Less than six months ago, retired Wisconsin police sergeant Andrew Colborn brought lawsuit against Netflix over the true crime documentary series, Making a Murderer. Now, as reported by The Hollywood Reporter, Colborn is hoping to bring the case to the Supreme Court in an attempt to make it easier for public figures to file lawsuits for defamation.
In his initial complaint, Colborn accused Making A Murderer of libel. The award-winning series tells the story of Steven Avery, man who was initially exonerated for one murder but later charged with another. According to the former sergeant, Making A Murderer suggested that he planted evidence in an attempt to frame the man for the latter crime. Netflix has since motioned to dismiss the suit, arguing that Colborn has failed to both adequately plead the streamer’s culpability and plausibly allege any malice. In other words, Netflix stands by the claim that they had no knowledge of falsity and did not recklessly disregard the truth in streaming Making A Murderer.
On Thursday, in response to Netflix’s call for dismissal, the plaintiff, who is represented by George Burnett alongside other attorneys, filed an amended complaint which accused Netflix of allegedly being involved in pitches from filmmakers Laura Ricciardi and Moira Demos, in addition to allegedly participating in postproduction editing of the show. This move will likely render Netflix’s request for dismissal moot, although this did not stop Colborn from filing separate opposition to the motion. In his most recent argument, Colborn contested that simply alleging malice is enough to protect the charge from dismissal at the case’s early stages.
In an additional, arguably unorthodox move, Colborn declared his intent to eventually revise the standards for malice. This addresses statement that Supreme Court Justice Clarence Thomas wrote in February. While the justice stood by colleagues in agreeing that the Supreme Court should not tackle a defamation suit against Bill Cosby, he did see grounds to reconsider the standards for libel. In the 1964 case New York Times Co. v. Sullivan, actual malice was established as the bar required for suits to be made by public figures. Thomas criticized this ruling, branding it as “policy-driven decisions masquerading as constitutional law.” The justice then argued that the country should instead apply the First Amendment Right differently, in line with the founding fathers’ alleged original interpretation.
This prompted Colborn to make the following statement: “For purposes of preserving the argument, Plaintiff also respectfully submits that this is an appropriate case in which the United States Supreme Court should, if necessary, entertain Justice Clarence Thomas’ recent invitation to review and abolish the actual malice standard.” He then set the stage for his conclusion by detailing Thomas’ views.
“Netflix argues that it has the judicially sanctioned right to deprive Plaintiff of his good reputation and to transform it into a commodity that it can distort for its own profit,” wrote Burnett’s team. “It is unlikely that the Supreme Court imagined that its ruling in New York Times v. Sullivan would be used in such a way. Plaintiff respectfully requests that the United States Supreme Court reconsider the actual malice standard to the extent that it is asserted to protect this conduct.”
According to The Hollywood Reporter, it will possibly take years for the case to reach the high court. In the meantime, risk of dismissal is ever-present.