HBO would never have aired its lurid documentary about alleged crimes of Michael Jackson if the singer were still alive. Its counsel would have warned against using some arguably discredited witnesses to recycle accusations that have been rejected in the past. At the very least, the attorneys would have advised the network to present some balance by including caveats on past challenges to the credibility of the witnesses.
But because Jackson is dead, anyone is free to defame him. The current law generally requires that defamed individuals must be alive to sue for libel or slander. This is a gaping hole in the legal protection of reputation that allows all manner of lies, even intentionally false accusations made for financial gain or revenge, to be widely circulated about dead people. The moment that someone dies, his or her reputation is up for grabs. It can be savaged without any credible evidence, and without any recourse from the law by loved ones or the estate of the defamed deceased. This open season on dead celebrities encourages the exploitation of their memories for profit. It also encourages media to be unconcerned with seeking truth, especially when lies sell soap and nuanced truth is boring.
This is not only about Jackson. It is about every American who cares about his or her reputation and legacy. While alive, you could fight back, either personally or through your attorneys. The minute you die, your reputation becomes fair game for every liar, con man, tabloid, or vengeful enemy, as well as for the unbalanced media portrayals. They can say anything they want about you without fear of a defamation suit. What they would not dare to say while you are alive, they can publish or air with impunity as soon as you die, or when you are deathly ill and they know you will not survive long enough to win a defamation suit.
This tactic of posthumous piling on does not promote truth. It incentivizes publishing or airing what sells, and salacious lies sell better than carefully vetted truth. I worry about this myself since I have been falsely accused of sexual misconduct by two women I never met. Because they accused me in court documents, I cannot sue them for defamation under the litigation privilege. However, if they were to make the accusations outside of court on television, in an interview, or in a memoir, I could and would sue them and disprove their made up stories in court. That is why they have refused to accuse me in public despite my repeated challenges to them to do so.
While alive, I can respond in the court of public opinion and emphasize their refusal to go on the open record with their accusations. I can move to have the court strike their allegations, and sanction their lawyers, as I have successfully done. But the moment I die, any perjurer can go on television and falsely accuse me without fear of a lawsuit. A network can make a film without presenting the results of an investigation by a former head of the FBI who said, “The totality of the evidence found during the investigation refutes the allegations.” Their lawyers, who have declined my invitation to accuse me in public, can say whatever they want about me.
There is something wrong with this picture. Your posthumous reputation is as important as your living reputation, perhaps even more so to family and loved ones, and to your legacy. Even if the law were changed to allow the estate of a deceased person to sue for defamation, the reality is that it would be difficult to win because the key witness, which is the defamed individual, could not take the stand. But at least it would be possible to disprove blatant lies with documentary evidence and other witnesses.
Would such a change chill free speech? All defamation laws do risk some degree of chill. That is why there are such high barriers to public figures suing for defamation. The plaintiff must show not only that the accusation is false, but that it was made with malice, the reckless disregard for the truth or falsity of the accusation. But these barriers are not insuperable in egregious cases. The First Amendment needs breathing room, but it does not require encouraging deliberate lies, even about dead public figures. The Jackson case demonstrates the need for reform. The estate of a dead individual should be allowed to prove any case of malicious defamation.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. His new book is “The Case Against the Democratic House Impeaching Trump.” You can follow him on Twitter @AlanDersh.