"Criticism in Jeopardy?"

Dokumentation der Diskussion von H-GERMAN

Anschliessend an zwei zusammenfassende Beitraege von Dan Rogers ueber Artikel in der FAZ ["FAZ Article on Birn & Goldhagen"] und im SPIEGEL ["Der Spiegel on Birn & Goldhagen"] entwickelte sich in den vergangenen Wochen auf H- GERMAN eine 'post-Goldhagen-Debatte'. Inhaltlich werden dabei verschiedene Aspekte diskutiert, von denen hier nur einige benannt werden koennen:

Auf H-GERMAN fand vor etwa eineinhalb Jahren ein Grossteil der sogenannten 'Goldhagen-Debatte' der amerikanischen Deutschland- und Holocaust-Historiker statt; der Verlauf der damaligen Diskussion ist auf der Web-Seite von H-GERMAN <http://www. h-net.msu.edu/~german> einsehbar. Beitraege zur aktuellen Debatte sollten direkt an H-GERMAN <h-german@h-net.msu.edu> gesandt werden oder werden von uns an die Editoren von H-GERMAN weitergeleitet.

Verlauf der Debatte auf H-GERMAN zwischen dem 12.11.97 und 24.11.97:

  1. Wed, 12 Nov 1997: FAZ Article on Birn & Goldhagen (Dan Rogers)
  2. Fri, 14 Nov 1997: Der Spiegel on Birn & Goldhagen (Dan Rogers)
  3. Sat, 15 Nov 1997: Criticism in Jeopardy? (Alan Buel Kennady)

Alle folgenden Diskussionsbeiträge liefen unter dem Subject: "Criticism in Jeopardy?"

  1. Sat, 15 Nov 1997: Kenneth F. Ledford  ; Geoff Megargee
  2. Sun, 16 Nov 1997: David Crawford
  3. Mon, 17 Nov 1997: Willem Melching ; Edward Tenner
  4. Tue, 18 Nov 1997: Kenneth F. Ledford ; David A. Brenner ; Guenter Bischof ; Gerald D. Feldman ; Richard Wiggers ; Milton Goldin
  5. Wed, 19 Nov 1997: Jorg Bottger ; Andreas Kunze ; Peter Hoffmann ; Ronald Shearer
  6. Sat, 22 Nov 1997: Jeremiah Riemer
  7. Sun, 23 Nov 1997: Gulie Ne'eman Arad ; Alan Buel Kennady ; Charles Maier
  8. Mon, 24 Nov 1997: Reid Rozen  ; Kenneth F. Ledford ; Jorg Bottger


Date: Wed, 12 Nov 1997 17:39:22 -0600
From: H-GERMAN EDITOR Dan Rogers <drogers@jaguar1.usouthal.edu>
Subject: FAZ Article on Birn & Goldhagen

H-German subscribers may wish to be aware of an article appearing in the 4 November 1997 _Feuilleton_ section of the _Frankfurter Allgemeine Zeitung_. Entitled "Der Schutz des allmaechtigen Autors - Rechtsanwaelte lesen lassen: Wie Daniel Jonah Goldhagen mit seinen Kritikern verfaehrt," the article concerns a review of Goldhagen's _Hitler's Willing Executioners_ by Ruth Bettina Birn, in collaboration with Volker Riess. The review appeared in the _Historical Journal_ 40, 1 (1997):195-215, published by Cambridge University Press. Goldhagen recently responded in the latest issue of _German Politics and Society_.

According to the FAZ article, the following supposedly occurred:

+ a London attorney wrote Birn after publication of her review, accused Birn of defaming the character of Goldhagen, and included a listing of supposed misrepresentations of Goldhagen's work in her review.

+ the letter from the attorney supposedly also demanded a public apology and retraction.

+ Concerning the legal process begun by the attorney's letter and its implications, the FAZ article states: "Sieben Tage Frist wurden zur Antwort gewaehrt. Sechs lange Jahre hat dagegen Daniel Goldhagen nun Zeit zu ueberlegen, ob er den naechsten Schritt tun will. Ruth Bettina Birn publiziert somit auf Bewaehrung."

The article makes this general statement about the significance of the event: "Das Neuartige und Ungewoehnliche dieses Vorgangs liegt darin, dass hier ein Autor versucht, wissenschaftliche Kritik nicht durch Argumente zu widerlegen, sondern mit dem Hinweis auf ein eventuell einzuleitendes Gerichtsverfahren zu unterbinden. Dergleichen ist in der 'scientific community' unueblich."


Date: Fri, 14 Nov 1997 15:58:02 -0600
From: H-GERMAN EDITOR Dan Rogers <drogers@jaguar1.usouthal.edu>
Subject: "Der Spiegel" on Birn & Goldhagen

Two days ago, H-German carried news of an article in the _Frankfurter Allgemeine Zeitung_, concerning possible legal action involving Ruth Bettina Birn's review of Daniel Jonah Goldhagen's _Hitler's Willing Executioners_. As a follow-up, we are including information below about an interview Birn gave to _Der Spiegel_, which appears in its 10 November 1997 issue.

We would like to stress that we have no independent knowledge of the actions discussed in the interview and are only providing information about the contents of the _Spiegel_ article. We feel that H-German's subscribers may wish to consider, and even discuss on our network, the implications for the scholarly community of the events described. In particular, will the mere threat of lawsuits become a more common means of responding to heavy criticism? Will the "chilling effect" so often cited whenever speech is somehow to be limited become a reality in scholarly exchanges? Even as I am typing these words, a cold wind is blowing, and I find myself questioning every possible malign misinterpretation of every word I have written. We're not sure the scholarly world can proceed under these circumstances, and we would be interested in your opinions. We do remind you that the content of Goldhagen's book was discussed thoroughly over a year ago and is not really the issue now. The record of that discussion can be found on our Web site at www.h-net.msu.edu/~german.

Goldhagen's responses to Birn's review can be found in "The Fictions of Ruth Bettina Birn," _German Politics and Society_ 15, 3 (Fall 1997):119-65. Birn's review of Goldhagen is to be found in the _Historical Journal_ 40, 1 (1997):195-215.

The following is a summary of remarks found in the 10 November 1997 issue of _Der Spiegel_ (a two-page article beginning on p. 266). The interview does not appear to be available via the magazine's Web site at www.spiegel.de. Once again, we remind you that this is only information that has appeared already in the _Spiegel_, and we are not asserting that we have direct and independent knowledge of any of the events described.

1. The _Spiegel_ interview introduces Birn, 45, as a recognized expert on the Holocaust who works in Ottawa at the Canadian authority responsible for prosecuting war crimes.

2. When asked if she knows Goldhagen personally, Birn replies that she has indeed known him for 11 years. She states that she apparently was the first to make him aware of the existence of archives at the Zentrale Stelle der Landesjustizverwaltungen in Ludwigsburg. She asserts that she had since then had friendly contact with Goldhagen.

3. The interviewer for the _Spiegel_ states that Birn's review of Goldhagen's book had originally been commissioned for the journal "Holocaust and Genocide Studies," but that possible claims for civil damages prevented publication there. The _Spiegel_ interviewer also asserts that Birn's employer has informed her that someone has contacted the employer to try to prevent reprinting of her review.

4. The second half of the interview is largely speculative on the motivations for the strong response that Birn alleges has occurred. Included in this section is the news that, next March, Birn's and Norman Finkelstein's reviews are scheduled to be reprinted together, and Birn asserts that their publisher has indicated that pressure has been exerted to prevent the joint publication. (Finkelstein's review appeared in the _New Left Review_ 224 [July 1997]:39-88)

5. When asked directly if she will take back her criticism as Goldhagen's lawyer has allegedly demanded, Birn states as follows: "Man kann nicht die Wahrheit zuruecknehmen -- daran wird auch Druck auf meinen Arbeitgeber nichts aendern....Und wenn die politische und juristische Einflussnahme, die es hier gegeben hat, Schule macht, dann waere jede wissenschaftliche Kritik in Gefahr."


Beginn der Diskussion unter dem Titel: "Criticism in Jeopardy?"

Date: Sat, 15 Nov 1997 00:28:52 -0600
Submitted by: Alan Buel Kennady <Ehrlich606@aol.com>

I am not exactly clear what distinguished Ms. Birn's review of Goldhagen's book from, say, the reviews of Fritz Stern (_Foreign Affairs_, Winter, 1996), or Jacob Neusner (Internet, early 1997) which I considered rather spectacular eviscerations. I am also aware that Goldhagen has made some rather biting comments himself (compare his comments on Christopher Browning or Arno Mayer in various locations.)

We must assume therefore that Ms. Birn has crossed some kind of line, but then it becomes absolutely necessary to establish what and where that line is. Until that is done, and appropriately "legislated" there will be an inevitable chilling effect.

It is known that Goldhagen's book has been harshly criticized by many prominent academicians. It is now known (apparently) that one of these is being threatened with legal action. One is led therefore to some conclusions, concerning not only Goldhagen's book, but also Goldhagen himself. My personal advice to Goldhagen would be to drop the matter.

