Netflix And Ava DuVernay Settle Defamation Lawsuit Brought By Central Park Five Prosecutor


Linda Fairstein, the controversial former prosecutor involved in the Central Park Five case, has settled her defamation lawsuit against Netflix and Ava DuVernay over the 2019 docuseries “When They See Us.”

Fairstein sued in 2020, alleging that she was falsely portrayed as a racist villain who orchestrated the convictions of five innocent young men. The case was set to go to trial next week in federal court in Manhattan.

In the settlement, Netflix agreed to donate $1 million to the Innocence Project. Fairstein will not receive money.

Netflix also agreed to add this disclaimer to the front of the show: “While the motion picture is inspired by actual events and persons, certain characters, incidents, locations, dialogue, and names are fictionalized for the purposes of dramatization.”

Fairstein said in a statement that the litigation has revealed the truth about the case. She cited a judge’s ruling last fall denying Netflix’s motion for summary judgment, which held that several scenes in the series were not backed up by the historical record, and that a reasonable jury could find them defamatory.

“This is what this case was all about — not about ‘winning’ or about any financial restitution, but about my reputation and that of my colleagues,” Fairstein said. “It was about setting the historical record straight that the villainous caricature invented by the defendants and portrayed on screen was not me.”

DuVernay also issued a statement, saying that Fairstein’s husband reached out to “pull the plug” on the lawsuit just days before trial was to begin.

“After years of legal wrangling and millions of dollars spent, she walked away with no payment to her or her lawyers of any kind, rather than face cross examination before a New York jury as to her conduct and character,” DuVernay said.

Netflix also issued a brief statement, joined by DuVernay, Fairstein and co-writer Attica Locke.

“The parties announce that they have resolved this lawsuit. Netflix will donate $1 million to the Innocence Project. Ms. Fairstein will not receive any money as part of this settlement.”

The four-part series was based on substantial research, including books, magazine stories, news articles and a documentary, many of which were critical of Fairstein and other law enforcement officials. Rather than portray a composite character, the creators chose to depict Fairstein by name. She was played by Felicity Huffman.

Fairstein was featured most prominently in the first episode, where she said that “every young Black male who was in the park last night is a suspect” in the attack.

“Let’s get an army of blue up in Harlem,” her character says at one point. “You go into those projects and you stop every little thug you see.”

Fairstein argued that the show falsely portrayed her as directing the law enforcement response, and that it was defamatory to allege that she led a racist roundup.

Robin Swicord, the screenwriter who wrote drafts of some of the scenes, said in a declaration that the criminal justice system was set up as the antagonist in the show, and that Fairstein was “the
face of that system.”

Fairstein was also portrayed as creating a timeline of the crime, and then shoehorning facts to fit the timeline, with the implication that she was the driving force behind the wrongful prosecution.

In his summary judgment ruling, Judge P. Kevin Castel noted that there is no evidence in the record suggesting that Fairstein created the timeline.

When asked about her source for the claim during a deposition, DuVernay noted that the show “is not a documentary.”

“So the movements, dialogue, actions of the characters are not pinned to, connected to, backed up by specific pieces of information,” DuVernay said.

Netflix argued in its summary judgment motion that the portrayal was “substantially true,” and that dramatizations should be afforded some “leeway” and should not be held to journalistic standards of accuracy.

In his ruling, the judge rejected that argument, finding that a jury could interpret the filmmakers’ actions as deliberately twisting the record to defame Fairstein.

“There is evidence that, by opting to portray Fairstein as the series villain who was intended to embody the perceived injustices of a broader system, 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,” Castel wrote.

Fairstein continued to defend the Central Park Five prosecution even after DNA evidence showed another man was culpable, and the five were exonerated. The five defendants — Korey Wise, Raymond Santana, Kevin Richardson, Yusef Salaam and Antron McCray — were awarded a $41 million civil settlement in 2014.

DuVernay said in her statement that Fairstein’s settlement proposal included a payout to Fairstein, as well as a disclaimer stating that “everything to do with her in the show was fabricated.”

“We refused both,” DuVernay said.

She added that the two sides did not agree on a confidentiality provision, which she said, “allows me to share what I feel about her claims for the first time.”

“I believe that Linda Fairstein was responsible for the investigation and prosecution of the Central Park Jogger case that resulted in the wrongful conviction of five innocent Black and Brown boys,” she said.

Andrew Miltenberg, an attorney who represented Fairstein, said that DuVernary’s account of the settlement discussions was misleading. He said DuVernay’s attorney was not directly involved.

“There was a typical back and forth over a few days about a potential settlement,” he said. “Initial discussions included a request for Linda’s attorneys’ fees and expenses. Not money for Linda.”

After the series was released, Fairstein was dropped by her literary agency and the publisher of her crime novels. She also faced significant online backlash and was forced to resign from several boards.

Kara Gorycki, another attorney who represented Fairstein, said in a statement that her client had stood up against “one of the world’s largest and most powerful media companies.”

“It is our sincere hope that this settlement serves as a wakeup call to Netflix and other media companies that they have a responsibility to show fidelity to the truth when portraying real human beings and should not attempt to profit from the utterly false villainization of people, as they did in Linda’s case,” Gorycki said.

The disclaimer, stating that certain elements had been fictionalized, was already included in the end credits of the show. Fairstein’s lawyers had argued that it passed briefly, and that viewers watching on “autoplay” would not see it.

Had the case gone to trial, Fairstein, DuVernay, Swicord and others likely would have been called to testify, offering their perspectives on the boundaries of fictionalization of real-world events.

Because Fairstein is a public figure, her lawyers would have been required to prove not only that the depictions were false, but also that the filmmakers knew they were false or recklessly disregarded the truth. They would also have had to show that the series did appreciable harm to Fairstein’s reputation.

“We are confident that we would have won,” Miltenberg said in a statement.

He argued that the case was “precedent setting,” and that its impact “will be heard throughout the media industry, as Netflix and others feel compelled to take far greater care to represent real people with truthfulness and integrity, rather than dehumanizing them and turning them into fake caricatures.”

Bart Williams and Natalie Spears, the attorneys who represented Netflix, DuVernay and Locke, countered in a statement of their own that any claim that Fairstein was vindicated is “ludicrous.”

“The outcome was a total victory for Netflix and its creative partners,” the attorneys said.

In her statement, DuVernay said that Fairstein had “painted herself as the victim.”

“She has suggested that the false story she tells about these wrongfully incarcerated men is the only right one, and that their experiences are not worth being heard or believed,” DuVernay said. “‘When They See Us’ did not get Linda Fairstein cancelled. Linda Fairstein’s own actions and words are responsible for everything that she is experiencing. In the days leading up to her defamation trial, Linda Fairstein decided that she was not willing to face a jury of her peers. It’s a phenomenon that often happens with bullies. When you stand up to them, unafraid, they often take their ball and go home.”

In response, Miltenberg said that DuVernay was avoiding the key issue in the defamation case.

“The key fact, which Ms. DuVernay regrettably does not contend with, is that the court found that she reverse engineered facts to ‘invent’ a villainous character,” he said. “Instead, she insists the portrayal in the film is fact, which stands in contrast to the disclaimer that will now be displayed before each episode of the series acknowledging that elements of the film are ‘fictionalized.’”

DuVernary also thanked Netflix “for its unwavering support of artists” and for making the contribution to the Innocence Project.

“I hope that one day Linda Fairstein can come to terms with the part she played in this miscarriage of justice and finally accept responsibility,” she said.



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