One hurdle to any Anti-Defamation Law for the deceased is the public’s perception or the misconception of its intent. There is a large misunderstanding about what this law can and cannot do, and who it is for. A misunderstood interpretation is fueled by writers and those who profit in some manner from their writing.
The number one misperception is: “Only celebrities and politicians suffer at the hands of popular papers.” (1)
This statement implies persons like you and I have nothing to worry about and therefore need not be concerned or support CadeFlaw. This is false to the tenth degree.
You only have look to most “news” or “entertainment news” outlets to find a story on a non-famous person who is suffering at the hands of the popular press and social media. You only have to watch video clips where family, friends or associates are made to dodge the intrusive and sometime dangerously harassing conduct.
The legacy of the deceased is not according to or measured by the amount of fame. Each of us is a Ruler within our lives. For example, if a false and unsupported accusation such as theft is alleged, the legacy of the deceased, through their reputation, is damaged. This damaged reputation may lessen revenue or potential revenue which would support those left behind. Defamation due to the false claims against the decedent may cause family to be subjected to bias judgments of their character. It may bring about a level of scrutiny in their personal life that is unjust and unwarranted.
This is not the first time in recent history an attempt to have a defamation of the deceased law passed. In 1989, Lisa Brown writes of “Dead but Not Forgotten: Proposals for Imposing Liability for Defamation of the Dead”.
In the early 1980s the New York Senate passed a bill which gave cause of action for defamation of the deceased. The bill was moved to the Assembly calendar where it would be left to languish and die.
“Libel-the-dead laws have recently been proposed in state legislatures; in New York, one such bill passed the State Senate and was defeated only when it was shown that the bill would immediately help relatives of Mafia biggies and crooked politicians.” (2) **
The focus is kept on the famous or infamous. We already have an “us” and “them” perception when it comes to people in the public eye. We tend not to see them truly as we are. We do not always see they can be hurt or their loved ones can be hurt by defamation.
Even in the reporting of this story the NY Times, the author left out one important fact. It was the Lobbyists who had this bill killed, not the public’s fear over whitewashed Mafia and crooked politicians.
“The bill eventually died on the assembly calendar under the pressure of aggressive lobbying by New York’s formidable communications industry, including publications such as Time magazine”. (3)
“Certainly it’s unfair and painful to the families of the celebrated dead when authors profit from unproven, sensational charges. But the libel solution is worse than the problem; the battle about who was a Nazi or a Communist, or whether Aaron Burr ”murdered” Alexander Hamilton, belongs in the history books, not in the courts. “
“Needed is a public-opinion rallying point for descendants of the defamed dead to write record-straightening letters to editors, to hold pro-privacy meetings, to denounce unauthorized biographers, not to hire lawyers to hush up scandal or snatch away some imaginative writer’s royalties.” (4)
What I get may be different from what you get from this story. I see an attempt to trivialize the proposed initiative. The article speaks of people who have been dead long enough most readers under 35 may know nothing of them, may not feel or be aware of their impact in their lives. There is a careless attitude with the deceased and an invitation to do the same or be labeled a “fussy” non-thinking irrational person.
That threatened label is a key selling point to suspending support to CadeFlaw or any like initiative. We all wish to be seen as “sharp”, in the know and a part of the now. After all, fussy dinosaurs will be afforded the same lack of social merit as the dead we defend.
Here is a piece of deliberately distorted information which became a worldwide perception.
Do you know or remember the “famous” McDonald’s Coffee lawsuit? Did you judge the Plaintiff or the jury harshly? I did, because the mainstream media, TV show hosts, comedians and even political figures “taught” me their version of the events. A version which was very different from the real events.
The woman in the story was a live Plaintiff at the time of the suit, she is now deceased. Many of the more inhumane jokes and comments have been removed, not through contrition, but cowardice.
If you did not know the true events, how did you come about your understanding? It was during this time a phrase would come into popular use. “Frivolous Lawsuits”.
The use “frivolous lawsuits”, “everyone will jump on the jackpot”, and “violating free speech” are some of most effective methods of slowing down participation in an initiative such as CadeFlaw, but there is a misconception. Pay attention to what an attorney has to say about going to court: @ 2:06 minutes.
We have only the printed and spoken word to inform us of daily occurrences. These are the tools by which we stay in touch, how we learn. To do a good job and make reasonable decisions, one needs sound and reliable tools.
(2) (4) Opinion/Essay Libeling The Dead
(3) ** Note: LexisNexis Group computer-assisted legal research services. LexisNexis is a paid service. Dead but Not Forgotten: Proposals for Imposing Liability for Defamation of the Dead
Submitted by: S. Kendrick – a.k.a. Dial Dancer