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

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