IRVING V. LIPSTADT

IRVING V. LIPSTADT , legal case initiated by Holocaust denier David Irving against defendants Deborah Lipstadt and Penguin Books, tried in a London court from January to March 2001, and resulting in the defeat of Irving. At stake was not the truth of the Holocaust but the quality and nature of Irving's historiography.

David Irving was a Holocaust denier who had written many books on the Third Reich. Deborah Lipstadt was a history professor who had written, among other works, a book about Holocaust denial, Denying the Holocaust. It described Irving as a Holocaust denier. He did not care for the description, because he understood it to mean that he was something less than a reputable historian. Therefore he sued Lipstadt and her publishers, Penguin Books, for defamation. He might have sued in the United States, where the book was first published, but then Irving would have had to prove a reckless disregard of truth by Lipstadt. Instead he chose to sue in England because English law gives certain advantages to libel claimants. The defendant must prove the truth of their statements. The case came to trial on January 11, 2000, and lasted five weeks. The evidence of expert witnesses dominated the proceedings. In accordance with defense decisions: no Holocaust survivors were called, for the Holocaust was not on trial; Lipstadt herself did not testify. The case was heard without a jury by Mr. Justice Charles Gray. A 335-page judgment was delivered on April 11, 2000.

The judge decided the case in favor of the defendants, Lipstadt and Penguin. Irving's falsifications and distortions were so egregious, and his animus towards Jews so plain that he won the case for them. They had proved the truth of their allegations against Irving by demonstrating Irving's manipulation of the historical record (which became the issue in the case). The multiple concessions made by Irving during the course of the trial did not save him from the judgment that he was indeed a Holocaust denier. The judge also decided that he was an antisemite, a racist, and a falsifier of the historical record. Penguin Books published the judgment, and donated the sale proceeds to a hospital specializing in the treatment of cancer patients. An interim costs order was made against Irving in the sum of £150,000.

Irving, who had represented himself at the trial, instructed lawyers to represent him on his appeal. The appeal was heard in June 2001 and dismissed. Penguin then enforced the costs order and when Irving did not pay, bankrupted him. After the trial, he was asked, "Will you stop denying the Holocaust on the basis of this judgment?" Irving replied, "Good Lord, no." The case attracted a great deal of attention, and large claims continue to be made for its significance. Deniers dismissed it. "Gray's verdict," said a denier, "was predictable, given the display of naked Jewish power during the trial."

David Irving

David Irving (b. 1938) had been writing history books for over 40 years. His first book, published in 1963, was about the bombing of Dresden in February 1945. It wildly overstated the numbers killed, relying in later and foreign editions on a document known by Irving to be a forgery. The intended effect of the book was to narrow the moral distance between the Allied and Axis powers. It introduced into the historiography of World War ii the novel concept of the German nation as victim. His principal work, Hitler's War (1977; 1991), told the story of World War ii from what Irving supposed to be Hitler's perspective, and it thereby made a case for him as an intelligent and even estimable leader. Irving has always been protective of Hitler, and in the earlier part of his career as a writer tended to put the responsibility for the regime's crimes on Hitler's subordinates. He proposed that the Holocaust was executed behind Hitler's back. Irving thus ignored, or explained away, Hitler's own statements about the Jews, the reports on the killings destined for him, and the statements of subordinates that the policy of genocide was determined at the highest level. This special pleading has its own momentum and in due course Irving came to embrace Holocaust denial (among other places, evident in the 1991 edition of Hitler's War). Irving came to denial, and then persisted in it, out of tenderness for Hitler and hostility to Jews, and out of a misplaced bravado and a deficient moral sense.

Holocaust Denial

Irving had at various times asserted that the number of Jews killed by the Nazis was far lower than commonly asserted, that gas chambers were not used or used on only an experimental and limited basis, that the killing of the Jews was not systematic, that the Holocaust was an invention of the Allies and that it was then exploited by the Jews to swindle the Germans, to procure a state, and to distract attention from their own crimes. In advancing these theses, he joined a small, ignominious group of published deniers – charlatans, cranks, dedicated haters of Jews. The object of these deniers, or "negationists," is to unwrite the history of the Holocaust.

