Littman's
secret letter to Prof Deborah Lipstadt, Oct 3,
1996, enclosing this "sutdent report" HISTORY
REWRITTEN:
THE
WORLD
OF
DAVID
IRVING
TABLE OF CONTENTS I. INTRODUCTION. 1 II. ACADEMIC ANALYSIS 2 JÄCKEL'S ESSAYS 4 IRVING'S TRICKS OF THE TRADE a. Non Sequitor Reasonings and
Omissions 6b. Misuse of Informants 6 c. Avoiding Ugly Facts and Inventing Nicer
Ones 6 d. Linguistic Cover-ups 7 e. Use of Ambiguity 7 III. A HISTORY OF DAVID IRVING 8 IV. DAVID IRVING: IN HIS OWN WORDS 12 V. THE LEGAL QUESTIONS 18 IRVING'S LEGAL HISTORY: THE HIGHLIGHTS 18 1. Germany 182. England 19 3. Canada 19 4. Australia 21 LIMITS ON THE FREEDOM OF SPEECH 22 VI. CONCLUSION 25
I.
Introduction The murder of some six million Jews between the
years 1939 and 1945 constituted one of the greatest
tragedies in modern history. In recent years,
attempts to deny the legitimacy of the Holocaust
have compounded the suffering of all those touched
by its horror. The memories of the dead. The
survivors. Jews. Non-Jews. Thus, Holocaust denial
has become one of the most insidious forms of
anti-Semitism.1 Its landscape is dominated by
fringe characters of the likes of Ernst
Zündel, who are quickly dismissed as racists
and anti-Semites. In the midst of these Holocaust
deniers lies a considerably more dangerous source
of hate, the self-styled "historian", David John
Cawdell Irving. A prolific writer, David Irving has become the
darling of the neo-Nazi movement. His works claim
to shed new light on Adolf Hitler and Nazi party
through extensive research of primary documents
found in archives around the world. Irving often
claims to be the only "true historian", as he does
not rely on secondary materials produced by other
authors, and thus does not fall into the trap of
succumbing to the prejudices of other historians'
works. Through reliance on vast archive materials
Irving is able to tailor his writings to
accommodate the views he wishes to expound. These
techniques have earned him the scorn of many of his
critics, who label him as "'a Nazi apologist' and
'Hitler's PR man."'2 The history of the Second World War, as written
by David Irving. is fraught with astounding
'revelations'. Hitler was unaware of the "Final
Solution to the Jewish Problem"3 . There were no
gas chambers in Auschwitz --those currently found
were erected by the Polish government as tourist
attractions.4 The "Holocaust lie" was generated by
the Jews in order to gain sympathy and, more
importantly, monetary compensation from Germany in
order to finance the state of Israel.5 These views
have led Irving to claim on several occasions: "I
also predict that . . . the Holocaust will be
discredited."6 This document is intended to serve as an
educational tool, detailing the activities of David
Irving and his goal of morally rehabilitating Adolf
Hitler and the entire Nazi regime. To date, as a consequence of his writings and
the views he espouses, Irving has been deported or
banned from several countries, including Canada,
Germany and Australia. The remainder of this
document provides background material on Irving's
academic and political endeavors as a means of
providing context to the continuing necessity to
limit his 1 For a thorough review
of the concept of Holocaust denial, please see
Holocaust Denial: Bigotry in the Guise of
Scholarship (Simon Wiesenthal Center,
1994).2 "Historian doesn't mind
being reviled as Hitler's PR man" LA Times News
Service (London: 9 July 1996). 3 This is the central thesis
of Irving's book. Hitler's War (London: Hodder
and Stoughton. 1977). 4 David Irving interview with
Mario Scialoja, L 'Espresso (26 July 1992), . .
. . . 5 "History' s cache and
carry" [interview, The Guardian (7 July
1992). 6 Ibid. brand of 'speech' . Chapter II delves briefly
into an examination of the academic merits of
Irving's works. The methods employed by Irving to
mold sources to fit his narrow viewpoint --and thus
to disfigure the truth --are examined. Chapter III
summarizes some of Irving's activities over the
years, including speaking engagements, book tours
and his involvement in the false news trial of
German-Canadian Holocaust denier Ernst
Zündel. The focus of this document, Chapter IV, provides
David Irving with a stage to speak in his own
words, with quotes from speeches he has given,
articles he has written, and interviews he has
conducted. These quotes serve as a clear example
why he should not be allowed to disseminate his
message of hate as freely in other public forums.
Chapter V examines the legal ramifications of
Irving's work, with a focus on his legal
entanglements in Germany, England, Canada and
Australia. Additionally, the question whether
limitations on the right of free speech are
appropriate are discussed in this penultimate
section. This document then concludes with brief
recommendations on how to combat the brand of
anti-Semitism evinced by Irving and his like, those
who seek to deny the existence of the
Holocaust. The importance of confronting revisionists like
David Irving cannot be overemphasized. As French
historian Pierre Vidal Naquet, who has dedicated
years to the study of revisionist history of the
Third Reich, explains: The terrible guilt of the revisionist
deniers to which Irving be longs is that their
perverse objective consists of trying to take
away from the Jews the memory of their history,
murdering once again, on paper, the victims of
Hitler's extermination; their methods have an
effect greater than pain, that of forcing people
to prove what is already known, placing the
condition of having to prove the annihilation
that took place.7 II.
Academic Analysis The shroud of
credibility in which David Irving clothes himself
is the call to arms for those who wish to strip him
of his platform of hate. Irving's prolific writing
and his thorough research through World War II
archives afford him an air of respectability. This
has made him a best-selling author in the U.K. and
abroad. This vast audience falls prey to the
half-truths and utter falsehoods he weaves into the
voluminous works he produces. Critics repeatedly
assail Irving's 'historical' theses, and dismiss
his revisionist themes. The importance of such work
is to deny Irving the legitimacy he so desires in
his attempts to spread his anti-Semitic and racist
messages. Therefore, a brief review of the
'academic'techniques he traditionally employs casts
significant light on the danger that David Irving
poses. 7 Quoted in Interview
with David Irving by Mario Scialoja, L 'Espresso
(26 July 1992) [translated from
Italian]. 2
Renowned historian Hugh Trevor-Roper reviewed
Irving's most controversial work, Hitler 's War,
and neatly encapsulated the world of David
Irving: Mr. Irving's essential point is that it
is 'hard to establish a documentary link'
between Hitler and the extermination program.
This is certainly true. That whole program was
veiled in secrecy and carried out at a safe
distance. Himmler himself explicitly forbade all
discussion of it and if it had to be mentioned,
it was always disguised as 'resettlement' or
'transport to the east.' Therefore, we should
not expect it to appear openly in formal
documents Indeed, it is because of this official
silence that our new anti-Semites brazenly
declare that the Jews were not exterminated at
all. Trevor-Roper continues: However, a historian must not only read
the official documents, he must also look behind
them. I believe that if we do this, Hitler's
responsibility for the policy is clear. Of
course the extermination was carried out by
Himmler's SS, but could Himmler have mounted so
vast a program without Hitler' s authority? ... Mr. Irving's argument about the Jews typifies
his greatest weakness as a historian. Here, as
in the Sikorski affair, he seizes on a small and
dubious piece of evidence: builds upon it by
private interpretation, a large general
conclusion and then overlooks or re-interprets
the more substantial evidence and probability
against it. Since this defective method is
invariably used to excuse Hitler or the Nazis
and to damage their opponents, we may reasonably
speak of a consistent bias, unconsciously
distorting the evidence.8 Two seminal essays by Eberhard Jäckel,
written shortly after Hitler 's War was published
in 1977, dissect Irving's methods.9 Jäckel has
been described as "demonstrat[ing], with a
scholar's precision, the ingenious ways in which
Irving manipulates evidence, collecting whatever
fits his preconceptions, misinterpreting as he
chooses, and ignoring whatever fails to support his
views."10 The essays counter the 8 Hugh Trevor-Roper,
Book Review, The Sunday Times Weekly Review (12
June 1977).9 Eberhard Jäckel. David
Irving 's Hitler: A faulty history dissected.
