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
16 thoughts on “Could Hoover Sue J. Edgar?”
I support Hunter for the Break Room but with so many worthy possibilities out there certainly the Chemistry Lab could rightfully be given a double … Hofmann-Leary Chemistry Lab?
Now … what department door should bear the Hoover-hated “Black Panther” memorial namesake ….
Does anybody here recall the naming of the cafeteria at the University of Colorado at Boulder? When the University built their new cafeteria in 1968, a vote was held on campus to name the place. The students voted overwhelmingly to name their new cafeteria grill the, “Alferd G. Packer Memorial Grill.” The grill’s slogan is, “Have a friend for lunch!”
Today, students can enjoy the meat-filled “El Canibal” underneath a giant wall map outlining Alferd’s travels through Colorado.[
In re renaming, might I suggest the Hunter S. Thompson Memorial Break Room and/or Chemistry Lab.
YES! What Dredd said.
YES! What Otteray Scribe said.
Now… Now… Wouldn’t discovery be a bitch….
I support OS’s renaming of the FBI building but only if the front desk can be named the Robert F Kennedy Reception Desk
Re: ABA … voted (18)
I love your idea to rename the FBI building!
I see the ABA blog battle is joined between Res Ipsa Loquitur, Volokh and that testy Satyricon. Let the fun begin. We’re down to Volokh 16-19.
Actio personalis moritur cum persona—‘a personal action dies with the person’.
You can’t “defame” those alive or those dead, so long as the “defamation” is true.
I have had this fantasy for years that it would be entirely appropriate to rename the J. Edgar Hoover FBI building. Any suggestions? How about the Dr. Martin Luther King, Jr. FBI building? That rumbling sound coming from the cemetery is Hoover spinning like a top in his grave.
While it is not unusual for two men to have a close friendship, it is more than a little unusual that two men spend ALL of their time together. I have male friends, but I sure as hell do not spend all of my time with them or go on vacations with them. Hoover and Tolson were without a doubt gay lovers. Then to top it off, to have nude male statues all over the house is the final straw. It fairly screams GAY!
My 2 cents. I lived in DC while Hoover was alive. My daughter’s godparents lived on the same block (as close as I’m gonna get to identifying location). There were lights on outside around his house all the time. It was obvious his companion Clyde Tolson lived there; open secret about the gay relationship, and a lot of other places in DC.
Yeah, at the time, it needed to be hidden/covered. It’s not the only reason nor necessarily the biggest why Hoover was a hypocrite and a tyrant. Presidents feared him. As one of my professors used to joke, “the ‘J’ don’t stand for Jesus”). Only Hoover apparently thought it did.
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