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Shofar FTP Archive File: people/i/irving.david/libel.suit//transcripts//day026.15

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
   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 [1974]", 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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