There may be those who see in the present suit an extension of tendencies of self-censorship already present in this field that are justified on moral, emotional, political or interpretative grounds. In a sense, I would agree, insofar as the study of German history at this time is still fraught with great emotion and strong feelings that sometimes are only barely kept in check, and I am sure that this current dispute is at least related to this atmosphere.

I know for myself that if I was publishing in a field where such an action was filed I would be strongly inclined to simply withdraw, undergo an "inner emigration" and keep mum. But we have all heard of that before. I cannot say that German history is veering towards a stultifying orthodoxy, because I do not personally know the parameters of allowable dissent. But I do know that to attempt to limit free expression among German historians simply means that lively dispute, creative interpretation, and novel theories will become even more the province of precisely those who are _not_ German historians.

That would not be, I think, a good advertisement for the discipline, a positive signal for the next generation of scholars in this field, or an inspiring record for posterity.


Date: Sat, 15 Nov 1997 09:25:08 -0600
Submitted by: Kenneth F. Ledford
<kxl15@po.cwru.edu>

Having been in Berlin since mid-September, I am a little surprised at the urprised tone of the postings in relation to the FAZ and Spiegel articles about threatened defamation action by Daniel Jonah Goldhagen against Ruth Bettina Birn for her article in _Historical Journal_ that is critical of Goldhagen's book. News of the fact that Goldhagen's British solicitor has sent a letter threatening a defamation lawsuit has been abroad in Germany since early October; I read an article about it in _Der Tagesspiegel_, I think on October 3.

What has NOT been mentioned yet is the particular, if not particularistic, nature of this threat. These press reports indicate that Goldhagen has apparently retained counsel in England, where the _Historical Journal_ is published, which would, of course, be the place where any alleged injury first occurred. English law of defamation favors plaintiffs very much more strongly than United States law of defamation. The rule of "New York Times v. Sullivan" in the United States requires that for a public figure to recover damages for defamation, he or she not only has to prove that the statements made are false, but that they were made "recklessly," which is defined to mean either that the defendant KNEW that the statements were false or failed to take reasonable action to discover WHETHER they were true or false.

Prof. Goldhagen is almost certainly a public figure in the sense of New York Times v. Sullivan and thus would have a hard time avoiding dismissal of a defamation action on motion, well before the expensive part of litigation, in any state or federal court in the United States. English defamation law, however, makes it VERY hard to dismiss a case before a full-fledged jury trial, which of course is VERY expensive.

Defamation actions, at least in my experience in the United States, generally have very little to do with recovering damages for injury to reputation but very much to do with punishing speakers through the infliction of legal defense costs and psychological pressure. The very AIM is the "inner emigration" mentioned by Alan Buel Kennady. Certainly, given the economic circumstances of most historians whom I know, the purpose of a defamation action, even if completely successful, is not to recover large sums of money, for most of us are essentially judgment proof (a lawyers' term for "too poor to be worth suing"); one purpose of suing an historian then MUST be the financial ruin of that historian.

The artful choice of England as the place to bring the threat of a defamation action (the same action could be brought in any state in the United States where a single copy of the _Historical Journal_ can be found) can appear to many reasonable observers to be an act of forum-shopping for the defamation law that is MOST restrictive of free scholarly exchange and EASIEST to use to inflict punishment through legal defense costs.

Should we as scholars engaged in criticism feel the cold wind blowing that Dan Rogers felt? I think not. Opinion, within certain definitions, is NOT subject to defamation actions, either in England or the United States, but in England you are far likelier to have to have a trial to determine what is a statement of opinion and what a statement of fact, which is very expensive. The currency in which we deal as scholars and professionals engaged in criticism is opinion; let us voice our opinions boldly. Further, truth is a defense. A true statement is by definition not defamatory (e.g., IS Goldhagen's book the FIRST to deal with the perpetrators?). So we should write the truth in our criticisms of each other, fearlessly and openly. The PROBLEM is being put to the expense of a trial to PROVE the truth of what we say in a factual critique.

But let us be cautious as well. First, consult the general liability provisions of your home-owner's or renter's insurance policy to see whether you are covered for any intentional torts, specifically including defamation, libel, and slander. If not, inquire what an umbrella liability rider that WOULD cover these torts would cost in addition. Anybody with teenage children should do this anyway! Often, a million-dollar umbrella rider costs a modest $100-$200 per year. Remember too, it is not the liability limit that matters, BUT THE INSURANCE COMPANY'S DUTY TO PAY THE COST OF DEFENSE COUNSEL. This added insurance premium is a modest cost to protect us from cold winds. Second, this would not be the first time English defamation law has been invoked against a non-English historian in order to gain the benefit of is plaintiff-friendly nature. Perhaps non-English historians who have controversial critiques should think twice before publishing them in England until Parliament cures abuses of defamation actions through legislation.

This discussion can go several directions from this point it seems to me. One would be to lament the merits of an author having chosen to pursue the route of lawyers and legal actions. Another would be a mobilization on behalf of the scholar whose right to criticize may be threatened in a very carefully controlled and one-sided way. I would prefer to have us engage in a discussion of actions that we could take collectively to come to the aid of Ruth Bettina Birn.

Ken Ledford
Department of History
Case Western Reserve University
Cleveland, Ohio 44106-7107
E-mail: KXL15@po.cwru.edu


Date: Sat, 15 Nov 1997 09:25:08 -0600
Submitted by: Geoff Megargee
<megargee.1@osu.edu>

This is something of an embryonic thought, but I put it out for further consideration by the community:

If the application of legal pressure on Ms. Birn can be confirmed and traced back to Mr. Goldhagen, I would hope that this fact would have a chilling effect, not on criticism in the academic world, but on Mr. Goldhagen's career. Perhaps I am being naive; there are probably enough organizations that either would not know or would not care about his actions, and would still invite him to speak or teach. After all, there are far less reputable characters who still survive in academe. And perhaps the very idea of this sort of retaliation is inappropriate. But it seems to me that the academic world ought to discourage legal threats against legitimate criticism as strongly as possible.

Geoff Megargee
The Ohio State University
megargee.1@osu.edu


Date: Sun, 16 Nov 1997 10:53:46 -0600
Submitted by: David Crawford
<dwc@berlin.snafu.de>

The Birn & Goldhagen conflict should be seen within the context of a current trend in corporate public relations policy. Companies are learning to use their financial and legal resources in a sophisticated manner to control both research and the presentation of information. This involves both carrots and sticks. I'd like to give an example from my own experience in recent months, albeit without giving the names of the respective companies. I should say, however, that these are all major multinational corporations.

Several months ago I was working on a story for a major German magazine. One of the companies we were investigating (Company "Q") agreed to co-operate, but also threatened in writing a 350 million DM lawsuit should any "false" information be published. False information in this sense would be any information, which might be accurate, but which we were unable to prove in a court of law.

A legal dispute of this magnitude in Germany is so expensive that I was surprised the story was not canceled right then. Just having a lawyer glance through documents where 350 million DM in damages are threatened can lead to a multi-million DM legal fee even if the case never goes to court. In effect the publisher was forced to bet the farm on this story. Not many people are willing to do that.

A second consequence was that the quality of our documentation had to be beyond question. When you submit a story for publication at a major magazine the story has to pass several hurdles. If it is accepted by the editor, then it is passed to documentation for checking. This review is very exact, but there is a big difference between the documentation which I am willing to submit to peer reviewers in the publishing house and evidence which I am willing or able to present in court. In the above case it meant that we had to go back and find new sources for every fact which we wanted to publish. In other words, confidential sources are not acceptable for a story with this legal risk. This greatly increased the production costs. Historians reading this might laugh. My complaint is that I was forced to submit to the standards of documentation which are required for any scientific research.

One advantage that we had was that none of our sources knew our true interest. We never told anyone what the real topic was until they read it in the magazine. If we had been more forthright, almost nobody would have co-operated with us. We researched sub-topics of the story using different sources. Lawyers at company "Q" believed we were planning to question the value of their stock. This was not our primary interest, but we certainly asked a lot of questions. Company "Q" could not afford to give the appearance it was withholding information pertinent to the value of its stock. As we hoped, the information we needed to document our true story was given to us as a by-product of the other disclosures. Clearly the investigation would have been impossible without editorial secrecy on the part of the research team.

Company "Q"'s strategy was to make us dependent upon its public affairs office by threatening to sue us if we used other sources. We could only use sources which we were willing to reveal in court. Company "Q"'s information policy was to only provide information which would force us to kill the story because our "prejudices" (as they saw it) would be proved to be wrong. Does a multi-million dollar law suit make people more objective? As mentioned above, our secrecy policy got us past this hurdle; we were ready for publication. Therefore Company "Q" changed its strategy.

