HBO will likely enter into arbitration with Michael Jackson’s estate over its four-hour documentary Leaving Neverland, after hearing a tentative ruling (somewhat neurotically) issued by U.S. District Judge George Wu in federal court Thursday morning. “Lots of these issues are so close,” according to Wu, who presides over the Central District of California. “Either side will probably appeal. Maybe it doesn’t make a difference what I do.”
The documentary, which was released to universal acclaim in January and recently won a Primetime Emmy, presents in laborious and emotionally rich detail the allegations of two men, Wade Robson and James Safechuck, who claim they were sexually abused by Jackson for years during their childhood. While Jackson’s estate publicly described the film as financially motivated and a “rehash of dated and discredited allegations” ahead of its premiere at the 2019 Sundance Film Festival, it was ultimately unable to pursue defamation charges as those statutes do not apply to the deceased.
Instead, the estate filed a $100 million lawsuit in February, a week before the film’s television premiere on HBO, arguing that the network’s decision to air the doc violated a 27-year-old nondisparagement agreement dating back to the cable channel’s 1992 deal for Jackson’s “Dangerous” tour concert special. As HBO’s lead attorney, Theodore Boutrous, continued to argue in court Thursday, the defense team believes the case, including arbitration, should be dismissed under anti-SLAPP laws designed to protect parties from strategic lawsuits against public participation brought about by financially powerful plaintiffs.
“It was filed to chill speech,” Boutrous said. “It was filed to tell the world, ‘Don’t talk about child sex abuse.’ […] A company like HBO may be able to fight back and move forward. Others might not be able to do that.” With his decision expected to be finalized in the next 10 days, Wu did not particularly voice sympathy for this line of reasoning from the network. “You’re a big company; they’re a wealthy estate,” as Wu put it to HBO’s legal team on Thursday. “It’s a clash of the titans.”
Michael Jackson’s estate and the pop star’s most rabid fans have been pushing back against the documentary and its claims for nearly the entirety of 2019, beginning in the days before the film’s first police-protected screenings at Sundance in January. Die-hard fans of the King of Pop took to social media hoping to compel the festival to drop the film from its roster, and both alleged victims Robson and Safechuck, as well as the film’s director, Dan Reed, reported getting death threats. Over the summer, three Michael Jackson fan clubs in France filed a suit against Robson and Safechuck under a French law forbidding the public denunciation of a dead person and seeking a mostly symbolic remuneration of one euro from each.
Last week, amid Leaving Neverland’s victory in the Outstanding Documentary or Nonfiction Special category at the (less glamorous, but still prestigious) 71st Creative Arts Emmy Awards at the Microsoft Theater, Jackson’s estate took the occasion to reiterate its outrage over the film’s critical success. “For a film that is a complete fiction to be honored in a nonfiction Emmy category is a complete farce,” the estate said in a statement to the Hollywood Reporter. “Not one shred of proof supports this completely one-sided, so-called documentary, which was made in secrecy and for which not one person outside of the two subjects and their families were interviewed.”
According to Deadline, however, “the always contemplative Judge Wu” is somewhat famous for changing his mind, and this seeming victory for Jackson’s estate could flip anytime within the coming weeks. “I hope and believe he will adopt his tentative order,” an attorney for Jackson’s estate told reporters.