Holocaust Denial and the Law: A Comparative Study by Robert A. Kahn (auth.)

By Robert A. Kahn (auth.)

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Whatever the symbolic impact of judicial notice as a repudiation of Holocaust denial, it played a secondary role in terms of the trial. To be sure, Mermelstein had to prove that Jews were gassed at Auschwitz to prevail on their contract claim, and the judicial notice motion helped them in this endeavor. But it is likely Mermelstein could have made this showing without judicial notice. By contrast, the contractual aspects of the case were far from clear. Therefore, Judge Johnson spent the bulk of the hearing on contract issues.

46 While the juxtaposition of the Nuremberg trials with an American court was meant to score propaganda points for the deniers, Brandon’s language could be interpreted as an enforceable promise to assess contest entries according to legal rules of evidence. In the end Mermelstein split the difference. He decided to take the contest at face value. 47 Cox warned Brandon that Mermelstein would sue the IHR for breach of contract if the application was not processed within a month. In late January the IHR told Cox that it had put Mermelstein’s application on hold.

36 The Deckert case made the fact that the Holocaust happened a legal precedent. Rather than a fact to be proven by a historian, or deduced by the court’s own institutional knowledge of history, the Holocaust was now part of the law itself, a legal premise beyond dispute. The trend continued in the April 1994 Holocaust Denial case. The case involved a 1991 rally in Munich at which David Irving was scheduled to speak. After the Munich authorities cancelled the rally, Irving filed a constitutional complaint based on freedom of speech.

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