Irving V Penguin Books And Lipstadt
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''David Irving v Penguin Books and Deborah Lipstadt'' is a case in
English law English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...
against American historian
Deborah Lipstadt Deborah Esther Lipstadt (born March 18, 1947) is an American historian and diplomat, best known as author of the books ''Denying the Holocaust'' (1993), ''History on Trial: My Day in Court with a Holocaust Denier'' (2005), ''The Eichmann Trial'' ...
and her British publisher
Penguin Books Penguin Books Limited is a Germany, German-owned English publishing, publishing house. It was co-founded in 1935 by Allen Lane with his brothers Richard and John, as a line of the publishers the Bodley Head, only becoming a separate company the ...
, filed in the
High Court of Justice The High Court of Justice in London, known properly as His Majesty's High Court of Justice in England, together with the Court of Appeal (England and Wales), Court of Appeal and the Crown Court, are the Courts of England and Wales, Senior Cour ...
by the British author
David Irving David John Cawdell Irving (born 24 March 1938) is an English author and Holocaust denier who has written on the military and political history of World War II, especially Nazi Germany. He was found to be a Holocaust denier in a British court ...
in 1996, asserting that Lipstadt had
libel Defamation is a communication that injures a third party's reputation and causes a legally redressable injury. The precise legal definition of defamation varies from country to country. It is not necessarily restricted to making assertions ...
led him in her 1993 book ''
Denying the Holocaust ''Denying the Holocaust: The Growing Assault on Truth and Memory'' is a 1993 book by the historian Deborah Lipstadt, in which the author discusses the Holocaust denial movement. Lipstadt named British writer David Irving as a Holocaust denier, ...
''. The court ruled that Irving's claim of libel relating to
Holocaust denial Historical negationism, Denial of the Holocaust is an antisemitic conspiracy theory that asserts that the genocide of Jews by the Nazi Party, Nazis is a fabrication or exaggeration. It includes making one or more of the following false claims: ...
was not valid under
English defamation law Modern libel and slander laws in many countries are originally descended from English defamation law. The history of defamation law in England is somewhat obscure; civil actions for damages seem to have been relatively frequent as far back as th ...
because Lipstadt's claim that he had deliberately distorted evidence had been shown to be substantially true. English libel law puts the burden of proof on the defence, meaning that it was up to Lipstadt and her publisher to prove that her claims of Irving's deliberate misrepresentation of evidence to conform to his ideological viewpoints were substantially true. Lipstadt hired British lawyer
Anthony Julius Anthony Robert Julius (born 16 July 1956) is a British solicitor advocate known for being Diana, Princess of Wales' divorce lawyer and for representing Deborah Lipstadt. He is the deputy chairman at the law firm Mishcon de Reya and honorary ...
while Penguin hired libel experts Kevin Bays and Mark Bateman of media law firm
Davenport Lyons Davenport Lyons was a London-based law firm that entered into administration on 25 April 2014. Although most of their work concerned corporate acquisitions, in 2007 their actions against file sharers became news in the United Kingdom. This subj ...
.
Richard J. Evans Sir Richard John Evans (born 29 September 1947) is a British historian of 19th- and 20th-century Europe with a focus on Germany. He is the author of eighteen books, including his three-volume '' The Third Reich Trilogy'' (2003–2008). Evans was ...
, an established historian, was hired by the defence to serve as an expert witness. Evans spent two years examining Irving's work, and presented evidence of Irving's misrepresentations, including evidence that Irving had knowingly used forged documents as source material. Of utmost importance was the role played by another expert witness for the defence, the
Holocaust The Holocaust (), known in Hebrew language, Hebrew as the (), was the genocide of History of the Jews in Europe, European Jews during World War II. From 1941 to 1945, Nazi Germany and Collaboration with Nazi Germany and Fascist Italy ...
historian
Christopher Browning Christopher Robert Browning (born May 22, 1944) is an American historian and is Professor Emeritus of History at the University of North Carolina at Chapel Hill (UNC). A specialist on the Holocaust, Browning is known for his work documenting the ...
. Upon mutual agreement, the case was argued as a
bench trial A bench trial is a trial by judge, as opposed to a jury. The term applies most appropriately to any administrative hearing in relation to a summary offense to distinguish the type of trial. Many legal systems ( Roman, Islamic) use bench trials ...
before Mr. Justice Gray, who produced a written judgment 349 pages long in favour of the defendants, in which he detailed Irving's systematic distortion of the historical record of the Holocaust and Hitler's role therein.