Translation from German and comments by H. David
Kirk. (Brentwood Bay, B.C.: Ben-Simon
Publications, 1993). The essays were originally
published in the Frankfurter Allgemeine Zeitung
of 25 August 1977 and 22 June 1978. 10 Foreword to Kirk's
translation, by Robert Fulford, a Toronto
journalist. Ibid. at 1. - 3 -
assertions made in Hitler 's War that Hitler was
unaware of the systematic genocide of the Jews
throughout the war.11 Rather, Irving transfers the
guilt to Hitler's deputies, particularly Goebbels
and Himmler. In later works, Irving goes beyond the
assertions in Hitler 's War, and questions the very
existence of the Holocaust --making him the darling
of neo-Nazi movements and Holocaust deniers
worldwide. Hence, an examination of Jäckel' s
essays provides additional insight today, given the
direction of David Irving's subsequent
writings.12 Jäckel's
Essays While a detailed examination of Irving's library
is outside the scope of this document, a cursory
review of Jäckel' s essays provides a window
of insight into what one can expect to encounter in
a typical Irving piece through Jäckel's
analysis of Hitler's War. First, Irving's
three-pronged argument: first. the lack of a
written order; second, the alleged fact that Hitler
never spoke of the mass murder to those in his
inner circle; and third, Hitler's counter-order of
November 30, 1941, which Jäckel terms Irving's
"piece de résistance" . This final item
consists of a handwritten note of Himmler' s
detailing a telephone call instructing that a
Jewish transport from Berlin not be liquidated.
Irving interprets this as a universal order that
Jews are not to be liquidated. Logic dictates the
exact opposite --since the instructions indicated
that this specific transport was an exception, and
was not to be liquidated, the understood norm must
have been that all transports were subject to
liquidation. 13 The other facet of Irving's argument is the lack
of any record of a written order, signed by Hitler,
instructing the mass murder of Jews. This is
despite vast evidence documenting the Führer's
virile anti-Semitism, including his own words in
Mein Kampf This is also despite considerable
evidence of Hitler's domineering role in all
important decisions. Irving attempts to pin the
blame on Himmler, despite several statements by
Himmler which indicate his consternation with the
"solution" sought by Hitler.14 Notwithstanding this
facts, Irving continues to assert that the lack of
any documentary material is clear evidence of
Hitler's relative innocence. Jäckel addresses
the missing written order differently: That fact in itself would not, of
course, prove anything. The process of history
doesn't proceed along such orderly lines as if
it were a 11 In later years Irving
began to renounce that the Holocaust occurred at
all. A key turning point appears to be his
testimony at Zündel's trial in Toronto in
1988, where his attention was first drawn to the
infamous Leuchter report on the gas chambers at
Auschwitz. His testimony at the trial indicates
that he had begun to revise his view that mass
killings occurred at all. This is examined
below. 12 Other works include:
Fleming, G: Hitler and the Final Solution
(Berkeley: University of Cal. Press, 1984);
Sydnor, C W, "The Selling of Adolf Hitler: David
Irving's Hitler 's War" (1979) 12 Central
European History 169; Broszat. M, "Hitler and
the Genesis of the 'Final Solution': An
Assessment of David Irving's Theses" (1979) 13
Yad Vashem Studies 73; and, Lipstadt. DE;
Denying the Holocaust: The Growing Assault on
Truth and Memory (1993). 13 Jäckel. supra note 9
at 21-22. 14 For specific references,
please see Jäckel's essay, supra note 9 at
22-29. -4-
financial transaction, providing
receipts and vouchers. Many things in the world
are never officially recorded. It is a fact
worth thinking about: perhaps researchers have
passed over it much too lightly.15 Nonetheless, sufficient documentation exists to
satisfy most other historians and researchers that
Hitler was indeed aware of the fate of the Jews.
Jäckel refers to notes by Alfred Rosenberg,
minister-designate for the eastern occupied
territories, speeches made by Hitler himself46, and
explicit diary entries by Goebbels. Particularly
remarkable is the last of these sources, if only
for its thorough accuracy and vivid description of
the Nazi apparatus constructed to deal with the
Jewish problem. Despite these sources, along with
numerous others, including Hitler's personally
signed last will and testament, Irving managed to
construct his own reality with Hitler's innocence
unimpugned. In response to an Irving letter alleging
"disappeared" documents shedding light on the
matter, Jäckel published the second of his
essays in mid-1978. This short piece refutes
Irving's subsequent claim, and serves as a classic
example of Irving's archival gymnastics in
uncovering supporting evidence for his
controversial views. At issue is a document
detailing instructions from Nazi government
minister Lammers that the Führer had ordered
that the solution to the Jewish question be delayed
until the end of the war. Irving seized this
document, heralding it as proof of Hitler's
benevolence in attempting to delay the mass murder
of the Jewish people. However, a more intricate
examination, such as that conducted by Jäckel,
provides the true meaning of Irving's 'find'. Jäckel' s research into the events
surrounding the document in question reveal its
true meaning, one quite distinct from that Irving
attributes to it. In fact, the document refers to
the question of the legal position of "Mischlinge"
(part-Jews) --Hitler's order was made to the
Minister of Justice, instructing to put the matter
on the back burner until the end of the war. Thus,
the reference in Irving's document merely
illustrated Hitler's lack of tolerance for the
machinations of jurists, and their legal exercises
into the status of German citizens with partial
Jewish ancestry. It did not, as Irving suggested,
reflect the Führer's benevolence towards the
Jewish people. Jäckel clearly refutes this
proposition by transporting the evidence from
Irving's narrow vision to its true historical
context. Irving's Tricks of the
Trade Eberhard Jäckel's work on Hitler's War some
twenty years ago is as relevant today as it was
then. The reason is simple --David Irving is still
up to his old games. With numerous titles to his
credit, Irving has maintained a mainstream
following through his enticing writing style and
thorough archival research. Nonetheless, his
methods remain flawed, as he continues his
revisionist themes interspersed with genuine
historical insight. In his translation of
Jäckel' s essays, H. David Kirk identified
several recurring themes (or 15 Ibid. at23.16 Jäckel refers to a
December 1, 1941 address to dinner guests: "Many
Jews are quite unaware of the destructive nature
of their very existence. But whoever destroys
life courts death. and that is exactly what is
happening to them!" Supra note 9 at
29. -5-
'tricks') in Irving's works.17 A brief survey of
Irving's slight of hand should thus shed some light
on the danger that lies within the writings he
generates . . .18 a. Non Sequitor Reasonings and
Omissions Irving's writings must be read with a keen eye
towards the vantage point of the writer. The
author's sympathies lie squarely with Adolf Hitler,
and thus his 'history' is geared towards a
rehabilitation of Hitler's persona. This is evident
through Irving's use of archival sources to
disfigure the truth and manipulate the facts into
an acceptable form. As Kirk notes: "Irving does not
hesitate to interpret what he thinks is needed for,
or to omit what runs counter to, a cleansing of
Hitler's demon image."19 Nowhere is this more evident than in Irving' s
testimony under cross-examination at the trial of
Ernst Zündel. When questioned regarding
several Nazi documents detailing the mass murder of
Jews during the war, Irving attempts to manufacture
suspicion and challenge the authenticity of the
papers placed before him. Thus, with respect to a
speech given by Himmler mentioning the genocide,
Irving is quick to arouse suspicion, testifying
that he believed there may have been tampering with
some of the documentation, and searching beyond the
scope of the document to justify his point of
view.20 On the other hand, in the case of documents
that further his Hitler-cleansing thesis, Irving
deems himself to be strictly bound by references in
the document itself thus, if a Himmler note does
not explicitly mention "genocide", then that can
not be the subject of the note.21 b. Misuse of Informants David Irving's use of testimony from Hitler's
long-term personal servants serves as another
example of the lengths he goes to m his attempt to
rehabilitate leader of the Third Reich. Once again,
Irving only uses the portion of statements that
serve his limited aims, and is quite apt at quoting
out of context and truncating inculpatory testimony
from his selections. This stance is further
questioned by the emphasis Irving places on such
informants and their Nazi documentation,
concurrently with discrediting Jewish survivor
accounts of the Nazi atrocities. 22 c. Avoiding Ugly Facts and Inventing Nicer
Ones The ultimate spin doctor, Irving constantly
slants the facts to present Hitler in the best
possible light. For instance, a Nazi liquidation
directive reportedly from Himmler on behalf of the
Führer is referred to as Himmler's "alone", in
association with Hitler. Thus, 17 Please see supra
note 9. The following is a brief recap of Kirk's
thorough academic analysis of Irving's work, and
a complete reading of Kirk's essay is highly
recommended.18 The headings are taken
from Kirk's essay. 19 Kirk, supra note 9 at
41. 20 R. v. Zündel 7 W C.B.
