Error and Trial: One Scholar Takes Another to Court over a Book Review

Kritika Agarwal, October 2017

Façade of regional court in Hamburg that issued a preliminary freeze injunction prohibiting a half-sentence from appearing in Flachowsky’s review. Ajepbah/Wikimedia Commons/CC-BY-SA 3.0 DE Historian Sören Flachowsky wasn’t present when a court in Hamburg, Germany, issued a preliminary freeze injunction against a sentence in a book review he’d written—he learned of it only after the fact.

On June 14, 2016, H-Soz-Kult (a German nonprofit founded as an offshoot of H-Net in the late 1990s) had published his review of Julien Reitzenstein’s Himmlers Forscher: Wehrwissenschaft und Medizinverbrechen im „Ahnenerbe“ der SS (Himmler’s Scientists: Military Science and Medical Crimes in the “Ahnenerbe” of the SS). After an initial, brief attempt to initiate dialogue about the review with H-Soz-Kult, Reitzenstein took legal action, asserting that Flachowsky’s review contained misstatements of fact that implied Reitzenstein was a Nazi sympathizer, damaging his personal and professional reputation. The court agreed.

German press laws prohibit untrue statements in the media, and courts can issue preliminary freeze injunctions without oral hearings in matters deemed urgent (including damages to reputation likely to worsen quickly), so Flachowsky didn’t technically need to be there. In events that followed, H-Soz-Kult edited and then removed Flachowsky’s review from its website, replacing it with a new review. The case opens up questions about academic freedom and scholarly discourse. If scholars can sue other scholars, does that mean they should? And under what circumstances should they do so?

Reitzenstein, who’s taught at the Heinrich-Heine-Universität Düsseldorf and the Martin-Luther-Universität Halle-Wittenberg, says he believes in the advancement of historical science through dialogue. He sees his actions as deliberate and rational efforts to promote scholarly discourse by attempting to engage Flachowsky, despite injuries to his own reputation and livelihood. If taking the author of a book review to court seems counter to norms of scholarly discourse, Reitzenstein argues that it was necessary because H-Soz-Kult wouldn’t allow him to respond to the review in an appropriate way.

Julien Reitzenstein sees his legal actions as deliberate and rational efforts to promote scholarly discourse by attempting to engage the reviewer.

Indeed, it’s possible that a harsh review on the mailing list of H-Soz-Kult (Sozial-und Kulturgeschichte, or Social and Cultural History) would detract from an author’s scholarly reputation. With more than 24,000 subscribers, the list has vast reach among German-speaking academics, beyond the borders of Germany and even of Europe itself. With funding and support from Berlin’s Humboldt University, all its content is duplicated on H-Net’s US servers and website, hosted by Michigan State University. According to Claudia Prinz, a H-Soz-Kult coordinator and editor, each year the list publishes around 1,000 book reviews and between 600 and 800 conference reports, as well as discussion forums, announcements, and other content.

But Flachowsky’s review of Himmlers Forscher was largely positive. Based on Reitzenstein’s dissertation at the Universität Düsseldorf, the book analyzes the Institute for Applied Research in Military Science (Institut für wehrwissenschaftliche Zweckforschung, or IWZ). The IWZ conducted medical experiments on concentration camp prisoners; Wolfram Sievers, its director, was sentenced to death at the Nuremberg Trials for crimes against humanity.

Flachowsky praised Himmlers Forscher for presenting such “new findings” as the identities of IWZ victims and the hideous origins of the skull collection at the University of Strasbourg. But Flachowsky took issue with some of Reitzenstein’s conclusions about Sievers, particularly his “assertion that Sievers never required fatal human trials and ‘“only” on two occasions’ pushed for potentially deadly procedures[.]” For Flachowsky, this “problematic” conclusion was contradicted by Reitzenstein’s book itself: “Contrary to the statement that ‘there is no evidence that Sievers demanded human trials, provided that there were alternatives,’ there is prolific evidence in Reitzenstein’s book that Sievers pushed, coordinated, and financed fatal human trials[.]”

