David Irving v Penguin Books and Deborah Lipstadt/II

The passages complained of

2.1 In Denying the Holocaust Lipstadt examines the origins and subsequent growth in the scope and intensity of what she describes as the phenomenon of Holocaust denial. She identifies several adherents of the revisionist movement and examines the basis for their beliefs, their methodology and the manner in which they deploy their arguments. She argues that “the deniers” represent a clear and present danger that the lessons to be learned by future generations from the terrible events of the 1930s and 40s will be obfuscated.

2.2 Irving regards himself as being the victim of an orchestrated campaign of boycotting, hounding and persecution by organisations in the UK and elsewhere. He considers Denying the Holocaust to be one of the principal instruments deployed in the campaign to destroy him.

2.3 He has selected for complaint a number of passages from Denying the Holocaust. (I was told that the passages complained of represent in total no more than five pages from a book which runs to more than two hundred pages). This is a course which he is entitled to take, providing of course that the removal of the passages from the context in which they appear in the book does not affect their interpretation. The Defendants are accordingly entitled to invite attention to the context in which the passages complained of appear in support of a submission that the context alters the meaning of the allegedly libellous passages. In the present case I do not understand the Defendants to be maintaining that the context materially affects the interpretation of any of the passages which Mr Irving has selected for complaint.

2.4 I shall therefore confine myself to setting out, with pagination, the passages which Irving contends are libellous of him (as well as highly damaging to his reputation as a serious historian):

Cover and title page:

“Denying the Holocaust The Growing Assault on Truth and Memory”

Page 14: The confluence between anti-Israel, anti-Semitic, and Holocaust denial forces was exemplified by a world anti-Zionist conference scheduled for Sweden in November 1992. Though cancelled at the last minute by the Swedish government, scheduled speakers included black Muslim leader Louis Farrakhan, Faurisson, Irving and Leuchter. Also scheduled to participate were representatives of a variety of anti-Semitic and anti-Israel organisations, including the Russian group Pamyat, the Iranian-backed Hezbollah, and the fundamentalist Islamic organisation Hamas.1

Page 111: Nolte contended that Weizmann’s official declaration at the outbreak of hostilities gave Hitler good reason “to be convinced of his enemies’ determination to annihilate him much earlier than when the first information about Auschwitz came to the knowledge of the world”2[…] When Nolte was criticized on this point in light of prewar Nazi persecution of Jews, he said that he was only quoting David Irving, the right-wing writer of historical works. How quoting Irving justified using such a historically invalid point remains unexplained […]3 As we shall see in subsequent chapters, Irving […] has become a holocaust denier.

These works demonstrate how deniers misstate, misquote, falsify statistics and falsely attribute conclusions to reliable sources. They rely on books that directly contradict their arguments, quoting in a manner that completely distorts the authors’ objectives. Deniers count on the fact that the vast majority of readers will not have access to the documentation or make the effort to determine how they have falsified or misconstrued information.

Page 161:

At the second trial Christie and Faurisson were joined by David Irving, who flew to Toronto in January 1988 to assist in the preparation of Zundel’s second defense and to testify on his behalf. Scholars have described Irving as a “Hitler partisan wearing blinkers” and have accused him of distorting evidence and manipulating documents to serve his own purposes.4 He is best known for his thesis that Hitler did not know about the Final Solution, an idea that scholars have dismissed.5 The prominent British historian Hugh Trevor-Roper depicted Irving as a man who “seizes on a small and dubious part particle of ‘evidence’” using it to dismiss far-more substantial evidence that may not support his thesis. His work has been described as “closer to theology or mythology than to history,” and he has been accused of skewing documents and misrepresenting data in order to reach historically untenable conclusions, particularly those that exonerate Hitler.6 An ardent admirer of the Nazi leader, Irving placed a self-portrait of Hitler over his desk, described his visit to Hitler’s mountaintop retreat as a spiritual experience,7 and declared that Hitler repeatedly reached out to help the Jews.8 In 1981 Irving, a self-described “moderate fascist”, established his own right-wing political party, founded on his belief that he was meant to be a future leader of Britain.9 He is an ultra-nationalist who believes that Britain has been on a steady path of decline accelerated by its decision to launch a war against Nazi Germany. He has advocated that Rudolf Hess should have received the Nobel Prize for his efforts to try to stop war between Britain and Germany.10 On some level Irving seems to conceive himself as carrying on Hitler’s legacy.