We submitted the story a week before the next possible publication date. Now Company "Q" got in touch with the magazine's advertising department. It threatened to cancel all advertising if the story should be published. The magazine said it would go with the story anyway. Later one of my colleagues commented, "It was the kind of issue where you have to resign if they don't publish." The message: the journalist has to go if the publisher chickens out.

Happy ending: Company "Q" spent a couple hundred thousand DM to buy a two-page spread in the publication to counteract the story. And ist advertising budget at this magazine has not changed. No, I did not get a percentage. Not even a thank you. I was advised to keep a low profile until it became clear that there would not be any legal action.

Other German media have not been as fortunate. The German Telekom recently canceled a week of its advertising via the ARD to protest a news report on one of its magazine programs.

This is forcing serious researchers to change their own strategies. One response should be to stand firm, but this is easier said than done. I personally was surprised to see our story published. As it turned out, the magazine made money despite the conflict (due to the rebuttal ad), but who could have predicted it? On the other hand the ARD suffered a financial loss in its conflict with the Telekom. The stakes are very high.

To bring all this together. I see the Birn & Goldhagen conflict as part of a larger trend. Financial and legal resources are increasingly being used (abused) as part of a calculated public affairs policy. In my opinion, a confrontation with other scholars was an important part of the marketing strategy for Goldhagen's book. Many months after publication, a legal dispute (or worries about one) has put the book's title back in the headlines. It would cost thousands of dollars to buy a comparable amount of advertising. And the beauty of the strategy (intentional or unintentional) is that Birn is forced to pay half the advertising costs via her legal fees. How are book sales doing?

There are some related issues, which I won't go into here (this is long enough already), but which I hope will also be part of this discussion.

1) The use (misuse) of privacy issues to inhibit research and publication.

2) The importance of corporate funding of scholarly research. I frequently hear of papers which would be important for my own projects, but which are unavailable because they were funded by a company which wants to keep the results under wraps.

David Crawford


Date: Mon, 17 Nov 1997 20:17:05 -0600
Submitted by: Willem Melching
<Willem.Melching@let.uva.nl>

People who want to sue other people for malpractice should not be in history but in medicine. The currency in our profession is not dollars, DM or Swiss Francs but ARGUMENTS. Critics who step over the line are either ignored because of their silly arguments by the rest of the community or should be responded to in a nice (old-fashioned?) polemic. Or should we label all reviews, articles, and books with warnings like "Reading this text might change your mind"? Or even more urgent: "Do not read this book while operating machinery"?

Willem Melching
Historisch Seminarium
Spuistraat 134
1012 VB Amsterdam
tel: +.31.20.525.4472
fax: +.31.20.525.3693
e-mail: willem.melching@let.uva.nl


Date: Mon, 17 Nov 1997 20:17:05 -0600
Submitted by: Ed Tenner
<tenner@clarity.princeton.edu>

Kenneth Ledford recommends an umbrella liability rider for protection against lawsuits. I looked into such a rider last year, but my insurer (and I suspect the great majority of home insurers in most states) excludes professional activities. Academic and government historians and freelance writers and speakers would not be covered. (The policies, of course, may be excellent value for other reasons.) If anyone on the list has a professional policy that _does_ cover writers' liability, I hope they will post the information.

Ed Tenner

Edward Tenner
tenner@clarity.princeton.edu
Department of Geosciences
Princeton University
Princeton, NJ 08544
Tel. 609 716-0263


Date: Tue, 18 Nov 1997 10:08:20 -0600
Submitted by: Kenneth F. Ledford
<kxl15@po.cwru.edu>

Prof. Tanner is absolutely right in pointing out that many homeowners'/renters' insurance policies, and many standard umbrella liability riders, do not cover either professional liability or intentional torts. But this is HIGHLY variable, among insurance companies, and among states in the US. So check your policy, and check with your insurance agent if you want coverage that would protect you from defamation suits caused by your professional publications. But let me amplify my comments on insurance policies.

First, you can BUY professional liability coverage, either from your homeowners'/renters' carrier or a specialty carrier. Since these are rated on risk, and the risk of historians being sued is low, the premium should be low (I don't know; I don't have one). An independent insurance agent could help you.

Second, professional associations sometimes arrange to offer professional liability coverage. My wife is a Presbyterian minister, and clergy of all sorts have been subject to an increasing number of "malpractice" suits, so we carry coverage for her at a modest cost through her denomination. The principal rated concern here and in other professional liability coverage is sexual misconduct, but her policy would cover defamation as well. Check with the AAUP (I am not a member, so I don't know if they provide this), or we could lobby with the AHA to contract with a carrier to provide this.

Third, and least satisfactory, there are "libel and slander" policies, usually targetted at authors like Kitty Kelley, tailored to individual publications and rated upon the judgment of the carrier as to the risks of a particular piece. These are more expensive than most of us would want to pay, especially for a journal article or review for which we receive no monetary payment. But the coverage can be had if the author really wants it.

Fourth, and this was my original point, publishing professional scholarship in the US carries LITTLE RISK of a defamation action, because of the line of cases beginning with New York Times v. Sullivan. Thus, I judge the risk so low that I do not concern myself too much about insurance coverage for defamation (granted, I write about safely dead people in the 19th and early 20th centuries, but I also write about live authors, and I have reviewed Goldhagen's book). Thus I urge us to carry on DESPITE this unusual incident. Almost ALL of the insurances listed above would exclude coverage for suits in foreign countries anyway, and thus would not help us against a suit in England. So I am serious that the risk-averse among us might not want to publish criticism in England.

FINALLY, I would like the list to get on to what I think is the more important question right now: what can we as a community of scholars do to express our support for, or render material aid to, Dr. Birn? A number of options are open to us: we could urge the Conference Group for Central European History, the German Studies Association, even the AHA to make public statements; we could write open letters or letters to the editor, to Historical Journal and elsewhere; we could even (if Dr. Birn is agreeable) start a legal defense fund. I urge creative minds out there, particularly the more senior and notable among our number, to contribute suggestions to H-German and other professional institutions.

Ken Ledford

Kenneth F. Ledford 1997-98 ADDRESS
Associate Professor of History and Law bei Nahr
Department of History Kalckreuthstrasse 11
Case Western Reserve University D-10777 Berlin
Cleveland, Ohio 44106-7107 GERMANY
Office: (216) 368-4144 (0 11 49)(30) 218 79 13
Fax: (216) 368-4681


Date: Tue, 18 Nov 1997 10:08:20 -0600
Submitted by: David A. Brenner
<brenner@spot.colorado.edu>

If you are really serious about seeking a liability rider, you might inquire with the AAUP, American Association of University Professors. I'm certain that they have dealt with such issues.

David A. Brenner
Mellon Postdoctoral Fellow
Department of German Studies
Cornell University
183 Goldwin Smith Hall
Ithaca, NY 14853


Date: Tue, 18 Nov 1997 10:08:20 -0600
Submitted by: Guenter Bischof
<GJBHI@jazz.ucc.uno.edu>

I think you're raising crucial issues -- the important precedent to a possible lawsuit by Goldhagen would be the Tolstoy affair. Some people still alive whom Tolstoy attacked for being co-responsible for the handover of Cossacks et al. to Stalin and Tito sued Tolstoy in a British court and won the libel suit and a very high award along with it.

You can read a summary of this by Thomas Barker in Bischof/Ambrose (eds) Eisenhower and the German POWs: Facts against Falsehood (LSU Press 1992).

Professor Goldhagen gave a talk in New Orleans this past Sunday night. He summarized the findings of his book. When asked about his critics he responded that they were "inventing" charges against him and misrepresenting his findings. He did not concede an inch and seemed to have the audience on his side.

Guenter Bischof, University of New Orleans


Date: Tue, 18 Nov 1997 11:05:22 -0600
Submitted by: Gerald D. Feldman
<feldman@medea.wz-berlin.de>

The American Association of University Professors offers liability insurance for academics. I think it costs $125 for a million dollars worth, which suggests how little we have been worth so far. In any case, it is a good thing to have, since we are liable to be sued if we find students cheating, encounter and expose scholarly fraud, write harsh reviews of bad scholarship, or dare to be politically incorrect. The greatest insurance we can have, however, is our backbone and a goodly measure of Civilcourage, that is, what German academics lacked in the 1920s and 1930s. The evidence on our backbones and civil courage is very mixed, however, so I recommend the insurance.

Gerald D. Feldman


Date: Tue, 18 Nov 1997 11:05:22 -0600
Submitted by: Richard Wiggers
<wiggersr@gusun.georgetown.edu>

Since nobody has yet played the role of "devil's advocate" in this discussion about the possibility of Dr. Goldhagen launching some kind of legal action against Dr. Birn for her recent critique of his book, allow me to be the first to do so.

Thirteen years ago, the work of Dr. David Abraham -- a Ph.D. graduate from the University of Chicago with a successful book on Weimar Germany published by Princeton University Press -- generated similar issues in the historical profession. To my knowledge, Dr. Abraham did not resort to threats of lawsuits to defend either his book or his personal reputation from his critics. But many scholars, including some critics, became extremely uncomfortable with the TACTICS employed by other of their colleagues in attacking both the book and Dr. Abraham, and in attempting to drive the latter -- successfully as it turned out -- from the historical profession.

