Archive/File: people/i/irving.david/libel.suit/transcripts/day026.15 Last-Modified: 2000/07/25 MR IRVING: In my submission, if the Defendants intend to cross-examine me in any great detail on either my opinions or state of mind or correspondence or speeches or activities, it is perfectly entitled to go to any associations I have had with violent extremists who are . P-132 not many, if I can put it like that. MR JUSTICE GRAY: Why not non-violent extremists? MR IRVING: My Lord, non-violent extremism is not defamatory, if I can put it that way round. If I were to associate with somebody who held extremist views, this would not be in the least bit reprehensible. I could associate, for example, with Lawton LJ or with Cumming-Bruce LJ who both held extreme political views in the 1930s, but nobody hold it the least bit against me if I were to associate them now because of course I believe they sit next to each other in the Court of Appeal. So holding extreme views has never been held to be reprehensible. I think this has been established in law, that it is not defamatory to call somebody a communist. It is not defamatory, unfortunately, to call somebody a Nazi or a fascist except in certain circumstances. The context can sometimes make it defamatory, but per se it is not actually defamatory as such to accuse somebody of having extremist views. MR JUSTICE GRAY: I am not sure about that. I think it may be defamatory of somebody to say that he or she consorts or associates with what you might call extreme extremists, i.e., really the lunatic fringe of extremist because. MR IRVING: Without any question, if the extremism is expressed in violence. MR JUSTICE GRAY: Let me just finish, because, and this is what we call the sting of the libel, you are being, to put it . P-133 mildly, careless in your choice of friends. That is the way in which I think it becomes defamatory to make that kind of allegation. MR IRVING: Careless in their choice of friends, probably all of us is careless in their choice of friends, my Lord, and I would not consider that to be a very severe libel at all. MR JUSTICE GRAY: It may not be the most severe libel, but the question we are on at the moment is whether it is defamatory at all. MR IRVING: The real defamation here, and if we are looking for a scale of defamation, the sting of the libel is that I associate with people who are violently extremist, who express their extremism by violent means and whose extremism goes towards the overthrow of the democratic rule of law or the overthrow of governments. That is allegation that is made in the allegation that I consort with Hamas or Hesbollah or terrorists leaders, that I am willing to go on the same platform with them and speak next to somebody like Louis Ferikan. That is the sting of the libel, and to use that as a door to open my private files to the exposure of the public, to suggest, well, he has also got all sorts of other sleezy and unsavoury friends or associates, whether it is true or false, is I think highly prejudicial. MR JUSTICE GRAY: I think you are making two different points, . P-134 if I may say so. The first question is whether it is defamatory at all to say that you consort with extremists, leave aside what sort of extremists they are, and, as I understand it, the second argument you make is that what actually Professor Lipstadt wrote is that you consort with a particular kind of extremist, namely violent extremists, and that the Defendant's particulars of justification do not really include those sorts of extremists; they include other extremist but not the violently sort like Hesbollah. Is that a fair summary of the way you put it? MR IRVING: Your Lordship has summarized eminently well. It was precisely the point I was going to make, and I was only going to draw your Lordship's attention to the authorities given by Gatley. MR JUSTICE GRAY: Do you mind before we go to that, just remind, because I did not at lunch time take with me the Defendants' Summary of Case, to see how exactly they summarize their ---- MR IRVING: I am sure Mr Rampton will. MR JUSTICE GRAY: I would rather -- not "rather", that would not be right to say at all, but I think it is helpful to look at this stage at the written document. MR IRVING: What I am asking your Lordship to do is to issue a ruling to the Defendants on how far their cross-examination can go, and what kind of associates or associations or what kind of consorting they are entitled . P-135 to cross-examine on, to have it go into the issues as pleaded. MR JUSTICE GRAY: Yes. The summary: "The Plaintiff", you, "are associated with right-wing extremists and right- wing extremist groups in Germany, Britain and North America. You have regularly spoken at events organised by right-wing extremist groups, sharing a platform with other right-wing extremists. You are a right-wing ideologue whose participation in public affairs have been part of and has assisted in the cause of Holocaust denial." The last sentence is not relevant. But you are saying that is not a defamatory meaning at all? MR IRVING: I am inclined to use the words "so what?" Even if true, so what? Even if it was true that I associate with right-wing organized bodies or whatever it is, are they kind of bodies that advocate the use of extreme violence? MR JUSTICE GRAY: We must take this in stages. Are you saying that that assertion is not a defamatory assertion at all to be making about you? MR IRVING: No, I do think so, my Lord. I think your Lordship would agree, although I may be arguing against myself, it is not defamatory for somebody to be called an extremist or to say somebody holds extreme views, that is not really, in law, defamatory. MR JUSTICE GRAY: