In the first episode of When They See Us, Ava DuVernay’s stark drama about the Central Park Five, Linda Fairstein, then head of the sex crimes unit investigating the case, gives a directive to send a large contingent of officers to Harlem.
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| Netflix titles under scrutiny include 'The Queen's Gambit,' 'When They See Us,' 'The Crown,' 'Baby Reindeer' and 'Inventing Anna.' COURTESY OF NETFLIX; AARON EPSTEIN/NETFLIX; JUSTIN DOWNING/NETFLIX; KEN WORONER/NETFLIX; ATSUSHI NISHIJIMA/NETFLIX |
“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,” her character, played by Felicity Huffman, declares. “You go into those projects, and you stop every little thug you see.”
Is this DuVernay exercising broad artistic liberties under the First Amendment to cast Fairstein as the central antagonist in the miniseries, even if the ex-prosecutor might not have issued that specific order? Or does it cross into the realm of defamation?
In the acclaimed series, Fairstein is depicted as the embodiment of a corrupt criminal justice system determined to secure convictions against five Black and Latino teenagers accused of raping a white jogger in Central Park, a crime for which they were later exonerated.
Throughout the show, she is shown directing officers to aggressively interrogate the boys, violating their constitutional rights, withholding crucial evidence, and ultimately coercing confessions that led to their imprisonment. Fairstein, who filed a defamation lawsuit in 2020, claims these events never occurred.
She is not alone in contesting alleged inaccuracies in historical dramas. Other real-life subjects depicted in film and TV productions using their real names have also raised objections, including the royal family (The Crown), a swindler’s friend (Inventing Anna), and a Georgian chess champion (The Queen’s Gambit).
As Netflix faces a surge of defamation lawsuits, a growing body of case law is gradually eroding the legal protections once thought to broadly shield dramatizations.
Lisa Callif, a lawyer specializing in financing, production, and legal clearance for film and TV, notes that the increased scrutiny on dramatizations has created a “difficult dynamic” for creatives, who must now be cautioned against “embellishing things, like adding negative attributes or enhancing negative depictions.” She emphasizes, “We now have this battery of cases pointing to our concern. This makes us even more careful.”
On June 4, Netflix and DuVernay reached a settlement with Fairstein in the highly watched case. As part of the agreement, Netflix consented to moving a portion of the dramatization disclaimer from the credits to the beginning of each episode.
For Netflix, the lawsuit over When They See Us represented more than just the specific series or the $8 million in damages sought. The broader issue at stake was the extent of artistic liberties that creatives can take when making films and TV shows based on real-life events. In this arena, Netflix has been losing ground.
The company took a risk by allowing the case to proceed as far as it did, ultimately losing when the court ruled that a jury should decide whether Fairstein was defamed in five specific scenes. “The damage has already been done,” says Alexander Rufus-Isaacs, a lawyer who has represented plaintiffs in defamation lawsuits against Netflix, referencing the case law that emerged from this litigation, which he predicts will be cited in future lawsuits.
For Ava DuVernay, creating When They See Us was an opportunity to set the record straight. As a high school junior in Compton applying to journalism schools when the Central Park Five case made national news, she had already harbored suspicions about the veracity of the media narrative even before the boys were exonerated. She sensed that the news might not be true and that the teenagers could have been wrongfully railroaded by the criminal justice system.
When Raymond Santana, one of the Central Park Five, reached out to her on Twitter in 2015 to solicit her involvement in a show about the case, DuVernay seized the opportunity. It allowed her to address issues she has dedicated her career to: race, criminal justice, and the power of narrative. The lawsuit centered on her interpretation of history and whether she remained faithful to the source materials she used to create the series.
For public figures like Fairstein, the bar for proving defamation is exceptionally high. In moving to dismiss the lawsuit, Netflix and DuVernay argued that they didn’t act with "actual malice," a legal standard for defamation requiring evidence of either knowing falsehood or reckless disregard for the truth. The defense maintained that the show’s writers "absolutely believed that their overall portrayal" of Fairstein "reflected the essence of truth based on their multiple, trusted sources and research."
However, the court disagreed. It cited evidence that certain actions attributed to Fairstein in the show were "unsupported by the writers’ substantial body of source materials." One particularly contentious scene depicted Fairstein drafting a timeline of the rape, implicating the five boys in the attack, even though other research indicated that another prosecutor was responsible for that timeline. "Had they just called her character Lucy Field, this case is very different," says Andrew Miltenberg, a lawyer representing Fairstein.
Netflix did adopt a different approach in Baby Reindeer, written by Richard Gadd. The series, which follows a struggling comedian who encounters a troubled woman, used different names to depict real-life figures.
In the defamation lawsuit filed by Fiona Harvey on June 6, she is portrayed as a twice-convicted stalker sentenced to five years in prison, yet in the series, her character is named Martha. Legal experts suggest that Harvey faces an uphill battle in court. "If they’re not identifiable, they can’t have a beef," notes Alexander Rufus-Isaacs.
Findings in another lawsuit against Netflix, involving Nona Gaprindashvili, a Georgian chess champion, reveal similar issues. Gaprindashvili objected to a line in The Queen’s Gambit stating she “never faced men,” which led to a defamation lawsuit. The court denied Netflix’s motion to dismiss the lawsuit, finding that the claim sufficiently alleged actual malice—a standard requiring proof of knowing falsehood or reckless disregard for the truth.
This decision influenced Judge Castel’s ruling in the When They See Us case, which allowed the lawsuit to proceed to trial. Castel noted that dramatizations can be defamatory if they contradict source material, even when presented in fiction.
In a court declaration, DuVernay emphasized that the show’s writers relied on extensive research, including books, court transcripts, and news articles. She argued that the sources predominantly depicted Fairstein unfavorably, especially after the convictions were overturned. DuVernay cited statements from Michael Warren, a lawyer for some of the Central Park Five, who asserted that Fairstein “controlled those detectives.”
DuVernay maintained that Fairstein was central to the investigation and prosecution, and that she believed Fairstein was "morally and legally culpable" for the case’s outcome, asserting that Fairstein breached public trust and crossed ethical lines.
Zelda Perkins, a former assistant to Harvey Weinstein and producer on The Crown, notes that while productions are bound by certain checks and standards, they are ultimately "works of fiction based on facts."
Perkins, who also consulted on She Said, a film about the New York Times reporters who exposed Weinstein, criticizes the fact-checking processes for historical inaccuracies as "clearly inadequate," highlighting a "Wild West-type attitude" in the creative industry regarding accuracy.
Fairstein’s case was further complicated by her refusal to participate in interviews with DuVernay before the series was produced. Additionally, DuVernay’s portrayal of Fairstein was supported by evidence of Fairstein's involvement in facilitating introductions between Weinstein’s legal team and Manhattan’s lead sex crimes prosecutor in a separate case.
Insurance concerns also play a role in studios’ reluctance to embellish dramatizations. Premiums for high-risk projects have surged, sometimes by up to 250% over the past decade, and deductibles for showrunners and writers can reach $250,000, according to legal clearance experts.
In the settlement of the When They See Us lawsuit, Netflix did not pay Fairstein any damages or cover her legal costs but agreed to relocate the dramatization disclaimer to the beginning of each episode. This outcome was seen by some as a favorable compromise for Netflix.
