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Imagine a situation where Mr. A knows that Mr. Z did something bad. Let's say Mr. Z robbed a bank.

However, Mr. A is afraid to say anything, because he doesn't have proof that Mr. Z robbed a bank - even though Mr. A saw him do it.

Now suppose Mr. Z passes away. Is Mr. A now free to claim that Mr. Z was a bank robber, or could he still be sued for libel by relatives, friends or business associates?

Suppose Mr. A got carried away and began making up even more disturbing stories about Mr. Z. Could he be prosecuted for "trash talking" someone who's no longer living?

Let me merge those two questions into one:

Does the law limit what people can say about deceased people?

I'm asking about laws in the U.S.

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No. Spoken defamation about a person is slander; written defamation would be libel. In either case, the defamation is a tort against a living person, with the remedy pursued by the allegedly harmed person in civil court. If a person is dead, courts have held that he or she has no reputation to harm -- and no ability to sue you for damage.

Despite another answer's reference to the Texas statute, this review of the topic suggests that only Rhode Island's statute stands, and only applies to obituaries printed within three months of the death.

Other aspects of defamation still apply; truth is an absolute defense to claims of defamation, (the disputing of which may allow the defense to disclose details about the supposedly defamed person in court). And there is a greater leeway for commentary about public figures.

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  • I should have used the word "defamation" rather than libel. I meant to inquire about any kind of defamation, including both speech and writing. Thx. – David Blomstrom May 24 '18 at 23:21
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    Even a famous person, say, whose posthumous affairs are in the interest of an actively maintained estate? Let's say Michael Jackson, for example. I suspect the estate, who maintain a financial interest in the artist's legacy, could take some action against public defamation, no? – J... May 24 '18 at 23:49
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    @J - Good question. It would be interesting to review some actual cases of defamation of the deceased. However, it's probably a very rare thing. – David Blomstrom May 25 '18 at 0:46
  • @J... I've seen reference to such cases, but I think they have to be constructed around around a clearer definition of harm to the estate. One challenge to that is that a prominent artist whose legacy is worth defending would also be a more public figure; i.e., what sort of untrue things would you have to believably say about Michael Jackson that would impact the value of his image to his adoring fans and potential fans (and the value of his image to the holders of his estate)? – jeffronicus May 25 '18 at 3:22
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    @pipe Not really relevant - it was just an example. Pick whatever you want - the Tolkien estate, if you'd rather. – J... May 25 '18 at 15:58
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In most cases you can't defame the dead, but there are exceptions.

In Rhode Island, there's a law about libeling the dead in their obituary:

Whenever a deceased person shall have been slandered or libelled in an obituary or similar account in any newspaper or on any radio or television station within three (3) months of his or her date of death, and the account would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect to the libel, the person who or corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person.

In Texas, there's also a law about libeling the dead:

A libel is a defamation expressed in written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury.

It's possible that something you say about a dead person could affect the reputation of someone else who is still living. And of course it's possible that something you say about a dead person could have other effects in unrelated areas of law ("Your father died while robbing a bank, and our insurance therefore won't issue a payout for his death") but that might be outside the intended scope of the question.

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As always, the answer depends on jurisdiction. A cause of action for libeling a dead person existed under Roman law, and -- as far as I know -- still exists in France, parts of Canada, Germany, and maybe Louisiana.

Under the Anglo-Saxon system, the rule is the opposite. From Hughes v. New England Newspaper Pub. Co., 312 Mass. 178, 179, 43 N.E.2d 657, 658 (1942):

The general rule is that a libel upon the memory of a deceased person that does not directly cast any personal reflection upon his relatives does not give them any right of action.

This specific language has been adopted by many jurisdictions around the country.

There are, however, several states that have adopted criminal statutes against libeling the dead, but I don't know how many remain on the books. Georgia's was struck down as unconstitutional, but for a different reason.

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At common law, you cannot defame a dead person.

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    With, of course, the caveat that common law can be overridden by statutes. – D M May 24 '18 at 21:52
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Defamation law explains that false and defamatory statements tend to deter others from associating with the defamed person. Since others can no longer associate with a deceased person anyway, defamatory falsehoods cannot possibly lead or contribute to that deterrence.

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