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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.)

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.

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