Protecting the dead

George Washington University Law Professor Jonathan Turley argued in yesterday's Wasthington Post that protection from defamation should exist not just for the living but the dead also.

Elvis Presley was a pedophile. Queen Victoria, a lesbian. Abraham Lincoln, a gay adulterer. Winston Churchill, a murderous conspirator.

These are all "facts" published in recent years about famous people, and in each case such claims would normally bring charges of libel per se -- a legal term signifying defamation so serious that damages are presumed. However, these statements also share one other important element: They were all published after the subjects had died. As a result, the 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. It is a rule first expressed in the Latin doctrine actio personalis moritur cum persona ("a personal right of action dies with the person"). The English jurist Sir James Stephen put it more simply in 1887, "The dead have no rights and can suffer no wrongs." In other words, you're fair game as soon as you die -- even if writers say viciously untrue things about you and your life.

History is being re-written for commercial gain every day it seems. I love to read non-fiction but am cautious about authors who make wild claims about those who are no longer with us. It often looks like an attempt just to sell a book(or movie), because in reality life is usually very boring.

One example of profitting from the dead that I almost blogged about is this. Mr. Burrell's tale of a stillborn's baby sounds preposterous. As a parents of a boy who died way too soon, I know how a distraught parent would want their child buried properly. To me Burrell is writing a brand of very bad fiction just to make a dollar(or pound).

Mr. Turley's intentions are good, but are they practical? Defamation is not well defined for the living, how will it be any different for the dead? Is some stretching of the truth bad? Who is going to make that decision? A court of course, that involves lawyers and as TFM has written in the past, too many cases are in court just so some attorney or attorneys can make a buck.

So we'd just be trading one type of profiteer for another. Plus some form of censorship rules written, or more likely unwritten, will come into place. Ones that will only lessen the entertainment people and society receive from books and movies about the past. As I said, history is usually boring and quite dry. A little creativeness does little harm and we should only in rare instances have the courts decide what is truth or lies. Burrell can write his books, I believe in free speech but I'll never buy one of them. The best arbiter is the market place. If its too outlandish, people won't buy the book, or go to the movie.

Go read all of Professor Turley's column and form your own opinion.

Hat tip- Jonathan Adler at the Volokh Conspiracy
Linked to- Third World County, Bullwinkle Blog,