But it was one particular sentence in Flachowsky’s review (reported in the German newspaper Frankfurter Allgemeine Zeitung, or FAZ) that later would become the subject of the injunction. Referring to two SS researchers who conducted medical experiments on victims of the Nazi regime, Flachowsky wrote, “In his description of August Hirt and Sigmund Rascher’s divisions, Reitzenstein referred to the current scholarship and avoided providing a description of the crimes, which would have been appropriate/necessary.” (“Bei der Betrachtung der Abteilungen von August Hirt und Sigmund Rascher verzichtet Reitzenstein mit Blick auf die Forschungslage auf eine Darstellung der Verbrechen, was aber angebracht gewesen wäre.”)

In an extensive written statement to Perspectives, Reitzenstein notes that two entire chapters of Himmlers Forscher depict the crimes that Flachowsky’s review said he failed to illustrate. Flachowsky’s review, according to Reitzenstein, not only misrepresented his scholarship but also insinuated that he was “whitewashing” history. Sievers, he explained to Perspectives, only pushed for deadly experiments on two occasions: “There is a big juridical difference between someone devising and forcing a crime and someone being an accomplice in the crimes of others. . . . I differentiated between those lethal experiments on humans in which [he] was the mastermind . . . [and] those he ‘only’ witnessed without having a strong personal influence[.]”

In an April 2017 interview with FAZ, Flachowsky characterized the sentence as “awkwardly formulated” (“misslich formuliert”) but argued that the remarks that followed put it in context. FAZ also quoted Rüdiger Hohls, head of H-Soz-Kult, as acknowledging that the statement was inaccurate and that replacing “der Verbrechen” with “aller Verbrechen,” or “the crimes” with “all of the crimes,” would have corrected the sentence’s misstatement of fact. Flachowsky’s offense came down to one word—so found the Hamburg court.

Six days after the review was published, Reitzenstein e-mailed Flachowsky and Hohls, in the hope, he told Perspectives, of “initiating a discourse” about the review. Neither Reitzenstein nor H-Soz-Kult would provide Perspectives the e-mail, but each characterizes the contents differently. (Flachowsky declined requests for an interview.) According to a February 2017 editorial statement from H-Soz-Kult, the e-mail “demanded changes in a total of 11 places” in the review. Reitzenstein’s statement characterized the e-mail more modestly: instead of making demands, he only “listed a few points that didn’t seem correct”—misstatements of fact, not “personal evaluations or professional judgments.” “I clearly pointed out that I do not demand any changes on aspects that depend on one’s subjective view,” he wrote.

On June 24, Claudia Prinz responded to Reitzenstein’s e-mail and informed him that while H-Soz-Kult did not retroactively change reviews, he was welcome to submit a response that would be discussed and edited before publication—a policy that is, in fact, typical for many publications (including Perspectives). Reitzenstein wasn’t satisfied. As his statement explains, he initiated legal action instead of submitting a response that H-Soz-Kult would edit “behind closed doors” and without transparency.

This began with a cease-and-desist letter to Flachowsky on June 30, just over two weeks after the review was published. Rising “public pressure” on him, Reitzenstein explained to Perspectives, forced his hand. (Asked for clarification, Reitzenstein did not name any specific people, institutions, or publications that had tarnished his reputation. Although social media hasn’t burnished his reputation, negative tweets with #Reitzenstein only began in February 2017, not directly after the review was first published.) Per German law, sending a cease-and-desist letter is the first step in bringing a lawsuit of this type. On July 27, the court ruled that half of that single awkward sentence—the one about the crimes of Hirt and Rascher—was factually incorrect and must come down from the online review. No monetary damages were awarded, but contesting the injunction would have cost Flachowsky more than 2,600 euros.

At Flachowsky’s request, H-Soz-Kult soon deleted the entire sentence and posted an editorial statement explaining that a sentence had been removed to comply with the court and that Reitzenstein had explicitly relinquished the chance to respond to Flachowsky’s review. But in November 2016, according to FAZ, Reitzenstein’s attorneys sent additional cease-and-desist letters, this time to both Flachowsky and H-Soz-Kult, objecting to the editorial statement and other sentences in the review that were still online. H-Soz-Kult then withdrew the entire review, replacing it with a note explaining that a detailed statement would soon follow.

