Judge Rules Former Prosecutor Linda Fairstein Will Be Able To File Lawsuit Against Netflix Over ‘When They See Us’ Portrayal

Judge Rules Former Prosecutor Linda Fairstein Will Be Able To File Lawsuit Against Netflix Over ‘When They See Us’ Portrayal  Citing ‘Average Viewer’ Could Believe Some of Her Scenes ‘Have a Basis In Fact’

A New York federal judge has agreed Netflix must face a defamation suit from former prosecutor Linda Fairstein after her protrayal as an unethical racist in the 2019 series “When They See Us” which was based on the wrongfully conviction and incarceration of the Central Park Five.  The judge says five scenes in the series may have defame Fairstein, which justifies the suit against Netflix, director and producer Ava DuVernay, and writer/producer Attica Locke according to Bloomberg Law.

In 1989, Trisha Meili, 28, white woman, was assaulted and raped while jogging in Central park. Fairstein was chief of the sex crimes prosecutions unit in the New York County District Attorney’s Office at the time and oversaw the case of five Black and Latino teens.  The Central Park Five, now referred to as the Exonerated Five, were between 14 and 16 years old when they were wrongfully accused and spent time in prison ranging from five to 13 years before they were released. In 2014, Antron McCray, Kevin Richardson, Yusef Salaam, Raymond Santana and Korey Wise filed civil claims against the city and other defendants which was settled for $41 million. But the city admitted to no wrongdoing.

The 2019 Netflix series followed the stories of the men, who are now in their 40s. U.S. District Judge Kevin Castel in Manhattan has said that Netflix potentially defamed Fairstein in several scenes that indicated she withheld exonerating evidence from the defense counsel, coerced confessions and directed a racially discriminatory police roundup of Black and Latino teens in Harlem at the time.

“The average viewer could conclude that these scenes have a basis in fact and do not merely reflect the creators’ opinions about controversial historical events,” Castel wrote. The ruling cites legal precedent as saying a “defamatory statement of fact is in contrast to ‘pure opinion’ which under our laws is not actionable because expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation.”

Fairstein was played by Felicity Huffman in the TV series and is depicted as having said in a conversation with prosecutor Elizabeth Lederer (Vera Farmiga), who’d brought up concerns about the teens’ conflicting statements and a lack of physical evidence, “All we need is for one of these little sh-ts to tie this whole thing together.”

Netflix said in a statement after Castel dismissed some of the allegations in the suit, “We’ll continue to vigorously defend ‘When They See Us’ and the incredible team behind the series, and we’re confident that we’ll prevail against Ms. Fairstein’s few remaining claims.”

Fairstein challenged 11 scenes but Castel deemed her defamation claims were plausible in only five.

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