Lying about Hitler:
History, Holocaust, and the David Irving Trial
by Richard J. Evans (Basic Books, 2001)
(This column was first published in the September 13, 2001 ArtVoice of Buffalo.)
There are many things about our legal system that we outsiders have a great deal of difficulty not just accepting but even understanding. Wealthy people are convicted in court but are able to exempt multimillion dollar estates from confiscation because those are "their residences." Bankruptcy is abused. You win a small claims court judgement but you find that you are left on your own to collect what is due you. Murderers against whom the evidence is clear to everyone but the jurors go free while innocents are convicted on little or no evidence.
But those are small potatoes next to the kind of abuse of the court system discussed in this book. I come away from reading historian Richard J. Evans' interesting and even at times quite exciting account of the trial of Hitler-apologist David Irving in English court angry and further frustrated. It appears to be almost impossible to beat villains like this.
Lying about Hitlerindeed. This is one of those cases where everyone except KKK and neo-Nazi types know that Irving distorts the facts about Hitler and the Holocau st. Evans tells us that, "For many German observers, this all made the trial difficult to understand. Ralf Sottscheck, writing in the Berlin Tageszeitung, thought that the English libel law did indeed make it necessary to prove that the Holocaust took place. And this was precisely the problem. In Germany itself, the historical reality of the Holocaust was anchored in law as legally indisputable, like the fact that the earth was round, and Irving had long been known by commentators as "the most prominent whitewasher of the Nazis in the world," as Jost Nolte put it at the beginning of the trial. Like many Central European commentators, Nolte confessed himself baffled by the fact that the matter had come to trial at all. "How does one react," he asked, "if someone claims the sheep ate the wolf, or a Jewish beggar attacked a German shepherd dog? With counter-proofs? With arguments? Hardly. One is more likely to call in a psychiatrist." For this reason, many German and Austrian observers simply found the whole case "bizarre," "nonsensical." and "absurd." "It is," wrote Caroline Fetscher, "as if a quack was challenging the most prominent doctors in the international medical profession. Absurd. Here in London an obsessive charlatan is forcing a parade of top researchers to take part in a duel that he will win one way or another, either as a martyr or as a successful plaintiff." "Really," wrote Werner Birkenmaier in the Stuttgarter Zeitung, "this trial is a farce. All the world knows that six million Jews were murdered, and yet we still have to debate this fact in front of a court."
Not only that but the court case was heavily prejudiced toward Irving's side. He had sued Debra Lipstadt and her publisher, Penguin, for defaming his character as a historian and the defense was indeed on the defensive. Evans points out that the "English law of defamation is uniquely loaded in favor of the plaintiff. As Anthony Julius explained, all that the plaintiff had to do was to show that the defendant had published statements that on the face of it were damaging to his or her reputation or honor. Unlike in American law, where the First Amendment to the US Constitution guaranteed freedom of speech, no further burden of proof was placed upon the plaintiff. In the United States, a plaintiff who was a public figure -- a very broad category -- had to show both falsity and malice on the part of the author of the objectionable statements. In English law, however, such statements could be made in good faith, and unless the defendant succeeded in establishing a positive defense, they could still be deemed libelous."
Well, I suppose at least it is good to see that the British are even worse off -- at least in this regard -- than we are.
So what could the defense do? "There were generally only three possible lines of defense. The first was to dispute the meaning of the statements to which the defendant objected. The second was to admit their meaning but deny that they were defamatory, or in other words to deny that they damaged the plaintiffs reputation. Neither of these lines seemed open to the defense in this particular case. Lipstadt's clear and unambiguous prose left no room for doubt on the first score and although Irving's reputation wasn't quite as unsullied as he claimed it to be, still, sufficient numbers of historians and, more important perhaps, ordinary book-buying readers considered him to be a serious writer about Hitler and the Second World War, whatever their reservations about some aspects of his work, that a blanket statement that he falsified the historical record was bound to have an adverse effect on his standing. Moreover, Irving was able to rely on the presumption in English law that he was entitled to a good reputation unless and until the defense proved otherwise.
