Libel of the Dead

Familiar to most big cities is the fly-by-night exhibit of gruesome or sleazy photographs which opens in a vacant store, boldly advertised as an "appeal to justice" or a "lesson in morality." Usually the pictures are unpublished newsphotos of current crime. The patron may be lured in by "free admission," then coaxed to pay 25^ to see an extra-ripe display behind a curtain; or he may be held up at the exit to contribute to a "fund for the impoverished victims." Into such a "crime prevention" exhibit on Los Angeles' South Main Street two months ago walked one Hugh Plunkett. On the wall he found photographs of the body of his late brother Robert, secretary to Edward Laurence Doheny Jr., son of the oil tycoon, taken just after Robert Plunkett shot Doheny Jr. dead and killed himself in 1929. Infuriated, Hugh Plunkett tore the prints from the wall, had Proprietor Joe Gotch and five associates arrested. The charge: libeling the memory of the dead.

On trial last week Defendants Gotch et al pleaded, successfully, that the pictures were privileged as an exhibit "designed to deter criminal acts."

Meanwhile in Manhattan a magistrate dismissed a charge of libel filed in their own behalf by eccentric Stanley Faithfull & wife, parents of the late Starr Faithfull (TIME, June 29), against Publisher Joseph Medill Patterson and Reporter Sidney Sutherland of the tabloid Dally News. But the court did find evidence that the memory of Starr Faithfull had been libeled, offered to hear testimony.

The crime of libeling the dead has a curious history. It was made a misdemeanor in English common law, not chiefly out of reverence toward the departed but as a deterrent to breaches of the peace. The theory: that vilification of the deceased would, if it reflected upon his living family, incite the latter to assault the offender. Subsequently the law was interpreted in a broader sense, to protect the family against reflected defamation whether or not the family was prompted to avenge itself by violence.

In the U. S. the crime of libeling the dead has been written into the statutes of most States, and not always is it necessary to prove defamation of survivors. Recorded cases are scarce, but one well-remembered is the conviction of one Paul R. Haffer of Tacoma for an article which allegedly libeled the memory of George Washington. The Supreme Court of the State of Washington upheld the judgment, opining in substance: Though there were no living survivors to be injured by publication, still memory is conceived to be memory existing in the minds of the living, whether or not that memory rests on knowledge of the deceased as a living man or on historical knowledge.

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