From the Viewpoints column of the May 2004 Perspectives
Academic Freedom: The Hiss Case Yields a Noteworthy Victory
David Lowenthal, May 2004
Academic liberty has been seriously jeopardized of late, notably in the wake of 9/11 and the USA Patriot Act. Scholarly publication is increasingly beleaguered by a resumption of a Cold War type of climate that erodes freedom of speech and the press. Fear of litigation threatens scientific publication in peer-reviewed journals; lawyers representing the Association of Medical Publishers in a pending libel suit warn that even the thought of legal action may deter editors from printing anything to which anyone might take exception. Academe in America appears to be more and more besieged. But historians and other scholars can take some comfort in a recent legal decision stemming from one of the most famous of Cold War controversies—the notorious Hiss-Chambers spy case.
In August 1948, Time magazine editor and ex-Communist courier Whittaker Chambers told the House Un-American Activities Committee [HUAC] that Alger Hiss, president of the Carnegie Endowment for International Peace and former State Department official, had been a Communist in the 1930s. Chambers later repeated the allegation on the popular radio program, Meet the Press. When Hiss sued Chambers for libel, Chambers elaborated on his allegations and claimed Hiss had engaged in espionage, producing copies of State Department documents allegedly typed by Hiss's wife to support his charge. Chambers then led HUAC investigators to a hollowed-out pumpkin on his Maryland farm, where he had put rolls of film that he said Hiss had given to him for transmittal to Moscow. Indicted for perjury, Hiss was tried twice and sentenced in 1950 (the first trial had resulted in a hung jury) to five years in prison. Within weeks, Senator Joseph McCarthy launched his eponymous era with a speech invoking Alger Hiss as typifying a State Department still "thoroughly infested with Communists." Richard Nixon, Hiss's chief nemesis on HUAC, rose to fame and eventually to the presidency on the campaign slogan "Twenty Years of Treason." His career ruined, Hiss died in 1996 maintaining his innocence to the end.
The case is still hotly disputed. Continuing controversies stem from the release in 1996 of the "Venona" messages—Soviet cablegrams covertly monitored by the U.S. Army during World War II. Some contend that Venona confirms Hiss's guilt; others hold that it demonstrates the opposite. Charges and countercharges of spurious translation, shoddy scholarship, data manipulation, archival distortion, and parti pris selectivity pervade the scholarly arena. Each faction views the other as "in denial," to cite the title of John Earl Haynes and Harvey Klehr's 2003 input to the affray. But recent statements on the Diplomatic History electronic discussion list, H-DIPLO, by Julius Kobyakov (October 16 and December 17, 2003), deputy director of the KGB's American desk during the 1980s, and by Amy Knight (January 16 and March 2, 2004), discredit the latest essay asserting Hiss's guilt.1 The debate continues.
A recent court judgment dealing with these and related issues provides a rare instance in which academic freedom has not been curtailed but, mirabile dictu, buttressed. No less incredibly, this occurred not in the United States, where the Pumpkin Papers drama riveted the entire nation, but in Britain, before a predominantly youthful English jury wholly unversed in the history of World War II Soviet espionage and in the Cold War witch-hunt hysteria that sent Hiss to jail and Nixon to the White House.
In June 2001, ex-KGB courier Alexander Vassiliev, co-author with Allen Weinstein of The Haunted Wood: Soviet Espionage in America—The Stalin Era (1999), sued the publisher, Frank Cass Ltd., for libel in Britain's High Court. Vassiliev contended he had been defamed in an essay by law professor and filmmaker John Lowenthal, "Venona and Alger Hiss," in the Cass journal, Intelligence and National Security (INS). It is much easier to win a libel suit in Britain than in America, for in British law, the defendant must produce evidence to show that the words complained of were factually true or, if matters of opinion, were "such that an honest person could express them in the light of what he knew," whereas in America it is up to the plaintiff to prove his charges. It is for this reason that David Irving sued Deborah Lipstadt over her book Denying the Holocaust in Britain rather than in the United States (see Jamil Zainaldin, "The Price of Truth: History, Deborah Lipstadt, and the Libel Trial," Perspectives, January 2002, 27–30). Moreover, in the United States, a complaint concerning a published work (such as The Haunted Wood) must show that malice was premeditated. In Britain, damages may be awarded to a plaintiff even if defamation was not intended.
