Defaming The Dead:
By JOHN W. DEAN
|Friday, Mar. 12, 2004
In October 2003, Barr McClellan published Blood, Money & Power: How L.B.J. Killed J.F.K.. As its title suggests, the book makes an astounding claim that former President Lyndon Johnson, and other deceased officials and persons, were involved in a conspiracy to murder President Kennedy. This claim is patently absurd. Yet according to the New York Times, over 75,000 copies of the book have been sold.
McClellan is a retired Texas attorney who says he once represented LBJ. He also happens to be the father of Scott McClellan, President Bush's press secretary, and Mark McClellan, whom Bush appointed commissioner of the Food and Drug Administration.
When subsequently promoting his book on Fox News, McClellan went even further, claiming that LBJ "had killed before. He knew how to do it. He was comfortable with it." When the astonished host asked if "the president was a multiple murderer," McClellan said, "yes, he was."
A month after the book's publication, the History Channel featured McClellan's contention in a documentary. The Wall Street Journal described the documentary as "conceivably the most malignant assault on sanity and truth (not to mention history) in memory." But it was shown far and wide: the History Channel's programs are sent to 125 million subscribers in some 60 countries.
As a result of the book and the documentary, Lyndon Johnson has become a subject of vilification and hate. Nasty and threatening letters have been sent to the LBJ Library -- including threats to tear it down.
Understandably, those associated with LBJ have sought to correct the record.
Efforts To Correct The Record: Only Partially Successful At Best
LBJ Foundation Chairman W. Thomas Johnson (no relation) tried to get through to the head of the History Channel after the documentary was aired. His initial complaint fell on deaf ears.
Former LBJ press secretary and longtime newscaster Bill Moyers tried to do the same. He hoped to ask a History Channel executive to investigate the allegations, because he was sure that they would find them false. But Moyers had no more success than Johnson.
Motion Picture Association of America president Jack Valenti also sought to challenge the documentary. A former Johnson White House aide, Valenti offered powerful evidence that McClellan's story was bogus: Valenti was with Vice President Johnson at the very time when McClellan has him busy conspiring with Nixon, J. Edgar Hoover and others.
When the initial efforts failed, Johnson, Moyer and Valenti enlisted former President Gerald Ford, who had been a member of the Warren Commission. Ford sent a letter charging that the McClellan allegations were "the most damaging accusations ever made against a former vice president and president in American history."
Former President Jimmy Carter also helped; Carter told Tom Johnson, "If it can happen to him [LBJ], it could happen to me after I'm dead." And LBJ's widow Lady Bird, though 91 years of age and recovering from a stroke, joined the others with an eloquent letter to the heads of the parent companies.
Finally, the History Channel agreed to conduct an independent review of the documentary. They have retained three respected historians to examine the material: Stanley Kutler, Robert Dalleck, and Thomas Sugrue.
Limited Legal Remedies For Defaming The Dead
Before the History Channel relented, and agreed to look at the matter, Tom Johnson told the New York Times, "libel is excluded," but added, "there may be other legal avenues to pursue." Are there? That will be the subject of this column.
For centuries, American common law has precluded family, friends, business partners and others associated with the dead from filing a cause of action based on damage to that person's reputation. Why? Because defamation is viewed as a personal injury to reputation, and the law has pretended that reputation dies with the individual. Obviously, it does not -- and it remains important to family, friends, and others.
Two commentators, however -- Lisa Brown and Raymond Iryami -- have, in recent years, proposed remedies to address this situation. At the time, both were law students. I have drawn on their insightful suggestions in this column.
Difficulty With Infliction of Emotional Distress Actions
First, what about an action for intentional infliction of emotional distress? Certainly, these accusations that LBJ was a murderer must have distressed both Lady Bird and LBJ's daughters, Lucy and Linda. And McClelland must have known this would be the case.
Unfortunately, such claims are hard to bring even when the victim is alive. An intentional infliction claim must be based on conduct that is extremely outrageous, and courts are unclear about what, exactly, this means.
To sustain an action for intentional infliction of emotion distress the complaining party must show the conduct was more than annoying, or the cause of hurt feelings. It must be shown that the conduct was extremely outrageous and the cause of serious mental suffering. Courts are clear, however, that the bar is very high for such actions.
Certainly, McClellan's book and his later remarks ought to fit the bill. But now that LBJ is dead, the harm from these statements is once removed -- it was inflicted on his relatives, friends and associates, not the man himself.
In addition, the court may be concerned that allowing an intentional infliction of emotional distress action would, in essence, be creating an action for defamation of the dead. For this reason, too, an emotional distress claim might be dismissed.