[…] Prior to participating in Zundel’s trial, Irving had appeared at IHR conferences […] but he had never denied the annihilation of the Jews.11 That changed in 1988 as a result of the events in Toronto.

Both Irving and Faurisson advocated inviting an American prison warden who had performed gas executions to testify in Zundel’s defense, arguing that this would be the best tactic for proving that the gas chambers were a fraud and too primitive to operate safely. They solicited help from Bill Armontrout, warden of the Missouri State Penitentiary, who agreed to testify and suggested they also contact Fred A. Leuchter, an “engineer” residing in Boston who specialized in constructing and installing execution apparatus. Irving and Faurisson immediately flew off to meet Leuchter. Irving, who had long hovered on the edge of Holocaust denial, believed that Leuchter’s testimony could provide the documentation he needed to prove the Holocaust a myth.12 According to Faurisson, when he first met Leuchter, the Bostonian accepted the “standard notion of the ‘Holocaust’”.13 After spending two days with him, Faurisson declared that Leuchter was convinced that it was chemically and physically impossible for the Germans to have conducted gassings.14 Having agreed to serve as an expert witness for the defense, Leuchter then went to Toronto to meet with Zundel and Christie and to examine the materials they had gathered for the trial.

Page 179:

David Irving, who during the Zundel trial declared himself converted by Leuchter’s work to Holocaust denial and to the idea that the gas chambers were a myth, described himself as conducting a “one man intifada” against the official history of the Holocaust.15

In his forward to his publication of the Leuchter Report, Irving wrote that there was no doubt as to Leuchter’s “integrity” and “scrupulous methods”. He made no mention of Leuchter’s lack of technical expertise or of the many holes that had been poked in his findings. Most important, Irving wrote, “Nobody likes to be swindled, still less where considerable sums of money are involved.” Irving identified Israel as the swindler, claiming that West Germany had given it more than ninety billion deutsche marks in voluntary reparations, “essentially in atonement for the ‘gas chambers of Auschwitz’”. According to Irving the problem was that the latter was a myth that would “not die easily”.16 He subsequently set off to promulgate Holocaust denial notions in various countries. Fined for doing so in Germany, in his court room appeal against the fine he called on the court to “fight a battle for the German people and put an end to the blood lie of the Holocaust which has been told against this country for fifty years.” He dismissed the memorial to the dead at Auschwitz as a “tourist attraction”.17 He traced the origins of the myth to an “ingenious plan” of the British Psychological Warfare Executive, which decided in 1942 to spread the propaganda story that Germans were “using ‘gas chambers’ to kill millions of Jews and other ‘undesirables’.18

Branding Irving and Leuchter “Hitler’s heirs”, the British House of Commons denounced the former as a “Nazi propagandist and long time Hitler apologist” and the latter’s report as a “fascist publication”. One might have assumed that would have marked the end of Irving’s reputation in England, but it did not. Condemned in the Times of London in 1989 as “a man for whom Hitler is something of a hero and almost everything of an innocent and for whom Auschwitz is a Jewish deception”, Irving may have had his reputation revived in 1992 by the London Sunday Times.19 The paper hired Irving to translate the Goebbels diaries, which had been discovered in a Russian archive and, it was assumed, would shed light on the conduct of the Final Solution. The paper paid Irving a significant sum plus a percentage of the syndication fees.*

[Footnote] * The Russian archives granted Irving permission to copy two microfiche plates, each of which held about forty-five pages of the diaries. Irving immediately violated his agreement, took many plates, transported them abroad, and had them copied without archival permission. There is serious concern in archival circles that he may have significantly damaged the plates when he did so, rendering them of limited use to subsequent researchers.

Irving believes Jews are “very foolish not to abandon the gas chamber theory while they still have time.” He “foresees [a] new wave of anti-semitism” due to Jews’ exploitation of the Holocaust “myth”, C.C. Aronsfeld, “Holocaust revisionists are Busy in Britain,” Midstream, Jan. 1993, p.29.

