Posted Wednesday, September 16, 1998

High Court in London refuses Deborah Lipstadt's application to Censor David Irving's Website.

The writer's diary record

FOR THIRTY-FIVE years author David Irving has kept a private diary. It has proven useful in countless actions. For the information of his many supporters he publishes an edited text in his irregular newsletter ACTION REPORT.	Summary British writer David Irving is suing American professor of religion Deborah Lipstadt in Libel, for lies about him contained in her book Denying the Holocaust, which she wrote at the behest of Vidal Sassoon, Yad Vashem, and other similar agencies. The action will be tried in 1999. In a hearing in chambers at the High Court on September 15, 1998 Prof. Lipstadt's counsel Harriet Benson pleaded that Mr Irving is in contempt for publishing this Diary. The court disagreed.
EPTEMBER 15, 1998 (TUESDAY)   IN THE MORNING the affidavit arrives from Portland, sworn by Mrs B., wife of a professor of accounting law at the university's business school, testifying that it was she who organised the Portland meeting and not the unruly character, whom I have never met, named by Jonathan Mozzochi. She encloses an inter-office memorandum from the Bureau of Police, Portland Oregon, about Anthony Julius's star witness, identifying him most satisfyingly: "Officer stops and questions two individuals repo[r]tedly yelling threats in downtown Portland. Both subjects are known SHARP skinhead associates." One is named as Mozzochi, the other a Michael Shawn Stogner, stated to have a violent criminal record. (And Mozzochi is the gentleman who alleges, on Lipstadt's behalf, that my lectures are organised, attended, and guarded by skinheads. Ho! I hear a flapping of wings, as chickens come home to roost.). All morning on correspondence and editing Churchill's War, vol. ii, then preparing for this afternoon. At 3:30 p.m. at the High Court. Mr Julius himself is away in New York, perhaps seeking further smear-dossiers, ahem, evidence, from the ADL. I ask that the first affidavit submitted by Mozzochi, on which much of their arguments last week hinged, now also be ruled as deficient, since it too is bare of any kind of residential address for that gentleman; the defendant Deborah Lipstadt's lawyers meekly agree with my description, "deficient". The court expresses surprise that they have not yet provided the address, as he had ordered last week, and he now adds muscle, giving them seven days in which to do so. Rather oddly, Lipstadt's lawyers remark that they have only the "tiny office" of the Seattle-based Coalition for Human Dignity to contact him through. How undignified.
The Order drafted by Lipstadt's lawyers is examined, and is also found to be defective, since it does not include the court's rulings protecting my tenuous rights to exclusivity in the Goebbels Diaries which I retrieved from the KGB archives in Moscow. This is small beer however. The formal business is dealt with swiftly, since I have told Lipstadt's representatives that I am in broad agreement with their proposed timetable. For Professor Lipstadt, Harriet Benson, of counsel, makes the usual plea, about the "agony" that her client is suffering, and that her suffering should be curtailed; one wonders how many innocent people are suffering because of the reckless lying in her client's book, Denying the Holocaust, which is now required reading on several American university campuses (e.g. Rice University, Texas), and no doubt in other countries around the world. Penguin Ltd, also present today, her publishers, plead for the present summons to be adjourned for at least two months, as they are assembling masses of expert testimony behind the scenes. However they are unable to say precisely what disciplines these experts represent. His head cocked, Master Trench listens to arguments from both sides, and fixes the ultimate date for exchange of witness statements in April 1999. I do hope that Mr Julius's multi-millionaire friends and backers don' t run out of steam before then; the premature death of the tax-fraudster Octav Botnar in his self-imposed Swiss exile may have come as a shock to their financial strategies. Overhanging the afternoon's proceedings is the cyber-threat posed by my unrestricted access to the Internet. Rising to the occasion as counsel for Professor Lipstadt, this champion of the enemies of free speech, Ms Benson calls for sanctions against me for having reported the interlocutory hearings in chambers, and for having posted indelicate references to herself and the Holocaust scholar in my Action Report pages -- I had referred to her as [..] in one passage of the Radical's Diary last year. "Today Ms Benson is the soul of wit, charm, and fragrance..." Today Ms Benson is the soul of wit, charm, and fragrance (though still alien to the common courtesy of shaking hands). She leads the court through her complaint, conducting what I might call a course in "GCSE contempt of court," making much of the authority, which is Hodgson vs. Imperial Tobacco Co., 1998 1 WLR 1056. Several quite ugly words are bandied about: contempt of court, injunctions, even (by myself) Pentonville prison. I limit myself to saying that the advice tendered to me is that while the court does have certain prerogatives in hearings in chambers, it is open to the court to permit me to report on the proceedings to my worldwide supporters, and indeed to the public at large.
Ms Benson protests that every single document they serve, even the hearings in chambers, is immediately posted on my Website. In interlocutory hearings, she pleads, solicitors are accustomed to dealing with opposing solicitors, who understand the tacit rules on behaviour; alas, in me, they are facing a litigant playing outside the rules. "I am a loose cannon?", I volunteer. Master Trench makes it plain that he does not intend to act as censor. He dictates a careful decision, which no doubt I shall receive. The Plaintiff has prepared a diary description, he dictates, which purports to describe what took place, and he is bound to state that I have described those two days "not inaccurately." I have used however "somewhat extreme language," and the defendants are taking objection to that. "It is not my function to decide what is good or bad," he dictates, but whether he has the jurisdiction to do anything about it. This where it becomes interesting. Trench has exercised himself considerably about this in the last twenty four hours, and has consulted authorities. Formerly, he reminds us, the position was that interlocutory hearings were private, and any publication of the proceedings could be held to be a contempt; and matters of contempt of court, he reminds Ms Benson, are heard only before a judge. The position is however "not as heretofore." Reaching for the law books, he states what Ms Benson did not, that recent European rulings take precedence over Hodgson. Reading from a recent judgment of the Master of the Rolls, he finds that while the public has no right to attend such hearings, what happens at them is no longer confidential, and that to disclose the goings-on in chambers does not constitute a contempt so long as the comment does not prejudice the administration of Justice. At page 1071, continues Master Trench, it says that if the Court wishes to restrain, it must make an Order "where it has the power to do so." Since my actions do not come under s. 12 of the Administration of Justice Act, as Ms Benson had submitted, he finds that as a master in chambers he does not have that power. Such is his decision now. It is of course open to Lipstadt to appeal to a higher court for an injunction preventing further publication, but I would contest that further incursion on freedom of speech most earnestly. How these people hate the Internet, the fresh air, and the freedom of speech which it still allows. As we shuffle our papers together, I say that the court can take it that as an act of conciliation, I shall moderate my references to the adversaries in my public diary (and see above).  We all troop out at 4:30 p.m., the lawyers for Professor Lipstadt looking rather chastened. The representatives of Penguin Ltd have turned down my proposal.   It presents me with the problem of how to describe Harriet Benson today; it seems necessary to write something, to do otherwise would be cowardice before the enemy. I am reminded of the trawler skipper, who told the bosun he didn't want to find one more entry in the ship's log recording that the captain was drunk again; stomping onto the bridge the next day, he opened the log and found the entry: "Today the cap'n is sober."
© David Irving 1998.

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