Denial [Movie Tie-in] Page 5

  The book was finally published in 1993, shortly after I arrived at Emory University in Atlanta. Much to my utter amazement, on the day of its publication it was featured on the front page of both the New York Times Book Review and the Washington Post Book World. That was followed by positive reviews in many journals. By 1995, I considered my scholarly work on denial closed. I knew the issue was far from solved. David Irving’s books continued to be reviewed in prestigious venues. There were increasing expressions of Holocaust denial in the Arab and Muslim worlds. Even more disturbing was European “soft core” denial, which, rather than deny the Holocaust, equated Israel’s policies with those of the Third Reich, labeling Israelis as Nazis.

  However, having wallowed in this material for far too long, I believed it was time for me to move on to new fields of research. Then came the letter from Penguin.

  TWO

  THE DEFENSE STRATEGY

  Penguin’s initial letter was followed by additional inquiries from their lawyers about the sources upon which I had based my critique of Irving. Then, inexplicably, this correspondence ceased. Assuming Irving had turned to other pursuits, I considered this matter closed. During the summer of 1996, as the Atlanta Olympic Games got under way, I spent my time happily mixing attendance at Olympic events with research on my new project, one that had nothing to do with Holocaust denial. Then, in September, as the school year was in its initial throes, Penguin’s lawyers wrote again. They informed me that Irving had filed papers indicating his intention to proceed with a lawsuit against Penguin and me.

  Shortly thereafter, Helena Peacock, Penguin’s general counsel, inquired about the indemnification clause in the contract I had signed with the Free Press, the American publisher of my book. At first I wasn’t sure what she meant, but an inspection of my contract revealed that I had agreed that, should my book provoke legal action, the Free Press could essentially leave me on my own. Even though I had written about a controversial topic, I never dreamt I would be sued. Suddenly my predicament seemed somewhat surreal. When I told my lawyer, David Minkin, that Penguin was asking about the indemnification clause, his eyes opened wide and face grew taut. He seemed to be trying to mask his concerns, but the tension in his voice came through clearly as he explained that Penguin might be contemplating shifting the financial burden of the case to my shoulders.

  Ironically, travel and research related to writing Denying the Holocaust had cost me more than I had earned from it. Virtually all the proceeds—including advance and royalties—had gone to the Hebrew University’s Center for the Study of Antisemitism. And the sums were not insubstantial. The advance on the book had earned out, paperback rights were sold to another house, three foreign editions had appeared, and both the paperback and hardcover were in their fourth printing. I realized that this book contract didn’t favor me at all. Worse, I now realized that the publishing house could, legally, leave me saddled with substantial expenses related to the lawsuit. Some of my lawyer friends feared that there was even the possibility that Irving could “attach”—legal shorthand for take—my property in the United States if he won. Clearly, all this was no longer a laughing matter.

  As a full professor, I earned a respectable income, one that allowed me to own a comfortable home, travel, and know that if I wanted something I could, within reason, afford it. Generally, however, I eschewed material things. I drove a modest car and avoided frivolous purchases. Now I envisioned my savings depleted by this fight.

  Although Penguin and I were both being sued, our perspectives on the case were clearly different. Penguin was a worldwide publishing conglomerate with an extensive backlist of classics in the adult and children’s book market. It was now a subsidiary of Pearson, one of the United Kingdom’s largest public companies, which owned, among other companies, the Financial Times. It was the leading publisher of college texts in the world. Though I realized that as a publisher of distinguished literature with an impressive list of authors, Penguin would have an incentive not to settle with Irving, still, I feared that the undetermined but clearly high cost of a lawsuit might make them, and the parent company, wary.

  I realized that I needed someone to formulate a legal strategy to suit my interests. As I was contemplating my options, a friend in London who knew about the case called me. He reported that Anthony Julius, an exceptionally smart, first-rate lawyer, had contacted him to say that he would help me—pro bono if need be. Having heard all the right words—exceptionally smart, first-rate, and pro bono—I breathed a sigh of relief. Julius’s name rang a bell. I asked if this was the same person who had written T. S. Eliot: Anti-Semitism, and Literary Form. This book had been published a few months earlier and all the reviews mentioned that the author, Anthony Julius, was a lawyer in London with clients such as the princess of Wales. My friend laughed. Confused by his laughter, I said nothing, but then I added, as an afterthought, “Isn’t he also Princess Diana’s divorce lawyer?” Still chuckling, my friend remarked that I was one of the few people who would put it in that order.

