Had she not pounded over and over that her “When They See Us” Netflix drama was the truth, not like “the lies they told us,” Ava DuVernay might not be looking forward to finding herself at the defendants’ table for the defamation trial brought by former Manhattan Sex Crime Chief Linda Fairstein. Had Netflix prefaced its pseudo-docudrama with the standard disclaimer, that they made it all up to get people to watch it, they wouldn’t be sitting next to DuVernay.
But they didn’t, and now they will be sitting together as Southern District of New York Judge Kevin Castel has denied the defendants summary judgment on all five instances where they defamed Fairstein.
Defendants move for summary judgment in their favor, urging that Fairstein cannot point to evidence sufficient to permit a reasonable trier of fact to find that defendants acted with actual malice in the five scenes. As will be discussed, the actual-malice standard sets a high bar for a public figure asserting a claim of defamation and requires evidence that a speaker harbored subjective doubts about the accuracy of a statement or was recklessly indifferent to its truth. There is evidence that, by opting to portray Fairstein as the series villain who was intended to embody the perceived injustices of a broader system, defendants reverse-engineered plot points to attribute actions, responsibilities and viewpoints to Fairstein that were not hers and are unsupported in defendants’ substantial body of research materials.
The extensive research materials used by DuVernay and two of her co-writers included many sources critical of the Five’s convictions and the techniques of the NYPD and prosecutors, but these materials do not describe Fairstein taking these actions. In some instances, the research attributes these actions to other individuals by name.
Fairstein initial pled 12 scenes as being false, but the court dismissed seven as failing to be defamatory, meaning they might not have been true, but didn’t do any harm, a necessary element of defamation. The five remaining scenes, however, were defamatory. At summary judgment, the question was whether the evidence was sufficient for a reasonable jury to find malice on the part of defendants by clear and convincing evidence. Judge Castel held there was.
The summary judgment record also contains creative notes in which the series writers and Netflix employees suggest heightening the most negative aspects of the Fairstein character to build dramatic tension and advance storytelling goals. The Court will discuss each of the five scenes individually and the evidence cited by defendants as support for their subjective belief that the depiction of the Fairstein character was faithful to their understanding of the facts. For each scene, however, the Court concludes that a jury must weigh the competing inferences arising from the evidence to determine to whether there is clear and convincing evidence that defendants were recklessly indifferent to the truth.
In their summary judgment motion, the defendants tried to spin their very specific, very outrageous, depiction of Fairstein as less a reflection of reality as to her, but their opinion about the criminal legal system in general. In other words, it was no longer the “truth” about Fairstein, as DuVernay twitted over and over, joined by co-defendant Attica Locke, proclaiming themselves the “real” truthtellers, but rather a fictional dramatization of their vibes about the legal system as personified by an actual living person.
Defendant Ava DuVernay, who is the writer, director and producer of the series, has stated that Fairstein “represents the criminal justice system, and the criminal justice system is the villain in the Series. That portrayal was grounded in, and supported by, both our sources and the point of view we were expressing.” The Fairstein role is performed by the well-known actress Felicity Huffman, and, in the series, the character is portrayed as personally responsible for orchestrating nearly every aspect of the investigation and prosecution of the Five.
The claim that her portrayal of Fairstein wasn’t “true,” as was vehemently claimed, and then followed upon by Locke and DuVernay going to great lengths to destroy Fairstein’s career as writer and have her ousted from her charitable work, but rather the personification of “the criminal justice system” emits an unpleasant odor. They can hate Fairstein all they want (join the club), but what they cannot do is engage in wholesale fabrication of statements and conduct that not only never happened, but they knew didn’t happen, while proclaiming themselves the righteous truthtellers.
People have come to watch and believe these docudramas as if they were actually watching historical events unfold before their eyes. They may realize that the dialogue is manufactured and dramatized to make the show interesting and the story work, but they believe it’s at least faithful to reality, even if it takes some dramatic license.
What is happening instead is that the public is sold a story about a horrific crime, investigation and prosecution as true when it’s not remotely factual. It allows the writers and producers of this tripe to fabricate evil villains and do grave harm by faking words and deed and attributing them to real people, even though they know it’s a lie and, more importantly, they know and intend that people believe it’s at least basically true.
The case will now go to trial, led by the brilliant Kara Gorycki at Andrew Miltenberg’s firm, unless the defendants decide to settle in the interim. To the extent you had any remaining faith in Ava DuVernay’s integrity, this trial should put an end to it.