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Give the Dead Their Due:

Jonathan Turley argues the deceased should have gerater protection from defamation.

publishers are protected by the longstanding rule that you cannot defame the dead (which, in practical terms, means you can). Once Elvis has left the living, you can say anything you want about him. No matter how malicious, untrue or vile.

Indeed, while most people are raised not to speak ill of the dead, the law fully supports those who do. Under the common-law rules governing defamation, a reputation is as perishable as the person who earned it.

Turley believes this traditional rule should be jettisoned in favor of one that allows for legal action against those who defame the dead. Such a rule would discorage authors, filmakers, and others from making unfounded and outlandish charges against the deceased. For those who fear an onslaught of litigation against publishers and producers, Turley offers this response:

It would be relatively simple to draft a law to add protections for writers and publishers. States could extend the high standard for defamation of public figures to any deceased person -- limiting actions to the most egregious violations in which the writer knowingly engaged in a falsehood or showed reckless disregard for the truth. The law could also limit any recovery to a declaratory judgment that corrects the public record and injunctive relief with no monetary damages.

I am not quite convinced defamation law needs this change, but Turley makes an interesting case.

Kim Scarborough (mail) (www):
Had such a law been in effect before, presumably the estate of Clay Shaw could have sued Oliver Stone for the truly disgusting libel of him in JFK.
9.17.2006 1:56pm
Donald Kahn (mail):
Bravo to that. I had the same comment in mind!
9.17.2006 2:05pm
Fub:
He doesn't address except in passing who gets to be plaintiff. He mentions "the family" and "the estate", but the estate has a limited lifetime and under some circumstances may not include all "the family". The family is vague unless some bounds are set. Can the great great grand third step-cousin twice removed of the deceased be plaintiff? Setting some degree of consanguinity to the deceased would be necessary.

Or the law could just let anybody sue. I'd go for that if I could get exclusive license to sell tickets to all proceedings.
9.17.2006 2:10pm
Tom952 (mail):
Does the fact that this issue now seems worthy of consideration mean that we are engaging in unprecedented nastiness toward everyone including the deceased, or does it mean we are a more sensitive society than our predecessors?
9.17.2006 2:18pm
John (mail):
In the good old days when the common law was the law, this rule arguably made sense, as their was no person who would suffer injury in a post-mortem defamation.

Turley makes good arguments about what might be called the emothional truama caused by such defamations to the relatives of the defamed. But it could also be argued that there might be financial injury to, e.g., those heirs receiving royalties from publications of a dead ancestor, who might have their incomes diminished by defamations against the author. Of couse, in this day and age the likelihood is that revenues would increase, I suppose.
9.17.2006 2:19pm
frankcross (mail):
Nor does he talk about how damages would be measured. It's just an editorial, but an actual proposal would have to attend to legal realization of this policy goal.

I have assumed that the Elvis estate already had such a claim under a "product" disparagement theory. Is that wrong?
9.17.2006 2:19pm
John (mail):
That's emotional, not emothional. Thankth.
9.17.2006 2:20pm
Kim Scarborough (mail) (www):
Fub: Why would it be any different from any other situation where a tort was committed against the deceased? Presumably it's already well-established how to determine who has standing to sue me if I, say, violate the copyright of a dead man.
9.17.2006 3:02pm
marghlar:
This editorial is of pretty low quality. First off, the assertion that the named deceased people would have damages presumed is almost certainly false -- all would be public figures under NYT v. Sullivan and subsequent cases. Also, this guy really needs to reread Mill, and ponder whether the state really needs to interfere to correct "falsehoods" when there is no individual being directly harmed.

Why not just rely on other biographers and historians to correct obvious inaccuracies vis a vis the dead?
9.17.2006 3:07pm
LTEC (mail) (www):
I have never seen a serious argument in favor of libel/slander laws in the first place. Whenever I look at the pros versus cons of such laws, it always looks to me as if we would be much better off without them, and I've never seen anyone attempt to argue that the obvious pros of these laws outweigh the obvious cons. Would there be that much more libel/slander in a world without these laws, in a sense that we could not deal with? (For example, we could deal with the tabloids being able to say whatever they want, since they more or less do anyway, and society would just learn to trust them even less.) I think the answer is no, but that there would be a lot less of the "libel chill" that people are (rightfully) always complaining about (although the complainers never seem to address the cause of the problem).

