One would expect, that a litigant - especially one like Irving who claims to be totally ignorant of the law - would at the least consult competent counsel prior to taking any action. Competent counsel is required to explain the legal dangers and pitfalls of a cause of action and point out the technical realities of the courtroom. As will be made clear, Irving's decision to file in Great Britain was apparently based upon an incomplete understanding of American law and a woeful ignorance of the advantages he could have had in an American court. To explain his decision Irving has repeatedly claimed that the famous case of "New York Times v. Sullivan" would have precluded recovery in the United States. The odd claim that no action in defamation can be brought by a "public figure" was reiterated by Irving in a recent interview on Court-TV after the evidence was complete and his mistake evident, when he said:
A more colorful explanation of this ignorant view of American law can be found on the internet site of Raeto West, who serves as a Charlie McCarthy to Irving's Edgar Bergen where this rather bizarre and illogical explanation is presented:
Even if Irving does not sink as deep in his ignorance as West, his position is so gross a misstatement of American law that it is clear that either Irving failed to consult an American lawyer, ignored the advice of American lawyers, or is deliberately misstating the reason for his decision. "New York Times v. Sullivan" 176 US 254 (1964) is one of the landmark cases of the law of defamation in the United States. It holds that the free exchange of debate about public officials is so important an interest that no defamation action by a public official could be maintained unless "actual malice" could be proven. This decision does not, however, directly affect Irving as he claims. It applies only to public officials. The decision which could affect him, as any American lawyer could have explained, is a later decision "Curtis Publications, Inc. v. Butts" 388 US 130 (1967) in which the Supreme Court held that, under certain circumstances a private person could be so prominent that the standard for public officials should be applied to them. This is, apparently, the basis for Irving's fallacious claim that "New York Times" would have precluded his lawsuit. But this position is simply not supported in American law. Not only does "Butts" not bar such lawsuits (as Irving claims) but it is not even certain that Irving would qualify as a public figure. The crucial point of "Butts" (a football coach in Alabama) was that some private individuals were so prominent and had so much access to the media that they have the same advantages in a public debate as public officials. It is, however, a later case "Gertz v. Robert Welch, Inc," 418 US 323 (1974) which actually defines a "public figure." "Gertz" states that there are actually two types of public figures. The first is a pervasive or "all-purpose" public figure who is considered the equivalent of a public official in any action. These are people of prominence and influence who have, by assuming that position "voluntarily exposed themselves to increased risk of injury from defamatory falsehood." ("Gertz" pp. 344-5). It is, in fact, quite rare that this status is accorded to a private person. For example the Third Circuit Court of Appeals (which covers Pennsylvania, New Jersey, Delaware, and Maryland) has never found a plaintiff to be an all-purpose public figure. Examples of those who have been determined all-purpose public figures by the Courts include Jerry Falwell, Johnny Carson and his wife, and the head of a Mafia family. Clearly Irving fails to meet this standard except in his own mind. The final category to which Irving could be claim membership is that of "limited purpose" public figures. Limited purpose public figures are those who have thrust themselves to the forefront of a public controversy and who, thereby, surrender their position as a private figure to the extent that the alleged defamation relates to their participation in that controversy. The concept that the plaintiff "injected" himself into that controversy is of extreme importance. "Iafrete v. Hadesty" 621 A.2d 1005 (Pa. Super.; 1993). In determining whether a plaintiff is a limited purpose public figure, the courts must consider whether the alleged defamation involves a public controversy and the nature and extent of involvement in that controversy in which the plaintiff has injected himself.. "McDowell v. Patewonsky" 769 F.2d 942 (3rd Cir.; 1985). That same case defines public controversy as involving a "real dispute the outcome of which affects the general public or some segment of it." Matters which are merely "of interest to the public" are not characterized as "public controversies." (769 F2d at 948) Since "Gertz" is the basic case on the concept of defining a public figure, it is instructive to look at the plaintiff in that case to discover how this standard is applied and how it would be applied to Irving. Elmer Gertz was a prominent attorney in Chicago, a professor in a law school who maintained a private practice on the side and wrote books about his work; in the 1960s he occupied a place quite similar to that which Alan Dershowitz occcupies today (without, of course, the wide exposure that cable television gives Dershowitz today). His clients included such public figures as Nathan Leopold (for whom he obtained a parole), Jack Ruby and the Ruby estate, and Henry Miller. In one of their publications, "American Opinion," the John Birch Society related a controversy over illegal activities of the Chicago Police Department in spying upon and harassing groups that opposed Mayor Richard J. Daley. The magazine claimed that Gertz, who was not the lead attorney in the actions against the police department, was a "Communist" agent who had stirred up the