Remembering Mermelstein the Hero, a day late

August 6, 2013

It’s a big world.  A lot happens every day.

Over time, significantly historic events tend to pile up on every day of the year.  This is important to remember shortly after the ides of April when students — almost always male — start going on about Hitler’s birthday, Hitler’s suicide, and any other events that may fall on those days.  It’s good to remember coincidence plays a huge role in history, much more than those looking for woo connections will admit.

But I also like to celebrate important events.  Yesterday I posted on Damn the Torpedoes Day, the anniversary of the Battle of Mobile Bay and then-Capt. David Farragut’s famous line.

Doing that, and a dozen other things, I completely overlooked another anniversary that carries a lot of weight with me, and I hope with you, too.  I was reminded this morning when I saw the post from Professor Olsen @ Large, noting the day Mel Mermelstein beat the Holocaust deniers in court, and established in U.S. law the historical fact of the Holocaust.

On this date [August 5], Long Beach, California businessman Melvin Mermelstein struck a powerful blow against bogus history and historical hoaxes. Mel was awarded a judgment in a California court, in a contract case.

In 1980, the Institute for Historical Review (IHR), a Torrance, California organization that claimed that the planned extermination of Jews by the Nazis was a myth, had offered a $50,000 reward for anyone who could prove that the Holocaust actually happened.

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Mermelstein’s lawyer, William John Cox, had a brilliant idea. He petitioned the court to take “judicial notice” of the fact of the Holocaust. The doctrine of judicial notice allows courts to recognize as fact something that is so well established that it doesn’t need to be evidenced when it is introduced in court — such as, 2 + 2 = 4, the freezing point of water is 32 degrees Fahrenheit and 0 degrees Celsius, the Earth orbits the Sun, etc.

In a pre-trial hearing on 9 October 1981, Los Angeles County Superior Court Judge Thomas T. Johnson resolved the most controversial part of the case; the court ruled that the Holocaust had occurred. The judge declared:

Under Evidence Code Section 452(h), this court does take judicial notice of the fact that Jews were gassed to death at the Auschwitz Concentration Camp in Poland during the summer of 1944.


It just simply is a fact that falls within the definition of Evidence Code Section 452(h). It is not reasonably subject to dispute. And it is capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. It is simply a fact.

That ruling meant that, by operation of law, Mermelstein had won the case, obviating the need for a court trial.

Prof. Olsen has much more — go read — and I’ve listed my previous posts on Mel Mermelstein below.

There were two points of law in the case that delighted me.  One was the sweepstakes contract, and the other was the judicial note.  A sweepstakes contract is one where someone makes an offer, “the first one who does X, gets $,” for example.  While it’s a bit obscure, it is a point of contract law that sweepstakes contracts are enforceable in court (common law, as most contract law is).  Willis Carto‘s Holocaust denial group, the Institute for Historical Review (IHR), hadn’t realized that they made a bona fide, potentially legally-binding offer.  Mermelstein did, performed the required task, and demanded payment.  When IHR refused to pay, Mermelstein hauled them into court.

Judicial note is another oddity of law school, that I think is probably used way too seldom to squelch stupid lawsuits.  The rule — again in common law — is that a judge may take note of certain facts so they need not be evidenced and “proven” in court, over and over again.  The sky is blue, most of the time (black at night); boiling water is hot; 2+2=4 — those are the sorts of facts that judges may rule need not be evidenced at every trial where they might play a role.  Mermelstein’s lawyer, William John Cox — another hero, along with Lawrence E. Heller and all of Mermelstein’s lawyers — moved that the court take judicial note of the fact of the Holocaust.  The judge held a hearing, and did.

That meant there was no issue to take to trial in Mermelstein’s suit against IHR.  Where IHR had probably hoped for a chance to trot out their denialists claims, perhaps for broadcast and print media, the issue was now one solely for the judge to rule on the points of law — and on those points, Mermelstein won.  IHR had to pay him.

Plus, it was established in California, that the Holocaust did occur.  As a point of law, Holocause denialists are wrong.

