Netflix can be sued by ex-Central Park Five prosecutor for defamation

By Jonathan Stempel

NEW YORK (Reuters) – (This Sept. 20 story has been refiled to correct typographical error in paragraph 9)

Netflix was ordered by a federal judge to face a defamation lawsuit by best-selling author and former Manhattan prosecutor Linda Fairstein over her portrayal in a 2019 crime drama about the Central Park Five case.

U.S. District Judge Kevin Castel on Tuesday said Fairstein plausibly alleged that Netflix, director Ava DuVernay and writer-producer Attica Locke acted with actual malice as to five scenes in “When They See Us.”

The series dramatized the story of five Black and Hispanic teenagers who spent five to 13 years in prison after being wrongfully convicted in the April 1989 rape of a white jogger in Central Park. Another man confessed in 2002.

Castel in a 67-page decision found evidence that in depicting Fairstein as a villain emblematic of broader problems in criminal justice, the 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 Manhattan judge said jurors should decide whether there was “clear and convincing evidence that defendants were recklessly indifferent to the truth.”

Netflix, based in Los Gatos, California, and the defendants’ lawyers did not immediately respond to requests for comment. A lawyer for Fairstein had no immediate comment.

Fairstein, 76, had been running the sex crimes unit of the Manhattan District Attorney’s office when the 28-year-old jogger, later identified as Trisha Meili, was attacked.

The five alleged defamatory scenes include suggestions that Fairstein withheld evidence, coerced confessions and ordered a mass police roundup of young Black men in Harlem.

Backlash from the series caused Fairstein to lose her publisher, resign under pressure from several boards and be attacked on social media including under the hashtag #CancelLindaFairstein.

The defendants said Fairstein offered no evidence that their portrayal of her “reflected the essence of truth” and was protected by the First Amendment.

They also said that the lawsuit threatened filmmakers’ ability to dramatize controversial, real-life events when told from “different and often marginalized perspectives.”

New York City reached a $41 million settlement with the five original defendants, without admitting wrongdoing, in 2014.

The case is Fairstein v. Netflix Inc et al, U.S. District Court, Southern District of New York, No. 20-08042.

(Reporting by Jonathan Stempel in New York; Editing by Mark Porter)