Real History and Lipstadt's Dog-and-Pony Show

Nova Law Review
Winter, 2002

27 Nova L. Rev. 243, pages 243 et seq.

ESSAY

Irving V. Penguin UK and Deborah Lipstadt: Building a Defense Strategy

by Deborah Lipstadt
to bring up her annotations click the number

Dr. Deborah E. Lipstadt is Dorot Professor of Modern Jewish and Holocaust Studies at Emory University in Atlanta where she directs the Institute for Jewish Studies. Her book DENYING THE HOLOCAUST: THE GROWING ASSAULT ON TRUTH AND MEMORY (1993) and is the first full length study of those who attempt to deny the Holocaust.
She recently decisively won a libel trial in London against David Irving, who sued her for calling him a Holocaust denier and right wing extremist in her book. The trial was described by The Daily Telegraph (London) as having "done for the new century what the Nuremberg tribunals or the Eichmann trial did for earlier generations." The Times (London) described it as "history has had its day in court and scored a crushing victory." The judge found David Irving to be a Holocaust denier, a falsifier of history, a racist, an antisemite, and a liar. Her legal battle with Irving lasted approximately five years. According to the New York Times, the trial "put an end to the pretense that Mr. Irving is anything but a self-promoting apologist for Hitler." In July 2001, the Court of Appeal resoundingly rejected Irving's attempt to appeal the judgement against him.
Dr. Lipstadt has also written BEYOND BELIEF: THE AMERICAN PRESS AND THE COMING OF THE HOLOCAUST (Free Press/Macmillan, 1986, 1993). The book, an examination of how the American press covered the news of the persecution of European Jewry between the years 1933 and 1945, addresses the question "what did the American public know and when did they know it?"

N September 1996, I received a letter from the British publisher of my book, Denying the Holocaust: The Growing Assault on Truth and Memory, [1] informing me that David Irving had filed a Statement of Case with the Royal High Court in London indicating his intention to sue me for libel for calling him a Holocaust denier in my book. [2]

When I first learned of his plans to do this, I was surprised. Irving had called the Holocaust a "legend." In 1988, the Canadian government had charged a German emigre, Ernst Zündel, with promoting Holocaust denial. [3] Irving, who had testified on behalf of the defense at this trial, told the court that there was no "overall Reich policy to kill the Jews," that "no documents whatsoever show that a Holocaust had ever happened," and gas chambers were an impossibility.[4] Since then, he repeatedly denied the Holocaust. When asked by the press why all mention of the Holocaust had completely disappeared from a new edition of one of his books, he responded: "If something didn't happen, then you don't even dignify it with a footnote."[5]

I was sure that his threats to sue me were much "sound and fury" signifying very little at all. In fact, they would turn out to be anything but innocuous. They evolved into a six-year battle that would tremendously impact my life. In my book, which was a scholarly study of the phenomenon of Holocaust denial, I had devoted no more than a few pages to Irving.[6]

I had described him as a Hitler partisan, someone who knew the truth but who bent it until it fit his political ideology, and "the most dangerous Holocaust denier."

The reason, I argued, that he posed a danger was because he had written numerous books about World War II and the Third Reich, many of which were well-known and well regarded. Other deniers are publicly known only for being deniers. Irving, on the other hand, had a reputation as a writer of historical works that long predated, and was independent of, his activities as a denier. Consequently, his pronouncements about Holocaust denial garnered far more attention than they would coming from other deniers.

More importantly, he could and did insinuate different elements of the panoply of Holocaust denial arguments in his books on other topics, for example, his biography of Goebbels. Even those readers who completely dismissed his beliefs about the Holocaust found it hard to avoid them.

Though my words about Irving and his modus operandi were harsh, I did not worry about being sued because it seemed to me that what I had written was no worse than what others had written about him in the past.

Moreover, everything I learned about Irving since the book was published in 1993 convinced me that my assessment of him was correct. It seemed utterly incomprehensible that David Irving would deign to challenge the charge that he was a Holocaust denier. My nonchalance about Irving's charges of libel was reinforced by the fact that what I had written about him came from published sources.

I assumed that this problem would be easily resolved.

