Friday, September 22, 2006

Bring Out your Dead

Over on the Volokh Conspiracy, they're taking comments about whether or not a cause of action should exist for defaming the dead. Exerpts from the Washington Post editorial that sparked the commentary:
Give the Dead Their Due

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.

The question of whether the dead can be defamed came up recently in a most unlikely way: The family of John Dillinger sued over a depiction of the famous bank robber at the John Dillinger Museum in Hammond, Ind. The museum describes Dillinger as a cop killer, but his relatives note (correctly) that Dillinger was only charged with killing a police officer during his robbery of the First National Bank and Trust in East Chicago, Ind., on Jan. 15, 1934. He died before standing trial.

Disputes such as that over Dillinger -- his family, unable to sue for defamation, had to rely instead on a state law that protects public figures from the commercial use of their images -- serve mostly to remind us of the grossly unfair and unnecessary rule that allows people to savage the reputations of the dead. . . .

Count me in on the "unconvinced" side.

First, presuming for a moment a cause of action does lie, I'm not quite certain who should be considered the plaintiff. The article correctly points out that pain and suffering inflicted upon an individual are generally cut short by the death of the deceased. This is true whether the tort at issue is a car accident, a fraud, or defamation, and whether the damages are for physical or emotional injury. The idea is, once you're dead, you can't be hurt anymore. Your estate or next of kin can often sue for the injuries inflicted prior to your untimely demise. In cases of wrongful death, the difference between the value your estate would have had if you'd been allowed to live out your normal life span can be also be considered in determining how much money should go to your survivors. And, of course, your nearest and dearest might have their own claim for the loss of your consortium and companionship. But direct damages are pretty well capped. Pros: 1) It's a nice, bright line rule, no fudging around. Living = damages, dead = none. 2) It recognizes the reality that, once dead, you really don't notice much. Cons: 1) In practical terms, it often results that a death case is worth less in terms of settlement than one in which the plaintiff will live out a normal life span, albeit horribly maimed. 2) As a society, we like to believe that there is a remedy for any injury, in compensation if not by correction. It therefore strikes us as wrong that there could be such an injury and no corresponding compensation or correction available, simply because the deceased happens to be dead.

Where this rule is concerned, I believe the pros outweigh the cons. It may offend our sense of justice that a defamation can go unanswered simply because the deceased happens to be dead, but because they are dead they are incapable of feeling pain, disgust, anger or remorse. We could speculate about what they might have felt based on the testimony of the living heirs, but that's inherently messy. To take an example from the article, what if one of Queen Victoria's decendants believes it's hilarious she was portrayed as a lesbian, and that she would approve of the characterization, and another is shocked and appalled? Which is the jury to use as a benchmark? To open up the courts to allow a hypothetical injury based on speculation as to what the deceased would have felt will cause extensive, expensive litigation, which in the end will do much to stem creative works and do little to enrich anyone but the lawyers involved. Strictly speaking, I suppose I shouldn't bitch much about that whole "enriching the lawyers" thing, but it needs to be said.

There is a better argument to be made if the deceased's relatives are designated the true plaintiffs. After all, it's really their feelings that are being hurt. Further, it negates the need to engage in endless speculation about the plaintiffs' thoughts and motives - we can simply ask the living about how the alleged defamation has affected them. Those who were injured emotionally may have a cause of action.

This doesn't completely obviate the problem, though. Is there a requisite degree of consanguinity one must have with the deceased to bring a cause of action, or can Victoria's cousin's husband's sister's granddaughter's brother-in-law suffice, if he's particularly horrified at the idea of lesbian activity in the family line? And if you allow a cause of action for being mentally traumatized by an intangible, albeit real, injury to another person, couldn't that argument be extended to the living? What if the most rabid supporters of the president feel pain at how he is portrayed in a fictional work? Could they bring a suit to redress that "injury"? What if they're a distant cousin, or one of his daughters?

Finally, anyone involved with the tort system can tell you that pain and suffering, mental anguish, and any of those other intangible damages cause the most consternation when assessing cases, from both sides. What is an insult worth? In defaming the living, we can look at loss of reputation in the community and how it might affect the income of the plaintiff, or counseling costs the plaintiff may incur to cope with the trauma. With the dead, it's generally not so simple. The famous people cited by the article may have some sort of estate that generates income for the heirs, which could show a tangible impact from a particularly virulent defamation. This might be the best case for allowing some sort of cause of action, because the "defamation" has inflicted a measurable injury on the income of a living person or trust. But what about the not-so-famous, or where no economic impact is felt? Damages then become a purely subjective affair. The heirs might seek counseling and feel genuinely hurt by the defamation, but it's a tangential injury at best, not one inflicted directly upon them.

I understand the author's point in feeling that there should be some sort of legal remedy against defaming anyone, even if that person has been dead for some time. I suspect, however, that the concern is more consternation at the dearth of historical knowledge of the American public rather than the actual feelings of the deceased. Regardless, while the idea that once a person is dead they can be defamed with impunity seems intuitively wrong, in practical terms this cause of action would create more problems than it solves.

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