problem. The Supreme Court rejected the defendants' claim that they were entitled to the protection of "New York Times" and held that Gertz was not a limited purpose public figure. There is no certainty, therefore, that an American court would have characterized Irving as a limited purpose public figure. Indeed, the holding in "Gertz" indicates that it is unlikely that Irving qualifies as a limited purpose public figure. First, there appears to be no actual "controversy" within the legal meaning of the term. The propositions that the Holocaust did not occur or that Hitler was not responsible for it, are simply not matters of controversy affecting the public. It is, at best, an academic debate in which Irving, who claims he is not a historian of the Holocaust, has only participated on a limited basis. Moreover, the "defamation" of which he complains does not really involve that debate but how he has, generally, conducted himself as a "historian" and concerns material that was not part of that debate. The application of the label "limited use public figure" to an individual is narrowly defined and used only with hesitation. Even if Irving's dubious assertion that an American court would find him a public figure for the purpose of his lawsuit, Irving's position that his lawsuit would be barred under American law is without merit. The law applied to public figures does not, as Irving and West, state, automatically preclude such actions. It only places an additional burden on the plaintiff; that of showing "actual malice." What is confusing to many is that the phrase "actual malice" has, in this context, a very specific and a very limited meaning. It does not encompass to motive and it does not mean "ill will" or a desire to injure someone's reputation. The sole meaning of "actual malice" in this context, is that the person making the defamatory statements either knew that they were false or acted with a reckless disregard for whether they were true or not. To distinguish this term from the normal meaning of malice, the term "constitutional malice" is often used for specificity with the term "common law malice" (which is also used in the American law of defamation) denoting the common meaning of "malice." To claim that the requirement of demonstrating "constitutional malice" is an insurmountable barrier for Irving or any other public figure is just as foolish as Irving's basic assertion that "New York Times" bars his action. While the presence of "actual malice" and the burden it imposes upon a litigant is grist for the lectures of law professors, its practical effect is negligible. To paraphrase Annie Savoy's comments about baseball, law might elucidate the metaphysical ontology of the universe, but it is also a business. American trial lawyers who represent plaintiffs in defamation cases do so on a contingency basis; that is, their compensation is based on the amount that they can actually collect on a judgment. The harsh reality is that, whatever the technical burden of proof, the size of the verdict depends on convincing the jury that a large award is justified. And what convinces a jury to reach deep into the pockets of a defendant is malice. One of the most successful plaintiffs' attorneys in the U.S., who has won cases for several acknowledged public officials (Sen. Paul Laxalt) and public figures (Richard Sprague, First Assistant District Attorney of Philadelphia) openly states that a case is worthless unless he can convince the jury that the defendant acted with both "constitutional" and 'common law" malice. Thus, while "New York Times" might impose an additional technical requirement on a "public figure" there is no change in the realities of the litigation. |
What is even odder about Irving's claim is that, when he entered the court room in London, not only did he attempt to prove constitutional malice, but his task was made harder because the concept is judicially unknown in Great Britain. From the beginning Irving has claimed that Denying the Holocaust was the end result of a lengthy conspiracy to demolish his reputation and deprive him of his livelihood. Irving has this to say about a "conspiracy" on his internet site:
This statement can be characterized as the theory used by Irving in the development of his case. It was the underlying theme of both his opening address and his closing argument which he directed not at the judge but to the spectators. It was Irving's burden to prove this conspiracy if he was to prevail. And, significantly, it is exactly the legal theory that could have established "actual malice" in an American court. Irving's case was soundly rejected by the British judge hearing the case even before the final submission to the court. In short, Irving's decision made it even harder for him to win his case. Irving handicapped himself by attempting to present a theory of the case which was alien to British libel law and was further hampered by the practical realities of how evidence is presented in Great Britain. While his decision to have a bench trial allowed him a latitude to play to his claque - an opportunity not as available in a jury trial - his choice of jurisdiction frustrated and, ultimately, defeated him. Irving, given the rare luxury of a choice of forums in which to bring his action, exacerbated the problems of his tenuous and marginal case. Irving's initial mistake of ignoring the opportunity to bring his lawsuit in the United States, was an error from which neither he nor any other litigator could recover. It was not the last mistake Irving would make, but it was one of the most important. In grasping for the illusory advantages of British libel law, Irving came up with a handful of air.
Go to Part 2: "Opening a can of worms"
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Last modified: April 11, 2000
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