The real cost of free speech

The UK legal system found that writer David Irving had manipulated and falsified historical documents, but it also nearly scuppered an attempt by historian Richard Evans to publish his account of Irving's discredited approach to history

On April 11 2000, in one of the most celebrated libel judgments of recent times, the High Court ruled that American historian Deborah Lipstadt had been right to accuse writer David Irving of manipulating and falsifying historical documents in the service of his denial of the Holocaust, his extremist, anti-Semitic ideology and his admiration for Adolf Hitler.

Irving's attempt to silence such criticism by suing Lipstadt for defamation had failed. Had it succeeded, Lipstadt's book would have been withdrawn by Penguin Books and nobody would have been able to level such accusations against Irving in public again. Freedom of speech had been vindicated. This danger had now been averted. Or so I thought at the time.

My own role in the case had begun more than two years before it came to court, when Lipstadt's solicitor Anthony Julius asked me to act as an expert witness in the case and to submit a report on Irving's way with historical documents. With the aid of two of my PhD students, I spent 18 months going through Irving's books and speeches. What I found was startling: in any number of instances, Irving misquoted and misinterpreted documents by leaving out whole words, phrases or sentences, putting in extra words to change the meaning, misreading handwriting, mistranslating from German, inflating statistics, or making bold claims that supposedly rested on research but in fact had no foundation in the documents. This was not just carelessness: all the mistakes served the same purpose, to provide seemingly plausible support for Irving's preconceived views. The High Court agreed, and in virtually every point it accepted my findings.

Although my report was written for the court case, it raised a number of questions of wider interest to historians and the general public. The complex issue of historical falsification had rather disappeared from sight in the press reporting of the trial. Yet it had been at the centre of the trial. I felt that this imbalance in public perception needed correcting. So I decided to bring out my report as a book. I cut out a lot of the more technical detail and added some new chapters recounting my involvement in the trial, my view of its significance and my reflections on the relationship between history and the law. I finished the book in October 2000 and started looking for a publisher - which is when my troubles began.

Like many historians, I have a literary agent. He met with a ready response at William Heinemann, an imprint of Random House UK, Britain's biggest publishing corporation and an arm of the multinational Bertelsmann Group. A contract was signed and everything looked set for publication in spring 2001. Heinemann advertised the book in glowing terms on its website, and it went to a freelance copy-editor for preparation for the typesetter. Meanwhile, another contract was signed for the US edition, with Basic Books, a small but well-known publishing house in New York.

While all this was going on, Irving had not remained silent. In interviews and comments on his website, he described the verdict as "perverse" and ascribed his defeat to the fact that the judge was "an up-and-coming member of the establishment" who had not grasped the issues. Although almost all of the costs were paid by Penguin and its insurers, Irving claimed that the defence had been bankrolled by Jewish money. This had induced the expert witnesses to give biased testimony. In fact, we were paid by the hour, not by results, and we were free to write and say what we liked.

Irving's especial venom was reserved for me. On his website, a little logo of a skunk flashed up when my name was featured. There was other more puerile material. "Evans is a flat, dull, boring, venal, corrupt conformist who willingly sold his soul to the Devil" was one of his milder diatribes. But most was so silly that I did not find it at all upsetting or threatening.

Apparently, however, publishers did. Knowing this might be the case I thought it prudent to get some informal advice on my book manuscript from the solicitor who had run the defence case and the QC who had presented it in court. Both advised some cuts and corrections, which I made. Meanwhile, my US publisher obtained a libel reading from a defamation attorney whose name, bizarrely, was Goering. ("I can't call you that," I told him on the telephone, "may I use your first name?" "Sure," he said, "It's Kevin." I began to feel I was taking part in a Monty Python sketch.) I was sent a list of queries and made a couple of trivial changes as a result. Kevin Goering was confident. "Let him just try to sue," he said. "I'd really enjoy beating him in court." "It's a pleasure I can do without," was my response. The book was duly published in May 2001, was widely and favourably reviewed and has just gone into paperback. So far, Irving has not tried his luck in the US courts, despite threatening to do so.

