Turning ‘Cranks into Martyrs’: Free Speech Law, Holocaust Denial, and Victim Narratives after Irving v. Lipstadt

            In the landmark 2000 British court case Irving v. Penguin Books and Lipstadt, author David Irving sued Professor Deborah Lipstadt for libel.  Irving, who considers himself a “revisionist historian,” sued Lipstadt for defaming him in her book Denying the Holocaust – The Growing Assault on Truth and Memory.  Passages from this book cited by Irving include, among others: (1) the claim that he “has become a Holocaust denier” (Lipstadt 111, as cited in Gray, “Judgments”), (2) that “he has been accused of skewing documents and misrepresenting data in order to reach historically untenable conclusions, particularly those that exonerate Hitler” (Lipstadt 161, as cited in Gray), (3) that he “promulgate[s] Holocaust denial notions in various countries,” (Lipstadt 171, as cited in Gray), (4) that he has “neofascist or denial connections” (Lipstadt 181, as cited in Gray), and (5) that he has a “ practice of applying a double standard of evidence” in his research about WWII (Lipstadt 181, as cited in Gray).

            Key points of the trial included discussions of Irving’s treatment of a wide variety of historical evidence in his work on WWII, a working definition of the term “Holocaust denier” and whether Lipstadt’s use of it could be appropriately applied to Irving, and questions of Irving’s motivations, including allegations that he frequently had associated with anti-Semites, racists, and right wing extremists.  When we consider the evidence brought forth by the defense and the broader social context in which this trial takes place, however, it becomes clear that this is more than just a basic libel case.  Read together with the Canadian trials of Ernst Zündel (for publishing the booklet Did Six Million Really Die?), Irving v. Lipstadt is arguably the closest that the world has ever come to a final authority regarding evidence for the Holocaust.  

            Ironically, Irving played an important part in determining just how authoritative his case would be.  A crucial feature of this trial and its significance within a broader context is that Irving chose to file it in a British court: had Irving v. Lipstadt been published in the United States, burden of proof would have fallen upon Irving to prove that Lipstadt committed libel; however, under British law, burden of proof fell upon Lipstadt to prove that she didn’t.  Now, given the weight of evidence presented by Lipstadt’s defense team, it is presumable that an American court would have also found in her favor; however, the fact that the burden of proof fell upon Lipstadt required her to produce a very large and supported body of evidence demonstrating that the Holocaust actually happened.

            Since the book already had circulated in the U.S. before making its way to the U.K., Irving’s decision to file this case in a British court suggested that he thought he had a better shot if he didn’t have the burden of proof.  Consequently, as Lipstadt pointed out in a subsequent address at Loyola University, the stakes became much higher:

[I]f I didn’t fight Irving he would’ve won by default. And had he won by default . . . he didn’t have to do anything, he wins. In which case, David Irving could then say, "Because Deborah Lipstadt was found guilty of having libeled me by calling me a Holocaust denier, ipso facto I’m not a Holocaust denier, and therefore my, David Irving’s explanation or arguments about the Holocaust are true, they’re not denial” (Lipstadt, Ethical Challenge).

However, Irving’s decision to bring this case to British court backfired on him.  After thirty-two days of deliberation, Judge Charles Gray sided with the defendants on virtually all counts.  In his words:

(1) Irving had “significantly misrepresented . . .  the historical evidence in a manner which fell far short of the standard to be expected of a conscientious historian” (2) it was “incontrovertible that Irving qualifies as a Holocaust denier,” (3) Irving had maintained a “willingness . . . to misrepresent or manipulate or put a ‘spin’ on evidence so as to make it conform with his own preconceptions,” (4) “Irving was motivated by a desire to present events in a manner consistent with his own ideological beliefs,” and (5) Irving “is anti-[S]emitic and racist and that he associates with right wing extremists who promote neo-Nazism” (Gray, Judgments).

Judge Gray’s ruling dealt a significant blow not only to Irving’s reputation, but also to the reputations of those who would share his ideas and beliefs.

