In the aftermath of the assassination of Charlie Kirk, there has been a lot of speculation as to why the shooter did it. Moreover, there has been a push by the authoritarian portion of society, to try and paint Charlie Kirk as some kind of new martyr for their cause.
In the push to seemingly canonise Charlie Kirk, what has been lost is any kind of honest account of what he said. It is not difficult to find recordings from his podcast in which he was openly racist and repeatedly indecent in his comments. However, journalists and other people in the media who have not toed the line but have had the audacity to telling the truth about his life and about what he said, have lost their jobs for telling the truth.
One of the repeated calls in the weaponsation of this new orthodoxy, is for the Estate of Charlie Kirk to sue people for defamation. Here's the thing that people miss though.
It is literally impossible to defame the dead.
You can tell all kinds of lies about a dead person. You can invent utter fantasies and fabrications. What you can not do, is defame the dead.
Why? Because although defamation is the publication of untrue statements or material that harms a person's reputation, it is the reputational harm which causes ongoing harm, usually by means of monetary value.
Even though a statement might take the form of spoken words, written content, images, or even gestures, and be materially untrue, a dead person can not make any money nor can they suffer a loss of income; not can they actually suffer any reputational harm which is ongoing.
One of the favourite dog whistles among the authoritarian crowd of which Charlie Kirk was a part, is that "facts don't care about your feelings". One of the facts of note when it comes to defamation claims is that dead people can feel no shame or humiliation; nor is it possible for them to do so.
In order to succeed in a defamation claim where I live in Australia, the plaintiff must prove the statement was published, identified them, was defamatory, and caused serious harm to their reputation. All of these elements must be present.
- the statement must be communicated to at least one other person.
- the statement must refer to the plaintiff.
- th plaintiff must prove the publication caused, or was likely to cause, serious harm to their reputation.
Here's where that last point falls down and must always fall down in relation to a dead people.
Someone's Estate is NOT the plaintiff. I know that upon hearing that this sounds immediately obvious but sometimes the most obvious things need to be said to make the point.
Not only is someone's Estate not the Person, but an Estate is also not a Person. An Estate at law, is in fact a Trust and therefore not covered by personhood either as an Individual or a Company.
At Common Law dead people have no rights and a person's reputation cannot be violated if they are no longer alive. Only a living person can bring a legal action for defamation. As dead people have no rights at law, the right to sue is also extinguished upon their death. Even if a living person brings a legal action for defamation, that action ends when they die.
You can say what you like about any dead person. You can tell all kinds of lies, make up the most outlandish and outrageous and even scandalous garbage and nonsense that you like, and there ain't a thing that the dead person or their estate can do about it. Reputation and fame and defamation belongs to the realm of the living; which means that the weaponsation of this new orthodoxy is also done by the living, not on behalf of the dead but on behalf of themselves.
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