(2d) 26 (Ont. District Court), Thomas D.C.J.,
trial transcript at 964344 and
964849. 21 Ibid. at 9684. 22 For example, see Irving's
testimony in Zündel supra note 20 at
9558. -6-
with a seemingly fleeting phrasing, Irving is
able to shift the ultimate responsibility from
Hitler to other members of the Nazi elite. d. Linguistic Cover-ups This technique Irving acquired directly from the
Nazi regime he so admires. With euphemisms such as
"resettlement" for expropriation and
ghetto-ization, and "Final Solution of the Jewish
Question" for the Nazis' mass extermination of
Jews, the Nazis managed to sanitize their conduct.
Similarly, Irving's phraseology seeks to legitimize
his revisionist slant on history by enticing the
reader with catchy(??) titles, glossing over the
sinister aspects of his works. e. Use of Ambiguity Another technique identified by Kirk is Irving's
tendency to cloud the perspectives in his writings.
Often the reader is unaware who is expressing the
point of view at certain instances --is it the
author, or is it one of the historical figures
involved, be it the Führer or Himmler or
Göring. Through this masking of voices Irving
is able to intersperse his own opinions with his
subjects, while at the same time adopting their
voices to legitimize his own perverse views. This
technique was also evident during Irving's own
testimony at the Zündel false news trial,
where the question of the meaning of "ausrottung"
(extermination) is skirted by Irving.23 One final item addressed by Kirk is Jäckel'
s treatment of Irving's piece de resistance, the
handwritten note by Himmler detailing Hitler's
order to stop the liquidation of a transport of
Berlin Jews.24 Jäckel was suspicious of
Irving's claim that this note indicated Hitler's
desire to curtail the mass extermination of the
Jews. Subsequent archival research supports
Jäckel's cynicism. Lucy Dawidowicz's research
draws on the first two lines in the note written by
Himmler, revealing that the purpose for stopping
the transport was to capture one Dr. Jekelius, who
may have been the son of the Soviet Foreign
Minister.25 Thus, with this additional information,
Jäckel's objection to Irving's interpretation
of the note is strengthened. By revealing all the
facts, and placing the note in its proper context,
Irving's version of the facts succumbs to the
falsehoods that it was built upon. David
Irving's techniques challenge the most educated
minds to adopt his version of reality. By revealing
Irving's methods, the illusions portrayed as facts
in his writings have been unveiled. Hence, while
claiming to be a legitimate historian, Irving can
now be identified with his underlying purpose, to
morally rehabilitate Adolf Hitler and the Third
Reich. Given this accurate version of reality, it
is all the more clear why his activities must be
curtailed, and why his alleged legitimacy be
eradicated. 23 Zündel, supra
note 20 at 9621-24.24 See above, at note
20. 23 Lucy S. Dawidowicz, The
Holocaust and the Historians. (Cambridge, MA:
Harvard University Press, 1981) at
34-38. -7-
III.
A History of David Irving David Irving was born in England in 1938 and
still maintains a home in London today. While an
accomplished student at grammar school, Irving
never completed a post-secondary school degree. He
enrolled at Imperial College, London University in
1957 for Sciences after previously focused on Arts
subjects. He was forced to repeat his first year at
IC, and by early 1959 Irving became editor of the
college's "Phoenix" magazine. This position was
short-lived due to the magazine's board of
directors' dissatisfaction over articles by Irving
on right-wing extremists. A greater transgression
of Irving's early years occurred with his
publication of "Carnival Times", a journal under
the auspices of London University's Carnival
Committee. 26 The result was a supplement which
contained, among other items, racist cartoons, a
defence of South African apartheid, complimentary
words on Hitler's Germany, and allegations that the
national press was owned by Jews.27 At this point
in time Irving made one of his infamous remarks,
later claiming to have been flippant, 28 stating to
an interviewer:" .. . you can call me a mild
fascist if you like."29 Irving's revisionist work came to the forefront
with the publication of The Destruction of Dresden
in 1963, and his claim that some 250,000 people
died as a result of the Allied bombings. This
figure was later revised by Irving, who apologized
for the incorrect, excessive death tolls he claimed
to have quoted from World War II documents.30 The
possible source of this revisionist stance may be
traced to correspondence between Irving and one
Studienrat H. Dolinsky, who claimed to have been a
Wehrmacht radio monitor during the war. Dolinsky's
claim was that he had overheard a transmission
indicating that the World Jewish Congress had
demanded Dresden's liquidation as a consequence of
the quashing of the Warsaw ghetto uprising.31 These
unfounded claims appeared to have aroused Irving's
interest, and the connection to Dolinsky may have
enabled Irving to forge some inroads into the East
German archives. Additionally, this exchange may
have been Irving's first encounter with the power
held by newly discovered, and thus difficult to
disprove, information from primary sources. This is
one possible explanation for Irving's subsequent
obsession with archival research as the basis for
his historical writings. Irving's difficulties with accuracy continued
with his later work. The English Court of Appeal
upheld a successful libel suit against Irving in
1971 resulting from a claim he had made in The
Destruction of Convoy PQ17.32 The next major event
associated with 26 Clifford Luton, "The
mild Fascist' pulls a fast one" The Daily Mail
(1 May 1959).27 Mike Williams, "David
Irving: IC's 'mild fascist"' Felix (9 December
1977). [note: Felix is Imperial College's
student newspaper] 28 See Irving's response to
reviewer Kai Bird in The New Statesman (8 May
1981). 29 The Daily Mail (1 May
1959). 30 Letter by David Irving,
The London Times (7 July 1966). 31 This exchange was revealed
by Irving via correspondence with C.C.
Aronsfeld. curator of the Weiner Library in
London, during 1960-61. 32 "Law Report March 4 1971:
£40.000 libel damages upheld for
'outrageous conduct"' The Times (5 March
1971). - 8-
Irving was the release of Hitler's War in 1977
and the furor that arose in his attempted
rehabilitation of the Führer. In association
with its publication Irving presented an offer of
£1000 to any person that could present
documentary evidence that Hitler knew of the
Holocaust. With the release of the book David
Irving's prominence rose and he embarked on
numerous speaking tours to promote Hitler's War."
Notably , at this point in time, Irving still
accepted the Holocaust at face value, merely
shifting the blame for it to Hitler's underlings.
Hence, his popularity among neo-Nazi groups was
limited by his acceptance of the genocide of the
Jewish people during the war. This relationship with right-wing extremists and
neo-Nazis warmed during the early 1980s, with
Irving addressing the Clarendon Club on several
instances.34 These dinners, with subjects ranging
from Hitler's lack of knowledge of the
extermination to the bribing of Churchill by
Eastern European countries, entertained members of
the National Front and other assorted right-wing
and neo-Nazi groups. Irving had begun to move
further to the right, and as a result he had become
increasingly marginalized. This was evident through
Irving's publication of "Focal Point", which he
claimed to be the voice of the educated Right, and
his numerous speaking engagements with extremist
groups.35 While still a prolific writer during the early
1980s36, Irving's next major release was
Churchill's War, Volume One: The Struggle for Power
in early 1988. Irving had accessed Churchill's
diaries and had researched and written the
biography for a period spanning some ten years
beginning in the mid-1970s. As a testament to
Irving's revisionist stance, the book was required
to be published in Australia, by Veritas
Publications, a right-wing publisher. The biography
portrays Churchill as a ruthless alcoholic, whose
involvement of Britain in the war was spurred by
his own political motives and the influence of
Jewish financiers. The book's revisionist history
was subjected to scathing reviews by the British
press, who concurrently praised Irving for the
depth of his research in writing the
biography.37 33 Included in his
speaking engagements were debates with
historians. including Eberhard Jäckel. (See
Die National Zeitung (14 July 1978)). In
addition, his popularity and publicity in
Germany expanded with dates in Stuttgart,
Munich, and the Frankfurt Book Fair.34 Some examples are 30 March
1979 and 1 February 1980. For quotes from
subsequent Irving visits to the Clarendon Club.
see Part IV. 35 Some instances include:
paying tribute at the funeral of Hans Ulrik
Rudel. a famed Luftwaffe pilot; a speaking tour
of Germany in March 1982 organized by Dr.
