A California appellate court yesterday dismissed a defamation lawsuit brought Dame Olivia de Havilland against FX Networks. De Havilland, now 101, is one of the last surviving—and lucid—members of Golden Age Hollywood royalty. Those who are culturally literate know her as Melanie Wilkes, Scarlet’s angelic sister-in-law, in “Gone With The Wind,” Maid Marion in MGM’s definitive “Robin Hood” with Errol Flynn (de Havilland’s most frequent leading man),  my personal favorite, poor Bette Davis’s evil tormentor in “Hush, Hush, Sweet Charlotte,”  and many other roles in an epic career that won her two Academy Awards. (If you don’t know her, get cracking! What’s the matter with you?)

De Havilland had  sued for damages, claiming her portrayal in the Ryan Murphy-produced 2017 docuseries, “Feud: Bette and Joan” about the feud between Davis and Joan Crawford, misappropriated de Havilland carefully nurtured image without her consent, and harmed her reputation by portraying her inaccurately, especially a scene where she is shown referring to her sister, actress Joan Fontaine (“Rebecca,” “Jane Eyre,” “Suspicion”—What is the matter with you?), as a “bitch.”

“When ‘Feud’ was first being publicized, but before it went on the air, I was interested to see how it would portray my dear friend Bette Davis,” de Havilland wrote the New York Times, explaining the suit. “Then friends and family started getting in touch with me, informing me that my identity was actually being represented on the program. No one from Fox had contacted me about this to ask my permission, to request my input, or to see how I felt about it. When I then learned that the Olivia de Havilland character called my sister Joan ‘a bitch’ and gossiped about Bette Davis and Joan Crawford’s personal and private relationship, I was deeply offended.”

“Feud,” she said, represented itself as historically accurate fiction, but falsely portrayed her as a hypocrite “with a public image of being a lady and a private one as a vulgarity-using gossip,” undermining what de Havilland  described as a hard-earned reputation for “honesty, integrity and good manners.”

“A large part of the reason I decided to move forward with my action against Fox is that I realize that at this stage of my life and career I am in a unique position to stand up and speak truth to power — an action that would be very difficult for a young actor to undertake,” she wrote. “I believe in the right to free speech, but it certainly must not be abused by using it to protect published falsehoods or to improperly benefit from the use of someone’s name and reputation without their consent. Fox crossed both of these lines with ‘Feud,’ and if it is allowed to do this without any consequences, then the use of lies about well-known public figures masquerading as the truth will become more and more common. This is not moral and it should not be permitted.”

I agree with her, as discussed here in past posts about misrepresentations of historical figures in “The Crown,“ “The Affair.” “Selma,”“Lincoln,” “Assassins,”  “13 Hours,” and “Titanic,.” There are probably more: this topic drives me crazy. As our rising generations become more ignorant and uninterested in history, these misrepresentations of important and heroic figures scar the culture. Olivia de Havilland’s  reputation is the least of the casualties, but it is justifiably important to her.

Of course she lost the lawsuit, and the reasons were the First Amendment, and “Everybody does it.”

“Books, films, plays and television shows often portray real people,” the court decision reads. “Some are famous and some are just ordinary folks. 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.”

“The reversal is a victory for the creative community, and the First Amendment,” Murphy said in a statement to Variety. “Today’s victory gives all creators the breathing room necessary to continue to tell important historical stories inspired by true events. Most of all, it’s a great day for artistic expression and a reminder of how precious our freedom remains.”

Yes, I agree with that too. Our rights have to be broad enough and interpreted with enough range to be abused. Once again Clarence Darrow’s conservation that “In order to have enough liberty, we must have too much” is instructive. That doesn’t mean it is responsible or ethical to abuse them, however, especially when a living legend’s reputation is smeared in the service of “artistic license.”