“Denial”: An Ethics Movie (Part 1)

“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.

10 thoughts on ““Denial”: An Ethics Movie (Part 1)

  1. I saw the movie as well. A British film, it (I assume) accurately presents the differences between English and American libel laws, but also presents Lipstadt — considered a well regarded historian here — as a brash, combative American who cannot or will not take the advice of her British lawyers on how best to defend her (and Penguin’s) case in Britain. As far as I can tell — especially from UK friends — this is a fairly standard portrayal of Americans there. She should have been smarter than that: should have “gotten it” earlier in the case. At least I did (or would have, when presented with the system and the evidence). It is ridiculous for any American to try to use the American press and American system against a different legal system: no wonder we are “brash.” I didn’t think she acquitted herself well.

  2. “I’m not attacking free speech. I just want to stand up against somebody who wants to pervert the truth.” To me this statement is a slippery slope indeed. Hence we now have climate change deniers, systematic racism deniers, and so on.

    • “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 Jewish groups urged Lipstadt to settle the suit before trial.”

      I disagree. If the defense was unable to prove his theories were bunk, why should they be suppressed? That is not catastrophic, it is freedom.

      • Nobody was arguing that his lies should be “suppressed.” If a court ruled, however, that his theories had not been proven “bunk,” that would have given legitimacy to an anti-Semitic narrative. That’s the problem with the reverse burden of proof of the English system.

  3. I was brought up with “Sticks and stones may beak my bones … etc” and have always been instinctively pro free speech. With the increased power of the modern megaphone I am wondering whether it is time to reconsider…. (?)

    • Maybe it would be better to teach our children to think rather than simply react no matter how big the microphone. The ability to reason has provided human beings with ability to sort the wheat from the chaff. If we reconsider whether it is time to do away with free speech we are choosing to do away with debate. Are you willing to be silenced for comity sake?

  4. Is this on Netflix? We checked and Netflix would not display this film as an option, although Starz and other streaming services appear to have it.

    We watched the documentary, “Ask Dr. Ruth” on Hulu instead.

    But, I would like to see “Denial” now, as well as the other film you wrote about a short while ago, “Conspiracy” (but that’s on HBO and we don’t have that).

  5. It’s available on Netflix BR disc on my DVD plan. I have it in my queue & will see it next week. The Amazon stream is a Prime Video rental or free with Starz. Thanks for the post. I first heard of Irving during the Hitler Diaries fiasco, and it is telling that he correctly called out the esteemed Trevor-Roper over the forgeries. Irving is certainly “out there” in terms of his historical analysis, a free speech test case in any country. I don’t think this is the moment for a staging it, but maybe in the future.

  6. Jack, thank you for your recommendation and wise essay, which I saved for after viewing the film. The scenes in the Inns of Court [at least the exterior–I don’t know whether the interior office lunch scenes were filmed on location, though they were so enjoyable just the same] and in the court and court lobby, were well-done. The script was too: David Hare. It reminds me of the TV movie QBVII, with Anthony Hopkins, in some ways, though also quite opposite from it. I haven’t seen or thought about that film or novel since the 70’s. And on top of it all, the law of defamation is of particular interest to me right now. The American version, that is.

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