Lowenthal's essay had criticized The Haunted Wood, along with many other texts claiming to demonstrate Hiss's guilt, for misinterpreting sources and ignoring exculpatory evidence. In particular, Lowenthal censured Haunted Wood for selectively replacing KGB and Venona code names and cover names with those of Hiss and others, without citing any authority or source, other than FBI surmise, for doing so. Moreover, The Haunted Wood's conclusions stemmed from materials to which the coauthors (or their publisher) had purchased access. The KGB files on which they purported to rely were and remain closed to all others. In consequence, wrote Lowenthal, "the co-authors' references and their own narrative statements cannot be checked or verified by anyone else. Because they derive from excerpts 'quoted' out of context from KGB files closed to other researchers, the KGB materials they publish offer no credible support for the proposition . . . that Hiss was [an] espionage agent."2
Alexander Vassiliev v. Frank Cass & Co. Ltd. was held in Room 13 of the cavernous Royal Courts of Justice, facing the Strand in London, in mid-June 2003. During the weeklong trial, witnesses who were heard and cross-examined included Lowenthal; Stewart Cass on behalf of the publisher; Richard Aldrich, editor of Intelligence and National Security; and one of the Lowenthal essay's three referees. Late in the afternoon on Friday, June 13, the jury pronounced its unanimous verdict of acquittal. Although the jury held the essay to be defamatory (that is to say, that an ordinary person would be apt to think less well of Vassiliev after reading it), the criticisms Vassiliev complained of were deemed matters of opinion and fair comment; that is, given what Lowenthal and his publisher knew at the time, they could honestly take the critical views they expressed without fear of legal reprisal.
The importance of "fair comment" in a free society had been spelled out at length in Judge David Eady's charge to the jury:
We live in a society where freedom of speech is protected.... One of the most important ways by which the common law has safeguarded freedom of speech is through this defence in libel actions called "fair comment."…
We are all allowed to express our opinion on matters of public interest without being brought before the courts … even controversial or eccentric or cranky opinions.… You are entitled … to have a point of view, and to press it as hard as you like, provided you are honest.… The Haunted Wood was itself put into the public domain.... Once you have put something into the public domain for public consumption people are allowed to comment on it, … can review it and critique it under the defence of fair comment.
Crucial to the defense case and to the acquittal was the peer-review process, spelled out in painstaking detail by the publisher, the editor, the referee, and the writer. Lowenthal had accepted every recommendation of substance and of wording; the published essay incorporated all changes requested. Nonetheless, owing to the persisting animus that continues to inflame every commentary on Alger Hiss, the publisher had been sufficiently concerned to obtain legal advice to the effect that the essay could not be construed as libelous. Indeed, Aldrich (INS's editor), who considered Lowenthal's essay "pleasingly restrained and properly academic," nevertheless feared being sued "just to cause us grief," as he wrote Cass's managing editor in a letter shown to the jury.
Because the sanctity of properly refereed scholarly publication was the linchpin of the defense argument, the judge's charge and the jury's ruling are of immense service to academe, greatly reducing the menace of frivolous, ill-considered, or vexatious threats of legal action. The two years between the filing and the decision of this suit had already had a chilling effect on academic publication in Britain, for no publisher wanted to be put at risk of a lengthy, costly, and perhaps unsuccessful defense.
Academic freedom had been invoked a generation earlier in Britain, in a 1970 opinion by Lord Denning, then Master of the Rolls. Denning aimed to justify "lawful criticism" in a paper in the British Medical Journal, against which a complainant had won libel damages in a decision that had then been appealed. "It would be a sorry day if scientists were to be deterred from publishing their findings for fear of libel actions," held Denning, who added, "So long as they refrain from personal attacks, they should be free to criticise the systems and techniques of others. It is in the interests of truth itself. Were it otherwise, no scientific journal would be safe." But Denning's was then a minority view, and the defendant in that case lost. Hence Vassiliev v. Cass "has actually changed UK law," INS editor Aldrich wrote me in October 2003. "It ensures that we are now immune from defamation if we have refereed an article.… It was the fact that we stood up and assured the court that everything that is [in] an article is rigorously refereed … that counted."
