The dead have no cause of action for defamation under the common law, and neither do their survivors, unless the words independently reflect upon and defame the survivors.Rodney Smolla, the author of the other leading treatise, concurs:
There is no liability for defamation of the dead, either to the estate of the deceased or to the deceased's descendants or relatives.The rule seems to be much the same under UK common law, as summarized in this piece from the BBC.
Furthermore, most U.S. cases have held that a plaintiff cannot make an end-run around the rule that "you can't defame the dead" simply by restyling her claim as one for invasion of privacy, intentional infliction of emotional distress (upon the surviving family members), or injurious falsehood.
Even though the law is uncommonly clear on this point, that hasn't stopped an occasional outraged relative of the dearly departed from suing. For example, in1981, Charles Higham wrote a biography of Errol Flynn in which he charged that the actor had been a Nazi spy. Flynn's daughters sued for defamation and invasion of privacy -- unsuccessfully. In upholding the dismissal of the case, a California appeals court reaffirmed that ''defamation of a deceased person does not give rise to a civil right of action at common law in favor of the surviving spouse, family or relatives who are not themselves defamed.'' A copy of the decision is available here.
At one time, the law was not so clear. See, for example, this 1931 article from Time magazine And there are still a few disturbing wrinkles. Judge Sack notes that several states, including Texas and Utah, have statutes that purport to define libel to include defaming the dead. But, citing this Texas case, he concludes that, even in those jurisdictions:
successful defamation suits based on the defamation of the dead where there is no implied defamation of the living are apparently non-existent.Robert Spoo recently brought to my attention that there are also a few states, that continue to have antiquated criminal statutes on the books, some of which purport to prohibit defamation of both the living and the dead. In 1998, a federal court struck down one such law in Nevada as unconstitutional.
Doubtless there are abuses -- instances where writers make outrageous statements about the dead that they know to be false. In response, a few commentators, including Raymond Iryami in "Give the Dead Their Day in Court", Lisa Brown in "Dead But Not Forgotten" (behind pay wall) and amazingly enough, John Dean, have suggested that enacting a civil remedy for disparagement of the dead might worth considering. Indeed, the idea is not as far-fetched as I, for one, might wish it were. Remarkably, in 1986, the New York State Senate passed such a bill, but it died a merciful death without being voted upon in the Assembly. My own view is that such a law would be a staggering blow to biographers, historians, and journalists.
So what might writers take away from all this?
1. The risks of a judgment being ultimately entered against a writer in the United States for libeling the dead are very close to zero.
2. The risks of being sued for libeling the dead (or on some end-run cause of action) are very low, but not zero. A defendant writer should ultimately win, but she might have to incur attorneys' fees in doing so.
3. If you're writing unflatteringly about the dead in a work that will undergo a legal review by a book or magazine publisher, there is especially little to sweat. The legal reviewer will presumably help you further minimize any risks and, if there were ever a suit, the publisher's lawyers would have the tools available to wage an exceedingly strong defense.
4. As a practical matter, the deader the dead, the more improbable it is that there would ever be even a nuisance claim. The few claims that have been brought tend to be by family members of the recently deceased (e.g., where the family contests a published report that a death was a suicide).
5. As the quotation above from Judge Sack's book implies, there can be liability when a defamatory statement about the dead also reflects negatively on the living. Take this statement: "Before the cold-blooded killer, Fowler, was shot dead while fleeing from the police, he hid out for three days in his brother's apartment" (implying that the brother was an aider and abettor).
6. Truth, of course, is the ultimate defense to a libel claim. So make sure you have your facts straight, whether you are writing about the living or the dead. That said, there are times when fiction writers may artfully -- and lawfully -- "lie" about deceased historical figures that they have inserted into their novels or short stories. (See this earlier post on libel in fiction and this cautionary post by a Writer's Digest blogger.) And that's just one of the reasons a "libeling-the-dead" statute is very bad idea.