By Bill Donahue
(Law360)
Actress Olivia de Havilland is asking the U.S. Supreme Court to revive a lawsuit she filed over the way she was portrayed in the FX docudrama "Feud: Bette and Joan," pressing the justices to reject an “absolutist view of the First Amendment.”
In a Friday petition to the high court, de Havilland warned that a California appellate court ruling that rejected her case against FX threatened to create “an absolute First Amendment immunity for docudramas,” even if they publicize “known falsehoods.”
“The First Amendment does not protect knowing or reckless publication of a falsehood, even if such falsehoods are artfully constructed and entertaining,” de Havilland wrote. “This basic principle of First Amendment jurisprudence is currently under attack from powerful media forces because sensationalist lies are more popular, and hence more profitable, than reality, which is often relatively dull.”
The 102-year-old actress sued last year over “Feud,” which told the story of the infamous Hollywood rivalry between Bette Davis and Joan Crawford, accusing the network of both violating her right of publicity by including her in the story and casting her in a false light by taking artistic liberties.
Among other allegedly false aspects of "Feud," de Havilland said the show created "a public impression that she was a hypocrite, selling gossip in order to promote herself at the Academy Awards, criticizing fellow actors, using vulgarity and cheap language with others."
The case has drawn attention in entertainment law circles, particularly since a September 2017 ruling in which a state judge refused to dismiss it under California's so-called anti-SLAPP law — a statute designed to quickly end cases that threaten free speech.
The kind of claims de Havilland was making are usually quickly tossed as barred by the First Amendment; a decision allowing the case to move forward, on the other hand, raised alarm bells.
In March, a state appellate court overturned the ruling, offering a full-throated rejection of the trial court decision and emphatically ruling the First Amendment gives authors broad leeway to use real people in their creations, both in purely factual and fictionalized works. The California Supreme Court refused to tackle the case in July.
On Friday, de Havilland told the justices that the ruling amounted to unprecedented special treatment for docudramas and “squarely conflicts” with the Supreme Court’s seminal free speech ruling in New York Times v. Sullivan.
“There is nothing about a docudrama or partially fictionalized historical work which does or should allow the genre to freely and without consequence mix in falsehoods in order to increase ratings or to fill gaps in the narrative with lies in order to improve profits or make it more interesting to the public, where those distortions and fabrications of the historical record cause damage to living persons,” the actress wrote Friday.
A spokesman for FX declined to comment on Tuesday.
De Havilland is represented by Suzelle M. Smith and Don Howarth of Howarth & Smith.
FX and Pacific 2.1 Entertainment are represented by Glenn D. Pomerantz and Kelly Klaus of Munger Tolles & Olson LLP.
The case is Olivia de Havilland v. FX Networks LLC et al., case number S248614, in the Supreme Court of California.