  Julius’s book on T. S. Eliot was originally his Ph.D. dissertation; he earned a degree while working full-time as a lawyer. When asked why, as a lawyer, he had pursued a Ph.D. in literary theory, Julius responded that many lawyers have hobbies. Getting a doctorate in literary theory was his “golf equivalent.” The great poet’s appropriation of the degraded discourse of antisemitism to animate his work intrigued Julius. Eliot had turned that which the enlightened world had supposedly discarded—antisemitic speech—into art. Julius, however, believed antisemitism was central—not peripheral, as many critics claimed—to the Eliot texts in which it appears. He was also intrigued by the way legions of critics had ignored or rationalized this aspect of Eliot’s work, dismissing it as ironic or merely the cost of entry into the club of modernism. Reviewers vigorously debated the book. One reviewer described it as “the eviction of Eliot from the house of lame excuses.” Some reviewers linked Julius’s critique of Eliot with his work for Princess Diana, describing him as the ultimate iconoclast, simultaneously challenging two British idols, T. S. Eliot and the House of Windsor. Oxford University’s Professor of Poetry, James Fenton, made it the subject of one of his three annual lectures. In “Eliot v. Julius,” Fenton posited that “whatever assessment is made of Eliot in the future, the Julius book will have to come into it.” With little ambiguity, Fenton asked: “Julius says an antisemite is a scoundrel. What is it that holds us back from saying that Eliot was a scoundrel?”1

  Still, for most Brits, Julius was better known as Princess Di’s lawyer. Julius, a partner in the London firm Mishcon de Reya, first represented Princess Diana when she sued a gym owner for surreptitiously photographing her as she was exercising and then selling the photos to the press. Pleased with Julius’s success in this case, Princess Diana asked him to handle her divorce. An unrepentant Diana watcher, who claims to have read everything ever published on the princess, told me that when Diana asked Julius to represent her he protested, “I am not a divorce lawyer. This would be my first divorce case.” She apparently responded, “That’s all right. This will be my first divorce.”

  Born in 1956, Julius studied English literature at Jesus College, Cambridge. He joined Mishcon in 1981 and became a partner by 1984. By 1987, he was head of its litigation department. He also taught part-time at University College where he created the course “Law and Literature.” I nervously dialed his office prepared to negotiate my way through a phalanx of secretaries. A friendly voice answered, “Anthony Julius.” “Is this Anthony Julius’s office?” I asked. “This is Anthony Julius.” Surprised to be connected so rapidly, I stumbled through an explanation of the case. After a few moments he assured me that he was familiar with it. I asked the pivotal question. Would he represent me? Julius assured me that he would be delighted to do so. Having learned that the standard fee for someone of his caliber was over $500 an hour, I told him that I doubted I could afford his fees. Without hesitating, Julius reassured me he would do so pro bono,
if need be. I felt a wave of relief. I felt certain that the matter would now be quickly resolved.

  EMORY: DOING THE RIGHT THING

  My relief was further heightened when, shortly thereafter, Emory’s then–chief legal counsel, a man with the improbable name of Joe Crooks, called to inform me that the president of the university and the Board of Trustees had heard about the case and had allocated $25,000 to help cover my expenses. I was amazed. Though Emory has a substantial population of Jewish students, few of its board members are Jews. The school is loosely associated with the Methodist Church. The board believed, Crooks explained, that my case epitomized academic freedom and raised fundamental moral issues. They wanted to communicate a message that Emory stood squarely behind me. When I relayed this to Anthony, he quickly asked that Emory not publicize the gift. He feared that if Irving knew we had funds—however limited—there was less chance that he would drop the case. Crooks agreed. When I shared news of Emory’s generosity with colleagues at other universities, they thought it remarkable that Emory not only had given me the money, but had done so without my asking. “My school would have issued an eloquent statement indicating its support of me,” one friend from an Ivy League university told me, “but it would never have come up with cold cash.” I slept well for the first time in weeks.

  My equanimity dissipated a few days later when I picked up the latest New York Review of Books. It contained a review of Irving’s Goebbels: Mastermind of the Third Reich by the venerated Stanford professor and noted historian of Germany, Gordon Craig. I opened the paper, expecting to find a devastating critique. My optimism quickly faded. The emotional roller coaster, which I seemed to be riding since this experience had begun, plunged to the depths as I read: “Such people as David Irving have an indispensable part in the historical enterprise and we dare not disregard their views.” While Craig disparaged Irving’s claim that Auschwitz was “a labor camp with an unfortunately high death rate,” as “obtuse and quickly discredited,” his praise of Irving surprised me.2 Giving someone with such an “obtuse” notion of Auschwitz an “indispensable part” in the historical conversation would inevitably give these “quickly discredited” views added credibility. If Craig could be beguiled by Irving, how would a judge and jury fare?

  LEGAL LESSONS: THE UNITED KINGDOM VERSUS THE UNITED STATES

  In October, I invited Anthony to speak at Emory University. Though I looked forward to hearing him discuss Eliot, I was more anxious to learn about British libel law and even more interested in learning about him. Julius, at five feet ten inches, pale, with closely cropped dark hair, large black glasses, a slight paunch, and friendly smile, hardly looked like someone who had taken on the House of Windsor. He looked and spoke with the literary flair of a university professor. During Anthony’s visit, I received a crash course in British libel law. It presumes defamatory words to be untrue, until the author proves them true. The burden of proof is, therefore, on the defendant rather than the plaintiff, as would be the case in the United States. Consequently, had Penguin and I not defended ourselves, Irving would have won by default. I would have been found guilty of libel and Irving could then claim that his definition of the Holocaust had been determined to be legitimate.

