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The Trial of O.J. Lipstadt
By George Brewer
Everyone is familiar
with the fact that a court case has two aspects. On the one hand,
there is the case as it is decided in a court of law, on the other
hand, there is the case as it is decided in the court of public
opinion. Frequently a victory in one venue can entail a defeat in
the other. The most famous case in recent memory involved O.J. Simpson,
the former football star, who was acquitted in court of the murder
of his ex-wife and a waiter, but who was overwhelmingly considered
guilty in the court of public opinion.
Sometimes one can lose a case in court but be vindicated
by public opinion as well. We remember that in 1925 John T. Scopes
was found guilty of teaching evolution in Tennessee schools, but
what most people remember about the trial now is that by virtue
of this trial academic freedom and evolution made great strides
in public consciousness, so that, in the larger sense, Scopes won.
This duality to legal cases is to a certain extent
built into any society ruled by law. Laws are, after all, little
more than the petrification of old opinions; they reflect the common
sense of their time, something that is more often informed by passion
than principle. Thus if we turn over the pages of the statute books
we can easily find many laws that will appear both unjust and absurd
to a later time, not only trivial laws against black flags (because
of anarchism), but also more serious ones as well.
From the standpoint of public governance, respect
for the rule of law is paramount, therefore it is desirable to see
the tension between law, and public opinion kept to a minimum. Thus,
when old statutes are challenged in such a way as to make them appear
ridiculous-the case involving a Virginia anti-sodomy statute some
years ago comes to mind-the law is usually quickly taken off the
books. Or if a verdict is so much at variance with popular attitudes
that it carries little authority, it is likely to be overturned
in short order on a technicality. Such was the case with Scopes.
Finally, if a verdict is so much at variance with public opinion
that large segments of the public are outraged by it, some other
legal mechanism will be brought into play. This last was resorted
to in the case of O. J. Simpson who, while vindicated of the murder
charge, was eventually found responsible for the deaths of his ex-wife
and a luckless bystander.
It follows that a court case, especially a celebrated
one, is not really over just because the verdict is in. There is
still the battle in the court of public opinion that needs to be
won. This fact may help explain what is now a very curious result
of the Irving-Lipstadt libel trial concluded last April.
Lipstadt's Road Show
As we recall, Deborah Lipstadt, an instructor of Jewish theology
at a small US college, published in 1993 a book entitled Denying
the Holocaust. After being urged to do so by Israeli historian
Yehuda Bauer, Lipstadt included in her book a potpourri of accusations
against the British historian
David Irving.
Most of the statements of fact made about Irving
were false, many of the other statements were libelous, and Lipstadt's
book was easily construed by Irving as well as others as part of
an ongoing campaign to destroy him. So Irving filed suit against
Lipstadt in the fall of 1996. The case eventually came to trial
just this past January.
Irving's position was that Lipstadt had libeled
him. Lipstadt's position-as articulated by her lawyers and experts
since she never spoke in her defense-was that Lipstadt's statements
were true. The judge concluded that some of the statements were
true, and others false, but that the true statements were more important
than the false ones and therefore Lipstadt was not guilty of libel
to a serious enough extent to justify damages to Irving.
Lipstadt's claque of left liberal supporters immediately
hailed the verdict. Although it was Irving's suit to win or lose,
the perception was that Lipstadt had emerged triumphant over Irving.
Certainly, in legal terms, she had won her case by not losing it.
However, immediately after the verdict was in, it became clear that
while Irving had been defeated in court, the battle in the court
of public opinion was just beginning. Within hours, two of the most
authoritative of British historians, Donald Cameron Watt and Sir
John Keegan, rose to Irving's defense, praised his work as a historian,
and in Sir John's case memorably disposed of Deborah Lipstadt's
pretensions. These comments tended to completely offset not only
the verdict but also the book and the worldwide campaign that had
engendered the trial in the first place.
Six months later, we now find that members of Lipstadt's
defense team will be traveling around the United States holding
seminars at $35 dollars a head to "discuss" the "implications" of
the case. This traveling road show includes not only Lipstadt's
chief defense counsel, Richard Rampton and Heather Douglas, but
also a Cambridge supernumerary for Richard Evans and Robert Jan
van Pelt. What could be the purpose of this enterprise? A number
of explanations could be offered.
