While some critics have panned the new movie “J. Edgar,” reviews among former FBI agents appear far more harsh. This article was sent to me by one of my students given our discussion this week of the rule that you cannot defame the dead. Indeed, the controversy over the film raises that very question as well as an interesting question of whether alleged homosexuality should still be considered per se defamation.

I have been a long critic of the common law rule that you cannot defame the dead, as explained in this prior column. The issue continues to arise as family members seek relief over alleged defamation, both real and perceived (here and here.

According to this article, former aides and agents who worked with Hoover insist that the movie wildly misses the mark and wrongly portrays the former director. The fact is that, even if true, tort law does little to protect his reputation. For the record, I do not share the view of Hoover as a noble leader. As a civil libertarian, I view him as a menace to liberty and someone who acted repeatedly outside of the Constitution. However, I do believe that people like Hoover have a continuing right to their reputation and that the common law rule denies such basic protection to the deceased. My father used to tell me that I had one mandatory job in life: to pass along the Turley name in as good or better shape than it was passed on to me. I have always lived my life with that lesson in mind. Yet, the common law says that you can work your whole life to preserve your reputation only to have it shredded upon your death. As the above column discusses, this is a considerable problem with movies and books that use the common law rule to abusive effect.

The Hoover controversy also raises another long simmering controversy: whether being an alleged homosexual is a per se matter of defamation. The common law has long recognized categories of per se slander (categories applied more generally to all defamation in some states). This includes imputations of dishonesty in another person’s trade, business, or profession; carrying a loathsome disease, unchastity, and criminal activity. Some states refer to moral turpitude, which has been used to cover imputations of homosexuality as has the criminal category given prior statute criminalizing homosexuality.

For this reason, accusing someone of being gay was long treated as a per se defamatory statement. It was not only viewed as alleging sexual impropriety and immorality but it was a crime in many states. One of the leading cases occurred in 1952 in a New York lawsuit. In Neiman-Marcus v. Lait, 13 FRD 311 (SDNY 1952), employees of that high-end store sued the author of a book titled “U.S.A. Confidential.” The book claimed that some of the models at the story and all of the saleswomen in the Dallas store were “call girls.” It further stated that most of the salesmen in the men’s department were “faggots.” The issue came down to the size of the group. With 382 saleswomen and models, the court found that the group was too large. However, with the 25 salesmen, the court found that an action could be maintained.

However, this is an example of how common law definitions change with society. Not only has the Supreme Court struck down laws criminalizing homosexual relations, but gay and lesbian citizens are now open and accepted in most of our society.

Some courts have ruled against homosexuality as a per se category in light of changes in our society.

As I tell my class, while “location, location, location” is the mantra for real estate, “context, context, context” is the mantra for defamation. There would be little debate that some imputations of homosexuality or adultery would constitute defamation against individuals who have deep seated conflicting values or relevant positions such as ministers. Of course, Hoover (if he were alive) could claim that (regardless of the current social status or stigma of being gay), this allegation suggests that he repeatedly lied since agents at the time were not allowed to be gay and homosexuality was a crime.

However, the general allegations of being gay has certainly changed in our society as to its stigmatizing effect as well as allegations of being a “fornicator” — another area of criminalized conduct.

Accordingly, Hoover’s family is out of luck on claiming defamation. If they could make such a claim, it would be debated whether this would still constitute a per se matter.

Source: Washington Post

Kudos: Lyndsay Steinmetz