The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Prosecutor Linda Fairstein's Libel Lawsuit Over Netflix "Central Park Five" Series ("When They See Us") Can Go Forward
"There is evidence that, by opting to portray Fairstein as the series villain who was intended to embody the perceived injustices of a broader system, defendants reverse-engineered plot points to attribute actions, responsibilities and viewpoints to Fairstein that were not hers and are unsupported in defendants' substantial body of research materials."
From today's decision in Fairstein v. Netflix, Inc., by Judge Kevin Castel (S.D.N.Y.):
"When They See Us" is a four-part Netflix series that dramatizes the experiences of the young men dubbed in the press as "The Central Park Five." The underlying events have been the subject of exhaustive reporting and commentary for more than three decades. The Netflix series was promoted as being "[b]ased on the true story of the Central Park Five." It follows the experiences of the Five over many years, from their arrests, trials and convictions for the April 1989 rape and assault of Patricia Meili in Central Park, to their release from prison and struggles to readjust to life as young adults after a serial rapist named Matias Reyes came forward to claim sole responsibility for the Meili rape.
The filmed dramatization of real-world events using famous actors and cinematic production values is a well-established genre. To advance their points of view and heighten dramatic tension, filmmakers will sometimes use a composite character as the stand-in for a real-world figure or groups of persons acting together. For narrative coherence or heightened tension, dramatizations typically contain invented dialogue and condensed timelines. Under New York's common law of defamation, there is neither a wholesale carve-out for dramatizations nor a per se condemnation. Like any work that comments on public figures or reflects an opinion on a matter of public controversy, dramatizations are afforded strong First Amendment protections.
Plaintiff Linda Fairstein is the former head of the Sex Crimes Unit in the Manhattan District Attorney's Office. She asserts that scenes in "When They See Us" depict her by name and portray her in a false and defamatory light. Defendant Ava DuVernay, who is the writer, director and producer of the series, has stated that Fairstein "represents the criminal justice system, and the criminal justice system is the villain in the Series. That portrayal was grounded in, and supported by, both our sources and the point of view we were expressing." The Fairstein role is performed by the well-known actress Felicity Huffman, and, in the series, the character is portrayed as personally responsible for orchestrating nearly every aspect of the investigation and prosecution of the Five.
Fairstein's real-life role in the investigation has been chronicled in books, articles and interviews. Beginning the night after the Meili attack, she was present for long hours at the NYPD precinct where interrogations were taking place. Years later, when the convictions of the Five were vacated, Fairstein publicly defended the investigation and prosecution and questioned the decision to vacate the convictions.
The Court previously narrowed Fairstein's claims in its decision on the motion to dismiss, concluding that the Complaint failed to plausibly allege that seven of the challenged scenes were actionable but plausibly alleged a claim for relief as to five scenes. Discovery in this case is now closed.
Defendants move for summary judgment in their favor, urging that Fairstein cannot point to evidence sufficient to permit a reasonable trier of fact to find that defendants acted with actual malice in the five scenes. As will be discussed, the actual-malice standard sets a high bar for a public figure asserting a claim of defamation and requires evidence that a speaker harbored subjective doubts about the accuracy of a statement or was recklessly indifferent to its truth. There is evidence that, by opting to portray Fairstein as the series villain who was intended to embody the perceived injustices of a broader system, defendants reverse-engineered plot points to attribute actions, responsibilities and viewpoints to Fairstein that were not hers and are unsupported in defendants' substantial body of research materials.
The five scenes contain precise depictions of Fairstein taking actions or exercising forms of authority that are not described in the source materials. She is often depicted as taking action or giving direction to reluctant colleagues in the NYPD or the District Attorney's Office. Fairstein is shown ordering NYPD members not to use "kid gloves" in their interrogations and instructing them to conduct a roundup of "young black male[s]" in Harlem. The Fairstein character singlehandedly devises a much-criticized timeline of the Meili rape, enthuses about the "surprise" of conducting a DNA test "right before the trial" without the knowledge of defense counsel, and is depicted as being confronted by a former colleague about having "coerced" false confessions from the Five.
The extensive research materials used by DuVernay and two of her co-writers included many sources critical of the Five's convictions and the techniques of the NYPD and prosecutors, but these materials do not describe Fairstein taking these actions. In some instances, the research attributes these actions to other individuals by name.
The summary judgment record also contains creative notes in which the series writers and Netflix employees suggest heightening the most negative aspects of the Fairstein character to build dramatic tension and advance storytelling goals. The Court will discuss each of the five scenes individually and the evidence cited by defendants as support for their subjective belief that the depiction of the Fairstein character was faithful to their understanding of the facts. For each scene, however, the Court concludes that a jury must weigh the competing inferences arising from the evidence to determine to whether there is clear and convincing evidence that defendants were recklessly indifferent to the truth.
Defendants' motion for summary judgment will be denied….