I am not attempting to defend either Dr. Abraham or Dr. Goldhagen at this point, and even less am I trying to defend either of their books. In fact, I personally disagree with the fundamental premises of BOTH as works of historical scholarship. But I do have several questions for the members of this list.

Is there no limit at ALL to scholarly criticism and tactics? As soon as we become members of this profession, does that give us a blank check to say whatever we want to about our colleagues and their work, and in whatever manner, and for them to do the same to us? Are there no boundaries or ground rules of propriety, accuracy, or "manners" to our criticism of a colleague and his/her work?

In the Abraham case, the governing council of the American Historical Association -- whose committee on professional affairs had investigated the charges of "scholarly fraud" against Abraham and the charges of "unseemly tactics" by his critics -- dropped the case and concluded merely that the system of scholarly debate and criticism "works as it should."

Whether or not list members have actually read Dr. Birn's original lengthy review ("The Historical Journal," 40:1 (March 1997): 195- 215) or Dr. Goldhagen's even lengthier response ("German Politics and Society," 15:3 [Fall 1997]: 119-65), and whatever the factual merits of Dr. Goldhagen's case based on a close and careful reading of those two pieces, I would be interested to hear the views of list members on whether there are ANY limits to the extent and tactics of scholarly criticism, and if so, what those limits might be. Furthermore, if the granting of a Ph.D. does mean a blanket protection against accusations of libel or defamation, does that apply only to our criticisms of our academic colleagues, or to ANYTHING we say about ANYONE? More importantly, would the rest of society, and the courts, agree with such a position?

Richard Wiggers


Date: Tue, 18 Nov 1997 11:05:22 -0600
Submitted by: Milton Goldin
<MiltonG525@aol.com>

David Crawford surely makes a persuasive case why and how Central European corporations wield mighty legal and media axes in defenses of their interests, why writers on life in the Third Reich had best make certain, doubly certain, and triply certain that they have documents to prove their assertions, and how controversy can be used as a tool in marketing.

But accepting the validity of what he writes, the facts remain that it took until fifty years after World War II before a book such as _Hitler's Willing Executioners_ had a wide readership outside the United States and before supposedly impregnable financial institutions were put in positions where they had to acknowledge that they had handled stolen goods.

In other words, timeliness, rather than Machiavellian maneuvering, may be the real key to how modern German history is interpreted. Surely, a large number of people knew and spoke about who got rich in the Third Reich, but who wanted to listen during the Cold War and while German divisions might be needed to fight Soviet divisions?

It will be interesting to see how events in Germany are interpreted during the first decade of the 21st Century, when the British may again call attention to German dominance of Europe's economy. Washington may yet have to decide which capital to favor, London or Berlin.

Milton Goldin
MiltonG525@AOL.COM
National Coalition of Independent Scholars (NCIS)


Date: Wed, 19 Nov 1997 09:32:36 -0600
Submitted by: Jorg Bottger
<jxb171@psu.edu>

Having just read Goldhagen's response to Ruth Bettina Birn's review, I can only say: It's getting pretty ugly!

In my view the problem lies with Goldhagen, who has attacked the scholarship of other authors (e.g., Arno Mayer and Christopher Browning) and now receives some flak himself. There is nothing unusual about this procedure. What is unusual, however, is Goldhagen's alleged attempt to silence a critic with legal means. Goldhagen wants to establish his interpretation of the Holocaust as the new orthodoxy, plain and simple. Historians should counter this trend with detailed and informed criticism of Goldhagen's work. Here I have in mind something along the lines of Dieter Pohl's "Die Holocaust-Forschung und Goldhagens Thesen" in 'Vierteljahreshefte fuer Zeitgeschichte' 45 (January 1997): 1-48. This is an exemplary critique! I have yet to read a review of similar quantity and quality in English or American journals.

In addition, historians should not shy away from bringing this issue to the attention of larger audiences via popular magazines (The New Yorker, The Nation etc.) and speaking engagements. Or, are today's ivory towers too comfi to leave them?

Jorg Bottger
Penn State U.
(jxb171@psu.edu)


Date: Wed, 19 Nov 1997 09:32:36 -0600
Submitted by: Andreas Kunze
<Andreas.Kunze@FernUni-Hagen.de>

Pondering about "Criticism in Jeopardy" in general, and the book under discussion in particular, I would like to throw in a word on the extraordinary situation engendered, both in public and scholarly discourses, by that very book. I think the Jeopardy question, in this case, should not be handled in a more or less abstract (insurance etc.) fashion alone; it also ought to be assessed against the issue at stake.

The issue at stake, to my mind, is the unusually harsh and at times downright unfair treatment, by fellow historians, both in Germany and the US, of that book's author. For evidence: certain utterances of renowned academicians, USHMM symposium, April 1996, as reported on H-German--and similarly or even more disturbing contributions could easily be adduced from the German "front".

I would like to take up here Richard Wiggers' question: what are the limits, in terms of "manners", in scholarly criticism? - At any rate, given this climate of almost unanimous rejection, with little or no recognition of the book's undeniably great merit (viz. drawing attention to "the Nazis" as Germans, focusing on individual deeds and individual suffering, as well as putting back the Destruction of the Jews into the context of German cultural history)--given this considerably nerve-racking situation, it could perhaps be argued that the author felt prompted to react in an equally maladjusted way, through possible legal action, and that, of course, in a (on the whole: reasonable) scholarly community, clearly means that he over-reacted.

The criticized author would be very well-advised to stop any legal action--I agree with Alan Kennady--and to consolidate his innovative insights into modern German history, maybe on a scale less grand than in the book under discussion, in future publications.

Andreas Kunze, FernU-The German Distance Teaching University,58084 Hagen;
andreas.kunze@fernuni-hagen.de;tel x2331.9874209; fax x2331.688896


Date: Wed, 19 Nov 1997 13:02:36 -0600
Submitted by: Peter Hoffmann
<CYPH@MUSICA.MCGILL.CA>

Gerald Feldman is right. Backbone is the answer. Insurance against the consequences of the exercise of free speech is theoretically and constitutionally the wrong response. On another level, where human nature is particularly weak, insurance is more likely to encourage suits than to discourage them.

Peter Hoffmann

McGill University


Date: Wed, 19 Nov 1997 13:02:36 -0600
Submitted by: Ronald Shearer
<shearer@Oakland.edu>

I was trying to explain the current Goldhagen/Birn affair to a colleague of mine in another field recently and found myself confused on a couple points. Perhaps someone on the list could clarify these.

1. If a case were brought in an English court against a Canadian citizen, would that Canadian be legally obligated to retain counsel to represent him/herself in Enland? What international law compels him/her to do so? Is there something here that would only apply legally to the Commonwealth countries?

2. If a Canadian defendant did nothing to represent him/herself in an English case and were convicted of libeling and defaming a plaintiff and assessed monetary penalties, what international law or authority would compel the Canadian to pay damages awarded by an English court? How would the plaintiff make the defendant pay?

I found these issues confusing since I am not sure how one can actually implement a strategy in an international context of saddling a defendant with unbearable legal costs.

Ronald Shearer
Department of History
Oakland University
shearer@oakland.edu


Date: Sat, 22 Nov 1997 12:12:32 -0600
Submitted by: Jeremiah Riemer
<jriemer@erols.com>

In the matter of Goldhagen vs. Birn and H-GERMAN's discussion of this dispute, I find myself 1) much less worried about the global "chilling effect" most H-GERMAN subscribers automatically assume to have emanated from Goldhagen's demand for a retraction and 2) much more concerned with how H-GERMAN members have completely avoided very specific issues of substance and interpretation raised by this episode. Most of the messages on "Criticism in Jeopardy" are alarmist flights of speculation about questions we cannot answer until we have more facts in front of us. At the same time, more central problems for which we already have plenty of evidence are being skirted left and right.

By reminding subscribers that "the content of Goldhagen's book was discussed thoroughly over a year ago and is not really the issue now," H-GERMAN has in effect bracketed further discussion about the very issues that go to the core of Goldhagen's dispute with Birn. Goldhagen (in "The Fictions of Ruth Bettina Birn," _German Politics and Society_ 15, 3, Fall 1997, p. 156) has accused Birn of a "wholesale misrepresentation of my book's contents." Whether one regards Birn's article as a devastating blow against Goldhagen or a self-inflicted wound (or none of the above), her claim to have said something new and significant in the _Historical Journal_ is not devoid of content either. For better or worse, form and substance cannot be so easily separated here.