Gerhard Frey, editor of the neo-Nazi weekly
Deutsche National Zeitung, an address at the
Institute for Historical Review Convention in
Los Angeles on 3, 4 September 1983;
etc. 36 Irving's book Uprising:
One Nation's Nightmare: Hungary 19S6, released
in 1981, drew this response from a
reviewer If nothing else, Uprising
should lay to rest the charitable assumption
made by gentleman historians that men like
Irving would never stoop to dressing up their
evidence. Irving not only has a consistent
record of getting things wrong, but he clearly
can't keep his noxious political affinities from
turning his history into propaganda. See Kai Bird, "The secret
policemen's historian" New Statesman (3 April
1981). " See David Cannadine,
"Winston Agonistes" The New York Review of Books
(15 June 1989). -9-
A pivotal event in the life of David Irving was
his appearance at Ernst Zündel' s false news
trial in April. 1988.38 As evident in Irving's
testimony at the trial, he had departed from his
mere claim of Hitler's innocence to a deeper
questioning of the existence of gas chambers and
the genocide of six million Jews at the hands of
the Nazis.39 This' revelation' was triggered by the
Irving' s introduction to the Leuchter Report.40 In
his subsequent foreword to the Report, Irving
adopted Zündel's claim that the Holocaust was
a "swindle". utilized by Jews to extract moneys
from Germany in order to finance the state of
Israel. As such, Irving had made the leap from Nazi
apologist to a full-fledged Holocaust denier. Since the Zündel trial, Irving has
maintained that while he does question the events
of World War II, he is not a "Holocaust denier".
Rather, he has refused "to swallow the whole
Holocaust package that is now on offer."41 Irving's
research in the late 1980s attempted to
substantiate his claims that the number of Jews
murdered were minimal. In this vein, he introduced
Tass reports claiming 46 Auschwitz 'death books'
existed, and which detailed only 74,000 deaths.42
In addition, Irving deleted all reference to
"factories of death" in the revised edition of
Hitler 's War. Armed with this new material, Irving
continued his speaking tours throughout 1989 and
1990. His Canadian tour began with an inauspicious
introduction. Gerry Weiner, Canadian Secretary of
State for Multiculturalism, issued a press release
expressing his disdain for Irving's views and
condemning his visit to Canada. Irving responded,
through lawyer Doug Christie,43 by suing Weiner for
libel. However, Irving's participation in numerous
rallies subsequent to the Weiner statement appear
to substantiate the claims made against him." His
penchant for addressing neo-Nazis, and for praising
the Nazi 38 Zündel. a major
writer and distributor of pro-Nazi materials,
was tried under then section 177 of the Canadian
Criminal Code, the false news provision. At
issue was his distribution of a pamphlet titled
Did six million really die?, which labeled the
Holocaust a hoax, and asserted that only 300.000
Jews died in Nazi custody. Zündel was
convicted, but eventually an appeal to the
Supreme Court of Canada in 1992 succeeded, where
the Court held that the false news provision
were overly broad and too vague, and thus held
to be unconstitutional39 Irving has described this
change of heart on several occasions. including
at a speech in Fredericton. New Brunswick in
March 1989. 40 This report, by Fred
Leuchter, was commissioned by Zündel for
his 1988 trial. Leuchter ventured to Auschwitz,
Birkenau and Majdanek to conduct 'scientific'
tests on the levels of Zyklon B in the gas
chambers. Finding minimal traces, Leuchter
concluded no gas chambers were used to
exterminate Jews. and that the story of gas
chambers at Nazi death camps were a hoax. In
actuality, Leuchter's results are
understandable, given the history of expansion
of Auschwitz and the varied uses of the current
gas chambers" on display (the ones actually
utilized were destroyed by the Nazis prior to
the end of the war). In addition, Leuchter
misrepresented himself as a gas chamber expert.
despite lacking any qualifications as a chemist
or as an engineer. Despite the clear evidence
rejecting the results, the Leuchter Report
remains a popular source for Holocaust deniers
worldwide. 41 David Irving, Letter to
the Editor. The Sunday Times (24 September
1989). 42 Irving neglected to
mention that the books were an incomplete
record, covering only part of 1942. 43 Christie became known for
his defence of Ernst Zündel and other
prominent neo-Nazis. 44 The documentary
"Dispatches: The truth sets us free" (UK Channel
4, 27 November 1991) displays Irving in this
light. in addition. Videos show Irving
addressing youths shouting "Sieg Heil", and
Irving praising the work of the great German
martyr, Rudolf Hess. ("This Week", ITV 28
November 1991). -10-
regime, solidified his position as the darling
of Nazi sympathizers.45 It also served as one of
the bases for his deportation from Canada in
November, 1992, and the Australian government's
refusal to grant his visa application of December,
1992.46 Irving' s questionable academic credentials came
to the forefront once again in 1992 as a result of
the serialization of Goebbels's Diaries in Britain
by the Sunday Times. Andrew Neil, the Times'
editor, had hired Irving to translate the documents
that he found in the Moscow archives. Irving's
revisionist reputation gave rise to public outcry
over the actions of Neil and the Times.47 Neil
responded that he only used the author because it
was Irving who brought the diaries to his paper,
and that Irving claimed that he was on a few people
who could read Goebbels' s handwriting.48 Irving
still maintains that Neil breached the contract
with him and that he was never compensated for his
work for the Times with respect the translation of
the diaries.49 In November, 1993 Irving launched the David
Irving Fighting Fund (DIFF) to raise money for
suits he had launched in Canada, Australia. Germany
and Britain. DIFF publishes "Action Report", a
newsletter designed to keep fund donors informed of
Irving's activities and legal battles. The
litigation in question included several libel suits
against Australian newspapers and journalists,
appeals of his visa refusal in Australia, appeal of
German fines for denial of the Holocaust, and
various other frivolous actions.50 Recent years have seen Irving maintain his
extensive speaking dates in Britain and the United
States. Legal sanctions have limited his ability to
address audiences in person in several countries,
including Canada, South Africa, Australia and
Germany. Therefore, Irving has produced several
video cassettes as a means of disseminating his
views to a wider audience. In particular, this was
his response when his entry into Australia was
refused on several occasions during 1991-1993. On the literary front, Irving released Goebbels:
Mastermind of the Third Reich in early 1996. This
followed another storm of controversy with the U.S.
publisher, St. Martin's Press, rescinding the
contract to publish the work following "a series of
scathing 45 Also as a result of
his statements, Irving was convicted and fined
for offending the spirit of the dead by denying
the Holocaust in Germany. For a more extensive
discussion of this matter. see Part V.46 Both these events are
discussed in much greater detail in Part V of
this document. 47 David Gardner and Justin
Davenport, "Goebbels war of words" Daily Mail (4
July 1992) p. 9; Fiona Barton, "Historian mobbed
by protesters" The Mail on Sunday (5 July 1992);
Rosie Waterhouse. "Jews attack publisher of
Irving book," The Independent (6 July 1992) p.
3. 48 Alan Travis, "Tories tax
Neil on Goebbels" The Guardian (8 July
1992). 49 Another controversy
arising from this episode dealt with the
involvement of François Genoud, a banker
and lawyer who controls the literary estates of
Goebbels, Hitler and Bormann, and a man who has
funded Nazi war criminals for decades. Genoud
had reportedly been paid some £17, 360 by
The Daily Mail to publish the diaries. Genoud
also claimed that Irving and the Sunday Times
had not received his authority to publish the
Goebbels diary. Public contempt arose from the
alleged involvement of Genoud, whose ideology he
summed up as: "Things would have been much
better if Hitler had won." See: David Harrison
and John Merritt, "Hitler agent paid for diary
rights" The Observer (12 July 1992); Paul Keel,
"Banker is set to sue over Nazi's diaries" The
Mail on Sunday (12 July 1992). 50 See Part V for further
details. &emdash;11&emdash;
pre-publication reviews".51 This necessitated
Irving publish and peddle the book himself, with no
major publishing house willing to associate
themselves with the author.52 The book continues
Irving's attempt to de-demonise Hitler, and,
expanding on his previous writings, continues to
shift the blame for any atrocities during the war
to Hitler's subordinates. Previously, Himmler had
been targeted by Irving, and his latest work now
puts Goebbels in the frame in his attempt to
insulate Hitler from the Holocaust.53 Irving
describes Hitler as a "reluctant anti-Semite". With
respect to Goebbels, Irving writes: "Neither the
broad German public nor their Führer shared
(Goebbels' s) satanic anti-Semitism."54 Faced with mounting opposition and limited
finances, Irving has once again attempted to
portray himself as a mainstream historian. He now
concedes that up to three or four million Jews died
at the hands of the Nazis, but still insists that
only about 600,000 to one million of them died in
the death camps.55 Nonetheless, he remains the same
flawed author he has always been, with the same
jaded viewpoints. and a biased recounting of
history. This was proven with Irving's release of
Goebbels. His writings still prompt virulent
opposition, as his mission of obscuring the truth
about the Holocaust appears to be unrelenting. What David Irving is doing ... is not
the destruction of live people but the
destruction of people who already died. It's
killing them a second time. It's killing
history.56 IV.
