London, Sunday, March 18, 2001
Without prejud
ice
A ploy named
'sue'
Writs are flying
between historians. But who gains when academics resolve
their quarrels in court?
Nick Cohen
The Observer
TELLING the truth about lies is dangerous in Britain.
An MP may be a demonstrable liar, but if other MPs call
him a liar the Speaker orders them to retract
'unparliamentary language' or be thrown out of
Westminster. The rest of us are at once in a better and
worse position. We are free to call a liar a liar, and
for that we must be grateful. But while MPs can't be sued
for what they say in the Commons, we can be ruined in the
libel courts.
Not
the least of the many virtues of D.D. Guttenplan's
The Holocaust on
Trial (Granta Books £17.99) is the
struggle by an American author to get a grip on English
law. As he dissects the David Irving libel case,
you can almost hear him questioning lawyers: 'Let me see
if I've got this straight. The defendants have to show
that what they said was true? So they're guilty until
proved innocent? No shit? And they can't argue they were
honestly trying to get it right? Wow!'[*]
In the 1990s, Irving convinced many who ought to know
better that he was a good historian being persecuted for
exercising his freedom to speak and write freely. The
heirs of Voltaire must have been disappointed when
Irving showed that if you disagreed with what he said, he
would litigate your right to say so to the death. He sued
Penguin for publishing Denying the Holocaust by
Deborah Lipstadt, an American academic.
As Guttenplan puts it, Irving's complaint
against Lipstadt was that: 'When [Irving]
writes that Hitler had no knowledge of the Final
Solution, or says that there were no gas chambers at
Auschwitz,
and that fewer people died there in four years than were
killed in one night by the Allied
bombing of Dresden, what he is doing is no different
from... an archaeologist who doubts whether the Greeks
and Trojans really went to war over Helen of
Troy.' His claims that the death camps are a fiction
are legitimate and to suggest otherwise is libellous.
Nazism may yet be rehabilitated in part as one bloody but
confused reaction among many to the terrors of the
twentieth century.
Irving admitted speaking at British National Party
rallies'[*]
and addressed the judge as 'Mein Führer'. He
asserted that it was 'a basic principle of English law'
that Hitler, or 'Adolf' as he
chummily called him, did not share the handicaps
of the defendants and was 'innocent until proved
guilty'.
Mr Justice Gray delivered his verdict [sic.
Judgment]
on 11 April last year. He concluded that Irving shared
the political beliefs of the 'militant neo-Nazis', whose
meetings he had graced. 'The content of his speeches and
interviews often displays a distinctly pro-Nazi and
anti-Jewish bias.' He wasn't an honest historian,
struggling with the inevitable difficulties understanding
the past brings, but a deliberate falsifier of the
record, 'motivated by a desire to present events in a
manner consistent with his own ideological beliefs even
if that involved distortion and manipulation of
historical evidence'.
Well that's a relief, I thought at the time. Even in
England you can criticise those who say there were no
gassings at Auschwitz as nutters or fascists or both.
Anthony Julius QC, one of the defence team,
wasn't so much relieved as ecstatic. Gray's verdict was
'a sparkling vindication of the libel laws' which should
silence opponents of the status quo. The 'fantastic
result softens one's attitude to the courts and the
litigation process... everything looks rosy'.
Julius
won because the professor of modern history at Cambridge
had demolished Irving's scholarship. Richard J.
Evans (left) went through Irving's sources and
produced an exhaustive 740-page analysis which detailed
how Irving had twisted evidence in the Nazi interest.
Irving had censored himself as well as the past by
cutting references to death camps from his early work
when it was reprinted.
Evans has written a book on the affair --
Lying About Hitler: History,
Holocaust, and the David Irving Trial. You are
free to buy it in America and read the professor's
account of the case and reflections on historical
interpretation. I've no doubt it is a serious study.
Evans
is the author of In Defence of
History, a patient critique of the wild
subjectivity of postmodernist theory. You were meant to
be free to read Lying About Hitler in Britain. But last
week, Evans's publishers, Heinemann, a branch of the
Random House conglomerate, ordered that the
book should be pulped.
Gray's verdict, which came after years of collecting
evidence and months of cross-examination in an enormously
expensive trial, might as well never have happened.
Heinemann said they did not dare publish because Irving
was appealing
against Gray's ruling. In fact, Irving has been refused
permission to appeal, and it is that decision he is
contesting. In the very
unlikely event of Irving winning and the Court of
Appeal agreeing to consider Gray's condemnation, the
crushing evidence against him should deny him
victory.
Granta Books certainly think so and snapped up Lying
About Hitler. Granta didn't 'see any terrible legal
nightmares' and was 'very enthusiastic and keen to
publish'. We shall still be able to make up our own minds
about Evans's writing. If the story stopped there, the
moral of the censorship of Evans would merely be that
robust authors should think hard before signing a
contract with Random House.
