Irving's War: first you read the instructions

by Yale F. Edeiken


Despite what you see in the movies, lawsuits are not won when an attorney gets up and makes his final argument to the jury. They are not won when the evidence is given. They are not even won when the jury is chosen. Lawsuits might be lost at those times, but they cannot be won. Lawsuits are won before the doors of the courtroom are even unlocked for the trial. They are won by careful preparation before the trial, including the formulation of a realistic theory of the case and the development of evidence that will win.

The case itself was an action for defamation against Professor Deborah Lipstadt of Emory University for statements made in her book Denying the Holocaust (1993). In this work, a history of the movement that denies that the Holocaust occurred, David Irving is mentioned several times as a person who denies the Holocaust and as a frequent speaker before neo-Nazi and anti-Semitic groups. Based upon these allegations, and the facts Professor Lipstadt used to make her argument, Irving filed a lawsuit in British courts to recover damages to his reputation and enjoin the publication of Lipstadt' s book in Great Britain. Irving has also filed a similar lawsuit against journalist and author Gitta Sereny for similar statements about him and has threatened lawsuits against others including Professor John Lukacs for his work The Hitler of History (1997). Professor Lipstadt and Penguin Books, her publisher in England, defended the lawsuit on a defense of "justification" under British law.

David Irving lost his case against Deborah Lipstadt - and make no mistake, he has lost it - not when the judge announced the final decision or when he made a fiasco of his closing argument but through a series of crucial errors before the trial even began. One of the most crucial of those failures was the moment when Irving dropped his pile of papers on the desk of a clerk and began his lawsuit. Relying on myths and ignorance, he chose the wrong place in which to bring it and paid dearly for that error.

David Irving had a clear choice as to where to file his lawsuit against Deborah Lipstadt. He could file his case in Great Britain, his prime residence, or at any of a number of state or federal jurisdictions within the United States. Even though there were many good reasons why the United States should have been chosen for the lawsuit, Irving chose to file in Great Britain. The numerous advantages of filing in the United States range from procedural and technical to the manner in which substantive legal issues are handled. They range from the fact that Irving could have obtained competent counsel at no cost to the possibility of adding the parties which Irving claimed were part of the "conspiracy" against him over which British courts did not have jurisdiction. Even the technical manner in which the evidence was presented to the court would have favored him.

Two examples should suffice. Irving evidently thought that the climax of the case would be his cross-examination of Professor Lipstadt. It is evident that he saw it as a confrontation between him and the professor who does not even deign to admit that Irving has standing to engage in a debate on the Holocaust. He thought of himself as another Darrow reducing his opponent to a stuttering wreck as Darrow did to Bryan at the Scopes Trial. Had he been able to do this he would have won his case in the public eye no matter what the final verdict, just as few now realize that Scopes was convicted.

That confrontation never happened. It never happened because Irving decided to bring his lawsuit in Great Britain. Under British law a defendant cannot be compelled to testify. Professor Lipstadt's defense was allowed to insulate her from that confrontation and, thereby, change the frame of reference of the case. The focus of the trial was not on the defendant but on Irving's battles with the "establishment" and the confrontation became not Irving versus Professor Lipstadt but Irving versus the historians of the world. Irving complained bitterly both in court and out about this impeccable legal strategy, but there was nothing he could do but vent his obvious frustration that the defense was not playing his game. In a civil trial in the United States a defendant can be called to the stand by the plaintiff on cross-examination. By filing in the United States Irving could have guaranteed the direct confrontation with his adversary he craved.

A second example was that Irving was never able to establish his theory of the case, the very theme of the trial. Irving wanted to present himself as the victim of a conspiracy to falsely destroy his reputation as an authority on Hitler and World War II. He saw this case as a platform to attack not only Professor Lipstadt but the various groups, Jewish and non-sectarian, which had heaped scorn upon him and his work. But these groups were not sitting in the courtroom. Almost all of those who he named as co-conspirators were not subject to British law. Even the few that were could not be brought into the court-room as, under British law the only issue before the court was whether Professor Lipstadt had defamed Irving in Denying the Holocaust. As a result, when David Irving filed a written submission of his final argument to the court - a large portion of which concerned the "conspiracy" - Judge Gray squelched this line of argument in this exchange:

MR JUSTICE GRAY: I think I will give you a bit of guidance because, having read yesterday's 56 pages, and I do not say this critically but it did appear to me that there was a great deal on the topic about which you obviously feel passionately, namely what you see as being a conspiracy to bring your career as an author to a premature end. Those are not your words, I appreciate.

