Wisconsin Sheriff Deputy's Defamation Suit Against Making a Murderer Appears Doomed

Manitowoc County Sheriff Dept Lt. Andrew Colborn, (Ret),
was implicated in misconduct in the second Steven Avery
frame-up, becoming a major disgraced public figure, as
documented in Making a Murderer, and Wrecking Crew,
Demolishing The Case Against Steven Avery, (Ferak),
and demonstrated at public trial.

Law enforcement civil action against critics of official conduct fades against reason and public discussion by two filmmakers advocating for two wrongfully convicted men, and the truth that will set them free

Update: In July 2019, U.S. District Judge Pamela Pepper published a NOTICE of Hearing on pending motions set for December 19, 2019.

It appears likely Judge Pepper will dismiss Colborn's legal action, Colborn v. Netflix, Inc (1:19-cv-00484).

Just as likely, Colborn will appeal the case to the United States Court of Appeals for the Seventh Circuit.

Updated: Critics of corruption in the Manitowoc County Sheriff's Office point out that Sheriff Deputy Andrew Colborn (ret) was a candidate for elected public office, the Republican Party nominee for Manitowoc County Sheriff in 2006. This fact appears to further disconfirm the former public-office candidate Colborn's claim that this 26-year public servant is not a public official under defamation law, a status that renders the speech in Making a Murderer privileged speech, (Screen-shot of the Manitowoc Herald-Times, 2006, Reddit).
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Madison, Wisconsin — Recent developments in the assault-defamation action brought by a retired lieutenant of the Manitowoc County Sheriff's Office have First Amendment defenders, the Making a Murderer creators and advocates of wrongful-conviction victims happy this week.

Retired Manitowoc County Sheriff Office Lt. Andrew Colborn, who allegedly helped frame Steven Avery is soaking up his tax-payer-financed pension after committing the moral equivalent of murder in his public conduct and performance of public duties, as documented in Making a Murderer (Seasons One and Two) and the public criminal trial of innocents and post-conviction litigation.

Steven Avery and Brendan Dassey are victims, and Andrew Colborn is among the weak and miserable people capable of framing innocent men.

The critical mass of pathological entitlement, malice, and dehumanization is nurtured in the small-town, corrupt culture of the Manitowoc County Sheriff's Office and Calumet County Sheriff's Office and respective county district attorneys' offices that cultivate a Ken Kratz, a disgraced sex offender and special prosecutor who lied to obtain convictions against Avery and Dassey.

In December 2018, Colborn — likely becoming the subject of a criminal probe before this sordid affair is through — filed a defamation suit against against the Making a Murderer producers, Laura Ricciardi and Moira Demos, Netflix and others in Manitowoc County Wisconsin Circuit Court, (Andrew L. Colborn v. Netflix Inc., Chrome Media LLC, Laura Ricciardi, Moira Demos, Lisa Nishimura, Adam Del Deo, Mary Manhardt, and Synthesis Film LLC). [Summons and Complaint text is here.]

The case, as expected, was removed to federal court, United States District Court, Eastern District of Wisconsin, on April 4, (WBAY, Appleton Post-Crescent). The federal civil case is: Colborn v. Netflix Inc (1:19-cv-00484).

The rightwing Federalist Society-linked presiding Judge William C. Griesbach, brother of attorney Michael C. Griesbach who represents Colborn and is a former Manitowoc County prosecutor, recused on April 5.

The rightwing legal community in east-central is incestuous and adjudicates in an activist, results-oriented fashion.

U.S. Dist Judge Pamela Pepper was assigned as presiding judge on April 5 for all further court proceedings.

This is good news for the defendants and the First Amendment as the consensus on Judge Pepper is she is an intellectual jurist of high character, with no ties to the east-central Wisconsin corrupt legal community.

The conventional wisdom among court observers is Netflix, Inc, et al will make a motion to dismiss this Personal Injury - Assault, Libel, and Slander action this Spring or Summer.

Plaintiff Colborn's action accuses Netlix, Inc and other defendants of having "omitted, distorted, and falsified material and significant facts in an effort to portray Plaintiff [Andrew Colborn] as a corrupt police officer who planted evidence to frame an innocent man," (Appleton Post-Crescent).

According to Colborn's novel theory of libel law underlying his complaint, any public official performing his public duties, criticized at a public trial, now enjoys a basis for a civil action if journalistic and political speech criticizing the official's public conduct does not comport with a cop's, for instance, self-serving portrayal of his own public performance.

Add to Colborn's position in the defamation suit that Andrew Colborn was a candidate for Republican Party nominee for Manitowoc County Sheriff in 2006 just months after Oct 31, 2005 murder of Ms. Halbach. (Screen-shot of the Manitowoc Herald-Times, 2006, Reddit).