August 5 should be Accurate History Day, too. 

You could combine the lessons of history from David Farragut, Mel Mermelstein, and Davey Crockett, and get a good philosophy.  Davey Crockett said, be sure you’re right, then go ahead.

Get your history right, stand up for human rights, and damn the torpedoes!

I could live with that.

Tree of Testimony from victims of the Holocaust, at the Los Angeles Museum of the Holocaust

Tree of Testimony from victims of the Holocaust, at the Los Angeles Museum of the Holocaust; dozens of interviews of survivors were taped by researchers at the University of Southern California, displayed on these video screens.


Mermelstein: The man who forced us to remember

August 20, 2012

I first posted a version of this back in August 2006.  Since that time not much showed up on the internet to commemorate the story of Mel Mermelstein, nor to burn his deeds into the history books.  Millard Fillmore’s Bathtub had many fewer readers each day, then too.  This is a story that should not be forgotten about a story that must not be forgotten.

Mr. Mel Mermelstein, in 1993, recording an oral history for the US Holocaust Memorial  Museum

Mr. Mel Mermelstein, in 1993, recording an oral history for the US Holocaust Memorial Museum

In early August 1985, Melvin Mermelstein struck a powerful blow against bogus history and historical hoaxes. Mel won a decision in a California court, in a contract case.

A group of Holocaust deniers had offered a $50,000 reward for anyone who could prove that the Holocaust actually happened. Mermelstein had watched his family marched to the gas chambers, and could testify. He offered his evidence. The Holocaust deniers, of course, had no intention of paying up. They dismissed any evidence offered as inadequate, and continued to claim no one could prove that the Holocaust actually occurred.

Mermelstein, however, was a businessman and he knew the law. He knew that the offer of the reward was a sweepstakes, a form of contract. He knew it was a contract enforceable in court.  He sued to collect the offered reward.  The reward was an offer, and Mel Mermelstein accepted the offer and, he said, he performed his part of the bargain. The issue in court would be, was Mermelstein’s evidence sufficient?

Mermelstein’s lawyer had a brilliant idea. He petitioned the court to take “judicial notice” of the fact of the Holocaust. Judicial note means that a fact is so well established that it doesn’t need to be evidenced when it is introduced in court — such as, 2+2=4, the freezing point of water is 32 degrees Fahrenheit, 0 degrees Celsius, etc.

The court ruled that the evidence presented overwhelmingly established that the Holocaust had occurred — the court made judicial note of the Holocaust. That ruling meant that, by operation of law, Mermelstein won the case. The only thing for the judge to do beyond that was award the money, and expenses and damages.

You can read the case and other materials at the Nizkor Holocaust remembrance site.

Appalachian State University takes the Holocaust seriously — there is a program of study on the issue, reported by the Mountain Times (the school is in Boone, North Carolina — not sure where the newspaper is).

Teaching the Holocaust to Future Generations

Mountain Times, August 17, 2006

As co-directors of Appalachian State University’s Center for Judaic, Holocaust and Peace Studies, Rennie Brantz and Zohara Boyd are always eager to expand and improve the center’s methods of education. Seldom, though, does this involve airfare.

Brantz and Boyd recently visited Israel to participate in the Fifth International Conference for Education: Teaching the Holocaust to Future Generations. The four-day conference was held in late June at Yad Vashem, an institute and museum in Jerusalem that specializes in the Nazi Holocaust. [link added]

“Yad Vashem is an incredible institute,” Brantz said. “It was founded in the ’50s to remember and commemorate those who perished in the Holocaust, and has been the premier international research institute dealing with the Holocaust.”

As Santayana advises, we remember the past in order to prevent its recurring. Clearly, this is a past we need to work harder at remembering.

Despite having been ordered to acknowledge the Holocaust, pay up on their sweepstakes offer, and apologize to Mr. Mermelstein, Holocaust deniers continue to publish claims that Mr. Mermelstein’s account is not accurate, or that it is contradictory or in some other way fails to measure up to the most strict tests of historical accuracy.  So it is important that you remember the story of Mel Mermelstein, and that you spread it far and wide.


