A judge has allowed Linda Fairstein’s defamation lawsuit over her portrayal in Netflix’s “When They See Us” to move forward.
In a decision issued Monday, U.S. District Judge P. Kevin Castel partially granted Netflix’s request to have the case dismissed, noting that some of the scenes Fairstein claimed as defamatory “merely show routine and prosaic activities that lack a plausible defamatory meaning.”
However, Castel allowed the lawsuit to proceed as related to five specific scenes that “convey the subjective opinions of defendants and could not be understood by the average viewer to be a literal recounting of her words and actions.”
“When They See Us,” released in May of last year, dramatized the story of the so-called “Central Park Five,” the five men of color who were wrongfully convicted of raping and assaulting a woman in 1989. Fairstein, who was head of the sex crimes unit at the Manhattan District Attorney’s office at the time, was portrayed by Felicity Huffman in the series.
Among the five scenes at issue are one in which the Fairstein character presses for the case against the Central Park Five to proceed despite a lack of evidence and another in which she supervises the aggressive NYPD interrogation. “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.
In the original lawsuit, which also names series creator Ava DuVernay and writer-producer Attica Locke as defendants in addition to Netflix, Fairstein accused the show of wrongfully portraying her as “a racist, unethical villain who is determined to jail innocent children of color at any cost.”
In a statement to CNN on Monday, Fairstein’s lawyer reiterated the assertion that the portrayal was “utterly false and defamatory.”
“We are glad that Ms. Fairstein now has the opportunity to pursue her claims with respect to five critical scenes in the series that falsely depict Ms. Fairstein engaging in coercive and discriminatory conduct in order to build a case against innocent young men of color,” he said.
Netflix said it would “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.”
Pamela Chelin contributed to this report.