The Creative Process and Marketing of the Show

Former New York prosecutor Linda Fairstein is suing Netflix over her portrayal in the limited series “When They See Us,” which tells the story of the 1989 Central Park Five case. Scott Hervey and Tara Sattler discuss this dispute on this episode of The Briefing.

Watch this episode on the Weintraub YouTube channel here.

Show Notes:

Tara:
There have been quite a few high-profile defamation cases making their way through the courts recently. One of those cases is Fairstein v. Netflix, a defamation case brought by attorney Linda Fairstein, the New York City prosecutor who ran the sex crimes unit and oversaw the prosecution of five African American men known as the Central Park Five, who were wrongly accused and imprisoned for a near-fatal rape in Central Park. Fairstein sued Netflix for defamation over her character’s depiction in the limited series When They See US, that was released by Netflix and produced by The Streamer. Even though the case has not yet gone to trial, there have been several interesting pretrial rulings. In the most recent ruling, a federal judge in New York denied Netflix’s motion for a summary judgment, which means that the case is one step closer to trial. On this installment of the briefing, we’re going to talk about the recent ruling and the potential impacts that this ruling may have on the uber-popular film and television programming that’s based on real events and real people.

Scott:
Since it has been a while since we’ve talked about this case, let’s briefly talk through Fairstein’s allegation of defamation. She alleges that she was incorrectly portrayed by actress Felicity Huffman as having a larger role in the Central Park Five’s fate than was factually accurate. She mentions three specific episodes and that she is portrayed in a false and defamatory manner in nearly every scene in those episodes. Her original complaint claims that this series depicts her using her true name as a racist, unethical villain who is determined to jail innocent children of color at any cost.

Tara:
Decades of case law has established that in order to prevail in a defamation case, the plaintiff has the burden of proof to establish that the statements at issue were indeed false. And here, because the plaintiff is considered a public figure, the plaintiff also has to prove that the defendant acted with actual malice in making the statement at issue. While there are some other factors in defamation, these factors are the most interesting in this particular case.

Scott:
That’s right. And the last element you mentioned, that the defendants acted with actual malice, was part of the recent ruling in the Fairstein case of Netflix’s motion for summary judgment. In order to prove that the defendant acted with actual malice, the plaintiff has to prove that the defendant acted in reckless disregard for the truth. Here, we’re dealing with dramatization, and courts have applied the actual malice standard to dramatized accounts of real events, often recognizing that the use of invented dialog or a condensed timeline may be necessary for storytelling and that those facts are not themselves evidence of actual malice. Here, Fairstein needed to prove with clear and convincing evidence that Netflix and the producers acted in reckless disregard for the truth when portraying her in the series.

Tara:
So Netflix filed for summary judgment, arguing that they did not act with actual malice. Because the filmmakers are very confident that their portrayal of Ferrise reflected the essence of truth based on their multiple trusted sources and research, including previously published books, news reports, the Ken Burns documentary, and extensive interviews with the five, their families, and their lawyers. The Court denied Netflix’s motion for summary judgment, ruling that a jury could reasonably find that the producers recklessly disregarded the truth and that it is the job of a jury to evaluate all of the evidence in this case.

Scott:
And the Court mentioned some interesting things about the creative process in its ruling. First, the Court noted that while the filmmakers can refer to numerous research sources, many of those sources generally critique law enforcement and law enforcement’s overall handling of the case. But those sources didn’t specifically attribute certain actions or statements to any one person, including Fairstein herself. Also, the Court noted various notes and emails, both from production and from Netflix, which commented on making Fairstein appear to be unsympathetic. On that, the Court found that a reasonable jury could conclude by clear and convincing evidence that the decision to make Fairstein the face of the system and the central villain caused the defendants to act with actual malice by recklessly imputing conduct to Fairstein that was unsupported by the writer’s substantial body of source material.

Tara:
That is really interesting, Scott. So, really, now that a jury may need to make a finding on actual malice, if this case actually proceeds all the way to trial, it seems like there’s really going to be a much deeper look under the hood into the creative process that Netflix and the producers used while they were developing the show and writing the scripts for the episodes. Because development often takes place over many, many years by a large team of producers, interns, assistants, writers, and executives, this is a really big task, and it’s also nearly an impossible task to depict 100% of the facts of a true story on screen. And the courts have also acknowledged a certain level of permissible fictionalization of characters based on actual people, like you mentioned.

Scott:
Right? And another aspect that keeps coming up and will be part of the jury’s analysis of actual malice is the fact that this case was marketed as a true story. The marketing campaign for “When They See US,” Netflix marketed the series with various taglines: that the series was, quote, based on the true story of the five, end quote, and that the story would show people, quote, the truth they haven’t heard. And there was quite a bit of social media chatter about the series and the series depicting the real truth.

Tara:
That’s right. There really is a lot that a jury is going to have to review if this case ever makes it to a jury trial. And in the meantime, we’re going to keep watching it because this case could have quite an impact on all the popular based on true story shows and movies that everybody loves. So, while we’re watching this case, Scott, what advice would you share with producers who are just starting out on the development and writing journey for these types of true story projects?

Scott:
That’s a great question and probably a really great takeaway for this podcast. So first, if a producer is going to attribute specific facts to a real person, make sure that those facts are accurate. This is the case even if that specific person is the sole real person in an otherwise fictionalized story. And it’s also the case if it’s just a throwaway single line. If you may recall, a single throwaway line in the second to last scene in the last episode of “The Queen’s Gambit” was the basis for a defamation case that is ongoing. Now, if your story requires a degree of fictionalized bad conduct, or if one character will be the vehicle for critique, or of something else like capitalism, or a general critique of the criminal justice system, create a fictionalized character, a composite character, or a fictionalized character to carry that. As the judge said in the recent Fairstein ruling, the choice to attribute this conduct to a real-life person is not immunized because the defendants intended the depiction to be a critique of the criminal justice system. And lastly, make sure that the character traits and attributes that you attribute to a real-life character on screen are backed up by your sources.

Tara:
So, if you’re going to depict somebody in a particular manner, make sure that the source material you’re relying on supports that depiction.

Scott:
That’s really great advice, Scott. Thanks for sharing. And I guess everybody better make sure to keep all of their notes for years to come, just in case this happens to come about. And we’ll definitely keep an eye on this case to see what happens next. Thanks for talking with me about it.

Tara:
Well, thanks for tuning in to this episode of The Briefing. We hope you enjoyed this episode. If you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. And if you have any questions about the topics we covered today, please leave us a comment.