six years of her life, huge resources of intellectual, emotional and physical stamina, not to mention considerable sums of her own money as well as large amounts donated by others, were consumed by the trial – with more having to be raised to fund Irving’s appeal, even though he eventually withdrew it. Attempts to secure costs from him have had to be abandoned.

However, without the trial, there would have been no book, and that would be a loss to both the legal profession and the lay person.

History on Trial is a unique record, fascinating on multiple levels: as an inquiry into historiography – discriminating between good, bad and totally unacceptable historical method; as a detailed account of a long, complex legal process, and, through Lipstadt’s American perspective, an interesting commentary on the differences between US and English legal systems.

It works very well for the reader that Lipstadt is a nonlawyer with formidable research, analysis and recording skills, and that she had powerful motivations to produce the fullest record possible of a trial whose outcomes were of concern not only to the Jewish community with which she identifies, but for anyone familiar with the Nazi story. An energetic fusion of intellect and passion drives the narrative, while Lipstadt in her role as the innocent abroad, unfamiliar with the English legal ambiance and its practitioners, creates scope for candid snapshots of legal representatives and their support staff, and for comprehensive expositions of procedures that leave few questions unanswered.

Her voice is strong and everpresent in the story, questioning herself, her legal representatives and the English system, protesting at its weirdness: why is she known as “Another”? – “I’ve got a name”. Why can’t she be called to the witness box and speak for herself? Why shouldn’t she talk to the media? Why do her lawyers get to know the judge’s decision before she does? Why does her QC grill her aggressively as if he were supporting Irving instead of her? And Judge Gray, why does he bend over backwards to encourage Irving (a self-representing plaintiff), and then come down with a ruling that unequivocally declares Irving’s “falsification of the historical record was deliberate ... motivated by a desire to present events in a manner consistent with his own ideological beliefs even if that involved distortion and manipulation of historical evidence”. It was “incontrovertible” said Judge Gray, “that Irving qualifies as a Holocaust denier”.

Occasionally there’s an impression Lipstadt is directly addressing Americans, or the Jewish community.

In “a note to the Reader” she says that from the time Irving issued his threats, she had kept a detailed record of all her conversations with her lawyers and others involved in the case. Then she decided to start a journal where she recorded conversations and her own thoughts.

LSJ put the question of readership to her when we met up at the serviced apartments which were her Sydney base.

“It did change over time,” she said. “Initially lawyers and academics were the only ones I thought would be interested, but then so many different kinds of people contacted me to offer support and encouragement. The staff of the hotel where I was staying, for instance, kept a close watch on the progress of the trial. All kinds of people turned up to the hearing. I realised that a lot of ordinary people were perturbed by the idea that Irving wanted to suppress the right of people to challenge his distorted representation of the Holocaust and Hitler’s role in it.”

Lipstadt’s research into denials of the Holocaust came on the heels of an inquiry she had conducted into US press reports in the years that the Nazis began systematically persecuting the Jews. Her findings on that subject were published in the book Beyond Belief: The American press and the coming of the Holocaust.

This work had been prompted by questions from some of her students as to what their parents could have known during the period. Could more have been done to save the Jews of Europe? And how could a repeat Holocaust be prevented in the future?

The Jewish press in the US had a very clear picture of what was happening in the earlier stages of Nazi persecution, Lipstadt told LSJ, because many of the people being persecuted or observing attacks on others were their own relatives who were writing letters at least up to the time that the Nazis were fully organised. But later, getting news out became more difficult.

“The time to prevent a genocide is before it happens,” she said. “Once it’s really under way, it’s hard to stop. You have to be alert to the early signs.”

In the mainstream press, Lipstadt discovered “small articles in obscure places” (like the comics or the weather reports), and found a report of the murder of a million Jews placed at the bottom of page six next to an ad for ‘Lava’ soap.

“The more horrible the reports became, the more incredulity they tended to arouse.”

Lipstadt inherited the Holocaust at a remove. Her father left Germany before the Nazis came to power and her mother was born in Canada. She grew up in New York in an Orthodox home, attending Jewish schools, but raised with “an appreciation of surrounding secular society”.

“We were never formally taught about what took place in the Hitler period, but there were passing references at school and from the rabbi – “Hitler, may his name be erased”.

Her parents were “autodidacts”, left-wing, civil-rights workers and opposed to the Vietnam war. They had books on the Holocaust at home, says Lipstadt, but these were only part of a collection that canvassed the “tapestry of our Jewish lives”.

Summer camps and, later, a visit to Israel, brought her to a fuller understanding of the “deep imprint of both the Holocaust and Israel on the psyche of the Jewish people”.

Thereafter she studied for a doctorate in modern Jewish history, eventually focusing on the Holocaust, especially the question of how the bystanders, Jews and non- Jews, reacted.

Her account of the preparation for the defence against Irving’s suit, including a visit by the legal team to Auschwitz, makes for riveting reading: discussions of the various stratagems employed by notorious deniers other than Irving, the details of the documents sought and offered as part of discovery, the interaction with Irving before and during the trial, and descriptions of the buzz of activity that goes on in legal offices, the to-ing and froing between solicitors and counsel, all offer a unique insight into the workings of the legal system, through an approach not quite novelettish, but at that level of superior historical writing which can almost compete with a novel for narrative power, character interest, period and place, not to mention high drama and a thrilling denouement.

But Lipstadt is wasting no time resting on her laurels. Holocaust denial will go on, she says. That denial is based on a new anti-semitism, a phenomenon she is currently researching and which is the subject of her next book.

For sure, Deborah was well named.

MARY ROSE LIVERANI

Professor Deborah Lipstadt, historian and teacher of modern Jewish and Holocaust studies at Emory University, Georgia, in Sydney recently to lecture on the Holocaust and talk about her book, History on Trial: My day in court with David Irving, the tale of Irving’s unsuccessful attempt to challenge in court her claims that he was a Holocaust denier and falsifier of the historical record.

“Lipstadt’s regret over the differences between English and US laws on defamation is heartfelt.”

August 2005 LAW SOCIETY JOURNAL 29