MR IRVING: I astutely avoided that word.

MR JUSTICE GRAY: No, but there is an awful lot on that topic. Much of it did not appear to me to have anything to do with the Defendants. You may take a different view, but I am not sure that the evidence suggests that the Defendants are as involved with all the things of which you are complaining as you suggest. I, therefore, rather doubt whether it would be appropriate for you to use this court as a platform for what one might call a general attack on the conspirators, as you regard them.

Under American law alternate causes of action could have been pleaded and those other defendants could have been in court. As it was, Irving's claim of a vast, world-wide conspiracy against him was nothing more than a final appeal to the bedraggled fanatics of his claque.

The lawsuit itself was a dubious matter in whatever forum Irving had chosen. As Judge Gray states, Irving definitely oversold the evidence that he could produce as to the existence of a conspiracy. In fact, Irving failed utterly, as Judge Gray noted, to demonstrate either that a conspiracy existed or that the defendants were part of that conspiracy. These were elements that Irving had to prove in order to prevail. Further the defense was able to turn the tables, putting Irving on the defensive throughout the trial, an almost impossible position for a plaintiff in an action for defamation. These mortal wounds upon his case would have been inflicted in the courts of either the United States or Great Britain. If Irving had wished to have even a slim chance of winning his lawsuit - probably only possible if the defense self-destructed - that chance was much larger in the United States than in Great Britain simply because his discovery would have been given more latitude.

The crucial decision to bring this action in Great Britain was no accident; it is the determined policy of David Irving. He has, for example, threatened Professor John Lukacs with just such a lawsuit if The Hitler of History is published in Great Britain. The question, then, is not whether Irving has decided to bring his actions in Great Britain but why he made that decision. It is here that Irving can be seen to have acted on emotion rather than reason. Irving claims that he filed in Great Britain because of the legal situation in the United States. That rationale depends on Irving's misconceptions of the American law of defamation.

One would expect, that a litigant - especially one like Irving who claims to be totally ignorant of the law - would at the least consult competent counsel prior to taking any action. Competent counsel is required to explain the legal dangers and pitfalls of a cause of action and point out the technical realities of the courtroom. As will be made clear, Irving's decision to file in Great Britain was apparently based upon an incomplete understanding of American law and a woeful ignorance of the advantages he could have had in an American court.

To explain his decision Irving has repeatedly claimed that the famous case of "New York Times v. Sullivan" would have precluded recovery in the United States. The odd claim that no action in defamation can be brought by a "public figure" was reiterated by Irving in a recent interview on Court-TV after the evidence was complete and his mistake evident, when he said:

"I'm going after Lipstadt because she's peddling her book in England; in the U.S. she is protected by NY vs. Sullivan, by the First Amendment..."

A more colorful explanation of this ignorant view of American law can be found on the internet site of Raeto West, who serves as a Charlie McCarthy to Irving's Edgar Bergen where this rather bizarre and illogical explanation is presented:

"Libel law in America appears to be influenced by New York Times vs Sullivan. Or something like that; the actual case perhaps hardly matters. This trial would be thrown out in the US, because nobody in the public eye can take action for defamation: if you were to start a libel case, you thereby put yourself into the public eye, and therefore have no case. My guess is that such a ruling, presented as a liberal reform (e.g. presumably you can say 'McNamara is a war criminal' without being sued) in fact allows the American mass media to broadcast or print any rubbish without any possibility of redress."

Even if Irving does not sink as deep in his ignorance as West, his position is so gross a misstatement of American law that it is clear that either Irving failed to consult an American lawyer, ignored the advice of American lawyers, or is deliberately misstating the reason for his decision.