Journalists and scholars alike were shocked that the Times chose such a discredited figure to do this work. Showered with criticism, the editor of the Sunday Times, Andrew Neil, denounced Irving’s view as “reprehensible” but defended engaging Irving because he was only being used as a “transcribing technician”. Peter Pulzer, a professor of politics at Oxford and an expert on the Third Reich, observed that it was ludicrous for Neil to refer to Irving as a “mere technician”, arguing that when you hired someone to edit a “set of documents others had not seen you took on the whole man”.20

However the matter is ultimately resolved, the Sunday Times had rescued Irving’s reputation from the ignominy to which it had been consigned by the House of Commons. In the interest of a journalistic scoop, this British paper was willing to throw its task as a gatekeeper of the truth and of journalistic ethics to the winds. By resuscitating Irving’s reputation, it also gave new life to the Leuchter Report.

Page 181:

A similar attitude is evident in the media reviews of David Irving’s books: Most rarely address his neofascist or denial connections.21

Irving is one of the most dangerous spokespersons for Holocaust denial. Familiar with historical evidence, he bends it until it conforms with his ideological leanings and political agenda. A man who is convinced that Britain’s great decline was accelerated by its decision to go to war with Germany, he is mist facile at taking accurate information and shaping it to confirm his conclusions. A review of his recent book, Churchill’s War, which appeared in New York Review of Books, accurately analyzed his practice of applying a double standard of evidence. He demands “absolute documentary proof” when it comes to proving the Germans guilty, but he relies on highly circumstantial evidence to condemn the Allies.22 This is an accurate description not only of Irving’s tactics, but of those of deniers in general.

Page 213:

As we have seen above, Nolte echoing David Irving, argues that the Nazi “internment” of Jews was justified because of Chaim Weizmann’s September 1939 declaration that the Jews of the world would fight Nazism.

Page 221:

Another legal maneuver has been adopted by a growing number of countries. They have barred entry rights to known deniers. David Irving, for example, has been barred from Germany, Austria, Italy and Canada. Australia is apparently also considering barring him.23

2.5 These are the passages which (to quote Irving’s opening) “vandalised [his] legitimacy as an historian”.

The issue of identification

2.6 It is incumbent on Irving as Claimant to establish that these passages would have been understood by readers of Denying the Holocaust to refer to him. In their statement of case, the Defendants take issue with Irving’s assertion that those passages refer to him.

2.7 To the extent that he is named in the passages cited above, readers would of course have taken them to be referring to Irving. With the exception of the title page, all the passages complained of do make mention of Irving by name. I am satisfied that readers would have understood all those passages to refer to Irving. The Defendants have not sought in the course of the trial to suggest otherwise.

2.8 I add the rider that the assertions, to be found principally at pages 111, 181 and 221, that Irving is a Holocaust “denier” and a spokesperson for Holocaust denial will in my judgment cause readers to understand references to “deniers” elsewhere in the passages complained of as importing a reference to Irving individually. Accordingly I am satisfied that readers of Denying the Holocaust would have understood Irving to be one of those who (to quote from page 111) “misstate, misquote, falsify statistics and falsely attribute conclusions to reliable sources”.

The issue of interpretation or meaning

Irving’s case on meaning

2.9 Of greater substance is the question of what interpretation readers would have placed upon the references to Irving in Lipstadt’s book. The burden rests on Irving to establish that, as a matter of probability, the passages of which he complains are defamatory of him, that is, that the ordinary reasonable reader of Denying the Holocaust would think the worse of him as a result of reading those passages. Irving is further required, as a matter of practice, to spell out what he contends are the specific defamatory meanings borne by those passages.

