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On Thursday night, two months after Leaving Neverland premiered on HBO and chronicled alleged sex abuse by Michael Jackson, the pay TV network filed a scorching court brief that lampooned the idea that a single sentence in a 26-year-old contract — “expired and entirely unrelated” — provides any reason to trample on its First Amendment activity.
It’s axiomatic that the dead have diminished reputation rights and can’t sue for defamation, and while the administrators of the Michael Jackson Estate surely know that, they’ve cleverly dug out a 1992 deal that provided HBO the rights to once air a televised concert after the release of Jackson’s album Dangerous. That contract has secrecy and non-disparagement provisions and so it is being used as a weapon over HBO’s broadcast of Leaving Neverland. On Feb. 21, the Michael Jackson Estate sued HBO, aiming to compel arbitration on the legal claim that the network has breached contract.
Now, HBO’s legal team of Daniel Petrocelli and Theodore Boutrous Jr. have taken a swing at the arbitration demand, characterizing it as a “poorly disguised and legally barred posthumous defamation claim” deriving from ulterior motives.
“Petitioners’ effort to ‘publicly’ arbitrate these issues appears to be part of a transparent effort to bolster their publicity campaign against the documentary, but that undertaking is as poorly conceived as the claims themselves,” states the opposition to plaintiffs’ motion to compel arbitration.
Leaving Neverland premiered at the Sundance Film Festival before arriving at HBO and has quickly led to a reassessment of Michael Jackson’s legacy. The documentary focuses on the stories of Wade Robson and James Safechuck, who allege Mr. Jackson sexually abused them as children. The Michael Jackson Estate has been in court with those individuals in the past and has brandished them as liars. Before the March 3 broadcast premiere, representatives from the MJ Estate attempted to meet with HBO’s executives in an effort to head off an airing. The newest legal brief discusses a letter that painted Leaving Neverland as “propaganda” and makes the point that the Michael Jackson Estate may have raised a litany of complaints but never mentioned the old deal or brought up the prospect of arbitration in attempting to interfere with the broadcast.
HBO now argues that the legal claims are premised on an old agreement that has been fully performed by the parties and thus terminated. The defendant maintains that there is simply no language in the deal that it would be “bound for all time from doing anything that Mr. Jackson’s posthumous representatives might consider, in their subjective opinion, to be disparaging.”
Moreover, challenging the notion that HBO “agreed to submit in perpetuity to arbitration over unforeseen and unrelated claims that might be brought decades later,” the brief adds that when making this ’92 deal over a concert film, HBO could hardly have anticipated that Jackson’s successors would seek to enforce the agreement for distributing a documentary that it also contends “does not contain any confidential, non-public information that HBO learned in the performance of the 1992 Agreement.”
While questioning the continued validity of the old deal and relevancy to Leaving Neverland, HBO’s nominal goal at the moment is to avoid arbitration. The brief argues that it’s the court — not the arbitrator — who must decide the gateway issue of whether the parties agreed to arbitrate this dispute. One wrinkle in the case given that the dispute arises from enforcement of a very old agreement is the state of rules and the law back then. For instance, HBO points out that back in 1992, the American Arbitration Association didn’t reserve power to rule on its jurisdiction.
Also of interest is HBO’s argument that the Michael Jackson Estate’s interpretation of the non-disparagement clause violates constitutional rights.
“Reading perpetual life into the non-disparagement sentence to enforce it decades after the 1992 Agreement was fully performed to inhibit unrelated speech by alleged successors in interest is precisely the type of overbroad and arbitrary suppression of speech that violates HBO’s due process and First Amendment rights,” states the brief, which also paints such action as upsetting various public policies.
HBO’s lawyers evoke the recent Olivia de Havilland suit over a docudrama for the premise that storytelling about real individuals is protected speech and also contends that “enforcing the non-disparagement sentence to prevent publication of allegations of child sex abuse would run afoul of the public policy embodied in numerous California statutes to protect children from sexual abuse.”
Bryan Freedman of Freedman & Taitelman, representing the Michael Jackson Estate, responds, “Stay tuned because at least we are offering them a chance to tell their side of the story unlike they did in the creation of the one-sided fiction intended to disparage Michael Jackson… Make no mistake, HBO will be held responsible for its reprehensible conduct.”
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