A petition that could forever impact biopics and docudramas: What does "actual malice" mean when the genre is by definition untrue?

For more than a half a century, journalists have been given leeway when it comes to reporting about prominent individuals and institutions. Ever since the 1964 Supreme Court decision in New York Times Co. v. Sullivan, public figures must demonstrate actual malice in order to prevail in a defamation case. That means knowledge of falsity or reckless disregard of the truth. But what about those who make movies and television shows that are based on real life but use imaginative flourishes? Should the makers of biopics be held to the same standard?

Soon to put that question to the U.S. Supreme Court is 102-year-old actress Olivia de Havilland, whose attorney tells The Hollywood Reporter that a petition for writ will be filed in September.

De Havilland is a legend in Hollywood, not only because of starring in films like Gone With the Wind and The Adventures of Robin Hood, but also because of her legal exploits. Many decades ago, she helped bring down the old studio system in Hollywood with a ground-breaking case about her contract with Warner Bros. In 1944, a California appeals court freed her under a state statute that limits personal service contracts to seven years.

Now, she's eyeing First Amendment standards after being dismayed by Ryan Murphy's FX series, Feud: Bette and Joan, which she contends falsely portrayed her in a role played by Catherine Zeta-Jones as a vulgar hypocrite and gossip.

De Havilland sued in June 2017 with claims of infringement of common law right of publicity, false light and unjust enrichment. And for a moment, it appeared as if she would get a swift trial. Last September, a Los Angeles Superior Court rejected FX's bid to stop the lawsuit on free speech grounds. At the time, Judge Holly Kendig ruled that although the case arose from First Amendment activity, she was likely to prevail. In particular, in examining the false light claim (a hybrid of defamation and privacy intrusion), the judge suggested that because de Havilland was alive, the network could have gone to her to answer questions. Wasn't that reckless disregard for truth?

A California appeals court reversed with a different formulation.

"When the expressive work at issue is fiction, or a combination of fact and fiction, the 'actual malice' analysis takes on a further wrinkle," wrote the California appellate panel. "De Havilland argues that, because she did not grant an interview at the 1978 Academy Awards or make the 'bitch sister' or 'Sinatra drank the alcohol' remarks to Bette Davis, Feud’s creators acted with actual malice. But fiction is by definition untrue. It is imagined, made-up. Put more starkly, it is false. Publishing a fictitious work about a real person cannot mean the author, by virtue of writing fiction, has acted with actual malice."

The appeals court continues, "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 appeals court concluded that Zeta-Jones' portrayal wasn't highly offensive to a reasonable person, and that even if it were, de Havilland hadn't demonstrated that she can prove actual malice under this standard.

Of course, the decision had other notable bits, including its discussion of the tension between an individual's publicity rights and free speech — and whether use of a famous person's likeness in an expressive work can be transformative.

While many are eager for the Supreme Court to tackle its second publicity rights case — adding to the scripture of Zacchini v. Scripps-Howard Broadcasting — the false light claim is probably the wisest course to test before the high court. Suzelle Smith at Howarth & Smith, who represents de Havilland, says, "The issue for the SCOTUS is whether or not the First Amendment creates an absolute immunity from suit for publishers of docudramas or whether that format like all others is governed by the actual malice of New York Times v Sullivan."

If the Supreme Court does take up the case, and the justices only select a very few, this one would surely impact the future of the docudrama genre.

The petition notably comes just as Viacom gets ready to go to trial in September for alleged defamation over the VH-1 docudrama CrazySexyCool. That $40 million case concerns Perri "Pebbles" Reid, the former manager of the 1990s R&B group who is upset about being depicted in scenes, among others, pressuring the group to sign contracts without providing its members time to read the agreements.

A Georgia judge rejected Viacom's summary judgment motion in September 2016, and then rather significantly, denied a bid for reconsideration the following year. Why it's important is that Viacom made the argument that the judge had erred on his analysis of actual malice. In response, the judge said he wouldn't permit any rule "requiring a subjective showing of actual doubt."

In other words, de Havilland might be able to use the decision in the Reid case to show that courts around the nation have come to different interpretations when analyzing actual malice in the context of docudramas. Circuit splits are one of the biggest factors in determining whether the Supreme Court grants review. De Havilland's petition is also likely to attract amicus briefs from others in entertainment, media and tech. De Havilland's latest act just might be her biggest one yet.