The dispute reached the United States in December, when H-Net received a letter from Reitzenstein’s lawyer demanding that the review, which was mirrored on H-Net’s US servers, be removed. H-Net’s executive director, Peter Knupfer, told Perspectives, “The letter did not cite any applicable US or international law that would apply the decision of a local Hamburg court to H-Net servers here in the United States. Nor did we see any reason in the substance of the review to take it down.” The review, which as of this writing can still be read on H-Net, does omit the sentence prohibited by the court. Knupfer sees it as a “minor” change that “didn’t really change the substance, the thrust, the criticism, or anything else that was in the review,” and H-Net removed the sentence as a courtesy to H-Soz-Kult.

With more than 24,000 subscribers, H-Soz-Kult has vast reach among German-speaking academics, beyond the borders of Germany.

In February 2017, H-Soz-Kult published a detailed statement in German about the events. While noting that the review was taken down at Flachowsky’s request, it argued that Reitzenstein had inappropriately shifted academic discourse into the legal realm, demanding changes to a publication by means of “individual, costly procedures” instead of a public response to the review. The statement was accompanied by another review of Himmlers Forscher, written by Michael Wildt (Humboldt-Universität zu Berlin) and Rüdiger Hohls—both H-Soz-Kult editors—which extensively paraphrases Flachowsky’s original. Prinz says this ensures that if Reitzenstein wishes to pursue further legal action, it must be against H-Soz-Kult, not an individual. Paraphrasing Flachowsky’s original review was the editors’ way of signaling trust in his critique.

The idea that scholars can be subject to lawsuits for reviews that seem critical raises questions about academic freedom. “I am very concerned,” says Knupfer, “about the implications for censorship and the integrity of scholarly debate in Germany.” According to Prinz, however, while lawsuits are not unheard of, disputes like this are incredibly rare in the German academy and are not considered acceptable by the scholarly community. A negative review should elicit a written response from the author, not a lawsuit, she says.

Reitzenstein is passionately engaged in exposing the crimes of the Nazis, yet at times he seems to misjudge the impression his actions make. In his statement, he characterized his first e-mail to Flachowsky as a humble attempt to initiate an exchange of ideas: “My aim was not to unmask the reviewer with a public reply. My aim was to initiate a discourse to clarify his assumptions which included eleven points that I find debatable.” “All I am looking for is a serious dialogue with the reviewer,” Reitzenstein noted, pointing out that he sought only to protect his reputation, not seek damages. He still refuses to publish any response on H-Soz-Kult that would be subject to editing. He also sees the new review as disingenuous, pointing out that Michael Wildt is chair of Flachowsky’s department. Wildt has also qualified some of Reitzenstein’s conclusions on the provenance of the German presidential villa, owned by a Jew who sold it to a member of the Nazi Party in 1933. (Reitzenstein thought the owner was forced to sell, while Wildt said the circumstances of the sale were ambiguous.) In this, too, Reitzenstein detects forces arrayed against him.

Reitzenstein believes he has not challenged academic freedom—the court prohibited assertions in the review “because they were untrue and slanderous.” Prinz counters by saying that the review was “balanced, competent, and fair.”

Ultimately, the scholarly questions about Flachowsky’s critique and Reitzenstein’s response will not be resolved in a court. The historical community will continue to evaluate scholarship under the norms of academic discourse.

Kritika Agarwal is associate editor, publications, at the AHA. She tweets @kritikaldesi. Perspectives thanks Lauren Stokes (Northwestern Univ.) for assistance with translations and Clemens Kochinke, attorney at law at Berliner Corcoran & Rowe LLP, for explanations of German law. Flachowsky’s review was translated by Anne von Petersdorff (Michigan State Univ.) and provided to Perspectives by H-Net.

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