United States of Entertainment

amendment

Just an update to my previous article on 102-year-old actress Olivia de Havilland’s petition to the Supreme Court (see Speaking Truth to Power in Tinseltown): Our less-than-Supreme Court has decided it will not hear her case. This means that companies like FX Networks are permitted to transform living people in an untruthful manner in their pursuit of profit, under First Amendment freedom protection. Essentially, Miss de Havilland’s fight for her freedom from character slander is trumped by the right of the people to be entertained, and the right of corporations to profit off that entertainment.

I wonder what James Madison is thinking.

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(Tony Auth, Philadelphia Inquirer)

Speaking Truth to Power in Tinseltown

Olivia de Havilland portrait

She is 102 years old. Her first screen appearance was in 1935 in A Midsummer Night’s Dream. In 1939 she co-starred in one of the most popular films of all time, Gone with the Wind. She was romantically linked with billionaire Howard Hughes, actor Jimmy Stewart, and director John Huston. She has won two Academy Awards for Best Actress, been nominated for three other Oscars, and been awarded or nominated for multiple other acting trophies.

She changed the face of Hollywood in the mid-1940s with the De Havilland Law, which helped terminate the oppressive “studio system” by freeing artists from tyrannical labor contracts.

She was made a Dame by Queen Elizabeth II. She received the highest order of merit in France, the Légion d’Honneur, from Nicolas Sarkozy. She was awarded the National Medal of Arts by George W. Bush. Since 1956, she has lived in the same three-story house in Paris.

Olivia de Havilland is the last surviving actor of 1930s Hollywood, and one of the last of its Golden Age. She’s also the last person one would think would be compelled to file another lawsuit, this one an appeal to the United States Supreme Court. But in these surreal days of infantile tweets by U.S. presidents, when up is down and down is up…anything is possible.

***

In 2017, a mini-series called Feud: Bette and Joan came out on FX Networks. It concerns actress Bette Davis, who was supposedly very feisty, and actress Joan Crawford, supposedly extremely vain (even for Hollywood). The two notoriously clashed during and after the 1962 production of the macabre film Whatever Happened to Baby Jane? The recent Feud stars Susan Sarandon as Davis, and Jessica Lange as Crawford.

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Movie still from Baby Jane.  Crawford is on left, Davis is on right.

Olivia de Havilland knew and worked with both Davis and Crawford. Her character, portrayed by Catherine Zeta-Jones, narrates Feud. However, de Havilland was never consulted before or during the making of the series.  

I have not seen Feud, so I can’t comment on its artistic merits. But judging from the subject matter, it sounds not unlike most of the glossy soap-opera trash that Hollywood often promotes as serious “drama” today. (According to de Havilland’s 112-page petition, the mini-series is devoted to “the theme of women actors cat-fighting, using vulgar language, and backstabbing one another.”)

Miss de Havilland’s lawsuit argues that Feud and executive producer Ryan Murphy (previous credit: The People v. O.J. Simpson), take considerable liberties with the truth, to put it politely. But this isn’t unusual in Hollywood (or anywhere else, for that matter). Ever since D.W. Griffith’s Birth of a Nation in 1915, which depicts the Ku Klux Klan as heroic, historical truth has been a malleable commodity in moving pictures. Usually, the factual acrobatics are for artistic and commercial benefit. Sometimes there’s a political or social agenda involved, as with Griffith’s film.

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Davis and de Havilland during the Baby Jane follow-up, Hush…Hush, Sweet Charlotte (1964). De Havilland replaced Crawford early on. (Joe Farrington/NY Daily News Archive/Getty Images)

But sometimes these artistic liberties cross a threshold and create false impressions that have a deleterious effect on peoples’ character. Such is the claim of Miss de Havilland and her legal team.

Specifically, and related directly to her, de Havilland objects to a scene where she refers to her late sister, actress Joan Fontaine (with whom de Havilland had a cold relationship), as a “bitch.” She also objects to a scene where she makes snide remarks about Frank Sinatra’s alcohol use. The fact that Feud is presented as semi-documentary lends additional weight to de Havilland’s grievance.

Now, these Tinseltown skirmishes may seem petty and inconsequential to most of us. We’ve been raised in an age of constant media diversion, where fact and fantasy often coexist and overlap, and where manners are seemingly…well… “gone with the wind.” We live in a much cruder time. But Olivia de Havilland is from an earlier era. A time when unwritten codes of conduct were adhered to, and not everything—whether fact or fantasy—was splashed onto a screen. Freedom of speech and artistic license are one thing. But libeling someone in the name of art is another.

“Tens of millions of people* viewed “Feud,” and for a new generation, most likely all they know of Petitioner is found in the unauthorized lies and mischaracterization of her life, her work, and her nature as put forward in that series…This false portrayal has damaged Petitioner’s reputation.” (from Petition for a Writ of Certiorari, Oliva de Havilland, DBE, Petitioner v. FX Networks, LLC and Pacific 2.1 Entertainment Group, Inc.).

The Supreme Court appeal was filed in September. It follows an original petition in March 2017, which was struck down by two appeals courts, including the California Supreme Court. In both cases, Murphy and FX Networks successfully used the First Amendment to the U.S. Constitution to justify their “artistic license” to reputedly stretch the truth and stain the character of both living and dead persons.

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De Havilland, circa 1940 (Photofest)

In earlier essays, longitudes has touched on issues related to the First Amendment, which protects Americans’ freedom of speech, religion, press, and right to peaceably assemble. Television stars and their supporters have flaunted the Constitution to defend the right to employment after employer termination for vulgar, bigoted remarks (Duck Dynasty vs. U.S. Constitution). Armed political activists have clumsily brandished the Constitution while illegally occupying federal land (This Land is Your Land: Domestic Terrorism in Oregon).

We’ve also seen the U.S. Supreme Court misinterpret the First Amendment in order to protect corporations and enable them to donate unlimited amounts of money to the political candidates they hope will serve their purposes (Citizens United v. FEC).

Longitudes is an enthusiastic fan of Olivia de Havilland. Anyone who has seen either The Heiress or The Snake Pit is aware of her immense talent, not to mention her beauty. But that’s not why this blog supports her in her campaign for truth and decency. It’s because the First Amendment was not intended by the Founders to protect businesses like FX Networks from fictionalizing, in a negative manner, the words and actions of people in the pursuit of commerce, and in the guise of “art.”

Unfortunately, judging from certain recent court decisions where the First Amendment is involved, and the unprecedented clout of U.S. industry today, longitudes doesn’t hold out much hope for Miss de Havilland.

Then again—like a rubber ball bouncing between walls in a closed room—American laws have never been fixed, and their trajectories are purely determined by whomever is doing the bouncing at any given time.

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Promo card of de Havilland in play Alice in Wonderland, 1933.

* Variety magazine reported that 5.1 million people total watched Feud when first broadcast.

(Header photo: Laura Stevens, Variety)