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.

UMass Law Review hosts vibrant media law symposium

Today, as advertised, the UMass Law Review hosted a symposium on media law. The program videos are all on Facebook Live.  Check my Twitter feed for hot links to speakers' handles.  Three panels were organized by media "platform," from politics to digital to entertainment, raising issues from the investigative journalism to data breach law to streaming music copyright.  The program concluded with a keynote address by Richard P. Flaggert, a DLA Piper media attorney.  Here are some highlights:

After a thoughtful welcome by UMass Law Dean Eric Mitnick, UMass Law Professor Jeremiah Ho started the program with a discussion of why media matter.  The problem of law and policy, he said, is the gulf between "what matters" and "what excites us," with the media business model tending to cater to the latter.  Professor Ho is a co-adviser of the UMass Law Review.

  

Kicking off the first panel of the day, Rep. Christopher Markey, New Bedford, Mass., attorney, Commonwealth legislator, and UMass Law alumnus, gave the political perspective.  Money has distorted news from being an educational tool to being entertainment, he explained.  People must be media literate to elicit truth from what they see, hear, and read.  Recalling his years as a district attorney, Markey said that attorneys and judges were "better" when a beat reporter was sitting in the courtroom, that journalism "makes government better."  But those beat reporters are no longer there.

Jillian Fennimore provided her perspective from inside the busy office of Massachusetts Attorney General Maura Healey.  A journalism graduate of the University of New Hampshire with many years experience in media, Fennimore explained the challenge of making the work of the state's law office intelligible and meaningful to citizens, whether the subject matter is investigation of the opioid crisis, antitrust enforcement, or protection of a consumer whose vacuum cleaner broke.  AG Healey cares about all of these things because she understands that these are things people care about, Fennimore said.  My Torts II class has been looking at the impact of the Healey opioid investigation on the crisis and litigation nationwide.

Peter Ubertaccio, a dean and political scientist at Stonehill College, gave an academic perspective on news and media law.  Those of us of a certain age remember the local TV news anchors of our youth, he observed.  That is not true for our children.  Journalism today is "atomized," lacking the "rhythm" of television before the information age, even if the internet is "democratiz[ing]."  There is more content available through more conduits than ever before, Ubertaccio explained, yet there is less availability of accurate information.  We are entering a golden age of television entertainment while at the same time entering a dark age of information, he said.  Incidentally, yes, I remember my anchors.  And I was privileged to have worked with Baltimore's great Al Sanders for a short time before he passed away.

A star of the first panel was Dee DeQuattro, UMass Law alumna, staff attorney for Operation Stand Down Rhode Island, and creator of the Boots on the Ground Heroes Memorial.  DeQuattro talked about her experiences in radio and television, most recently as an assignment manager for ABC6 News in Providence, Rhode Island, then her transition to a public relations and later legal capacity for the veterans organization, Operation Stand Down.  DeQuattro went to journalism school to hold power accountable in the tradition of Woodward and Bernstein, she said.  But "news doesn't work that way anymore," as bottom-line focused detracted from serious political reporting.  After covering the Boston Marathon bombing, she went to law school.  She still uses her familiarity with news media, driven by money savings and visual imagery, to manage public affairs in her nonprofit work.

Law Review co-adviser Professor Dwight Duncan moderated the second panel, on digital media.  Professor Andrew Beckerman-Rodau of Suffolk Law School and the Intellectual Property Center opened with a comprehensive overview of data protection, including data breach and Big Data analytics, in American law today.

Attorney Hollie Lussier of Bristol County Savings Bank told the audience about the large role data protection and privacy play in legal practice today, especially in the financial sector.  She warned attorneys to consider insurance liability limits, as $100,000, she said, won't cut it.  She cited a recent case of a "small" data breach that nevertheless generated a $140 million loss.  The breach could have been prevented, she said, with a $10,000 "penetration test."  Making matters more hazardous, she explained, many insurance policies will not cover consequential damages, which make up most of that mega-million loss.

Rhode Island attorney and legislator Stephen Ucci concurred on the importance of data protection to contemporary practice.  He referenced a recent in case in which only 300 records were exposed.  Despite seemingly straightforward facts, the exposure of data has different implications for each data subject, he explained; moreover, breach across state borders implicates the laws of 50 states as well as federal laws, such as the Gramm–Leach–Bliley Act.  The complexity of even a small case is thus multiplied.  Ucci discussed the data breach legislation adopted by Rhode Island in 2015 and plans to beef up education and implementation in the near future.