I think that libel/slander laws cause a huge reduction of freedom of speech, and give very little in return.
9.17.2006 3:14pm
logicnazi (mail) (www):
His argument isn't convincing in the slightest. There is an undoubted cost to allowing such suits, the cost of working out the new law, of litigating new claims and the larger cost of chilled speech (even true speech about beloved ancestors like MLK or JFK) and the money paid to the consulting lawyers. In order to justify changing this law in the face of this obvious cost he needs to cite some even larger public good that would come of changing the law.

I don't see how he shows there is even a drop of good in changing the law. Mostly he talks about historically inaccurate media that annoys him, yet the vast vast majority of historical inaccuracies would be unaffected by such a law. You can claim Oswald didn't kill JFK and it was really a CIA/KGB/Mob plot all you want and by avoiding naming anyone specific avoid anything like defamation.

Citing the example of the woman braveheart supposedly slept with did more to hurt his case than to help it. Obviously no living person was done any recognizeable harm by this claim. The only harm was against history. Yet if the concern is the misrepresentation of history there is no justification whatsoever not to just expand the rule to any misstatement of history (pretend this doesn't have constitutional problems). If you think this is a bad idea then you should reject this proposal too.

There is a very good reason we draw a distinction between live and dead people. Defaming the living causes orders of magnitude more harm to someone in virtually all cases. Simply being annoyed by historical inaccuracies isn't a very compelling reason to change the current rule.
9.17.2006 4:21pm
Kim Scarborough (mail) (www):
Certainly that's true in England, but I think the bar is high enough with American libel laws that it's not really that much of a chill. And a genuine libel can be very damaging. Suppose you were a birthday clown and a newspaper printed a false story that you were a child molester? That would be the end of your livelihood, period. Surely one should have some recourse for damages in such a situation.
9.17.2006 4:23pm
Kim Scarborough (mail) (www):
(my response was to LTEC, BTW.)
9.17.2006 4:24pm
Fub:
Kim Scarborough wrote:
Fub: Why would it be any different from any other situation where a tort was committed against the deceased? Presumably it's already well-established how to determine who has standing to sue me if I, say, violate the copyright of a dead man.
A copyright owner can sue for infringement. A copyright infringement is a tort against the owner, who is not necessarily the author. A copyright is a property right. Heirs come to own a copyright by inheriting it. Others can acquire the copyright by buying it.

Libel is a tort against the person. Who inherits or otherwise acquires the reputation or the personhood of the dead?

Until a statute specifies their standing, the heirs of the defamed dead will just have to take it sitting down.
9.17.2006 4:46pm
John Burgess (mail) (www):
Do we really need any more legal "protection" against "defaming" the founders of a religion? Will those who can demonstrate a line of descent from said founders now have legal standing to prohibit critical commentary? Or do we carve out a 'founder of relgion' exception?

Are the descendants of Hitler, Mussolini, Stalin going to prevent the writing of histories that defame the dead? Or do we carve out a 'notorious' exception?

Extend Sullivan protections post-mortem?

Is it really necessary to make the law look more the ass?
9.17.2006 4:47pm
speedwell (mail):
Uh, they're dead and can't suffer, so compensating them is just idiotic. If their heirs and former associates feel offended, then they can sue on their own behalf for emotional damages or something equally whiny.
9.17.2006 5:26pm
David Maquera (mail) (www):
Turley's article is further evidence that American is becoming a nation of whiney whimps.
9.17.2006 5:29pm
Third Party Beneficiary (mail):
This is a logical extension of the increasing fetishization of the dead in modern American culture.
9.17.2006 6:12pm
LTEC (mail) (www):
to Kim Scarborough responding to LTEC:

Are you asserting that the case for libel/slander laws is so open and shut that no serious accounting need be done about the harms/benefits? That anyone who opposes these laws has simply not thought of the Chuckles the Clown argument? That people complaining about "libel chill" are ignorant?

