When Linda Sued Ava

Most lawsuits for defamation turn out to be SLAPP suits, strategic lawsuits against public participation, whose purpose isn’t to win but to silence by exacting a cost to litigate and defend. Some, even some who should know better, leaped to this assumption, as there have been a rash of frivolous suits (think Devin Nunes versus his cow) of late, and the president threatens them with regularity.

This is no SLAPP suit. The defendants are Netflix, Ava DuVernay and Attica Locke, and Netflix has done very well with the serial When They See Us. Time is long past to try to prevent people from seeing “the truth,” as it’s already been seen by millions. Netflix won’t be scared off by the cost of defense, as they’ve made many millions of dollars off the show and can well afford to litigate any damn thing they want.

Most defamation suits are meritless, frivolous. This one is not most defamation suits. Not all are frivolous, even though it’s both easy to say and deeply appealing to a huge cohort of fans whose understanding of the underlying substance comes exclusively through DuVernay’s story. She told it as a documentary. She sold it as truth. She claimed it was fact. And she pounded away at the former Chief of Sex Crimes for the New York County District Attorney’s office, Linda Fairstein, as having done exactly what the series said she did.

Five young black men were wrongfully convicted. That’s neither in doubt or issue. Nor is that the subject of the suit. The complaint, totaling 119 pages, details the use of the character of Linda Fairstein as the evil foil in the drama that produced the wrongful conviction. It details the effort of DuVernay and Locke to claim that it was factually accurate, it was meticulously researched and it finally, finally, revealed the truth.

Fairstein meticulously details, line by line, that its portrayal of her was a fabrication. The series put her in places she wasn’t, at times she wasn’t, doing things she didn’t do and saying words that were never said. Not once. Not here and there. Not words that were similar to what she said. Rather, the entirety of the portrayal of her was a lie.

The portrayal of Ms. Fairstein in the film series was deliberately calculated to create one, clear and unmistakable villain to be targeted for hatred and vilification for what happened to The Five. The means of doing so was to cast Ms. Fairstein as morally and legally culpable by assigning her a role in the New York Police Department (“NYPD”) investigation that she did not play, including depicting her at places where she never was, making decisions she never made, supervising police officers and detectives over whom she had no control, and putting words in her mouth—that were outrageously offensive—that she never uttered.

Had Netflix presented this series as a dramatization, a series based on a true story where a villain was manufactured for the sake of dramatic license, but that the attribution was the product of a fertile imagination because there was no one who could say what words were uttered, what decisions were made, what acts were performed, when there was no one else in the room, that would have been one thing.

It might still have the same defamatory impact, since too many lack the capacity to recognize that a story they see on the tube is just a cool movie meant to entertain rather than inform, but at least it would have been arguably not defamatory rather than outrageous artistic license. This wasn’t what happened here. Not at all. DuVernay was absolutely clear: this was true and Fairstein did what the series showed her doing. Fairstein was every iota the villain DuVernay portrayed her to be.

For its part, Netflix issued the standard reaction.*

Linda Fairstein’s frivolous lawsuit is without merit. We intend to vigorously defend When They See Us and Ava DuVernay and Attica Locke, the incredible team behind the series.

Of course, there is no “frivolous lawsuit” with merit, but this suit doesn’t involve the usual issues arising in defamation actions, in general, or SLAPP suits in particular. There is no question of whether the alleged defamatory content is fair comment or opinion rather than factual. There is no question of whether the defamatory content is “substantially true” or based on a reliable secondary source, even if completely false. so as to invoke the fair reporting privilege. And while it will invariably be up to a court to determine, Fairstein makes a compelling argument that this was done with malice, either intentionally to harm her or with reckless disregard to the truth or falsity of the content.

When news of DuVernay’s series first broke, it raised alarms to those of us who absolutely hated finding ourselves in the position of having to defend career-long nemeses like Linda Fairstein, but were nonetheless constrained by facts and reality. Little of what we heard comported with what we knew about how the case happened, the roles played or the processes involved. Then came the next level of problems, that DuVernay was presenting what was tantamount to a conspiracy theory where it seemed impossible that there could be any source, any basis in fact, to support her creation.

Had this stopped at the point of evoking sympathy for the Five men wrongfully convicted, that might have been understandable. Had this been a condemnation of the system, without trying to manufacture a living, breathing evil entity to be blamed for very specific words and deeds, I would be in her cheering section. But that wasn’t what DuVernay did. She fabricated a story out of whole cloth, chose Linda Fairstein to be devil, and used the blind passion of the current climate to destroy her.

For all the people absolutely certain they know what really happened because they watched When They See Us, including lawyers bent on opining to bask in twitter popularity before having a clue what the case is about, read the complaint. The story in your head, the story you believe to be true and so creates the bar against which Fairstein fights, came out of DuVernay and Locke’s imagination. The Five were wrongfully convicted. That doesn’t mean it’s okay to fabricate an alternate reality to blame Fairstein for it and then sell it as truth.

*TMZ was the first to break the story, but the comments to the TMZ post are worth a glance as they reflect the culture war in all its glory.

9 thoughts on “When Linda Sued Ava

  1. B. McLeod

    So, the central point of the defense will be to convince the jury that there was nothing personal and certainly no “malice.” The “journalists” just needed to make some money, and sacrifices had to be made. Fairstein was convenient, and made the whole effort far simpler than if they had to go to all the trouble of portraying who actually did what at each stage of the investigation. Too bad they threw her reputation in the sewer, but it was just business.

    1. SHG Post author

      Malice doesn’t require proof of deliberate animus, per se, but the reckless disregard of truth as well. Although from the viciousness of the attacks on Fairstein, the defendants have pretty much admitted to actual malice. They openly demanded Fairstein be damaged.

  2. Miles

    What’s amazing is that I talked to someone about this today, and they can’t wrap their head around the possibility that Fairstein didn’t do what the TV says she did. Having watched this show, they believe they’ve actually it happen in real life and just can’t shake it out of their head.

    It must be true. The TV said so and I saw it with my own eyes. We’re fucked.

    1. SHG Post author

      Same with me. A lawyer I know and respect told me, “but it’s true.” I said, “how do you know it’s true,” and she told me, “I saw it,” meaning she watched the show and can’t disconnect what she watched from reality. That’s exactly why this was so damaging, and why the power of shows like this is so dangerously persuasive when false.

  3. Bryan Burroughs

    This post shows you to be a very principled person. You seem to have great disdain for Fairstein, yet you have no problem at all demanding that she be treated fairly and justly.

    1. SHG Post author

      It’s what we do. We don’t defend killers because we like killers or killing. Fairstein deserves no less.

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