Fairstein v. Netflix, Inc.

• Decision Date: 09 August 2021
• Docket Number: 20-cv-8042 (PKC)
• Citation: 553 F.Supp.3d 48
• Parties: Linda FAIRSTEIN, Plaintiff, v. NETFLIX, INC., Ava DuVernay and Attica Locke, Defendants.
• Court: U.S. District Court — Southern District of New York

553 F.Supp.3d 48

Linda FAIRSTEIN, Plaintiff,

v.NETFLIX, INC., Ava DuVernay and Attica Locke, Defendants.

20-cv-8042 (PKC)

United States District Court, S.D. New York.

Signed August 9, 2021

Edward K. Cheffy, Rachael S. Loukonen, Kimberly Dawn Swanson, Cheffy Passidomo, P.A., Naples, FL, Andrew Todd Miltenberg, Kara Lynn Gorycki, Nesenoff & Miltenberg, L.L.P., New York, NY, for Plaintiff.

Eric S. Olson, Cardinal Law, P.A., Kelley Geraghty Price, Dentons Cohen & Grigsby, PC, Naples, FL, Kiran Patel, Pro Hac Vice, Sandra Denise Hauser, Dentons US LLP, New York, NY, Gregory R. Naron, Pro Hac Vice, Jacqueline A. Giannini, Pro Hac Vice, Natalie J. Spears, Pro Hac Vice, Dentons US LLP, Chicago, IL, for Defendants.

OPINION AND ORDER

CASTEL, U.S.D.J.

On the night of April 19, 1989, a young woman was viciously beaten and raped in Central Park. Five young men of color (the "Five"), ranging in age from 14 to 16, were arrested, tried and convicted for the attack. They were exonerated in 2002, after the confession of a man whose DNA matched a sample found near the victim. The case, which is known among the press and public as the "Central Park Jogger" or "Central Park Five" case, drew intense public interest in the immediate aftermath of the attack and remains the subject of scrutiny and debate.

Plaintiff Linda Fairstein was chief of the Sex Crimes Prosecutions Unit in the District Attorney's office of New York County during the investigation and prosecution of the Five. According to her Complaint, Fairstein had supervisory authority over the case but was not one of the prosecution's trial attorneys. After a successful and high-profile legal career, Fairstein remained in the public eye as a prolific mystery writer and public speaker. In the years following the exoneration of the Five, Fairstein made public statements that defended the work of police and prosecutors on the case, and she has publicly argued that the Five were hastily exonerated.

In May 2019, the popular streaming service owned by defendant Netflix, Inc. ("Netflix") released a four-part dramatization of the arrest and prosecution of the Five, called "When They See Us." Produced by Oprah Winfrey, the limited series features high production values that have become standard in subscription television, including a cast of famous actors, a soundtrack of popular music, and atmospheric, hallucinatory sequences intended to reflect the characters’ psychological states. "When They See Us" is also openly sympathetic to the Five. In early scenes, it depicts the Five as typical teenagers negotiating the challenges of school, family and social life before they are incorrectly and unjustly suspected of rape. The series then follows the Five through trial and incarceration, and their later struggles as young adults adjusting to post-release life. Throughout, "When They See Us" depicts the Five as innocent young men who are harmed by an unjust prosecution and an unsympathetic and often brutal system bent on incarcerating the Five.

Fairstein is portrayed as a central villain of "When They See Us." As depicted in the series, she quickly concludes that the Five are responsible for the attack, and is thereafter portrayed as a zealous, win-at-all-costs prosecutor. In one sequence, she intentionally delays the production of critical DNA evidence to defendants until the eve of trial, and in others, she instructs members of the New York City Police Department ("NYPD") to engage in harsh investigative techniques. The series portrays her as the architect of various theories of the Five's guilt, and through the concluding scenes of the series, she remains persuaded of their involvement in the face of countervailing evidence. Fairstein alleges that nearly every scene depicting her is a fabrication that presents her in a false and defamatory light.

The Complaint brings claims of defamation against Netflix, series director and producer Ava Duvernay, and series writer and producer Attica Locke. All defendants move to dismiss the Complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P., urging that it has not plausibly alleged that the depictions of Fairstein are defamatory under New York law.

In deciding the motion to dismiss, the Court is limited to the factual allegations of the Complaint, materials that are attached by the Complaint or integral thereto, and matters of which the Court may take judicial notice. As defendants acknowledge, the issue of actual malice is more appropriately weighed at a later stage of the proceedings. See, e.g., New York Times v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (noting "the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials."). Similarly, on the present motion, defendants are not permitted to offer evidence (except the limited materials that may be considered on a motion to dismiss) to dispute Fairstein's factual assertions that she played only a limited role in the NYPD's investigation. The arguments raised in defendants’ motion are therefore narrow and directed to whether Fairstein's Complaint has plausibly alleged a defamatory meaning to eleven scenes of "When They See Us."

