Federal Judge Grants Netflix Summary Judgment in ‘Making a Murderer’ Defamation Lawsuit

Steven Avery
Steven Avery is pictured in this undated booking photo obtained Jan. 29, 2016 by Reuters. The television documentary “Making a Murderer” — from the case against Avery and Brendan Dassey, who were convicted of killing freelance photographer Teresa Halbach in 2006 — has put Manitowoc on the map. (Reuters/Manitowoc County Sheriff’s Department)

By Susanna Granieri

A federal judge granted Netflix summary judgment March 10 in a lawsuit brought by a retired Wisconsin police sergeant who claimed he was defamed in the streaming services’ award-winning true crime series “Making a Murderer.”

Former Manitowoc County Sheriff’s Sergeant Andrew Colborn sued Netflix, two of the show’s producers and their independent film company in 2018 for defamation because of his portrayal in the hit docuseries.

“Making a Murderer” was released in December 2015 and follows the legal journey of Steven Avery, a Manitowoc County resident who spent 18 years in prison for rape until he was exonerated in 2003 with DNA evidence. By 2007, Avery was convicted of murder in another trial, and sentenced to life without the possibility of parole. The series explored Avery’s defense that he was framed by the sheriff’s office as a way to mend its image after its wrongful conviction of Avery.

In his suit, Colborn identified 52 instances of alleged defamation, arguing that the series included “selectively edited and spliced trial and deposition testimony, excluding facts and evidence that contradict[ed] their false narrative, and includ[ed] only one-sided biased interviews that cast police and prosecutors as villains and Avery and his attorneys as heroes,” according to the lawsuit.

Since Colborn is considered a public official, the defamation claims had to meet the actual malice standard.

The actual malice standard was established by the 1964 Supreme Court decision in New York Times v. Sullivan, in which the court held that public officials and public figures can’t prevail in a defamation suit without proving that a statement was false and that, in addition, it was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” 

But U.S. District Judge Brett H. Ludwig found that “these legal standards wipe out the bulk of Colborn’s case,” and that his 52 allegedly defamatory statements is an adoption of “an overbroad view of defamation,” according to the order filed in the U.S. District Court for the Eastern District of Wisconsin.

“The dispositive question is whether Colborn has produced sufficient evidence to make a defamation case out of his admittedly harsh portrayal. He has not,” Judge Ludwig wrote. “The First Amendment does not guarantee a public figure like Colborn the role of protagonist in popular discourse—in fact, it protects the media’s ability to cast him in a much less flattering light—so Defendants are entitled to summary judgment on all counts.”

Judge Ludwig ruled that while Colborn’s portrayal in “Making a Murderer may not have been to his liking … that does not make it defamatory. Few aspire to enter the cultural zeitgeist on such controversial terms. That possibility, though, is a necessary byproduct of the freedom of press that the First Amendment protects. If media could portray us only at our best, we would be a country of antiseptic caricatures, and less intelligent for it. We have not sunken so low just yet.”

March 10, 2023 — Order on Motions for Summary Judgment