The Volokh Conspiracy
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From yesterday's Fairstein v. Netflix, Inc., decided by Judge Kevin Castel (S.D.N.Y.):
On the night of April 19, 1989, a young woman was viciously beaten and raped in Central Park. Five young men of color (the "Five"), ranging in age from 14 to 16, were arrested, tried and convicted for the attack. They were exonerated in 2002, after the confession of a man whose DNA matched a sample found near the victim. The case, which is known among the press and public as the "Central Park Jogger" or "Central Park Five" case, drew intense public interest in the immediate aftermath of the attack and remains the subject of scrutiny and debate.
Plaintiff Linda Fairstein was chief of the Sex Crimes Prosecutions Unit in the District Attorney's office of New York County during the investigation and prosecution of the Five. According to her Complaint, Fairstein had supervisory authority over the case but was not one of the prosecution's trial attorneys. After a successful and high-profile legal career, Fairstein remained in the public eye as a prolific mystery writer and public speaker. In the years following the exoneration of the Five, Fairstein made public statements that defended the work of police and prosecutors on the case, and she has publicly argued that the Five were hastily exonerated.
In May 2019, the popular streaming service owned by defendant Netflix, Inc. … released a four-part dramatization of the arrest and prosecution of the Five, called "When They See Us." Produced by Oprah Winfrey, the limited series features high production values that have become standard in subscription television, including a cast of famous actors, a soundtrack of popular music, and atmospheric, hallucinatory sequences intended to reflect the characters' psychological states.
"When They See Us" is also openly sympathetic to the Five. In early scenes, it depicts the Five as typical teenagers negotiating the challenges of school, family and social life before they are incorrectly and unjustly suspected of rape. The series then follows the Five through trial and incarceration, and their later struggles as young adults adjusting to post-release life. Throughout, "When They See Us" depicts the Five as innocent young men who are harmed by an unjust prosecution and an unsympathetic and often brutal system bent on incarcerating the Five.
Fairstein is portrayed as a central villain of "When They See Us." As depicted in the series, she quickly concludes that the Five are responsible for the attack, and is thereafter portrayed as a zealous, win-at-all-costs prosecutor. In one sequence, she intentionally delays the production of critical DNA evidence to defendants until the eve of trial, and in others, she instructs members of the New York City Police Department ("NYPD") to engage in harsh investigative techniques. The series portrays her as the architect of various theories of the Five's guilt, and through the concluding scenes of the series, she remains persuaded of their involvement in the face of countervailing evidence….
In deciding the motion to dismiss, the Court is limited to the factual allegations of the Complaint, materials that are attached by the Complaint or integral thereto, and matters of which the Court may take judicial notice. As defendants acknowledge, the issue of actual malice is more appropriately weighed at a later stage of the proceedings. Similarly, on the present motion, defendants are not permitted to offer evidence (except the limited materials that may be considered on a motion to dismiss) to dispute Fairstein's factual assertions that she played only a limited role in the NYPD's investigation. The arguments raised in defendants' motion are therefore narrow and directed to whether Fairstein's Complaint has plausibly alleged a defamatory meaning to eleven scenes of "When They See Us."
For the reasons that will be explained, defendants' motion will be granted in part and denied in part. Certain scenes alleged to be defamatory merely show routine and prosaic activities that lack a plausible defamatory meaning. In other scenes, the depictions of Fairstein are privileged against a claim of defamation because they convey the subjective opinions of defendants and could not be understood by the average viewer to be a literal recounting of her words and actions.
Fairstein has plausibly alleged a claim of defamation as to five scenes. These scenes depict Fairstein as orchestrating acts of misconduct, including the withholding of evidence, the existence of "tapes" showing that she "coerced" confessions from the Five, an instruction not to use "kid gloves" when questioning suspects, and directing a racially discriminatory police roundup of young men in Harlem. The average viewer could conclude that these scenes have a basis in fact and do not merely reflect the creators' opinions about controversial historical events. Separately, the Court concludes that defendants have not demonstrated the substantial truth of a scene depicting Fairstein's creation of an attack timeline because they rely on public remarks that are inconsistent with her depiction in the scene.
There's a lot going on in the opinion, which is generally pretty readable. Here, though, is a particular important item, which explains how the law treats docudramas:
Fairstein asserts that defendants marketed and promoted "When They See Us" as a fact-based version of the events surrounding the Five. Netflix social media posts and advertising trailers described "When They See Us" as "[t]he truth you haven't heard" and "based on the true story of the Central Park Five." The Complaint quotes multiple statements made by DuVernay on social media, in interviews and in public appearances that characterized "When They See Us" as fact-based, referring to it as "the real story of The Central Park 5" and "100% real." The Complaint also quotes from public statements that DuVernay specifically made about Fairstein, including a remark in an interview with Oprah Winfrey where she stated, "And so the goal of this—okay, Linda Fairstein, okay Elizabeth Lederer, okay, all of these people on this particular case we need to be held accountable."
Locke made similar public statements, such as, "[a] piece of American History gets rewritten with the truth," and "You can't argue with facts." …
The relevant context for Fairstein's claims is a lengthy television drama starring famous actors distributed to paying subscribers of a streaming service. As the Ninth Circuit once observed by dictum: "Docudramas, as their names suggests, often rely heavily upon dramatic interpretations of events and dialogue filled with rhetorical flourishes in order to capture and maintain the interest of their audience. We believe that viewers in this case would be sufficiently familiar with this genre to avoid assuming that all statements within them represent assertions of verifiable facts. To the contrary, most of them are aware by now that parts of such programs are more fiction than fact." … [But] the presenters of the docudrama "must attempt to avoid creating the impression that they are asserting objective facts rather than merely stating subjective opinions.
Given the full content and context of the series at issue, the Court declines to conclude that the average viewer would assume that "When They See Us" is "more fiction than fact," a proposition that the defendants do not advance. But it is reasonable to expect that the average viewer of "When They See Us" would understand that dialogue in the dramatization is not a verbatim recounting of the real-life participants and is intended to capture the essence of their words and deeds.