A federal judge has thrown out a defamation suit brought by a retired police officer who argued that the Netflix docuseries “Making a Murderer” falsely accused him of planting evidence.
In a ruling on summary judgment on Friday, Judge Brett Ludwig found that the plaintiff, Andrew Colborn, had failed to show that Netflix or the filmmakers had acted with “actual malice” in crafting their portrayal of him.
The docuseries, which debuted in December 2015, pursued the defense theory that police had framed a man, Steven Avery, for a murder he did not commit. Avery was convicted and sentenced to life in prison, though he continues to seek various appeals.
The series became a breakout hit for Netflix and heralded a true-crime boom on the service.
Colborn filed suit in 2018, arguing that he had been subjected to “worldwide ridicule” by the series. The suit alleged that “Making a Murderer” distorted the facts, altered testimony and omitted key information to falsely portray Colborn as a corrupt officer who planted evidence.
As a police officer, Colborn is a public figure. He must show that the filmmakers either knew what they were saying about him was false or showed reckless disregard as to whether it was false. In his ruling, Ludwig found that he had failed to meet that standard.
“The First Amendment does not guarantee a public figure like Colborn the role of protagonist in popular discourse — in fact, it protects the media’s ability to cast him in a much less flattering light,” the judge wrote.
Colborn took issue with 52 separate instances of alleged defamation in the series. The judge found that many of his complaints amounted to “media criticism better suited to the op-ed section.” Among them were 13 instances of ominous music cues or graphics that, in the judge’s view, did not rise to the level of “statements” under defamation law.
The judge found that other statements could not be shown to be specifically about Colborn, such as a bar patron who said, “I only have one word, from the cops on up; it’s corruption. Big time. I mean,
if people dig far enough, they’ll see that.”
“If this vague critique of bureaucracy constituted defamation, free speech would be reduced to the freedom to commend those in power,” Ludwig wrote.
The judge also found that seven other statements in the series are indisputably true; therefore, they are protected from defamation claims.
Colborn had also complained that trial testimony was spliced together or taken out of context, but the judge rejected those claims, finding that the edits did not alter the meaning of what was said.
The defense had argued that “Making a Murderer” ought to be protected under the “fair report” privilege, which gives journalists the power to cover accusations — even false ones — made at trials and other government proceedings.
Ludwig was not willing to go that far, however, finding that the series is “not always so evenhanded in its presentation.”
“To do as Defendants wish and lump this kind of prestige television in with meat and potatoes beat reporting would expand the scope of the fair report privilege to a degree that is inconsistent with the common law or existing First Amendment authorities,” Ludwig wrote. “To the extent it qualifies as journalism, it often hews closer to gonzo than objective and its visual language could be read to suggest something perhaps more nefarious than the totality of the evidence warrants.”
The judge also wrote that a jury could conclude that the series “nudges viewers toward the conclusion” that Colborn planted evidence.
Colborn’s lawyers argued that emails between the production team showed that the filmmakers intentionally portrayed him as a villain. But the judge was not persuaded finding that Colborn had not turned up evidence of malice — that is, knowledge disregard of falsity — in the communications.
“Nothing in any of these emails indicates an intent to imply that Colborn framed Avery,” the judge found.
The judge concluded with a defense of the First Amendment right to negative portrayals.
“In the end, Colborn’s turn in ‘Making a Murderer’ may not have been to his liking, but that
does not make it defamatory,” he wrote. “Few aspire to enter the cultural zeitgeist on such controversial terms. That possibility, though, is a necessary byproduct of the freedom of press that the First Amendment protects. If media could portray us only at our best, we would be a country of antiseptic caricatures, and less intelligent for it. We have not sunken so low just yet.”