David Irving Was Prosecuted for Telling the Truth

The claim conflates two different cases involving David Irving and gets the more important one substantially wrong. The cases are: the 2000 London libel trial, in which Irving sued Deborah Lipstadt and Penguin Books for libel after Lipstadt described him as a Holocaust denier; and the 2006 Austrian criminal prosecution under the Verbotsgesetz, in which Irving was convicted for two lectures given in Austria in 1989. The first case is the central one for understanding Irving and his claims because it was a civil proceeding in the most permissive free-speech jurisdiction available to him, conducted at his own initiative, with no element of state prosecution; he lost it on the evidence. The second case is the peripheral one, and the deniers’ framing of it as “imprisonment for telling the truth” is inverted: Irving was not imprisoned for views the court found to be true; he was imprisoned for views the court found to be false, in a jurisdiction whose criminal law specifically classes those views as a public-order offence. Whether the Austrian law is a good law is a separate political question; what the case does not establish is that Irving was telling the truth.

The Lipstadt libel case

Irving sued Deborah Lipstadt and Penguin Books in the High Court in London for libel in 1996, after Lipstadt’s 1993 book Denying the Holocaust had described him as a Holocaust denier and falsifier of history. Under English libel law as it then stood, the burden of proof in a libel case was on the defendant to prove the truth of the words complained of. Lipstadt and Penguin therefore had to prove, against Irving’s challenge, that he was indeed a Holocaust denier and that he had falsified history. The trial ran for sixty days in the first half of 2000 before Mr Justice Charles Gray. Irving acted as his own counsel; he had unrestricted access to the proceedings; he could call his own witnesses and cross-examine the defendant’s witnesses. The defendant’s expert witnesses included Richard J. Evans (Cambridge historian, on Irving’s general historical practice), Robert Jan van Pelt (architectural historian, on the gas chambers at Auschwitz), Christopher Browning (on the killing operations on the Eastern Front), Peter Longerich (on Hitler’s role and the wider regime), and Hajo Funke (on Irving’s relationship with the post-war neo-Nazi movement). The trial examined Irving’s claims about Auschwitz, about the Hitler-Holocaust connection, about the killing of Jews on the Eastern Front, about the gas chamber evidence, and about his wider historical practice. The defendants’ case was that Irving was a Holocaust denier, that he was a falsifier of historical evidence, that he was a racist and an antisemite, and that he had associated himself with neo-Nazi groups; they had to prove all of this on the evidence.

Mr Justice Gray’s 333-page judgment, delivered on 11 April 2000, found for the defendants on substantially every point. The judge found that Irving had “for his own ideological reasons persistently and deliberately misrepresented and manipulated historical evidence”. He found that Irving was a Holocaust denier, an antisemite, a racist, and an associate of right-wing extremist groups. He found that the gas chambers at Auschwitz had operated as the historical record describes; that the killing of Jews on the Eastern Front had occurred at the scale and in the manner the prosecution had described; that Hitler had known of and authorised the killing operations; and that Irving’s claims to the contrary were not supported by the evidence and were the product of deliberate falsification rather than honest historical disagreement. The judgment is one of the most extensive judicial findings on any historical question in modern English law.

Irving lost the case. He was ordered to pay approximately £2 million in costs, was bankrupted as a result, and lost his house. The case was a public-relations disaster for the denial movement, since Irving had been the most credentialed denier (the only one with a serious publishing history with mainstream presses), and the trial had subjected the entire denial argument to unrestricted adversarial examination at his own initiative. The judgment is the canonical English-language judicial finding on the Holocaust evidence. The trial received extensive press coverage, was the subject of two major books by Lipstadt and Evans, and was dramatised in the 2016 film Denial.

The Austrian prosecution

The Austrian prosecution arose from a different sequence of events. Irving had given two lectures in Vienna and Leoben in November 1989 in which he denied the existence of the gas chambers at Auschwitz and made other claims classed under Austrian law as Wiederbetätigung (re-engagement with National Socialism, criminalised under the Verbotsgesetz). The Austrian authorities had issued a warrant for his arrest in 1989; Irving had not returned to Austria until November 2005, when he was arrested on entry to give further lectures. He was tried in Vienna in February 2006, pleaded guilty to a modified version of the charge, was sentenced to three years’ imprisonment, served approximately thirteen months, and was released and deported in December 2006.