In January, nine months after Irving was demolished in
the High Court, Weidenfeld & Nicolson published
The Hitler of History by
John
Lukacs. Americans had been able to read it for
three years, but Irving warned
he would sue if it appeared in Britain. Publication
would have been a triumph for free speech over a bully if
criticisms of Irving had not been bowdlerised. In the
American version, Lukacs says 'many of Irving's
references and quotations are not verifiable'. In the
British edition enforced gentility has made that 'some of
Irving's references and quotations are inaccurate'.
Next month, Palgrave will publish Remembering for the
Future, a collection of essays on the Holocaust edited by
John K. Roth and Elisabeth Maxwell-Meynard.
They had intended to include a piece on Irving, but they
pulled back because of fears of libel. Elisabeth
Maxwell-Meynard is the widow of Robert Maxwell.
Judges and QCs allowed the old crook to use the libel
laws to suppress disclosure of his numerous corruptions.
I know it's a cliché to say the law is 'beyond
satire'. But I can't think of anything else to write.
I should declare an interest and add that despite
everything Irving is still threatening to sue The
Observer. Even if he weren't, the ability of such a man
to stifle debate would be chilling. It is not too
fanciful to say that Irving is a symptom of a sickness
which enfeebles the culture. On the rare moments when the
media tear themselves away from the self-obsessed and the
trivial to investigate, the libel laws produce a stilted
discourse, afflicted with snideness and coyness, in which
every speaker must pepper their sentences with 'seemses'
and 'no one is suggesting thats', or give up.
Libel is generally a rich man's game, so they're
protected while it's open season on the working and
middle classes. But libel isn't only about money. One of
the reasons that politicians are objects of ridicule is
that they very rarely sue. Business leaders cry 'libel'
all the time. We are meant to be living in a world where
power has passed from politicians to corporations, but
libel law ensures that corporate power is barely
examined.
The media are big businesses themselves and so
wariness of the courts combines with the self-interest of
executives. At the BBC, to quote the most telling
example, Greg Dyke, the new multi-millionaire
director-general, assured an audience of corporate movers
and thrusters that he wanted his reporters to be
'pro-business'.
He proved himself as good as his word when he made
Jeff Randall business editor of the BBC. Randall
had come to Dyke's notice when he had attacked the
Corporation for having an 'institutionalised bias against
free-enterprise wealth-creators'. If Dyke had said he
wanted to end the BBC's institutionalised bias against
politicians, all hell would have broken loose. In this
instance, no one raised an eyebrow.
As in journalism, so in academia. Irving's opponents
have been equally willing to use the courts. Daniel
Goldhagen threatened to sue the Cambridge
University Press when it considered publishing an assault
by Norman
Finkelstein and Ruth Birn of his thesis
that Germans were psychopaths just waiting for their
chance to slaughter the Jews.
Meanwhile, the censorious head of Jewish America's
Anti-Defamation
League told the US publishers: 'The issue is not
whether Goldhagen's thesis is right or wrong but what is
legitimate criticism and what goes beyond the pale.'
With so many writs flying around and books being
pulped and censored, I might say that Anthony Julius was
being a preposterous Pangloss when he said the
'sparkling' libel courts defend freedom of speech. But
he'll probably sue, so I'd better shut up.
 David
Irving comments:
Without wishing to give Mr Cohen a lesson on The
Law, it was open at any time to Lipstadt and
Penguin to plead that 'they were honestly trying
to get it right' -- it is the defence known as
fair comment. If malice is established that
however will always destroy that defence, so
they did not even attempt to plead it. It is
dishonest for them now to whine, through proxies
like Mr Cohen, that they would have. They did
not, because they could not. That left them only
the defence of Justification: Big deal they had
to prove that what they wrote was true. The main
reason why I sued Lipstadt et al was not to deny
them their freedom of speech: she and her
backers had started a vicious campaign to
blackmail my publishers worldwide into violating
their publishing contracts with me and denying
the public access to my works. It takes a real
hypocrite to stand that fight on its head and
say that I am denying them and the other liars
whom he names their freedom of speech.
Incidentally, Nick Cohen's remaark about "Adolf
as he chummily called him" is an insider joke
for cognoscenti: one of the several libels by
Gitta Sereny over which The Observer finds
itself being sued is her 1996 lie, in The
Observer, that she heard me refer to Hitler as
"our Führer." Guardian Newspapers Ltd has,
as we have remarked before, a death-wish. A
newspaper which libels for profit has no more
right to complain about the workings of the laws
of defamation, than a man who jumps off the
Golden Gate Bridge can complain about Newston's
Laws of Gravity.
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