Court Approves Suit in Holocaust Issue : Civil rights: Man who claimed the genocide never happened contends that Jewish organizations and Los Angeles denied him his right to speak at a library convention.

A federal appeals court Friday ruled that a man who claimed that the Holocaust never occurred could sue Jewish organizations and the city of Los Angeles for allegedly preventing him from speaking at a library conference.

The decision of the U.S. 9th Circuit Court of Appeals--which brought passionate dissents from four of its 28 judges--reaffirms a November ruling from a three-judge panel that allowed the lawsuit, filed by the late David McCalden, to proceed.

In doing so, the full court said alleged threats by two Jewish organizations to disrupt the 1984 California Library Assn. conference in Los Angeles were not necessarily protected by the free speech rights of the 1st Amendment.

Judge William Norris, writing for the majority, said that although some of the defendants’ protests were constitutionally protected, they were not immune from liability for the alleged threats.

McCalden asserted in his 1986 suit that the American Jewish Committee had contacted representatives of the library association and told them that if they did not cancel McCalden’s contracts to speak and mount an exhibit “the conference would be disrupted, property would be damaged, and the CLA would be ‘wiped out.’ ”

He also alleged that the Simon Wiesenthal Center for Holocaust Studies, headed by Rabbi Marvin Hier, approved of the threats.

Both groups denied making such threats, although they acknowledged using intense political pressure in a campaign to prevent McCalden’s exhibit. Additionally, Judge Norris noted that city officials told the library association’s director that they would be unable to provide adequate security for the conference.

McCalden, the self-described Holocaust revisionist, charged that as a result of pressure and threats from the Jewish groups, the library association canceled his exhibit at the Bonaventure Hotel. McCalden died last year and his widow, Viviana, is continuing to press the suit.

Four of the court’s 28 members issued a blistering dissent that evoked the horrors of World War II’s Holocaust, during which Nazis killed 6 million Jews. The dissenters also charged that the court majority was stifling the Holocaust survivors’ free speech and that by allowing the suit to go forward, the majority was threatening the 1st Amendment rights of an array of individuals and groups, particularly the news media.

“I had thought it inconceivable that one could be held liable for planning and organizing a political demonstration,” wrote Judge Alex Kozinski. He wrote for himself and three colleagues who contended that the case should be reviewed by an 11-member panel of the appeals court.

Kozinski said threats to hold a political demonstration that might become violent are clearly constitutionally protected. He said no one should be surprised that people would mount a militant, perhaps disruptive protest, in response to McCalden’s claims.

“Those who carry the mark of Auschwitz tattooed on their forearms, or who survived Treblinka, Dachau or Buchenwald; who were hunted down like animals in the streets of Warsaw; who saw loved ones perish during Kristallnacht or in frozen boxcars on their way to the death camps that are the shame and horror of modern times--they cannot be expected to react calmly, with deliberation, with gentility to one who would tarnish the memory of those butchered in the Holocaust by pretending the whole thing didn’t happen,” wrote Kozinski, who is Jewish and came to this country from Romania when he was 12.

Kozinski also said it was ludicrous to characterize the center’s threats to hold a disruptive demonstration as extortion. The center’s statements, Kozinski said, “were aimed at achieving a political objective, not exacting protection payments.” Judges Arthur Alarcon and T. G. Nelson joined in Kozinski’s opinion.

Also dissenting was Appeals Court Judge Stephen Reinhardt, who wrote that demonstrations from the Boston Tea Party to the Vietnam War protests were often disruptive but served the purpose of bringing important issues into the public spotlight.

The dissenters approached the case in a sharply different fashion from the majority. Norris’ majority opinion described the issue facing the appeals court as a technical legal question of whether McCalden had made allegations sufficient to move his case beyond the first hurdle--a motion for dismissal filed by the defendants.

He wrote that federal pleading rules are quite liberal and a motion to dismiss the case has to be evaluated in the light most favorable to the plaintiff. Norris’ opinion, joined by Judge Dorothy Nelson, said McCalden’s claims merited hearings on his charges of interference with his contract and civil rights violations.

But Reinhardt said that in cases where free speech rights are threatened, the plaintiff’s pleadings must be subjected to greater scrutiny than in an ordinary civil case.

“The majority’s routine treatment of the plaintiff’s complaint--as if the action involving nothing more than a dispute over a bill of lading--is at odds with the last 30 years of 1st Amendment jurisprudence,” Reinhardt wrote.

The Jewish organizations had been involved in a long-running political battle with McCalden by the time the library association controversy arose.

During the course of the dispute in 1984, they persuaded the Los Angeles City Council to unanimously pass a resolution urging the library association to remove McCalden from the conference and to end the city’s participation in the conference.

Soon after, the association canceled McCalden’s contracts to rent exhibit space and to present a program entitled “Free Speech and the Holocaust.” McCalden had frequently charged that Jewish groups had suppressed discussion of the Holocaust.

In 1986, McCalden sued the Jewish organizations, the library association, the city and the Bonaventure Hotel, where the convention was held.

U.S. District Judge Consuelo B. Marshall dismissed the suit, stating that McCalden had failed to state a claim on which relief could be granted.

Her decision was reversed last November by a three-judge panel of the appeals court, setting the stage for Friday’s ruling.

Bruce B. McKee, who represented McCalden, said his opponents were entitled to demonstrate against him, but he alleged that they improperly used the city government to squelch his free speech rights.