Twelve questions to put to Prof. Lipstadt the next time you see her...
My nonchalance when I first received Penguin's letter was not the first time I had treated the topic of Holocaust denial with undue jocularity. I had done the same thing close to twenty years earlier when I first heard about Holocaust deniers. A professor from Israel was visiting Seattle where I then taught. He told me about this loosely organized group which was actively sending out letters to university professors promoting a journal which denied the Holocaust. I had then wondered who would take them seriously. And now I wondered who could take David Irving's claims that he was not a denier seriously. Certainly this was a ploy just to scare me.

As it turned out, I was wrong on all accounts. Irving would energetically fight. The fact that my sources were all documented did not protect me in the United Kingdom, as it would have in the United States. The British courts took this matter most seriously.

In fact, since British libel law favored the plaintiff, it put the onus on me, the defendant, to prove the truth of what I had written, rather than on Irving to prove the falsehood, as would have been the case in the United States. Defamatory words are presumed under English law to be untrue. In short, I had to prove I told the truth.

Had I not fought, he would have won by default. I would have been found guilty of libel and, ipso facto, Irving's definition of the Holocaust -- no gas chambers in which Jews were systematically killed, no officially sanctioned Third Reich plan to kill the Jews, no systematic killings, no Hitlerian involvement in, or endorsement of, the persecution of the Jews -- would have been determined to be a legitimate one.

This legal action was the first trial involving the Holocaust in which a denier was the plaintiff and a scholar the defendant. It was about me and what I had written, and it was about far more than me and my book. Ostensibly, it was about the past, but it was also how the past would be remembered in the future. The trial captivated the interest of both those who study the history of the Third Reich and the Holocaust, as well as those who study and combat neo-Nazi's [sic. neo-Nazis'] attempts to resurrect that past. Two courts ultimately rendered a decision, the Royal High Court of Justice and the court of public opinion.

Although Penguin and I were both being sued by David Irving, we had different commitments and priorities. Penguin was a subsidiary of the multinational corporation, Pearson, Ltd., I feared that its fidelity would be to its parent company, its shareholders, and the financial "bottom line." Even if it wanted to fight, Penguin was not a completely free agent. An insurance company paid its legal expenses, and the insurance company would have a determining role in how the case would be handled. I feared that, as legal costs escalated, Penguin might abandon the case or be forced to do so by their insurers.

Such a decision could come at any point, including after a trial had already begun. I could easily be left in the lurch midway through the proceedings. Penguin did have a commercial incentive to stay in the battle. Settling with Irving, though possibly financially attractive to a public company, would give the publisher a black eye among authors. It might well make those who wrote controversial books leery about doing business with Penguin. Nonetheless, I could not be sure of what it would ultimately do. I was well aware that in recent years publishers had not made a practice of standing by their authors, even when they thought they were in the right. Given all this, I instinctively felt that I needed someone to formulate a legal strategy based on my best interests and no one else's.

At a loss as to how to proceed, I called a friend in London who had already heard about the case and had a suggestion for me: Anthony Julius. I knew Julius's name because he had just written T.S. Eliot, Anti-Semitism and Literary Form.[7] Many reviewers had given critical acclaim to the book. Reviews had made a point of mentioning that Julius had written this intellectually thick book as his Ph.D. dissertation while working full time as a lawyer. I recalled a profile of Julius in The New Yorker in which he had observed, in response to a reporter's comment about a lawyer getting his Ph.D. in literary theory, that many lawyers have hobbies. This book was his "golf equivalent."

Julius had been intrigued by the way a great poet, such as Eliot, appropriated the degraded discourse of anti-Semitism to animate his own work. Eliot had taken that which the enlightened world had supposedly discarded, anti-Semitic speech, and turned it into art. But it was not just Eliot's anti-Semitism that intrigued Julius. It was the way legions of critics and readers had ignored, minimized, or tried to explain away this element of Eliot's work. Anti-Semitism was not, Julius argued, peripheral to Eliot's poetry, but central to those texts in which it appears.

Julius's book had generated serious discussion and debate regarding the literary establishment's treatment of Eliot's anti-Semitism. Eliot scholars had positioned themselves on different sides of the controversy that swirled around the book. Many scholars and critics had long dismissed Eliot's anti-Semitism as ironic, peripheral, or merely the "price to pay for admission into the club of Modernism."

