According to Mary Trump, Trump’s friend Joe Shapiro took the SAT for him:
“Donald worried that his grade point average, which put him far from the top of the class, would scuttle his efforts to get accepted. To hedge his bets he enlisted Joe Shapiro, a smart kid with a reputation for being a good test taker, to take his SATs for him. That was much easier to pull off in the days before photo IDs and computerized records. Donald, who never lacked for funds, paid his buddy well.”
The problem with this account is that Shapiro, who died of cancer in 1999, met Trump at the University of Pennsylvania, which (if true) would make it a bit difficult for him to have cheated on the test for him. His widow, former tennis champion Pam Shriver, was outraged by the allegation against her late husband who she said was known as a person of the highest integrity.
Unless she is lying (which I have no reason to believe), that brings us to the torts question. Such an act would dishonest and has recently been prosecuted as a criminal matter in the infamous college bribery scandal which involved fraudulent test taking. If made falsely, it can be a matter of defamation. Criminal conduct has long been recognized as a per se category of slander under common law torts as well as such categories as moral turpitude and unchastity or impugning professional reputation. These per se categories are often referenced even in states that have removed the distinction between libel and slander. This is an allegation of criminal and unethical conduct.
The problem is that Joe Shapiro is dead. As we have previously discussed with regard to an infamous column by the Toronto Star, the common law rule is that “you cannot defame the dead,” which of course means in practical terms that you can defame the dead. Once again, I have long been a critic of that rule, here. Publishers and movie producers often wait for figures to die to have full license to defame them with no recourse to the family. As I said in 2007:
“Indeed, while most people are raised not to speak ill of the dead, the law fully supports those who do. Under the common-law rules governing defamation, a reputation is as perishable as the person who earned it. It is a rule first expressed in the Latin doctrine actio personalis moritur cum persona (“a personal right of action dies with the person”). The English jurist Sir James Stephen put it more simply in 1887, “The dead have no rights and can suffer no wrongs.” In other words, you’re fair game as soon as you die — even if writers say viciously untrue things about you and your life.”
The current controversy highlights the unfairness and harm caused by this common law rule. Most of us were raised to protect our family names and reputations. Indeed, my father rarely made commands or demands for our future but he made clear that our primary obligation to him was to pass along our family name in as good or better shape than we received it. That does not mean that we are to avoid controversy but most of us spend our lives avoiding allegations of dishonestly, let alone criminal conduct.
Yet, as soon as you die, anyone has total license to smear your reputation. As discussed in the earlier columns, such false portrayals are often the lasting impression of people from popular books or movies.
This would seem an easy case of defamation. If Pam Shriver is telling the truth, there was no chance that this could have happened and Mary Trump could have easily confirmed that fact. The fact that neither she nor the publisher (Simon and Schuster) took the time to confirm that story is telling. This may not have been flagged for fact checking because it did not matter if it was true or not. Shapiro is dead so they knew that they had total license for libel. What is libelous for the living is non-libelous for the dead.
All Shriver can do is object and try to set the record right (as the alleged defamer collects royalties on a false account): “But obviously Joe’s not here to defend himself and say what happened, but I just want to recollect what he told me about where he met Mr. Trump. And I want to thank all of Joe’s close friends and his sister Beth for our talks in the past 24 hours about what an upstanding, outstanding man Joe Shapiro was.”
I would love to see another challenge to this common law rule, but it comes at the risk of an effort to sanction the filing as challenging established law. However, this is the creation of the courts and, while it could be changed by legislation, it should be reconsidered by the courts as inimical to the values underlying defamation law. The doctrine actually encourages the use of the dead to sensational depictions and allegations because they are treated as a “free pass” for possible litigation. The common defamation of the dead shows how the lack of a meaningful sanctions can fuel harmful conduct.
The problem is that the allegation of fraudulent conduct involved two people and one is very much alive: President Trump. He could conceivable sue over this allegation. The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. He would have to prove that his niece had “actual malice” where she had actual knowledge of the falsity of a statement or showed reckless disregard whether it was true or false. The failure to confirm these facts of when the two men first met would be a compelling claim despite the high burden created by the Supreme Court.
This is why the story is so important for reforming this rule. If President Trump were to sue, Shriver could join in the action and separately challenge the common law rule. We could then finally have a substantive debate over the rule that you cannot defame the dead.
The problem is that, under the current rule, there is “never too much” when it comes to defaming the dead and there is “never enough” effort to confirm such facts without the deterrence of defamation lawsuits.