The summer beach read you've been looking for:Don Herzog on 'Defaming the Dead'

Looking for the perfect gift for that tort lover in your family?  The perfect read for the beach this summer?  Look no farther.  Pick up Don Herzog’s Defaming the Dead (Yale University Press 2017).

Herzog, a law professor at the University of Michigan, published this odd delight.  He makes a cogent argument against the common law rule prohibiting defamation actions predicated on injury to the reputation of the dead.  I was skeptical: a whole book about this little common law trivium?  Turns out, the history of defamation and the dead is compelling: at times bizarre, thought-provoking, and often funny, especially in Herzog’s capable conversational style.

Do you care what people say about you after you die?  It’s human nature to put a lot of thought into the future beyond your lifespan.  But it doesn’t really matter.  You won’t be here to be injured by defamation, nor gratified by its omission.  And if you’ve moved on to a heavenly (or other) afterlife, why would you care what mortals are saying back on earth?  Sometimes we imagine that we care about the future because we want happiness for our survivors.  But we won’t be here to know whether they have it, so is the interest really ours, or theirs?  Should the law protect either?  These problems, which Herzog posits in the beginning of the book, force some deep thought about what we want to accomplish with tort law—e.g., compensation, deterrence, anti-vigilantism—and accordingly, how we think about tort’s elements—duty, breach, causation, and injury—in the context of dignitary harms.

To oversimplify, Herzog pits what he calls “the oblivion thesis”—you can’t assert legal rights from beyond—against the Latin maxim and social norm, de mortuis nil nisi bonum, loosely meaning, “speak no ill of the dead.”  Common law defamation observes the first proposition, while as to the second, Herzog cautions: “No reason to think that just because it’s stated in Latin and has an imposing history, it makes any sense.”

Yet as Herzog then well demonstrates, we observe the Latin maxim in American (and British) common law in all kinds of ways.  The law’s purported disinterest in protecting reputations of the dead never became a rule in criminal libel.  And 19th century precedents that excluded post mortem defamation recovery seem to have been motivated by the same illogic that survival statutes were meant to redress.

Meanwhile we recognize a range of legal interests that appear to reject the oblivion thesis:  We honor the intentions of the dead in trusts and estates.  Attorney and medical privileges can survive death, even as against the interests of the living.  In intellectual property, copyright and publicity rights survive death, and trademark discourages disparagement of the dead.  Privacy in the federal Freedom of Information Act protects survivors by way of the decedent’s personal rights.  And Herzog devotes an entire riveting chapter to legal prohibitions on—and compensations for—corpse desecration.

Whether or not you’re convinced in the end that the common law rule on defaming the dead should yield, Herzog’s tour of the field is a worthwhile interrogation of much more than defamation, and much more than tort law.  His thesis unpacks the fundamental question of who we think we are, if we are so much more than the sum of our carbon compounds; and how that understanding of our personhood is effected and perpetuated by our most curious construct: the rule of law.

'Ink' splashes journalism's muck on public stage

Bertie Carvel and Jonny Lee Miller

Saturday I saw Ink, by British playwright James Graham, at the Manhattan Theatre Club, Samuel J. Friedman Theatre in New York.  I wanted to see Ink primarily to fan-boy Jonny Lee Miller.  I’ve idolized him since he appeared alongside Ewan McGregor in the brilliant 1996 Danny Boyle film adaptation of Ian Welsh’s Trainspotting.  I fell in love with him all over again as the reimagined Sherlock Holmes of U.S. CBS’s Elementary, the longest-ever screen-time run of an actor in the role and complement to Lucy Liu’s equally landmark portrayal of Watson.

As newspaper editor Larry Lamb, Miller live was all that I dreamed.  His jaunty spirit and dark-edge demeanor gave life to the tidal forces of moral conflict that tore Lamb apart as he labored under Australian upstart Rupert Murdoch—played by Bertie Carvel, who has owned the role to deserved acclaim since Ink’s debut at the London Almeida and then the West End—to reinvent news in the British tabloid Sun, circa 1970.

I don’t want to give away too much of the play’s awestriking climaxes, so I’ll only mention that one moment comprises a thundering explosion of physicality by Miller as Lamb, as he literally pounds his newspaper vision into reality over union workers’ refusal to roll the presses.  Miller seemed to be losing his voice by the matinee’s end, and my wife and I wondered that he could pull off this exhausting feat a second time that day, much less eight times per week.  Ink opened on Broadway in April and was just extended to July 7.

Playwright James Graham
speaks at his alma mater
University of Hull in 2018.
(By Robin S. Taylor
CC BY-SA 4.0.)

To my giddy delight, Ink delivered so much more than a stellar cast.  Mansfield-born James Graham is an accomplished writer of stage, TV, and film, and he’s evidenced an award-winning capacity to grapple with social issues through context.  (His film adaptation of Mikey Walsh’s Romany-expose memoir Gypsy Boy is in pre-production.)  Graham’s socially provocative Privacy in 2014 was informed by the Edward Snowden affair, and Daniel Radcliffe joined the cast for its New York debut in 2016.  With Privacy, though, lukewarm reviews suggested that Graham modestly missed the mark, giving audiences angst, but not much that was new.  He might have bitten off more than he could chew by trying to tackle a subject of such wide-ranging complexity.