Goldhagen's response to Birn in _German Politics and Society_ was mentioned twice in the first H-GERMAN posting. One historian, Jorg Bottger, says he has read it, but only to pronounce that "It's getting

pretty ugly!" and to repeat unverified speculation that Goldhagen's aim is to "silence a critic with legal means." Neither the editors nor subsequent contributors give any indication of having compared Goldhagen's reply against Birn's arguments and evidence in the _Historical Journal_. Virtually the entire debate on H-GERMAN is proceeding on the basis of an implicit agreement with the assessment made by the FAZ reporter (and highlighted by the first H-GERMAN message on this subject): "Das Neuartige und Ungewoehnliche dieses Vorgangs liegt darin, dass hier ein Autor versucht, wissenschaftliche Kritik nicht durch Argumente zu widerlegen, sondern mit dem Hinweis auf ein eventuell einzuleitendes Gerichtsverfahren zu unterbinden. Dergleichen ist in der 'scientific community' unueblich."

What is wrong with this statement? Quite apart from the _editorial_ implication that Goldhagen has forfeited his right to membership in the community of scholars, it is the _empirical_ assumption that argument and evidence do not matter to this particular author, since he can always resort to the legal system as an alternative. Whatever one may think about the wisdom or fairness of Goldhagen's demand for a retraction by Birn, what FAZ maintains here (and with which H-GERMAN seems to concur) is precisely _not_ what Goldhagen is doing: He is not using legal communication as an alternative to debate. Rather, arguments and evidence of the kind he marshals in _German Politics and Society_ form the basis for his legal action. Goldhagen wants a retraction based on scholarly reasoning, not as an alternative to the same. Whether law and scholarship can or should be linked this way is a point very much worth debating, but it is not the same as a pseudo-debate over the supposed use of legal threats as a way of avoiding debate. On the other hand, H-GERMAN's pronouncement of closure on substantive matters and its contributors' numerous protestations of offense at the disrespectful attack-dog methods Goldhagen allegedly uses against reputable rival scholars (a charge he answers in _German Politics and Society_) do distract from real debate.

Much has been made of documents in the Birn-Goldhagen affair. What do the publicly available documents tell us, and on what issues are they silent?

First, what we know: Anyone can read Birn's review and Goldhagen's response. In my initial reading of Birn's review, I was struck by two aspects of her argument -- one somewhat intriguing, the other quite disconcerting, neither very satisfying. First of all, Birn advances a number of methodological objections to Goldhagen's use of archival evidence and judicial testimony. For example, she puts forth the interesting notion that war crime defendants' expressions of Nazi ideological zeal should not be taken at face value because appearing fanatical was often part of an exculpatory defense strategy. Birn's methodological views are radically different -- indeed, often the very reverse -- of Goldhagen's, and certainly worthy of debate. Secondly, however, Birn also makes a number of assertions about Goldhagen's book that any careful reader should immediately recognize as distortions of his arguments. Most dramatically, there is her claim that Goldhagen has denied "the possibility that the crimes committed during the Holocaust are within the scope of human behavior" (p. 213).

Nothing in Birn's essay persuaded me that the documents prove Goldhagen wrong. I found no archival "smoking gun." While the article piqued my curiosity about what those papers in the Ludwigsburg Zentralstelle (ZStL) actually say, and how I might be able to test both Goldhagen's and Birn's interpretations against them, Birn offered nothing more conclusive than footnotes at the bottom of the page and interpretive assertions in the body of the article. By my count, there are just two actual quotes from ZStL documents that allow any reader to see who is being more forthright about this evidence. In one case, where the issue is whether a Police Battalion medical orderly expresses shame about killing Jewish patients in a hospital or merely about "this way of acting" ("diese Handlungsweise"), it appears that Goldhagen has given us the fuller citation (see Birn _HJ_, p. 199 & fn. 6; Goldhagen, _GPS_, p. 135 and p. 161, fn. 17). In the other case, where the issue is whether one word ("Nuessknacken)" in a song about teaching Jews a lesson refers metaphorically to the cracking of skulls, Goldhagen concedes that he may have misread this one word in the poem, but rejects Birn's claim that his is a "blatantly false rendering of original text" and points out how Birn neglects to mention the contexts (Christmas and one other "social gathering of the killers") in which this poem celebrating the humiliation of Jews was recited (see Birn, _HJ_, p. 211, and fn. 41; Goldhagen, _GPS_, p. 163, fn. 27). In both cases, incidentally, the more complete record of information is to be found not only in Goldhagen's _GPS_ response to Birn, but also in _Hitler's Willing Executioners_.

In his response to Birn in _GPS_, Goldhagen makes the effort (successfully, in my view) to tell us what is wrong with what I have called the second aspect of Birn's review. Through a meticulous reconstruction of her rhetorical devices, he shows how Birn arrives at a picture of _Hitler's Willing Executioners_ bearing little resemblance to the book he actually wrote. The major distortion, he argues, comes from the way Birn turns carefully argued statements Goldhagen makes into wild generalizations out of context. It is insufficiently appreciated in the community of historians -- and it will no doubt shock many H-GERMAN subscribers to hear me say this -- how carefully and contextually Goldhagen has stated his case. As I wrote in _die tageszeitung_ over a year ago, the interpretive problems arising out of his book are not due to "simplification," but to Goldhagen's "different appreciation of complexity." If H-GERMAN members can suspend their aesthetic judgment on how "ugly" the debate is getting, they will find the _German Politics and Society_ piece a useful reminder of this point.

Goldhagen does not (in my view) deal exhaustively with the first aspect of Birn's review, her methodological differences with his manner of evaluating testimony. He argues that Birn's entire explanatory edifice collapses under the weight of her misreading of his book, that her "attacks on my use of archival sources are rendered moot because their basis -- without which they do not even make sense -- is her fictional positions that she falsely attributes to me" (Goldhagen, _GPS_, p. 156). I remain to be convinced that this disposes of every last methodological objection Birn entertains. However, Goldhagen does make a very convincing case that their dispute cannot now be settled by discussing "archival material to which people do not have ready access" (Goldhagen, _GPS_, p. 156). And, even if the specific misrepresentations Goldhagen answers constitute only a sample of her method, it is a large and representative sample.

This exchange of arguments is what we know from the public record. But there is much that we do not know, mostly about Goldhagen's demand for a retraction and Birn's response. Birn is our major source for this, since she has expressed her anxieties and speculated on the background to Goldhagen's action in both FAZ and Spiegel. To the press she has made the odd and disturbing remark that Goldhagen's book "zeichnet, boese gesagt, den Holocaust als Andachtsbild fuer den reichen nachgeborenen Spender in Amerika, fuer alle, die Betroffenheit, aber keine Selbstzweifel mehr spueren sollen" (Spiegel, November 10, 1997, p. 267.) (This remark is an answer to _Spiegel_'s leading question about whether Goldhagen's book "placates the victims' and the perpetrators' side alike," so one can only hope Birn is not implying that American Jewish philanthropists ought to feel "self- doubt" about the Holocaust.) Goldhagen responded to the FAZ story in a letter published on November 12 (p. 15) saying that the retraction of proven error is the only issue here and that he welcomes debate. But here is what we do not know: Although Birn expresses amazement (Spiegel, p. 266) that Goldhagen did not publish his response in the _Historical Journal_, we do not know whether the _Historical Journal_, a journal supposedly committed to scholarly debate rather than self-aggrandizing exposes, offered Goldhagen equal time to answer her serious charges. Though many statements from FAZ, Der Spiegel, and H-GERMAN urge us to feel sorry for Birn and blame Goldhagen for making her feel "eingeschuechtert" (_Spiegel_, p. 266), we do not know everything about the sources of her nervousness. We do not know how Cambridge University Press or her employer at the Canadian Justice Ministry are now (re)assessing her scholarly and professional work, nor do we know if the prospect (undoubtedly humiliating) of having to issue a retraction admitting that there are distortions in her review might be properly creating "Selbstzweifel" of her own. Although Ken Ledford blankly asserts that "one purpose of suing an historian . . . MUST be the financial ruin of that historian," we do not know (and I personally doubt) that this is Goldhagen's goal. The legal and journalistic communications at issue here have been going on within a "black box." Not even the parties immediately affected know everything that's going on. What purpose is served by amplifying the noises in these vacuum tubes?

Ken Ledford's learned speculation about "forum-shopping for the defamation law that is MOST restrictive of free scholarly exchange and EASIEST to use to inflict punishment through legal defense costs" strikes me as highly implausible. My skepticism goes to another unstated confusion pervading H-GERMAN's discussion of this dispute: Why is it being assumed that Goldhagen can combine the British standard making defamation actions easier with the American penchant for frivolous lawsuits? In a British suit, the burden of proof standard may favor plaintiff over defendant, but it is my understanding that as a safeguard against suing lightly the British impose trial costs on the loser. Neither comparative legal analysis nor trans-Atlantic legal strategy is a game of mix and match.

