Two messages...

                                1.

Submitted by:   Kenneth F. Ledford
                kxl15@po.cwru.edu

Having been in Berlin since mid-September, I am a little surprised at the
surprised 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 its
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


                                2.

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

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