The Austrian case was a state prosecution under a specific Austrian criminal law (the Verbotsgesetz of 1947) which has no direct equivalent in most jurisdictions. The law criminalises specific National Socialist propaganda activities, including denial of the Holocaust, and has been on the Austrian books since the post-war reconstruction. Whether the law is a good law is a contested liberal-political question; it has been criticised by free-speech advocates including ones who do not hold any sympathy with denial. The case was conducted under that specific law; Irving was not prosecuted for the views the court found to be true, since the court did not find his views to be true. The court applied the Austrian statute to speech that had been criminal in Austria since 1947, in lectures given in Austria, by a person who had been the subject of an outstanding warrant for sixteen years. The case is not the suppression of demonstrated truth; it is the application of a specific Austrian statute to specific Austrian speech.

The denier framing

The denier framing presents the Austrian case as the suppression of truth and ignores the London case entirely. The framing’s logic requires the listener to believe that a sympathetic court somewhere would have found Irving’s claims true, and that the only reason no court has done so is that all the relevant courts have been politically captured. The London libel case directly refutes this framing. The London court was not under any state prosecutorial pressure (the case was civil, brought at Irving’s own initiative, in a jurisdiction with strong free-speech protection); it heard Irving’s case unrestricted, in his own person, for sixty days; and it found his claims to be the product of deliberate falsification on the evidence presented. The denier movement has had no answer to this case for twenty-five years. The deniers’ silence on the London case is itself the strongest indicator that the framing of “Irving was prosecuted for the truth” is rhetorical rather than analytical.

Why the claim is harmful

The claim is harmful because it inverts the actual record of the central denier-historian’s adversarial encounter with the historical evidence. Irving was not a victim of state suppression of truth; he was a man who lost a libel case he himself had brought, after a sixty-day adversarial trial in the most permissive free-speech jurisdiction available to him, in which his entire historical practice was examined and found to be falsifying. Pretending otherwise requires ignoring the actual judgment, the actual evidence, and the actual conduct of the trial. The Austrian case is a separate matter under a specific Austrian law; whatever one thinks of that law, it does not establish what the deniers want it to establish. The claim that Irving was prosecuted for telling the truth has the relationship to the historical record exactly backwards.

What did the London libel trial of 2000 actually find? What was the Austrian case actually about? Why does the denier movement focus on the Austrian case and not the London one?

See also

• David Irving
• Deborah Lipstadt
• Adolf Hitler

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Sources

• Charles Gray (Mr Justice Gray), Judgment in Irving v. Penguin Books Ltd and Deborah Lipstadt, 11 April 2000, High Court of Justice, Queen’s Bench Division, [2000] EWHC QB 115
• Deborah E. Lipstadt, History on Trial: My Day in Court with David Irving, Ecco, 2005
• Richard J. Evans, Lying about Hitler: History, Holocaust, and the David Irving Trial, Basic Books, 2001
• D. D. Guttenplan, The Holocaust on Trial, W. W. Norton, 2001
• Robert Jan van Pelt, The Case for Auschwitz: Evidence from the Irving Trial, Indiana University Press, 2002
• Verbotsgesetz 1947, BGBl. Nr. 25/1947, as amended 1992, Republic of Austria
• Irving v. Austria, criminal proceedings of February 2006, Landesgericht für Strafsachen Wien
• Christopher R. Browning, expert report submitted to the Irving v. Lipstadt trial, available at the Holocaust Denial on Trial archive, https://www.hdot.org
• Peter Longerich, expert report submitted to the Irving v. Lipstadt trial, available at the Holocaust Denial on Trial archive, https://www.hdot.org
• Hajo Funke, expert report submitted to the Irving v. Lipstadt trial, available at the Holocaust Denial on Trial archive, https://www.hdot.org
• Holocaust Denial on Trial, the comprehensive online archive of the Irving v. Lipstadt trial materials, Emory University, https://www.hdot.org
• Denial, dir. Mick Jackson, BBC Films / Bleecker Street, 2016, dramatisation of the trial