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PROOF AND HISTORY: A Review Of D.D. Guttenplan's "The Holocaust On Trial"


Friday, Aug. 17, 2001

D.D. Guttenplan, The Holocaust on Trial (W.W. Norton & Co. 2001).

In 1993, Deborah Lipstadt, a professor of religion at Emory, published Denying the Holocaust: The Growing Assault on Truth and Memory. Among the authors Lipstadt discussed in the book was David Irving, a British "popular historian" whom she portrayed in extremely negative terms, painting him as an insidious holocaust denier.

In 1996, Irving brought a lawsuit challenging Lipstadt's portrayal. D.D. Guttenplan's The Holocaust on Trial, published this year, chronicles the legal fight that ensued. As the first book to tell the story of Irving v. Lipstadt, it sets a high bar for any publications to follow. Guttenplan covered the trial for the New York Times and the Atlantic Monthly, and he has completed an extremely engaging work that combines the best of both history and journalism

Lipstadt's Book: The Seed of the Lawsuit

Prior to the time Lipstadt's book appeared, Irving had written a number of well-received books focusing on Hitler and the Third Reich. The legendary military historian Sir John Keegan had called Irving's Hitler's War, "certainly among the half dozen most important books" on World War II. In contrast, Lipstadt depicted Irving as "one of the most dangerous spokespersons for Holocaust denial."

Lipstadt's attack was based on Irving's consistently held position that Hitler took an absentee-landlord approach to the Holocaust. From Irving's perspective, there is no real evidence linking Hitler himself to the Holocaust; rather, the systematic killing was the idea and handiwork of Hitler's lieutenants.

Lipstadt used these arguments to portray Irving as the most dangerous kind of Holocaust denier: one who uses his mainstream acceptability to spread outright falsehood.

Irving's Lawsuit: Putting the Burden on Lipstadt to Prove Knowing Falsity

In 1996, Irving filed suit against Lipstadt in Britain for defamation. Irving claimed the book had done him significant financial damage. However, while Denying the Holocaust received great critical acclaim, it did not sell many copies.

Indeed, in the United Kingdom, it does not appear to have sold more than 10,000 copies in total — only twenty-one of which were sold during the year Irving sued. Nevertheless, Irving's action went forward in British court, where American First Amendment safeguards do not apply.

Had Lipstadt and Penguin, her publisher, been sued in the U.S., they could have taken advantage of the lenient standards of New York Times. v. Sullivan, which does not permit "public figures" to recover for defamatory statements, unless the statements were knowingly or recklessly false.

But in Britain, the defamation plaintiff's burden is much lighter. He or she need only prove that the words complained of were actually published, that they could be understood as referring to the plaintiff, and that they were defamatory. Once these low hurdles have been overcome, the burden shifts to the defendant to prove the truth of the matter asserted.

In this case, the plaintiff's prima facie case was undisputed: Lipstadt and Penguin had to admit that Denying the Holocaust had been published, that it referred to Irving, and that it would lower his esteem in the community if its claims were untrue. Accordingly, the burden shifted to them to prove that Irving knowingly made false statements about the Holocaust.

Why Lipstadt and Penguin Won the Case

In order to do this, Lipstadt and Penguin had to carry a heavy burden. First, they needed to show what actually happened in the Holocaust. Then, they had to prove that Irving knew what actually happened, and that he then elected to present a false portrait of those true events. A daunting task to say the least — and one that made for engaging drama for the trial's many spectators.

Guttenplan's Book: Chronicling the Trial

In describing the events surrounding the case in The Holocaust on Trial, Guttenplan delves deep into a number of difficult questions surrounding the way the Holocaust is portrayed today; the role of the Jewish community (both in America and abroad) in framing discussions of the Holocaust; the role of anti-semitism in modern debate over the Holocaust; and the general state of Holocaust scholarship. This is a worthwhile book not only for those interested in the trial itself, but for anyone interested in modern anti-semitism, the worldwide Jewish community, or Holocaust scholarship as well.

The Holocaust on Trial essentially is divided into two portions: one describing the trial itself, and the other describing related historical and political issues. From a legal perspective, the coverage of the trial is good. When Guttenplan discusses legal matters with which an American audience will be unfamiliar, the book makes for compelling reading.

