Netflix did not defame the operator of several “troubled teen” treatment facilities in its documentary mini-series, “The Program,” the 10th Circuit Court of Appeals ruled.
Narvin Lichfield sued the streaming service, along with documentary filmmaker Katherine Kubler.
During her childhood, Kubler spent 15 months at the Academy at Ivy Ridge. She swore that she would make a documentary film and gain revenge for her treatment at the facility.
“The Program: Cons, Cults, and Kidnapping” was divided into three episodes: “Where the F*** Am I?”, “Mind Control,” and “Follow the Money.”
Kubler acted out as a teenager by smoking, drinking, and sneaking out of the house. Her father sent her to a boarding school, but she was expelled for violating its alcohol policy.
Waiting in the principal’s office for her father to take her home, Kubler was instead handcuffed and taken away to the Academy at Ivy Ridge.
She was strip searched and prohibited from talking, making eye contact, or looking out the window.
In Part 2, Kubler revisited the facility, and her friends recalled how they were treated. Two of them reenacted having to repeat the mantra “Palms up, palms down, palms together, palms apart” nonstop for eight hours.
In his lawsuit, Lichfield objected to Kubler’s narration:
“It bothers me how people low on the totem pole end up taking the fall. And the people at the top seem to get away with murder.”
The narration was followed by a news clipping that read: “Another Teen Dies in Program” next to Lichfield’s image.
Kubler interviewed Lichfield’s estranged son, who described his father opening the Dundee school in Costa Rica. Kubler narrated:
“Dundee was only open for nineteen months before authorities were alerted to abuse, raided the facility, and Narvin was arrested.”
Kubler did not mention that the charges were later dismissed.
Early in Part 3, Kubler goes to a karaoke night that Lichfield had advertised on his Instagram page. He sings “Witchcraft” by Frank Sinatra. Kubler narrated:
“Narration: “It was surreal to see Narvin in person, knowing everything I know about this guy: the children he abused, the parents he conned, all the crimes he’s gotten away with. Yet, here he is, free as a bird, singing Frank Sinatra at a club in Utah.”
Kubler and her friends then hit the stage to sing “One Way or Another” by Blondie (“I’m gonna getcha, getcha, getcha, getcha”).
The Utah federal court dismissed Lichfield’s defamation claim, and the 10th Circuit upheld the decision in an opinion written by Chief Judge Richard Federico.
The judge discussed Lichfield’s claim regarding the “get away with murder” statement.
“At the time the viewer encounters the challenged segment, Lichfield has not yet even been introduced by name,” Federico wrote. “And from that point forward, there is no other mention – throughout the entirety of the three-hour series – of death, murder, or homicide as those terms could be taken to relate to Lichfield.”
The judge added that Kubler was not required to mention that the Costa Rican authorities had dropped the charges against Lichfield.
“A person who is the subject of the speech is not entitled to hold the editor’s pen or exercise a producer’s review merely because he is the subject of a given segment or article,” Fedrico wrote. “Lichfield has not shown this speech contained material falsehood. And without material falsity, there has been no defamation.”
Finally, the judge stated that the karaoke narrative about child abuse did not reach the level of defamation.
“The series Kubler created is, at times, highly personal. It seeks to convince her father that her complaints are non-frivolous,” Federico wrote. “And, simultaneously, it seeks to motivate law enforcement, legislators, and the public to modify their positions on the troubled-teen industry.
“Given this operative context and the broad range of meanings that the word ‘abused’ can take, it is impossible to objectively verify whether or not Lichfield abused children in the meaning expressed by this segment,” he added.
