When They See Us, the Netflix miniseries dramatizing the Central Park Five case, has been a cultural phenomenon. Collider’s Matt Goldberg called it “powerful and astonishing.” Time’s Judy Berman praised it as “elegant” and “wrenching.” NPR’s Eric Deggans said it was a “masterpiece” and the “toughest TV show for [him] to watch in a long while.”
Now, a police consulting firm is describing it as defamatory.
The series, created and directed by Ava DuVernay, portrays the true story of the five teen boys wrongly convicted of committing a brutal rape in Central Park in 1989. Various scenes show the boys under severe duress in police custody: they are assaulted and isolated, and subjected to hours of interrogation, without food or bathroom breaks or parental support. Ultimately, the boys make false confessions and incriminate one another.
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In the series, as in real life, they are convicted and incarcerated, for years, before another man confesses to the crime and a judge vacates their convictions. The case has come to be “a lens through which we can understand the ongoing fault-line of race in America,” as Sarah Burns, author of The Central Park Five: A Chronicle of a City Wilding, once said. And it has come to epitomize the momentous problem of improper interrogations.
When They See Us makes it clear that the police coerced the boys to confess, and that those coerced confessions were essential to their wrongful convictions. In the series finale, in a scene set in 2002, an important conversation occurs among three characters: an NYPD detective who helped elicit the false confessions and two district attorneys involved in the reinvestigation.
One district attorney confronts the detective about the coercive interrogations and accuses him of overlooking material evidence pointing to the real perpetrator. The other district attorney then says to the detective: “You squeezed statements out of them after 42 hours of questioning and coercing. Without food, bathroom breaks. Withholding parental supervision. The Reid Technique has been universally rejected. That’s truth to you?”
The detective responds: “I don’t know what the fucking Reid Technique is.”
That exchange is at the heart of a defamation lawsuit recently filed by a police consulting firm, John E. Reid and Associates, against Netflix and DuVernay. The firm’s namesake, who died more than 35 years ago, was a police officer who positioned himself as an interrogation specialist. He wrote a textbook on the subject, now in its fifth edition, and founded the consulting firm to provide training to police and military agencies, among others. (A list of the firm’s clients includes the CIA, FBI, DEA, and, of course, Burger King.)
Reid and his firm developed what would become known as the “Reid Technique,” a three-stage interview-and-interrogation process: first fact analysis, then a non-confrontational interview, and finally a more confrontational interrogation. The firm claims the TV show’s depiction of the Reid Technique defamed the firm.
First, the complaint says the show falsely represents that the technique involves squeezing and coercing statements from juveniles after hours of questioning with no food or bathroom breaks or parental supervision. The firm says the technique actually “urges extreme caution when interviewing or interrogating juveniles” and that it prohibits assaulting a subject, denying an accommodation of a subject’s physical needs, and conducting prolonged interrogations. This information can be found in Reid’s book and on the firm’s website.
Second, the complaint says the show falsely represents that the technique “has been universally rejected.” The firm disputes that and says the technique has been “widely accepted” since “at least” 2002, and asserts that Netflix was well aware of that. (Season Two of Making a Murderer, made before When They See Us, characterizes Reid as “the most widely used interrogation technique in the country” and discusses how it was not properly applied in the interrogation of a disabled minor.)
The firm claims Netflix and DuVernay rejected a written demand in July to issue a retraction and remove from the series the statements mentioning Reid. The firm leverages all of this to argue that Netflix and DuVernay recklessly disregarded the truth and harmed the firm: “The false statements in When They See Us have impaired Reid’s reputation and standing in the business community and have discouraged … clients from utilizing Reid or purchasing Reid’s training packages. The defamatory statements have caused Reid a loss of revenue and profits.”
Netflix declined to comment for this story, and the attorneys for the firm didn’t respond to an interview request. But it’s worth noting that the Reid Technique has its fair share of critics, who say it has played a role in false confessions and wrongful convictions. Beyond that, the defamation issues here are interesting, not least because they stem from a dramatized true story. Three things to watch as the litigation goes forward:
- The firm has to prove that the allegedly defamatory language is “of and concerning” the firm itself. That means at least one viewer could identify the firm as the object of the language. It helps the firm that the Reid Technique is trademarked (that shows a relationship between the firm and technique), but Netflix and DuVernay might argue that the language is about only the technique and not about anything or anyone else, including the firm.
- In the conversation among the detective and two district attorneys, the detective says, “I don’t know what the fucking Reid Technique is.” That could open a window for Netflix and DuVernay to argue that the interrogation techniques the detective used weren’t those of the Reid Technique, and thus the negative characterizations of his methods were not “of and concerning” the Reid firm.
- In its complaint, the firm seems to assume it will be designated as a public figure, which means it would have to prove Netflix and DuVernay produced the allegedly defamatory language knowing it was false, or did so in reckless disregard of its truth. The complaint focuses on the latter. Notably, the Supreme Court has said plaintiffs can establish reckless disregard only if they show that defamatory language was published with a “high degree of awareness of [its] probable falsity.” This often requires courts to try to reconstruct the production process. They ask whether a producer adequately investigated a story in the time available and whether the producer chose reliable sources, ignored warnings the story was wrong, or relied on a biased selection of facts. Proof of a motive (e.g., ill will) is also relevant. Ordinarily, one of these practices alone is insufficient to prove recklessness. A combination of them is necessary, and that will be a high hurdle for the Reid firm to clear.
The firm is seeking money damages as well as a court order that will either “[prohibit] Netflix from making When They See Us in its current form available for streaming or in any other method of transmission or format,” or will “[require] Netflix to edit so as to delete the defamatory references to the Reid Technique from any version of When They See Us made available for streaming or in any other method of transmission or format.” The complaint, filed in the US District Court for the Northern District of Illinois, is available here.
Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.