The widespread speculation -- by Birn, the German media, and now H-GERMAN -- about how either Goldhagen's action or his book is connected to some wider trend (whether among American Jews, as both FAZ and Spiegel prefer, or among multinational corporations, as David Crawford ruminates) - would not be worth commenting on if it were not such a prominent part of what Goldhagen rightly identifies as a Vermeidungsdiskurs. How Goldhagen functions as an agent of big publishing companies or an identity-crisis-ridden Jewish community remains a mystery; neither the mechanisms nor the direction of influence are ever specified. Is Goldhagen manipulating PR resources at his special command, or is the corporate apparatus using him? How widely should we cast this net of corporate manipulation of history? Should we include _Historical Journal_ consulting editor Paul Kennedy's _The Rise and Fall of the Great Powers_ -- commercially published with Random House, heavily promoted on TV and radio talk shows, and giving its author celebrity status in _Spiegel_ and other news weeklies? Or conclude that the persistent German interest in what Kennedy has to say in his post-Cold-War sequel merely reflects a stubborn European resentment at America's sole-superpower status? In place of all this vague and silly conspiratorial conjecture, I prefer what might be called the "single bulletin theory" of Goldhagen: Whatever the resources at his disposal (and whatever the broader social sources of his lay audience's fascination with this academic book), he is acting alone.

The most disturbing of these "contextual" interpretations is the ill-informed yet sanctimonious conclusion FAZ draws (November 4, 1997, p. 41): "Dieser ganze Vorgang, Goldhagens freundliche, aber stahlharte Intransigenz als 'Bote' bestaetigt den Befund der israelischen Historikerin Gulie Neeman Arad. Sie analysierte die Goldhagen-Kontroverse im kulturellen Kontext der Vereinigten Staaten und sah in ihr den Ausdruck einer tiefgreifenden Verunsicherung der amerikanischen orthodoxen Juden." Whatever else Goldhagen may be, he is certainly not a spokesman for America's Orthodox Jews. Furthermore, anyone halfway familiar with the sociology and public debates of American Jews would know that it is secular and non- Orthodox Jews who are expressing more concern about assimilation and cultural identity, whereas the Orthodox (with higher birthrates, lower rates of intermarriage, and greater certainty about religious dogmas) are confident about their future (and even begrudgingly admired for this by their secular and Reform opponents). Even if FAZ and Arad had correctly analyzed the relationship between the Holocaust and American Jewish identity, it would have no bearing on the validity of Goldhagen's scholarship. It would be too embarrassing even to mention this if it were not essential to illustrate the direction Spiegel and FAZ are taking the Vermeidungsdiskurs once more. Playing upon ignorance and suspicion of the most prominent Diaspora community, they are turning the Goldhagen debate into a Jewish problem.

I concur wholeheartedly with Ken Ledford's sentiment that "we should write the truth in our criticisms of each other, fearlessly and openly" and "be cautious as well." These are (by no means abstract) sentiments with which Goldhagen agrees (indeed, he says as much in his letter to FAZ), though he obviously thinks British laws about truth in publishing are preferable to what the ACLU and probably most American scholars think about the exercise of these liberties. I see no harm in taking up a collection for Ruth Bettina Birn, though I detect no urgency to do so either. (In his letter to the FAZ, Goldhagen says it is the _Historical Journal_ that he has asked for a retraction. Does Cambridge University Press not have lawyers as competent and pockets as deep as Goldhagen's?) Unlike Dan Rogers, I do not feel that "a cold wind is blowing . . . as I am typing these words," nor am I going to change my insurance policy. But I can think of a more fruitful collective action historians and other social scientists might undertake to help resolve disputes like this (and which was hinted at in a previous H-GERMAN discussion): Lobby for whatever changes in German privacy and public information laws are needed to get documents on the Holocaust into print, where every undergraduate can read them.


Date: Sun, 23 Nov 1997 09:36:21 -0600
Submitted by: Gulie Ne'eman Arad
<guliea@post.tau.ac.il>

In response to the post of Jeremiah Riemer

The FAZ should be very proud that its readers trust what it publishes without a doubt, and furthermore accept it as the absolute truth. But, surprise surprise....

In an article appearing in the FAZ 4 November 1997, entitled "Der Schutz des allmaechtigen Autors -- Rechtsanwaelte lesen lassen: Wie Daniel Jonah Goldhagen mit seinen Kritikern verfaehrt," there is a reference to me as follows: "Sie analysierte die Goldhagen Kontroverse in kulturellen Kontext der Vereingten Staaten und sah in ihr den Ausdruck einer tiefgreifenden Verunsicherung der amerikanischen orthodoxen Juden." Nowhere have I argued this, and in fact I make no reference at all to Orthodox American Jews. Indeed, my contention is that -secular- American Jews have embraced the Holocaust as their -surrogate religion-, as a form of -civil religion-. Furthermore, had Mr. Riemer taken the time out to read what I wrote, he would learn that in this specific article I did not attend to Goldhagen's scholarship [which I did, in -HaAretz's book supplement SEFARIM (Hebrew)], but specifically to the American reception of the book within its present-day cultural context. If a cultural context does or does not have an impact on scholarship is of course open to debate. I happened to think that it does and have argued accordingly.

May I kindly suggest that those who take to criticize will not trust blindly, even the FAZ and, would at least read the original, which appeared under the title "Ein amerikanischer Alptraum: Zum kulturellen

Kontext von Daniel Goldhagens 'Hitler's Willing Executioners'," in the following:

1) -Frankfurter Rundschau, May 14, 1996, p. 16.

2) a somewhat expanded version in Julius H. Schoeps (Hg.), -Ein Volk von Moerdern" Die Dokumentation zur Goldhagen-Kontroverse um die Rolle der Deutschen im Holocaust- (Hoffmann und Campe, 1996), pp. 176-186.

Dr. Gulie Ne'eman Arad

Tel Aviv University


Date: Sun, 23 Nov 1997 11:00:23 -0600
Submitted by: Alan Buel Kennady
<ehrlich606@aol.com>

On the subject of this thread I would like to add two considerations relevant first to the level of criticism that Goldhagen has received and secondly on the matters raised by Mr. Riemer.

Reports in newspapers and magazines seem to indicate that Goldhagen may be pursuing charges of defamation against Ruth Bettina Birn for her review that appeared in _The Historical Journal_. Mr. Riemer has suggested, quoting Goldhagen, that the charges merely involve the _Historical Journal_ and not Ms. Birn, but more on that momentarily.

It appears that the majority of those who have contributed so far to this debate are of the opinion that it is poor form (at least) to sue another scholar for a negative appraisal of their work. Some (including Mr. Wiggers) are of the opinion that there should nevertheless be some limits to such criticism.

On this point I would simply say that it is my experience that generally scholars will address each other in a civil tone, only deviating from that tone when one side or the other indicates their unwillingness to abide by such respectful civility. Whether we regard Goldhagen's style as "attack dog" or something else, it is I think inarguable that his comments on senior scholars in his book or in his review of Arno Mayer do not differ substantially in tone from the comments that others -- including other senior scholars -- have made about him.

Then the question becomes one of where such a free-for-all descends into the region of defamation. Mr. Riemer seems to feel that such a matter cannot be separated from an analysis of Ms. Birn's and Mr. Goldhagen's respective arguments, and ultimately from the argument proposed in Mr. Goldhagen's book. But I must demur. No secondary text can be "The Truth" and neither can any "interpretation." Whether we feel that Mr. Goldhagen's thesis is "simplistic," or merely involving a "different appreciation of complexity," is not something that can be factually ascertained.

Mr. Riemer seems to feel that in 50 pages of argumentation Goldhagen has satisfactorily shown that Birn's representations of his book are "false," therefore they are "untrue" and therefore she may be legitimately sued for defamation. It appears then that what is happening here is that Birn interpreted Goldhagen's book one way, Goldhagen interprets it another way, and now the courts are being asked to referee. I submit that historians do not need the courts to establish the "truth" of interpretations.

I have read Ms. Birn's review, but I have not read Goldhagen's reply. I have seen no evidence of "defamation" as we would normally use that term, as, for example, in the well known suits involving Leon Uris, Tolstoy, or others in Britain. Her review is harsh, but I repeat that it is no more harsh than reviews that I have read by American academicians in American venues. Therefore we must ask why a suit is being pursued in this instance, but not in the others. The publication venue therefore appears to be a relevant detail.

Some contributors so far have perhaps overstated the case when they have suggested that Goldhagen's effort is part of a larger scale effort to suppress dissent of any kind over the most currently popular (read: Goldhagenian) interpretations of German history. But that there has been added in here the element of intimidation is I think perfectly obvious, and this element is present even if -- as Mr. Riemer suggests - the people being asked to apologize are the publishers of _Historical Journal_ and not Ms. Birn _per se_.

To be sure the community of historians will be able to relax once they know that they need not fear defamation suits as the result of criticizing interpretations they do not like, if only because reviews will, citing this instance, refuse to carry them! Therefore we will all be able to save $125, and save ourselves the effort of analyses which, in some future court of law, will be shown to be empirically false. _Gaudeamus igitur!_


Date: Sun, 23 Nov 1997 11:52:30 -0600
Submitted by: Charles Maier
<csmaier@fas.harvard.edu>

I have not commented publicly on my colleague Daniel Goldhagen's book publicly and I do not intend to do so now. I have given to DJG my own written reactions, so that insofar as I speak in private conversations, he is aware of my own views. But I write now about the Birn-Goldhagen confrontation and the comments I've read on it.

