'Making a Murderer' Brings Call to Abolish Actual Malice in Libel Suits

In court papers, the cop suing Netflix rallies around Clarence Thomas' thoughts on the First Amendment outlined in February.
Courtesy of Netflix

The lawsuit brought by retired Wisconsin police sergeant Andrew Colborn against Netflix over Making a Murderer is not yet six months old, yet Colborn has designs to get the case to the Supreme Court to make it easier for public figures to sue for defamation.

Colborn alleges in his complaint that the award-winning series about Steven Avery, exonerated for one murder only to later be charged with another, libeled him by insinuating he planted evidence in an effort to frame Avery for that second murder. Netflix has motioned for dismissal on the basis that Colborn hasn't sufficiently pled Netflix's culpability and has not plausibly alleged actual malice, meaning that the streamer had knowledge of falsity or had recklessly disregarded the truth.

As a result of Netflix's move, Colborn sought on Thursday to file an amended complaint alleging Netflix's involvement in the series, including taking a pitch from filmmakers Laura Ricciardi and Moira Demos, developing the series and participating in the postproduction editing and rollout of Making a Murderer.

That probably will mean Netflix's motion becomes moot. Nevertheless, Colborn has separately filed an opposition to Netflix's dismissal demand.

Represented by George Burnett and other attorneys, Colborn argues that alleging malice generally at this stage is sufficient. More unusually, the plaintiff outlines his ultimate ambition by addressing something that Supreme Court Justice Clarence Thomas wrote in February.

Thomas agreed with his high court colleagues that they shouldn't tackle a defamation suit against Bill Cosby, but in a concurring statement denying review he called for the reconsideration of libel standards. Thomas took aim at the 1964 decision in New York Times Co. v. Sullivan, which first established actual malice as the bar for public figures, as well as follow-up precedent, characterizing these rulings as "policy-driven decisions masquerading as constitutional law." According to Thomas, the country should apply the First Amendment as the founding fathers allegedly understood it.

Colborn's brief (read here) states, "For purposes of preserving the argument, Plaintiff also respectfully submits that this is an appropriate case in which the United States Supreme Court should, if necessary, entertain Justice Clarence Thomas' recent invitation to review and abolish the actual malice standard."

The plaintiff then recounts Thomas' views before coming to a conclusion.

"Netflix argues that it has the judicially sanctioned right to deprive Plaintiff of his good reputation and to transform it into a commodity that it can distort for its own profit," writes Burnett's team. "It is unlikely that the Supreme Court imagined that its ruling in New York Times v. Sullivan would be used in such a way. Plaintiff respectfully requests that the United States Supreme Court reconsider the actual malice standard to the extent that it is asserted to protect this conduct."

The case might take a few years to get to the high court and could be dismissed on other grounds besides a lack of actual malice on the part of the defendant. Also, there's no indication that any of the eight other justices agree with Thomas, but stick a pin in it anyway.