George Zimmerman appears not to be content with being on the criminal docket alone. He is now a civil litigant in a lawsuit filed against NBC Universal Media for an editing error that portrayed him as a racist in coverage of the killing of Florida teen Trayvon Martin. The very first line of the complaint starts out with an accusation of unethical sensationalism” ““NBC saw the death of Trayvon Martin not as a tragedy but as an opportunity to increase ratings, and so to set about the myth that George Zimmerman was a racist and predatory villain.”
In addition to NBC and NBC’s Ron Allen, the lawsuit names as defendants Lilia Rodriguez Luciano (who was later terminated due to her reporting of the case for NBC) and Jeffrey Burnside of Dade County, another journalist who was also fired by NBC.
The second line is no more favorable: ““Their goal was simple: keep their viewers alarmed, and thus always watching, by menacing them with reprehensible series of imaginary and exaggerated racist claims.”
I am not sure if such reports “menace” viewers but it was clearly wrong and clearly harmful to Zimmerman. The network committed a serious error in the
editing of the 911 audiotape. Here is the audiotape:
Zimmerman: This guy looks like he’s up to no good. He looks black.
The full tape went like this:
Zimmerman: This guy looks like he’s up to no good. Or he’s on drugs or something. It’s raining and he’s just walking around, looking about.
Dispatcher: OK, and this guy — is he black, white or Hispanic?
Zimmerman: He looks black.
Thus, Zimmerman was not the one who raised race and was specifically asked to give Martin’s race by the police. However, NBC spliced together parts of the recording and left the opposite impression — a very serious mistake and lead to added international condemnation. NBC edited the tape to show Zimmerman stating “This guy looks like he’s up to no good. Or he’s on drugs or something. He’s got his hand in his wraistband. And he’s a black male.” It is truly hard to see how a “mistake” like that could occur without malice, but at best it was gross negligence. It certainly, in my view, raises a legitimate defamation claim.
This is one of four such misrepresentations cited in the complaint which is linked below. This includes stating that Zimmerman said “f—ing coons” on the February 26 call when he said “f—ing punks.”
Count one is an omnibus defamation claim. Count two is an intentional infliction of emotional distress claim. He is seeking both joint and several liability as well as punitive damages.
Notably, in some jurisdictions, he could also bring a false light claim. However, the Florida Supreme Court rejected the false light claims, leaving defamation as the only option in such cases. The court found that concerns over false light were valid: “(1) it is largely duplicative of defamation, both in the conduct alleged and the interests protected, and creates the potential for confusion because many of its parameters, in contrast to defamation, have yet to be defined; and (2) without many of the First Amendment protections attendant to defamation, it has the potential to chill speech without any appreciable benefit to society.”
There remains the question of the status of George Zimmerman in any defamation action. A status as a public figure or limited public figure would subject him to the higher standard of “actual malice” and the need to show actual knowledge of falsity or reckless disregard of the truth under New York Times v. Sullivan.
The complaint does not concede that Zimmerman is a public figure but it notably accuses the defendant of either actual knowledge or reckless disregard. While higher, there is a plausible basis for such a claim in the case even as a public figure. If Zimmerman tries to sue as an average citizen, he could face the same problem of my former client, Eric Foretich, who was declared a limited public figure due to a brief comment to the media in Foretich v. ABC. Zimmerman’s family made early efforts to frame his image in the media. This is understandable but could be viewed as triggering the higher standard if done with his knowledge or consent. It seems likely that he will be declared either a public figure or limited public figure.
Then there is the novel question of whether Zimmerman falls into a narrow category of a “libel proof” defendant. The complaint states that “[d]ue to the defendants’ journalistic crimes, Zimmerman has been transformed into one of the most hated men in America.” Yet, NBC could argue that his actions and confirmed statements resulted in that status and that, furthermore, he is now so without a good reputation that he is effectively libel proof. If so the court would have to find that Zimmerman’s reputation was already so damaged that he cannot recover more than nominal damages for subsequent defamatory statements. Marcone v. Penthouse Int’l Magazine for Men, 754 F.2d 1072, 1079 (3rd Cir. 1985). This is a relatively rare basis for a dismissal and the plaintiff has to be akin to a Charles Manson.
Zimmerman has long denied the allegations and insisted that he was defending himself. Moreover, these incidents occurred early in the controversy. There is no question that the case quickly took on intense racial elements. I have written before that I believe that the case was over-charged and that the media was engaging in highly unprofessional commentary. I do not believe that the defendants could succeed in a libel-proof claims anymore than Zimmerman will be able to escape the status of a limited public figure.