I could have written a few thousand words giving my view of the balance sheet, but this is not the right forum for that. So instead, I simply gave my conclusion and asked for some serious dialogue. Do you doubt that one can give a bad consequence of these laws (in the U.S) to counter your good one? Individual examples, without any big picture to balance them against one another, mean nothing. Don't you think this subject should be examined more seriously?

But if we must talk about Chuckles, then let's do that:
If it was a competitor or some drunk that made the false allegation, then Chuckles wouldn't be able to get much compensation from a law suit, even if he won it. If it was a newspaper -- unlikely, then Chuckles would have to win a law suit against a large, wealthy organization -- unlikely. I think it much more likely that some rich person that Chuckles made fun of would be able to use a law suit to threaten him into silence.
9.17.2006 6:29pm
Carolina:
One of the examples given in the article is John Dillinger, the notorious 1930s gangster. What possible "reputation" interest is there here? Mr. Dillinger has been in the grave for around seventy years. Who has an interest in the reputation of long dead figures? To my mind, only historians.

Rather than protecting the reputation of long-dead historical figures, this proposal smacks of inviting courts to settle the debates of history and/or inviting the courts to set forth an "authorized" version of history. No thanks.
9.17.2006 6:57pm
LTEC (mail) (www):
Carolina --

I agree that it would be a disaster if courts set forth an "authorized" version of history. Is it that much better if courts set forth an "authorized" version of the present? (It is only better in the sense that there is less of the present than of the past.)
9.17.2006 7:07pm
DummydaDhimmi:
There is a pernicious effect of the existence of slander/libel laws. The public's presumption that whatever's expressed "must" be true, otherwise the expresser wouldn't express it for fear of owing damages.

Absent such laws, there would be no such presumption, and it would be known that of course anyone could express anything, and the only way to gain credence for one's views is with evidence.
9.17.2006 7:41pm
Kim Scarborough (mail) (www):
Fub: Good point. Well, hmm... there must be something I can do against the dead. How about if I desecrate a corpse? If I dig up your uncle's grave and put his skull on my mantel, surely that's actionable by somebody. Isn't it? Leave aside the obvious criminal penalties for graverobbing.
9.17.2006 7:49pm
Kim Scarborough (mail) (www):
Geez LTEC, calm down. You gave basically a three-sentence argument saying why libel laws are bad, so I gave a two-sentence refutation, and you attack me for not being comprehensive enough? Why do you get to be brief, but I don't? Obviously I'm not saying it's so open-and-shut there shouldn't be any dialog; I'm engaging in dialog!

Re Chuckles: I don't think "he couldn't afford to sue anyway" is a good argument against having a law. So we should throw out every law that might pit an individual against a deep-pocketed organization on the grounds it's unlikely the individual would win? Anyway, there are plenty of examples of people successfully suing large companies and winning, and often for far more frivilous causes than in our hypothetical.

As for a rich person suing poor Chuckles for making fun of him: well, that kind of thing does happen. But as I said before, I don't think it's that prevalent in the U.S. I think we've struck a pretty good balance in this area, where the bar is sufficiently high so that you can't really win a suit just because somebody said something you really didn't like (see Hustler Magazine v. Falwell), but there still are protections for extreme cases.

You think I'm wrong? By all means, show me examples. But don't make a brief argument and get huffy because you get a brief refutation.
9.17.2006 8:01pm
LTEC (mail) (www):
Kim Scarborough --

Sorry, I didn't mean to sound huffy. Also, I didn't mean for it to look as if I were giving a three-sentence argument. I meant it to look as if I were presenting no argument whatsoever, but rather stating a conclusion that the cons of libel/slander laws outweigh the pros and stressing the need for a balance-sheet on this issue. At least that's what I intended. And I still maintain that looking at isolated anecdotes is not going to get us anywhere.

