Michael Brown, Privacy & The Rights Of The Dead

March 17, 2015 Picture: Neon Tommy/ Flickr.

This article is part of The Critique’s exclusive Black Lives Matter: The Problem of Race and Police Ethics.

Thomas Jefferson famously dismissed the idea that the dead have any rights [1]. Many people would disagree. If the rejection of posthumous rights means that, after a person’s death, there are no constraints on what may be done to her physical remains or her possessions, or on what may be said or written about her, then the rejection may seem counter-intuitive and offensive. But Jefferson had an argument to back up his claim. The dead, he said, “are nothing; and nothing cannot own something.” If death marks the end of the self and there is no after-life in which it continues as a soul or spirit, then the problem with posthumous rights is that there is no longer a subject to own them.

[Picture: “Thomas Jefferson Statue” on Flickr]

Following the shooting of unarmed teenager Michael Brown by police officer Darren Wilson in Ferguson, Missouri, in August 2014, many news outlets published accounts of the 18-year-old’s short life. On the day of Brown’s funeral, the New York Times printed a quasi-obituary entitled “A teenager who was grappling with problems and promise” [2]. This painted a warts-and-all portrait of a young man from a socially troubled background who occasionally used drugs and was “no angel,” but who had no criminal record, had overcome “early struggles to graduate in time,” and who “was pointed toward a trade college and a career.” Brown, it was said, could be thoughtful and philosophical, posting on his Facebook page the night before his death the proposition that “Everything happens for a reason.”

If the NYT was doing its best to present a balanced picture of Brown, a much more negative image emerged from the CCT footage released by the Ferguson Police Department shortly after the killing, that allegedly showed Brown stealing cigars from a food-store hours before his death. No compensating images were released (or perhaps available) to show Brown in a better light, leaving most of the world with the single impression of a large black man involved in criminal behaviour. To many members of the public in Ferguson and elsewhere, the release of the video was a blatant attempt at character-assassination intended, on the kindest interpretation, to deflect critical attention away from the police and, on the harshest, to justify Brown’s killing.

The Jeffersonian argument that the dead Brown has no rights not to have his life-story exposed to public view or his reputation posthumously damaged in this way would cut little ice with those who see the revelations as serving a racist agenda that seeks to portray black youth in America as a social threat that can only be contained by strong-arm police methods. According to Mervyn Marcano, writing for Al-Jazeera America, the country is happy to blacken the character of black youths “who have been shot while unarmed because it is unwilling to grant them the same humanity that it does to other citizens” [3]. (However, Marcano is hardly fair in his critical comments on the NYT article, which he calls “a disgraceful smear,” a description that ignores the several positive things it says about Brown and its evident concern to achieve a measured judgement.) It might therefore be suggested that it is the rights of black youth, or the wider black community, that are breached by slanted or partial reporting, rather than those of specific deceased victims such as Brown. Yet, intuitively, this seems inadequate: any denigration of Brown is not only offensive because it treats him in a way that no one ought to be treated but is actually exacerbated (not lessened) by the fact that he is now dead. If it is bad to kick a man when he is down, it is even worse to kick a man who can never again rise to defend himself. Yet how can we make sense of these intuitions, against Jefferson’s claim that the dead have no rights?

[Picture: “Memorial Where Michael Brown Was Shot” by Youth Radio on Flickr]

If a dead person’s reputation is attacked, or her guilty secrets are brought to light, or her wishes for the disposal of her property are ignored, this is something she is neither aware of nor pained by. But even this is a potentially confusing way of putting things, given that there is no presently existing referent for the pronoun “she.” Yet to say that she can never know anything that happens after her death is evidently not to talk nonsense. We have no problem in speaking about Michael Brown, despite his being dead. How is this? The reason is that his name (and any pronominal substitutions for it), whether used before his death or after it, refer to the living person he was before his fatal encounter with Officer Wilson. And while the dead may be nothing, the living are undeniably something.