"New York Times v. Sullivan" 176 US 254 (1964) is one of the landmark cases of the law of defamation in the United States. It holds that the free exchange of debate about public officials is so important an interest that no defamation action by a public official could be maintained unless "actual malice" could be proven. This decision does not, however, directly affect Irving as he claims. It applies only to public officials. The decision which could affect him, as any American lawyer could have explained, is a later decision "Curtis Publications, Inc. v. Butts" 388 US 130 (1967) in which the Supreme Court held that, under certain circumstances a private person could be so prominent that the standard for public officials should be applied to them. This is, apparently, the basis for Irving's fallacious claim that "New York Times" would have precluded his lawsuit. But this position is simply not supported in American law. Not only does "Butts" not bar such lawsuits (as Irving claims) but it is not even certain that Irving would qualify as a public figure.

The crucial point of "Butts" (a football coach in Alabama) was that some private individuals were so prominent and had so much access to the media that they have the same advantages in a public debate as public officials. It is, however, a later case "Gertz v. Robert Welch, Inc," 418 US 323 (1974) which actually defines a "public figure." "Gertz" states that there are actually two types of public figures. The first is a pervasive or "all-purpose" public figure who is considered the equivalent of a public official in any action. These are people of prominence and influence who have, by assuming that position "voluntarily exposed themselves to increased risk of injury from defamatory falsehood." ("Gertz" pp. 344-5). It is, in fact, quite rare that this status is accorded to a private person. For example the Third Circuit Court of Appeals (which covers Pennsylvania, New Jersey, Delaware, and Maryland) has never found a plaintiff to be an all-purpose public figure. Examples of those who have been determined all-purpose public figures by the Courts include Jerry Falwell, Johnny Carson and his wife, and the head of a Mafia family. Clearly Irving fails to meet this standard except in his own mind.

The final category to which Irving could be claim membership is that of "limited purpose" public figures. Limited purpose public figures are those who have thrust themselves to the forefront of a public controversy and who, thereby, surrender their position as a private figure to the extent that the alleged defamation relates to their participation in that controversy. The concept that the plaintiff "injected" himself into that controversy is of extreme importance. "Iafrete v. Hadesty" 621 A.2d 1005 (Pa. Super.; 1993). In determining whether a plaintiff is a limited purpose public figure, the courts must consider whether the alleged defamation involves a public controversy and the nature and extent of involvement in that controversy in which the plaintiff has injected himself.. "McDowell v. Patewonsky" 769 F.2d 942 (3rd Cir.; 1985). That same case defines public controversy as involving a "real dispute the outcome of which affects the general public or some segment of it." Matters which are merely "of interest to the public" are not characterized as "public controversies." (769 F2d at 948)

Since "Gertz" is the basic case on the concept of defining a public figure, it is instructive to look at the plaintiff in that case to discover how this standard is applied and how it would be applied to Irving. Elmer Gertz was a prominent attorney in Chicago, a professor in a law school who maintained a private practice on the side and wrote books about his work; in the 1960s he occupied a place quite similar to that which Alan Dershowitz occcupies today (without, of course, the wide exposure that cable television gives Dershowitz today). His clients included such public figures as Nathan Leopold (for whom he obtained a parole), Jack Ruby and the Ruby estate, and Henry Miller. In one of their publications, "American Opinion," the John Birch Society related a controversy over illegal activities of the Chicago Police Department in spying upon and harassing groups that opposed Mayor Richard J. Daley. The magazine claimed that Gertz, who was not the lead attorney in the actions against the police department, was a "Communist" agent who had stirred up the problem. The Supreme Court rejected the defendants' claim that they were entitled to the protection of "New York Times" and held that Gertz was not a limited purpose public figure.

There is no certainty, therefore, that an American court would have characterized Irving as a limited purpose public figure. Indeed, the holding in "Gertz" indicates that it is unlikely that Irving qualifies as a limited purpose public figure. First, there appears to be no actual "controversy" within the legal meaning of the term. The propositions that the Holocaust did not occur or that Hitler was not responsible for it, are simply not matters of controversy affecting the public. It is, at best, an academic debate in which Irving, who claims he is not a historian of the Holocaust, has only participated on a limited basis. Moreover, the "defamation" of which he complains does not really involve that debate but how he has, generally, conducted himself as a "historian" and concerns material that was not part of that debate. The application of the label "limited use public figure" to an individual is narrowly defined and used only with hesitation.

