Miltenberg, Gorycki: “In Central Park Five Defamation Decision, Judge Puts Facts Before Artistic ‘Truth,’” Reuters


If you wanted to get metaphysical, you could say that the defamation lawsuit in which former New York sex crimes prosecutor and best-selling novelist Linda Fairstein is challenging her portrayal in a 2019 Netflix drama about the Central Park Five case raises fundamental questions about the meaning of truth. For Fairstein and her lawyers at Nesenoff & Miltenberg, truth is all about facts. Netflix and the creators of the Central Park Five docudrama, “When They See Us,” depicted Fairstein as doing and saying things that never actually happened during the investigation and prosecution of five Black teenagers for a brutal 1989 rape in Central Park. Fairstein’s lawyers have argued that by misrepresenting, embellishing and disregarding the factual record, Netflix and series creators Ava DuVernay and Attica Locke maliciously portrayed her as the linchpin of a botched and misguided prosecution. The defendants, Fairstein’s side said, must be accountable for marketing their series as “the truth,” while inventing fact-free depictions of real people engaged in serious misconduct. Netflix, DuVernay and Locke talked about a different kind of truth – one that their Dentons lawyers said can emerge from art rooted in real events. “When They See Us” focused on the experiences of the defendants in the Central Park case, who were convicted on the basis of allegedly coerced confessions but were later freed from prison when another man, whose DNA matched samples taken from the crime scene, said he alone committed the attack. The Manhattan District Attorney’s office ultimately consented to vacate the convictions of the Central Park Five, who obtained a $41 million civil rights settlement from New York City in 2014. Dramatizations like “When They See Us,” argued Netflix, DuVernay and Locke in their motion for summary judgment, can be told from “different and often marginalized perspectives,” offering a new way to think about controversial events and the people involved in them. Of course, even artists cannot maliciously defame real people. But Netflix, DuVernay and Locke argued that to prove malice, Fairstein would have to show that they portrayed her in a way that contradicted “the essence of truth,” as they perceived the truth to be, based on their factual sources. The defendants said there was simply no evidence that they had even a “shred of doubt” that their depiction of Fairstein aligned with both the source material they had consulted and their perception of the truth. “The central issue on this motion is not whether Ms. Fairstein can point to aspects of her portrayal in the series she believes are untrue; the issue is whether she can meet her constitutionally-imposed burden of producing clear and convincing evidence of actual malice,” the defendants said. “She comes nowhere close.” The judge overseeing the case, U.S. District Judge Kevin Castel of Manhattan, ruled otherwise on Tuesday.

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