I read John Dean's Commentary on FindLaw.com (as well as watching him on MSNBC), and I regard his opinions to be sound, well-informed, and entirely consistent with my way of looking at things. Recently, though, he expressed an idea that got me wondering. He proposed broadening the tort of defamation to include unjustified attacks on the reputations of deceased persons, mentioning Michael Jackson in particular, suggesting that Jackson's heirs or legal estate might have a cause of action, either because calumny wantonly heaped on their decedent's name might diminish the value of the estate, and therefor damage their legacies, or cause them psychic harm. Bad idea, and for any number of reasons.

• Reputations are personal, and while they continue after the individual's death, they exist only in minds and memories of others. Disparaging a dead person causes no harm to the deceased. He or she has no sense of having been wronged, at least in this world, and whatever anguish others may suffer is vicarious. Having one's pride and self-image diminished upon hearing an ancestor denounced as a scoundrel ordinarily has no effect on the injured party, except as it may diminish bragging rights.
• Even if we were to concede some grievances might be legitimate, who gets to sue? Parents?, probably, but not in every case; siblings?, likewise; spouses?, maybe; cousins? Close associates? You get the picture. To protect the reputations of the dead, we would have to censor the thoughts and words of the living, so that the memories of those who are invested with remembering the decedent fondly, can continue to do so untroubled by dissenting opinion. This propels egoism to new heights, and I doubt that it would ever succeed in practice.
• As for the value of the estate that emerges at death, what sort of commercial interests would be permitted to claim injury to their bottom line? Is the right to preserve one's good name after death to be a transferrable right, such as an option to buy stock at a particular price? Is it akin to the sale of a business' good will? In commercial law, the right to exploit a brand name does not bring with it a right to prevent others from damaging that marketing image, by alleging vicarious injury to the reputation of a deceased individual whose name and image inspired the trademark. Even for the most fervent intellectual property lawyers, this would be a huge stretch. Even if the estate has no suffered monetary injury, a cause of action for punitive damages may lie, as was in the famous case brought by Attorney Louis Nizer on behalf of 1950s radio personality John Henry Faulk against conservative radio commentator Westbrook Pegler.
• The fact that many of the most prominent reputations belonged to people who were or would have been public figures within their own lifetimes, puts another obsticle in the path of those who would argue for this proposition. One has to prove actual malice, which is either intentional injury without justification, or a reckless disregard for the truthfulness of the statement. What happens to the reputations of people whose private lives become intertwined with public events after their death? Is a biographer to be censored because either a major or minor character in his story is reported to have behaved badly at some time in the narrative? And who gets to claim injury?

I can't think of any good reason to allow this idea to go forward.