I also believe that the lawsuit has merit, even with the apology of NBC. The story had already spread across the internet and global media. The apology could protect the company from punitive damages, however, depending on how the evidence unfolds. What do you think?
Here is the complaint.
Source: Washington Post
Alleged???????? Are you kidding me? Did you see the tapes Mr Turley?
No Zimmerman is found Not Guilty I hope he sues the hell outta NBC! The fact they choose to Doctor the audio of his phone call to make him sound like a blatant Racist was wrong and Immoral. And notice how Obama has said nothing so far he is a white hating clown!
It turns out that Detective Christopher Serino wrote four drafts of his memo (to charge George Zimmerman with a crime on March 13, 2012) within five hours. In his first drafts he intended to charge the suspect with Murder-2. Then he revised and revised and came up with accidental homicide (being “manslaughter”) for which the capias was issued.
Revised four times in five hours. Seems like the guy just couldn’t seem to get it right. My My, and here he was about to overcharge the guy! Just like Angela Corey ultimately did, according to some experienced criminal defense attorneys.
O’Mara has a tough case there; perhaps he should have started out with a different strategy. “Not guilty by reason of insanity.” Described more particularly: “My client was crazy enough to think he could get away with it.”
Ariel, Mike S, Professor, etc.: It turns out that Lead Homicide Detective Christopher Serino, who was in charge of the case (known as the “Zimmerman case” although it was the case of the “death of Trayvon Martin”) had originally sent TWO memos saying that in his professional opinion, Zimmerman should be charged with 2nd degree murder. Hmmm. All this talk about his being over-charged! If the first impression of the lead homicide detective who personally interviewed the suspect three times, BEFORE all the forensics were complete showing damning evidence against the suspect, was that Murder-2 was the appropriate charge, how was there so much high-powered indignation about the poor guy with the scrapes on his noggin being “over-charged”?
It seemed to me from the first I heard of this case (around the time Professor printed the sentence saying he believed there was probable cause to arrest Zimmerman), a large and peculiar contingent (with many strange bedfellows in it!) of folks have had objections to Zimmerman being held accountable in any way, shape or form. People actually “believed” [although I think their “beliefs” were colored by their preferences] that Trayvon’s parents, family and community should really not fuss too much about the “necessary death” of their beloved; that folks in this country should really believe the self-serving word of the suspect over the obvious suspicions of the homicide detective who interviewed him, that thousands of people should NOT have taken to the streets to scream in horror and righteous indignation that the murder of a youngster had been “blessed” by the law enforcement community; and that Corey was out of line in charging the killer with Murder-2.
Yeah, well it wasn’t so. And it still isn’t so. And the more information that comes out about it, the more that is obvious.
Ariel,
Note that my take on this is not emotionally-based.
It is based on analysing the conent and timing of phone calls and on the geography of the area.
There was a witness, whose testimony is solid.
That witness is Zimmerman himself – but only in the NEN call.
Ariel,
The only indication that Martin engaged in “grabbing, pushing, restraint, anything above just touching” before Zimmerman might have done so is Zimmerman’s say so.
His minor cuts and bruised nose in no way indicate which of the two might have been first engaged in “grabbing, pushing, restraint, anything above just touching”.
ANd then you have the statements of his brother and parents in the first days. Parents told neighbours that the fight started when Martin saw the gun. Brother said the fight started when Zimmermans hand went for his phone (his waistband – Remember “he’s got something in his waistband”?)
.
How credible is Zimmerman’s account?
FIrstly – Well he would say that wouldn’t he?
More dammingly – Other major parts of his story that can be analysed v. evidence show major discrepancies. In particular the 3 minutes from end of NEN call to the shot. That would be about 2 minutes from end of NEN call to the start of the struggle & noticing by 911 caller.
Of the 2 minutes, Zimmerman’s story only accounts for 20 to 30 seconds maximum as a walk from RVC to where he says it started just beyond the T-junction.
His account of the leadup to the incident from clubhouse to the pathway can’t work when put against the timing and content of his own NEN call.
What does work for that timing and content is what Frank Taffe says Zimmerman told him. That Martin approached the truck in Twin Trees from the clubhouse.
Then you get the “He’s running ” “Are you following him?” – “Yeah” of the NEN v. the “Going in the same direction” and then “Not running” in Hannity.
.
Zimmerman is clearly making stuff up.