History

In 1993,
Free Press Freedom of the press refers to legal protections for public communications media. Free Press may also refer to: Publications * ''Free Press'' (CPBF), the journal of the Campaign for Press and Broadcasting Freedom * ''Free Press'' (Malayalam magaz ...
published Professor
Deborah Lipstadt Deborah Esther Lipstadt (born March 18, 1947) is an American historian and diplomat, best known as author of the books ''Denying the Holocaust'' (1993), ''History on Trial: My Day in Court with a Holocaust Denier'' (2005), ''The Eichmann Trial'' ...
's book '' Denying the Holocaust: the Growing Assault on Truth and Memory''.The book was first published in America in 1993 () by Free Press, a division of Simon and Schuster. It was republished in the United Kingdom in 1994 () by Plume, a division of Penguin – whom Irving sued. In it she described and condemned the phenomenon of
Holocaust denial Historical negationism, Denial of the Holocaust is an antisemitic conspiracy theory that asserts that the genocide of Jews by the Nazi Party, Nazis is a fabrication or exaggeration. It includes making one or more of the following false claims: ...
and referred to
David Irving David John Cawdell Irving (born 24 March 1938) is an English author and Holocaust denier who has written on the military and political history of World War II, especially Nazi Germany. He was found to be a Holocaust denier in a British court ...
as a prominent Holocaust denier. One of the passages Irving later objected to was: In November 1994, Lipstadt had her first direct encounter with Irving at
DeKalb College Perimeter College at Georgia State University is a college of Georgia State University in Atlanta, Georgia. Georgia Perimeter College was originally a public community college founded by an Atlanta area county board of education before merging w ...
in
Atlanta Atlanta ( ) is the List of capitals in the United States, capital and List of municipalities in Georgia (U.S. state), most populous city in the U.S. state of Georgia (U.S. state), Georgia. It is the county seat, seat of Fulton County, Georg ...
, while she was lecturing on Holocaust denial. Irving had listened to the lecture while sitting in the lecture hall and when it was over, did his best to disrupt Lipstadt by challenging her to a debate, waving about a large amount of money in his hands and announcing he had $1,000 to give to her or anyone who could find a written order from Hitler for the Holocaust. Lipstadt ignored Irving, despite his repeated attempts to draw her into a debate. After Lipstadt's lecture had ended, Irving announced that Lipstadt's refusal to debate with him or produce a written order from Hitler for the Holocaust, despite his promise to pay $1,000 on the spot, proved that her criticism of him in ''
Denying the Holocaust ''Denying the Holocaust: The Growing Assault on Truth and Memory'' is a 1993 book by the historian Deborah Lipstadt, in which the author discusses the Holocaust denial movement. Lipstadt named British writer David Irving as a Holocaust denier, ...
'' was invalid and he handed out free copies of his Göring biography to Lipstadt's students.


Libel suits

On 5 September 1996, Irving filed a libel suit concerning Lipstadt's book in English court. He named in his suit Lipstadt and
Penguin Books Penguin Books Limited is a Germany, German-owned English publishing, publishing house. It was co-founded in 1935 by Allen Lane with his brothers Richard and John, as a line of the publishers the Bodley Head, only becoming a separate company the ...
, whose Plume division had published a British edition of her book. Irving also sued Holocaust historian
Gitta Sereny Gitta Sereny, CBE (13 March 192114 June 2012) was an Austrian-British biographer, historian, and investigative journalist who became known for her interviews and profiles of infamous figures, including Mary Bell, who was convicted in 1968 of ...
for libel for an article she had written about him entitled "Spin Time for Hitler" in ''
The Observer ''The Observer'' is a British newspaper published on Sundays. First published in 1791, it is the world's oldest Sunday newspaper. In 1993 it was acquired by Guardian Media Group Limited, and operated as a sister paper to ''The Guardian'' ...
'' newspaper on 21 April 1996, although the case did not go to court. In letters of 25 and 28 October 1997, Irving threatened to sue
John Lukacs John Adalbert Lukacs (; Hungarian: ''Lukács János Albert''; January 31, 1924 – May 6, 2019) was a Hungarian-born American historian and author of more than thirty books. Lukacs described himself as a reactionary In politics, a reactionar ...
for libel if he published his book, ''The Hitler of History'', without removing certain passages highly critical of Irving's work. Evans (2001), page 27 The American edition of ''The Hitler of History'' was published in 1997 with the allegedly libellous passages but because of Irving's legal threats, no British edition of ''The Hitler of History'' was published until 2001. When the latter was published, as a result of the threat of legal action by Irving, the passages containing the criticism of Irving's historical methods were expunged by the publisher, to the disappointment of many reviewers. In her book, ''Denying the Holocaust'', Lipstadt called Irving a Holocaust denier and falsifier, as well as a bigot, and wrote that he manipulated and distorted real documents. Irving claimed to have been libelled on the grounds that Lipstadt had falsely labelled him a Holocaust denier and falsely claimed that he had falsified evidence or deliberately misinterpreted it, by which false accusations his reputation as an historian was defamed. Though the author was American, Irving filed his suit in the English High Court, where the burden of proof in libel cases is on the defendant, unlike in the US where the burden is on the plaintiff. He was able to file the lawsuit in England because the book was published there (before 1996, if Irving had wished to sue Lipstadt, he would have had to launch his legal action in an American court; English libel law applies only to alleged acts of libel committed in England and Wales). As explained by the trial judge, Mr Justice Gray,
4.7 ... the burden of proving the defence of justification rests upon the publishers. Defamatory words are presumed under English law to be untrue. It is not incumbent on defendants to prove the truth of every detail of the defamatory words published: what has to be proved is the substantial truth of the defamatory imputations published about the claimant. As it is sometimes expressed, what must be proved is the truth of the sting of the defamatory charges made.


Legal issues

Irving's decision to file his lawsuit in the English courts gave him the upper hand by shifting the burden of proof. Under American libel law, a
public figure A public figure is a person who has achieved fame, prominence or notoriety within a society, whether through achievement, luck, action, or in some cases through no purposeful action of their own. In the context of defamation actions (libel and ...
who claims to have been libelled must prove that the statements in question are defamatory and false, and were made with
actual malice In United States defamation law, actual malice is a legal requirement imposed upon public officials or public figures when they file suit for libel (defamatory printed communications). Compared to other individuals who are less well known to the ...
or with reckless disregard for their truth or falsity. Reliance on reliable sources (even if they prove false) is a valid defence.
English libel law Modern libel and slander laws in many countries are originally descended from English defamation law. The history of defamation law in England is somewhat obscure; civil actions for damages seem to have been relatively frequent as far back as th ...
requires only that the
claimant A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the ...
show that the statements are defamatory. The burden of proof falls on the defendant to prove that the statements were substantially true and reliance on sources is irrelevant. If the defence could not prove the defamatory content of her words to be substantially true, they would be found guilty of libel. Lipstadt feared that such a verdict would confer legitimacy upon Irving's claims and felt compelled to defend herself. Lipstadt (2005), page 31 One commentator, who had expressed the opinion that Irving "could have been ignored", later wrote "Lipstadt had no choice but to defend herself in court". To succeed with a justification defence, the defence would need to prove as substantially true all of the defamatory claims made by Lipstadt against Irving. The judge understood these claims to be,