Among normal human desires is that of standing well in others’ eyes and not having one’s reputations dragged in the mud. This desire is one whose scope, in most people’s case, extends beyond their lives. It would be odd to care about having others’ respect while one is alive but be completely indifferent to the prospect of losing it after death. Knowing one will not then be around to hear the lies spread by a malicious slanderer does not make the thought of such posthumous slander palatable. Probably the young Michael Brown never considered how others would regard him after his death. But we can guess what he would have felt if some clairvoyant had told him that he would be remembered by the world as “no angel.” No one whose psychology is remotely normal would want to be remembered that way; and it is therefore reasonable to ascribe to Brown a desire not to be remembered in such negative terms. In his case, sadly, this was a desire that was not going to be fulfilled. [4]

“It would be odd to care about having others’ respect while one is alive but be completely indifferent to the prospect of losing it after death”

It is therefore best to regard the living (rather than the dead) Michael Brown as the subject of the harm (as the subject of a desire that was not going to be fulfilled) of having his character posthumously traduced. It is a deep philosophical question why we should care about how people will think and talk about us after our deaths when we will be not merely oblivious to everything but non-existent. The best answer, though it cannot be developed in detail here, has to do with the social grounding of our sense of identity. Who we are, and who we take ourselves to be, are intimately tied up with the social contexts in which we live and to which we make a difference (e.g. our family, nationality, race, neighbourhood, church, college, baseball team). A human existence does not usually cease to resonate or be remembered the moment its subject is dead. The social gaps made by any death need to be closed but the deceased member is not soon expunged from memory. And because we see ourselves as socially embedded beings, we care about what will happen to our social groups after our death. Among the typical components of this concern is the desire to be remembered fondly and favourably not just by the surviving members of our circles but also by “outsiders” whose bad opinion of us will reflect unfavourably also on those fellow-members. Being remembered as a bad black boy is not something that Michael Brown would have wished for himself, or for the black youth of Ferguson, or for black youth in general.

[Picture: “Michael Brown’s Mother Lesley McSpadden wearing a memorial T-shirt” by Youth Radio on Flickr]

I have suggested that any harm done to a person by publishing or publicising unfavourable facts or allegations about him after his death is best viewed as being bad for the living person, whose natural desire to be remembered in a certain (favourable) way has been disappointed. Although there is no current subject after death to feel that disappointment, something has happened posthumously that is against his wishes; he has had the misfortune to be the bearer of a significant desire that was not going to be fulfilled. That this desire was significant turns on the fact that individuals care about how they shall be regarded long term, and not just within their own lifetime, by the groups with which they identify.

“Being remembered as a bad black boy is not something that Michael Brown would have wished for himself, or for the black youth of Ferguson, or for black youth in general”

But here a different kind of objection – one that is moral rather than metaphysical – might be raised. Why should it be supposed that a person has a right to have his desire for a favourable posthumous reputation respected? In Immanuel Kant’s view, there is no such right. In The Metaphysics of Morals he rejected the maxim that we should speak nothing but good of the dead (in its classic Latin formulation: de mortuis, nihil nisi bonum). According to Kant, “a well-founded accusation” is still in order even when its target is dead [5]. Someone who has acted wrongly has no right to be spared fair criticism, nor does he acquire such a right simply by dying. But Kant did not claim that there is a positive duty on the part of those who know them to reveal unflattering facts about the dead. His thought was that such facts may be revealed if they need to be (for example, in order to prevent some innocent person being wrongly accused of an offence that was committed by the deceased), not that they have to be. Nothing Kant said contradicts the view that reticence is the most gracious default policy; and he would certainly not have approved of the painting of a partial picture of a deceased subject that listed the faults but concealed the merits. This, by giving a distorted impression of the person, is tantamount to lying. As a morally defensible position (and one that Kant would presumably have endorsed) I would therefore propose the following: while the de mortuis principle is too sweeping and should be discarded, living persons can plausibly be ascribed two salient rights: a) a right not to have disgraceful or unflattering facts about themselves released after their deaths except where this serves a significant public interest (the term “significant” being meant to exclude trivial “interests” such as idle or prurient public curiosity); and b) a right, where negative information is posthumously released, to have any counterbalancing positive information, where available, published too.

