NEW YORK (Legal Newsline) – It is unlikely Netflix will be able to settle a high-profile defamation lawsuit brought over a critically acclaimed series created by Ava DuVernay.
That’s according to its lawyers and attorneys representing Linda Fairstein, the longtime head of the Manhattan District Attorney’s Sex Crimes Unit who says she was unfairly portrayed in When They See Us – the story of five men who were falsely accused and convicted of the rape of a Central Park jogger in 1989.
The 2019 series received 11 Emmy Award nominations. But Fairstein says the show’s portrayal of her has caused her post-prosecutor life as a best-selling crime novelist to crumble, in addition to becoming the subject of death threats.
In a letter to New York federal judge Kevin Castel, attorneys for those involved disclosed that a settlement is unlikely and that the case is headed toward trial.
“Throughout the film series, Ms. Fairstein is portrayed as making statements she never said, taking actions that she did not take – many of them racist and unethical, if not unlawful – in places that she never was on the days and times depicted,” says the lawsuit, filed in March.
“On a number of occasions, Ms. Fairstein is portrayed using inflammatory language, referring to young men of color as ‘thugs,’ ‘animals’ and bastards,’ that she never used.
“The film’s portrayal of Ms. Fairstein extends far beyond artistic license or dramatization. Using Ms. Fairstein’s real name, Defendants depict Ms. Fairstein as the singular mastermind behind a racist plot to obtain convictions of The Five at any cost.”
Fairstein’s lawsuit points out that she was not the trial prosecutor on the cases against The Five. She says prior to the development of the series, she expressed her concerns that she be portrayed accurately to DuVernay and Netflix and provided them with a list of publicly available sources like trial transcripts and deposition testimony.
She says DuVernay and Netflix disregarded her concerns. After the series aired, her publisher dropped her and Glamour Magazine publicly expressed regret for awarding her its 1993 Woman of the Year Award.
Netflix, DuVernay and a series writer are arguing the series is an artistic dramatization and say Fairstein had a larger role in the prosecution than her lawsuit lets on.
“Plaintiff, the head of the District Attorney’s Sex Crimes Unit in 1989, was the public official who oversaw and had critical responsibility for the prosecution,” the letter to the judge says.
“Plaintiff spent more than 30 hours at the police station during the investigation and interrogations of the Five as the highest-ranking prosecutor from the D.A.’s office. She visited the crime scene with detectives and two of the Five teens and testified for the prosecution at trial.
“She later became a famous crime novelist and, as Netflix contends, touted her involvement in the case and used that platform to publicly defend the prosecution and proclaim the Five’s guilt…”
Netflix says the speech in the series is protected by the First Amendment, arguing the show is not a documentary but a dramatization based on a true story – “the story of the Five from their point of view.”
“Case law strongly protects filmed dramatizations of controversial historical events that compress events or places characters in different places or enhances dialogue for dramatic effect,” lawyers argue.