            Based on the judge’s ruling and the significant amount of evidence brought forth by Lipstadt and her team of witnesses, it seemed like the trial would have been capable of bringing closure to Irving’s reputation as an historian and the question of Holocaust denial.  However, this has not been the case.  Although Irving declared bankruptcy in 2002, was arrested in 2005 in Austria, has been banned from several countries, and has had people cancel his events, he “continues to tour, raise money and convene annual ‘Real History Conferences’ . . . [and] remains one of the world's most effective purveyors of Holocaust denial” (ADL).  Several other big names (Ernst Zündel, Robert Faurisson) have been arrested for violating Holocaust denial laws, many of whom still preach Holocaust denial upon release.  On top of that, even world leaders like Mahmoud Ahmedinejad have espoused Holocaust denial in public.  So the fact remains that ten years after Irving v. Lipstadt, Holocaust denial is alive and well.   

            One interesting feature of Holocaust denial after Irving v. Lipstadt is that leading figures tend to rely heavily on an underlying narrative of victimhood, particularly as it relates to Holocaust denial laws.  For example, in 2003, Mark Weber of the Institute for Historical Review (IHR), a “revisionist historian” group, called Ernst Zundel “a political prisoner and a victim of great injustice.”  Additionally, the Committee for Open Debate on the Holocaust (CODOH) maintains a “Thought Crime” archive, which documents arrests of prominent Holocaust deniers juxtaposed with a gruesome image of Robert Faurisson after he was attacked in 1989 and quotes from George Orwell about the drawbacks of censorship.  There seem to be two interrelated themes running through this narrative: the first is that Holocaust deniers are victims of oppression from a financially supported (read: Jewish) international conspiracy to silence them; the second is that, as victims of this conspiracy who are not allowed to express their views, they should be taken more seriously because challenging mainstream opinions is a necessary and worthy feature of public discourse.  While I am not yet sure if this victim narrative has become more emphasized since Irving v. Lipstadt, it seems plausible that this would be the case, and I am interested in exploring how the narrative operates in detail. 

            Unfortunately, I haven’t been able to find a lot of theory about victim narratives and conspiracy theories yet.  If anyone has suggestions, it would really help.

            Meanwhile, the existence of Holocaust denial a decade after Irving v. Lipstadt raises some interesting questions.  The biggest ones seem to be whether Holocaust denial has changed at all in the last ten years, and, if so, if we should change how we respond to it.  Not everyone agrees on the answers.  Many nations have responded to Holocaust denial with the passing of free speech laws, most of which were passed before Irving v. Lipstadt.  Others, like the United States, have permitted it under the protection of free speech.  Furthermore, with the rise of technology, much of Holocaust denial has shifted to the internet and is therefore much harder to regulate.  At the same time, allowing these views to permeate unregulated and uncensored can be dangerous for a number of reasons.  All of this makes me wonder what actions, if any, should be taken to minimize Holocaust denial.     

            Lipstadt proposes an interesting response to these questions as they relate to the notions of victimization and publicity.  As Lipstadt recounts, many people suggested letting the case go to avoid “giving [Irving] the oxygen he craves: publicity” (Lipstadt, “Ethical Challenge”).  Lipstadt appears to have agreed with the sentiment behind comments like these, but, because the burden of proof fell upon her, she knew she needed to go to court.  Nevertheless, throughout the trial and its aftermath, she consistently expressed a concern that actions that she or others might take could grant Irving the opportunity to victimize himself and those who share his viewpoints in the eyes of the public.  

            Irving’s comments during the trial validate her concerns.  In his opening statements on the case, for example, Irving refers to the effort of “an organized international endeavor” (Gray, Day 1, 21) with “limitless financial resources” (59) to “exclude [him] . . . from publishing further works of history” (53) and “destroy his legitimacy, the economic existence upon which his family depends” (49).  Lipstadt did not want to validate this narrative, which is, as we have seen, still used by the IHR and CODOH today.

