On September 19, 2023, a New York District Court Judge denied Netflix’s attempt to dispose of a lawsuit over their dramatization of the famous Central Park Five case in the series “When They See Us”. The judge highlighted five scenes in the series that he believes should be considered by a jury.
In his 67-page order, Judge P. Kevin Castel held that a jury is best suited to decide whether Netflix and series director Ava DuVernay acted with reckless disregard of the truth in the portrayal of plaintiff Linda Fairstein, a former Manhattan prosecutor who oversaw the prosecution of the Central Park Five. The court had previously granted in part Netflix and DuVernay’s motion to dismiss, narrowing Fairstein’s claim for relief to the scenes now at issue.
The Central Park Five case was a high-profile New York City criminal case in 1989, involving the assault and rape of a white female jogger in Central Park. The case resulted in the wrongful conviction of five Black and Latino teenagers based on their coerced confessions, despite a lack of physical evidence linking them to the assault. The Central Park Five were later exonerated and released from prison when the real perpetrator confessed to the crimes, but only after serving sentences ranging from seven to thirteen years.
Netflix and DuVernay argued that Fairstein’s portrayal was faithful to their understanding of the facts. DuVernay stated that it was actually the criminal justice system that was the true villain in the series and described Fairstein’s character as a “composite” representation of multiple participants in that system. In response, Fairstein claimed that her portrayal was false and defamatory, asserting that she did not commit the actions attributed to her, that she often lacked the power and authority to perform the acts attributed to her, and that the portrayal of her was not supported by the filmmakers’ substantial body of research materials. Fairstein further alleged that despite this, Netflix wrongfully marketed the series as a true story.
Judge Castel’s order remarked that the five allegedly defamatory scenes “contain precise depictions of Fairstein taking actions or exercising forms of authority that are not described in the source materials.” It will be the jury’s job to determine whether there is clear and convincing evidence that Netflix and DuVernay acted with actual malice by being recklessly indifferent to the truth.
Judge Castel’s order recounts that courts have generally been deferential to creators of dramatized accounts of real events, “often recognizing that the use of invented dialogue or a condensed timeline may be necessary storytelling devices and are not themselves evidence of actual malice.” However, the narrative and creative decision to make Fairstein “the face” of the system and the central “villain” of the series will not be a free pass for Netflix if the jury concludes that Netflix and DuVernay attributed to Fairstein conduct that is unsupported by the writers’ source and research materials.
In addition to denying Netflix’s motion for summary judgment, Judge Castel rejected Fairstein’s request for sanctions against DuVernay for spoliation of evidence. The Judge relied on DuVernay’s sworn declaration to conclude that any books or source materials DuVernay used to write the series were not intentionally lost and that there were no relevant notations or markings on them.
Fairstein is represented by Andrew T. Miltenberg and Kara L. Gorycki of Nesenoff & Miltenberg, LLP.
Netflix, DuVernay, and Locke are represented by Natalie J. Spears, Gregory R. Naron, Jacqueline A. Giannini, Justin N. Kattan and Sandra D. Hauser of Dentons US LLP.
The case is Fairstein v. Netflix Inc. et al., case number 1:20-cv-08042, in the U.S. District Court for the Southern District of New York.
* Lowe & Associates (“The Firm”) is a boutique entertainment and business law firm located in Beverly Hills, California. The firm has extensive experience handling cases involving defamation, having provided top-quality legal services to its clients since 1991. The Firm is recognized for its many achievements, including successfully litigating many high-profile cases.