October 10, 2023

How True is the “True Story”?

In 1989, five Black and Latinx teenagers were prosecuted for and ultimately convicted of assaulting and raping a jogger in New York’s Central Park. The case brought the word “wilding” into the lexicon and drew national attention. 

This attention stemmed, in part, from the defendants’ youth, race, the lack of DNA evidence tying any of them to the assault, and inconsistencies in the defendant’s confessions — confessions eventually proved to be false. Because of these issues and the eventual confession of a serial rapist who took sole responsibility for the crime, the convictions of the youths — who became known as the “Central Park Five” — were vacated. 

For many, both in New York and beyond, this case symbolized New York at its worst and the wrongful use of the criminal justice system to target Black and Latinx men. 

This case is now in the news once again. This time it is because of a defamation case brought by Linda Fairstein, the former head of the Sex Crimes Unit of the Manhattan District Attorney’s Office, who was involved in the prosecution of the Central Park Five. Fairstein, who is now a successful mystery writer, is suing Netflix, writer/director Ava DuVernay, and writer Attica Locke for defamation over how she was portrayed in the miniseries When They See Us. 

When They See Us, is a four-part series dramatizing the Central Park Five’s experiences from their arrests through their release from prison. It portrays the criminal justice system as the villain and Fairstein’s character (played by Felicity Huffman) as the primary representative of the criminal justice system. Fairstein is shown as determined to see the five teenagers convicted regardless of inconsistencies pointing to their innocence. According to a recent decision in the Southern District of New York, which denied the defendants’ motion for summary judgment, “the character is portrayed as personally responsible for orchestrating nearly every aspect of the investigation of the [Central Park] Five.” 

Because of the judge’s recent decision, unless the case settles, it will go to trial over five allegedly defamatory scenes. (In 2021, the judge ruled that seven of the scenes Fairstein claimed were defamatory were not actionable.) Fairstein alleges each of these scenes portrays her as responsible for far more of the arrest and prosecution of the Central Park Five than she actually was. For example, one of the allegedly defamatory scenes could be understood to imply that Fairstein improperly delayed providing DNA evidence to the defense, while another shows her instructing the police to round up suspects in Harlem and harshly interrogate them. Fairstein maintains that she didn’t do those things and there’s nothing in the historical record to support the series’ claim that she did have that authority. 

It’s pretty clear that there were some very, very serious problems with the prosecution of the Central Park Five, that innocent men lost years of their lives in prison, that Fairstein played a role in their fate and, that to this day, she seems to be unrepentant, even continuing to indicate skepticism as to their innocence. 

Nonetheless, the judge said there was evidence that “by opting to portray Fairstein as the series villain who was intended to embody the perceived injustices of a broader system,” When They See Us “reverse-engineered plot points to attribute actions, responsibilities and viewpoints to Fairstein that were not hers” and were not reflected in “the substantial body of research materials” assembled in preparing the series. Netflix and its co-defendants, for their part, argue that the filmmakers are allowed to use some dramatic license in creating a portrayal of Fairstein that was substantially true.

Some important things to keep in mind about this case and fictional stories based on real events: 

1. Even in dramatizations, you can’t ascribe things to real people that aren’t supported by the facts. Here, there will be an issue over whether the series’ portrayal of Fairstein is at least somewhat supported by the factual record. There will be a particular focus on the dissent of and comments by a judge on New York’s highest court who stated that Fairstein “deliberately engineered” a confession from one of the Central Park Five by not allowing a parent to be present.
2. Fairstein is a public figure and, as such, to prevail at trial she will have to prove not only that certain statements in When They See Us were false, but that the statements were made with “actual malice.” The phrase “actual malice” is confusing because, for the most part, ill will is only a small part of the analysis. As used in the context of defamation, actual malice means that Fairstein will have to prove by clear and convincing evidence that the producers, writers, and director had subjective doubts about whether the statements at issue were false or probably false or that they created them with reckless disregard for whether they were true or not.
3. The inclusion of a disclaimer is not a free pass. Here, Defendants did include a disclaimer stating that various elements had “been fictionalized for purposes of dramatization.” However, that disclaimer appeared only briefly at the end of each episode. This has to be contested against promotions for the series which included the statements “The story you know is the lie they told you” and “Based on the true story of The Central Park Five.”

However the case is resolved, it is clear that really, there are no winners here.