Tyra Banks, the television personality and supermodel who captivated viewers in the early aughts, recently filed a defamation and false light suit against Netflix and the makers of the documentary, “Reality Check: Inside America’s Next Top Model.” As the title indicates, the documentary provides an inside look into “America’s Next Top Model,” the show that Banks created and hosted for 24 years. 

To succeed, Banks, as a public figure, faces a higher bar than most in that she will need to show more than private figures bringing defamation suits about private matters to prove the documentary included false statements about her that harmed her reputation. The law also requires that she show the filmmakers acted with something called “actual malice.” This is a high, but not insurmountable, threshold. 

The basis of Banks’ defamation claim is that the makers of the series used only 16 minutes of a three-and-a-half hour interview, and edited the comments she made in those 16 minutes to place her in a false light. 

Banks alleges that she took accountability for some of the show’s more questionable decisions. Banks has, for instance, said she made “some really off choices,” regarding things like statements she made that were critical of one contestant’s gap in her teeth, and, in one particularly regretful episode, made contestants cosplay as different races, including having a contestant being made up in blackface. 

Last year, in response to some of those criticisms, she admitted, “Did we get it right? Hell no. I said some dumb s—.” But in her lawsuit, Banks alleges that the audience would never know from watching the documentary that she had taken responsibility for some of the more problematic aspects of the show. “America’s Next Top Model” has been plagued by accusations of, among other things, body shaming, and ethically questionable photo shoots in which contestants were asked to pose as drug addicts and victims of criminal behavior.  

The crux of Banks’ suit centers on allegations that the makers of the documentary edited her answers to give the false impression that she was aware of an alleged sexual assault that occurred during the filming of the show, may have forgotten about it, and refused to answer questions about it. Specifically, Banks argues that via “selective editing, deliberate omission, and surgical manipulation of continuous footage,” the docuseries gives the false impression that she knew about the alleged sexual assault and used it to increase ratings for the show.    

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Banks also argues that she was not given sufficient time to review the documentary before it aired, had no chance to correct the false narrative that it allegedly created, and therefore was forced into bringing this defamation lawsuit as her only avenue to remedy the harm done to her reputation.

It is worth emphasizing that not every harm to someone’s reputation gives rise to a claim for defamation. Banks herself could have done and said many things to shape, and in fact harm, her own reputation in her storied career. Defamation law only allows people, including Banks, to successfully sue for defamation if she can show that false statements of fact hurt her reputation.  

If Banks were a private figure, she generally would not have to prove actual malice to recover actual damages; negligence would often be enough, depending on the nature of the speech. Negligence is a significantly lower standard and would only require that Banks show that the makers of the documentary failed to act as reasonably careful documentary filmmakers would have under the circumstances. 

This doesn’t mean filmmakers get a free pass to create a false impression of public figures through misleading editing. The First Amendment does not provide blanket protection for a film maker who intentionally splices, omits, or rearranges material to make famous people  appear to have said or done something they didn’t. Again, the actual malice standard is high, but not impossible to meet . Banks’ case will likely hinge, in part, on whether the editing merely reflected the filmmakers’ editorial judgment or whether it crossed the constitutional line into knowingly or recklessly creating a false narrative. 

Decades ago the Supreme Court created this distinction to protect our First Amendment speech rights. The theory is that we should be able to discuss and criticize powerful and prominent people without the constant fear that we will be hauled into court as defendants in a defamation case. Robust public debate requires room to discuss, parody, satirize, and analyze the famous and powerful among us. In addition, public figures often voluntarily step into the public spotlight, where they can expect that they will be the topic of debate, scrutiny, and criticism. Public figures, unlike private ones, can often grab the proverbial bullhorn and correct the record, if something false is said about them. 

Banks’ case is not just about whether the documentary cast her in a negative light. It is about whether the filmmakers allegedly went further and knowingly or recklessly created a false factual impression. That is a much harder claim to prove, and it is exactly where the First Amendment fight will likely take place. We will have to wait and see who ends up on top in this lawsuit.

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