David Irving: In his own words ... Any criticisms of David Irving, whether
attacking his historical techniques or his personal
biases, are based on the hatred he himself exudes.
Thus, the most fruitful manner of assessing Irving.
the individual, is to briefly listen to what it is
he says. A brief encounter provides sufficient
evidence as to why his type of speech should not
be 51 "Hitler's PR man",
supra note 2. See also, "Publisher drops book on
Goebbels" Associated Press (New York: 5 April
1996).52 Sean O'Neill, "The strange
life of a much-reviled man" The Daily Telegraph
(13 April 1996). See also Gitta Sereny, "Spin
Time for Hitler" The Observer (21 April 1996)
The Review section, page 2. This latter review
triggered Irving's launch of a libel suit
against the Observer newspaper. 53 Peter Ellingsen,
"Historian with a past --David Irving" Sydney
Morning Herald (22 June 1996). 54 For a review of Goebbels,
see Robert Harris, "The man who loved Adolf
Hitler" The Evening Standard (1 April
1996). Also, see Sereny, supra note
52. Sereny concludes her review of Goebbels with
the following refrain: Anyone, however, who wants to
learn about the political acts of one of this
century' s most able and most dangerous men,
should remember that what they are reading is
one brilliant propagandist --one man who bates
and loves obsessively --writing about
another. 55 Severin Carrel,
"Cold-calling author hits the big chill"
Scotland on Sunday (12 May 1996). See also David
Irving interview on station 2GB, Australian
radio (27 July 1995). 56 Deborah Lipstadt, Emory
University professor, in Frank Rich. "Hitler's
Spin Artist" The New York Times (3 April
1996). -12-
protected, and why he should not be allowed to
inflict harm on groups the subject of which his
revisionist views attack. Therefore, despite what
David Irving may later claim. what he says really
does speak volumes about the man. On his brand of history: When my critics have done the original research
that I have .. I shall heed to their objection, but
they haven't, so I won't. New Zealand Herald (17 October 1987) I have been in the archives, where the truth is
... ... in response to Holocaust survivor Kitia
Altman, during Australian interview, "A Current
Affair" (16 February 1993) I'm afraid I have to say I wouldn't consider
what a survivor of Treblinka could tell me in 1988
to be credible evidence. ... I would prefer the
evidence of somebody who goes to the site with
expert knowledge now, and carries out concrete
examinations to the very human and fallible human
memories after a tragic wartime experience forty
years after the event. Testimony at trial of Ernst Zündel, April
1988 (transcript p. 9558) ... the long-lost Joseph Goebbels diaries which
I personally retrieved from the Moscow secret state
archives where they have been hidden for nearly
fifty years. I appreciate that I have aroused much
envy ... Irving Australian press release (3 December
1992). In Goebbels: Mastermind of the Third Reich.
Irving finally admitted that German historian Dr.
Elke Fröhlich was the first to discover the
microfiches containing the diaries.57 On Adolf Hitler: ... without the tragedy of the Third Reich, the
State of Israel would probably not exist and in
that respect he [Hitler] was doing the
Jewish nation a favour. Testimony at trial of Ernst Zündel, April
1988 (transcript p. 9753) ... that without Hitler's active campaign on the
Jewish front, the State of Israel would probably
not now exist and have attracted its overwhelming
worldwide sympathy ... Testimony at trial of Ernst Zündel, April
1988 (transcript p. 9777) On the gas chambers, the Holocaust, and its
survivors: I don't say the Holocaust is a hoax. What I say
is the Auschwitz gas chambers are a hoax, which
narrows it down very dramatically. I'm talking
about magnitude and methods, but I'm not denying
the Holocaust happened. I'm not even going to say
Jews did not die in gas chambers. I think it may
have happened in a small and experimental way. Sydney Morning Herald (22 June I 996) The holocaust of the Jews in Auschwitz is
without basis ... 57 See Sereny, supra
note 52. -13-
Frankfurter Allgemeine Zeitung (February
1990) What I am saying is that I am not denying that
the Holocaust happened in some degree. I am saying
that there were a large series of unrelated
atrocities. But the idea of the Holocaust
mythology, Adolf Hitler ordered the killing of six
million Jews in Auschwitz in simple terms, that, I
think, is now very suspect. Testimony at trial of Ernst Zündel, 1988
(transcript pp. 9563-64) Yes, hundreds of thousands were killed, but
there were no factories of death. All that is a
blood libel against the German people. Speech in Gresham, Oregon (October 1994) ... it came out that the so-called gas chambers
were constructed many years after the war for the
tourists. Interview with Mario Scialoja, L 'Espresso (26
July 1992) The gas chambers were invented in November 1942
by the secret service of Churchill's War Ministry
for reasons of propaganda against the Germans. It
was a masterpiece. The testimonies that you
[interviewer Mario Scialoja] are quoting
are of Jews, and do not count, because the Jews are
parties to the cause. Interview with Mario Scialoja, L 'Espresso (26
July 1992) ... if a year from now the gas chamber legend
collapses, what will that mean for Israel? Israel
is drawing millions of dollars each year from the
German taxpayer, provided by the German government
as reparation for the gas chambers. It is also
drawing millions a year from American taxpayers,
who put up with it because of the way Israelis or
the Jews suffered. No one's going to like it when
they find out that for 50 years they have been
believing a legend based on baloney. Interview: "History' s cache and carry" The
Guardian (7 July, 1992) Mortal pride demands that an Auschwitz survivor
must have seen gas chambers. Letter to the Editor,
Daily Telegraph (19 March 1990) Auschwitz was a very brutal slave labour camp,
where probably 100,000 Jews died ... Australian
Interview: "A Current Affair" (16 February
1993) There is no doubt in my mind that very large
numbers of Jews and others were massacred by the
Nazis on the eastern front during World War II.
They were machine gunned into pits ... Speech in Gresham. Oregon (October 1994) After VE-Day, countless more ... were culled
from the Displaced Persons camps in liberated
Europe by the Haganah and whisked into new homes,
lives and identities in the Middle East, leaving
their old, discarded identities behind as "missing
persons". Disputing the number of Jews murdered in the
Holocaust, in Letter to the Editor, Daily Telegraph
(19 March 1990) -14-
Robert Maxwell was of course the greatest
propagator of the Holocaust myth in Britain. He
held the great Holocaust seminar because he and his
ilk survived and dined out on the Holocaust myth.
... ... We're all Holocaust survivors, every one of us
who was born in 1939 or from then until 1945. We're
all Holocaust survivors. We don't go around dining
out on that particular menu. The ones who suffered
in the Holocaust are the ones who died, not the
ones who survived. But the Holocaust survivors are
the ones who are earning of course. Address at meeting of Clarendon Club (London. 19
September 1992) ... I'll say you didn't [suffer]. You
survived. You are a survivor. By definition you
didn't suffer. Not half as much as those who died.
Those who did die in the so called gas chamber, gas
ovens, or cremated, or died in the plague, or
epidemics, or whatever in Auschwitz. They suffered.
You didn't. You're the one making the money.
Explain to me this. Why are you people have made
all the money, but Australian soldiers who suffered
for five years in Japanese prison camps haven't got
a bent nickel out of it. ... They know I am going
to be tasteless about the whole matter. Proposed response to debate with Holocaust
survivor on planned trip to Australia, made during
speech in Gresham, Oregon (October 1994) ... he [Günther Deckert) had done what
he did in Germany's interests and because he like
many other Germans was being thoroughly fed up with
what was being done to Germany by Israel in the
sense of continually pestering them for financial
compensation. From the actual culprits and
perpetrators of the Holocaust. From their sons and
daughters and grandsons and granddaughters. And the
judges said in their verdict, obviously they had a
certain degree of sympathy for Deckert, having done
it for these reasons. They understood why he had
done it. On the conviction of Deckert in connection with
a speech given by Fred Leuchter in Mannheim.
