It comes as no surprise that the motion to dismiss by Netflix and Ava Duvernay was denied, and former Manhattan sex crimes chief Linda Fairstein’s defamation suit survived the most serious threat. Defamation suits are notoriously hard to maintain, between the defenses of opinion and substantial truth, which defendants tried but lost as documentary evidence proved that it didn’t even meet the threshhold of “truthy.” As I noted at the time Fairstein objected to When They See Us and then filed her complaint, this suit had merit.
Here, where voluminous exhibits were attached to the complaint and answer, and a trove of additional documents was publicly available, allowing the judge to take judicial notice, and the court watched the series, submitted by the defense with the plaintiff’s acquiescence, surviving a Rule 12(b)(6) motion crushes the defendants.
While there are issues that technically remain for summary judgment, such as malice/reckless disregard, the message here was as clear and comprehensive as the court could make it without saying this was a steaming pile of malicious malarkey. To the extent the Judge Kevin Castel’s decision dismisses some claims, it’s not because they were true, or substantially true, or anything close to true, but because they weren’t really defamatory. You can lie about something (“Greenfield is very handsome”) and fail to give rise to an actionable statement.
As Eugene Volokh scrapes the decision, however, he includes a part the raises particularly troubling issues in the current climate.
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.” … [But] the presenters of the docudrama “must attempt to avoid creating the impression that they are asserting objective facts rather than merely stating subjective opinions.
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.
Is it correct that the “average viewer” would assume that this series, promoted as if it was a documentary rather than “docudrama,” was “more fiction than fact”? If pressed to think about it, perhaps most viewers would realize that the dialogue was not verbatim, but would they assume that the most outrageous, most damning words, were never uttered and are nothing more than the writers’ fevered imagination of what was said?
Much of the story as it related to Fairstein never happened, even if its fictional nature might not give rise to a claim of defamation. Does the average view assume that if the story puts a person at a place doing a thing, at least that was true? Where would the average view draw the line? How would the average viewer know where truth ends and propaganda begins?
It may well be that Duvernay and her co-writer, Attica Locke, are of the opinion that Linda Fairstein is the villain of their story and deserves to be, but does their opinion entitle them to create five scenes that damn a named individual with objective words and conduct that suffice to sustain a defamation claim? In most docudramas there is a warning up front that the show is based on a true story, but that the dialogue and scenes are not true. Is that enough to alert the average viewers to the fact that they aren’t watching a documentary, but a drama?
Seeing is believing, and believing is believing, and seeing and believing is irrefutable believing, whether or not it’s real. Both Locke and Duvernay used their social media clout to assert that their story was “100% true” and very specifically asserted that their story as to Fairstein finally subjected her to the truth to hold her “accountable.” And if the social media and public reaction is any indicator, people believed their story and Fairstein’s world collapsed as a result.
The power of accusing someone of being racist and evil is strong enough in this climate, and both Duvernay and Locke possessed inordinate credibility when they attacked Fairstein. Combine that with the power of video, the ability to show people the horrible things someone purportedly done, and the “average viewer” is overwhelmingly convinced that what they just saw is what really happened. It is “their truth,” and they saw it with their own eyes.
Caselaw on the genre of docudramas was based on the assumption that viewers knew that what they were watching was “more drama than fact,” even if this provides little help in distinguishing which is which. Don’t viewers similarly assume that there must be some fact, enough fact, to justify including scenes in a series that claims to be somewhat true, even if not “100% true” as was the case here? Sure, it wasn’t “verbatim,” but if they put the words “thugs” or “animals” in someone’s mouth, they said that at least. And then it was fair to attack and hate the person who used such language, because surely no one would just make such crap up just to demonize someone they hate, right?
There is a huge gap between the unreasonable claim that every word of a docudrama is “verbatim” and the average viewers’ expectation that substantial portions actually happened, at least to some extent. There is nothing reasonable about assuming that a reasonable viewer would assume that huge swathes of docudrama were complete fantasy, never happened, not even a little bit, and were thrown in to make sure the viewers hated whom the writers and producers wanted them to hate so that person would be “held accountable” for things they never did.
The power of seeing is overwhelming, and the desire of viewers to doubts the accuracy of shows “based on a real event” ranges from negligible at best to non-existent when it confirms their bias. The defendants here understood that power, and fed that power by falsely claiming that they were finally showing the “real” truth. The average viewer never stood a chance. Neither did the truth. To the extent the law presumes otherwise, it gives both the average viewer and the truth far too much credit. And lets people who make films to fabricate fantasies to falsely damn their enemies off too easily.
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