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Olivia de Havilland, the 102-year-old actress known for roles in Gone With the Wind and The Adventures of Robin Hood, won’t get another crack at legal glory. On Monday, the U.S. Supreme Court rejected her petition to review the dismissal of her lawsuit brought against the makers of FX’s Feud: Bette and Joan.
De Havilland sued over the Ryan Murphy series about the lives of Bette Davis and Joan Crawford. Her objection was how Catherine Zeta-Jones’ portrayal of her made her seem like a vulgar hypocrite and gossip. De Havilland claimed the series put false words in her mouth. Specifically, her legal action asserted violation of her right of publicity and false light.
Initially, a Los Angeles judge allowed the actress to move forward toward trial, but a California appeals court reversed the decision on First Amendment grounds. Deciding that she couldn’t demonstrate a probability of prevailing on the merits of her claims, de Havilland’s complaint was stricken under California’s anti-SLAPP statute, a law designed to curtail frivolous legal actions impinging First Amendment activity.
The case then was brought to higher authorities, but neither the California Supreme Court nor the U.S. Supreme Court thought intervention was warranted.
De Havilland, who is also known in legal circles for helping bring down the old studio system by challenging her lock-up contracts with Warner Bros. in the 1940s, focused her petition to the Supreme Court on the “actual malice” standard for public figures asserting defamatory statements in biopics.
“Publishing a fictitious work about a real person cannot mean the author, by virtue of writing fiction, has acted with actual malice,” wrote the California appellate panel. “Recognizing this, in cases where the claimed highly offensive or defamatory aspect of the portrayal is implied, courts have required plaintiffs to show that the defendant ‘intended to convey the defamatory impression.’ De Havilland must demonstrate that FX either deliberately cast her statements in an equivocal fashion in the hope of insinuating a defamatory import to the reader, or that it knew or acted in reckless disregard of whether its words would be interpreted by the average reader as defamatory statements of fact.”
The California appeals court concluded that the actress couldn’t make this demonstration even upon the trial judge’s alternative conclusion that since she was alive, the makers of Feud could have asked her about inaccuracies.
De Havilland’s attorneys argued that the decision amounted to absolute immunity for docudramas by protecting knowing or recklessly false statements to the same degree as truthful or negligently false ones.
FX quibbled with that analysis and told the high court not to take up the case.
Without explanation, the Supreme Court decided to pass on a review. As a result, it appears as though de Havilland is out of options and has firmly lost her lawsuit.