Heinemann also commissioned a libel reading. By December 2000, Telling Lies about Hitler , as it was now called, was ready for the typesetter and I was expecting proofs. Instead, there was a deafening silence. Phone calls, emails and letters went unanswered. Then, without any warning, I received a letter in mid-February announcing that Heinemann was cancelling the contract "on the basis of legal advice". I was paid my modest advance, plus a small amount in compensation, and my editor washed his hands of the affair with pious expressions of regret.

Heinemann did not show me the libel reading that supposedly formed the basis for its decision. Nor did it give me an opportunity to make changes that might have been thought necessary as a result. My editor insinuated that all the later chapters of the book would have to be deleted.

In fact, what the libel report concluded was that Irving was unlikely to sue, that the book's statements about him were covered by the trial judgment and that Irving lacked the financial resources to mount a costly action. As a result of the trial, he had virtually no reputation left to lose. Heinemann claimed to be worried about the outcome of Irving's appeal application, but it would have lost nothing by waiting for it. In any case, its legal advice was that Irving's prospects for obtaining leave to appeal were exceedingly small. Subject to amendments asked for in a spirit of extreme caution on just nine out of nearly 500 pages of manuscript, the libel report concluded by advising that publication was a fair business risk. But I was never told this by Heinemann.

All this left a bad taste in the mouth. I was delighted, therefore, when my agent told me that Granta Books was willing to step into the breach. A small firm able to take decisions free from corporate interference, it had published a previous book of mine, In Defence of History , to our mutual satisfaction. The new book dealt with similar issues of truth and fiction in history and would make a good companion volume. Granta commissioned another libel reading, which was delivered in mid-March 2001. Unlike Heinemann, it had no hesitation about sharing its findings with me. It had very few substantive points to make. I made two minor changes in the wording of a couple of sentences so that Granta would not feel it had wasted its money.

Meanwhile, Irving sent Granta his standard letter announcing that he would sue for "punitive damages" should it publish my book. Granta's lawyers agreed that there was a possibility that Irving might sue and if so, it would be unlikely to recover its costs whatever the outcome. To cover the risk, my editor offered a four-book deal, including Telling Lies about Hitler and three other books as yet unwritten. While a lot of toing and froing between various parties - mostly Granta and my agent - took place, I did not sign anything and did not consider myself bound to the deal.

At first sight, it seemed like a good offer. Yet it gradually began to seem less so. The advance was not high. The three new books would take at least a decade to write. Yet in seven or eight years' time, I might want to write something else instead. For an agent, such a deal means an easy time until the next deal is signed. For the author, however, it means agreeing an advance now for books that might be worth a lot more a few years on. Everyone I talked to thought the deal was a bad one. Slowly but steadily, my doubts grew.

Meanwhile, it was full steam ahead on Telling Lies about Hitler , which was ready to go to the printer by the end of June 2001. At this stage, I met with my editor and with Granta's managing director and told them of my doubts about the deal. The meeting ended inconclusively. Meanwhile, my agent was still urging me to complete the four-book deal and assuring me that it was the best I was likely to get and that without it, Granta was unlikely to publish Telling Lies, even though Granta had never told me this. In view of all this, I felt that it was time for a fresh mind to be applied to the problem. So I dispensed with my agent's services and signed with another agent. Talking to him crystallised my feeling that I should not have agreed even informally to the four-book deal.

When we told Granta of this decision, it immediately pulled the plug on Telling Lies and angrily denounced me for leading it up the garden path. Yet who had been deceiving whom here? All I had done was to change my mind about three unwritten books for which I had not even seen the contracts, let alone signed them. I had taken a long time to do this because my former agent had kept insisting that the deal was a very good one, and it is not easy to go against your agent's advice. After months of negotiations, we were back at square one.

My new agent acted swiftly and decisively. After lengthy discussions with him, I decided to scrap all my existing plans and write one big book that I had been working up to for many years: a history of the Third Reich. The book was quickly signed to Random House in the US, Penguin UK and foreign-language publishers in Germany, Holland, France, Italy and Spain, securing me an advance for one book many times larger than the one my old agent had wanted me to accept for four. This alone seemed reason enough in retrospect for changing my representation.

There still remained the problem of finding a publisher for Telling Lies about Hitler . We approached my US publisher, Basic Books, which had just opened a London office and was about to bring out the book in paperback. Would it not make sense to bring out the book in paperback on both sides of the Atlantic at once? But, to my surprise, it seemed that like his counterpart at Granta, my editor at Basic, too, was under the impression that he would be publishing all my future books, in the US at least, even though this had never been made clear to me. Since he had not secured the US contract for The Third Reich , he declared himself unwilling to publish a UK edition of Telling Lies.

