There is a high bar to proving libel in America. The Supreme Court has said that a public figure suing for libel must prove, by clear and convincing evidence, that the defamatory statement was made with “actual malice,” which is defined as knowledge of falsity or reckless disregard for the truth. “Recklessness” is the failure to use even slight care.
Most such claims are dismissed before trial. This is particularly true in cases regarding expressive works, such as films and novels. Sometimes, however, the plaintiff has enough to get before a jury.
A federal judge in Manhattan grappled with these concepts recently in a David versus Goliath case. In a groundbreaking decision against Netflix, the court denied defense motions to dismiss and found that Linda Fairstein, a prominent sex crimes prosecutor and mystery writer, will have her day in court.
The suit arose out of a 2019 Netflix series titled “When They See Us,” promoted as being “based on the true story of the Central Park Five.” The series luridly paints Fairstein, identified by her real name on film, as the central villain in a plot to jail the innocent Five at any cost.
The series depicts the arrest, prosecution and conviction of five young men accused of beating and raping Patricia Meili, a 29-year-old female jogger, in Central Park in 1989. The series also addresses the reversal of these convictions in 2002, after a serial rapist named Matias Reyes came forward to claim sole responsibility for the crime. Corroborating Reyes’s confession was that his DNA matched the samples taken from Meili’s cervix, her sock and other personal belongings.
The series was riddled with falsehoods, particularly when it came to Fairstein.
On the night of April 19, 1989, a group of about 30 teenage boys gathered in the northeast section of Central Park and engaged in the indiscriminate beating and harassment of cyclists, joggers, taxi cabs and pedestrians. That same night, Meili was found in a coma, beaten and raped near the Park’s 102nd Street transverse.
Five teenagers named Antron McCray, Kevin Richardson, Yusef Salaam, Raymond Santana and Korey Wise were charged and became known as “The Central Park Five.” They were convicted in 1990 of criminal acts relating to the incident, and the court imposed significant sentences. When questioned by authorities in the days after the Meili attack, each of the Five admitted to some level of participation in the assault and rape, though none admitted to being the person who raped her. The New York courts upheld the confessions as free and voluntary.
Fairstein was then a seasoned and highly regarded prosecutor in the office of legendary New York District Attorney Robert M. Morgenthau, for decades the head of Morgenthau’s sex crimes unit. When Fairstein learned of the incident, she conferred with Morgenthau about who should be assigned to the case. Morgenthau assigned the matter to Elizabeth Lederer, an assistant district attorney who tried homicide cases and also handled cases for the sex crimes unit.
Fairstein visited the police precinct where the defendants were questioned on the night of April 20, remaining there for approximately 32 hours. There is no suggestion that she herself directly questioned individual suspects, whose interrogations were largely conducted by police officers. Fairstein did not prosecute the Five. She testified as a fact witness in the trials and at a suppression hearing.
Ava DuVernay, an Academy Award-nominated writer, director and producer, was the “showrunner” of the Netflix series, As such, she headed the Netflix team. She directed the series producers to research materials for the writing staff, including published books and articles, interviews of the Five and their family members, court transcripts, videos and transcripts of the Five’s interrogations, and contemporaneous news reports.
There are five scenes in the series depicting Fairstein as the Svengali-like puppeteer of the docudrama, pulling the strings of the investigation. She is seen ordering the police not to use “kid gloves” on the Five, and instructing them to conduct a roundup of “young black male[s]” in Harlem. The Fairstein character singlehandedly devises a “one size fits all” timeline of the Meili rape, and relishes the “surprise” of conducting a DNA test “right before the trial” without the knowledge of defense counsel. All this was false, and found nowhere in the research materials.
In a final scene, Fairstein is confronted in the docudrama over lunch by prosecutor Nancy Ryan about having “coerced” false confessions from the Five. Netflix knew that, in real life, Ryan’s affirmation filed in support of the motion to vacate the conviction makes no mention of Fairstein; nor does it attribute any misconduct to the police and prosecutors involved in the original investigation. The Ryan conversation was a Netflix invention. In damning testimony, DuVernay admitted in deposition and text messages that she intended it as a “message” to Linda and everything she wanted to say to her.
Malice in a defamation case involving a public figure does not mean actual ill-will. But it does require that the statements made have not been made recklessly. Fairstein claims that Netflix and DuVernay paid little or no attention to whether it was all true or false; their motive was solely to tell a good story — and a good story needs a villain.
After the series was released, Fairstein suffered real damage to her reputation. She lost her publisher and her agent, and she was forced to resign from various boards on which she had served. As a coup de grâce, before the series streamed, series co-writer Attica Locke posted a series of tweets advocating that the Mystery Writers of America should not recognize Fairstein with a planned award at its 2019 banquet because of her role in the Central Park jogger case. The award was withheld.
It was Locke who co-wrote the scene about the “surprise DNA test.” On deposition, she admitted that the scene was “invented.”
The jury will now have to decide whether Netflix’s decision to make Fairstein the central “villain” was reckless in imputing to her unprofessional and even illegal conduct unsupported by the substantial body of source materials the show’s writers used.
It will not be surprising if Netflix settles the case.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the acclaimed public television talk show and podcast Conversations with Jim Zirin.