Deborah Lipstadt’s momentous courtroom victory over David Irving is one of those great moments in legal history when truth, justice, and freedom of speech are all simultaneously served. Truth does not, of course, need a judicial imprimatur to be validated. Regardless of what any court might rule, David Irving’s denial of the Holocaust will always be a lie and Deborah Lipstadt’s exposure of Irving’s lies will always be the truth. Justice, on the other hand, is not nearly as absolute and uninfluenced by human evaluation as is truth. Justice is often in the eye of the beholder, since it is a function of perception, attitudes, experience, education, and values. The great American judge Oliver Wendell Holmes Jr. once scolded his law clerk for complaining that a particular legal decision was not “just.” “Our job,” Holmes told his clerk, “is not to do justice; it is to apply the law.” How much better it is, however, when justice is done by applying the law, as occurred in this case.
Truth and justice are sometimes served only by compromising freedom of speech, as when nations ban Holocaust denial speech, racist speech, sexist speech, or other forms of bigoted falsehood. Had David Irving been the defendant in a case seeking to censor his lies, and had he lost, it might be argued that the loss compromised principles of free speech. But Irving was the plaintiff here. It was he who was trying to censor Lipstadt’s truth by suing her for defamation. Had he won, it would have been a defeat for truth, justice, and free speech. Thankfully, he lost—and he lost resoundingly and unambiguously. Truth, justice, and free speech won, and won big. Yet “some journalists called the verdict “a blow to free speech.”1 This is an absurd conclusion. Freedom of speech includes the right to expose lies, as Lipstadt did. It does not grant immunity from criticism to bigots like Irving. The marketplace of ideas must be open to all, not just neo-Nazis. Indeed, one reason why false and offensive speech is permitted in most liberal democracies is precisely because the best answer to bad speech is good speech, rather than censorship. Absent an opportunity to respond to the falsehoods spread by the likes of Irving, it would be more difficult to make the case for permitting racist liars to pollute the marketplace of ideas. Indeed, before Irving lost his case, several publishers had refused to issue books critical of Irving, out of fear of his bringing expensive and time-consuming lawsuits. That was a chilling of free speech. The chill was thawed by Lipstadt’s victory for freedom of speech.
We live at a time when Holocaust denial, Holocaust trivialization, and Holocaust minimization are increasingly being used as part of a larger anti-semitic and anti-Israel agenda. Hard-core deniers are supported and praised by people such as Noam Chomsky and Norman Finkelstein, while those who seek justice for Holocaust survivors are condemned by Finkelstein and his ilk. Chomsky has, in defending his absurd view that there are no “anti-Semitic implications in denial of the existence of gas chambers, or even denial of the Holocaust,” added the following pregnant words: “whether one believes it [the Holocaust] took place or not.” And he has praised Robert Faurisson, a hard-core Holocaust denier, as a scholar whose “findings” that the Holocaust did not occur were “based on extensive historical research.” Chomsky’s statements provide substantive support for the “finding” that the Holocaust is a debatable issue or a fraud. Perhaps on Planet Chomsky, but not in the real world, in which Nazi butchers murdered millions of Jewish children, women, and men. In a similar vein, Norman Finkelstein has praised the Holocaust-denying David Irving as a “good historian” who has made an “indispensable” contribution to our knowledge of World War II.2
At the other end of the political spectrum are people such as Patrick Buchanan, who have defended Nazi war criminals including Klaus Barbie, Karl Linnas, and the SS killers buried at Bitburg and expressed skepticism about Holocaust claims, doubting whether Jews were gassed at Treblinka.3
The work of keeping the memory of the Holocaust alive is thus not completed. Lipstadt’s victory was the most important courtroom defeat for Holocaust denial in recent history. But the struggle must persist, on university campuses, at the United Nations, in the media, in publishing houses, and wherever ideas are important. There is no excuse for silence on this important issue. The truth must be spoken again and never silenced. Deborah Lipstadt led the way. She has proved that the best response to Holocaust denial is not futile attempts at censorship, but rather active exposure of the falsehood of these bigoted claims. When Holocaust deniers speak their lies, we must respond with the truth—with the facts, the evidence, and the documentation. Truth and justice are on our side. Lipstadt has shown us that freedom of speech is also on our side. So let us exercise our collective right to tell the truth and to expose falsehood. Lipstadt has done her job, and so has the court, and they have done it well. Now it is our job to continue the never-ending quest for truth, justice, and freedom of speech.