Deborah Lipstadt

Deborah Lipstadt (b. 1947), a professor at Emory University, Atlanta, was not the first to write about Holocaust denial. She was not even the first to write about Irving's career as a denier, but was the first defendant in a denial libel trial. Denying the Holocaust described Irving as a writer of popular historical works. He believed that Britain made a mistake, Lipstadt said, in going to war against Germany, and he regarded the Allies and the Nazis as equally at fault. It was a "disturbing new development," she proposed, that he had "joined the ranks of the deniers." Lipstadt summarized criticisms of his use of evidence and assessed him as being "one of the most dangerous spokespersons for Holocaust denial." She did not allege that Irving was an antisemite, though the charge was implied in the libel proceedings and the defense expressly pleaded his antisemitism.

The Legal Proceedings

In September 1996 David Irving issued a writ against the author and her U.K. publishers, Penguin. He complained that the book represented him to be a Nazi apologist, a manipulator of the historical record, a Holocaust denier, a racist, and an antisemite, and a consorter with racists and antisemites. The defendants broadly agreed that that was indeed what the book maintained, and they insisted that this was the truth about him. The bad history was a consequence of his bad politics, his alliance with the Far Right and his assumed role as apologist for Hitler and the Nazi project. Irving also claimed that he was the victim of an international Jewish conspiracy to silence and discredit him. Here the defendants did not agree, nor did the judge.

In the 3½ years between the start of the legal action and the trial, Irving lost control of his claim. Required to disclose his library of speeches, diaries, and other written materials, he thereby secured the defendants' case against his politics. Confronted by expert reports by scholars such as Richard Evans, Christopher *Browning, Peter Longerich, and Robert Jan Van Pelt that he was unable to counter, he thereby conceded their case against his historiography. The disclosure hanged him; the expert evidence hanged him a second time over. The contribution made by the experts to the defendants' case was considerable, though not in itself determinative of the outcome.

While the disclosure was plainly objectionable, proving the sin of his books required experts. This was hard work, but not difficult work. It needed much checking of sources. The experts demonstrated that Irving mistranslated documents, disputed, overstated or ignored or dismissed adverse, impeccable witnesses and relied upon unreliable witnesses, all to one end. The pattern of deceit was clear: the only witnesses to the Holocaust Irving accepted were those who saw nothing. Euphemistic or otherwise evasive documents were taken at face value; documents that were candid about the extermination process were dismissed as forgeries or otherwise explained away or ignored. An unattainable standard of proof was demanded to "prove" the Holocaust; yet anything, however flimsy and unreliable, was accepted to "disprove" it. There was no consistency to his methodology, only to his politics. It was by the systematic application of "double standards" that Irving honored Hitler's memory.

The Nature of Irving's Antisemitism

The trial exposed the nature of Irving's antisemitism. It was evident both in his performance at the trial itself and in the materials obtained from him in consequence of pre-trial hearings. There was, of course, the desire to rehabilitate Hitler and the Third Reich, and there was the fantasy of a Jewish conspiracy. Irving made wild allegations – Churchill was in the pay of the Jews, the Jews dragged Britain into the war, Jews dominated many of the postwar Communist regimes, the world is in great measure controlled by Jews. There were also lies, including lies told to the judge.

However, so short is the memory, so limited is the understanding, of English newspapers that within a short while of the trial Irving was being referred to by them once again as a historian, his opinions solicited on matters of current controversy. Still, the judgment diminished, though it did not eliminate, Holocaust denial. For the duration of the trial and especially upon the decisive and stinging judgment, the morale of some survivors was lifted. There was the sense that battle had been joined with an antisemite in which the oppressor, for once, did not have the upper hand. Jews and non-Jews of good will came together in defense of the historical truth of the Holocaust, and thereby repelled the attack of an antisemite. It was an act of resistance. And though it was merely one among countless others, it had its own, distinctive merit.

In 2006 an Austrian court sentenced Irving to three years' imprisonment for Holocaust denial.

See also *Holocaust Denial.

[Anthony Julius (2^nd ed.)]