Bit Parts

Mixed Ruling in Police Officer's Lawsuit Over Depiction in Netflix Documentary

The U.S. District Court for the Eastern District of Wisconsin decided that the First Amendment barred a negligence claim by a former police officer who sued over how he was depicted in the documentary mini-series Making a Murderer. But the district court ruled that the plaintiff's defamation and intentional infliction of emotional distress claims were properly pleaded. Colborn v. Netflix Inc., 19-cv-0484. Former officer Andrew Colborn claims he was falsely depicted in the series as having framed a murder suspect. In granting Netflix's motion to dismiss Colborn's negligence claim, District Judge Brett H. Ludwig explained: "The fundamental point in the Supreme Court's New York Times v. Sullivan[, 376 U.S. 254 (1964),] ruling is that a public official plaintiff bears a high burden in pursuing tort claims related to the publication of matters that are of public concern. To pursue such a claim, the plaintiff must prove actual malice by clear and convincing evidence. … This requirement precludes any state law liability based on mere negligence." But District Judge Ludwig went on to find: "Contrary to Netflix's assertions, the Supreme Court has never held that the First Amendment completely bars public officials' claims for the intentional infliction of emotional distress." And in allowing Colborn's defamation claim to proceed, the district judge noted: "Netflix portrays both Making a Murderer and Making a Murderer 2 as part of the 'venerable American tradition' of 'true crime' reporting and suggests this label alone renders defendants immune from defamation claims. … Neither the Supreme Court nor the Seventh Circuit has ever suggested a speaker enjoys unconditional First Amendment immunity for making defamatory statements simply because the statements concern legal proceedings."