(Objective historian standard applied to determine libel in Irving v. Penguin Books Ltd).

• Author: Schneider, Wendie Ellen
• Position: Case Note

Irving v. Penguin Books Ltd., No. 1996-I-1113, 2000 WL 362478 (Q.B. Apr. 11), appeal denied (Dec. 18, 2000).

During the course of Holocaust denier David Irving's libel action against American historian Deborah Lipstadt and her publisher, Penguin Books, press coverage frequently referred to the spectacle playing out in England's High Court as "history on trial."(1) It would be closer to the mark, though undeniably less catchy, to call it "historical methodology on trial." The judge hearing the case, Justice Charles Gray of the Queen's Bench, stressed this distinction in his opinion,(2) where he relied on an "objective historian" standard in judging Irving's scholarship. This standard had no legal precedent; instead, it was based on the report submitted by one of the defendants' expert witnesses, Richard J. Evans.(3) While this standard was crafted for a British libel suit, I argue here for its rebranding as a "conscientious historian" standard and for its application in American cases employing historians as expert witnesses.

I

David Irving, a British historian of Nazi Germany, brought a libel suit against Deborah Lipstadt, Dorot Professor of Modern Jewish History and Holocaust Studies at Emory University, and her publisher, Penguin Books, based on references to Irving in Lipstadt's book, Denying the Holocaust: The Growing Assault on Truth and Memory.(4) In her book, Lipstadt quoted other scholars who have described Irving as "a `Hitler partisan wearing blinkers' and accused him of distorting evidence and manipulating documents to serve his own purposes."(5) Irving, Lipstadt concluded, "is one of the most dangerous spokespersons for Holocaust denial. Familiar with historical evidence, he bends it until it conforms with his ideological leanings and political agenda."(6) Irving went to court, claiming that the book was part of a "concerted attempt to ruin his reputation as an historian," and sought damages.(7) Under the peculiar libel law regime that makes England a libel plaintiff's paradise, Irving's action shifted the burden to Lipstadt and Penguin to demonstrate the truth of their assertions.(8) Penguin invested 2.5 million [pounds sterling] in an ambitious research project to prove Lipstadt's accusations, employing a team of historians to scour Irving's works.(9)

The trial was extremely controversial. At one point, Irving, who represented himself in this bench trial, referred to Justice Gray as "Mein Fuhrer," apparently unconsciously.(10) Other testimony dealt with a nursery rhyme Irving composed for his daughter: "I'm a Baby Aryan/Not Jewish or Sectarian/ I have no plans to marry-an/ Ape or Rastafarian."(11) While congratulating Irving for skillful presentation of his case (and politely overlooking his Freudian slip), Gray nonetheless resoundingly found in favor of Lipstadt and Penguin in a lengthy opinion, concluding:

Irving has for his own ideological reasons persistently and deliberately misrepresented and manipulated historical evidence; that for the same reasons he has portrayed Hitler in an unwarrantedly favourable light, principally in relation to his attitude towards and responsibility for the treatment of the Jews; that he is an active Holocaust denier; that he is anti-semitic and racist and that he associates with right wing extremists who promote neo-Nazism.(12) The worldwide relief following Gray's verdict was almost palpable.(13)

The verdict was widely interpreted as a defeat for Holocaust denial, but the defendants' strategy at trial emphasized Irving's methodology, not his conclusions. By focusing narrowly on Irving's evaluation of evidence, the defense laid the groundwork for Gray's sweeping verdict. First, the defense's concentration on interpretation resonated with the affinity of the judge and the historian as evaluators of documentary evidence.(14) By presenting Irving's failure as a systematic misjudgment of the historical record, the defendants encouraged Gray to contrast his own experience and instincts as a trial judge with Irving's use of evidence. The result, not surprisingly, was unfavorable to Irving. Second, by stressing evidentiary standards, the defense engaged Irving, and by extension the Holocaust deniers as a group, on his own territory. Holocaust denial over the past three decades has often presented itself in pseudoscholarly garb, clothed in footnotes and other academic niceties.(15) In particular, Holocaust denial has specialized in spurious assertions that it applies a more rigorous standard to historical evidence than do scholars who assert the Holocaust occurred.(16) By attacking Irving's use of evidence, therefore, the defense struck at the very heart of Holocaust denial.