Preparation


Defence

Lipstadt hired the British solicitor
Anthony Julius Anthony Robert Julius (born 16 July 1956) is a British solicitor advocate known for being Diana, Princess of Wales' divorce lawyer and for representing Deborah Lipstadt. He is the deputy chairman at the law firm Mishcon de Reya and honorary ...
to present her case. Penguin hired
Davenport Lyons Davenport Lyons was a London-based law firm that entered into administration on 25 April 2014. Although most of their work concerned corporate acquisitions, in 2007 their actions against file sharers became news in the United Kingdom. This subj ...
libel specialists Kevin Bays and Mark Bateman. Together they briefed the libel barrister,
Richard Rampton Richard Rampton KC (8 January 1941 – 23 December 2023) was a British libel lawyer. He was involved in several high-profile cases including '' Irving v. Penguin Books and Lipstadt'', where he defended Deborah Lipstadt and Penguin Books against ...
KC. Penguin also instructed Heather Rogers as junior barrister. Penguin knew that they were going to have to dig deep to defend against Irving's claims. Lipstadt's claims would need to be backed up by experts and Penguin would foot the bill, retaining Professor
Richard J. Evans Sir Richard John Evans (born 29 September 1947) is a British historian of 19th- and 20th-century Europe with a focus on Germany. He is the author of eighteen books, including his three-volume '' The Third Reich Trilogy'' (2003–2008). Evans was ...
, historian and Professor of Modern History at
Cambridge University The University of Cambridge is a Public university, public collegiate university, collegiate research university in Cambridge, England. Founded in 1209, the University of Cambridge is the List of oldest universities in continuous operation, wo ...
, as their lead witness. Lipstadt (2005), page 42 As an expert witness, Evans was expected to prepare a report and to be cross-examined. Also working as expert witnesses were the American Holocaust historian
Christopher Browning Christopher Robert Browning (born May 22, 1944) is an American historian and is Professor Emeritus of History at the University of North Carolina at Chapel Hill (UNC). A specialist on the Holocaust, Browning is known for his work documenting the ...
, the German historian
Peter Longerich Heinz Peter Longerich (born 1955) is a German professor of history and historian. He is regarded by Ian Kershaw, Richard Evans, Timothy Snyder, Mark Roseman and Richard Overy, as one of the leading German authorities on the Holocaust. Career ...
, the Dutch architectural expert
Robert Jan van Pelt Robert Jan van Pelt (born 15 August 1955) is a Dutch author, architectural historian, professor at the University of Waterloo and a Holocaust scholar. One of the world's leading experts on Auschwitz, he regularly speaks on Holocaust related topics ...
and the Political Science Professor of the
Free University of Berlin The Free University of Berlin (, often abbreviated as FU Berlin or simply FU) is a public university, public research university in Berlin, Germany. It was founded in West Berlin in 1948 with American support during the early Cold War period a ...
. The legal strategy was to # Provide evidence that the Holocaust happened, with a specific focus on the evidence for: the existence and use of gas chambers; and a co-ordinated Nazi plan, directed by Hitler, for the extermination of Jews. The goal was not to prove the Holocaust, but to show that any reasonable and fair-minded historian would not doubt it, and that Irving must therefore not be reasonable or fair-minded. # Document Irving's political views and associations with extremist,
neo-Nazi Neo-Nazism comprises the post–World War II militant, social, and political movements that seek to revive and reinstate Nazism, Nazi ideology. Neo-Nazis employ their ideology to promote hatred and Supremacism#Racial, racial supremacy (ofte ...
groups. # Examine Irving's work to see whether Irving did indeed falsify the historical record, as Lipstadt had claimed he did. Van Pelt, Browning and Longerich were assigned to the first part. Funke wrote a report for the second and Evans the third. Evans (2001), pp. 29–30 The lawyers for Lipstadt (
Mishcon de Reya Mishcon de Reya LLP is a British international law firm with offices in London, Cambridge, Oxford, Singapore, as well as an association with Karas So LLP in Hong Kong. Founded in 1937, it employs more than 1450 people with over 650 lawyers. I ...
) and Penguin (Davenport Lyons) worked closely, for the most part agreeing on the way to deal with the claim. One minor setback came when Penguin and their lawyers Davenport Lyons were keen that the information provided by the experts they had instructed be incorporated in an amended defence (which Heather Rogers drafted). Initially Mishcon were unpersuaded but Davenport Lyons were insistent, feeling that the amended document provided a clear statement of the strong evidence against Irving. The decision was eventually left to Richard Rampton and Heather Rogers as they would be presenting the case and both were in favour of amending; Mishcon relented. The testimony of van Pelt and Evans proved to be the most substantial. During cross-examination, Irving was unable to undermine either Evans, who had been highly critical of his scholarship, or van Pelt, whose report concentrated on the evidence that contradicted the Holocaust deniers' arguments about
Auschwitz Birkenau Auschwitz, or Oświęcim, was a complex of over 40 Nazi concentration camps, concentration and extermination camps operated by Nazi Germany in Polish areas annexed by Nazi Germany, occupied Poland (in a portion annexed into Germany in 1939) d ...
. Evans was assisted by two postgraduates, Thomas Skelton-Robinson and Nik Wachsmann, who acted as researchers; Evans and his students took 18 months to write a 740-page report, finishing it in the summer of 1999.