Does Idaho exist? Does McDonald’s sell French Fries?

August 19, 2009

Fun discourse on the nature of what we know, and how we know it, at Alaska blog What do I know?

Steve makes his point with solid commentary on the birthers, gay marriage, and health care reform debates.

Why don’t other philosophers — Beckwith, Monton and Dembski come to mind — adopt similarly rational views?

As one born in Idaho, I love the title.  No, you can’t see my birth certificate.  You don’t think Idaho exists?  Where, then, do the McDonald’s French Fries come from?

Tip of the old scrub brush to Dr. Bumsted.

Share this story; who can prove Idaho exists?

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The Wrong Stuff, on purpose: Weikart misquotes Darwin

May 10, 2008

Richard Weikart is an arm of the Discovery Institute’s disinformation brigade. A couple of years ago he published a book attempting to link Darwin to the Holocaust in a blame-sharing arrangement. This book and some of its arguments appear to be the foundation of the text used to write the script for the mockumentary movie “Expelled!” featuring Nixon speechwriter Ben Stein.

Which is to say, the basis for the movie is dubious. Weikart’s scholarship creating links between Darwin, science and Hitler is quite creative. It is also based on arguments created from Darwin’s writings that mislead the innocent about evolution, science and history, or which get Darwin and evolution exactly wrong.

Michael Ruse published an op-ed in a Florida paper in February — a piece which is no longer available there (anybody got a copy? Nebraska Citizens for Science preserved a copy) — and Weikart responded, restating his creative claims. Alas for the truth, Weikart’s canards are still available at the Discovery Institute website, putting an interesting twist on Twain’s old line: The truth will go to bed at night while a falsehood will travel twice around the world as the truth kicks off its slippers.

Looking for Ruse’s piece, I found Weikart’s response here and here. I composed a quick response pointing out the problems, which I would like to posit here for the record — partly because I doubt Darwiniana gets much traffic, partly because the censor-happy folks at Discovery Institute don’t allow free discussion at their site, and partly so I can control it to make sure it’s not butchered as Weikart butchers Darwin’s text.

At Darwiniana I said:

Weikart’s strip quoting of Darwin is most disappointing. [Weikart wrote:]

Darwin claimed in chapter two of The Descent of Man that there were great differences in moral disposition and intellect between the “highest races” and the “lowest savages.” Later in Descent he declared, “At some future period, not very distant as measured by centuries, the civilised races of man will almost certainly exterminate and replace throughout the world the savage races.” Racial inegalitarianism was built into Darwin’s analysis from the start.

Darwin argued the differences in intellect and manners between the “highest” of men and the “lowest” of men did NOT change the fact that we are are all related — legally, Darwin’s argument would evidence a claim absolutely the opposite of what Weikart claims. Here are Darwin’s words from Chapter II of Descent of Man, as Darwin wrote them, without Weikart’s creative editing:

Nor is the difference slight in moral disposition between a barbarian, such as the man described by the old navigator Byron, who dashed his child on the rocks for dropping a basket of sea-urchins, and a Howard or Clarkson; and in intellect, between a savage who uses hardly any abstract terms, and a Newton or Shakespeare. Differences of this kind between the highest men of the highest races and the lowest savages, are connected by the finest gradations. Therefore it is possible that they might pass and be developed into each other. [emphasis added]

That’s not inegalitarianism at all — Darwin’s saying they are the same species, related closer than the poets allow. If we stick to the evidence, and [do] not wander off into poetic philosophy, we must acknowledge that Darwin’s own egalitarian spirit shows here in the science, too. It would be an odd kettle of fish indeed that a crabby guy like Hitler, who shared the antiscience bias of Weikart’s organization, would suddenly accept the science of a hated Englishman that ran contrary to his other philosophies. Who makes the error here, Hitler or Weikart? If they both think Darwin endorsed racism, they both do — but there is not an iota of evidence that Hitler based his patent racism on science, let alone the science of an Englishman.

