Actress Olivia DeHavilland — a woman as famous for her decades-long bitter feud with her own sister Joan Fontaine as much as for her award-winning roles in films such as Gone with the Wind — has lost the cockamamie SLAPP-style lawsuit that she filed last year against Hollywood producer Ryan Murphy and the FX Network for airing the 2017 limited-run series Feud: Bette and Joan (which featured a depiction of DeHavilland and her historical involvement in the conflict between actresses Bette Davis and Joan Crawford during and after the production of their surprise hit movie Whatever Happened to Baby Jane?).
I view DeHavilland’s litigation as being similar to a SLAPP (strategic litigation against public participation) because what she did seems very much like public officials who sue reporters or watchdog groups because they want to discourage reporting on their actions or involvement in events that are of interest to the public. SLAPPs are intended to have a chilling effect on either activism or reporting (or both) and to make people afraid to write about someone (or some group…or some issue in the news). SLAPPs are about control and silencing criticism in a country where free speech is supposed to trump all.
DeHavilland’s lawsuit was chucked out of court by a three-judge appeals panel in California, with one of the judges making the point that no one has a right to control the writing of history. Justice Anne Egerton opined that “Whether a person portrayed in one of these expressive works is a world-renowned film star — ‘a living legend’ — or a person no one knows, she or he does not own history…Nor does she or he have the legal right to control, dictate, approve, disapprove, or veto the creator’s portrayal of actual people.”
This dismissal of DeHavilland’s SLAPP-style litigation is important for critics of government and watchdog groups because it’s certain, that if DeHavilland had prevailed, many public figures would certainly have taken similar action against reporters, historians, and other writers who create expressive works documenting events that involved people of interest to the public. It is common for “based on actual events” stories to be written, which are set during a particular moment of history but take some creative liberties for narrative effect…such as writing a dialogue between characters when no transcripts of what was actually said are available. Any film or other creative work featuring real-life figures from history, be they political figures like Abraham Lincoln or John F. Kennedy or people of public interest such as O.J. Simpson or Olivia DeHavilland or even the person who invented Post-It notes, has to take some creative license to tell its story.
DeHavilland’s lawsuit vaingloriously nitpicked Murphy’s Feud series, scouring episodes for minuscule bits to be indignant about, including petty allegations that she didn’t really call her sister Joan Fontaine “a bitch” (in those exact words) or make a joke about Frank Sinatra’s drinking. DeHavilland asserted a belief that Murphy and the FX Network should have been required to consult with her and gain her approval before they could depict her in their series, despite it being a well-documented historical fact that DeHavilland had inserted herself in the events covered in the series through not only her friendships with several key players but in also choosing to take over Joan Crawford’s role in the movie Hush, Hush Sweet Charlotte (which co-starred DeHavilland’s good friend Bette Davis in her follow-up to Baby Jane) after Crawford abruptly left the picture. Murphy and the FX Network had no duty to omit DeHavilland from their telling of the story they chose to tell just because DeHavilland didn’t want her involvement or behavior written about in this production. Omitting DeHavilland would have been impossible since she was involved in the events that Murphy and the FX Network wanted to depict.
The parallels to public officials not wanting to be included in the writing of stories about events those public officials were involved in is obvious. Few public officials ever want to hear anything but unadulterated praise; anything critical of a public official is something that public official would love to SLAPP away. But this is not how America works.
As a First Amendment issue, DeHavilland’s defeat is important because it re-affirms the constitutional free speech right for anyone to create an expressive work recounting a story involving public figures without needing the prior permission or approval of said public figures. This was an appeals court decision because Murphy and the FX Network had first asked the trial court to dismiss DeHavilland’s lawsuit but that lower court wrongly allowed her lawsuit to proceed; the defendants promptly then appealed that decision and the higher appeals court rightfully dismissed this SLAPP-style suit.
The lower trial court had at first argued, in allowing DeHavilland’s suit to proceed and denying the defendants’ motion to dismiss, that Feud was not “transformative enough” of a work because it strived to accurately recount the historical events surrounding the production, release, and aftermath of the Baby Jane movie. If allowed to stand, that sort of “not transformative enough” reasoning would make any book, movie, TV show, or other production that included portrayals of real people actionable and would in fact punish creators who strived for accuracy in their productions (since the more accuracy involved in a work than the less “transformative” the work would be and thus the more it would open the creators up to lawsuits). The appeals court disagreed with this flawed logic because the First Amendment does not mandate any level of “accuracy” that would determine whether a creative work is protected free speech or not. The appeals court also made a point to affirm that a person doesn’t even need to be a public figure to be written about in a work depicting historical events; so in addition to public officials involved in a story that a creator wants to tell, people “no one knows” also can be depicted without their permission or approval if the creator chooses to include them in the work as well.