So that is your first submission. MR IRVING: Yes, and to say someone holds right-wing views is . P-136 not defamatory, except in certain circumstances. Obviously if he was in the Soviet Union, then he would probably be defamatory. MR JUSTICE GRAY: In some way you could put your case higher. They are not saying you are an extremist, well, in this part of the case. They are saying you associate with these right-wing extremists. Do you follow the difference? MR IRVING: I would confidently expect your Lordship to say we do not have any guilt by association in this country. MR RAMPTON: I think it only right to remind your Lordship of the summary, because one cannot take this little summary at the beginning ---- MR JUSTICE GRAY: There is another one at the end. MR RAMPTON: There is one at the end in box 80 on page 27 which is really perhaps the nub of it. MR JUSTICE GRAY: Yes. Shall I remind you of that, Mr Irving? MR RAMPTON: I am bound to say I think that is highly defamatory. MR JUSTICE GRAY: "Claimant is a right-wing pro-Nazi ideologue, as is demonstrated by the views you have expressed in speeches and publications". MR IRVING: That is something different. MR JUSTICE GRAY: That is saying you are a right-wing ideologue, and then the Defendants say they will refer to the anti-Semitic racist and misogynistic tone and content . P-137 of your speech in publications. MR IRVING: That is again something different. MR JUSTICE GRAY: "Including those referred to above". With respect to Mr Rampton, I think that is a slightly different point. That is directing the allegation at you personally. MR IRVING: I can meet that one head on. I have no problem with that. MR JUSTICE GRAY: I think maybe your concern is more about what you would describe as "guilt by association". MR IRVING: Guilt by association for which there is no place in an English court of law, my Lord. MR JUSTICE GRAY: That depends on the case. As to whether it is defamatory, my present view is that it is defamatory, at all events in the context of this case, to say that you associate with right-wing extremists. Try to dissuade me from that view if you want to, but I think in the context of this case that is probably is defamatory. MR IRVING: I have to say that to associate with people who hold right-wing views is not defamatory. To associate with people who hold extreme views, and I gave the example Lawton LJ as one example, is also not defamatory. The allegation, the implication, innuendo is that I associate people like the Hamas or Halbollah's terrorist leaders or with Jerry Adams, to put it into an English context, somebody like that, who would advocate the use of violence . P-138 or applaud the use of violence. Of course, for that there is not the slightest evidence. I would ask your Lordship, therefore, to direct that the cross-examination should go only to any associates of mine whom they can adduce who have advocated violence or advocated the overthrow of governments by violent means or that kind of extremism. MR JUSTICE GRAY: You are on a separate point at the moment. Just to complete the first argument that you are advancing, would you not accept that if the Defendants were able to adduce evidence that you were sitting there on a platform, where others sharing the platform with you and maybe participants from the floor are expressing themselves in the most rabidly and repulsively anti-semitic way, to make that allegation against you could be defamatory of you. It is a hypothetical case. MR IRVING: If they could establish that, yes. MR JUSTICE GRAY: Yes. It is all a question of degree in a way. MR IRVING: It is a question of what is meant by "extremism" I think. I think "extremism" in the eyes of the libel courts has always been the extent of extremism towards unlawful ends or unlawful means. That is what the innuendo is. MR JUSTICE GRAY: You wanted to go to Gatley in this connection? MR IRVING: I was going to draw your attention to note 88 of . P-139 page 43 of Gatley, where it does make the distinction, the last three or four lines of that note,, after referring to Devlin's L own ruling, it says: "See Boater v. Moray ", and the brief summary is: "Not all communists' methods and techniques are reprehensible", in other words, calling somebody a communist alone is not necessarily defamatory. But then it points out that in Butalazi the advocacy of violent change is the kind extremism which is held to be defamatory. MR JUSTICE GRAY: Yes. In a way that rather suggests it is all a question of degree. MR IRVING: It is a question of degree, my Lord, and in view of the fact that the Second Defendant specifically instanced Hamas, Hesbollah -- and I know they are putting that in Section 5, but I am certainly not -- that is what worries me. MR JUSTICE GRAY: I think you are slightly moving on to your next argument, which is that the sting of the libel actually published by the Defendants is that you associate with these sorts of violent extremists, and that the evidence they are apparently wanting to call does not really link you with violence, although it may link you with extremism. That is your second point. MR IRVING: It may satisfy the court of course to the contrary, that I am linked with violent extremists. It may be that . P-140 is what the intention is. That is why I would ask your Lordship to rule that unless they can produce that evidence or cross-examine on that kind of evidence, then they should limit their cross-examination purely to that kind of association, otherwise we do go into day after day of looking at isolated relationships or happening to be in the same room or whatever, which is very unsatisfactory I think.
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