As to the second quote, Weikart leaves the context out, and the context is everything. Darwin is not arguing that “savages” (the 19th century word for “aboriginals”) were less human, nor that they are a different species. He was arguing that in some future time there would appear creationists like Dr. Weikart’s colleagues at the Discovery Institute who will deny evolution because, once Europeans and others with guns conduct an unholy genocide (which Darwin writes against in the next chapter), and once humans wipe out chimpanzees, orangs and gorillas, the other great apes, the creationists can [then] dishonestly look around, blink their eyes and say, “Where are the links? There cannot be evolution between (Animal X) and humans!”

Darwin wrote:

At some future period, not very distant as measured by centuries, the civilised races of man will almost certainly exterminate, and replace, the savage races throughout the world. At the same time the anthropomorphous apes, as Professor Schaaffhausen has remarked (18. ‘Anthropological Review,’ April 1867, p. 236.), will no doubt be exterminated. The break between man and his nearest allies will then be wider, for it will intervene between man in a more civilised state, as we may hope, even than the Caucasian, [emphasis added] and some ape as low as a baboon, instead of as now between the negro or Australian and the gorilla.

In the end, Darwin wrote against genocide, against racism, and in favor of the higher thinking abilities of all dark-skinned people. He wrote in favor of Christian morality. Darwin himself remained a faithful, tithing Christian to the end of his life.

Such a man, and such amazing science, deserve accurate history, not the fantastic, cowardly and scurrilous inventions Dr. Weikart has given them. We should rise to be “man in a more civilized state” as Darwin had hoped.

Update, July 24, 2008, nota bene:  To anyone venturing here from the Blogcatalog discussion on intelligent design: Get over to the site of Donald Johanson’s Institute for Human Origins, and especially look at the presentation “On Becoming Human.”  Also check out the Evolution Gateway site at Berkeley, especially this page which explains what evolution is, and this page which offers some introduction for what the evidence for evolution really is.  One quick answer to a question someone asked there:  Between H. erectus and modern humans, H. sapiens, in the time sequence we have fossils of H. heidelbergensis and H. neanderthalensis.  It’s pretty clear that Neandertal is not ancestral to modern humans, but instead lived alongside modern humans for 50,000 years or so from the Middle East through Southern Europe.  To the question of actual transitional fossils, you’d need to hit the paleontology journals — there are a lot.  You may also benefit from taking a look at the articles at this special Nature site.

Coda on the Oxford Union debate fiasco

December 2, 2007


Alun Salt correctly pins the difficulty of dealing with stupidly planned debates, those that give credence to the uncredible merely by allowing them to appear — in this case, in regard to the Oxford Union’s ill-thought notion to invite neo-fascists and Holocaust deniers in to discuss “freedom of speech.”

This is exactly the same issue that arises when the tinfoil hats group asks a distinguished scientist to “debate” a creationist, or when someone demands a forum for David Barton to discuss the Christian nature of the design of U.S. government.

Freedom of speech and freedom of the press include the freedom to be stupid, and the freedom to believe stupid and false things. Our First Amendment does not create a privilege to waste the time of other people who do not share such beliefs.

I wish Mr. Salt had the answer we need in Texas: What do you do when the tinfoil hats people take over the Texas State Board of Education and demand that religious superstition replace science in the science classes?

Why give Holocaust denial a platform?

November 25, 2007


Deborah Lipstadt asks the key question at her blog: Why should any honorable, noble agency give a platform to people who don’t respect the facts and who have a track record of distorting history?

The distinguished debating group, the Oxford Union, has invited history distorter David Irving to speak. He was invited to speak with representatives of the British National Party (BNP), a group not known for tolerance on racial and immigration issues. While there is value to getting a range of views on any issue, Prof. Lipstadt and many others among us think that inviting a known distorter to speak is practicing open-mindedness past the point of letting one’s brains fall out (what is the difference between “open mind” and “hole in the head?”).