II

While Gray's opinion has received extensive praise for its definitive rebuke of Holocaust denial, the route by which he reached this end has scarcely been discussed.(17) Drawing on Evans's report, Gray created an "objective historian" standard, a fictional embodiment of common sense somewhat reminiscent of the "man on the Clapham omnibus" standard traditionally used in English law.(18) Gray found that Irving's departures from the "objective historian" standard were substantial: "Irving has misstated historical evidence; adopted positions which run counter to the weight of the evidence; given credence to unreliable evidence and disregarded or dismissed credible evidence."(19)

Justice Gray did not explicitly formulate a test for "objective historian" status separate from his criticisms of Irving's conduct in particular instances.(20) Nonetheless, by putting together Gray's criticisms of Irving and Evans's summary of "generally accepted standards of historical scholarship,"(21) one can distill a code of conduct for the objective historian: (1) She must treat sources with appropriate reservations;(22) (2) she must not dismiss counterevidence without scholarly consideration;(23) (3) she must be even-handed in her treatment of evidence and eschew "cherry-picking";(24) (4) she must clearly indicate any speculation;(25) (5) she must not mistranslate documents or mislead by omitting parts of documents;(26) (6) she must weigh the authenticity of all accounts, not merely those that contradict her favored view;(27) and (7) she must take the motives of historical actors into consideration.(28)

III

This "objective historian" standard may in fact be more useful in America than in its country of origin. The "turn to history" in American jurisprudence(29) has created an increase in the number of prominent cases employing historical arguments.(30) This Case Note focuses on the testimony of historians serving as expert witnesses at the trial level. Historians have testified in a range of cases: Indian rights;(31) land claims;(32) gender discrimination;(33) deportation of alleged Holocaust participants;(34) voting rights;(35) and gay rights,(36) among others. Yet, historians called upon to testify claim that the standards applied by courts in assessing their testimony are contradictory or irrational.(37)

Historians are not alone among social scientists and other non-scientific experts in confronting an absence of coherent standards.(38) The judicial guidelines for evaluation of expert testimony have undergone substantial redefinition over the past decade. Beginning with Daubert v. Merrell Dow Pharmaceuticals, Inc.(39) in 1993, the Court abandoned the longstanding Frye test, which looked to "general acceptance in the particular field."(40) Instead, the Court proposed a list of factors for the trial court to consider including: whether a technique or theory can be (or has been) tested;(41) whether it has been subject to peer review and publication;(42) its known or potential rate of error when applied;(43) existence and maintenance of standards and controls;(44) and general acceptance.(45) These factors, however, were not presented as a "definitive checklist" but rather as "observations" for the trial court to consider.(46) The inquiry, the Court noted, should be a "flexible one."(47) Moreover, it should focus on methodology rather than conclusions.(48)

The Court's decision in Daubert, as commentators quickly pointed out, left unresolved the question of whether the new test for expert testimony encompassed specialized knowledge or social science evidence as well as scientific evidence.(49) In Kumho, the Court expanded trial courts' "gatekeeping" function to all expert testimony,(50) but again emphasized the flexibility of the inquiry, concluding "we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert."(51) Most recently, the December 2000 amendment of Federal Rule of Evidence 702 codified the focus on methodology present in both Daubert and Kumho.(52)

While Kumho may have resolved the debate over Daubert's scope, it did little to clarify how Daubert's factors might be applied to social science evidence. In some cases, lower courts have been frustrated in their attempt to apply the Daubert factors to certain disciplines, including the social sciences.(53) The listed factors appear to be particularly ill-suited to evaluation of historical expert testimony.

Consider, for a moment, an evaluation of Irving's work under the Daubert factors. The decision in Daubert was motivated in part by a desire to exclude "junk" science. Would its factors exclude "junk" history as well? Testability, the first factor, does not apply to historical scholarship in anything like the traditional controlled laboratory sense no doubt envisioned by the Court. At best, another historian could (as the Penguin team did) revisit all of the sources a colleague cited. In the Irving case, testing of this sort revealed a pattern of questionable interpretations, but did so at an impractically great cost, in both time and money.(54) Daubert's second factor, publication and peer review, does not help separate Irving's work from acceptable historiography. Irving's books have...