Some, perhaps feeling a bit defensive, rejected Julius's attempt to affix the label of anti-Semite on the work of a poet whom they so treasured. Others were tremendously impressed by Julius's erudite, even forensic, analysis of this aspect of Eliot's poetry and his argument that Eliot meant what he said about Jews. Julius's book was so tightly argued that one reporter described it as "the eviction of Eliot from the house of lame excuses."

Attesting to the importance of this work, Oxford University's Professor of Poetry, James Fenton, had made it the subject of one of the three annual lectures he delivers each year at the university. In the lecture, which was entitled "Eliot v. Julius," Fenton posited that "whatever assessment is made of Eliot in the future, the Julius book will have to come into it." Zeroing in on what may have well made some Eliot defenders so uncomfortable, Fenton noted, "Julius says an anti-Semite is a scoundrel. What is it that holds us back from saying that Eliot was a scoundrel?"[8]

Julius was also Princess Diana's divorce lawyer and his name had regularly appeared in the British press during the Princess's divorce settlement negotiations. He had become part of that story. Though I was happy to learn about Julius's willingness to help me, I wondered if a divorce lawyer was the right person for a case such as this. A bit of Internet surfing revealed that his specialty was not divorce, but press and libel cases. Born in 1956, Julius studied English literature at Jesus College, Cambridge. He had joined a law firm in 1981, and became a partner by 1984.

By 1986, he was a member of the firm's management committee, and a year later, the head of its litigation department. He taught law part-time at University College in London where he created a new course, Law and Literature. Not surprisingly, a number of the reviewers linked his critique of Eliot to his work for Princess Diana. One described him as the ultimate iconoclast, willingly challenging two British idols, T. S. Eliot and the House of Windsor.

While Irving was hardly anyone's idol, I figured that this was precisely the kind of lawyer I needed, one who was unafraid of taking on formidable cases. I reached for the phone to dial his office, fully expecting to have to negotiate my way through a phalanx of receptionists and secretaries. A friendly voice answered on the first ring, "Anthony Julius."

"Is this Anthony Julius's office?" I asked. "This is Anthony Julius," was the response. Surprised to be connected so rapidly, I launched into an explanation of the case. After a few moments he politely interrupted to assure me that he knew many of the details already. There was nothing left but the pivotal question. "Would you be willing to represent me?" Without any hesitation, Julius said, "Of course. I would be delighted to do so." With someone of Julius's caliber on board, I assumed that this matter would be dispatched in a relatively straightforward fashion.

I did not have long to bask in these feelings of reassurance. A few days later, a colleague dropped a recent issue of The New York Review of Books on my desk. "Hear you are having trouble with this guy, David Irving. There's an article here which might interest you." The journal contained a review of Irving's recent biography of Josef Goebbels by the highly venerated Gordon Craig, Professor Emeritus at Stanford University, and author of the Germany, 1866-1945, [9] among many other important books. I respected Craig's work and was anxious to see his assessment of Irving. I was surprised, if not shocked, by what I read.

While Craig disparaged Irving's claim that Auschwitz was "a labor camp with an unfortunately high death rate" as "obtuse and quickly discredited," he praised Irving's iconoclastic views of history. [10] "Such people as David Irving have an indispensable part in the historical enterprise and we dare not disregard their views." [11] I wondered how Craig, an impeccable scholar with a distinguished reputation, could believe that someone with such a distorted notion of Auschwitz should have an "indispensable part" in the historical conversation. I found it perplexing that Craig could so readily bifurcate the different aspects of Irving's work.

If Irving so grossly distorted one major element of the history of the period, how could his treatment of other elements be trusted? Second, I was deeply distressed by Craig's failure to grasp that, by including Irving in the conversation, he was according these "obtuse and quickly discredited" views a new found prominence and credibility. I worried, however, that if someone such as this highly respected scholar, who knew so much about the period, could be beguiled by Irving, how much easier it would be to beguile a jury of ten [sic. twelve] British citizens or even a British judge.