Germany, in a speech in Gresham, Oregon (October
1994)58 On his legal battles: The German government has egg over its face
because the German government has for the last
forty years been paying nearly $1 billion a year to
the state of Israel in reparations which now has
turned out to be a fake gas chamber. That's
basically what it is all about. The German
government is trying to conceal the fact as long as
possible. And they use increasingly vicious
methods. Speech in Gresham, Oregon (October 1994) This entire extraordinary fight. I have to admit
that this is what I find the most thought provoking
matter. I never used to believe in international
conspiracies. It is not a conspiracy really. It is
a network. It is a network of incredible complexity
and influence and forcefulness. 58 Deckert, the former
leader of Germany's far-right National
Democratic Party, was ordered to serve
additional prison time in 1996 for proclaiming,
at a public appearance with David Irving, that
the Nazi genocide of Jew during World War never
occurred. See "Neo-Nazi guilty of inciting
hatred" Toronto Star (22 June 1996). 15
Speech in Gresham, Oregon (October 1994) On minorities, women, etc...: ... a mob of one, or two or three thousand
demonstrators. All the scum. The homosexuals, the
gypsies, the lesbians, the Jews, the blacks, the
immigrants. All coming together in a paid mob. To
harass, to frighten, to intimidate. Rather like the
scum here today. . ... opinion on demonstrators at speech in
Gresham, Oregon (October 1994) But now we have women reading our news, to us;
they must have their own news which they can read
to us, I suppose. If we were interested ... I'm
prepared to accept that the BBC should have a
dinner-jacketed gentleman reading the important
news to us, followed by a lady reading all the less
important news ... Address at meeting of Clarendon Club (London. 19
September 1992) ... Plebiscite like a woman . . she says no, but
means yes. ... view on Canadian referendum during speech in
Toronto (1 November 1992) They [women] haven't produced any great
creative talent. Interview: "In the Psychiatrist's Chair" (14
August 1982) ... [they are] less intelligent and less
developed than the Third World. ... why women constitute the "Fourth World",
interview in Vancouver Sun (22 October 1986) Nothing pleases me more than when I arrive at an
airport or at a station or at a seaport and I see
[a] black family there. ... I think that is
the way God planned it. and that's the way it
should be. When I see these families arriving at
London airport, I'm happy, but I'm happier when I
see them leaving London airport. Address at meeting of Clarendon Club (London. 19
September 1992) On his critics: The same lies printed in your pages may just
possibly be believed. You have a reputation for
getting things right more often than not. Response to reviewer Kai Bird, in "Reviewed vs.
Reviewer", The New Statesman (8 May 1981) There is enormous envy and rivalry and jealousy
in the world of historians. The knives are out.
They don't like me getting stuff that they don't
get. On the discovery of the Goebbels diaries, in
"History's cache and carry" The Guardian ('7 July
1992) ... such immense pressure from, you know who,
from over our traditional enemies. Pressure not
just from the advertising industry, pressure not
just from the self-appointed ugly, greasy, nasty
perverted representatives of that community in
Britain. ... This odd and motley and ugly and perverse
and greasy, and slimy community of anti-fascists
that run the severe risk of making the very word
fascist respectable [by] their own
appearance. -16-
On the opponents of his translation of
Goebbels's diaries in the Sunday Times controversy,
address at meeting of Clarendon Club (London. 19
September 1992) ... . ... a bearded prophet called Mr. Chaim
Bermant, to whom I gave an interview back in
January. I didn't realize that he was Jewish, and I
could kick myself . ... . because he said he was a
journalist, and so I assumed, quite falsely of
course, that he was upright, honest and decent and
true. And so he writes vicious, vicious lies ... .
... Address at meeting of Clarendon Club (London, 19
September 1992) The organs of the National Press owned by Jews
... Editorial in Carnival Times (London. May
1959) This is how ludicrous it is. All the facts are
on our side. And yet the media, Hollywood,
newspapers, the journalists, all belong to this
tottering conspiracy of silence against us. Speech in Gresham, Oregon (October 1994) On himself: People ask me if I'm anti-Semitic. I say, not
yet. But it's a mighty and a manful struggle not to
become anti-Semitic. I have to remind myself every
day, turn the other cheek. LA Times News Service (7 July 1996) ... I do speak with some authority. I am very
well known as a historian. I've written 30 books
which are in most of the libraries. I do my work in
the archives like any respectable historian should
and my views do attract a certain amount of
attention. They do hold water and I think this is
why they pay attention to me where they don't pay
attention to the extreme neo-Nazi rabble. Australian radio interview on station 2GB (27
July 1995) ... it is now up to them to explain to me as an
intelligent and critical student of modern history
why there is no significant trace of any cyanide
compound in the building which they have always
identified as former gas chambers. Foreword to The Leuchter Report (May 1989) I want people still to be reading my books 100
years from now, so that they will say: 'Well,
through people like David Irving we got closer to
the truth', Speech in Halle, Germany (November 1991) I've always wanted to influence people and
destinies, and for the last 20 years as a writer
I've been influencing people's opinion and I want
to start influencing their destinies ... Interview: "In the Psychiatrist's Chair" (14
August 1982) -17-
V.
The Legal Questions This section of the document will deal with two
specific issues: first, the legal difficulties that
David Irving has encountered as a result of
broadcasting his revisionist ideas59; and second,
the question of whether these legal limitations
placed on him are justified that is, the question
of whether limits on freedom of speech are
warranted in specific situations. Given Irving's
legal encounters, it is apparent that some
jurisdictions have decided that limiting his brand
of hateful speech is necessary in order to protect
the wider interests of the people situated in that
jurisdiction. Irving's Legal History: The
Highlights 1. Germany David Irving's penchant for addressing neo-Nazis
in Germany led to his legal problems in that
problems. He was charged under s. 189 of the
Criminal Code of the Federal Republic of Germany
with the offence of defaming the memory of the
dead.60 The charges arose as a result of a speech
Irving made on 21 April 1990, when he stated that
the gas chambers in Auschwitz were a tourist
attraction constructed by the Polish government. He
was convicted on 5 May 1992 for propagating the
"Auschwitz lie" by the Municipal Court in Munich,
and ordered to pay a DM10,000 fine.61 On appeal to
the State Court in Munich, the court dismissed
Irving's appeal and increased his fine to
DM30,000.62 In November, 1993 Irving was once again in
Munich, scheduled to appear at an event marking the
55th anniversary of the Nazis' Kristallnacht
pogroms. On this occasion he was served by German
authorities with an order expelling him from the
Federal Republic of Germany. This order was
complied with by Irving, and he left the country by
10 November 1993. 63 An appeal by Irving in March,
1996 with the respect to the order banning him from
Germany was dismissed by a Munich court.64 59 Note that Irving has
also encountered difficulties in New Zealand,
South Africa, and Austria, among other
countries. See, for example, "Ban on Nazi
Speech" Yorkshire Evening Post (7 November 1989)
on Austria's banning of Irving.60 For further reading on the
German law, see E. Stein. "History Against Free
Speech: The New German Law Against the
'Auschwitz' --and other 'Lies'" (1986) 85
Michigan Law Review 277. 61 "Fined for Auschwitz lies"
The Globe and Mail (5 June 1992). 62 "Holocaust revisionist
fined $23G" Toronto Sun (15 January
1993) 63 "Germany expels David
Irving" Toronto Star (11 November 1993);
"Neo-Nazi barred" Toronto Sun (11 November
1993). 64 "Irving plea fails"
Telegraph (23 March 1996); "Ban on historian
upheld" Arizona Star (23 March 1996);
"Revisionist historian barred from Germany"
Toronto Star (23 March 1996). -18-
2. England David Irving was successfully sued for libel
with respect to assertions made in his book, The
Destruction of Convoy PQ.1 7. The action was
commenced by Captain John Egerton Broome, the
escort commander of convoy PQ 17, against Irving
and his publishers for claims in the book that
targeted Broom as responsible for the sinking of
the convoy. The Court of Appeal, with a judgment by
Lord Denning, upheld the £40,000 libel damages
awarded, stating that Irving was aware the
assertions were unfounded, but proceeded with them
in place, risking potential libel actions, to
increase the possibility of success on
publication.65 On 11 February 1994 Irving was ordered to be
committed to prison for a three month period after
being found in contempt of court by Mr. Justice
Brooke of the High Court of Justice (Queen's Bench
Division) in London. The contempt related to a
failure to comply with an order of Mr. Justice
Morison requiring Irving to disclose financial
details to a German publisher suing him for
repayment of an advance on a book not written.66
Mr. Justice Brooke held that Irving was
deliberately avoiding service of legal documents
requiring the affidavit ordered by Mr. Justice
Morison.67 Irving was released from prison, after
serving ten days, upon an order by Mr. Justice
Mitchell of the High Court, who stated that he
hoped Irving had "learnt his lesson" and would now
comply with the outstanding court order.68 3. Canada David Irving's initial foray into the Canadian
legal system was of his own volition. Irving began
a libel suit against Gerry Weiner, Minister of
State for Multiculturalism, for a press statement
released by Weiner relating his opposition to an
upcoming Canadian tour by Irving. Weiner stated
that: David Irving has made a career out of
writing and lecturing that the Nazi persecution
of Jews and the Holocaust itself have been
exaggerated. He has given support to and
received sponsorship from 63 See the reasons of Lord
Denning, M.R in Broome v. Cassell & Co.
