The passage of this groundbreaking and much needed law is necessary in order to protect the reputation of the decedent, just as we do diligently for the living.
We as a people tend to look at the reputation of the decedent from an emotional standpoint, thus overlooking other values to the reputation of the decedent. There are emotional, psychological and monetary aspects to the reputation of the decedent. The emotional aspect is grieving over the loss of the former living being, while the psychological aspect is trying to understand and come to terms with the loss of the departed. Now comes the more overlooked and misunderstood aspect and that is the monetary aspect, how defamation can compromise further commerce; i.e., income that is and can still be made by the decedent.
Not everything dies with the decedent; if it did there would be no need for attorneys to protect the estate of the decedent. For the most part everyone has an estate. An estate is everything that you own. If you have insurance, you have an estate. In many cases with insurance there is an increase in the estate, depending on how you depart. For example, if you die because of an accident, double indemnity applies. If your policy has a value of $500,000 and you perish as the result of an accident and your policy has a “double indemnity” clause, your policy will double to ONE MILLION DOLLARS! This would be your estate, which would also include but not be limited to clothing, jewelry, furnishings, art work, cars, electronics, real estate and collections; i.e. stamp and coin collections, etc.
Whenever a decedent is defamed, not only does this wreak havoc on the reputation of the decedent, it can also have the same effect on the survivors of the decedent. If the decedent has a surviving spouse, and in the eyes of the law they are one flesh, then defaming the decedent will have the same effect on the reputation of the surviving spouse. This will also have a transferring effect should there be any surviving children of the decedent. Defaming and slandering have a domino effect. Whatever damage is done to the decedent’s reputation can harm the reputations of the survivors of the decedent.
Defamation, libel, and slander are the main tools for blackballing an individual. This can be done to the living and it influences their marketability and opportunity to earn income. The same tools wreak havoc on the estate of a decedent. A person’s earning life does not end in death. For example, there are people long deceased who are still generating income from the grave. This makes the preservation of their reputations that much more important.
SILENCE DOES NOT MEAN DEATH…AND DEATH DOES NOT MEAN SILENCE!
Where did we get the idea that once one takes off the flesh it is the end of it all? Who said that once one is deceased there is no need or possibility to speak on behalf of the decedent, whose physical voice is silenced? Has it occurred to anyone that the deceased have long created their voice, long BEFORE THEIR DEMISE? We need to understand that life and death have many similarities, which makes this cause necessary to become law. Your voice is your legacy and your legacy is your voice…all have great value, meaning and life.
CIVIL AND LEGAL RIGHTS OF THE DECEDENT
Although the departed is no longer in the flesh, their deeds, estates, survivors, and legacies remain and need protection. Deeds and actions have the same effects, benefits and consequences, whether or not one is deceased, which makes this important cause necessary for law. Other than being alive vs. being deceased, what is the real difference when both have the same thing? For example the law protects the likeness and image of a person dead or alive, and the same should hold true for their reputation. Since their former lives reflect and have everything to do with their reputations, then why not protect it as we would for a living human being? By not protecting their reputations, what happens to the survivors and the estate is no different from what happens to the decedent. The reputation must be made a part of the estate as such is the foundation therein. To tarnish the reputation of the decedent diminishes their works, talent, career and business and is liken on to blackballing, blacklisting and slander. To protect the reputation of the decedent is to preserve the value of their estate and their memory. While the living has a traditional physical voice, the decedents have a voice through their work, talent, career and legacy.
THE MONETARY ASPECT OF THE REPUTATION OF A DECEDENT
Who a decedent is and their connection needs understanding. An estate and the decedent are one and the same; they carry the same power and ability. If this were not the case, there would not be any business of looking after and protecting an estate. The main content of an estate is one’s likeness, image and name of the decedent. Whether it is a celebrity, our troops, a political figure or a victim of a high profile situation or case, the reputations of these individuals are in great need of protection. In the case of a deceased celebrity, their likeness and image may be assumed to be up for grabs; a victim of a high profile case or situation may fall prey to those who may attempt to cash in on the tragedy. While the decedent no longer has a direct physical voice, their voice is still here as it has transitioned into and through their survivors and their estate.
An estate has various degrees of value, depending on the decedent. This is a fine line, as in the case of the late Frankie Lymon. While alive he did not have two nickels to rub together yet one of his songs, “Why Do Fools Fall in Love” amassed over $4 MILLION in royalties. Frank “Frankie” Joseph Lymon did not see one dime! This legendary performer and songwriter also left a marital mess in the form of 3 wives: Elizabeth Waters, Elmira Eagle and glamorous singer of The Platters, and the now late Zola Taylor.
The three wives all went to battle back in 1986 over the estate of Frank “Frankie” Joseph Lymon.
After a 5-year battle, Ms. Elmira Eagle was determined to be the true and legal Mrs. Frank “Frankie” Joseph Lymon. In addition, she was awarded his estate, which was valued at more than ONE MILLION DOLLARS, with a settlement that was well over the 7-figure range. This all goes back to the parable; “you are worth more dead than alive” Frankie was broke, always short on cash yet his estate was worth more than one million dollars. This battle was more than about money; it was about those three things that were discussed earlier…. the emotional, psychological and monetary aspects of death. Even in death, a decedent STILL has life. Another precious commodity locked in this battle was his NAME. There are a myriad of things that make up who a decedent is, his REPUTATION, his ESTATE and most of all…his NAME.
Take a victim of a high profile case or situation and you have people coming out of the woodwork writing books, making backyard deals, and movie deals based on the victim’s life and the incidents that surrounded the demise of the decedent. We have laws that prevent criminals who kill from profiting from their nefarious deeds, whether it is Night Stalker Richard Ramirez, Charles Manson, or Jeffery Dahmer, just to name a few.
DEFAMATION vs. FREE SPEECH vs. SLANDER
The lines between defamation, free speech and slander are so thin you can cross them without realizing it until there is a response to your actions, usually a consequence that can lead to slander or defamation suits. The purpose of this proposed bill to become law is to protect the reputation of the decedent. Offenders presume they can speak untruths of the decedent, believing that there will be no response. They don’t realize that speaking untruths about the deceased can cause injury to the estate and survivors of the decedent. There are cases where defamation has brought economic damage to an estate or a survivor when it was felt that the defamatory statements were protected as free speech. Free speech is well defined, yet not understood. Free speech has its limitations and consequences if not kept in check. For example, hate speech is not free speech, as it infringes on the civil rights and liberties of others. Speech that incites violence and riots is also not free speech.
Lying and making statements that bring about damage to one’s reputation are not free speech and one can be sued for this…providing the victim is alive…but what about the decedent? The reason there is a need for this to be law is because of the DOMINIO EFFECT that defamation has on a reputation and the earning potential of such reputation. Slander, like defamation can also wreak havoc on the NAME of the decedent and survivors. Survivors can suffer a myriad of losses due to defamation and slander of their decedent, whether monetary and or socially. These acts can have a lasting, and in some cases an irrevocable, effect on a decedent, a surviving spouse, children and the estate. Decedents and all they have done get destroyed all too often in the name of “free speech”.
In the end, the decedent never sees or enjoys their true wealth, because they are worth more dead than alive…which accounts for why the survivors enjoy what is left behind as the estate, and why survivors can be harmed by defamation of the decedent.
Author: Carletha Lee
CA Endorser/Cadeflaw Lobbyist
Submitted for Cadeflaw Initiative on April 20, 2012