You know this story and these characters, right, teachers of history? You should, since these people play important roles in the modern art of history, and in the discussion over what we know, and how we know it. These are issues of “what is truth,” that your students badger you about (rightfully, perhaps righteously).

American teachers of history need to be particularly alert to these issues, since Holocaust deniers have been so successful at placing their material on the internet in a fashion that makes it pop up early in any search on the Holocaust. Most searches on “Holocaust” will produce a majority of sites from Holocaust deniers. It is easy for unwary students to be led astray, into paths of racist harangues well-disguised as “fairness in history and speech.”

Prof. Lipstadt practices history at Emory University in Atlanta, where she is the Dorot Professor of Modern Jewish and Holocaust Studies. She chronicled much of the modern assault on history in her book, Denying the Holocaust, The Growing Assault on Truth and Memory (1994). In that book, she documented the work of British historian David Irving, much of which consists of questionable denial of events in the Holocaust.

Cover of Lipstadt's book, Denying the Holocaust

Cover of Deborah Lipstadt’s book, Denying the Holocaust, the Growing Assault on Truth and Memory

Irving sued her for libel in Britain in 2000, where it is not enough to establish the truth of the matter to mount a defense. In a stunning and welcomed rebuke to Holocaust denial and deniers, the judge ruled in her favor, and documented Irving’s distortions in his 350-page opinion.

While his claims are legal in England, in several places in Europe his denial of Holocaust events is not protected as free speech. Traveling in Austria in 2005, he was arrested and imprisoned for an earlier conviction under a law that makes it a crime to deny the events. Prof. Lipstadt opposed the Austrian court’s decision: “I am uncomfortable with imprisoning people for speech. Let him go and let him fade from everyone’s radar screens.”

The drama plays out again. Serious questioning of what happened is the front line of history. Denying what happened, however, wastes time and misleads honest citizens and even serious students, sometimes with bad effect. Santayana’s warning about not knowing history assumes that we learn accurate history, not a parody of it.

This event will raise false questions about censorship of Holocaust deniers, and the discussion is likely to confuse a lot of people, including your students. U.S. history courses in high school probably will not get to the Holocaust until next semester. This issue, now, is an opportunity for teachers to collect news stories that illuminate the practice of history for students. At least, we hope to illuminate, rather than snuff out the candles of knowledge.



David Irving out of jail – no longer denies Holocaust

December 21, 2006

Former historian David Irving was released from jail in Austria early, on December 21. Irving claims that he no longer denies the Holocaust.

Former historian David Irving, in handcuffs, released from Austrian jail.  Reuters photoDetails are in the Daily Telegraph from England.

In several European nations, including Austria, denial of the Holocaust not only is historical error, it’s also against criminal law.

He was arrested in November 2005 on charges related to two speeches and a newspaper interview he gave in Austria in 1989 in which he called the gas chambers a “fairy tale” and claimed that Hitler had no role in the Holocaust, even “offering his hand to protect the Jews”.

The charges covered statements he had made, such as questioning the accepted version of the Holocaust. He argued that “millions of people were led to believe” an “absolute absurdity”. A jury found him guilty of denying the Holocaust and other Nazi crimes.

Irving had appealed his 3-year sentence as too long. He serves the rest on probation.

Irving earlier sued U.S. historian Deborah Lipstadt for libel, in London, after she had called him a Holocaust denier. In a long and famous trial, she was found not to have libeled Irving, though under British law, truth is not a defense as it is in the U.S.

While it offends my First Amendment sensibilities to criminalize the making of such claims, one wonders about the intelligence or goals of people who deny the Holocaust.

Under California law, judicial note has been taken that the Holocaust occurred. It is a fact of history. U.S. law allows more robust, and offensive, discussion of the topic.

But in the end, the Holocaust is a fact. It’s an ugly, brutal and regrettable fact. Denying it occurred at all, or to the scope and degree it occurred, is only an odd form of denial of reality.

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