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Judge Rules Ex-Prosecutor Linda Fairstein Can Sue Netflix Over ‘When They See Us’ Portrayal Because ‘Average Viewer’ Could Believe Some of Her Scenes ‘Have a Basis In Fact’

Netflix must face a defamation suit from former prosecutor Linda Fairstein over her portrayal as an unethical racist in the 2019 series “When They See Us” based on the wrongful incarceration on the Central Park Five, a judge said on Monday.

According to a New York federal judge, five scenes in the series potentially defame Fairstein, justifying the suit against Netflix, director and producer Ava DuVernay, and writer and producer Attica Locke, Bloomberg Law reported.

Linda Fairstein gets a go-ahead from a federal judge who believes she has enough evidence to justify her defamation suit against Netflix and Ava DuVernay (Photo by Patrick McMullan/Patrick McMullan via Getty Images)/IMDB

In 1989, Trisha Meili, a 28-year-old white woman, was beaten and raped while jogging in Central park. Fairstein was chief of the sex crimes prosecutions unit in the New York County District Attorney’s Office at the time and oversaw the prosecution of five Black and Latino teens in Harlem in connection with the crime.

The Central Park Five, now known as the Exonerated Five, were between 14 and 16 years old when they were wrongfully accused and spent varying amounts of time in prison ranging from five to 13 years before they were released.

In 2014, Antron McCray, Kevin Richardson, Yusef Salaam, Raymond Santana and Korey Wise brought civil claims against the city and other defendants which was settled for $41 million, although the city admitted to no wrongdoing.

The 2019 Netflix series chronicled the the stories of the men, who are now in their 40s. U.S. District Judge Kevin Castel in Manhattan has said that Netflix potentially defamed Fairstein in several scenes that indicated she withheld exonerating evidence from the defense counsel, coerced confessions and directed a racially discriminatory police roundup of Black and Latino teens in Harlem.

“The average viewer could conclude that these scenes have a basis in fact and do not merely reflect the creators’ opinions about controversial historical events,” Castel wrote. The ruling further cites legal precedent as saying a “defamatory statement of fact is in contrast to ‘pure opinion’ which under our laws is not actionable because expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation.”

Fairstein was portrayed by Felicity Huffman in the series and is depicted as having said in a conversation with prosecutor Elizabeth Lederer (Vera Farmiga), who’d brought up concerns about the teens’ conflicting statements and a lack of physical evidence, “All we need is for one of these little sh-ts to tie this whole thing together.”

Netflix said in a statement after Castel dismissed some of the claims in the suit, “We’ll continue to vigorously defend ‘When They See Us’ and the incredible team behind the series, and we’re confident that we’ll prevail against Ms. Fairstein’s few remaining claims.”

Fairstein challenged 11 scenes but Castel deemed her defamation claims were plausible in only five.

An author of 24 books, including 16 New York Times bestselling crime novels, was dropped by her publisher in 2019, amid the fallout from the series. As the #CancelLindaFairstein movement spread on social media, the former prosecutor resigned from at least two non-profit groups.

Andrew Miltenberg, Fairstein’s attorney, said he was “exceptionally pleased” with the judge’s decision, adding that the series had inaccurately portrayed his client of “engaging in coercive and discriminatory conduct in order to build a case against innocent young men of color.”

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