Olivia de Havilland Takes FX 'Feud' to California Supreme Court

Olivia de Havilland and Catherina Zeta Jones Feud Still - Split - Photofest - H 2017
Left, Photofest; Right, courtesy of FX

Olivia de Havilland's legal loss to FX and Ryan Murphy was celebrated as a win by docudrama creators, but attorneys for the actress say the decision effectively kills the right to a jury trial in defamation cases.

The actress sued last year, claiming the series Feud: Bette and Joan inaccurately portrayed her as a vulgar gossip in violation of her privacy and publicity rights. 

The network and Murphy asked the court to toss the case under California's anti-SLAPP statute, which brings an early end to frivolous lawsuits arising from protected conduct like free speech. Judge Holly Kending found that, while Feud was clearly protected speech, de Havilland demonstrated a minimal probability of prevailing on her claims and allowed the suit to proceed.

That ruling was overturned by a California appeals court in March, after oral arguments that largely focused on whether Catherine Zeta-Jones' portrayal was a positive one and if "bitch" is still considered a highly offensive term. De Havilland's lawyer Suzelle Smith characterized the decision as "pro-industry" and said it was "clearly written before the hearing."

In a petition for review filed Friday, Smith asks the state's high court to evaluate whether the appellate ruling renders the anti-SLAPP statute unconstitutional and if the use of a living celebrity's name and likeness in a realistic portrayal can possibly be considered "transformative" under the law. 

"The de Havilland case is being closely followed," writes Smith. "It is the textbook vehicle for this Court to address these issues of statutory and constitutional significance, including the 'inviolate' right to civil jury trial on issues of fact under California’s Constitution, and the vitality of the right of publicity and defamation causes of action, when plaintiff offers admissible evidence, both percipient and expert, that defendants knowingly or recklessly made false statements and misappropriated her literal identity, damaging her professional reputation and profiting themselves."

Smith notes the court has not yet addressed publicity and false light claims in connection to anti-SLAPP procedures and says it should do so.

"California’s anti-SLAPP statute involves several issues of constitutional significance, including the right to free speech, the right to petition, and the right to jury trial, which must be carefully balanced in applying the statute," she writes. "Otherwise, the statute can be used to undermine rather than protect constitutional rights."

The 2nd District's finding that de Havilland was obligated to present "credible evidence" was incorrect, Smith argues, and so was its opinion that the actress must prove knowing and reckless falsehood by direct, rather than circumstantial, evidence.

"It is the role of the jury, not the Court, to determine the credibility of admissible direct and circumstantial evidence produced by a plaintiff," Smith writes. "The Opinion arrogates to the court the right to judge credibility, an unconstitutional extension of the statute."

Smith also claims the opinion effectively eliminates jury trials in defamation cases. 

"The Opinion, if left to stand, would extend constitutional protection to any knowingly false statements as long as the defendant produces a self-serving declaration claiming they were made in good faith," she writes. "Such a result would effectively abolish virtually all claims of defamation and false light."

Kelly Klaus, attorney for FX and Murphy, has not yet commented on the petition, which is posted in full below.