"A third line of defense remained. This was to claim justification, or in other words to prove that the statements in Lipstadt's book were true. That the entire burden of doing this rested on the defense was what, in effect, stacked the cards in favor of the plaintiff. For the law assumed that defamatory statements were lies unless proven otherwise. Proving that Lipstadt was telling the truth was going to be a difficult, complicated, and time-consuming business. The strategy that Julius and his team, backed by Penguin's solicitors Davenport Lyons, unfolded was three-pronged. First, it involved commissioning professional historians to provide expert reports to the court presenting the evidence for the gassing facilities at Auschwitz, for the mass murder itself, for the existence of a co-ordinated Nazi policy to exterminate the Jews, and for the involvement of Hitler in this operation. Regrettable though it was, there was clearly something to be said for ensuring that most of them were not Jewish, since Irving would undoubtedly try to make something out of it if they were. Assembling a range of experts from various countries -- Britain, the United States, Germany, and Holland -- would also indicate the international dimensions of recent and current resea rch on modem German history and the Nazi period, and further counter any suggestion that such research was mainly carried out by one particular ethnic group or nationality."
Imagine the cost of all this. Where would you or I stand in such an undertaking? Not only lawyers but historians working full time for months. And on the other side this smug liar trying his own case, garnering all kinds of publicity, selling his books right and left -- even rational people buying them to see just how far off he is -- and calling a couple of knee-jerk witnesses to tell such whoppers as how "the Jews deserved whatever they got." (Those are my quotes and not Evans'; they are inserted to indicate how terrible is that line of thinking about any group! I can imagine my mother, brought up in Sweden, hearing a statement like that about the Scandinavians when Hitler invaded Norway.)
Only on the basis of their having examined literally rooms full of documents -- most disclosed through the discovery process -- was Evans himself, who served as the senior historian for the defense in this case, able to respond to Irving's cross-examin ation in this way:
"MR. IRVING: Do you say that I misinterpreted and distorted them deliberately? Is that your contention?
"PROF. EVANS: Yes, that is my contention. You know there is a difference between, as it were, negligence, which is random in its effects, i.e. if you are simply a sloppy or bad historian, the mistakes you make will be all over the place. They will not actually support any particular point of view.... On the other hand, if all the mistakes are in the same direction in the support of a particular thesis, then I do not think that is mere negligence. I think that is a deliberate manipulation and deception. "
Evans places all this in the context of several philosophical questions. At the outset he tells us: "This book is about how we can tell the difference between truth and lies in history.... It concentrates on the issue of the falsification of the histor ical record which Lipstadt accused Irving of having committed and which was the subject of the investigations that I was asked to present to the court as an expert witness....
"The central issue,... as I believe it was in the case as a whole, is the falsification and manipulation of the historical record that Lipstadt alleged Irving had committed. Although discussion of this issue took up more time during the trial than anyt hing else, it was barely mentioned in press reports of the proceedings, and as a result the general impression of the trial purveyed by the international news media was a rather distorted one, since they devoted the lion's share of their attention to Irvi ng's racism and antisemitism. One of the aims of this book is to set the record straight in this respect."
In another passage he asks: "What is historical objectivity? How do we know when a historian is telling the truth? Aren't all historians, in the end, only giving their own opinions about the past? Don't they just select whatever facts they need to supp ort their own interpretations and leave the rest in the archives? Aren't the archives full of preselected material anyway? Can we really say that anything historians present to us about the past is true? Aren't there, rather, many different truths, accord ing to your political beliefs and personal perspectives? Questions such as these have been preoccupying historians for a long time. In recent years, they have become, if anything, more urgent and more perplexing than ever. Debate about them has repeatedly gravitated toward the Nazi extermination of the Jews during the Second World War. If we could not know for sure about anything that happened in the past, then how could we know about this most painful of all topics in modern history?"
Those are indeed issues of importance to academics and historians -- and indirectly to you and me as well -- but the terrible concern that I am left with after reading Lying about Hitler is that in the end Irving may have lost his case but he won in the eyes of his followers and even some of those who didn't pay close enough attention. You know the drill: the establishment is picking on us; they cannot allow the truth; and so on.
Can we do anything about this kind of abuse of our system? I am afraid not. Here at least the defense won. Imagine the other result, the terribly false message that would have been conveyed if Irving had won on the technical points of the law, as he well might have done without the superhuman efforts of the defense.
This is a scary book and an important one. I wish that Evans' dedication "to the survivors of Nazi genocide, murder and violence, and to the memory of the millions who did not survive" was as well served by our legal system as it is here by him as an able writer and historian.-- Gerry Rising