2.10 The contention of Irving is that the passages in question would in their natural and ordinary meaning (that is, without imputing any special extraneous knowledge to the reader) have been understood to bear the following defamatory meanings:

(i) that the (Claimant) is a dangerous spokesman for Holocaust denial forces who deliberately and knowingly consorts and consorted with anti-Israel, anti-Semitic, and Holocaust denial forces and who contracted to attend a world anti-Zionist conference in Sweden in November 1992 thereby agreeing to appear in public in support of and alongside violent and extremist speakers including representatives of the violent and extremist anti-Semitic Russian group Pamyat and of the Iranian backed Hezbollah and of the fundamentalist Islamic organisation Hamas and including the black Muslim minister Louis Farrakhan, born Louis Eugene Walcott, who is known as a Jew-baiting black agitator, as a leader of the U.S. Nation of Islam, as an admirer of Hitler and who is in the pay of Colonel Muammar Gaddafi;

(ii) that the (Claimant) is an historian who has inexplicably misled academic historians like Ernst Nolte into quoting historically invalid points contained in his writings and who applauds the internment of Jews in Nazi concentration camps;

(iii) that the (Claimant) routinely perversely and by way of his profession but essentially in order to serve his own reprehensible purposes ideological meanings and/or political agenda

• distorts accurate historical evidence and information
• misstates
• misconstrues
• misquotes
• falsifies statistics
• falsely attributes conclusions to reliable sources
• manipulates documents
• wrongfully quotes from books that directly contradict his arguments in such a manner as completely to distort the their authors’ objectives and while counting on the ignorance or indolence of the majority of readers not to realise this;

(iv) that the (Claimant) is an Adolf Hitler partisan who wears blinkers and skews documents and misrepresents data in order to reach historically untenable conclusions specifically those that exonerate Hitler;

(v) that the (Claimant) is an ardent admirer of the Nazi leader Adolf Hitler and conceives himself as carrying on Hitler’s criminal legacy and had placed a self-portrait of Hitler over his desk and has described a visit to Hitler’s mountain-top retreat as a spiritual experience and had described himself as a moderate fascist;

(vi) that before Zundel’s trial began in 1988 in Toronto the (Claimant), compromising his integrity as an historian and in an attempt to pervert the course of justice, and one Faurisson wrongfully and/or fraudulently conspired together to invite an American prison warden and thereafter one Fred A. Leuchter an engineer who is depicted by the Defendants as a charlatan to testify as a tactic for proving that the gas chambers were a myth.

(vii) That the (Claimant) after attending Zundel’s trial in 1988 in Toronto having previously hovered on the brink now denies the murder by the Nazis of the Jews;

(viii) That the (Claimant) described the memorial to the dead at Auschwitz as a “tourist attraction”.

(ix) That the (Claimant) was branded by the British House of Commons as “Hitler’s heir” and denounced as a “Nazi propagandist and long time Hitler apologist” and accused by them of publishing a “fascist publication” and that this marked the end of the (Claimant’s) reputation in England.

(x) That some other person had discovered in a Russian archive in 1992 the Goebbels diaries and that it was assumed that these would shed light on the conduct of the Final Solution but that the (Claimant) was hired and paid a significant sum by the London Sunday Times to transcribe and translate them although he was a discredited and ignominious figure and although by hiring the (Claimant) the newspaper threw its task as a gatekeeper of the truth and of journalistic ethics to the winds and thereby increased the danger that the (Claimant) would in order to serve his own reprehensible purposes misstate, construe misquote falsify distort and/or manipulate these sets of documents which others had not seen in order to propagate his reprehensible views and that the (Claimant) was unfit to perform such a function for this newspaper.

(xi) That the (Claimant) violated an agreement with the Russian archives and took and copied many plates without permission causing significant damage them and rendering them of limited use to subsequent researchers.

2.11 Irving contends in the alternative that the passages bear by innuendo, that is, by virtue of extrinsic facts which would have been known to readers or to some of them, the meaning that he is a person unfit to be allowed access to archival collections and that he is a person who should properly be banned from foreign countries. The extrinsic facts on which he relies in support of the innuendo meanings are in essence as follows:

(i) that a Holocaust denier is someone who wilfully, perversely and in disregard of the evidence denies the mass murder by whatever means of the Jewish people;

(ii) that Hezbollah is an international terrorist organisation whose guerillas kill Israeli civilians and soldiers;

(iii) that Hamas is an Islamic fundamentalist terrorist organisation

In support of his argument that readers of the book would have known these extrinsic facts Irving produced a collection of press cuttings, which, I am satisfied, establish the extrinsic facts on which he relies.