Settlement offers

A short time later, Irving privately approached Penguin and offered to drop them from his lawsuit if they would pull the book from publication in the UK and destroy all of the remaining copies, publicly disavow all of Lipstadt's conclusions and make a charitable donation of £500 in the name of Irving's daughter (who was disabled). He also suggested to Penguin that they keep any terms confidential because he had no intention of settling with Lipstadt. Bays and Bateman made clear that the publisher rejected his terms. Three weeks later, Irving officially offered to settle with both parties, the terms being that the book be withdrawn from circulation, both parties apologise and (each) make a £500 donation. Lipstadt instructed her lawyers to reject the offer. Irving later claimed without evidence that Penguin wanted to settle the case (not specifying whether this applied to one of his two "offers" or both of them) and were somehow pressured by Dr. Lipstadt not to;
D. D. Guttenplan Don David Guttenplan is an American writer who serves as editor of ''The Nation''. A former London correspondent of the magazine, he wrote ''The Holocaust on Trial'', a book about the '' Irving v Penguin Books and Lipstadt'' libel case while bas ...
's book outlined how Penguin dismissed Irving for several reasons, including contempt for him and dismay over the certainty that the publisher would have been called by Lipstadt's lawyers as plaintiff advocates if they had settled the lawsuit.


Trial


Testimony


Evans

Evans and his two assistants spent more than two years examining Irving's work. This research found that Irving had misrepresented historical evidence to support his prejudices. In his report and testimony, Evans suggested that in his view, Irving had knowingly used forged documents as sources, and that for this reason, Irving could not be regarded as a historian. His conclusions were that
Not one of rving'sbooks, speeches or articles, not one paragraph, not one sentence in any of them, can be taken on trust as an accurate representation of its historical subject. All of them are completely worthless as history, because Irving cannot be trusted anywhere, in any of them, to give a reliable account of what he is talking or writing about. ... if we mean by historian someone who is concerned to discover the truth about the past, and to give as accurate a representation of it as possible, then Irving is not a historian.
During the trial, Evans was cross-examined by Irving. D.D. Guttenplan later wrote that the cross-examination of Evans by Irving contained a high degree of personal antagonism between the two men. Such was the degree of antagonism that Irving challenged Evans on very minor points, such as Evans doubting the fairness of a 1938 German plebiscite in which the Nazi regime received 98.8% of the vote. A subject that much engaged Irving and Evans in a debate was a 1942 memo by the Chief of the Reich Chancellory
Hans Lammers Hans Heinrich Lammers (27 May 1879 – 4 January 1962) was a German jurist and prominent Nazi Party politician. From 1933 until 1945 he served as Chief of the Reich Chancellery under Adolf Hitler. In 1937, he additionally was given the post of ' ...
to the ''Reich'' Justice Minister
Franz Schlegelberger Louis Rudolph Franz Schlegelberger (23 October 187614 December 1970) was State Secretary in the German Reich Ministry of Justice (RMJ) who served as Justice Minister during the Third Reich. He was the highest-ranking defendant at the Judges' T ...
in which Lammers wrote that Hitler ordered him to put the "Jewish Question" on the "back-burner" until after the war. Evans chose to accept the interpretation of the memo put forward by
Eberhard Jäckel Eberhard Jäckel (; 29 June 1929 – 15 August 2017) was a German historian. In the 1980s, he was a principal protagonist in the Historians' Dispute ('' Historikerstreit'') over how to incorporate Nazi Germany and the Holocaust into German hi ...
in the 1970s; Irving chose to interpret the memo literally, and taunted Evans, saying " is a terrible problem, is it not, that we are faced with this tantalizing plate of crumbs and morsels of what should have provided the final smoking gun, and nowhere the whole way through the archives do we find even one item that we do not have to interpret or read between the lines of, but we do have in the same chain of evidence documents which... quite clearly specifically show Hitler intervening in the other sense?". In response, Evans stated "No, I do not accept that at all. It is because you want to interpret
euphemism A euphemism ( ) is when an expression that could offend or imply something unpleasant is replaced with one that is agreeable or inoffensive. Some euphemisms are intended to amuse, while others use bland, inoffensive terms for concepts that the u ...
s as being literal and that is what the whole problem is. Every time there is a euphemism, Mr. Irving... or a camouflage piece of statement or language about
Madagascar Madagascar, officially the Republic of Madagascar, is an island country that includes the island of Madagascar and numerous smaller peripheral islands. Lying off the southeastern coast of Africa, it is the world's List of islands by area, f ...
, you want to treat it as the literal truth, because it serves your purpose of trying to exculpate Hitler. That is part of... the way you manipulate and distort the documents". In 2001, Evans described his impression of Irving after being cross-examined by him as "He rvingwas a bit like a dim student who didn't listen. If he didn't get the answer he wanted, he just repeated the question."


Longerich

Longerich testified to the meaning of the often euphemistic language used by German officials during the war regarding the "Final Solution of the Jewish Question", and argued that from 1941 onwards, the term "resettlement in the East" was a metaphor for deportation to the death camps. During his exchanges with Irving, Longerich insisted quite firmly that the term "resettlement" was only a euphemism for extermination and nothing more, and used the Posen speech given by
Himmler Heinrich Luitpold Himmler (; 7 October 1900 – 23 May 1945) was a German Nazism, Nazi politician and military leader who was the 4th of the (Protection Squadron; SS), a leading member of the Nazi Party, and one of the most powerful p ...
in October 1943 as a proof of the genocidal policy of the German state. Irving by contrast argued for a literal interpretation of the phrase "resettlement in the East".