But getting back to Chuckles: Maybe he could win both of the lawsuits if he risked the time and the money (and the inevitable investigation into his sex life, drinking habits, teenage shoplifting, etc.) to do so. But I think he will choose instead to cave in on both issues.
9.17.2006 10:14pm
Fub:
Kim Scarborough wrote:
Fub: Good point. Well, hmm... there must be something I can do against the dead. How about if I desecrate a corpse? If I dig up your uncle's grave and put his skull on my mantel, surely that's actionable by somebody. Isn't it? Leave aside the obvious criminal penalties for graverobbing.
While I can't vouch for its voracity, there is at least one fairly recent account of a self proclaimed necrophiliac morgue rat successfuly sued by the, um, stiff's mother. Without more information one can only speculate that the cause of action was intentional infliction of emotional distress.
9.17.2006 11:46pm
GW Law Alum:
Marghlar, logician, and John Burgess all make excellent points. I'd like to add a few:

1. Is there any reason whatsoever to suppose that a court of law is likely to uncover the truth about historical controversies? Rules of evidence sometimes seek to serve objectives other than determining the truth; arguments of counsel are not always models of dispassionate fairness and logic. The system works well enough when you are trying to decide whether John Doe ran the red light, or even whether Dr. Sam killed Marilyn. But to decide what happened 50, or 100 years ago. . . well, why does Professor Turley think statutes of limitations were invented? Memories fade, witnesses die off. . . sound familiar?

2. Think of the forum-shopping possibilities. Remember, the pliantiff gets to pick the forum. How'd you like to have to go to Manhattan or Boston to defend an assertion that Alger Hiss was a Soviet spy?

3. If, as Turley suggests, no monetary damages are to be awarded, isn't that an invitation to sweetheart litigation? If I want a court judgment officially stating that Oswald didn't shoot Kennedy, all I have to do is say he did -- or find a stooge to do it for me -- find some relative of Oswald's to sue me for saying it, and take a dive in court. No damages? No downside!.

4. A related point: If an adverse judgment means no money damages, won't a lot of defendnats issue retractions they don't really mean just so as not to have to spend money fighting the case? How does that help the historical record?
9.18.2006 12:34am
A. Zarkov (mail):
How long dead? Could the Muslims sue the Pope for defaming Mohamed.
9.18.2006 1:37am
nick:
To make this work the legal right would have to be heritable and devisable like property. What they used to call an incorporeal hereditament. But should one be able to buy and sell it? If so a defamer could buy the deceased's anti-defamation rights, perhaps at a pittance (since it gives no rights to monetary damages), and then defame the deceased at will. However, this may be no worse than the risk that even an heir won't care enough to sue since there will be no monetary damages. The best strategy might be to put the right in a trust that would have a fiduciary duty to protect the deceased's reputation by suing for injunctions.

We'll soon see if a related property right, publicity rights, can be seized like many other kinds of property from the original owner, by a party who doesn't have an interest in promoting that party's good reputatation (quite the opposite in fact). I'm referring of course to Goldman trying to seize O.J. Simpson's publicity rights for failure to pay the judgment.
9.18.2006 4:38am
Kevin P. (mail):
I wonder if the estate of George W. Bush could sue Michael Moore for Fahrenheit 9/11.
9.18.2006 10:01am
BrianK (mail):
Most people, while alive, seem to care about how they will be thought of after they're dead. That's probably a good thing, at least if people generally think that good deeds and an honorable life will lead to a better post-morten reputation. Maybe, at least from the standpoint of the individual, it is irrational to care about post-mortem reputation (hey, I'll be dead, I won't know, nothing can hurt me). But if people actually do care about their post-mortem reputation, rationally or not, and if such caring plausibly benefits society, might it not be worth something to honor or strengthen the importance of post-mortem reputation?

The costs of a libel regime may outweigh whatever that "worth something" is, of course. But both the potential chilling effect of allowing such suits and the specter of fortune-hunting descendants clogging the courts with trivia or reduced by one feature of Turley's proposal, that relief be limited to declaratory and injunctive relief to set the record straight. It's not clear to me that Turley is right, but it is an idea worth floating.