            Oddly enough, it is because of this concern that Lipstadt advocated Irving’s release from an Austrian prison when he was arrested and convicted for violating the country’s Holocaust denial laws in a 1989 speech.  In a 2006 article, Lipstadt told the BBC that she “generally . . . [does not] think Holocaust denial should be a crime” (O’Neill).  She further clarified that she generally opposes censorship laws because they “[turn] Holocaust denial into forbidden fruit” and implied that they turn “cranks into martyrs” (O’Neill).  “Nothing is served by having David Irving in a jail cell” she said, “except that he has become an international news issue” (O’Neill).  In other words, she believes that Holocaust denial laws, for the most part, help deniers give credence to the victimhood narrative.

            Lipstadt’s philosophy here ties into the much broader discussion about the censorship of free speech.  On the one hand, unrestricted free speech allows people like Irving and others to make fallacious, offensive, or otherwise harmful claims.  On the other hand, strong censorship inhibits creativity, expression of unpopular viewpoints, and challenges to authority.  Somewhere in the middle lies a balance, yet to determine what should and should not be censored is often a complicated and murky task.

            What I hope to examine here is how laws that prohibit Holocaust denial (in Germany, France, Austria and elsewhere) have operated: What led to their enactment, especially considering that many of them were not passed until the 1990s? How have they been enforced? Who has been jailed and eventually released under these laws? (I already know of the arrests of David Irving, Ernst Zündel, and Robert Faurisson, but I’m wondering if there are others I should pay attention to). What do these people have to say upon their release, and how might their statements help us understand more about the laws, their intended purpose, and their effects? In other words, do the people sentenced under these laws actually change their attitudes and beliefs after paying a fine or sitting in prison, or does the enforcement of these laws merely give them fuel to construct or reinforce narratives of victimhood?

Works Cited

Anti-Defamation League (ADL).  “David Irving.”  adl.org.  n.d.  Web.  30 Sept. 2010. http://www.adl.org/learn/ext_us/irving.asp?LEARN_Cat=Extremism&LEARN_SubCat=Extremism_in_America&xpicked=2&item=irving.

Center for Open Debate on the Holocaust (CODOH).  "Thought Crimes."  codoh.com.  n.d.  Web.  02 October 2010.  

http://www.codoh.com/thoughtcrimes/thoughtcrimes.html

Gray, Charles.  “Day 1”  Holocaust Denial on Trial, Trial Transcripts: Electronic Edition. Lewis H. Beck Center for Electronic Collections and Services, Emory University, 11 Apr. 2000.  Web.  29 Sept. 2010.  http://hdot.org/en/trial/transcripts/day01. 

Gray, Charles.  “Judgment.”  Holocaust Denial on Trial, Trial Judgment: Electronic Edition.  Lewis H. Beck Center for Electronic Collections and Services, Emory University, 11 Apr. 2000.  Web.  29 Sept. 2010.  http://hdot.org/en/trial/judgement. 

Lipstadt, Deborah E. (1993). Denying the Holocaust: the growing assault on truth and memory. New York: Plume. As cited in Gray.

Lipstadt, Deborah E. “The Ethical Challenge Posed by Holocaust Denial.”  Loyola University. New Orleans, LA.  Atlanta, GA: Emory University.  Rabbi Donald A. Tams Institute for Jewish Studies.  Web. 25 Sept. 2010.  http://hdot.org/en/learning/podcasts/lipstadt.  

 

O’Neill, Brendan.  “‘Irving?  Let the guy go home.’”  BBC News 4 Jan. 2006.  Web.  22   Sept.    2010.  http://news.bbc.co.uk/2/hi/uk_news/4578534.stm. 

Weber, Mark.  “Who is Ernst Zundel, and Why is He in Jail?”  Institute for Historical Review (IHR).  23 September 2003.  Web.  1 Oct. 2010.             http://www.ihr.org/news/030923Zundel.shtml.