Blackk appeared in Netflix’s When They See Us alongside 2019 Emmy winner Jharrel Jerome (left).
Atsushi Nishijima/NetflixA New York judge sees enough in the libel complaint against Netflix and Ava DuVernay over When They See Us to move the case forward to discovery.
The suit comes from Linda Fairstein, a New York City prosecutor who found herself defending her reputation after the release of DuVernay’s miniseries about the “Central Park Five,” concerning five Black men who were wrongfully convicted of an infamous 1989 sexual assault. Fairstein was the head of the Manhattan District Attorney’s sex crimes unit back in 1989, although she didn’t personally prosecute the men whose convictions were later vacated based on DNA evidence and the subsequent confession of another man.
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When They See Us relies on the public record, although there’s certain dramatizations. Fairstein herself is played by Felicity Huffman. After the 2019 release on the streamer, Fairstein lost a book contract, had to resign from the Board of Trustees for Vassar College and three non-profit organizations and endured social media outrage, including the hashtag “CancelLindaFairstein.”
U.S. District Court Judge P. Kevin Castel says there’s a lot in Fairstein’s complaint that’s not actionable. He points to scenes showing “routine and prosaic activities that lack a plausible defamatory meaning” as well as depictions of her that “convey the subjective opinions of defendants and could not be understood by the average viewer to be a literal recounting of her words and actions.”
But Netflix and DuVernay can’t escape the suit altogether because of five scenes that the judge concludes plausibly rise to defamation.
“These scenes depict Fairstein as orchestrating acts of misconduct, including the withholding of evidence, the existence of ‘tapes’ showing that she ‘coerced’ confessions from the Five, an instruction not to use ‘kid gloves’ when questioning suspects, and directing a racially discriminatory police roundup of young men in Harlem,” states the opinion. “The average viewer could conclude that these scenes have a basis in fact and do not merely reflect the creators’ opinions about controversial historical events.”
An example of a scene that Netflix must continue to defend as the suit moves forward includes Fairstein’s final appearance in the fourth episode. She and a colleague revisit the case following the exoneration of the Central Park Five.
She says to her colleague, “You’re here to gloat. It doesn’t matter, you simply identified a sixth rapist. I always said there may be more.”
He responds, “You said that to cover because you knew you coerced those boys into saying what they did.”
The defendants argued that this was just “hyperbolic expression,” but the judge says a reasonable viewer could see the suggestion of coercion as a factual assertion, capable of being proven true or false, and what’s more, a damning judgment by a professional colleague.
To prevail in the case, Fairstein will very likely need to show actual malice, meaning knowledge of falsity or reckless disregard of the truth by the defendants. That’s one issue that’s not dealt with in Castel’s opinion. It’ll be adjudicated later if the case isn’t settled.
