It might have sounded like a bluff when Jerry West recently vowed to take his much-publicized battle with HBO “all the way to the Supreme Court.”
The basketball legend is furious about “Winning Time,” a cable series about the Lakers’ Showtime era that portrays him — in the words of his attorney — “as an out-of-control, intoxicated rage-aholic.”
Given the uphill battle that public figures must fight when suing for defamation, West’s threat of legal action against HBO could seem implausible, but legal experts aren’t so sure.
The letter that West’s lawyer delivered to the network, they say, lays the groundwork for a difficult but nonetheless viable lawsuit. And making the letter available to media may have scored a victory already.
“You’re playing two games here,” said Howard Bragman, a longtime Hollywood crisis manager. “You’re playing the court of law and the court of public opinion.”
“Winning Time” focuses on the 1980s, when the Lakers won a string of NBA championships with West in the front office and the likes of Magic Johnson and Kareem Abdul-Jabbar on the roster. The team was larger than life, an embodiment of owner Jerry Buss’ quest to marry sport with glitzy entertainment.
Critics have praised both the show and Australian actor Jason Clarke’s intense portrayal of West as a volatile man given to bursts of invective, impressive in their duration and profane inventiveness.
“The series made us all look like cartoon characters,” West told former Times sports editor Bill Dwyre. “They belittled something good. If I have to, I will take this all the way to the Supreme Court.”
The letter from attorney Skip Miller — addressed to HBO, Warner Bros. Discovery and executive producer Adam McKay — demands a retraction and an apology. It also mentions unspecified damages “for the harm you caused to [West’s] well-earned and stellar reputation.”
“You are liable for your false and mean-spirited misrepresentation,” Miller claimed. “You have committed the tort of false light invasion of privacy by creating a false impression about Mr. West that is highly offensive and injurious to his reputation.”
HBO replied a week later that it “has a long history of producing compelling content drawn from actual facts and events that are fictionalized in part for dramatic purposes. ‘Winning Time’ is not a documentary and has not been presented as such. However, the series and its depictions are based on extensive factual research and reliable sourcing, and HBO stands resolutely behind our talented creators and cast who have brought a dramatization of this epic chapter in basketball history to the screen.”
“If somebody is identified as a real person and portrayed as having certain character traits, the [audience] might assume that is so.”
— Eugene Volokh, who teaches 1st Amendment law at UCLA
To prevail in court, a public figure must do more than prove defamatory statements or portrayals are false. The plaintiff must show “actual malice,” meaning that defendants knew the statements were false or had reckless disregard for the truth.
“Since a public figure has access to the media to get his side of the story out, the law says our preference is that you take care of this through other means,” said Aaron Caplan, a Loyola Law School professor.
If West were to file a suit, experts say, he would need to persuade a jury on a series of key questions.
Did the show present his character as factual? Was that statement of fact false? Should HBO and the producers have known better? Did the show cause injury to West?
“Winning Time” begins with a disclaimer: “This series is a dramatization of certain facts and events. Some of the names have been changed and some of the events and characters have been fictionalized, modified or composited for dramatic purposes.” But that does not insulate the show from liability.
Jason Clarke plays Jerry West in the HBO series “Winning Time.”
(Warrick Page / HBO)
Viewers might be expected to understand that specific dialogue was invented, said Eugene Volokh, who teaches 1st Amendment law at UCLA, but the broader aspects of West’s character are a different issue.
“If somebody is identified as a real person and portrayed as having certain character traits, the [audience] might assume that is so,” Volokh said. “Does he throw tantrums? Does he swear a lot?”
The letter to HBO cites numerous scenes that attorney Miller claims were “made up out of whole cloth.”
In one instance, West’s character hurls an MVP trophy through an office window, something that Miller insists never happened. In another, Buss’ character looks into the camera and says: “Jerry West, head coach of the Lakers, basketball legend, considered a true gentleman of the sport to everyone who does not know him.”
The audience might believe “Winning Time” is sending a message when it “breaks the fourth wall,” speaking directly to them.
“It’s a valid argument his lawyer is making,” Caplan said. “When you have a character do that, it is like telling the viewer there’s really some truth here.”
As to “state of mind” — should producers have known that statements were false or did they have reckless disregard — a potential suit would hinge on the “factual research” cited in HBO’s response.
“They might say, here are the interviews we did … we trusted our sources,” Volokh said. “That might be enough to get them off the hook.”
Miller argues the series is based on a book, “Showtime: Magic, Kareem, Riley, and the Los Angeles Lakers Dynasty of the 1980s,” that depicts West as “someone who treated people with dignity and respect.” Former players Michael Cooper and Jamaal Wilkes have weighed in, denouncing the series, and Abdul-Jabbar wrote a scathing rebuke, calling the show “deliberately dishonest.”
The letter to HBO addresses alleged injury to West by stating that, after the first episode on March 6, West quickly trended on Twitter. A list of posts includes descriptions such as “madman,” “a mean drunk” and “full-fledged psycho.”
None of this will likely be enough for a public figure seeking legal retribution. Olivia de Havilland sued FX Networks over her depiction in the 2017 limited series “Feud,” only to have the Supreme Court decline to hear the case.
It remains to be seen if Georgian chess grandmaster Nona Gaprindashvili can prevail against Netflix, which she claims damaged her reputation in “The Queen’s Gambit” series by falsely stating she had never played against men.
There is one more thing for West to consider: Though his case appears strong enough that “HBO would not be able to get [it] dismissed at an early stage,” Caplan said, it could get uncomfortable. The Hall of Famer might face the same public scrutiny now focused on Johnny Depp in his $50-million defamation suit against ex-wife Amber Heard.
“Since this is a case where it’s not just about what happened one day but who [West is] as a person, they can ask all sorts of questions to try to determine if he’s a nice guy,” Caplan said. “For some people, it’s not worth sitting there and answering those questions.”
Having represented such controversial figures as Monica Lewinsky and Anthony Scaramucci, Bragman says dozens of his clients have “threatened lawsuits but never went to court.”
The publicist believes that a celebrity fighting for his or her reputation must address not only the “original moment” but also the “social media tail” — the public narrative that lingers afterward.
Regardless of its legal merits, the letter to HBO gave the 83-year-old West a chance to air his side of the story.
“I think it’s very prudent, particularly at this point in his life when he’s playing for history,” Bragman said. “It’s the right move to put that line in the sand.”
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