Businessman asks 10th Circuit to revive defamation suit over Netflix ‘troubled teen’ documentary

(CN) — A businessman involved in the “troubled teen” industry pressed a 10th Circuit panel Wednesday to reinstate his defamation lawsuit over a Netflix documentary created by a former attendee of one of the programs he was affiliated with.

Narvin Lichfield ran three youth facilities affiliated with World Wide Association of Specialty Programs, or WWASP, an organization that operated behavior modification boarding schools for at-risk teens.

Lichfield’s attorney, Ross Meyer of Enara Law, characterized Katherine Kubler — a former student of a WWASP-affiliated facility in New York and the creator of 2024 Netflix documentary “The Program: Cons, Cults, and Kidnapping” — as an investigative journalist whose intent with the documentary was to “get revenge.”

In the series, Kubler describes her and others’ first-hand experience at facilities like the Academy at Ivy Ridge, and explores the troubled teen industry more broadly and those involved in running the facility she attended, including Lichfield.

Shortly after the series was released, Lichfield sued Kubler and Netflix for defamation, false light, invasion of privacy, intentional infliction of emotional distress and civil conspiracy.

The three-judge panel focused its questions on Kubler’s voiceover narration about meeting Lichfield at a karaoke event, asking Meyer how the statement “the children he abused, the parents he conned, all of the crimes he’s gotten away with” was enough to warrant defamation.

“Conning is a whole bunch of different meanings. There’s con men, there’s con women, there’s somebody cons me into overpaying for a Buick,” U.S. Circuit Judge Robert E. Bacharach, a Barack Obama appointee, said. “How can that reasonably be interpreted as a specific fact?”

Meyer responded that the conning statement was made collectively with specific statements like “the children he abused” and “the crimes he’s gotten away with,” which a reasonable viewer would interpret to believe that Lichfield was a con man and committed crimes like child abuse.

“This was specific. It was within investigative journalism, and the phrasing didn’t come with any hyperbolic statements,” he said. “This was said in a very clear, deliberate framework.”

U.S. Circuit Judge Timothy M. Tymkovich said accusations of both child abuse and fraud were “fairly general” and “can be hyperbole contextually.”

“You need to get a little more specific context here, where the reasonable viewer of this documentary would say, ‘Mr. Litchfield is a bad person and committed crimes that could be proven under Utah state law,’” the George W Bush appointee said.

Attorney Natalie Spears, who represents Kubler and Netflix, said Kubler was expressing her opinion “that the methodologies that [Lichfield] used at WWASP facilities were abusive."

“She never personally accuses him of abusing anybody,” Spears, of Dentons law firm, said.

Spears said Kubler’s narration is “best understood as rhetorical hyperbole, emphasizing her criticism of WWASP tactics and her moral exasperation of the people who made money off of them.”

Bacharach questioned whether documentaries are typically assumed to be truthful.

“When I watch documentaries, I’m not expecting hyperbole, I’m not expecting opinions. I’m expecting facts,” he said.

Spears characterized the series as a “personal memoir” that does not claim to be neutral. Kubler’s opinions and “emotional exaggerated expressions” of criticism of the WWASP programs and Lichfield should be analyzed through that context, she said.

Lichfield had also objected to the documentary’s inclusion of his 2003 arrest in Costa Rica after a raid on one of his facilities to investigate abuse, without mentioning authorities later dropped the charges.

Bacharach confirmed the specific facility was never exonerated from the claims of abuse, but Meyer said that Lichfield himself was never convicted of any abuse charges.

“There’s a difference between when exculpatory evidence might change a perspective and when it absolutely will, and knowing someone was found innocent, I think a reasonable person would find that that absolutely would change the perspective,” Meyer said.

However, Spears argued that it was true Lichfield was arrested and that Kubler never implied he was convicted.

“She implies nothing happened to him, which is, of course, the broader point she was making, and she’s entitled under the First Amendment to make that different point,” she said. “He doesn’t get the editor’s pen to rewrite her speech after the fact.”

A federal judge previously found Kubler’s statements were constitutionally protected opinions, dismissing the suit under Utah and California anti-SLAPP laws, which allow defendants to seek quick dismissal of a lawsuit they believe is only aimed at stifling their First Amendment free speech rights.

“The district court correctly held it in the context of telling her own painful and deeply personal story, Ms. Kubler’s statements were classic expressions of hyperbole and protected opinion under the First Amendment … not statements of verifiable fact,” Spears said.

U.S. Circuit Judge Richard E. N. Federico, a Joe Biden appointee, rounded out the panel.

A representative for Kubler and Netflix did not immediately respond to a request for comment.

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