  In the United States, I would have had another level of protection. American law, founded on the First Amendment right of freedom of speech, stipulates that, in order for public figures—politicians, authors, and others who have placed themselves in the public eye—to win a suit for libel they must prove that the statement was made with “actual malice”—that the author had knowledge of its falsity or exhibited reckless disregard as to whether it was false or not. Irving, as a well-published author and lecturer, would have, in all likelihood, been considered a “public figure” in the United States and would have found it difficult—if not impossible—to sue me.3 Furthermore, in the United States an author has some degree of protection if she based her critical words on reliable sources and had no way of knowing they were wrong. In the United Kingdom reliance on sources, reliable or not, does not provide a defense.

  Anthony explained that in the United Kingdom libel defendants had various legal options. They could argue that the plaintiff was misinterpreting the words in question. This, however, was not the case. My charges—Irving was a denier, Hitler partisan, and right-wing ideologue—were not being misinterpreted. Defendants can also argue that their words were not defamatory, that they were not intended to discredit the subject. Mine, however, were clearly so. Finally, we could claim “justification,” that the words at issue were true, even if they were defamatory, so I was justified in writing them. That, Anthony explained, was the path we would pursue.

  In legal circles proving the truth of the defamatory words is considered to be the “atom bomb defense.”4 We did not have to prove every detail of my charges. We had to prove the substantial truth or the “sting” of the libel. If a small aspect of my charges was wrong, but everything else was correct, I could still win.5

  “We will argue,” Anthony explained, “that Irving subordinated the truth for ideological purposes and that his comments about the Holocaust were designed to spread antisemitism and engender sympathy for the Third Reich.” I felt unexpectedly comforted by his use of the word “we.” Though I knew this was common legal parlance, knowing it in theory was different from hearing it, particularly when the “we” was essentially “me.”

  Anthony assumed Irving would eventually drop the case. “He loves publicity and is delighted to cause you grief. We’ll vigorously respond to his charges. We shall change his pleasure into pain.” Listening to Anthony convinced me that his Eliot work was hardly a “golf equivalent.” He could not abide antisemitism whether it came from T. S. Eliot or David Irving.

  Over the next several months, Anthony and his partner, James Libson, explained what needed to be done. They would prepare the pleadings, our presentation to the court of the core issues in the case. At the same time the discovery process would begin. Each party was obligated to turn over to the other side all relevant materials—correspondence, documents, books, and tapes—in its possession. This would be an extensive process. I would have to put my hands on everything I had that pertained to Irving. After that I would have to prepare my witness statement. Since it would “introduce” me to the court, I had to discuss my background, education, and approach to the study of the Holocaust. We also had to select a team of expert witnesses to analyze Irving’s claims about the Holocaust and to demonstrate that they contravened the available evidence. Their reports would be submitted to the court in advance of a trial. English courts stipulate that evidence be exchanged before trial to avoid “trial by ambush.” We would also present Irving with a list of pretrial interrogatories. Anthony and James were fairly certain that, faced with this unrelenting defense, Irving would retreat.

  As our strategy evolved, we not only decided what we would do; we also decided what we would not do. Our objective was not to prove the Holocaust had happened. No court was needed to prove that. Our job was to prove the truth of my words, namely that Irving had lied about the Holocaust and had done so out of antisemitic motives. We decided not to call survivors as witnesses. To have called survivors would have suggested we needed “witnesses of fact”—eyewitnesses—to prove there was a Holocaust. That was our legal reason. In truth, we had another reason. Irving was representing himself because, he said, no lawyer could present his case as well as he could. He would, therefore, cross-examine the witnesses. We did not consider it ethical to subject survivors to cross-examination by a man whose primary objective, we feared, was their humiliation. I recalled how he taunted a survivor who had appeared with him on an Australian radio show. “Mrs. Altman,” he had said referring to the concentration camp number on her arm, “how much money have you made out of that tattoo since 1945?”6 I did not want to risk him ridiculing survivors—even those who insisted that they were eager to testify.

  FILMING MR. DEATH

  As the preparations
were gaining momentum, Errol Morris, one of America’s leading documentary filmmakers, emailed me that he was making a film about Fred Leuchter, the man Zündel had sent to Auschwitz to prove there were no homicidal gas chambers. Morris’s The Thin Blue Line, had saved the life of a man on death row by showing that the government’s case was riddled with holes. A Brief History of Time, Morris’s film on Stephen Hawking, had won many accolades as had Fast, Cheap, and Out of Control, a film about people with unconventional occupations. Morris was intrigued by Leuchter, whose report denying the gas chambers energized Holocaust deniers. Morris told me that if the Thin Blue Line was a “movie about false history” the Leuchter film would be “about false history writ large.”7

  Morris and I agreed to meet in Cambridge, Massachusetts, when I was scheduled to give a paper at Harvard on the creation of the Holocaust Remembrance Day ceremony in the Capitol Rotunda. In the face of the growing demands of the lawsuit, doing my research was becoming an impossible task. Though the Harvard conference promised a respite from Irving, I could not resist Morris’s invitation to screen a rough cut of his film.