UMass Law Professor Dustin Marlan moderated the third panel, on the subject of entertainment law.  Attorney and educator Richard Kent Berger started off the afternoon program talking about music copyright.  He explained the significance of the Music Modernization Act of 2018 and related legislation and pending proposals.  Royalties are now owed for digital streaming, and some pre-1972 musical works that had lost copyright protection have had their authors' royalty rights restored.  The law also revamped the approach to orphan works and afford them greater protection against loss of copyright.  Previously large content providers such as Google's YouTube were able to use a notice process on a massive scale to shake potentially orphaned works free of their copyright protection.

Seattle University Law Professor Bryan Adamson, a mass media scholar, talked about the importance of framing in media, especially in news reporting, and especially in coverage of protest movements. Media frames tend to perpetuate social stability, he explained, and as a result, tend to perpetuate racial hegemony.  The portrayals viewers see might not fairly represent the facts, and, as a result, he said, rather than contributing to the public dialog, media narratives might "derail" meaningful discussion of sensitive topics such as race and social and economic equality.

Rhode Island attorney Richard E. Kühn talked about the importance of social media to attorneys.  Social media are part of contemporary legal practice across the board, he explained, touching on areas including lawyer advertising, client counseling, evidentiary investigation and spoliation, and trial practice and voir dire.  He recited recent case rulings demonstrating that failure to take social media into account, for example in evidentiary investigation, may result in a finding of legal malpractice.

DLA Piper attorney Richard P. Flaggert (not speaking on behalf of clients or the firm) gave the keynote address of the symposium, discussing contemporary media law practice.  Flaggert, who is licensed in California, Massachusetts, and England and Wales, started off by reminding that Shakespeare's "kill all the lawyers" lines was an admonition against unethical or incompetent practice, not actually an indictment of the professional.

He then spoke about two key doctrinal developments in media law practice.  First, he discussed the potential impact on free speech and commerce of the newly adopted EU Copyright Directive, in particular the article 11 "link tax" and the article 13 "upload filter measure."  Both threaten a chilling effect, he explained.  The former purports to give copyright protection to even a "snippet"—the actual word, undefined in the law—of content, putting at risk a range of content from Google news aggregation to "your blog."  Meanwhile article 13 imposes the burden of protecting against copyright infringement on ISPs, abandoning reliance on the notice-and-takedown approach of the U.S. Digital Millennium Copyright Act.  As a result, even "your blog" content might be tied up for weeks or longer as ISPs mull over whether you have violated copyright, likely prompting prophylactic censorship.  I note: not unlike Europe's approach to the right to be forgotten, now miring Google in a new administrative bureaucracy, not to mention the risk of Goliath gate-keeping under non-transparent private-sector control.  

Second, Flaggert talked about the problem of copyright and live fan captures of sporting events and the like.  As technology improves and recording devices become harder to detect and control, event providers such as sporting authorities will have a more difficult time policing the difference between the odd fan photo and the HD-streaming pirate.  The French solution has been to regulate, Flaggert explained, giving near absolute control to providers, a strategy of obviously problematic dimension.  Meanwhile in the United States, no body of intellectual property law, such as federal copyright or state common law, seems up to addressing the problem.  Event providers are confounded at the choice between loss of control of their intellectual property and alienation of their fan base with its abiding affection for social media.  Meanwhile the problem poses a threat to our fine-line precedents and the delicate balance between INS v. AP IP rights and the "hot news" doctrine, which has kept the peace for decades.

The village idiot moderated the first panel. Here
he is about to laugh at one of his own bad jokes.

Once a lawyer who represented ESPN before it ceded its design to bring Premier League coverage to America, I asked Flaggert 1:1 whether NBC, with its unsatisfying and impossibly expensive array of cannibalized Premiere League coverage for U.S. viewers, intends to be destroying soccer in America, or is just doing so indifferently.  He shared his frustration with access to Liverpool matches.  I'm not sure why one would necessarily want to see Liverpool, unless they were playing directly against ManC.  But I appreciate his empathy.

A big congratulations to the UMass Law Review, especially editor Casey Shannon, for executing a superb symposium, with my sincere thanks for bringing these talents to our campus.