[1972] AC 1027. 66 The dispute concerned a
DM150,000 advance on royalties from the
publishers. Rowohlt Verlag, for a biography of
Winston Churchill, with the publishers asserting
that Irving had failed to meet the deadline for
the second volume. 67 Stephen Ward, "High Court
frees jailed right-wing author" The Independent
(22 February 1994); "Irving home from jail" The
Times (22 February 1994). 61 "David Irving wins
contempt jail freedom" The Daily Telegraph (22
February 1994). Note that Mr. Justice Mitchell
was not convinced with Irving's explanations,
and despite the ultimate decision to release
Irving, state: I have not found this an easy
decision because I have made it clear more than
once during the course of today --and I adhere
to the conclusions that I have been forming and
expressing --that I am afraid I do not accept
the explanations appearing in his affidavit;
that is to say, his explanation to me that he
had not the faintest idea that any of this was
going on --that includes that he had not the
faintest idea that the German judgment was even
registered in this country I am afraid I do not
accept that for one moment. - 19-
individuals and organizations whose
racist
and anti-Semitic credentials are beyond
dispute.... 69 Weiner continued by stating that Irving's
"sympathies and intentions have no place in our
society." Irving's response, through lawyer Doug
Christie, was to institute an action for libel
against Weiner. The suit was eventually
discontinued by Irving. David Irving's next encounter with Canadian
authorities occurred in October and November of
1992, when he was deported from Canada. He was
arrested on 29 October 1992, and ordered out of
Canada by midnight of the 1st of November by
adjudicator P.A. Tetrault.70 The basis for
deportation was Irving's failure to inform
immigration officials upon entry at Niagara Falls
that he would be staying in Canada for longer than
two weeks, and that he would be visiting British
Columbia and other provinces.71 Despite agreeing to
the departure order, Irving failed to leave Canada
and was arrested by Canadian immigration officers
early in the morning of 2 November 1992. Irving
claimed that his entry to the U.S. was denied,
despite his holding a valid visa, due to some
libelous material inserted about him on the
computers of the U.S. Immigration and
Naturalization Service.72 This resulted in another
immigration hearing before adjudicator Kenneth
Thomson. At the hearing Irving adduced evidence as to the
events concerning his attempted departure of Canada
on 1 November 1992. Adjudicator Thomson had
difficulty accepting some of Irving's testimony at
the hearing, and in particular Irving's claim that
he had exited British Columbia on 30 October 1992
and re-entered Canada, thus complying with the
departure order. Thomson held that: a comprehensive review of the testimony
provided establishes that there are several
significant discrepancies and inconsistencies
with respect to important points of detail, the
impact of which in my view undermines the trust
of your evidence as a whole and the personal
credibility of both yourself and Mr. Fisher
[the individual who drove Irving to the
border]?'3 As a result, Thomson found Irving to be in
violation of the departure order, and ordered him
deported pursuant to s. 32(6) of the Immigration
Act. A subsequent attempt by Irving to appeal his
deportation were denied by a Canadian Federal
Court, with the effective result being a lifetime
ban from Canada.74 In response, Irving threatened
to sue immigration officials for false imprisonment
and slander.75 69 "Statement by the
Honourable Gerry Weiner on Speaking Tour of
David Irving" (26 October 1990).70 Adjudicator's Reasons for
Decision. David Irving, File 9530-02-7114
(Vancouver: 30 October 1992). 71 Such actions constituted
an offence under s.27(2)(g) of the Canadian
Immigration Act. 72 This was Irving's claim in
an affidavit of 8 February 1994, concerning an
Australian visa application. 78 Adjudicator's Reasons for
Decision, David Irving, File 9543-8079 (Niagara
Falls: 13 November 1992) at page 8. 74 Bill Dunphy, "Canada bars
neo-Nazi" Toronto Sun (5 August 1993) 75 "British author
threatening to sue Sarnia native, immigration
officials" Sarnia Observer (9 August
1993). -20-
4. Australia On 7 December 1992 David Irving applied for a
Business Visitor (Short Stay) Visa.76 The purpose
of his proposed trip, promoted by the Veritas
Publishing Co., was to espouse the virtues of his
latest books. To Irving's dismay, the application
was rejected by the Minister of State for
Immigration, Local Government and Ethnic Affairs on
8 February 1993.77 Mr. Justice French dismissed an
application by Irving to review the Minister's
decision. However, further appeal to the Full Court
of the Federal Court was allowed on 16 September
1993, and the decisions of' the Minister were
ordered subject to review7' On 3 May 1994 the
Minister refused Irving's original application in
addition to refusing a subsequent application made
on 3 June 1993. The original application was refused on the
ground that Irving did not meet the "good
character" requirements in the Australian Migration
Regulations, and the Minister was not willing to
waive the requirement on the basis that Irving had
not shown that he was reformed. The second
application was refused on similar "good character"
grounds, in addition to the grounds that Irving
failed to meet all the public interest criteria set
out in the statute.79 The basis of these decisions
included: the adverse comments by Adjudicator
Thomson, the adverse comments by Justice Mitchell,
the deportation from Canada, and the expulsion
order from Germany. Irving appealed both decisions
to the Federal Court of Australia on several
grounds, ranging from the inadequacy of the
evidence presented before the Minister to
assertions of procedural unfairness. The appeal was
dismissed by Carr J. on 31 August 1995.80 Irving
appealed this decision to the Full Bench of the
Australian Federal Court on 21 March 1996, where
the Court reserved its decision.'81 76 For an exhaustive
review of the early segments of the litigation,
see Laurence W. Maher, "Migration Act Visitor
Entry Controls and Free Speech: The Case of
David Irving" (1994) 16 Sydney Law Review
358.77 The relevant dates and the
extensive material available to the Minister
were reviewed by Mr. Justice French in Irving v.
Minister of State for Immigration, Local
Government and Ethnic .4ffairs (1993) 115 ALR
125 French J. 78 Irving v. Minister of
State for Immigration, Local Government and
Ethnic Affairs (1993)44 FCR 540 (Ryan, Lee and
Drummond 31.) 79 The time between Irving's
applications resulted in different regulations
applying to each of the respective applications.