Even if Irving's dubious assertion that an American court would find him a public figure for the purpose of his lawsuit, Irving's position that his lawsuit would be barred under American law is without merit. The law applied to public figures does not, as Irving and West, state, automatically preclude such actions. It only places an additional burden on the plaintiff; that of showing "actual malice." What is confusing to many is that the phrase "actual malice" has, in this context, a very specific and a very limited meaning. It does not encompass to motive and it does not mean "ill will" or a desire to injure someone's reputation. The sole meaning of "actual malice" in this context, is that the person making the defamatory statements either knew that they were false or acted with a reckless disregard for whether they were true or not. To distinguish this term from the normal meaning of malice, the term "constitutional malice" is often used for specificity with the term "common law malice" (which is also used in the American law of defamation) denoting the common meaning of "malice."

To claim that the requirement of demonstrating "constitutional malice" is an insurmountable barrier for Irving or any other public figure is just as foolish as Irving's basic assertion that "New York Times" bars his action. While the presence of "actual malice" and the burden it imposes upon a litigant is grist for the lectures of law professors, its practical effect is negligible. To paraphrase Annie Savoy's comments about baseball, law might elucidate the metaphysical ontology of the universe, but it is also a business. American trial lawyers who represent plaintiffs in defamation cases do so on a contingency basis; that is, their compensation is based on the amount that they can actually collect on a judgment. The harsh reality is that, whatever the technical burden of proof, the size of the verdict depends on convincing the jury that a large award is justified.

And what convinces a jury to reach deep into the pockets of a defendant is malice. One of the most successful plaintiffs' attorneys in the U.S., who has won cases for several acknowledged public officials (Sen. Paul Laxalt) and public figures (Richard Sprague, First Assistant District Attorney of Philadelphia) openly states that a case is worthless unless he can convince the jury that the defendant acted with both "constitutional" and 'common law" malice. Thus, while "New York Times" might impose an additional technical requirement on a "public figure" there is no change in the realities of the litigation.

What is even odder about Irving's claim is that, when he entered the court room in London, not only did he attempt to prove constitutional malice, but his task was made harder because the concept is judicially unknown in Great Britain. From the beginning Irving has claimed that Denying the Holocaust was the end result of a lengthy conspiracy to demolish his reputation and deprive him of his livelihood. Irving has this to say about a "conspiracy" on his internet site:

"While I cannot yet go into detail on what Discovery against Lipstadt has already yielded, I can state that I have developed enough information and documentary evidence from my sources to establish that she made herself the Willing Executioner of a global conspiracy to destroy my legitimacy as an historian, by whatever means, since the people paying her fundamentally disliked the tune that I was playing."

This statement can be characterized as the theory used by Irving in the development of his case. It was the underlying theme of both his opening address and his closing argument which he directed not at the judge but to the spectators. It was Irving's burden to prove this conspiracy if he was to prevail. And, significantly, it is exactly the legal theory that could have established "actual malice" in an American court. Irving's case was soundly rejected by the British judge hearing the case even before the final submission to the court.

In short, Irving's decision made it even harder for him to win his case. Irving handicapped himself by attempting to present a theory of the case which was alien to British libel law and was further hampered by the practical realities of how evidence is presented in Great Britain. While his decision to have a bench trial allowed him a latitude to play to his claque - an opportunity not as available in a jury trial - his choice of jurisdiction frustrated and, ultimately, defeated him. Irving, given the rare luxury of a choice of forums in which to bring his action, exacerbated the problems of his tenuous and marginal case. Irving's initial mistake of ignoring the opportunity to bring his lawsuit in the United States, was an error from which neither he nor any other litigator could recover. It was not the last mistake Irving would make, but it was one of the most important. In grasping for the illusory advantages of British libel law, Irving came up with a handful of air.


Go to Part 2: "Opening a can of worms"