Though he hoped Irving would drop the threat of a lawsuit, Julius counseled that we must proceed as if we would end up in court. When I asked Julius how we were going to fight this, he explained that there were a number of different options open to libel defendants.

They could argue that the plaintiff was misinterpreting the words in question. This option was not available to me because Irving was not misinterpreting what I had said about him. When I had called him a Hitler partisan, right wing ideologue, and Holocaust denier, I meant exactly that.
The second option was to argue that the words were not defamatory. That, too, was not an avenue I could choose. The words were meant to be critical of him. I hoped that, when others read them, they would grasp that this man was a denier who had made overtly anti-Semitic statements.
Finally, defendants could claim "justification," that the words, about which the complaint was lodged, though defamatory, were true and the author was, therefore, justified in writing them. That, Julius explained, was the path we would pursue.

While we did not have to prove that every detail of what I wrote was correct, we did have to prove the essence of my words, or, as the courts defined it, their "substantial truth." In British law this is generally known as proving the truth of the "sting" of the libel.[12]

We would not only demonstrate for the court the falsehood of Irving's contentions regarding the Holocaust, but would also endeavor to show that, when discussing the Holocaust, Irving consistently distorted, misquoted, and ignored those documents which disproved his theories. Julius was unequivocal: "We will argue, exactly as you did in your book, that Irving does not follow established historical procedures and subordinates the truth for ideological purposes. His writings and comments about the Holocaust are, we will contend, designed to spread anti-Semitism and engender sympathy for the Third Reich."

As Julius laid out our battle plan, I felt reassured. Julius, who told me he would be working together on this matter with his colleague, James Libson, explained that, at this point, he was not sure Irving would really pursue this case. Our objective, in fact, was to get him to drop the case. We would do so by vigorously responding to his charges, using every legal avenue open to us. We hoped that, faced by a formidable opposition, he would drop the matter.

Listening to Julius talk about Irving, I understood that his Eliot book was far more than a "golf equivalent." It was an expression of his deepest intellectual and moral commitments. He could not abide anti-Semitism irrespective of whether it came from a T.S. Eliot or a David Irving. He had even less tolerance for those who were willing to ignore, justify, or rationalize away hatred and prejudice for any reason, be they critics, reviewers, or scholars.

Over the next few months, Julius and James laid out for me in e-mails and phone conversations the various steps involved in this kind of libel case. James, whose job it seemed to be to walk me through the intricacies of British law, explained that first we would have to prepare the "pleadings," our presentation to the court of what we perceive to be the central issues in the case. At the same time, we would begin the discovery process, the process by which each party turns over to the other side all materials it has in its possession relevant to the issues, including correspondence, documents, papers, books, and tapes. All the research material I used in preparing the book was going to have to be disclosed. So, too, I would have to disclose any correspondence or notes that concerned Irving.

The next step was the preparation of witness statements. My statement would be my means of introducing myself to the court. In it, I would have to provide background information on my professional and personal life, insofar as it pertained to the case. We would then select expert witnesses, and ask them to analyze Irving's work in order to assess my claim that he was a denier and falsifier of history. Their reports would be submitted to the court and to Irving well in advance of the trial, if there was to be one.

English court proceedings stipulate that the parties to such suits prepare their evidence in writing and exchange it in the form of witness statements some time before the trial. The purpose is to avoid "trial by ambush" and also to shorten any legal proceedings. It was a crucial stage since one commits, fairly early on, to the evidence which will be introduced at the trial. Finally, based on the expert reports, we would present Irving with a list of interrogatories, questions which he would have to answer prior to the trial itself.

Julius and James were fairly certain that Irving, faced for one of the first times in his career with a vigorous defense against his legal threats, would eventually abandon this case. Underlying this strategy was a fundamental proposition, which James articulated for me one day in a phone conversation when I expressed amazement at the level and amount of work being done:

No detail will be left unturned. We will never allow ourselves to assume, even for a moment, that simply by putting before the jury an array of Irving's statements we will succeed in convincing it of the truth of your words. We will fight this case as if it were the biggest commercial case to ever cross our desks. Though we may believe that Irving denied the Holocaust, we will not lull ourselves into thinking this will be self-evident to either a judge or a jury.