Is Linda Fairstein’s Portrayal in Netflix’s “When They See Us” Fair?

Former New York prosecutor Linda Fairstein is suing Netflix over her portrayal in the limited series "When They See Us," which tells the story of the 1989 Central Park Five case. Scott Hervey and Tara Sattler discuss this dispute on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here. Show Notes: Tara: There have been quite a few high-profile defamation cases making their way through the courts recently. One of those cases is Fairstein v. Netflix, a defamation case brought by attorney Linda Fairstein, the New York City prosecutor who ran the sex crimes unit and oversaw the prosecution of five African American men known as the Central Park Five, who were wrongly accused and imprisoned for a near-fatal rape in Central Park. Fairstein sued Netflix for defamation over her character's depiction in the limited series When They See US, that was released by Netflix and produced by The Streamer. Even though the case has not yet gone to trial, there have been several interesting pretrial rulings. In the most recent ruling, a federal judge in New York denied Netflix's motion for a summary judgment, which means that the case is one step closer to trial. On this installment of the briefing, we're going to talk about the recent ruling and the potential impacts that this ruling may have on the uber-popular film and television programming that's based on real events and real people. Scott: Since it has been a while since we've talked about this case, let's briefly talk through Fairstein's allegation of defamation. She alleges that she was incorrectly portrayed by actress Felicity Huffman as having a larger role in the Central Park Five's fate than was factually accurate. She mentions three specific episodes and that she is portrayed in a false and defamatory manner in nearly every scene in those episodes. Her original complaint claims that this series depicts her using her true name as a racist, unethical villain who is determined to jail innocent children of color at any cost. Tara: Decades of case law has established that in order to prevail in a defamation case, the plaintiff has the burden of proof to establish that the statements at issue were indeed false. And here, because the plaintiff is considered a public figure, the plaintiff also has to prove that the defendant acted with actual malice in making the statement at issue. While there are some other factors in defamation, these factors are the most interesting in this particular case. Scott: That's right. And the last element you mentioned, that the defendants acted with actual malice, was part of the recent ruling in the Fairstein case of Netflix's motion for summary judgment. In order to prove that the defendant acted with actual malice, the plaintiff has to prove that the defendant acted in reckless disregard for the truth. Here, we're dealing with dramatization, and courts have applied the actual malice standard to dramatized accounts of real events, often recognizing that the use of invented dialog or a condensed timeline may be necessary for storytelling and that those facts are not themselves evidence of actual malice. Here, Fairstein needed to prove with clear and convincing evidence that Netflix and the producers acted in reckless disregard for the truth when portraying her in the series. Tara: So Netflix filed for summary judgment, arguing that they did not act with actual malice. Because the filmmakers are very confident that their portrayal of Ferrise reflected the essence of truth based on their multiple trusted sources and research,