These rights are rights of the living rather than the dead, notwithstanding their concern with posthumous reputation. Indeed they may be seen as special cases of more general rights which people possess to have their reputations treated respectfully at all times. However, there are three reasons why these rights deserve to be taken particularly seriously when posthumous reputations are at issue. The first is that a deceased person cannot dispute the accuracy of any charges levelled against him, although these may be malicious, exaggerated, self-defensive, confused or just plain mistaken. Michael Brown cannot give his own account of the incident in the convenience store or respond to the less flattering reports about his past; nor can he provide his own version of the encounter with Officer Wilson. Unlike a defendant in a court of law, he cannot exercise the privilege of stating the facts as he saw them. Second, and relatedly, he cannot give any explanation of his conduct, describe his motives, provide any mitigation or justification, or place his acts in a context that might promote others’ empathy or sympathy. Third (and whether or not this applies to Brown depends on the facts that are disputed), a deceased offender whose life is brought to a sudden close is prevented from making apology or amends, seeking forgiveness or displaying his future promise. Reform, recovery and reconciliation are all closed to him. He goes down in popular record as a guilty and unrepentant man. For these three reasons, it is essential for justice that rights a) and b) should be strictly observed in the case of a deceased person against whom adverse charges are laid.

[Picture: “Child in Front of Michael Brown Mural” by Youth Radio on Flickr]

There is a further reason, of a rather different kind, for taking reticence about the dead to be the decent default position. Even where the facts that one could publish about a dead person are creditable rather than otherwise, one cannot safely assume, in the absence of definite knowledge about her intentions, that she would have wished them to be made public. Possibly she would have regarded them as falling within her private sphere. People care about their privacy because self-respect requires that they are able to preserve a personal space into which no one else enters without invitation. On the whole, philosophers have demurred from Judith Jarvis Thomson’s bullish contention that rights to keep personal information private are overridden by “a more stringent right, namely the public’s right to a press which prints any and all information, personal or impersonal, which it deems newsworthy” [6]. The main trouble here is with the word “newsworthy” and the very broad interpretation given to it by most sections of the media. Readers may lap up newspaper descriptions of Michael Brown’s private life as readily as they do the accounts of his fatal confrontation with the police, but while the latter are of genuine public importance, the former are not. A liberal democracy upholds the value of free speech and a free press but it need not and should not be committed to a demolition of all barriers to media expression.

Half a century ago, the jurist William Prosser influentially argued that a person’s privacy was unreasonably and unlawfully invaded when the media, without permission, disclosed embarrassing facts about him, intruded into his private affairs, or placed him in a false light in the public eye by a partial or selective release of information [7]. Clearly, where a person is dead it is impossible to ask his permission to publish any private facts about him. Here, then, the case for reticence appears at its strongest. Yet in practise, editors and others responsible for making publishing decisions commonly follow a much more dubious maxim, taking the necessary absence of a refusal of permission from a dead person as providing carte blanche to publish whatever they like.

“A liberal democracy upholds the value of free speech and a free press but it need not and should not be committed to a demolition of all barriers to media expression”

The tragedy of Michael Brown raises many more issues than I have touched upon in this article: issues about race, youth, law and order, policing, and guns, to mention just the most important. The killing of Brown was plainly a much more serious matter than the posthumous release of unflattering accounts of him. Nevertheless this was not of negligible concern, and the negative publicity might be considered to have added insult to injury. Although it is too harsh to attribute malicious motives to all its producers, the case illustrates how careful media outlets ought to be when dealing with the dead, those eternally silent subjects who cannot answer back.

Footnotes & References

[1] Thomas Jefferson, “Letter to Samuel Kercheval” (1813). Downloaded from AmericanHistory.org.

[2] Available at: http://www.nytimes.com/2014/08/25/us/michael-brown-spent-last-weeks-grappling-with-lifes-mysteries.html?_r=0.

[3] Available at: http://america.aljazeera.com/profiles/m/mervyn-marcano.html.

[4] It might be objected that if a person never thinks about a certain prospect, then she cannot be ascribed any desires, positive or negative, regarding it. But this can be challenged. Someone may never have explicitly considered the prospect of being roasted alive, yet it is plausible to ascribe to him a desire not to be so treated. Moreover, Brown can reasonably be ascribed the normal human wish to stand well in others’ eyes – a wish that can be fulfilled or flouted in a vast variety of ways, and far more than any individual can envisage in advance.

[5] Immanuel Kant, The Metaphysics of Morals, 1991 (originally 1797), translated by Mary Gregor (Cambridge: Cambridge University Press), 111.

[6] Judith Jarvis Thomson, 1975, “The right to privacy,” Philosophy and Public Affairs, 295-314.

[7] William M Prosser, 1960, “Privacy,” California Law Review, 383-423.