As When They See Us was set to premiere on Netflix last May, its creator Ava DuVernay embarked on an ambitious promotional tour, becoming quite the media darling. The creator of the four-part series was lauded for providing “restorative justice” in the criminal case involving five black male teenagers, known as the Central Park Five, who were falsely convicted of the rape and beating of a 28-year-old white female jogger in 1989. The teenagers spent years imprisoned for crimes they did not commit, ultimately exonerated by DNA evidence and another man’s belated confession.
When interviewed about the film by the Hollywood Reporter, DuVernay, a black female, gleefully dished on a variety of topics. She referred to President Trump as that “rich, bloated, flamboyant guy,” and speaks of her trailblazing navigation of Hollywood: “I’m not going to knock on any closed doors. I’m going to make my own door.”
But in a defamation lawsuit filed last Wednesday, brought by one of the central characters portrayed in When They See Us, former New York City prosecutor Linda Fairstein accuses DuVernay of making up lies, purposely distorting facts, and creating “scenes that portray Ms. Fairstein in a false and defamatory manner.”
It’s important to note that following the 2002 exonerations of the Central Park Five, Kevin Richardson, Raymond Santana, Antron McCray, Yusef Salaam, and Korey Wise, the five men sued New York City for discrimination and emotional distress, winning a $41 million award. The city’s then-corporation counsel, Zachary W. Carter, a black former U.S. attorney, stated that the prosecutors in the case “had acted reasonably” given the circumstances at the time. Manhattan District Attorney Cyrus Vance Jr. also asserted that there was “no finding of wrongdoing or unprofessional behavior” by any of the prosecutors involved.
Those stubborn facts had little effect on the damaging creative license taken or the ugly smears leveled at Fairstein by DuVernay and co-writer Attica Locke. In an email to Reuters, a Netflix spokesperson dismissed the lawsuit thusly: “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.”
Fairstein’s lawsuit accuses the defendants of marketing and promoting When They See Us as a “true story” and of depicting her as a “racist, unethical villain who is determined to jail innocent children of color at any cost.” The damage it has done to her reputation is incalculable and debilitating. Fairstein notes how she has been forced to resign from the boards of directors of several nonprofit organizations, endured cancellations of speaking appearances, and “lost a significant number of legal consulting jobs.” Her book publisher canceled her contract, and she was dropped by ICM, the talent agency that had represented her for a quarter-century. (Full disclosure: this author is represented by ICM.)
The lawsuit also highlights infuriating example after infuriating example of sloppy fictionalizing for the sake of sensationalization which appear to meet the bar for “actual malice” necessary in a case brought by a public figure such as Fairstein. Public figures are viewed differently by the courts than ordinary citizens when seeking to sue for defamation. In legal terms, a public figure in pursuit of redress for libel or slander is defined as “a personage of great public interest or familiarity like a government official, politician, celebrity, business leader, movie star or sports hero.” The public figure plaintiff must also prove intent of actual malice.
If DuVernay and Locke didn’t act with actual malice, the application must be vacated in future legal proceedings.
According to the lawsuit, the series trailer which was “launched before the premiere and promoted by [Netflix, DuVernay, and Locke] on social media, [there] contains banners which state ‘The Story You Know’ and ‘Is the Lie They Told You.’ [The actress portraying] Ms. Fairstein, is featured in the trailer stating ‘every black male in the park last night is a suspect. I need all of them.’”
The lawsuit further charges that “Ms. DuVernay, Ms. Locke and Netflix have made numerous public statements about When They See Us, representing that it is a true story, based on evidence and research. Ms. DuVernay and Ms. Locke have further represented that the film series was intended to serve as a means to hold Ms. Fairstein accountable for her ‘misdeeds’ and for being unrepentant.”
Another of the sober claims from Fairstein’s lawsuit:
Fairstein further charges that the defendants assigned to 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.”
Obviously, movies, even ones based on actual events, are typically imbued with artistic flights of fancy, the usual caveat being the portrayal was merely inspired by a true story. But When They See Us was served up as an accurate depiction of events related to the Central Park Five case. Matters of race are an exceedingly divisive topic in 2020. This series appears to exploit that fissure, cynically transforming it into a chasm.
In a promotional Netflix featurette, The Criminal Injustice System, DuVernay describes her film as a “jumping-off point to think about larger issues around the injustice of our current system of justice.” In the YouTube video, she uses her fingers to make air quotes around “justice.”
DuVernay appears to care little for true justice or the pursuit of facts. The tragic case of the Central Park Five simply afforded DuVernay a cynical opportunity to peddle a piece of fiction touted as “history,” in pursuit of riches and wokeness — consequences be damned. The smears and defamation against Fairstein are eerily reminiscent of the New York Times’s recent descent into social justice revisionist history with its widely panned and wholly discredited 1619 Project.
The dishonest mischaracterization in When They See Us has led to death threats against Fairstein. For that, Netflix, DuVernay, and Locke should be ashamed. They should also be compelled to pay compensatory damages to Fairstein. The 1619 Project rewrote the history of slavery to smear American origins and indoctrinate schoolchildren with falsehoods that stoke divisions through misinformation. Audiences for When They See Us were served up similarly inaccurate dreck designed to spread a similar political message.
Cleaning up after the fact will do little to alter outcomes in the court of public opinion or ameliorate the real divisions we face as a nation. As Winston Churchill is credited with saying: “A lie gets halfway around the world before the truth has a chance to get its pants on.” But ultimately, a successful ruling in this case for Fairstein would send a clear message to future fiction-peddlers: Your quest to dishonestly rewrite history for personal gain and woke retribution has been exposed, and justice demands a price be paid. Forewarned is forearmed.
James A. Gagliano (@JamesAGagliano) worked in the FBI for 25 years. He is a law enforcement analyst for CNN and an adjunct assistant professor in homeland security and criminal justice at St. John’s University. Gagliano is a member of the board of directors of the Law Enforcement Legal Defense Fund.
