Oh yeah. Colburn is probably going to lose this.
from the article Missy posted
"Defendants omitted, distorted, and falsified material and significant facts in an effort to portray (Colborn) as a corrupt police officer who planted evidence to frame an innocent man. Defendants did so with actual malice...
The "malice" aspect is one hell of a hill for them to climb. Legally speaking, malice is not hatred or anger. It is acting intentionally to do damage in direct contradiction or utter disregard to facts.
The MaM crew would have to say Colburn planted stuff while knowing he absolutely didn't, or there was very good evidence he did not plant things.
Proving malice is practically impossible unless they get communications from the MaM crew showing them saying things like "We know Colburn didn't plant anything, but F--- that guy. He sucks." The editing of the video probably doesn't amount to malice.
The lawsuit says Colborn was in law enforcement for 26 years but at no time was he considered a public official or a spokesperson for the sheriff's office, which is important in state defamation laws.
That might be true, however, you typically also have "public interest" parts of defamation laws.
In cases involving public officials, public figures or matters of public concern, a plaintiff must prove that the statement was false.
From my source below.
A major murder investigation and possible police corruption is probably a matter of public concern.
Colborn's attorney, Michael Griesbach, says the Netflix series made his client the subject of worldwide contempt and severely harmed his reputation. It says Colborn and his family received death threats from Avery supporters, and he has to be careful when making travel or dining plans, causing Colborn severe emotional distress and to lose wages and other expenses to protect his family.
This is the heart of a defamation case. But you have to show actual damages, usually in the form of loss of money.
"I had to be careful" is not damages.
He'll have to prove he lost wages or got passed over for promotions precisely because of MaM, which is another steep hill and opens his finances, internal police reviews, etc. to discovery. He is potentially exposing himself severely with this suit.
Stuff Avery supporters have done can't be blamed on MaM.
Honestly, the only place where I see that MaM maybe opened themselves up for a defamation lawsuit is the splicing of the trial footage, which is really weak tea. None of the splicing is necessary to convince anyone the key was planted, or that he called in the license plate because he was looking at it. Taken by themselves don't really lead one in that direction very strongly, IMO.
The issue of whether this editing by MaM biases people more than Avery's lawyers straight up saying Colburn planted stuff will come up and be a hard argument to make. And I think they would have to make that argument. How does Griesbach know it was the editing that led people to believe in the planting and not Strang and Buting?
Steven's lawyers do pretty much all of the lifting in MaM in arguing a case for planting, and most of that was done within the courtroom in an "official hearing". Which is generally excluded from counting as defamation.
See my defamation source below:
you repeat what someone else said or wrote in an official hearing or official document, there’s an important privilege that may protect you provided you attribute the information you gathered and are accurate in your reporting
The lawsuit document contains too much nonsense to respond to fully, so I'll probably not even bother. The number of factual errors could end up being a difficulty for Colburn and Griesbach.
Here is a good summary of how defamation works.
Defamation | Digital Media Law Project
On top of everything else documentarians usually are conferred the same broad First Amendment protections as regular journalists. So even if a judge finds that MaM may have stepped over the line, they may hesitate to rule very harshly to avoid stifling free speech or journalism as a whole. So even if Colburn does somehow win, he could bankrupt himself and just expose himself to more criticism and scrutiny.
I think the most likely scenarios are Netflix will settle out of court for a relatively small amount just so they don't have to put up with the hassle, the judge will just dismiss it summarily, or that the judge will rule in MaM's favor. In that order.
Maybe Netflix will fight it all the way so the info they get out of Colburn can be used in MaM3 or 4.