The public interest in ensuring the public integrity of police would appear to insulate journalists and political commentators from libel actions because of the protections in the First and Fourteenth Amendments, a judicial doctrine exemplified in New York Times Co. v. Sullivan (1964).

Reached for comment, Howard Schweber, an expert in constitutional law, judicial politics, free speech, and democratic theory at the University of Wisconsin-Madison, acclaimed the prominence of the First Amendment.

"The [deputy] sheriff [Colborn] is certainly a public figure, and the subject of the statements involves his performance of his duties. That combination--a public official and a matter of public interest--entitles the defendants to the greatest possible level of First Amendment protection. As a result, I think this will be a difficult lawsuit to win, and any verdict in favor of the plaintiffs would certainly be appealed," said Schweber.

Colborn is of course faced with establishing "actual malice" from the creators and distributors of  Making a Murderer. Actual malice is defined here as the portrayal of Colborn with the knowledge that Colborn's public actions as reported in the documentary are false or, that the documentary portrayed Colborn with reckless disregard of the truth.

Since the rigorous sourcing of the documentary is derived mostly from the public trial transcript, Colborn's action seems desperate.

But there is more at stake in this case than the plight of another dopey cop from east-central Wisconsin.

Without a win for Netflix Inc., Chrome Media LLC, Laura Ricciardi, Moira Demos, Lisa Nishimura, Adam Del Deo, Mary Manhardt, and Synthesis Film LLC in this case, every corrupt cop could in principle bring civil actions against the protesting public for today's equivalent of seditious libel of government officials, should a federal appellate court adopt Colborn's ludicrous reading of the First Amendment and defamation.

Colborn's action like so much other action committed by law enforcement in east-central Wisconsin cannot stand under the light of examination.

As Justice Brennan, writing for an unanimous court in New York Times Co. v. Sullivan (1964), offered in defense of the liberty of the people against government miscreants and tyrants:

The First Amendment, said Judge Learned Hand,

presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. To many, this is, and always will be, folly, but we have staked upon it our all. United States v. Associated Press, 52 F.Supp. 362, 372 (D.C.S.D.N.Y.1943).

Mr. Justice Brandeis, in his concurring opinion in Whitney v. California, 274 U.S. 357, 375-376, gave the principle its classic formulation:

Those who won our independence believed . . . that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Thus, we consider this case [New York Times v. Sullivan] against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. (p. 270, New York Times v. Sullivan).

Yes.
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In the event the defendants' motion for a dismissal is not granted, Kathleen Zellner, Avery's post-conviction attorney uninvolved in the Colborn v Nettfix, Inc., sounded ecstatic on hearing news of the defamation action becasue law enforcement personnel will be forced to testify under oath.

Newsweek reported in December 2018:

Kathleen Zellner has called a recent lawsuit an 'early Christmas present' to her and the Making A Murderer team, though the filmmakers are the subject of the lawsuit. Former Officer Andrew Colborn is suing Netflix and Making A Murderer filmmakers Moira Demos and Laura Ricciardi for defamation, according to the lawsuit, filed Tuesday.

To Zellner, Avery’s current post-conviction attorney, the lawsuit is a gift. 'We are thrilled that Colborn filed this lawsuit [because] he will have to testify under oath about all of the issues that have swirled around him for years,' Zellner told Rolling Stone on Wednesday. 'Everything about the first wrongful conviction will be exhaustively explored as well. From having observed the meticulous, painstaking, uncompromisingly ethical work of Ricciardi and Demos for two-and-a-half years they have to be amused but not in the least threatened by this frivolous lawsuit. For us it is an early Christmas present.'

Colborn, who was an officer on the Steven Avery case featured in the series, claims the documentary series used a biased angle to wrongfully accuse Colborn and the Manitowoc County Police Department of planting evidence to convict Avery.

The lawsuit reads they '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 and in order to make the film more profitable and more successful… sacrificing and defining [Colborn’s] character and reputation in the process.'

It also commented on the 'overwhelming guilt' of both Avery and his convicted nephew Brendan Dassey, as well as pieces of evidence featured in the series, which some claim were planted. Colborn then suggested had the filmmakers included more of his testimony at Avery’s trial, Avery’s guilt would have been overwhelmingly obvious.

Zellner disagrees. 'The basic theme of the complaint is flawed,' she told Rolling Stone. 'He is going to have to show that, but for these few edits, the world would have viewed Sgt. Colborn differently. … If the public wanted an un-edited version it could order the trial transcripts. Filmmaking is not stenography.'

Making a Murderer is speech —  certainly a vehement, caustic, and harsh attack on government and public officials — and though a pathological sense of entitlement appears to have gripped some units of Wisconsin law enforcement, the sovereign rights of citizens in our democracy to criticize their own government must prevail.