“Denial,” a 2016 British film that I missed (along with most moviegoers in the U.S.), tells, reasonably accurately, the story of a 1996 libel suit brought by David Irving, an anti-Semite, Holocaust-denying British historian, against Deborah E. Lipstadt, author of the 1993 book “Denying the Holocaust: The Growing Assault on Truth and Memory.” After the suit, her account of the ordeal, “History on Trial: My Day in Court with a Holocaust Denier,” formed the source of the screenplay.
Irving brought a lawsuit in Britain against Lipstadt (played by Rachel Weisz), and her publisher, Penguin Books, for calling him a Holocaust denier, a liar, and an anti-Jewish bigot. Irving is a long-time Hitler defender, and claimed there were no gas chambers at Auschwitz. British libel laws, unlike those in the United States, place the burden of proof on the defendant to prove that what was written was justified. Thus Lipstadt’s legal team must focus on proving Irving’s evidence is false, and that he knows it is false. The stakes were suddenly high, for if a court ruled that Irving’s theories had legitimacy, the results would have been catastrophic. For this reason, at least according to the film, a group of Jewish leaders urged Lipstadt to settle the suit before trial.
The movie is now on Amazon Prime. It is not a flamboyant legal drama but an intelligent and clear one (I would love to put it on stage). It also raises important ethics and legal issues, among them:
- In the age of the web, the risk of being sued in a foreign jurisdiction for protected speech in the U.S. is a real danger. Writers and bloggers need to know, or at least be aware of, foreign legal standards that do not apply here. This lawsuit was a useful warning.
- Apparently British lawyers have a lot more leeway in essentially testifying during their cross examination. In American courts, arguing with a witness is frowned upon, and can lead to an objection. An assertion like those Lipstadt’s barrister (Tom Wilkinson) makes (“You’re not just a bad historian, you’re a bent one”) in examining Irving would not be permitted in a U.S. court.
- The film raises the issue of whether it is wise to punish historians for making mistakes, misinterpreting evidence, or having a bias. Ultimately, at least in the film, the trial’s verdict hinged on whether Irving’s mistakes were honest or not. The judge asks Wilkinson if it isn’t possible that Irving could be an anti-Semite but still genuinely believe his interpretation of facts is true. Irving could win his suit on the grounds that Lipstadt could not prove he was a liar, but at worst just an incompetent historian. This would be the “Bias makes you stupid” defense against Lipstadt’s assertions.
- When is a fact so ineffably true that it can’t be challenged, and counter-arguments should not even be heard? The most quoted line from the film, which is right out of Lipstadt’s book, is:
“Now, some people are saying that the result of this trial will threaten free speech. I don’t accept that. I’m not attacking free speech. On the contrary, I’ve been defending it against someone who wanted to abuse it. Freedom of speech means you can say whatever you want. What you can’t do is lie and expect not to be held accountable for it. Not all opinions are equal. And some things happened, just like we say they do. Slavery happened, the Black Death happened. The Earth is round, the ice caps are melting, and Elvis is not alive.”
The quote illustrates the problem. First of all, it wasn’t Lipstadt who was attacking free speech: it was her speech that was the trigger for the lawsuit. It wasn’t Irving either: first, Great Britain doesn’t have U.S. style free speech, and second, libel isn’t protected speech even here. “Not all opinions are equal” is both true and chilling. Uninformed and biased opinions are not as reliable as informed ones, but other than that, who decides which opinions are more equal and which are less? This is the crisis the U.S. is facing right now.
Free speech is also abused frequently with lies and distortions, but that is not an argument for restricting so-called “abuses.” A Trump Deranged lawyer friend recently compared the President’s speech before the protesters on January 6 to “shouting fire in a crowded theater.” A lawyer actually said that…a good one, who once worked for the Justice Department. But the Oliver Wendell Holmes opinion about falsely shouting fire is inapplicable when 1) the response of the crowd is neither intended by the speaker nor known and 2) when the speaker really believes there is a metaphorical fire.
Lipstadt’s examples are also telling. All of them involve provable facts that have already occurred, except one: the ice caps. She doesn’t know that the ice caps are still melting, or that they are all melting, or that they will still be melting tomorrow. Moreover, including that example is itself misleading: how fast are they melting? What is the impact?
More on that topic in Part 2.