A few years ago, the great-grandson of Samuel A. Mudd sought to correct the military's records concerning Mudd's alleged involvement in the Lincoln assassination. The DC Circuit found a lack of standing on the prudential ground that the great-grandson was outside the zone of interests of the statute without reaching whether he could have been given such standing consistently with Article III.
9.18.2006 10:56am
CJColucci:
This is, as far as I can tell, a solution desperately in search of a problem. When the dead start complaining, maybe it'll be time to do something about it -- though in that event we may have other priorities.
9.18.2006 11:27am
marghlar:
relief be limited to declaratory and injunctive relief to set the record straight

Don't you see how scary that is to some of us? Injunctive relief is worse than money damages, because it allows the government to decide what the official version of history is, and then punish people who try to tell "unapproved" versions. Lots of regimes historically have punished historians for publishing histories that were unpalatable to those in power. And if there is injunctive relief, that presumably means that those violating an injunction are subject to fines or even imprisonment for contempt. That's a huge chilling effect, and it goes to the core of the First Amendment.

Why let judges be the ones who get to decide what truth is, before all the facts are necessarily in? Why not just let scholarship and debate put bad historical scholarship in its place? You have a long way to go in convincing me that the harms of defaming the dead are really so substantial that they justify letting the government regulate speech based upon its content.
9.18.2006 11:37am
Seamus (mail):
Turley pooh-poohs Oliver Stone's statement that he hasn't done anything worse than what Shakespeare did, but I'd like to hear how Turley would defend argue that "Richard III" wasn't a hatchet piece advancing the Tudor party line. (Of course, nowadays Richard III's heirs are also the heirs of the Tudors, and thus not likely to sue Ian McKellam for blackening their ancestors' reputation in his 1995 movie.)
9.18.2006 2:00pm
logicnazi (mail) (www):
BrianK,

The argument that good postmortem reputation drives people to do good is an interesting one but I don't think it favors after death libel laws.

The first thing you would need to establish is that such a legal change would increase people's confidence that their lives would be accurately reported. I think exactly the opposite is true. If people start hearing the sordid details of after death libel suits and learn about how little effort publishers put into fact checking their books their implicit confidence that their reputation will be accurate may waver.

Moreover, it seems likely that such legal changes would lead to less accurate reporting in particular ways. For powerful politicians or industrialists many bad acts they engage in my be difficult or impossible to prove. Allowing libel or defamation suits by the deceased's family would likely scare off many publishers from saying bad things. However, wanting to balance out the bad reputation you have with good acts is a strong motivator to do good. This motivation would disappear if the wealthy realized they could suppress these unprovable allegations with the threat of lawsuit.

Also it is even unclear whether having an accurate postmortem portrayl is even helpful. Most people are neither saints nor utterly evil and an accurate post postmortem record would establish this. Thus by curtailing both excessive praise or blame such a legal regime may make doing good works less appealing.

Finally, there is the danger of cynicism about postmortem reputations if people see the rich buying their way out of bad reputations by way of legal threats.

Ultimately is seems such a change in the law would be more effective at covering up bad acts than at making sure people were recognize for good acts. Thus I suspect the harm engendered by the lower penalty for unprovable bad acts would far outweigh any gain from greater recognition of good acts.
9.18.2006 3:58pm
elChato (mail):
I for one look forward to the descendants of the original Hatfields and McCoys settling in court who was responsible for starting and perpetuating their long-ago feud. The OK Corral battle can live again. Any descendants of Boss Tweed should be able to sue bookwriters who claim he stole $200 million (where's the proof?), Huey Long's descendants should be able to sue anyone who said he engaged in bribery and corruption (he was never convicted- where's the proof?), and on and on and on.

Yes indeed, a great use for the time and energies of the court system which is otherwise sitting idle because there simply are not enough disputes among the living to keep judges busy.
9.18.2006 6:22pm