Give the Dead Their Due

By Jonathan Turley
Sunday, September 17, 2006

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.

Dillinger's is only the latest, and far from the greatest, of such post-mortem injuries. Filmmakers and writers in past years have reinvented figures as varied as turn-of-the-century populist William Jennings Bryan, mid-century heartthrob Gary Cooper and President Richard M. Nixon to better fit a storyline -- putting out false images that often become "fact" in the popular imagination. Without legal protection, such figures are subject to all matter of creative revisionism, and their families must live with whatever name and reputation they have left once the scriptwriters and biographers are done.

Through the years, many states have considered changing this rule, but have not acted. In New York, the issue came to a head in 1987, when Tawana Brawley, a black teenager, falsely accused a prosecutor, a New York police officer and a state trooper of a racist attack and rape. With people such as Al Sharpton calling the accused men racists and rapists, their reputations were utterly destroyed. The innocent police officer, Harry Crist Jr., was implicated after committing suicide. When a grand jury rejected Brawley's claims, it took the highly unusual step of recommending that the state pass a law protecting the dead from such knowingly false statements. New York never did.

Allowing some protection for the deceased would not end historical critiques and articles. Many countries protect the reputations of the dead but have not seen a flood of defamation cases in court.

Without such protections, the dead are readily converted into madmen or murderers. Consider the character assassination of First Officer William McMaster Murdoch in the 1997 movie "Titanic." The movie portrays Murdoch as a nut who shoots a passenger and then himself. However, not only was no one known to have been shot that night, but survivors identified Murdoch as one of the great heroes of the tragedy -- giving his lifejacket to a passenger and then remaining on board to drown. (After historians and relatives objected, the studio sent a $5,000 check to Murdoch's town of Dalbeattie, Scotland, for a scholarship fund.)

The family of the former heavyweight boxing champion Max Baer has a similarly legitimate complaint against director Ron Howard and the makers of the 2005 blockbuster movie "Cinderella Man." It demonized Baer as the killer of two men in the boxing ring (he killed one man) and claimed he committed such notorious acts as bragging to opponent Jim Braddock's wife, Mae, that he would kill her husband and then sleep with her.

There was no such outrageous encounter with Mae Braddock, and many have insisted that rather than boasting about killing Frankie Campbell as portrayed in the movie, Baer was haunted for the rest of his life by the death. Baer's son, Max Baer Jr. (who played Jethro on "The Beverly Hillbillies") told me that his father had nightmares about it and that he raised considerable money for Campbell's family. Jeremy Schaap, who wrote the book "Cinderella Man," told me that Baer went into an emotional "tailspin" after killing Campbell and lost a couple of fights because he refused to finish off opponents out of fear of another fatality. As for the scene with Mae Braddock, Schaap says adamantly, "It is totally made up." (Baer, who was one-quarter Jewish, was probably best known for fighting with a Star of David on his shorts to protest rising anti-Semitism -- a particular slap at Adolf Hitler when Baer defeated Germany's Max Schmeling in 1933.)

If there were any threat of a defamation lawsuit, the studio lawyers would never have allowed such false portrayals. Indeed, ABC recently edited out material from its docudrama "The Path to 9/11" after attorneys for Clinton administration officials objected to inaccurate portrayals, including fabricated scenes. The problem was not that ABC falsely portrayed former national security adviser Samuel R. "Sandy" Berger as hanging up on CIA agents who were poised to kill Osama bin Laden. The problem was that Berger is still alive. (The scene was dropped.)

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