Miltenberg, Gorycki: “The Ava DuVernay/Netflix Suit No One Talks About,” Puck


You’d think that in the wake of the Dominion lawsuit, which cost Fox News $787 million, Hollywood would be more sensitive to high-stakes libel showdowns. And yet, this past week, hardly anyone seemed bothered by a federal judge ordering Netflix to trial over Ava DuVernay’s When They See Us, a 2019 docudrama about the notorious Central Park jogger case. Astonishingly, the defamation case barely made a blip on the radar, perhaps as B-matter amid the concluding labor unrest, and the few news outlets that did report on it treated it as nothing out of the ordinary. But this is a huge deal for Netflix, for overall deals, and for DuVernay, a luminary in the entertainment industry whose previous work includes the civil rights biopic Selma and mass incarceration documentary 13th, both nominated for Academy Awards. After directing A Wrinkle in Time for Disney, DuVernay returned to those themes with When They See Us, portraying the harrowing ordeal of the five New York teenagers who were coerced into confessing to assault and rape in 1989, only to be exonerated over a decade later when someone else admitted to the crime. The four-part dramatic series was nominated for more than a dozen Emmys. But the series is also a showcase in unsubtle filmmaking, particularly in its portrayal of the antagonists, specifically Linda Fairstein, who once enjoyed a distinguished career as a prosecutor before becoming a mystery novelist and cable news legal commentator. In the series, Fairstein is played by Felicity Huffman, and is portrayed as being obsessively biased against the Black and Latino teens, calling them “animals” and overlooking inconsistencies in their confessions. The issue, as highlighted in the defamation lawsuit she filed after being dropped by her book publisher, is that while Fairstein did lead the Manhattan District Attorney’s sex crimes unit during that period, she didn’t personally prosecute the case. Nevertheless, the docudrama depicted her instructing reluctant NYPD cops to detain “young Black males” in Harlem, advising against using “kid gloves” during interrogations, and constructing a much-criticized timeline for how the rape occurred. As U.S. District Judge Kevin Castel put it, the producers of When They See Us “reverse-engineered plot points to attribute actions, responsibilities and viewpoints to Fairstein that were not hers.” While it’s notable that Judge Castel doesn’t see the DuVernay series as merely a subjective interpretation of a historical event (an echo of what he previously ruled two years ago while allowing this case to progress to the discovery phase), that’s not quite the reason why the latest ruling is an absolute blockbuster. What truly sets it apart is how the judge assesses the amassed evidence of actual malice—the critical threshold in libel cases involving public figures. As everyone knows, the bar for defamation is exceptionally high. Naturally, Netflix expected to defeat this case by asserting itself as a mere film distributor and publisher relying on experienced Hollywood producers and writers. Could Fairstein demonstrate the streaming giant knowingly spread falsehoods or was recklessly indifferent to the truth? Well, in a decision that’s bound to reverberate, the judge concluded that there’s enough specific evidence pointing to Netflix’s active involvement to potentially fault the streamer. Consequently, Netflix now finds itself awaiting a jury trial with a date yet to be scheduled—an impending event that could be as momentous as Dominion v. Fox. The clash has the potential to impact the filmmakers involved with the series and maybe even raise fundamental questions about the future of the popular docudrama genre … Of course, filmmakers don’t always have the cooperation of their subjects, and so they rely on the First Amendment to tell their stories. Just look at some of the movies nominated for Oscars over the past few years: ElvisKing RichardThe Trial of the Chicago 7Ford v. Ferrari, Vice, Bohemian Rhapsody… Each of these movies balances a historical account, entertainment, and larger societal messages. And many are upfront about their creative embellishments. “Based on actual events… [but] changed for dramatic purposes” is a common disclaimer to caution audiences that what they’re seeing isn’t entirely accurate. When They See Us also featured a disclaimer, albeit during the credit sequence, which is frequently skipped by Netflix viewers. Interestingly, in his opinion, Castel highlights Netflix’s decision to move a “fictionalized dramatization” disclaimer to the beginning of each episode of The Crown in response to controversy over its portrayal of the British royal family—suggesting that the absence of a similar move in the Fairstein case is a point in her favor. However, by now, most viewers are likely sophisticated enough to recognize that docudramas are not documentaries. During the trial, one can anticipate that Netflix, currently represented by the Dentons firm, will argue that few people would interpret When They See Us as a totally faithful recreation of historical events. Jurors may even be warned that the future of dramatizations hangs in the balance. Fairstein’s legal team, led by Andrew Miltenberg, may seek to differentiate When They See Us from typical docudramas. I imagine he might try to achieve this by presenting the Netflix series as an endeavor in social justice activism. Indeed, the plaintiff’s court papers explicitly reference how the writers intended to cancel Fairstein. At trial, Miltenberg might emphasize this narrative by highlighting evidence like how Engel, after a “culture summit” at Netflix, jotted down the note, “Linda Fairstein— think of this as a reckoning for her prosecutorial misconduct.” The plaintiff’s side may also underscore how, as the series was being released, DuVernay texted Attica Locke, one of the co-writers of the series, who has been quite vocal about Fairstein on social media, with the message, “She ‘bout to feel it all.”

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