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Netflix’s fancy First Amendment arguments have failed to persuade a federal judge in Wisconsin to dismiss a libel lawsuit over Making a Murderer, the Emmy-winning documentary series about Steven Avery, who was exonerated for one murder only to later be charged with another.
The lawsuit comes from Andrew Colborn, a retired Wisconsin police sergeant who alleges that Murderer libeled him by insinuating he planted evidence in an effort to frame Avery for that second murder. Unfortunately for Netflix, it has run into the type of Trump judicial appointee who likes to footnote ascendent arch-conservative legal theory how maybe the actual malice standard for public figures has gone too far.
In his opinion, U.S. District Court Judge Brett Ludwig appears a tad annoyed by “extensive motion practice,” meaning legal mumbo jumbo instead of just-the-facts-ma’am.
For example, Netflix attempted to assert a version of fair report privilege, referring to wide latitude to republish statements — even potentially defamatory ones — from official government proceedings. It’s a widely-recognized privilege, and in this case, Netflix argues that what Colborn is challenging comes from Avery’s defense at his murder trial or conclusions from those familiar with the criminal proceeding.
Ludwig treats Netflix’s argument as if it is seeking immunity from anything labeled to be in the “true crime” genre.
“Neither the Supreme Court nor the Seventh Circuit has ever suggested a speaker enjoys unconditional First Amendment immunity for making defamatory statements simply because the statements concern legal proceedings,” he writes.
The judge adds that Netflix’s characterization of Murderer as a substantially accurate recount of the Avery trial is a factual issue for later adjudication — especially since Colborn pleads otherwise including his view that the docuseries “intentionally altered excerpts from the Avery trial transcripts.”
Here’s the rest of the opinion where Ludwig also allows a claim for intentional infliction of emotional distress (although not for negligent infliction) as well as claims against the filmmakers Laura Ricciardi and Moira Demos, who argued they weren’t timely served Colborn’s court papers.
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