If Privacy was Graham’s faltering early exploration of the social landscape, Ink is his finished dissertation.  I knew Ink would be about the birth of modern tabloid journalism—the less modern iteration being the Hearst-Pulitzer yellow journalism of the 1890s, another turning point in the history of news, evidencing my journalism professors’ admonition that nothing ever happens for the first time.  I did not understand before I went that Ink is calculated as a commentary on our present-day problem of “fake news,” or, otherwise packaged, the consumer-driven, 24-hour news cycle that undoubtedly represents another centennial shift in the enterprise of journalism and signifies to many a circular cause and symptom of moral decay in human civilization.

Set principally in 1969, Graham’s play never mentions “fake news” in modern terms.  But it does talk about populism, and therein lies Graham’s clever contextualization.  He locates Murdoch’s revolutionary arrival on the global media scene relative implicitly to the Fox Corporation of 2019, five decades hence, and at the same time relative explicitly to the spilling of populism onto the world stage in 1939, three decades earlier.

Jonny Lee Miller and Lucy Liu talk Elementary at San Diego Comic-Con in
2012.  (By Genevieve CC BY 2.0.)

As the cast discussed on stage in a talk after the show on May 11, an insightful feature of Graham’s Murdoch and Lamb arises in their portrayal as protagonists.  Part of you roots for them to succeed in overturning the staid paternalism of post-World War II journalism.  Fleet Street had become entangled with elitism, arguably peddling news as nothing more meaningful than a new opiate for the masses.  Media had fallen out of touch with the everyday plight of the working classes that post-war chroniclers had purported to protect with anti-establishment bulwarks.  Sound familiar?

Lamb’s fall reminds us that the shortest path from Cronkite-esque public servant to Alex-Jones-town social menace is more slippery slope than cliff-edge drop.  Murdoch is the devil to Lamb’s Doctor Faustus, and one must remember that the devil was not really the villain of that story.  Protagonist and antagonist at once, Faustus was everyman.

Graham artfully traced the unraveling of countless threads in social policy in Ink’s Sorkin-paced script.  Almost in the play’s background, the aforementioned union press workers evolve from butt of ridicule to moral compass as Lamb loses his grip.  Characters’ commentary collateral to the business of newspapering portends the looming behemoth of television, à la Marshall McLuhan.  Lamb’s dogged insistence that absolute freedom of information is the best way to save the life of kidnapped Muriel McKay evokes pondering of Julian Assange’s access-to-information fundamentalism, such as birthed Wikileaks.

Front and center, the advent of the Murdochian media empire, portrayed in Ink, posits a simple question that has haunted ethicists since the construction of the Fourth Estate:  Is the role of journalism in a democracy to give the public what it needs or what it wants?

 Elementary s7 premieres May 23 on CBS.

W. Kamau Bell solves racism.Or at least makes some progress....

My wife and I were privileged last night to see W. Kamau Bell speak at the Zeiterion Theatre in New Bedford, the show part of the New Bedford Lyceum.  (Also in the audience: our friends, colleague Professor Justine Dunlap and UMass Law alumni City Councilman Hugh Dunn and attorney and radio host Marcus Ferro.)  Bell is a comedian, but at the same time, most definitely a social activist, performing through multiple media, including television, podcasts, and books.  He is most familiar to me from his Emmy-winning show on CNN, United Shades of America, which returns to the small screen with its season 4 premiere, about megachurches, on April 28 (cordcutters pay per episode).

Tongue in cheek, Bell titled his show at the Zeiterion, "The W. Kamau Bell Curve: Ending Racism in About an Hour," a play on the title of the controversial 1994 book, The Bell Curve, by Richard J. Herrnstein and Charles Murray.  Bell's essential thesis is that race is a construct, but, nevertheless, one we have to pay attention to.  Bell aims "to dismantle racism," but not race, which he believes can be turned into a constructive concept for the good of society as a whole.  Any effort on my part to summarize Bell's approach beyond that point would be inevitably inadequate.  Suffice to say, he works toward his mission with a brilliant combination of observational hilarity, multimedia presentation, and sharing

Outside 'the Z'

about his own life and family.  He does not ask that everyone agree with him on every point, he admonishes.  Rather, he has accomplished enough if people are moved to engage in meaningful dialog about race and social justice, which surely they must be.

The Zeiterion Theatre, or "the Z," is a classic building in old, cobblestoned New Bedford, Massachusetts, opened in 1923 to host vaudeville acts.  Its fortunes have waxed and waned with the history of working-class New Bedford.  The New Bedford Lyceum is a community cultural organization that dates to the city's whaling heyday.  Founded in 1828, Lyceum lectures and events aimed for “the improvement of its members in useful knowledge and the advancement of popular education.”  The Lyceum was disbanded in 1905, but revitalized by New Bedford leaders in 2016.