The British High Court trial is by no means the only occasion in which the Hiss case has generated issues germane to freedom of scholarship. From the 1950s on, the Hiss trials and their aftermath have been permeated with allegations involving the fabrication and withholding of evidence. Thus the FBI was charged with concealing evidence that the typewriter shown to the jury that convicted Hiss was not, in fact, Hiss's own typewriter. "The FBI trapped Hiss," Lowenthal concluded in 1976, "by suppressing the evidence vital to his defense."3 In defiance of the spirit of the Freedom of Information Act, as Lowenthal testified at the Vassiliev/Cass trial, the FBI has continued since 1967 to withhold from researchers crucial evidence bearing on this and other aspects of the Hiss case.
Similarly reluctant to release disputed material is the historian Allen Weinstein, whose book Perjury: The Hiss-Chambers Case (1978) purported to prove Hiss's guilt partly on the basis of interviews with informants. But six of Weinstein's seemingly damning interviewees, when queried by Victor Navasky, then editor of The Nation magazine, denied they had told Weinstein what he published in Perjury; they had been misquoted, misrepresented, or misconstrued.4 One of them, Samuel Krieger, got libel damages and a public apology after Weinstein failed to produce promised tapes of his interview. In 1978 Weinstein pledged to deposit all his tapes and interview notes along with other data in the Truman presidential library within the year. A quarter century after that promise, and a decade after Jon Wiener again addressed this breach of historical ethics, many of Weinstein's most crucial and controversial source materials remain undeposited and unavailable to historians, other than those to whom Weinstein has given selective access.5 Given these circumstances, much of the evidence for Perjury's conclusions remains as unverifiable as the extracts from KGB documents in Haunted Wood, "fatally tainted," as Navasky put it, by Weinstein's "unprofessionalism."
Wiener's critique of Weinstein's ethical conduct, initially scheduled to appear in AHA Perspectives in December 1990, was delayed until February 1992 ("The Alger Hiss Case, the Archives, and Allen Weinstein," 10–12), in part to allow Weinstein an opportunity to respond, which he declined. Wiener then registered a formal complaint that Weinstein had violated the AHA's 1987 Statement on Standards of Professional Conduct. This was recused by the AHA's Professional Division on the ground that Wiener's essay in Perspectives had already made the charges public knowledge.
Since May 2003 the AHA has ceased to accept complaints of ethical misconduct. But the Statement on Standards continues to play a pivotal role in public controversies involving professional conduct. Historians and others who rely on its authority might want to join other scholars in a proactive defense both of open access to source materials (see "Resolving Academic Freedom: Professional Groups Defend Intellectual Openness," Academe, May–June 2003) and of liberty to publish without being menaced by vexatious litigation. The landmark decision in Britain's High Court is a promising bridgehead in the battle to uphold freedom of expression and of historical inquiry.
—David Lowenthal (d.lowenthal@ucl. ac.uk), emeritus professor at University College London,
is the brother of John Lowenthal, who died September 9, 2003.
1. Eduard Mark "Who Was 'Venona's' 'Ales'? Cryptanalysis and the Hiss Case," Intelligence and National Security 18:3 (2003), 45–72.
2. John Lowenthal, "Venona and Alger Hiss," Intelligence and National Security 15:3 (2000), 98–130 at 116–17.
3. John Lowenthal, "What the FBI Knew and Hid," The Nation, June 26, 1976, 776–82.
4. Victor Navasky, "Allen Weinstein's 'Perjury': The Case Not Proved against Alger Hiss," The Nation, April 8, 1978, 393–401.
5. "Costly Error for Hiss Historian," New York Magazine (May 21, 1979), 61; Jon Wiener, "Compromised Positions," Lingua Franca (January-February 1993), 41–48. See also G. Edward White, Alger Hiss's Looking-Glass Wars: The Covert Life of a Soviet Spy (Oxford, 2004), page 189, note 39.