One is that it is being done to raise funds to pay
salaries: we now know, for example, that Lipstadt's defense team
spent millions of dollars to pay its experts, and to ensure that
Lipstadt herself remained mum and seated behind a table. Another
is that the junket is meant to acquire funds for the appeal, now
pending in London. Still another explanation could see in the campaign
an effort to promote the Holocaust at a time when the Middle East
is once more in upheaval. However, we believe that the effort represents
something more basic: it constitutes an attempt to win over public
opinion for the verdict of the trial.
The Court of Public Opinion
The idea that Lipstadt's defenders would be engaged in post-trial
damage control may not seem on the surface an unusual idea. Nevertheless
it is an unusual situation. How often has the defense of other British
trials felt obligated to travel to our shores to make their case?
Richard Rampton, for example, before defending Lipstadt, was involved
in a quite lengthy and even more expensive defense of McDonald's
to the charges of animal rights activists in Britain. We don't recall
the defense team coming to the US after that trial in order to expound
on the humane procedures that go into the making of a Quarter Pounder
with cheese. We don't recall, at the drive through window of our
local McDonald's, receiving Richard Rampton scratch-off tickets
that might defray the $35 cost of hearing him lecture, or a "Buy
one, get one free" offer that would make it possible for us to purchase
a Richard Rampton bobble-head doll at a discount. The reason, of
course, is that no one took the accusations against McDonald's seriously,
so there was no one to win over.
In the case of Irving v. Lipstadt, however, there
appears to be a substantial body of opinion to win over. For example,
the most professional and at the same time least paid of Lipstadt's
expert historians was Christopher Browning, of the University of
North Carolina. Simultaneous with the verdict, Browning's newest
book was released, one which pointedly referenced Irving's chief
work, Hitler's War, in the notes. This is an academician's
way of telegraphing peer support for a fellow historian: scholars
frequently will cite the work of historians with whom they disagree,
but they will never cite the work of someone they consider unimportant.
Ian Kershaw, another respected British historian
of the modern era, whose social historical emphasis complements
Irving's more biographical approach, has just published the second
volume of his biography of Adolf Hitler, which contains the assessment
that Hitler was not personally involved in several aspects of his
empire, an assessment first made by Irving over 20 years ago. To
be sure, Kershaw does not reference Irving directly, but that may
have been due to the pen of an editor eager to avoid controversy.
In the meantime, Irving has felt no compulsion to
globetrot to explain himself. The reasons should be clear. First,
while he failed in his suit, the support he received from the historical
fraternity, as well as, paradoxically, from the presiding judge,
indicate that his reputation as a historian is still intact. Besides,
he has an appeal to prepare.
Conclusion
As we have seen, because a trial has a dual component one may win
in court but still lose the battle for public opinion. But usually
a legal vindication is enough for most people. One rarely sees the
winner of a case attempting public self-justification. That is usually
left to the loser, who then travels the circuit in search financial
and moral support. When, in the wake of his acquittal, O.J. Simpson
began a campaign of calling reporters and talk show hosts to state
his case for the mysterious Colombian drug lords, most people were
repelled by this attempt to get people to not only accept the verdict
but to agree with it as well.
Yet this is precisely how Lipstadt's defenders are
now acting. There appear to be two reasons for this. In the first
place, their fond hope of destroying David Irving and putting the
force of the Law behind their intolerant interpretation of history
was dashed, almost immediately the verdict was announced. In the
second place they seem to have perceived that they have lost, and
are losing, the battle for public opinion, or better in this case,
scholarly opinion. The spate of articles and books that one would
have expected to see if this case had enjoyed widespread support
has not arrived. It seems clear that the public, or at any rate
the intellectual classes, whose opinion would count for most in
this case, are taking their time making up their minds about the
facts.
Of course there is a difference between Simpson's
pathetic appeals to get people to believe him and the road show
of Lipstadt's defenders. Just as Lipstadt refused to take the stand
to defend herself during the trial, she has once again chosen to
have her lawyers and her purported experts serve as her mouthpieces
in the post-trial phase. Lipstadt's only public appearances have
consisted of a few triumphalist speeches before uncritical audiences.
A better analogy would be if O.J. had recruited Kato Kaelin to call
Larry King on his behalf.
But the intrinsic similarity is still there. In
both cases, defendants who won their cases felt compelled to take
their case to a wider public. This indicates an awareness of a lack
of public support, an awareness that, when all is said and done,
the winners were losers. It further suggests, if we carry the analogy
to its end, fear, uncertainty, and above all, a guilty conscience.
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Bradley R. Smith, Publisher 