All in all, given present law, regardless of the hurt to the family, I doubt they have a cause of action of any emotional distress this hurt has caused.
An Action For Economic Damage From An Injurious Falsehood
More promising might be an action for economic damages arising from an injurious falsehood.
McClellan's charges could, if believed, seriously damage the ability of the LBJ Foundation to raise funding, or have a negative impact on the operations of the LBJ Library. Benefactors might think twice about an association with LBJ, or parents might be reluctant to bring their children on a tour.
Common law provides a remedy for injurious falsehoods, actions that are sometimes known as business disparagement lawsuits. A leading authority, Prosser and Keeton On Torts, explains: "the kind of interference by falsehoods which are not personally defamatory, and yet cause pecuniary loss, has for some centuries been regarded as" a distinct legal claim from defamation.
To prevail, however, so called "special damages" must be shown. What are "special damages"? Suppose a large prospective contributor, with whom the LBJ Foundation had been working, declared he or she was refusing to make a gift given McClellan charge. Or suppose a group planning a large conference at the LBJ Library cancelled for the same reasons. These are typical instances of special damages.
Thus, this is a potentially viable lawsuit, if special damages indeed have occurred.
An Innovative Civil Action Based On A Criminal Defamation Statute
Another option -- proposed by Iryami -- is a civil action based on a criminal defamation statute. This, of course, presumes filing the lawsuit in a jurisdiction with such a law.
Many states have criminal defamation laws, though they have become relics. As the U.S. Supreme Court said in Garrison v. Louisiana such statutes are not concerned with reputation, rather they are directed at keeping the peace. However, the Court pointed out that the modern "civil remedy ha[s] virtually pre-empted the field of defamation," thereby largely "erod[ing] the breach of the peace justification for criminal libel laws."
Nevertheless, such laws are still on the books -- and possibly could provide a basis for a civil cause of action.
Iryami bases his argument on two important U.S. Supreme Court cases. The first was Swidler & Berlin v. U.S., which ruled that attorney-client privilege continues after the client's death. In so doing, all nine justices recognized that a dead person retains an interest in a good reputation -- shattering the common pretense that this was not true.
The majority stressed that "Clients may be concerned about reputation, civil liability, or possible harm to friends or family. Posthumous disclosure of such communications may be as feared as disclosure during the client's lifetime."
And even the three dissenters acknowledge that a "deceased client may retain a personal, reputational, and economic interest in confidentiality." They did not challenge the existence of a legal interest in posthumous reputation; they only questioned its magnitude.
Iryami also relies on Cort v. Ash, a case relating to a court's power to impute private civil causes of action based on criminal statutes. Iryami points out that a number of state courts have followed Cort's analysis. And he concludes from this that these same courts could "imply a private cause of action for defamation of the dead from the criminal statutes."
Would Iryami's clever argument win in court? It's unclear. In my view, it would not be a frivolous contention and could appropriately to be raised as the basis of an action -- assuming they necessary criminal statute was found as the foundation for the civil suit.
A Clear Legislative Solution Is Needed In This Area
The best solution, however, is the one Lisa Brown urged: State legislatures ought to address the gap in the law regarding the reputations of the dead. Rhode Island has a law to this effect, albeit a very limited one. And many civil law jurisdictions -- Quebec is one example -- allow such actions.
Some may respond that this would "chill" freedom of speech under the First Amendment. No more so, however, than for the living.
Moreover, unlike the living, the dead have lost the power of counterspeech -- the power to respond. The underlying philosophy of the First Amendment is that there must be a open marketplace of ideas, where the truth will emerge from "uninhibited, robust, and wide-open" debate. But the dead are not in a very good position to participate.
The Need For A Judicial Venue to Establish and Declare Truth and Falsity
Study after study has shown that the primary reason people file defamation actions is to establish the truth -- not to gain damages. Certainly, those who loved and respected LBJ primarily want to clear his name. They should have an avenue for establishing the truth.
With this truth-seeking function in mind, American law ought to provide those who are defamed (whether living or dead) with an avenue to obtain a simple, clear, declarative court ruling that a statement is false (or true). This would make for both a better marketplace of ideas, and a more accurate portrait of American history.
Meanwhile, we must all await the findings of the History Channel's panel of historians, which will likely clear LBJ's name. The History Channel is to be commended for not forcing this issue into litigation.
But litigation should still be an option -- especially if the panel does not come through. And for that litigation, new rules are needed -- rules that recognize the reality that deceased persons, like living persons, retain a reputation that can be damaged, and should be able to be judicially repaired.