John W. Dean

Defaming The Dead: Congressman Peter King's Michael Jackson Media Rant

By JOHN W. DEAN
Friday, July 10, 2009

New York Republican Congressman Peter King, acting very much like a prototypical contemporary Republican congressman, recently appeared in front of a Wantagh, New York American Legion Post, to rant about the news coverage of Michael Jackson's death. In doing so, Congressman King absolutely trashed and unashamedly defamed Jackson, even while the Jackson family was still coping with Michael's death and had yet to bury him.

King's "I'll tell you what's news and what's not" outburst truly crossed the line, however, when he charged Jackson with crimes for which the entertainer had been found "Not guilty." King said: "…I don't know how long now, this lowlife Michael Jackson, his name, his face, his picture is all over the newspapers, television, radio. All we hear about is Michael Jackson. And let's knock out the psychobabble. This guy was a pervert, a child molester, he was a pedophile, and to be giving this much coverage to him day in and day out, what does it say about us and this country? …There's nothing good about this guy...."

To defame Michael Jackson as "a child molester" and "a pedophile" – while claiming there was "nothing good about this guy" who devoted his considerable talents to carrying a message of peace and harmony throughout the world – was clearly way over the top.

A Profound Misunderstanding of Contemporary American Culture

Without a doubt, Michael Jackson's appearance and lifestyle had become conspicuously weird, but Congressman King's pronouncing Jackson guilty of child molestation and pedophilia, when a jury had listened to evidence for months on end and could not reach that conclusion, is not simply thoughtless on King's part, it is dishonest. What empowers King to nullify the jury's "Not guilty" finding? What does King know about the purported $20 million settlement with a boy whose mother allegedly accused Jackson of molesting him, if anything at all? On what basis can King elevate wild rumors to statements of fact? What exactly qualifies this Long Island right-wing Congressman to judge the appropriate news value of Michael Jackson's passing?

Actually, Peter King is completely out of tune with America's celebrity culture, and apparently is uninterested in understanding it. In fact, King's moralistic scolding of the news media is only one step removed from Iran's ayatollahs' broadcasting women discussing sewing on state-run television when outraged Iranian voters were rioting in the streets. King's moralistic view of pop culture is about as 1960s as that of Daniel Boorstin, who famously described a celebrity as "a person who is well-known for their well-knownness," and found both celebrities and "pseudo celebrity events" vacuous and inane. The moralizers have, of course, began declaring the end of civilization as we know it for decades, but civilization has survived them.

More enlightened views, set forth nicely in Graeme Turner's Understanding Celebrity (2004) explain that the decline of the traditional family, changing social relationships and new technology have created "para-social interactions" – meaning interactions occurring across significant social distances with people we do not know, and accounting for our enjoyment of celebrities. As Turner states it: "Among our compensations for the loss of community is an avid attention to the figure of the celebrity and a greater investment in our relations with specific versions of this figure. In effect, we are using celebrity as a means of constructing a new dimension of community through the media."

King's elitist distaste for the admiration felt by untold millions of Americans for Michael Jackson is based in the same authoritarian conservatism that the ayatollahs impose on society. It is an open rejection of the populism inherent in today's culture, a populism that tolerates, and often celebrates, being different. No doubt King finds this all very threatening, for he self-righteously but more cautiously repeated his charges the next day, remaining totally oblivious to the vicious, mean-spirited, small-minded nature of his statements. While King's congressional district is ninety percent white, fortunately it does not appear that King's astonishing insensitivity toward the Jackson family and admirers is representatives of feelings of his constituents, for according to press accounts they are not fully supportive of their outspoken Congressman. In fact, King may have created some serious political opposition for himself in his district with his remarks. (And as Pat Buchanan advised, King is not likely to be welcomed any time soon in the Bedford-Stuyvesant section of New York City.)

More Evidence that the Dead, Too, May Need Protection From Defamatory Speech

King's excessive remarks caused me to recall how seriously the New York Assembly considered adopting a law providing a cause of action to the family of a deceased person, who has been gratuitously defamed as King defamed Michael Jackson. Not surprisingly, King's remarks have provoked a flood of similar thinking, albeit by largely anonymous people on the Internet who joined the attack on Jackson's reputation. Ignoring the actual facts of Jackson's life, like King, these anonymous commenters are also speaking out with no true knowledge of the evidence.

A few years ago, I addressed the issue of the defamation of those who can no longer defend themselves. Upon hearing Peter King's ugly charges, I felt badly for the Jackson family, for they have no remedy – that is, no way to force King to produce evidence that is admissible in a court of law in order to back up his conversion of rumor to fact; and no way to show that King's lead-footed dancing on Michael's grave was for his own political reasons, and at the emotional expense of the Jackson family. It appears that King, who has attracted public attention to himself by being nasty, plans to continue. This is modern conservatism in action.

Not withstanding the emotional hurt to the family, and even the future financial damage to Michael's estate that remarks like Peter King's may have wreaked, defamation is a personal injury and, as the law now stands, only living persons can protect their reputations. Family members and business associates of dead people who have been brutally defamed, people who have suffered conspicuous harm and clear financial injury, have failed to change the law on this point, notwithstanding endless years of trying to do so in court proceedings. Judges are typically sympathetic in these cases, but they cannot get around the longstanding common law rule prohibiting such lawsuits, so they often recommend that legislative remedies be developed to address situations where real harm has occurred – which is certainly the case with respect to what is now being said about Michael Jackson.

In the late 1980s, the New York Assembly seriously and repeatedly considered a legislative remedy that would alter the common law rule precluding a lawsuit for posthumous defamation, notwithstanding the ongoing hissy fits of news organizations. New York Governor Mario Cuomo even supported one of the proposals. In the end, however, the powerful New York-based communications industry, using its money and clout, killed the proposal.

During the days following Michael Jackson's death, many of his admirers have worked diligently to focus attention upon the contributions this talented entertainer made, the joy he provided his audiences, his far-beyond-the-call-of-any-duty contributions to charitable causes, and his crossover appeal to Americans of all colors and ethnicities -- a reality acknowledged by President Obama, who noted Jackson's role in paving the way for the election of the first African-American president.

As I was watching and listening to the Jackson coverage, it struck me that if Reverend Al Sharpton turned his focus on protecting Michael Jackson's legacy upon the New York Assembly, and revived the proposed legislation providing a posthumous cause of action for defamation that hurts the family members and financial interests of deceased persons, then Ayatollah Congressman King and his like would think twice before defaming a world-famously, and tremendously popular deceased figure for cheap political gain.


John W. Dean, a FindLaw columnist, is a former counsel to the president.

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