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Subject: Irving v. Penguin & Lipstadt: Judgment II
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Keywords: David Irving libel action Deborah Lipstadt


Archive/File: people/i/irving.david/libel.suit/judgment-02.01
Last-Modified: 2000/04/11

II. THE WORDS COMPLAINED OF AND THEIR MEANING

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.

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" [.] 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 [.] 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.

He is best known for his thesis that Hitler did not know about the Final
Solution, an idea that scholars have dismissed. 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. 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, and declared
that Hitler repeatedly reached out to help the Jews. 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. 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.

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.
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. According to
Faurisson, when he first met Leuchter, the Bostonian accepted the
"standard notion of the 'Holocaust'". 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.
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.

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". 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". 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'.

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. 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".

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.

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 most 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. 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.

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;

(i) 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;

(i) 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;

(i) 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;

(i) 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;

(i) 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.

(i) 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;

(i) That the (Claimant) described the memorial to the dead at Auschwitz
as a "tourist attraction".

(i) 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.

(i) 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.

(i) 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;

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

(i) 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;

(i) 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;

(i) 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;

(i) 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;

(i) 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
thinking .

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;

i. 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;

i. 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;

i. 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;

i. 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.

i. 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.

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