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Ex-Prosecutor Linda Fairstein Can Sue Netflix Over ‘When They See Us’ Portrayal

felicity huffman Linda Fairstein When They
Courtesy of Netflix

A judge ruled on Monday that former prosecutor Linda Fairstein has a plausible claim that she was defamed by “When They See Us,” the Netflix series from Ava DuVernay about the Central Park Five case.

Fairstein sued Netflix, DuVernay and writer Attica Locke in March 2020, alleging that the four-part series portrayed her as a “racist, unethical villain” who framed five young men for a brutal rape and beating.

Netflix had argued that the show was protected by the First Amendment. In seeking to throw out the suit, the streamer argued that the filmmakers are allowed to use some dramatic license in creating a portrayal of Fairstein that was substantially true.

U.S. District Judge Kevin Castel dismissed a handful of Fairstein’s allegations, but he held that the show had depicted Fairstein in a way that could be defamatory in five scenes.

“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,” Castel wrote.

Andrew Miltenberg, Fairstein’s attorney, said he was “extremely pleased” by the ruling.

“We are glad that Ms. Fairstein now has the opportunity to pursue her claims with respect to five critical scenes in the series that falsely depict Ms. Fairstein engaging in coercive and discriminatory conduct in order to build a case against innocent young men of color,” he said in a statement.

Netflix said it would continue to defend the series, and was confident that it would prevail in the end.

“We’re thankful for Judge Castel’s thoughtful assessment of the issues,” the company said in a statement. “We’ll continue to vigorously defend ‘When They See Us’ and the incredible team behind the series, and we’re confident that we’ll prevail against Ms. Fairstein’s few remaining claims.”

Fairstein was portrayed by Felicity Huffman on the show, which was released in 2019. She figures most prominently in the first episode, where Fairstein is depicted as directing a discriminatory roundup of suspects in Harlem.

“Every young black male who was in the park last night is a suspect in the rape of that woman who is fighting for her life right now,” Fairstein’s character says on the show. “You go into those projects and you stop every little thug you see.”

In the suit, Fairstein said she did not oversee the police investigation, and did not direct anybody to round up “thugs” in Harlem. Castel allowed her to proceed with a defamation claim based on that depiction.

“The average viewer would not necessarily conclude that her remarks were merely a reflection of the filmmakers’ opinions about the perspective of law enforcement, and could instead conclude that Fairstein directed discriminatory policing practices,” the judge wrote.

Fairstein is also depicted as encouraging the use of coercive interrogation tactics, creating a timeline that would guide the prosecution’s theory of the case, and suggesting that DNA evidence be withheld from the defense. The series also shows another prosecutor confronting Fairstein, and saying “you knew you coerced those boys into saying what they did.”

The judge ruled that each of those scenes could also be defamatory. He allowed Fairstein to pursue a claim that the defendants had “conspired” to defame her by writing and producing the series.

Fairstein had also taken issue with six other scenes, in which she was depicted discussing “wilding” attacks and using the term “animals” to refer to suspects. The judge ruled that those scenes were not defamatory, and dismissed those claims.

The judge also noted that DuVernay and Locke had made critical comments about Fairstein while promoting the series. In one interview, Locke said “Linda Fairstein is trash, was trash, will always be trash.”

“The question of whether defendants actually agreed to defame Fairstein is properly subject to discovery, but the opprobrium expressed toward Fairstein in certain of defendants’ public comments lend some plausibility to the claim,” the judge wrote.