By Emily Hunt // Legal // EEW Magazine Online

Linda Fairstein, the former prosecutor linked to the Central Park Five case, has reached a settlement in her defamation lawsuit against Netflix and director Ava DuVernay concerning the 2019 docuseries "When They See Us."

In 2020, Fairstein filed the lawsuit, claiming she was inaccurately depicted as a racist antagonist who was instrumental in the wrongful convictions of five young men. The case was scheduled for trial next week in federal court in Manhattan.

As part of the settlement, Netflix has agreed to donate $1 million to the Innocence Project. Fairstein will not receive any financial compensation.

Additionally, Netflix will add a disclaimer to the beginning of the series, stating: "While the motion picture is inspired by actual events and persons, certain characters, incidents, locations, dialogue, and names are fictionalized for the purposes of dramatization." Fairstein emphasized that the lawsuit was about protecting her reputation, citing a judge's ruling from last fall that denied Netflix’s motion for summary judgment. The judge determined that several scenes could be considered defamatory and not supported by the historical record.

"This case was about clarifying the truth and safeguarding my reputation and that of my colleagues," Fairstein stated. "The depiction of me in the series as a villainous figure was not accurate."

DuVernay also issued a statement, revealing that Fairstein’s husband sought to end the lawsuit shortly before the trial.

"After extensive legal battles and significant expenses, Fairstein chose to settle without receiving any payment, rather than facing cross-examination," DuVernay said.

Netflix released a joint statement with DuVernay, Fairstein, and co-writer Attica Locke: "The parties have resolved this lawsuit. Netflix will donate $1 million to the Innocence Project, and Ms. Fairstein will not receive any money from this settlement."

The series, based on extensive research from various sources, chose to represent Fairstein by name instead of creating a composite character. Felicity Huffman portrayed Fairstein, who was depicted in the first episode asserting that "every young Black male who was in the park last night is a suspect."

Fairstein claimed the show inaccurately portrayed her as orchestrating the law enforcement response and leading a racially motivated roundup.

Robin Swicord, a screenwriter for the series, noted that the criminal justice system was depicted as the antagonist, with Fairstein as its face.

Fairstein was also shown as manipulating the timeline of the crime to fit her narrative, which she argued was defamatory. Judge P. Kevin Castel noted in his summary judgment ruling that no evidence supported the claim that Fairstein created the timeline.

DuVernay defended the series during her deposition, stating that it is not a documentary and includes dramatized elements.

Netflix argued that the portrayal was substantially true and that dramatizations should have some creative leeway. However, the judge found that a jury could see the filmmakers’ actions as intentionally misrepresenting the facts to defame Fairstein.

Despite DNA evidence exonerating the Central Park Five and the subsequent $41 million settlement awarded to the five men, Fairstein continued to defend the original prosecution.

DuVernay stated that Fairstein’s settlement proposal included a financial payout and a disclaimer, both of which were rejected.

"I believe Linda Fairstein was responsible for the wrongful convictions of five innocent Black and Brown boys," DuVernay said.

Andrew Miltenberg, Fairstein’s attorney, contested DuVernay’s account of the settlement discussions, stating that initial discussions included a request for Fairstein’s attorneys' fees and expenses, not personal compensation for Fairstein.

Following the release of the series, Fairstein faced significant professional repercussions, including losing her literary agency and resigning from several boards.

Kara Gorycki, another attorney for Fairstein, expressed hope that the settlement would prompt media companies to be more truthful when portraying real people.

Had the case gone to trial, both sides would have presented their perspectives on the fictionalization of real-world events, and Fairstein would have needed to prove that the depictions were false and damaging.

Miltenberg asserted that the case would have set a precedent, compelling media companies to represent real people more accurately.

Attorneys for Netflix, DuVernay, and Locke maintained that the settlement was a victory for their side, with DuVernay stating that Fairstein’s actions and words were responsible for her current situation.

Miltenberg countered that DuVernay was ignoring the key issue of the case: the alleged reverse engineering of facts to create a villainous character.

DuVernay thanked Netflix for its support and expressed hope that Fairstein would eventually take responsibility for her role in the case.