Browning

During his testimony and a cross-examination by Irving, Browning countered Irving's suggestion that the last chapter of the Holocaust has yet to be written (implying there were grounds for doubting the reality of the Holocaust) by replying: "We are still discovering things about the Roman Empire. There is no last chapter in history." Browning countered Irving's argument that the lack of a written ''
Führer ( , spelled ''Fuehrer'' when the umlaut is unavailable) is a German word meaning "leader" or " guide". As a political title, it is strongly associated with Adolf Hitler, the dictator of Nazi Germany from 1933 to 1945. Hitler officially cal ...
'' order proves the alleged non-occurrence of the Holocaust by arguing that, although no such order was ever written down, Hitler had almost certainly made statements to his leading subordinates indicating his wishes in regards to the Jews of Europe during the war, thus rendering the need for a written order irrelevant. Browning testified that several leading experts on Nazi Germany believe that there was no written ''Führer'' order for the "Final Solution of the Jewish Question", but no historian doubts the reality of the Holocaust. Browning went on to assert that Irving was attempting to falsely equate doubts about the existence of a written ''Führer'' order with doubts about the Holocaust. Browning used to support his thesis the example of Hitler's secret speech to his ''
Gauleiter A ''Gauleiter'' () was a regional leader of the Nazi Party (NSDAP) who served as the head of a ''Administrative divisions of Nazi Germany, Gau'' or ''Reichsgau''. ''Gauleiter'' was the third-highest Ranks and insignia of the Nazi Party, rank in ...
s'' on 12 December 1941, in which Hitler strongly alluded to genocide as the "Final Solution". Browning testified that the
Madagascar Plan The Madagascar Plan () was a plan proposed by the Nazi German government to forcibly relocate the Jewish population of Europe to the island of Madagascar. Franz Rademacher, head of the Jewish Department of the German Foreign Office, propose ...
of 1940–41 was "fantastic" and "bizarre", but countered Irving's suggestion that this proves the alleged impossibility of the Holocaust by stating: "...I do think they took it seriously. It is fantastic, but of course, Auschwitz is fantastic, too". Browning testified that the Madagascar Plan was not "Hitler's pipe dream" as Irving claimed, and that "I would not call it a pipe dream, because I think, if England had surrendered, they would have tried to do it. They would have tried to implement it just as they tried to implement the Lublin reservation plan he Nisko Plan">Nisko_Plan.html" ;"title="he Nisko Plan">he Nisko Planand just as they tried and succeeded in implementing the death camp plans." Browning categorically rejected Irving's claim that there was no reliable statistical information on the size of the pre-war Jewish population in Europe or on the killing processes and argued that the only reason historians debate whether five or six million Jews were killed in the Holocaust is due to a lack of access to archives in the former Soviet Union. Likewise, Browning argued that it is possible to become soaked in human blood after shooting people at close range based on his research for his 1992 book ''Ordinary Men'' and dismissed Irving's argument that accounts of German personnel being soaked in blood were improbable because it is not possible to have a blood-soaked uniform after shooting people at close range. Browning responded to Irving's claim that because Browning had done work for the Yad Vashem centre in Jerusalem that made him an "Israeli agent" and thereby compromised his scholarly abilities by stating: "If that was the case, then since I had been at the [US] Holocaust Museum, I would also have been an agent of the American government, and since I have received scholarships in Germany, I would be an agent of the German government, so I must be a very duplicitous fellow to be able to follow these regimes." Irving seemed anxious for Browning's approval, and Browning later recalled that Irving behaved as if the two of them were on "a joint journey of exploration and discovery."


Van Pelt

Robert Jan van Pelt Robert Jan van Pelt (born 15 August 1955) is a Dutch author, architectural historian, professor at the University of Waterloo and a Holocaust scholar. One of the world's leading experts on Auschwitz, he regularly speaks on Holocaust related topics ...
, an architectural historian, was engaged by the defence as an expert witness. He prepared a 700-page report, in which he examined the evidence for the existence of the
gas chambers A gas chamber is an apparatus for killing humans or animals with gas, consisting of a sealed chamber into which a poisonous or asphyxiant gas is introduced. Poisonous agents used include hydrogen cyanide and carbon monoxide. History Gener ...
at Auschwitz. He also defended himself on cross-examination. Irving floundered against van Pelt's deep knowledge of the mechanics of Auschwitz Birkenau. Rampton and van Pelt had bonded on a trip to Auschwitz with Rogers and Bateman and they had spent hours talking through Irving's claims. Van Pelt took the three lawyers and Deborah Lipstadt around Birkenau showing them how Irving's claims were false and the mistake he had made about the physical layout. He later adapted the report he wrote into book form.


Claimant

In the trial, Irving represented himself. He called the American Kevin B. MacDonald, an
evolutionary psychologist Evolutionary psychology is a theoretical approach in psychology that examines cognition and behavior from a modern evolutionary perspective. It seeks to identify human psychological adaptations with regard to the ancestral problems they evolved ...
, to testify on his behalf. Irving made much of the statement by the American historian Arno J. Mayer, who Irving went to pains to point out was both a Marxist and a man who would have been considered Jewish in Nazi racial theory, in his 1988 book ''Why Did the Heavens Not Darken?'', that most of the people who died at Auschwitz were the victims of disease rather than murder. In response, Peter Longerich argued that Mayer did not deny the Holocaust in his book, and that he was simply wrong about more Jews dying of "natural" as opposed to "unnatural" causes of death at Auschwitz. Irving also subpoenaed the diplomatic historian Donald Cameron Watt and the military historian
John Keegan Sir John Desmond Patrick Keegan (15 May 1934 – 2 August 2012) was an English military historian, lecturer, author and journalist. He wrote many published works on the nature of combat between prehistory and the 21st century, covering land, ...
to testify in his case against Lipstadt; both men had refused an earlier offer to testify for Irving on their own and appeared to be very reluctant on the stand. Rather than focus on the defence's evidence against him, or on whether or not Lipstadt had defamed him, Irving seemed to focus mainly on his "right to
free speech Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recognise ...
". In his closing statement, Irving claimed to have been a victim of an international, mostly Jewish, conspiracy for more than three decades.