For the reasons that will be explained, defendants’ motion will be granted in part and denied in part. Certain scenes alleged to be defamatory merely show routine and prosaic activities that lack a plausible defamatory meaning. In other scenes, the depictions of Fairstein are privileged against a claim of defamation because they convey the subjective opinions of defendants and could not be understood by the average viewer to be a literal recounting of her words and actions.

Fairstein has plausibly alleged a claim of defamation as to five scenes. These scenes depict Fairstein as orchestrating acts of misconduct, including the withholding of evidence, the existence of "tapes" showing that she "coerced" confessions from the Five, an instruction not to use "kid gloves" when questioning suspects, and directing a racially discriminatory police roundup of young men in Harlem. The average viewer could conclude that these scenes have a basis in fact and do not merely reflect the creators’ opinions about controversial historical events. Separately, the Court concludes that defendants have not demonstrated the substantial truth of a scene depicting Fairstein's creation of an attack timeline because they rely on public remarks that are inconsistent with her depiction in the scene.

BACKGROUND.

A. Overview of the Underlying Events Relating to the Five.

On the night of April 19, 1989, a jogger, Patricia or "Trisha" Meili, was beaten and raped in Central Park. (Compl't ¶ 37.) Five young men of color, ranging in age from 14 to 16, were arrested, charged, tried and convicted for their purported roles in the attack: Korey Wise, Raymond Santana, Kevin Richardson, Yusef Salaam and Antron McCray. (Compl't ¶¶ 4, 38.)

Fairstein was employed in the Manhattan District Attorney's Office from 1972 to 2002, and she was chief of its Sex Crimes Prosecution Unit during the events depicted in "When They See Us." (Compl't ¶¶ 32, 39.) Along with District Attorney Robert Morgenthau and Trial Division Chief John Fried, Fairstein was one of the decisionmakers who assigned Assistant District Attorney Elizabeth Lederer to the case. (Compl't ¶ 39.)

According to Fairstein, during the prosecution of the Five, she functioned as a liaison to Morgenthau and gave technical assistance to Lederer. (Compl't ¶¶ 39-40.) Fairstein asserts that she was neither the lead prosecutor nor a courtroom litigator in the proceedings. (Compl't ¶¶ 39-40.) According to Fairstein, Lederer was responsible for the prosecution and Fairstein acted principally as a technical adviser to Lederer and a liaison to Morgenthau. (Compl't ¶ 39.) Fairstein also was a witness in suppression hearings and trial proceedings of the Five. (Compl't ¶ 39.)

In 2002, after the trial and conviction of the Five, a man named Matias Reyes confessed to raping and attacking Meili. (Compl't ¶ 41.) Testing showed that Reyes's DNA matched samples taken from Meili and her belongings. (Compl't ¶ 41.) The convictions of the Five were vacated on the basis of this newly discovered evidence. (Compl't ¶ 41.)

The Five subsequently brought civil claims against the City and individual defendants, including Fairstein. (Compl't ¶ 42.) According to the Complaint, during the pendency of this litigation, several books and films were published about the case, "some of which falsely portrayed Ms. Fairstein as prosecuting The Five." (Compl't ¶ 42.) Fairstein states that, at the direction of a federal district judge, she "was unable to comment on the case or respond to any such false portrayals." (Compl't ¶ 42.) The Five's civil claims settled for $41 million in 2014. (Compl't ¶ 43.) When the settlement was announced, the Manhattan District Attorney and the Corporation Counsel for the City publicly stated that the prosecutors acted reasonably and did not engage in acts of wrongdoing. (Compl't ¶ 43.)

B. Overview of "When They See Us" and Its Depiction of Fairstein.

On May 31, 2019, Netflix released "When They See Us" on its popular streaming service. (Compl't ¶ 1.) It was written, directed and produced by defendant Ava DuVernay and co-written and produced by defendant Attica Locke. (Compl't ¶¶ 2-3.) "When They See Us" consists of four episodes of approximately 60 to 90 minutes in length. (Compl't ¶ 44.) Fairstein features prominently in Episode 1 and makes brief but memorable appearances in Episodes 2 and 4.¹ The Complaint asserts that as to Fairstein, "[n]early every portrayal is false and defamatory." (Compl't ¶ 44.)

The series primarily centers on the individual experiences of each of the Five, beginning with their everyday lives as adolescents prior to the events of April 19, 1989, and then following them through their arrest,...