Professor Richard Evans' problems with the libel law
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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 Newton's Laws of Gravity. -- David Irving

 http://www.observer.co.uk/comment/story/0,6903,458526,00.html

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London, Sunday, March 18, 2001


Without prejudLyingice

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'.

EvansJulius 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. StinktierEvans 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.Lukacs book 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.

 


Related items on this website: 

Index on Richard Evans
Mr Irving warns new publisher Granta
Die Zeit reviews Menasse's book
Richard Evans: Lying About Hitler: History, the Holocaust and the David Irving Trial [Our book review]
Prof. Richard Evans smears Prof. Ernst Nolte, says world's Jews "never declared war on Nazi Germany"
Bertelsmann-Ableger [Heinemann-Verlag] kneift vor David Irving | Mr Irving warns new publisher
The Guardian: Top historian's work, rejected amid libel fears, finds new home

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