In an opinion yesterday, Judge Castel denied a summary judgment motion that sought to dismiss the defamation action brought by former prosecutor Linda Fairstein against Netflix and others over a “docudrama” called “When They See Us” about the Central Park Five.  Our coverage of the denial of the motion to dismiss is here.

Judge Castel recognized that the makers of films and television shows dramatizing real events have some license to advance an “opinion-based version of events, provided that the account has some support in the historical record.” He also noted that, while docudramas will often use “composite” characters, “Fairstein does not complain that she was defamed through the use of a fictionalized composite character. Her claims are directed to words and deeds attributed to her by name.”

The decision details why a jury could find that five particular scenes were capable of defamatory meaning and were made with “actual malice.”

In the first example, Fairstein is depicted as creating a timeline of the underlying attack, and then manipulating it to fit a predetermined conclusion that the “Central Park Five” were guilty:

Over ominous orchestral music . . . , Fairstein notes a “45-minute discrepancy” in the timeline and states, “How can the same kids be raping her at the same time they are jumping bicyclists way over there?” (Ep. 1 at 34:45-36:24.) A detective in the room states, “Nothing on the weapon. Question marks on the timeline. I mean, we got problems.” (Id.) Fairstein proposes to alter the timeline to account for the gap in chronology, and when asked, “Is there enough time for all this to even happen?” she replies, “Well it happened, so obviously there was.” (Id.)

The defendants argued that they were condensing the evolution of a doubtful timeline of events. Judge Castel concluded that it was “of little moment” that “the writers chose to condense or ‘telescope’ the timeline’s evolution” because they did not actually have evidence that “attribute[d] the creation of a timeline to Fairstein.” Further, there was evidence that the makers of the show were trying to portray Fairstein as the villain at this point in the film, after she had just seen the victim’s body.  One note from the “writer’s room” said, “The audience will have a hard time making the jump from a woman standing over another woman’s body with tears in her eyes to her to that same woman processing the boys and pushing this crime on them without holding onto some sympathy for her, which we do not want.”

Accordingly, Judge Castel found, 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 defendants to act with actual malice by recklessly imputing conduct to Fairstein that is unsupported by the writers’ substantial body of source materials.”