Ruling

The judgment was presented on 11 April 2000, although the lawyers had received the decision 24 hours earlier. To the large crowd assembled, the judge read portions of his written judgment. The written judgment came out to 349 pages. Following an introduction and a discussion of the complaint, more than three-quarters of the written judgment is devoted to an analysis of all the evidence that was presented. Only then does the judge get to his findings on the evidence. The judge deems that "in the course of his prolonged cross-examination, Evans justified each and every one of the criticisms on which the Defendants have chosen to rely." ''Irving v Lipstadt'' (2000), Paragraph 13.10 On the issue of Auschwitz, the judge states "My conclusion is that the various categories of evidence do 'converge' in the manner suggested by the Defendants... Having considered the various arguments advanced by Irving to assail the effect of the convergent evidence relied upon by the Defendants, it is my conclusion that no objective, fair-minded historian would have serious cause to doubt that there were gas chambers at Auschwitz and that they were operated on a substantial scale to kill hundreds of thousands of Jews," ''Irving v Lipstadt'' (2000), Paragraph 13.91 and "it follows that it is my conclusion that Irving's denials of these propositions were contrary to the evidence." ''Irving v Lipstadt'' (2000), Paragraph 13.98 Furthermore, "the allegation that Irving is a racist is also established." ''Irving v Lipstadt'' (2000), Paragraph 13.106 Ultimately, the judge ruled that the defence succeeded in proving everything they claimed in trial but for two assertions: that Irving had broken an agreement with the Moscow archives and mishandled the glass plates containing Goebbels' diaries, and that he hung a portrait of Hitler above his desk. However, the judge pointed out that "the charges against Irving that have been proved to be true are of sufficient gravity", and when taking that into account, adding those two claims mentioned above would "not have any material effect on Irving's reputation." The judge decided this in accordance with section 5 of the
Defamation Act 1952 The Defamation Act 1952 ( 15 & 16 Geo. 6 & 1 Eliz. 2. c. 66) is an Act of the Parliament of the United Kingdom. This Act implemented recommendations contained in the Report of the Porter Committee. The recommendation made by the Committee in re ...
, which states that a justification defence can succeed despite the failure to prove minor assertions. The judge summarised his findings as follows:


Further events


Appeal

Irving subsequently appealed to the Civil Division of the
Court of Appeal An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to Hearing (law), hear a Legal case, case upon appeal from a trial court or other ...
. On 20 July 2001, his application for appeal was denied by Lords Justices
Pill Pill or The Pill may refer to: Drugs * Pill (pharmacy), referring to anything small for a specific dose of medicine * "The Pill", a general nickname for the combined oral contraceptive pill Film and television * ''The Pill'' (film), a 2011 fil ...
, Mantell, and
Buxton Buxton is a spa town in the High Peak, Derbyshire, Borough of High Peak, Derbyshire, in the East Midlands region of England. It is England's highest market town, sited at some above sea level.Alston, Cumbria also claims this, but lacks a regu ...
.''Irving v Penguin Books Ltd & Anor'' (2001
EWCA Civ 1197
/ref>


Bankruptcy

In light of the evidence presented at the trial, a number of Irving's works that had previously escaped serious scrutiny were brought to public attention. He was also liable to pay all of the substantial costs of the trial (between one and two million pounds), which ruined him financially and forced him into
bankruptcy Bankruptcy is a legal process through which people or other entities who cannot repay debts to creditors may seek relief from some or all of their debts. In most jurisdictions, bankruptcy is imposed by a court order, often initiated by the deb ...
in 2002.


2006 arrest

In 2006, Irving pleaded guilty to the charge of denying the Holocaust in
Austria Austria, formally the Republic of Austria, is a landlocked country in Central Europe, lying in the Eastern Alps. It is a federation of nine Federal states of Austria, states, of which the capital Vienna is the List of largest cities in Aust ...
, where
Holocaust denial Historical negationism, Denial of the Holocaust is an antisemitic conspiracy theory that asserts that the genocide of Jews by the Nazi Party, Nazis is a fabrication or exaggeration. It includes making one or more of the following false claims: ...
is a crime and where an arrest warrant was issued based on speeches he made in 1989. Irving knew that the warrant had been issued and that he was banned from Austria, but chose to go to Austria anyway. After he was arrested, Irving claimed in his plea that he had changed his opinions on the Holocaust: "I said that then based on my knowledge at the time, but by 1991 when I came across the
Eichmann Otto Adolf Eichmann ( ;"Eichmann"
''
Upon hearing of Irving's sentence, Lipstadt said, "I am not happy when censorship wins, and I don't believe in winning battles via censorship... The way of fighting Holocaust deniers is with history and with truth."


