The Volokh Conspiracy
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Police Officer's Libel Lawsuit Over Netflix's Making a Murderer Can Go Forward,
at least through discovery and until the motion for summary judgment; Netflix’s motion to dismiss has been denied.
From Colborn v. Netflix Inc., decided Wednesday by Judge Brett H. Ludwig (E.D. Wis.):
In this defamation action, Plaintiff Andrew L. Colborn asserts claims against … defendants who were involved in the production and distribution of two documentary miniseries, Making a Murderer and Making a Murderer 2….
On December 18, 2015, Netflix first aired what became an extraordinarily popular documentary series, Making a Murderer. The series relates the events surrounding multiple criminal and civil legal proceedings involving Steven Avery. As recounted in the documentary, in 1985, Avery was wrongfully convicted of raping a female jogger in Manitowoc County. After serving just over half of his 32-year prison sentence, Avery was released when DNA evidence showed another man had committed the assault. Avery then pursued civil claims against Manitowoc County and two elected officials (the former County Sheriff and District Attorney) involved with his wrongful conviction. Amidst that litigation, a third legal proceeding erupted when Avery was charged with the murder of Teresa Halbach, a young woman who went missing while on assignment photographing used cars for sale, including a vehicle for sale at Avery's residence. A jury ultimately convicted Avery of Halbach's murder. His appeals from that second conviction have been rejected and he remains in state prison.
Making a Murderer and its 2018 sequel, Making a Murderer 2, purport to be documentaries depicting the events, including the "flaws, failings and triumphs," surrounding these legal proceedings. Defendants insist that the original series and its sequel present both sides of these events, albeit in a dramatic and entertaining way. Colborn argues, however, that the presentation was biased and falsely depicts him as having framed Avery for the Halbach murder. As a result, he has been subjected to an onslaught of threats and criticism. Through this lawsuit, Colborn seeks redress from Defendants for the harm arising from this allegedly biased and false depiction….
As this Court has already ruled in denying Netflix's first motion to dismiss and in rejecting Netflix's opposition to Colborn's motion for leave to file the Second Amended Complaint, his latest pleading adequately and plausibly pleads these elements, including actual malice. The Second Amended Complaint alleges that the defendants "falsely led viewers to the inescapable conclusion that Plaintiff and others planted evidence to frame Avery for Halbach's murder [and] omitted, distorted, and falsified material and significant facts in an effort to portray Plaintiff as a corrupt police officer who planted evidence to frame an innocent man."
Colborn further alleges that defendants committed this defamation "with actual malice and in order to make [their series] more profitable and more successful in the eyes of their peers, sacrificing and defaming [Colborn's] character and reputation in the process." These allegations are supported by extensive detail, set forth in two attachments that list alleged inaccuracies, including altered clips of trial testimony, which Colborn contends present a "false impression" of his testimony and "falsely put words in his mouth." This suffices to state a claim under Wisconsin law….
Whether Colborn can muster sufficient evidence for a jury to find that Netflix and the other defendants defamed him with "actual malice" remains to be seen. But until the summary judgment record is complete, it would be improper for the Court to resolve this issue….
Netflix next argues that dismissal is appropriate because "reasonable viewers" would not understand the documentary series to convey that the defendants (including Netflix) were asserting that Colborn framed Avery for Teresa Halbach's murder. Netflix insists the allegedly defamatory statements identified in the complaint "consist of substantially accurate reporting" of the defense's theory at Avery's murder trial. This argument cannot be resolved at the pleading stage.
Whether defendants' presentation of the facts surrounding the defense's theory was substantially accurate is an inherently factual issue. Colborn plausibly alleges that defendant's portrayal of the underlying facts was not substantially accurate, and that is all he needs to do at this stage. Indeed, his assertion that defendants intentionally altered excerpts from the Avery trial transcripts would appear to undercut Netflix's substantial accuracy claims.
Likewise, whether a reasonable viewer might interpret the series as conveying that Colborn actually framed Avery (contrary to the jury's finding) is also an inherently factual issue. Colborn's citation to specific threats he received from viewers strongly suggests that at least some audience members understood the documentary to be accusing Colborn of criminal misconduct leading to Avery's conviction for the Halbach murder. The resolution of these issues must, at a minimum, await discovery and summary judgment….
Netflix is also not entitled to dismissal based on its argument that the series' implication that Colborn criminally framed Avery for the Halbach murder "constitute[s] a nonactionable opinion based on fully disclosed true or privileged facts." Whether Netflix fully disclosed the true or privileged facts is the heart of Colborn's claim. He alleges that defendants did not fully disclose the true facts, but instead knowingly and with malice "omitted, distorted, and falsified material and significant facts in an effort to portray [him] as a corrupt police officer who planted evidence to frame an innocent man." Netflix's insistence that "indisputable facts" support its position is misplaced; Netflix has filed a motion to dismiss and it is not the appropriate time to resolve such factual issues. If the facts are indeed undisputed or "indisputable," Netflix can present its arguments after discovery at summary judgment….
Finally, Netflix's challenges to Colborn's specific defamatory statements are likewise not subject to resolution at the motion to dismiss stage. Its offers of disputed characterizations of Colborn's allegations concerning the series' portrayal of the "Jail Call," the "Dispatch Call," the "Key," and various other omitted facts are issues for summary judgment, or perhaps, for a jury to resolve….