Last week, a Florida court dismissed the libel suit of George Zimmerman e.g. here. In today’s post, I’ll discuss aspects of this decision, which are relevant to Mann’s libel suit against Steyn and others.

Figure 1. Two libel plaintiffs: left – George Zimmerman; right – Michael Mann.

Merely juxtaposing the two pictures may cause some commenters to note a remarkable similarity (TM- climate science) of appearance between the two libel plaintiffs. However, the differences are more important. One libel plaintiff is a vigilante who prowled his gated community and attacked anyone who deviated from the consensus. The other is, uh, …. 🙂 (see below).

Zimmerman’s complaint is here; NBC’s motion for dismissal is here; while the decision dismissing the complaint is here.

The NBC Newscast

There were two main issues in Zimmerman’s complaint about the NBC newscast.

First, during Zimmerman’s 911 call, Zimmerman did not originally identify Trayvon Martin’s race. The dispatcher asked Zimmerman whether the supposedly suspicious character was “black, white or Hispanic”, with Zimmerman saying that he “look[ed] black” and later confirming that he was black.

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.

NBC News edited the call, removing the question from the dispatcher:

Zimmerman: This guy looks like he’s up to no good. He looks black.

Later, as Martin approached Zimmerman, Zimmerman confirmed that that he was indeed a “black male”.

NBC also said that Zimmerman used a “racial epithet”. The critical portion of the 911 call was later said by FBI specialists to be unintelligible due to poor audio. Zimmerman said that he had said “fucking punks”, but some anti-Zimmerman critics claimed that he had said “fucking coons”. The matter could not be resolved by FBI specialists.

NBC later fired three editors involved in the incident, but conceded nothing to Zimmerman in their defence.

The Decision

The judge in the Zimmerman libel case was the same judge who presided over the murder trial – an assignment that is perhaps surprising.

An important issue in the Zimmerman libel case – one that is not contested in the Mann libel case – was whether Zimmerman was a “public figure” at the time of the contested newscast. The judge determined that he was – so that many of the same criteria (e.g. for actual malice) apply as in the Mann case. The judge noted that when the “actual malice standard applies” (for a public figure), “summary judgments are to be more liberally granted” – a position that does not appear to have been taken by the Mann judge.

The judge stated that, as a public figure, Zimmerman had the obligation of “proving material falsity”. However, the judge found that, because a critical portion of the signal was unintelligible, it was impossible for Zimmerman to “prove” that he did not use a racial epithet.

Second, the FBI has concluded that it is impossible to verify what Zimmerman actually said “due to weak signal level and poor recording quality” Ex. 19. Based upon the undisputed facts, whether Zimmerman used a racial epithet “cannot be verified as false”. Auvil v CBS 60 Minutes 836 F Supp 740, 742 (E.D> Wash 1993), aff’d 67 f 3d 816 (9th Cir 1995). And as a result, he cannot, as a matter of law, carry his burden of proving material falsity.

A number of commenters on the incident observed that the dispatcher first asked about race and Zimmerman answered the question, whereas NBC’s removal of the dispatcher’s question portrayed Zimmerman as a racial profiler.

The judge stated that, under the law, such editing could result in “material falsity” only when the alteration “would have a different effect on the mind of the reader” than what the plaintiff actual said, citing Masson, 501 US at 516:



The judge found that NBC’s editing of the transcript did not “effect a ‘material change in the meaning’ of what Zimmerman actually said”, arguing that the editing did not matter because Zimmerman “volunteered precisely the same information at another point during the non-emergency call without prompting from the dispatcher” (when Zimmerman later confirmed that the suspicious person was indeed a “black male”).



For what it’s worth, from my reading of the transcript of the call, it appears that on the first occasion, Martin was some distance away and not clearly distinguishable, thus Zimmerman only said that he “looks black”; then Zimmerman said that Martin was coming towards him and, as Martin got closer, Zimmerman said that he was indeed a “black male”. It seems to me that it is a question of fact, not law, of whether the two responses were independent.

The judge also ruled against plaintiff Zimmerman on the important issue of “actual malice” – typically an almost impossible hurdle for public figure plaintiffs. The judge observed that the Supreme Court has identified several “recurring scenarios” where plaintiff’s allegations fo not support a finding of “actual malice” as it is defined in U.S. libel law, one of which was the “rational interpretation” doctrine articulated by the Court in Pape[Time Inc v Pape 401 US, 279, 290 (1971] and Bose [Bose Corp, 466 US at 486]. However, the judge’s analysis of actual malice seems to me to mostly re-iterate the previous findings on material falsity.



Intentional Infliction of Emotional Distress



Like Mann, Zimmerman also charged a count of intentional infliction of emotional distress. The judge stated that, under Florida law, a plaintiff could not transform the same facts and publications of a defamation action into an IIED action and rejected this claim as well. (Needless to say, Florida law may differ from D.C. law on this point, but equally it may have points of similarity.)



Conclusion

I draw the Zimmerman case to readers’ attention because of the undoubted irony that legal arguments that support Mann also support Zimmerman (and vice versa). To that extent, the doppelgangers have multiple interests in common.

Postscript: 🙂 Michael Mann, of course.