Reaction


Media response

The case was often referred to by the media as "history on trial." The response to the verdict was overwhelmingly positive. Some saw the case as a vindication of the UK's strict libel laws. Others noted that Justice Gray "indicated that he did not 'regard it as being a part' of his function 'as the trial judge to make findings of fact as to what did and what did not occur during the Nazi regime in Germany', but he then spent hundreds of pages arguing about his position on such issues," claiming that it was the overly-strict libel laws that forced a judge to determine historical fact. Available for fre
here
/ref> In 2005,
C-SPAN Cable-Satellite Public Affairs Network (C-SPAN ) is an American Cable television in the United States, cable and Satellite television in the United States, satellite television network, created in 1979 by the cable television industry as a Non ...
planned to cover Dr. Lipstadt's book on the trial, ''History on Trial: My Day in Court with David Irving'' via its Book TV programme, but the cable network was heavily criticized when it was revealed that they had planned to put together a de facto debate between Dr. Lipstadt and Irving, by airing a new speech by Irving that they'd arranged with him to videotape, after an older one by Lipstadt (the network claimed this was going to be done for "balance"); when Lipstadt told C-SPAN she would not appear on the show under those circumstances, C-SPAN originally told her they would air Irving's speech by itself, but C-SPAN ended up cancelling this planned programme and instead aired a special that focused on how the trial was viewed by ''
Washington Post ''The Washington Post'', locally known as ''The'' ''Post'' and, informally, ''WaPo'' or ''WP'', is an American daily newspaper published in Washington, D.C., the national capital. It is the most widely circulated newspaper in the Washington m ...
'' reporter
T. R. Reid T. R. Reid (born Thomas Roy Reid III in 1944) is an American reporter, documentary film correspondent, and author. He has also been a frequent guest on National Public Radio (NPR)'s ''Morning Edition''. Reid currently lives in Denver, Colorado. ...
and included clips of both Lipstadt and Irving.


Portrayal


2000 television program

In December 2000, an episode of
PBS The Public Broadcasting Service (PBS) is an American public broadcaster and non-commercial, free-to-air television network based in Arlington, Virginia. PBS is a publicly funded nonprofit organization and the most prominent provider of educat ...
's ''
Nova A nova ( novae or novas) is a transient astronomical event that causes the sudden appearance of a bright, apparently "new" star (hence the name "nova", Latin for "new") that slowly fades over weeks or months. All observed novae involve white ...
'', entitled "Holocaust on Trial", focused on the case. Produced concurrently with the actual trial, the programme's production staff frequently visited the courtroom. As video cameras were not allowed in the courtroom, the events in the trial were re-enacted for television. Irving was played by British actor
John Castle John Michael Frederick Castle (born 14 January 1940) is an English actor. He is best known for his film and television work, most notably playing Bill in Michelangelo Antonioni's '' Blowup'' (1966) and Geoffrey in '' The Lion in Winter'' (19 ...
. A team of historians were employed to gather the material necessary for the episode. The programme was almost completed when the verdict for the real trial was handed down. It also featured interviews with
David Cesarani David Ian Cesarani (13 November 1956 – 25 October 2015) was a British historian who specialised in Jewish history, especially the Holocaust. He also wrote several biographies, including ''Arthur Koestler: The Homeless Mind'' (1998). Academic ...
,
Raul Hilberg Raul Hilberg (June 2, 1926 – August 4, 2007) was a Jewish Austrian-born American political scientist and historian. He was widely considered to be the preeminent scholar on the Holocaust. Christopher R. Browning has called him the founding f ...
,
Richard Breitman Richard David Breitman (born 1947) is an American historian best known for his study of The Holocaust. Richard Breitman is an American historian who has written extensively on modern German history, the Holocaust, American immigration and refug ...
,
Richard Overy Richard James Overy (born 23 December 1947) is a British historian who has published on the history of World War II and Nazi Germany. In 2007, as ''The Times'' editor of ''Complete History of the World'', he chose the 50 key dates of world his ...
and
Hugh Trevor-Roper Hugh Redwald Trevor-Roper, Baron Dacre of Glanton, (15 January 1914 – 26 January 2003) was an English historian. He was Regius Professor of Modern History (Oxford), Regius Professor of Modern History at the University of Oxford. Trevor-Rope ...
.


2016 film

The rights to adapt the story of the trial into a film were optioned by
Participant Media Participant Media, LLC was an American independent Film industry, film and television production company founded in 2004 by Jeffrey Skoll, dedicated to entertainment intended to spur social change. The company financed and co-produced film and te ...
. A script was written by David Hare. In April 2015, it was reported that
Hilary Swank Hilary Ann Swank (born July 30, 1974) is an American actress and film producer. She first became known in 1992 for her role on the television series '' Camp Wilder'' and made her film debut with a minor role in ''Buffy the Vampire Slayer'' (19 ...
and
Tom Wilkinson Thomas Geoffrey Wilkinson (5 February 1948 – 30 December 2023) was an English actor. Known for his roles on stage and screen, he received numerous accolades including a BAFTA Award, a Golden Globe Award, and a Primetime Emmy Award as well ...
had signed on to portray Deborah Lipstadt and David Irving in a feature film about the 2000 trial. In November 2015,
Rachel Weisz Rachel Hannah Weisz (; born 7 March 1970) is an English actress. Known for her roles in independent films and blockbusters, she has received List of awards and nominations received by Rachel Weisz, several awards, including an Academy Award, ...
joined the cast of the film (replacing Swank) along with
Timothy Spall Timothy Leonard Spall ( ; born 27 February 1957) is an English actor. He gained recognition for his character actor roles on stage and screen. In 2000, he was appointed Officer of the Order of the British Empire (OBE) by Queen Elizabeth II. S ...
, who would play Irving while Wilkinson would play
Richard Rampton Richard Rampton KC (8 January 1941 – 23 December 2023) was a British libel lawyer. He was involved in several high-profile cases including '' Irving v. Penguin Books and Lipstadt'', where he defended Deborah Lipstadt and Penguin Books against ...
.
Bleecker Street Bleecker Street is an east–west street in Lower Manhattan, New York City. It is most famous today as a Greenwich Village nightlife, nightclub district. The street connects a neighborhood popular today for music venues and comedy as well as a ...
released the film, titled ''Denial'', in the United States in September 2016.