His major problem is the gap after the NEN call ends.
To Sling T:
“Define “agressor (sic)” The one that committed physical violence first (that includes grabbing, pushing, restraint, anything above just touching otherwise I’d have to hit a lot of people). The “feeling” of being threatened doesn’t arise to the occasion. A “feeling” of being threatened is only that until the threat is more than that. I’ve been in a lot of nasty neighborhoods, if I attacked every time I “felt” threatened I’d be in prison.
Then this: “Your words could be rewritten as
‘Just as bad as the side that has found Z innocent before trial, with all that exculpatory evidence securing innocence since that’s all that’s needed to determine innocence.’” Except those aren’t my words, and I’ll leave “innocence” to the trial, primarily because I do believe “innocent until proven guilty” while accepting that the system is flawed and not all proven guilty are guilty. Nothing in the papers, or in police reports, or in prosecutors statements are sufficient to determine guilt or innocence in this forum. If they were, while neglecting the twisted takes, there would be no reason for a trial other than as a formality. I have stated my personal, emotional take on this if you care to look. I shouldn’t be on the jury either.
“Nothing in the papers, or in police reports, or in prosecutors statements are sufficient to determine guilt or innocence in this forum.”
Ariel,
In the main your assertions are true in that “innocence” or “guilt” should only be proven at trial. This is a legal parameter that is the essence of our criminal justice system. However, it is a boundary that has no real limits today, if indeed it ever had. Because of free speech and freedom of the press any criminal trial of notoriety in this country, perhaps from the beginning, has been tried in the press.
Due to the labyrinthine nature of our legal system trials often take places years after the arrest and charging. Rarely do juries hear famous cases where the individual jurors haven’t been bombarded with press reports on the guilt or innocence of defendants.
This is so commonplace as to be obvious and both prosecutors and police being aware of this wage overt public relations campaigns supporting their presumptions. The public of potential jurors tend to presume “where there is smoke, there’s fire” and generally side with the prosecutions assertions that their case is “air tight”. When juries actually do their mandated job and decide a case on the evidence, the jury members have aspersions cast upon them. The OJ case is perhaps the most famous instance of this, but the Casey Anthony case also is in the running. The solution to this appears to be twofold, but I despair of it happening. First pre-trial publicity should be “somehow” limited which is a tricky issue given our Constitution. Secondly, perhaps more available to remedy, is that the right to a speedy trial must stop being measured in years. Our Judicial system must have greater resources put into it so that it does not represent the overcrowded and leisurely pace that is now the standard. These any any other systems are of course fraught with difficulty.
Now as to the Zimmerman case. There would have been no case if not for the pre-trial publicity. The man was not charged initially and never would have been were it not for the clamor from the public. That he wasn’t charged, or at least held that night was a clear indication that he had something going for him, perhaps his father. I know of innumerable cases where someone has been killed under suspicious circumstances and the nearest suspect has spent up to 18 hours right afterwards being “grilled” by police, yet in this case after a few hours Zimmerman was set on his way. This is why there was public clamor and the media angle arose not because of Trayvon Martin’s death, but because of the still controversial issue of the “stand your ground law”. This is why discussion of this case has run rampant in this blog since it became famous.
The sad thing is that this issue’s discussion makes the death of this young man a sidelight to the real issue. In death he has achieved a notoriety that he never had in life. I such discussions all of us tend to lose track of the human loss, as we discuss the nuances of the case. Indeed, those who would defend Zimmerman and/or uphold their own possible lapses (i.e. prosecution/police) have released all sorts of detail casting aspersions on the victim. Whatever Martin’s school difficulties, it gets forgotten that there is absolutely no evidence of his being involved in a crime in this instance, nor is there evidence even when taken in its worst light, that he was’t defending himself against what turned out to be the deadly threat of Zimmerman, self appointed defender of his territory.
Given the above, yes it does become necessary when discussing the legal ramifications of this case to bring in possible indications of Zimmerman’s guilt or innocence. I think most of us here who have extensively commented on said guilt/innocence are well aware of the issue of the presumption of innocence. Yet this is a legal blog, more concerned with the issues behind the cases.So given that this blog discussion certainly will have no role in influencing the outcome of this case, juxtaposed with the extensive media coverage, the discussion here is quite appropriate, despite you restatement of the obvious fact that innocence must always been presumed. You are to be commended in your personal adherence to this important criminal justice rule, yet your condemnation of others, with its implication that they disregard presumption of innocence, is incorrect and misses the point of discussion.