Sept 21 (Reuters) – If you wanted to get metaphysical, you could say that the defamation lawsuit in which former New York sex crimes prosecutor and best-selling novelist Linda Fairstein is challenging her portrayal in a 2019 Netflix drama about the Central Park Five case raises fundamental questions about the meaning of truth.
For Fairstein and her lawyers at Nesenoff & Miltenberg, truth is all about facts. Netflix and the creators of the Central Park Five docudrama, “When They See Us,” depicted Fairstein as doing and saying things that never actually happened during the investigation and prosecution of five Black teenagers for a brutal 1989 rape in Central Park.
Fairstein’s lawyers have argued that by misrepresenting, embellishing and disregarding the factual record, Netflix and series creators Ava DuVernay and Attica Locke maliciously portrayed her as the linchpin of a botched and misguided prosecution. The defendants, Fairstein’s side said, must be accountable for marketing their series as “the truth,” while inventing fact-free depictions of real people engaged in serious misconduct.
Netflix, DuVernay and Locke talked about a different kind of truth – one that their Dentons lawyers said can emerge from art rooted in real events.
“When They See Us” focused on the experiences of the defendants in the Central Park case, who were convicted on the basis of allegedly coerced confessions but were later freed from prison when another man, whose DNA matched samples taken from the crime scene, said he alone committed the attack. The Manhattan District Attorney’s office ultimately consented to vacate the convictions of the Central Park Five, who obtained a $41 million civil rights settlement from New York City in 2014.
Dramatizations like “When They See Us,” argued Netflix, DuVernay and Locke in their motion for summary judgment, can be told from “different and often marginalized perspectives,” offering a new way to think about controversial events and the people involved in them.
Of course, even artists cannot maliciously defame real people. But Netflix, DuVernay and Locke argued that to prove malice, Fairstein would have to show that they portrayed her in a way that contradicted “the essence of truth,” as they perceived the truth to be, based on their factual sources.
The defendants said there was simply no evidence that they had even a “shred of doubt” that their depiction of Fairstein aligned with both the source material they had consulted and their perception of the truth.
“The central issue on this motion is not whether Ms. Fairstein can point to aspects of her portrayal in the series she believes are untrue; the issue is whether she can meet her constitutionally-imposed burden of producing clear and convincing evidence of actual malice,” the defendants said. “She comes nowhere close.”
The judge overseeing the case, U.S. District Judge Kevin Castel of Manhattan, ruled otherwise on Tuesday.
As my Reuters colleague Jon Stempel reported, Castel denied the defendants’ motion for summary judgment, holding that Fairstein can proceed to trial on claims that she was defamed in five different scenes in the series.
Castel acknowledged the filmmakers’ artistic decision to use Fairstein as the embodiment of systemic injustice and, in the judge’s words, “the central ‘villain’” of the series.
But that choice, the judge said, did not give the defendants a free pass to depict Fairstein engaged in conduct – including the manipulation of the timeline of the crime to remove doubts about the teenagers’ participation in the assault — that had no factual basis in the source materials they relied upon.
“Defendants reverse-engineered plot points to attribute actions, responsibilities and viewpoints to Fairstein that were not hers,” Castel said. “The choice to attribute this conduct to a real-life person is not immunized because the defendants intended the depiction to be a critique of the criminal-justice system.”
Instead of focusing on what DuVernay, Locke and Netflix believed the truth to be – or, as the defendants phrased it in their summary judgment motion, “the essence of truth” – Castel analyzed the source material they relied upon for each of the five scenes he previously held to be defamatory.
Netflix, DuVernay and Locke insisted that their sources provided a good faith basis for their depiction of Fairstein. But in each instance, the judge found that a reasonable jury could conclude the defendants had acted with reckless disregard.
Defense counsel Natalie Spears, Gregory Naron and Jacqui Giannini of Dentons, who represent Netflix and the show creators, did not respond to my email query on Castel’s ruling.
As Castel noted, previous defamation cases arising from docudramas like “When They See Us” have given artists considerable leeway to create composite or fictionalized characters. Courts have also excused small departures from the factual record in the interest of storytelling.
But in a couple of recent cases Castel cited, other federal trial judges allowed plaintiffs to proceed with defamation claims over their portrayal in fictionalized dramas that allegedly mischaracterized their real-life conduct. One of the plaintiffs was a world champion female chess player who sued Netflix for a line in “The Queen’s Gambit” that falsely said she had never played against great male players. The other lawsuit was brought by a music industry executive who said she was falsely depicted, by name, in a television film about the creation of the pop group TLC.
Those cases, Castel said, helped guide him to focus on “the extent to which the plaintiff’s depiction was consistent with source materials that could be trusted in good faith.”
Fairstein counsel Andrew Miltenberg of Nesenoff & Miltenberg told me by email that Netflix, DuVernay and Locke could have averted the risk of defamation by creating a composite character – or even by adding a prominent disclaimer about their fictionalization of events.
“Instead, they fabricated defamatory scenes that have no basis in fact and attributed them to Ms. Fairstein by name,” Miltenberg said. “We are absolutely looking forward to presenting the case in front of a jury and exposing Netflix and Ava DuVernay for rewriting the real events for theatrical purposes and representing it as the truth.”
Read more:
Netflix can be sued by ex-Central Park Five prosecutor for defamation
Reporting By Alison Frankel; editing by Leigh Jones
Our Standards: The Thomson Reuters Trust Principles.
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