For example, Guttenplan's discussion of the British court system, as well as of the interaction between barristers (trial lawyers) and solicitors (general legal advisers), sheds light on both how a fairly arcane system has an important effect on current legal issues, and how the British have attempted to modify their traditional methods to fit modern problems. In addition, Guttenplan does an excellent job describing the mood in the courtroom, including the many dull moments that are interspersed within any trial.

However, Guttenplan is on shakier ground when he discusses the substantive law of the case. For example, one of the key elements in the trial concerned what the defense had to prove with respect to Irving's intent. Did Lipstadt need to show that Irving made a conscious decision to falsify the historical record, or would a "recklessness" standard apply? Or, by analogy, could the defense carry its burden by simply showing that Irving behaved like a waiter who consistently made bad change, with the discrepancy always coming out in his own favor — or did the defense have to show he was more like a waiter who was consciously stealing from customers?

This issue clearly weighed heavily on the judge, Sir Charles Gray. Yet Guttenplan does not explore these issues with as much rigor as one might expect of an American legal scholar. In fact, he even criticizes the judge for making a distinction between the two different levels of intent, arguing that it should make little difference which one applied to Irving's conduct.

While this distinction might mean little to Guttenplan, or from a moral perspective, it means a great deal in the courtroom. Indeed, the importance of the difference between "actual knowledge" and "recklessness" is familiar to any American lawyer. So not only was the judge's concern for exploring exactly which one applied entirely understandable, but a judge who failed to focus on the applicable intent standard might well see his trial verdict reversed on appeal.

The Trial's Political and Historical Context

What makes this a truly outstanding book is Guttenplan's analysis of the many external factors that made this trial so important. Much of this information will likely be new to readers, especially the fact that many legitimate arguments still surround the Holocaust itself — many particulars of which are apparently still in question.

Similarly, Guttenplan points out that some important popular understandings of the Holocaust remain uncorroborated: for example, there is no evidence that soap was ever made from the fat of camp victim's bodies, or that gas chambers were ever used at Belsen (though, of course, the Nazis killed many people at Belsen using other methods).

The fact that there is still much debate over the particulars of the Holocaust gives people like Irving the chance to distort the historical record in significant ways. This is what made the defense team's task so difficult; it had to prove that Irving's depiction of the Holocaust went beyond scholarly debate. That it succeeded in doing so is impressive.

In portraying the evidence presented at trial, Guttenplan thoroughly demolishes Irving's claims that he was simply presenting alternate theories of history. For example, he shows that Irving could not have reasonably assumed that Hitler was uninvolved in the Holocaust, or that no gas chambers were used at Auschwitz.

Subtle Portraits of Issues and Individuals

Perhaps nothing better demonstrates the range of Guttenplan's writing ability than his depiction of the schisms within the Jewish community about how to talk about the Holocaust, and about his portrait of David Irving himself. For example, Guttenplan discusses the disagreements concerning what role the Holocaust should play in the modern Jewish community, and who should have the right to argue over the actual events that took place at the camps.

In discussing these extremely difficult subjects, Guttenplan takes on a broad, complex, and incredibly difficult subject — one that strikes close to home, since he himself is the son of a rabbi. Yet he discusses this vast subject with great subtlety; it is always clear that Guttenplan is deeply affected by his subject matter, yet he never lets emotion detract from the power of his argument.

In describing Irving, Guttenplan takes on a character that it would be all too easy to lampoon. After all, Irving is on record for making jokes about gas chambers, singing deeply anti-semitic and xenophobic ditties to his daughter while pushing her stroller, and decrying the integration of the English cricket team. Guttenplan shows all of this, yet also takes good care to show Irving's many successes: the widespread respect other historians have for his research abilities, and the popular and critical acclaim a number of his books received.

There is no question that Irving himself is a complex and unusual man, and Guttenplan presents all of his many facets. Guttenplan's portrait of Irving is all the more devastating for its thoroughness; with all of his successes, it is hard to understand Irving's need to falsify the record when it came to the Holocaust itself.

The book is an easy and interesting read, and it conveys a wealth of complex material. Readers interested in the Holocaust, the politics involved in studying history, World War II, civil liberties, or courtroom drama will all find something interesting in this thorough and affecting portrayal of Irving v. Lipstadt.

Sam Williamson is a law clerk for Judge Gilbert S. Merritt of the US Court of Appeals for the 6th Circuit. Prior to attending Harvard Law School, he served as an infantry officer in the U.S. Marine Corps. The views expressed in this column are his own, and do not necessarily reflect those of Judge Merritt or the government.

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