Thus, the decisions rendered by the Minister
vary slightly, as does the Court's treatment on
appeal, due to the question of the precise
nature of the regulations applicable. See Irving
v. Minister of State for Immigration Local
Government and Ethnic Affairs, No. WAG63 of 1994
(Federal Court of Australia) Carr J. (31 August
1995). 80 Ibid. at 40. 81 Sitting on the case were
Lee, Davies and Nicholson 31. See:
"Controversial historian wants ban lifted" The
Canberra Times (22 March 1996); Wendy Caccetia,
"Irving puts case for visa" The West Australian
(22 March 1996); "Author in last-ditch entry
bid" The Daily Telegraph (22 March 1996);
"Irving on the Attack" The Australian (22 March
1996). -21-
Limits on the Freedom of
Speech The specific legal problems encountered by David
Irving give rise to a much broader legal and moral
issue. This involves an assessment of whether there
should exist limits to the freedom of speech, and
if so, does the pseudo-historical prose of David
Irving fall within the unprotected category. The
free speech issue gives rise to two diametrically
opposed responses: The first is to prohibit and punish the
expression of the offending ideas through
State-enforced censorship. The opposite response
is the censure of those ideas and their
supporters by the vigorous exercise of free
speech through a range of private and public
media and the pursuit of programmes of public
education to foster racial equality and racial
harmony.82 Suffice it to say, there exists no easy
solution. The answer must be based on the nature of
the situation involved, and an examination of the
most appropriate response in that context. In the
case of David Irving, and his brand of Holocaust
denial, the optimal response is to cease providing
him with a forum to convey his skewed version of
history, and to negate his attempts to obliterate
the memory of millions of victims. The involvement of the government in limiting
personal expression triggers some emotional
opposition. However, in many countries the
framework is in place to limit this freedom in
circumstances that so warrant such intervention.83
The observable global trend is towards regulation
of the type of racist speech that intrudes on the
rights of the affected groups to participate
equally in society, and on their sense of security
and worth as human beings.84 This is particularly
true in instances where the harm associated with
the speech is significant as in the case of denying
the horrors of the Holocaust, and the truth value
of the speech is marginal. The harmful effects of
such unfounded assertions cause severe emotional
distress, constituting a tangible harm to the
groups affected. As a result, the government has a
legitimate role in the protection of the rights of
the injured parties through the limitation of the
offending speech.85 In fact, some argue that the
lack of a governmental response gives the
appearance of condoning the racist speech, and
thus, in a sense, legitimizing what is being
said.'6 82 Maher, supra note 76 at
360. 83 This includes countries
such as Canada. the U.K.. Australia. and New
Zealand. See Mari J. Matsuda, "Public Response
to Racial Speech: Considering the Victim's
Story" (1989) 87 Michigan Law Review2320 at
2346-2348. 84 Ibid. at 2348. 83 Ibid. at
2336-2341. 86 In commenting on the lack
of effective controls on racist speech in the
United States due to the strength of First
Amendment principles, Matsuda writes: In a society that expresses
its moral judgments through the law, and in
which the rule of law and the use of law are
characteristic responses to social phenomena,
this absence of laws against racist speech is
telling. Ibid. at 2379. 22
Proponents of unfettered freedom of speech are
wary of government involvement as the arbiter of
where to draw the line between protected and
unprotected speech. This is true even in instances
where the topic of discussion is beyond debate
(i.e. the existence of the Holocaust). This point
of view was eloquently expressed by Alan
Dershowitz, Harvard University law professor, at a
symposium on Holocaust Denial: I don't want the government to tell me
that it occurred because I don't want any
government ever to tell me that it didn't
occur.87 And he continued: Because, inevitably, if the government
can say the Holocaust occurred, then another
government somewhere, sometime, can say it
didn't occur. And I want that to be left to
truth. From my experience, government is one of
the worst judges of truth.88 In fact, attempts to deny these people the
ability to speak may promote them in the eyes of
their disciples. For those who want to believe that
the Holocaust did not happen, any obstacles posed
before their leader are simply evidence that what
he suggests is true. Absolute freedom of speech is
preferable as it does not have the nefarious 'side
effects' present with censorship, that of promoting
the type of speech it seeks to discredit. Hence,
this point of view concentrates on the benefits of
open debate, where the truth is thought to emerge
from intelligent disagreement. It is best presented
by Justice Brandeis's famous aphorism, that "the
remedy to be applied is more speech, not enforced
silence."89 On the other hand, it is asserted that in the
current context, David Irving's denial of the
Holocaust, the appropriate response is to limit his
circulation of half-truths and misrepresentations.
This is because of the inherent danger associated
with the type of lies that Holocaust deniers
attempt to portray as fact. It is not dissimilar to
blatantly false advertising, a brand of speech few
would argue should be protected. It is a
mischaracterization of reality in a devious way,
with a subversively malicious intent. This type of
speech strikes at the heart of its victims, and is
harmful to their very being. As Arthur Berney
stated: To deny a people their history is to
deny them the most essential element of their
group existence. It is always a precursor to the
subordination, diminishment, and ultimately the
destruction of a people.90 87 "Freedom of Speech and
Holocaust Denial" (1987) 8 Cardozo Law Review
559 at 566. Panel members included: Irwin
Cotler, Alan Dershowitz, Arthur Berney, and
Gerald Tishler. 88 Ibid. at 571. 89 Whitney v. California 274
US 357 at 377 (1927). 99 "Freedom of Speech", supra
note 87 at 572. -23 -
It is for this reason that prohibitions against
hate propaganda are in place in numerous countries
around the world, with the United States being the
most noteworthy exception.9' These countries
conduct a balancing test, and thus prescribe that
"freedom of expression must include freedom from
certain kinds of expression; it cannot be an
absolutist notion."92 This results, for example, in
Canadian courts upholding measures that would be
held unconstitutional in the United States under
their categorical analysis of freedom of speech
issues.93 In the broader context, it is vital to consider
whose interests are sought to be protected.
Holocaust Survivors, their families, and families
of those that did not survive have the right not be
assailed by lies and accusations in their own
neighbourhoods. Thus, if others are intent on
succumbing to the allure of David Irving, they may
purchase his books or videos --but, they should not
be allowed to force him into unwanting locales to
inflict harm on the psyche of residents who reject
his revisionist brand of history. This point of
view has been expressed by numerous people in
response to proposed visits by Irving, through
demonstrations94, newspaper opinions95, letters to
the editor96, and public denouncements.97 They take
the position of preferring limiting one party's
right to freedom of speech rather than infringe on
the rights of many to peace of mind and personal
security. This involves a question of balancing --
but, with the minimal societal benefits associated
with the publication of David Irving's views, the
scales will always be tipped in favour of
restricting his ability to disseminate anti-Semitic
messages under the guise of his revisionist version
of history. 91 Ibid. at 580.
(Coder)92 Idem. 93 Kent Greenawalt, "Free
Speech in the United States and Canada" (1992)55
Law and Contemporary Problems5at32. 94 Trish Dyer, "Angry
protesters jeer Holocaust skeptic" The Toronto
Star (7 March 1989); Fiona Barton, "Historian
mobbed by protesters" The Mail on Sunday (5 July
1992); Louise Hidalgo, " Anti-Nazi groups vow to
disrupt Hitler apologist's meeting" The Times (4
July 1992) 95 Same examples include:
Piers Brendon, "The wrong man for the job" The
Independent (5 July 1992); Richard Littlejohn,
"Irving lies leave Nazi taste in the mouth" The
Sun (20 July 1992); Peter Elgin, "Blamed again:
Nazi message is a betrayal of our common
humanity" Kitchener-Waterloo Record (2 September
1992); Editorial "Holocaust deniers abuse free
speech" Kitchener-Waterloo Record (1 September
1992); Denise Helm, "Survivors of death camp
argue free speech no defence for lies" Victoria
Times-Colonist (31 October 1992). 96 Some examples include:
Robert Ferguson, "Politics not history behind
the decoding of the diaries" The Guardian (9
July 1992); Sigmund Sobolewski, "Ex-prisoner has
no doubt Jews gassed" Toronto Star (11 October
1992); Nate Leipeiger, "Holocaust survivor
speaks out" The Globe and Mail (21 November
1992) 97 See: Andre Picard, "Carleton cancels
talk by British historian" The Globe and Mail (7
March 1989); "David Irving and Holocaust
Denial", motion presented by Mr. Hugh Dykes et
al, before the British parliament on 20 June
1989; Australia, Parliamentary Debate (Senate),
17 December 1992, 5345 (Senator V.W.
Bourne). -24-
VI.
Conclusion The danger of David Irving lies in his
appearance of credibility. Through his tireless
archival research --and his constant reminding of
these efforts --Irving has managed to uncover some
significant documents detailing the Nazi regime.
Military writer John Keegan noted: "No historian of
the Second World War can afford to ignore David
Irving."98 However, given this position, Irving has
allowed his personal biases and prejudices to
colour his retelling of history. His anti-Semitic
and racist statements simply shed light on the
underlying impulses and motivations behind his
research. For these reasons, his work can never be
trusted, despite the kernels of truth that may
emerge from the morass of misstatements. As Gitta
Sereny wrote: "It is precisely the clever mixture
of truth and untruth that makes Irving dangerous.
"99 98 See O'Neill, supra note
52. 99 Sereny, supra note
52. 25 | 
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