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 ShowAs 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 OpinionThe 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.
ConclusionAs 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.