It seems to me that DJG is probably unwise to spend so much time and effort responding to critics. Books have a life of their own and it was logical to expect that a book which makes such sweeping causal claims and enjoys so wide a diffusion should attract spirited response - especially when the author has at various points before and after publication of the book (as well as within the text) dealt harshly with other historians for their claimed inadequacies. It is up to readers to decide when vigorous critique is on the mark, partially valid, significant or trivial, or even misleading and irrelevant. This is not always an easy task, above all when both sides appeal to readings of documents that the outside reader cannot consult in their full context of utterance.

Nonetheless, it does seem to me that no critic has the right to transgress the common-law strictures against speech that is reckless and defamatory as commonly understood and understood, too, by accumulated legal precedent -- that is speech that is (1) demonstrably false and (2) designed to injure the reputation of the subject of attack. Whether legal remedial action is sought in Britain or (as has been pointed out) in the more difficult American arena -- where the public status of the plaintiff virtually nullifies the notion of malice and offsets all but the most conscious and damaging lie -- the concepts of recklessness (in regard to the use of false of allegations) and malice are central to the concept of libel and defamation. If DJG really believes that libel is what is at stake, and not just the normal range of interpretation, I don't think he should be condemned ipso facto for seeking a legal remedy. Nor do I think that most of who engage in spirited controversy need to feel a chill or shop for "umbrella" policies that cover us for libel as well as slippery walks. Whether DJG is wise to seek a legal recourse is another matter.

I am not a lawyer, but I doubt that even demonstrable error - misquoting an author, erroneously alleging that a statement has been made when it hasn't, etc. -- would qualify under the tests of recklessness and/or malice, unless a real pattern of such erroneous claims was demonstrated. But this is precisely what a jury would have to decide. I have to confess that I do not find Birn's "reading" of DJG's overall argumentation so off the mark or such a demonstrably false interpretation of the book's argumentation. I agree with her by and large on the appropriateness of comparisons. Some of the readings DJG takes great exception to do not seem to me to basically misrepresent (beyond what the normal range of interpretation might allow) the book's argument. That is, even if the reviewer corrected the statements that the author claims are erroneous citations, I think the reviewer's general thrust could stand. Although Birn over-generalizes DJG's argument in several ways, I don't think she is reckless or malicious or defamatory in this aspect of her review. Alas, our critics often present what we believe are our rapiers as bludgeons. Collectively we are not always careful readers. When we're the victim of sloppy readings, it's frustrating but not a cause for legal action.

But that is only half the story. Birn not only argues against DJG's interpretation, she claims that he has misleadingly used evidence to substantiate his interpretation. What degree of conscious distortion she alleges or intends is not clear to me. Her review does suggest that his book rests on a narrow and presumably biased source base; I personally do not think this critical claim is sustained and I do not believe it. I do not, however, believe her claim libelous per se although conceivably a British jury might. In any case, demonstrating that the charge is false is precisely the sort of correction that DJG can make in print (as he has). It also seems to me precisely the sort of correction that" The Historical Journal" should have published, if they had the chance to do so -- in a documentation that was to the point. I do not know what sort of negotiations for the right to respond took place. As for the interpretation of specific evidence -- the accounts and statements of perpetrators -- here is precisely the place where different readings are not prima facie excluded until we see the evidence. I do not find the reviewer's citations of fragments any more satisfactory in that regard than I find the author's citations. I should like to be able to consult the transcripts in question.

But it is surely the claim of misuse of sources by selective and willful omissions or distortions that is the important claim to test. (The issue of how DJG presents his material -- whether in a sensational and salacious matter, as Birn feels, or to make the case for wanton cruelty, as DJG believes -- must remain one where there is room for disagreement. The overall argumentation is also a matter of debate among the historian and his critics.) Birn has claimed that the evidentiary basis of the book is fundamentally flawed. This sort of claim is also fairly routine among reviewers and probably would not be regarded as libelous. Is she claiming in addition that DJG has been fraudulent in his use of evidence? That would be, it seems to me, potentially a libelous claim -- i.e. if shown to be false it would be construed as reckless and malicious. And if indeed she is claiming fraud, and "The Historical Journal" is publishing this claim, then the recourse to law does not seem to me so out of line. From my reading of the review I do not believe that she goes so far, however. She implies bias, not fraud. If she is deemed correct, then her charge is damaging, but not libelous. She makes a powerful claim, which if we think it correct, must have a serious impact on DJG's scholarly reputation. If she is not considered to make her case, then she may be defamatory, but not damaging (in which case, too, there is no ground for legal remedy since libel actions must demonstrate damages occurred).

In any case, we do not yet have an established account of what actually has occurred; we have only a very partial and ex parte FAZ report (Nov. 4, 1997). What remedies did DJG seek from "The Historical Journal?" What legal or other action has he actually taken? What remedies has he sought? I think this should be made public; indeed it is in his own interest to do so. The reports of his legal action, as they are currently reported and construed, will be as damaging to him as an open elucidation of the steps and counter-steps to date.

Finally, I would like to say that I find two aspects of this unfolding situation really distasteful and reprehensible. First, "The Historical Journal" cited the upcoming Birn review in its advertising with language which suggested that the Birn review would demonstrate (and did not merely argue) that DJG's scholarship was woefully deficient. I do not believe that a scholarly journal should exploit the potentially sensational value of a piece that will discredit an author even for what might be the worthy end of encouraging subscriptions. This action, it seems to me, would give some support to a subsequent finding of malice. Second, and more serious, the explanations being resorted to that DJG's book was to be understood as the work either of an Orthodox Jewish community or a Zionist lobby or in any way related to the political or public goals of American Jews (or a segment thereof) is a fanciful and inflammatory speculation. It makes no sense, but even if it were thought to be true, it is irrelevant to the judgment we must make about the work.

Charles Maier


Date: Mon, 24 Nov 1997 08:37:32 -0600
Submitted by: Reid Rozen
r-rozen@students.uiuc.edu

Ronald Shearer asked:

1. If a case were brought in an English court against a Canadian citizen, would that Canadian be legally obligated to retain counsel to represent him/herself in England? What international law compels him/her to do so? Is there something here that would only apply legally to the Commonwealth countries?

I am not certain about Canadian law, although I believe that Canada has officially broken the last remaining ties between its judicial system and that of Great Britain by prohibiting appeals to the House of Lords. I would imagine, therefore, that the situation of a Canadian defendant in a British libel case would be the same as an American defendant: no one is exactly _obligated_ to hire counsel and mount a defense to charges brought in a foreign jurisdiction. Of course, by failing to defend oneself, one risks having an adverse judgment rendered.

2. If a Canadian defendant did nothing to represent him/herself in an English case and were convicted of libeling and defaming a plaintiff and assessed monetary penalties, what international law or authority would compel the Canadian to pay damages awarded by an English court? How would the plaintiff make the defendant pay?

Again, my knowledge on these points is confined to American law. If I were sued in a British tribunal, I would hardly think it necessary to offer a defense. First, it is necessary for the British court to get jurisdiction over me--not very easy when I am not physically located in Great Britain and have no assets there. Assuming, however, that I was served summons while passing through Heathrow, it's unlikely that anyone suing me in Britain would be able to enforce a judgment against me. As I mentioned, I have no assets there. I don't know if there are any treaties between Great Britain, Canada, and the United States regarding the reciprocal enforcement of civil judgments: if there are, I doubt that it would be worth the trouble and expense for a British plaintiff to go after me, or practically any other historian.

If a litigant in Britain sued a British publication in which an allegedly false and potentially even defamatory review appeared, the advantage would be that such a defendant would presumably have assets with which to satisfy any judgment. Moreover, in such a case, the reviewer might have difficulties finding a forum for any further reviews critical of an author who had initiated legal action.

In a defamation case, it is not necessary to sue the author of the libel--it is sufficient to sue the publisher (otherwise, everything published anonymously would be immune). Unless there is some British-Canadian treaty or agreement which renders a Canadian reviewer liable in a British court, I would see no advantages in suing a reviewer personally, other than perhaps to frighten other potential critics.

Reid J. Rozen

University of Illinois, Urbana-Champaign


Date: Mon, 24 Nov 1997 08:37:32 -0600
Submitted by: Kenneth F. Ledford
kxl15@po.cwru.edu

I grow increasingly dubious about the fruitfulness of H-German's discussion of the Birn-Goldhagen controversy, but in response to the postings by Dr. Riemer and Prof. Maier, I wish to make one point about the legal nature of the intentional tort of defamation, one about the relationship between legal thinking and historical thinking, and one about the relationship between scholarly discourse and entrepreneurial discourse.

