On Tuesday, FX Networks filed a brief in opposition to Olivia de Havilland’s petition for writ of certiorari, asking the Supreme Court not to hear de Havilland’s case after her petition for review was rejected by the California Supreme Court on July 11.

The initial lawsuit began on June 30, 2017 when de Havilland filed suit in California state court in response to FX Network’s hit series Feud: Bette and Joan, which traced the historic rivalry between Bette Davis and Joan Crawford as they filmed What Ever Happened to Baby Jane?. de Havilland asserted two separate claims — that she was being portrayed in a false-light and that FX was violating California’s right of publicity — in response to Catherine Zeta-Jones’ portrayal of her, allegedly without her permission. de Havilland cited a specific scene where she was portrayed calling her sister a “bitch,” arguing that the scene was defamatory. In a public statement, de Havilland’s attorney, Suzelle Smith, said: “A living celebrity has the right to protect her name and identity from unauthorized, false, commercial exploitation.”

In response, FX Networks filed a motion to strike the initial complaint under California’s anti-SLAPP statute, a procedural way for defendants to dismiss lawsuits brought “to chill the valid exercise of a party’s constitutional right of … free speech.” The trial court denied FX Network’s motion, holding that de Havilland had established a sufficient probability of prevailing on the merits of her suit and therefore, that the case should go to trial.

FX Networks appealed the trial court’s denial of their anti-SLAPP motion immediately and California’s Court of Appeals unanimously reversed the trial court’s decision under both California law and the First Amendment. In response to de Havilland’s false-light claim, the court of appeals argued that given that Feudwas a “docudrama,” no “reasonable viewer would interpret Feud… as entirely factual.” Even if they did, Feud’s depiction of de Havilland was not sufficiently offensive to be defamatory. Moreover, the “bitch” remarks were not actionable because they were sufficiently truthful: de Havilland famously referred to her sister as a “Dragon Lady.” Under California law, the portrayal of a public figure must be taken in its entirety and when done so, Zeta-Jones’ portrayal of de Havilland was deemed “overwhelming positive.” Coupled with Feud co-creator, Ryan Murphy’s testimony that he intended Zeta Jones’ portrayal to be that of “a wise, respectful friend and counselor to Bette Davis, and a Hollywood icon with a unique past,” the court held that de Havilland’s false-light claims were insufficient.

The court also determined that de Havilland’s false-light claim would fail under the First Amendment. Because de Havilland’s false-light claim was based on defamation by implication, under the First Amendment, actual malice must be proved (see New York Times Co. v. Sullivan for more information). This means that de Havilland had to show that FX “either deliberately cast her statements in an equivocal fashion in the hopes of insinuating a defamatory import to the viewer” or that FX “knew or acted in reckless disregard of whether their words would be interpreted by the average viewer as defamatory statements of fact.” Because de Havilland could not meet her burden of proof, the court ruled in favor of FX.

In response to de Havilland’s right of publicity claim, the court held that it failed for two reasons. First, Feud’s portrayal of real-life events was protected by the First Amendment and second, that Feudwas protected by California law’s transformative defense (see Comedy III Productions, Inc. v. Gary Saderup, Inc. for more information). The court of appeals therefore, ruled in favor of FX Networks and directed the trial court to grant their motion to strike under the anti-SLAPP statute.

Now, de Havilland, the 102-year-old star of Gone with the Wind, is trying again by appealing to the Supreme Court. On one hand, de Havilland fights for “the principle of honesty;” on the other, Murphy and FX Networks fight for “the breathing room necessary to continue to tell important historical stories inspired by true events.”

Jess Hui is a Sports and Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2021).

Image: Olivia de Havilland Publicity Photo 1952, public domain