Give the Dead Their Due

But Murdoch and Baer were long dead, so their reputations rested entirely on the self-imposed decency of the writers and directors -- and in Hollywood, that means they were cinematic chum.

Publishers are often no better. Books purporting to tell all are often held until after the subject dies -- leaving the family without legal recourse. Thus, the widow and children of Gary Cooper could only complain about the book "Cary Grant: The Lonely Heart," in which authors Charles Higham and Roy Moseley claimed that Cooper was a Nazi sympathizer who "in 1938 would go to Berlin and be entertained by Hitler" -- suggesting that Cooper partied with a genocidal killer. There is no evidence of any such meeting, and Cooper's family insists that he neither met Hitler nor harbored any Nazi sympathies. Errol Flynn's relatives sued Higham over his claim that Flynn was a Nazi spy. They lost under the common-law rule.

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.

There is an obvious precedent in the protections that most states offer for newspapers that print retractions -- laws that could be extended to cases involving the deceased. For example, the New York Times reported in a 2003 obituary that the famous Harlem photographer Marvin Smith had his testicles removed after his twin brother, Morgan, died of testicular cancer in 1993. It was untrue and the Times voluntarily printed a correction.

None of this means that Hollywood should suddenly become the History Channel. The Hollywood view of history has always been more Cecil B. DeMille than Barbara Tuchman. Even a much-acclaimed movie such as "Inherit the Wind" invented scenes and so mutated the character based on William Jennings Bryan that many Americans wrongly believe that he was a bumbling, prejudiced clown. Bryan never testified that he knew the precise day and time that Earth was created -- nor did he collapse in a delusional fit in court after the famous evolution verdict.

Yet in most cases, such revisionism involves distorting historical events rather than destroying historical figures. There was no reputation lost when Mel Gibson inaccurately portrayed the Scottish warrior William Wallace fighting to avenge the death of his wife at the hands of the English in "Braveheart." (The only known account states that Wallace was pushed over the edge after a dispute with English soldiers over fish.) The wildly inaccurate movie, however, crossed the line of decency by suggesting that Princess Isabelle, based on Isabella of France, was an adulterer and that her son, Edward III, may have been fathered by Wallace. The real princess was 9 when Wallace died, she never met him and she bore Edward III seven years after Wallace died.

Just the mention of Oliver Stone pushes most historians into an open rant over films such as "JFK" and "Nixon." Stone has insisted that he wasn't doing anything that Shakespeare didn't do. Yet it seems unlikely that the Bard would have falsely portrayed Pat Nixon demanding a divorce or misrepresenting President Nixon as a stumbling drunk who led a CIA operation to try to kill Cuban dictator Fidel Castro.

After all, it is Shakespeare's Iago in "Othello" who observes that:

"Who steals my purse steals trash; 'tis something, nothing; . . .

But he that filches from me my good name robs me of that which enriches him

And makes me poor indeed."

We are all made poorer when good people are trashed after they can no longer defend themselves. With the end of the debate over the permanent repeal of the death tax, perhaps it is time to protect more than just the assets of the deceased. Perhaps it is time to give the dead their due.

JTurley@law.gwu.edu

Jonathan Turley is the Shapiro professor of public interest law at George Washington University.