I do NOT wish to be read to endorse any position taken or suggested by the FAZ (I disagree with that paper's politics, and I have not seen the Nov. 4 article in question; I draw my information from an early October article in the Berlin daily _Tagesspiegel_, which indicated that Dr. Birn had received a letter from Prof. Goldhagen's English counsel demanding a retraction and threatening a defamation action if one was not forthcoming, and the interview in _Der Spiegel_). Moreover, I do NOT endorse any reference made in the FAZ or elsewhere about cultural readings of the Goldhagen book as a phenomenon for American life or the role of American Jews in that life. Such references are one reason I do not read the FAZ.

I. The Law of Defamation.

I AGREE with Prof. Maier in his personal assessment of what course of action would be most beneficial to Prof. Goldhagen, as well as in his reading of Dr. Birn's article in _The Historical Journal_ (that the gravamen of her accusation is of distortion, which is not actionable, but NOT of fraud or falsification, which might be). And although I realize that there are some cases when resort to defamation actions by historians may seem overwhelmingly justifiable, I think that the nature of the tort, combined with the nature of what we do as historians, combined with normal professional comity, make it wise that we forbear EVEN in cases otherwise deemed justifiable.

One of the first things one learns in law school is that legal concepts often have the least relationship with common-sense understandings of ANYTHING. Such is the case with the law of defamation. Defamation is the publication of false statements about another that results in damage. Recklessness or malice have NOTHING to do with the elements of the tort in any state that I know of in the United States (and in most states, statutory defamation actions have taken the place of the old common-law torts of libel and slander, although there are some exceptions). Thus, to recover for defamation, a plaintiff has to prove that the statements made are "false," and that damage occurred. A statement made in the honest belief that it is true, based upon what appeared to be conclusive evidence of truthfulness, if later proved to have been based upon error and to be false, is grounds for liability. THIS IS EXACTLY WHAT NEW YORK TIMES V. SULLIVAN set out to change for public figures. It ADDED, as a constitutional right under the First Amendment, the requirement that for public officials (subsequently expanded to public figures), the plaintiff have to prove "malice" on the part of the defendant, namely that the defendant knew the statements were false when made or recklessly failed to discern whether they were false. Private persons NOT public figures still live under the rule as stated above. Thus, the state of mind of the defendant is NOT a defense to defamation, either in the U.S. of private figures or in England for ANY plaintiff.

Second, Prof. Maier is quite right to point out that, even if falsity is proved, damages have to be proved for recovery. And another contributor has pointed out that the controversy may actually be a BOOST to sales. But, as Dr. Riemer also correctly points out, in England, the loser of a civil suit bears attorney's fees for both sides (unlike in the United States). THIS IS THE VERY DANGER TO DR. BIRN, OR ANYONE, OF A DEFAMATION ACTION IN ENGLAND. It seems to me very likely that a jury, having heard a trial in which both sides endeavor to blacken the reputation of the other in an effort to prove the other "wrong," would reach the "Solomonic" decision of finding a statement false, but finding only symbolic damages, along the lines of one pound. In THAT case, Dr. Birn would be saddled with BOTH sets of attorney's fees. So the chill, I fear, is very real.

Since most of us manage to be just private figures, despite our exalted rank as historians, then, "malice" and "recklessness" do not enter into the law governing our right to make a claim or our "right" to be sued for our professional statements. For ALL of our sakes then, rules of professional comity that condemn all but the very MOST exceptional cases of resort to law, it seems to me, are to be welcomed and cherished.

II. Legal Thinking and Historical Thinking.

Once historians retain counsel and start having demand letters sent to each other, not only are we sheep among wolves, but we enter into a different way of thinking, knowing, and evaluating evidence. The "cognitive structures," if you will, of the legal and historical disciplines are fundamentally different. As the experience of historians testifying on both sides of the case in EEOC v. Sears in the 1980s showed, and as the post mortem of the fractured friendships and lingering hard feelings among scholars of American women's history concluded, law and history simply have different relationships to evidence. Law forces sharp black-white distinctions, and the stakes are high: money. History deals in gray, in nuance, in liminality. Stakes are lower: university power and professional status, both of which come from many sources other than actually being "right." If historians adopt the legal mode of thinking, the legal "cognitive structure," we enter a different disciplinary world and fundamentally transform the form and content of our discourse and ist underlying thought. My own view is that the historical way of thinking, knowing, and evaluating evidence, with its very nuance and liminality, is the superior one.

III. Scholarly discourse and entrepreneurial discourse

Prof. Maier laments the sensationalist use of the upcoming Birn article on the Goldhagen book in publicity by _The Historical Journal_ as an effort by Cambridge University Press to boost subscriptions. Indeed, that is an entrepreneurial tone rare in academic publishing and among university presses. But I wish to suggest that it was not the first shot in this entrepreneurial exchange. I reviewed Prof. Goldhagen's book in April 1996 in the Cleveland _Plain Dealer_, where I have reviewed books for several years. I had become accustomed to significant publicity packages that accompany even scholarly books of history from trade houses. I had NEVER seen a publicity package as large or lavish as the one sent me with the advance copy (bound uncorrected page proofs) of the book, or as lavish (or as exaggerated) in its claims. Later, the book editor of the _Plain Dealer_ stated in a public forum that SHE had never seen such a publicity hard sell as that which accompanied the Goldhagen book. Like Prof. Maier, I too lament the sensationalist and entrepreneurial overtones of this exchange, especially from a respected university press like CUP, but the origin of that tone, as I view the evidence, lies elsewhere.

When I practiced law, I once represented two clients who were sued in state court in Virginia for statutory defamation. The facts alleged were that, frustrated about the course of a commercial dispute in the garment trade, my clients encountered their business competitors, engaged in an increasingly agitated argument in front of hundreds of witnesses, and ended by shouting across the crowded arrival hall of the Richmond airport: "You and your brother are a bunch of fucking thieves!" At trial, my task as counsel would be to prove that all of the allegations contained in that sentence were true, and throughout pretrial discovery, depositions, and other investigation, I gathered evidence on all elements of the alleged tort. I resisted my clients' suggestions that the shouted insult actually served to IMPROVE the plaintiffs' reputations, and fortunately, commercial relations improved, and in the interest of mutual profit, injuries to honor were composed and the suit was voluntarily dismissed.

Is this the kind of case that we as scholars want to be associated with? My hope here is that Prof. Maier's advice about how to deal with harsh professional critics will be recognized as the sage guidance that it is, that injuries to honor will be composed through the normal channels of the profession, that of contention in H-German, in scholarly journals, in public debate free from the shadow of the law.

Ken Ledford

Case Western Reserve University

Kenneth F. Ledford 1997-98 ADDRESS
Associate Professor of History and Law bei Nahr
Department of History Kalckreuthstrasse 11
Case Western Reserve University D-10777 Berlin
Cleveland, Ohio 44106-7107 GERMANY
Office: (216) 368-4144 (0 11 49)(30) 218 79 13
Fax: (216) 368-4681


Date: Mon, 24 Nov 1997 08:37:32 -0600
Submitted by: Jorg Bottger
jxb171@psu.edu

In his posting Jeremiah Riemer refers to me as "one historian". Let me enter a personal note here: I received my academic training in Political Science at the University of Kiel (while doing graduate studies my secondary field was East European History, though). In addition, I would have really appreciated it if Mr. Riemer would have quoted the complete sentence. I wrote of "Goldhagen's alleged (sic!) attempt to silence a critic with legal means."

I hate being repetitive but I want to urge members of H-GERMAN again to read Dieter Pohl's piece in the "Vierteljahreshefte fuer Zeitgeschichte". His critique has been undeservedly neglected in the entire debate. So far, Goldhagen has not responded to Pohl's well-balanced and reasoned criticism. At least in his "The Fictions of Ruth Bettina Birn" in 'German Politics and Society' no reference is made to Pohl's review essay whatsoever. I hope that Daniel Goldhagen will eventually come up with a reply! In the meantime here are Dieter Pohl's concluding remarks on Goldhagen's case studies: "Ueberspitzt liesse sich argumentieren, dass alle drei Fallstudien im Endeffekt nicht den Beweiskriterien des Buches entsprechen: Die Ordnungspolizei war 1941 ein Teil von Himmlers 'Endloesungs'-Apparat, die ausgewaehlten Arbeitslager im Distrikt Lublin waren eine reine SS-Domaene, und die Todesmaersche waren weder ein zentrales Phaenomen der 'Endloesung', noch laesst sich - wegen der Vielzahl der Bestimmungsfaktoren - der Antisemitismus dabei als hinreichende Taetermotivation nachweisen, obwohl er selbstverstaendlich von grosser Bedeutung war." 'Die Holocaust-Forschung und Goldhagens Thesen' VfZ (January 1997): 35.


Quelle = Email <H-Soz-u-Kult>

From: Ruediger=Hohls@geschichte.hu-berlin.de
Subject: Criticism in Jeopardy
Date: 23.11.1997


       

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