An elderly Florida couple in Sanford, Florida is living through a nightmare after director Spike Lee sent their address to his 250,000 followers on Twitter — wrongly stating that this was the address of George Zimmerman, the man who killed an unarmed black teen, Trayvon Martin, in Florida. It was a uniquely stupid act by Lee and invited the very type of vigilante response that Zimmerman has been accused of. The question is whether there is liability for such negligence as David McClain, 72, and his wife Elaine, 70, live in fear of threats and packages arriving at their home.
While many have raised important questions of regarding the racial and legal aspects of this tragedy, some have responded in a reckless manner. The most obvious is a small group of individuals calling themselves the New Black Panther putting a bounty on the head of Zimmerman. None of us can stop people using a tragedy like this for crime, but these are incidents that involve reckless and grossly negligent conduct.
The abuse reportedly began with a Los Angeles man shown here named Marcus Davonne Higgins, 33, and goes by the online name “maccapone.” Higgins sent the address with the instruction that “EVERYBODY REPOST THIS.” He added “Like the fat punk he is, he still lives at home with mommie & daddy.” He added on Facebook “FEEL FREE TO REACH OUT & TOUCH HIM.” Higgins, however, was not done. He proceeded to appear on the streets in protests with a sign with Zimmerman’s supposed name, address, and phone number. What is remarkable is that he put so much effort into distributing the information and little effort in confirming it.
In reality, Higgins began with a simple error. He had found the address of “George W. Zimmerman.” Martin was shot by George Michael Zimmerman. William Zimmerman is the son of the elderly couple and is listed on these records as a much older man than the shooter in Florida. The Zimmerman family reported reached out to the California man not to tweet the address and he reportedly responded “Black power all day. No justice, no peace” along with an obscenity.
Ironically, once his own name came out, Higgins has not responded to numerous inquiries. No one has released his telephone or address.
The most obvious question is whether the couple could sue Higgins and Lee. There is obvious negligence here and obvious injury. Putting aside the failure to take reasonable steps to confirm the information, the purpose of releasing this information is clearly to harass the individual or worse. It is clearly foreseeable that someone would use the information to try to harm the occupants. Indeed, people showed up at the door of the elderly couple.
One similar case that comes to mind involved a slightly different issue. Generally, internet sites have been given immunity under the Communications Decency Act, which has been used repeatedly by Web providers to bar liability. Yet, this does not prevent lawsuits that sue John Does and seek discovery from the sites to determine the identity of anonymous posters. There have been a slew of lawsuits over such postings, here and here and here.
These cases highlight the protection given to Internet companies like Craigslist and Facebook from defamation lawsuits. Under a federal law and the ruling in Zeran. The Communications Decency Act. Section 230 of the 1996 Act gives protections to online service providers from being sued for the actions of others. That section states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
Kenneth Zeran sued America Online for negligence. On April 25, 1995, an unidentified person posted a message on an AOL bulletin board advertising “Naughty Oklahoma T-shirts.” It was a prank that featured offensive products about the Oklahoma bombing and told interested buyers to call “Ken” at Zeran’s home phone number in Seattle. Zeran notified AOL in a series of telephone calls and letters about the bogus posting. But AOL allegedly refused to take down the material. Then the prankster put more messages on the site from Ken, not only producing more calls but leading an announcer for the Oklahoma radio station KRXO to read the messages and encouraged listeners to call Zeran.
The Fourth Circuit held that Section 320 blocked any liability, even if AOL was informed of the falsity and harmfulness of the information. It was a very harsh decision and it is not clear that the federal law was truly intended to protect these companies for any liability under any circumstance for false and harmful postings.
This is different in that the McClain know the names of the posters and can sue to straight negligence, including the failure to take reasonable steps once they learned of the error to inform “friends” of the error. This is more than just getting a name wrong or a face wrong. This was a deliberate attempt to encourage people to contact these people. Even if it was the real information for the shooter in Florida it was irresponsible. Courts have held people liable for the intentional tortious or criminal actions of third parties. In the Weirum v. RKO decision holding a radio station liable for injuries caused to a third party when teenagers drove recklessly to find The Real Don Steele in his marked van. The court held that the reckless driving was a foreseeable response of teenagers to the promise of free concert tickets. It is certainly foreseeable that in this super-heated controversy over the Martin shooting, some would be motivated to take violent retaliation. That is certainly the case the bounty offered by the New Black Panthers — a close analogy to Weirum.
I believe that a viable tort action could be brought by the couple to include negligence and the negligent infliction of emotional distress. That would include an action against Lee who should “Do The Right Thing” and work equally hard to make amends to this elderly couple.
Source: Smoking Gun