UPDATED, 12:42 PM: Olivia de Havilland is hitting back at FX’s attempts to keep the Gone with the Wind actress’ lawsuit over her depiction in Feud: Bette and Joan from being heard before the Supreme Court.
“In its Opposition, FX claims that Miss de Havilland’s case is not ‘cert-worthy,’” her lawyer Suzelle Smith said. “This is another way of saying FX does not want the U.S. Supreme Court to take a good look at the Court of Appeal Opinion, written by a state justice with an extremist view that the First Amendment should protect knowing falsehoods about living persons in profitable docudramas. Like the Colorado baker whose First Amendment rights allowed him to refuse to design a cake that expressed a message he did not believe, Miss de Havilland has a right to prevent false words being put into her mouth in a docudrama, just as with any other form of publication. Miss de Havilland’s First Amendment rights to control her own expression must be balanced against FX’s rights, and the California Court ignored her rights entirely. As the guardian of the First Amendment, the U.S. Supreme Court should review this important case.”
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The high court is expected to consider FX’s petition on January 4.
PREVIOUSLY, November 13: FX Networks and Olivia de Havilland’s battle over her depiction in Feud: Bette and Joan has been grinding through the courts for nearly a year and a half, and now the cabler is trying to keep her from taking her case to Washington, D.C.
FX today filed a writ of certiorari asking the U.S. Supreme Court not to hear her case, which was rejected by California’s high court in July after it had been dismissed by an appellate court a few months before.
“The Petition’s central argument is that the California Court of Appeal adopted a sweeping rule that ‘the First Amendment grants absolute protection for knowing or recklessly published false statements in a docudrama format,” today’s FX filing asserts (read it here). “The court of appeal did no such thing. Instead, the court correctly applied well-settled law and concluded, based on the particular facts before it, that Petitioner had no probability of establishing the requisite elements of her false-light and right-of-publicity claims. [The Supreme] Court need not and—at least as to the false-light claim— cannot review these factbound dismissals, neither of which conflicts with any decision of this Court or any other. The Petition should be denied.”
Deadline has reached out to de Havilland’s attorneys for comment but has yet to hear back.
The Gone with the Wind actress asserts that FX, Murphy and Fox 21 TV never obtained nor even sought her permission to depict her or use her name in Feud: Bette & Joan, their eight-episode series about Joan Crawford and Bette Davis that aired last year. Among other issues, de Havilland’s lawsuit specifically targets the alleged backstage drama involving her depicted in Feud‘s “And the Winner Is …” episode about the 1963 Oscars.
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