Robbing The Dead

Most people would think pretty badly of someone who robbed the dead of the things they had in their possession when they died, Society becomes outraged when an ambulance attendant steals a wallet or rings from a dead accident victim (a rare occurrence). So why is it, Jonathan Turley asks, that we pay no mind when the dead are robbed of their reputations?

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.

Turley makes a good case here for giving some legal protection to the good names of the dead. It does seem odd that when someone dies that anyone can make any claim with no proof and get away with it. Go read it and see where you stand on the issue.