Netflix, Ava DuVernay Attack Prosecutor's Defamation Lawsuit Over 'When They See Us'

When They See Us-court-Publicity Still-H 2019
Courtesy of Netflix

Netflix and Ava DuVernay are asking a Florida federal judge to toss a lawsuit from a New York prosecutor who isn't happy with how she's portrayed in When They See Us, an award-winning limited series about the wrongful conviction of the Central Park Five.

Linda Fairstein in March sued DuVernay and the streamer. She claims the docuseries — which tells the story of a group of five young black men who were investigated, prosecuted and eventually exonerated in connection with a 1989 sexual assault — unfairly paints her as "a racist, unethical villain who is determined to jail innocent children of color at any cost." 

On Monday, DuVernay and writer-producer Attica Locke asked the court to dismiss them as individual defendants for lack of personal jurisdiction, arguing they have no connection to Florida and didn't do any work on the project there.

Alternatively, Netflix, DuVernay and Locke filed a joint motion asking the court to dismiss the complaint entirely for improper venue or transfer the fight to New York. They argue the series "has literally zero to do with Florida" and the only connection to the state is that Fairstein "became a 'resident' of Florida mere months before filing her Complaint." They also argue that Fairstein has a penthouse in New York, is licensed to practice law in the state and has offices there and the transfer "would not inconvenience her one iota." 

"Plaintiff does not even attempt to argue that she suffered injury to her professional reputation in Florida and cannot seriously claim that she has a professional reputation as an attorney and businesswoman in Florida," states the filing. "Fairstein is most widely-known for her 30-year career as a New York County Assistant District Attorney. Although she claims she has worked in private practice since 2002, Plaintiff is not licensed to practice law in Florida." Further, they argue all of the key witnesses, other than Fairstein, reside in or around New York and couldn't be compelled to testify in Florida. 

In the event that the court disagrees the forum is improper, Netflix also filed a separate motion to dismiss for failure to state a claim.

"Material falsity is essential to any defamation claim and is an element Plaintiff must establish," the streamer argues, adding that viewers understand the nature of dramatized retelling of real-life events and don't assume every statement is an assertion of verifiable fact. 

"Equally clear is that this dramatization has a distinct point of view: that of the Five," states the filing. "The Series tells their truth — that they did not commit the heinous crime for which they were wrongfully imprisoned — a truth that is reflected in the order vacating the Five’s convictions and settlement of their civil action for $41 million against New York City, Plaintiff and the other prosecutors and detectives, and in the work of writers, reporters, scholars, and documentarians before the Series was made. ... And here, criticism of Plaintiff’s actions as a powerful public official is at the heart of what the First Amendment protects."

The streamer also argues that while some may find the depiction of Fairstein unflattering, "others might see a tough, no-nonsense prosecutor seeking justice for the female victim of a horrible crime."

Netflix on Monday also filed a special motion to strike the complaint under California's anti-SLAPP law, which brings an early end to frivolous litigation arising from protected activity like free speech. In that filing, which is posted below, the streamer argues Fairstein's claims are "an assault on the First Amendment." (The streamer argues the California protections apply even though the suit was filed elsewhere because each of the defendants resides in the state and the series was written and edited there.)

"Having had critical involvement and responsibility for the prosecution, and for years vocally defending it and relentlessly proclaiming the Five’s guilt, Plaintiff cannot now claim defamation based on scenes showing her using language and espousing the very theories and decisions she has so vigorously defended to this day," states the filing. "Each asserted defamation falls apart upon examination, either as incapable of defamatory meaning, substantially true as matter of law, or protected opinion and hyperbole used for dramatic effect in the context of a dramatization of controversial events."

In March, Netflix defeated a suit from an ex-cop turned consultant who claimed he (and his eponymous interrogation style) were defamed by the film. There, an Illinois federal judge found the work was protected by the First Amendment and noted that When They See Us "sells itself as fact-based but cannot be mistaken for original footage."