Irving had somehow got wind of our approach, and he sent my New York editor one of his standard letters threatening legal action. My editor was well aware of what the English libel readings had advised. Yet he wrote a grovelling reply to Irving ("Dear David"), sending him his "best wishes" and telling him: "On the Evans matter, we are not planning on publishing a UK edition of the book, though the author and agent have asked us to. There are too many problems and complications, as you well know." My editor did not copy the letter to me: I found out about it from Irving's website. This was astonishing. I had naively assumed that I could expect an editor who had published and marketed my book in the US, and presumably thought it was telling the truth, would stand by it when it was called into question. I felt betrayed and was left gasping in disbelief.

The next publisher we approached was Profile Books, a small but highly regarded London firm. I set up a meeting with the company at a firm of London solicitors, who generously offered to represent Profile free of charge to petition the High Court to summarily dismiss any lawsuit that might be brought by Irving. The solicitors advised Profile that his prospects in such an action would in any case be virtually nil. Not long after this, he was declared bankrupt, reducing his already minuscule prospects still further. Despite all this, however, Profile's managing director refused to publish the book, declaring that the "tiny kernel of doubt' that remained about its legal standing made it impossible for him to take the risk.

What counted in the end with publishers was not so much the fear of losing - for all the companies approached agreed that Irving would stand little chance of winning - but the expense involved in mounting a defence against someone who was in no position to pay the defence's costs. This seemed as true of tiny Profile, which evidently feared that a libel action by Irving might get beyond the initial stage and ruin it in the process, as it was of the corporate giant Random House. The original case, after all, had cost Penguin well over £2 million, which it was unlikely to recover.

At this low point in my fortunes, The Observer stepped in and published a lengthy article on the affair. As a result of this article, I had an offer from Verso, an imprint of New Left Books. The book will be published on June 26.

Publishing is a business, and it has to make a profit. But one publisher after another appears to have been so terrified of what may in reality be a tiny risk to its bank balance that they have cravenly surrendered to the threat of legal action despite all the advice from lawyers that publication would be an acceptable commercial risk. Penguin, which fought the original libel case, and Verso, are honourable exceptions. But they are too few. There is a climate of fear in British publishing, spread by this country's iniquitous libel laws.

Mine is not an isolated case, not even as far as Irving is concerned. The American historian John Lukacs, author of The Hitler of History , published in the US in 1997, accused the author of "frequent 'twisting' of documentary sources". Irving threatened to sue if the book came out in the UK. After the High Court confirmed that Irving did indeed engage in such manipulations, Weidenfeld at last plucked up the courage to publish the book at the end of 2000. Yet it excised all reference to the manipulation and twisting of the sources and generally bowdlerised Lukacs's criticisms of Irving. Nine months had passed since the judgment had been delivered, plenty of time to produce a book; yet Weidenfeld still seemed to be afraid.

So despite the legal judgments, Irving appeared to have met with some success in his tactic of using the law to suppress justified criticism of his work. It was not by chance that Irving did not try to sue Lipstadt, Lukacs or me in the US, where freedom of speech is anchored in the Constitution. A claimant has to prove malice if a libel writ is to stick, and a defendant can plead fair comment if the claimant is a public figure.

In our supposedly liberal country, however, there is no fundamental presumption in favour of free speech, a claimant has to prove nothing, and a statement alleged to be defamatory is considered to be a lie unless proven otherwise. The cards are all stacked against a defendant from the outset.

Libel cases have become a popular spectator sport for the media over the past few years, but however entertaining they may be, that cannot justify the very real damage the law of defamation does to the freedom of speech in our country. We badly need a reform of the law that will put some of the burden of proof on claimants, and we need legislation that will enshrine free speech as a basic human right. Otherwise those who are unscrupulous enough to use the threat of invoking the law to prevent criticisms of their views and their actions will continue to be able to intimidate publishers into silence, to the detriment of us all.

Richard J. Evans is professor of modern history at Cambridge University. Telling Lies about Hitler is published on June 26 by Verso.