In an opinion Monday, Judge Castel allowed (in part) defamation claims to proceed against the makers of the film, “When They See Us,” about the “Central Park Five.” The first sentences of the opinion summarize the context: “On the night of April 19, 1989, a young woman was viciously beaten and raped in Central Park. Five young men of color (the ‘Five’), ranging in age from 14 to 16, were arrested, tried and convicted for the attack. They were exonerated in 2002, after the confession of a man whose DNA matched a sample found near the victim.”

The case was brought by one of the prosecutors, Linda Fairstein, who is “portrayed as the central villain” in the film. Judge Castel explained that, while the film dramatized certain of the events, viewers would still understand it as conveying the “essence” of what really happened, and thereby capable of defaming someone if that portrayal were untrue:

The relevant context for Fairstein’s claims is a lengthy television drama starring famous actors distributed to paying subscribers of a streaming service. As the Ninth Circuit once observed by dictum: “Docudramas, as their names suggests, often rely heavily upon dramatic interpretations of events and dialogue filled with rhetorical flourishes in order to capture and maintain the interest of their audience. We believe that viewers in this case would be sufficiently familiar with this genre to avoid assuming that all statements within them represent assertions of verifiable facts. To the contrary, most of them are aware by now that parts of such programs are more fiction than fact.” Partington v. Bugliosi, 56 F.3d 1147, 1154-55 (9th Cir. 1995). The Court in Partington added that the presenters of the docudrama “must attempt to avoid creating the impression that they are asserting objective facts rather than merely stating subjective opinions.” Id. at 1155.

Given the full content and context of the series at issue, the Court declines to conclude that the average viewer would assume that “When They See Us” is “more fiction than fact,” a proposition that the defendants do not advance. But it is reasonable to expect that the average viewer of “When They See Us” would understand that dialogue in the dramatization is not a verbatim recounting of the real-life participants and is intended to capture the essence of their words and deeds.

One of the defamation allegations upheld concerned the film’s suggestion that Ms. Fairstein concealed DNA evidence, which she denies:

In th[e] scenes [at issue], Fairstein explains that the prosecution is in possession of a DNA-marked sock that has not been disclosed to the defense, and that the prosecution will “surprise” the defense by testing the sock on the eve of trial. After the sock is found not to match to any of the Five, Fairstein suggests that a sixth attacker must have been involved “if it helps a jury believe what we know is true.”

These statements and actions attributable to Fairstein have a precise meaning, are capable of being proved or disproved, and even allowing for the artistic context of “When They See Us,” the average viewer could reasonably believe that these depictions were based on undisclosed facts known to the filmmakers. These scenes depict Fairstein concealing evidence from defense counsel – a likely violation of law and of professional responsibility – and manipulating the timing of a DNA test with the goal of advantaging the prosecution. The average viewer would not have a reason to conclude that such actions reflect a dramatized opinion of the filmmakers and could fairly conclude that the depiction was based on undisclosed facts known to the defendants.

(H/T Volokh Conspiracy)