Bell was a smart choice to fulfill the Lyceum's public-educational mission.  New Bedford has an unusually (for not-Boston, Massachusetts) diverse population in terms of race and economic class, leading inevitably in our trying times to social tension and painfully obvious stratification.  City leaders—such as Councilman Dunn and UMass Law alumna Mali Lim, city coordinator for community education—work mightily to keep the peace, and, moreover, turn tension and diversity into productive community identity.  Bell's lecture at the Z was preceded by four public screenings and discussions in New Bedford and the surrounding area, one at UMass Dartmouth, each reflecting on a theme from Bell's CNN work.

Burning of the Bodleian

Guide Fiona in an oak-paneled room of the ground-level, former Divinity School at Oxford University's main building of the Bodleian Libraries.  Photos are not permitted on the Humfrey Library level, discussed in this post and featured in Harry Potter's Hogwarts.

Today I had the extraordinary experience of touring the main, historic building of the Bodleian Libraries at Oxford University, UK.  Here's some of the intriguing and tragic history shared by my capable guide, Fiona (a knowledgeable academic, whom I wish I could identify more precisely; Fiona, get in touch if you read this, and I shall give you due credit).

To get the most important matter out of the way at the top: Yes, this is the place were books literally were flying about the room at Harry Potter's Hogwarts.  Fiona told a couple of good stories about filming in the library, which was permitted only during, and ran fully throughout, nighttime closing hours, 7-7.  Sometimes filming had to be stopped on Harry Potter if sound booms got too close to the ceiling beams, or lights raised the temperature too much for the books' safety. On another occasion, Fiona asked a bearded guy, authorized to case the library, why?, and he answered, "For the next Transformers movie."  Only later did she realize she had spoken with Steven Spielberg.  She still wasn't sure why the library would make an apt set for Transformers.

So I'll skip the fascinating mechanics and history of care for the books--let Fiona have her IP, and you should take the tour, at least the 60-minute version, yourself--and mention just one arresting, contemporary fact: Fiona said it takes on average £20,000 pounds to scan one book from the historical collection.  So feel welcome to donate in support of the effort.  What's here that's worth such extravagant effort?  Fiona casually mentioned the presence of an original Johnson dictionary among the holdings.

In the 15th century--the dawn of the printing press, remember--Fiona said, one book cost about as much as a small car today.  The University library owned the princely sum of 20 books. In the 16th century, Oxford got a massive donation of books from Duke Humfrey (Humphrey of Lancaster, first Duke of Gloucester), but had no place to put them.  So the library asked for some additional money from Humfrey to build the structure I was in today (but just the second floor; the Divinity School was on the ground floor and today is part of the halls still used for Convocation; it was and remains--with modern climate controls precluded in the name of historic building preservation--unwise to store books on the ground level because of the risk of rat and insect infestations).

Today if someone who has the proper credentials wants to see a book from this old collection, he or she must request it in advance, and then is given a date, time, and place to view the book.  The book is then transported via underground tunnel across Broad Street to the more recent Watson Library (opened originally 1940s, renovated and reopened 2015), to meet its reader at the appointed time and station.

Yet these are not the original books of the 15th century.  In the 16th century, the entire contents of the library was (believed) burned in the name of the Reformation.  You can still see where a stone cross was removed from the wall.  The stained glass windows, featuring Catholic iconography, were destroyed and today still are just plain clear glass.  Some 40 or 50 (more?, it is suspected) books are known to have survived the burning, besides pages here and there (some lathered with butter, as they apparently were recycled by fishmongers to wrap their wares).  The library has managed to buy back five--5! (or just three, Wikipedia says).

Thomas Bodley came around to restore the library in the late 16th, early 17th centuries--after 50 years of post-Reformation neglect that left ceilings open to the elements--and the library/libraries took his name.  But that's another story for a longer tour....

"Readers" at the Bodleian--such as, once upon a time, JRR Tolkein--have always been compelled to recite aloud the library's pledge, formerly in Latin and now, thankfully, in English.  At the shop, I bought the tin sign for my law-librarian wife to adorn her workplace, and perhaps demand likewise of patrons eager to explore special collections:

I hereby undertake not to remove from the Library, or to mark, deface, or injure in any way, any volume, document, or other object belonging to it or in its custody; not to bring into the Library or kindle therein any fire or flame, and not to smoke in the Library; and I promise to obey all rules of the Library.

See, fire, such as the burning of candles even for the innocent purpose of generating reading light, always and still poses a grave threat to the library.  But that threat is second, Fiona said, to the ravages of water, which might be needed to put out a fire.  Mold begets hungry bugs, who don't stop when they reach paper.  Not even bottled H2O is permitted to today's readers, who must exit the library to slake their thirst.

Shhhhh!  Silence in the stacks, please.