The Defendants’ case on meaning

2.12 The Defendants are also obliged to set out the defamatory meanings which they contend are borne by the passages in question (and which they seek to justify). These meanings are set out in paragraph 6 of their Defences in the following terms:

(i) that the (Claimant) has on numerous occasions (in the manner hereinafter particularised) denied the Holocaust, the deliberate planned extermination of Europe’s Jewish population by the Nazis, and denied that gas chambers were used by the Nazis as a means of carrying out that extermination;

(ii) that the (Claimant) holds extremist views, and has allied himself with others who do so, including individuals such as Dr. Robert Faurisson, and Ernst Zundel;

(iii) that the (Claimant), driven by his obsession with Hitler, distorts, manipulates and falsifies history in order to put Hitler in a more favourable light, thereby demonstrating a lack of the detachment, rationality and judgement necessary for an historian;

(iv) that there are grounds to suspect that the (Claimant) has removed certain microfiches of Goebbels’ diaries contained in the Moscow archives, from the said archives without permission; and that the (Claimant) lied and/or exaggerated the position with regard to the unpublished diaries of Goebbels on microfiche contained in the Moscow archives, and used by him in the Goebbels book;

(v) that in all the premises, the (Claimant) is discredited as an historian and user of source material, and that there was an increased risk that the (Claimant) would for his own purposes, distort, and manipulate the contents of the said microfiches in pursuance of his said obsession.

Approach to the issue of meaning

2.13 For the purpose of deciding this issue, it matters not what Lipstadt intended to convey to her readers; nor does it matter in what sense Irving understood them. I am not bound to accept the contentions of either party. My task is to arrive, without over-elaborate analysis, at the meaning or meanings which the notional typical reader of the publication in question, reading the book in ordinary circumstances, would have understood the words complained of, in their context, to bear. Such a reader is to be presumed to be fair-minded and not prone to jumping to conclusions but to be capable of a certain amount of loose thinking24.

Conclusion on meaning

2.14 I shall set out my findings as to the defamatory meanings borne by the passages complained of. In doing so, I will not allocate separate meanings to the individual passages selected for complaint because it is to be assumed that the reader’s understanding as to what is being conveyed about Irving will be derived from his or her reading of the book as a whole including the passages to which objection is taken. I do not believe that it is necessary or desirable to set out the meanings in the order in which it may be said that they emerge in the book.

2.15 Adopting the approach set out earlier, my conclusion is that the passages complained of in their context and read collectively bear the following meanings all of which are defamatory of him:

i. that Irving is an apologist for and partisan of Hitler, who has resorted to the distortion of evidence; the manipulation and skewing of documents; the misrepresentation of data and the application of double standards to the evidence, in order to serve his own purpose of exonerating Hitler and portraying him as sympathetic towards the Jews;

ii. that Irving is one of the most dangerous spokespersons for Holocaust denial, who has on numerous occasions denied that the Nazis embarked upon the deliberate planned extermination of Jews and has alleged that it is a Jewish deception that gas chambers were used by the Nazis at Auschwitz as a means of carrying out such extermination;

iii. that Irving, in denying that the Holocaust happened, has misstated evidence; misquoted sources; falsified statistics; misconstrued information and bent historical evidence so that it conforms to his neo-fascist political agenda and ideological beliefs;

iv. that Irving has allied himself with representatives of a variety of extremist and anti-semitic groups and individuals and on one occasion agreed to participate in a conference at which representatives of terrorist organisations were due to speak;

v. that Irving, in breach of an agreement which he had made and without permission, removed and transported abroad certain microfiches of Goebbels’s diaries, thereby exposing them to a real risk of damage.

vi. that Irving is discredited as an historian.

2.16 I add two comments in relation to the meanings which I have found. The first is that I do not accept the contention of Irving that the passage at p14 of the book means that he supports violent groups. But I do consider that passage to be defamatory of him in suggesting that he agreed to take part in a meeting at which representatives of such groups would be present. My second comment is that I do not accept that the reference to Irving at p213 of the book, when read in the context of the other references to him, bears the meaning that he applauds the internment of Jews in Nazi concentration camps.