See also

*
Defamation Defamation is a communication that injures a third party's reputation and causes a legally redressable injury. The precise legal definition of defamation varies from country to country. It is not necessarily restricted to making assertions ...
**
English defamation law Modern libel and slander laws in many countries are originally descended from English defamation law. The history of defamation law in England is somewhat obscure; civil actions for damages seem to have been relatively frequent as far back as th ...
**
Libel tourism Libel tourism is a term, first coined by Geoffrey Robertson, to describe forum shopping for libel suits. It particularly refers to the practice of pursuing a case in England and Wales, in preference to other jurisdictions, such as the United Stat ...
, the idea that plaintiffs choose to file libel suits in jurisdictions thought more likely to give a favourable result. ** 'Funding Evil' libel case, a case where an American writer was sued for libel in England, despite the fact that the book was not published there. *
The Holocaust The Holocaust (), known in Hebrew language, Hebrew as the (), was the genocide of History of the Jews in Europe, European Jews during World War II. From 1941 to 1945, Nazi Germany and Collaboration with Nazi Germany and Fascist Italy ...
**
Nuremberg Trials #REDIRECT Nuremberg trials {{redirect category shell, {{R from other capitalisation{{R from move ...
, the series of war crime tribunals that followed World War II. **
Eichmann trial The Eichmann trial was the 1961 trial of major Holocaust perpetrator Adolf Eichmann who was Operation Eichmann, captured in Argentina by Israeli agents and brought to Israel to stand trial. Eichmann was a senior Nazi party member and served at t ...
, the trial of Adolf Eichmann, who had escaped and was not present at the Nuremberg Trials. *
Holocaust denial Historical negationism, Denial of the Holocaust is an antisemitic conspiracy theory that asserts that the genocide of Jews by the Nazi Party, Nazis is a fabrication or exaggeration. It includes making one or more of the following false claims: ...
**
Genocide denial Genocide denial is the attempt to deny or minimize the scale and severity of an instance of genocide. Denial is an integral part of genocide and includes the secret planning of genocide, propaganda while the genocide is going on, and destruction ...
**
Laws against Holocaust denial Between 1941 and 1945, Government of Nazi Germany, the government of Nazi Germany perpetrated the Holocaust: a large-scale industrialised genocide in which approximately six million History of the Jews in Europe, Jews were systematically murder ...
** ''
R. v. Zundel ''R v Zundel'' 9922 S.C.R. 731 is a Supreme Court of Canada decision where the Court struck down the provision in the ''Criminal Code'' that prohibited publication of false news on the basis that it violated the freedom of expression provision un ...
'', a Canadian case in which a Holocaust denier was convicted under ''reporting false news''. Upon appeal the law was overturned on free speech grounds. ** '' R. v. Keegstra'', another Canadian case, in which a conviction of an openly anti-semitic teacher who denied the Holocaust in class, was upheld under hate crime law, regardless of free speech. *
Penguin Books Penguin Books Limited is a Germany, German-owned English publishing, publishing house. It was co-founded in 1935 by Allen Lane with his brothers Richard and John, as a line of the publishers the Bodley Head, only becoming a separate company the ...
** ''
Penguin Group (USA) Inc. v. American Buddha ''Penguin Group (USA) Inc. v. American Buddha'', 640 F.3d 497 (2d Cir. 2011),Penguin Group (USA) Inc. v. American Buddha640 F.3d 497 (2d Cir. N.Y. 2011). was a case in which United States Court of Appeals for the Second Circuit reversed the dec ...
'' ** ''
R v Penguin Books Ltd. ''R v Penguin Books Ltd'' (also known as ''The Lady Chatterley Trial''), was the public prosecution in the United Kingdom of Penguin Books under the ''Obscene Publications Act 1959'' for the publication of D. H. Lawrence's 1928 novel ''Lady ...
''


Footnotes


References

* ''Irving v Penguin & Lipstadt'', (2000): Judgment of Mr. Justice Gray
BAILLI A bailiff (, ) was the king's administrative representative during the ''ancien régime'' in northern France, where the bailiff was responsible for the application of justice and control of the administration and local finances in his bailiwick ...
* * * * * * *


External links


Holocaust Denial On Trial: Holocaust Denial and the 2000 Libel Trial in the U.K.
a project of The Rabbi Donald A. Tam Institute for Jewish Studies at
Emory University Emory University is a private university, private research university in Atlanta, Georgia, United States. It was founded in 1836 as Emory College by the Methodist Episcopal Church and named in honor of Methodist bishop John Emory. Its main campu ...
.
Nova Online , Holocaust on Trial
the companion website to an episode of
PBS The Public Broadcasting Service (PBS) is an American public broadcaster and non-commercial, free-to-air television network based in Arlington, Virginia. PBS is a publicly funded nonprofit organization and the most prominent provider of educat ...
's
NOVA A nova ( novae or novas) is a transient astronomical event that causes the sudden appearance of a bright, apparently "new" star (hence the name "nova", Latin for "new") that slowly fades over weeks or months. All observed novae involve white ...
which focused on, and featured re-enactments of the case. * , a five-page feature by Salon.com about the case. * , a special report on the case by ''The Guardian''
''Voices on Antisemitism'' Interview with Deborah Lipstadt
from th
United States Holocaust Memorial Museum
* *
Expert Report by Professor Richard Evans
Holocaust denial in the United Kingdom English defamation case law Antisemitism in England Holocaust studies David Irving High Court of Justice cases 2000 in United Kingdom case law 2000 in England Penguin Books fr:Irving v Penguin Books Ltd {{Falsification of history