NBC's Malicious Editing and the George Zimmerman Defamation Case

A brief history of the Constitutional dimensions of defamation, a discussion of George Zimmerman v. NBC, and a call for careful consideration  of the ability of national news organizations to confer “public figure” status, especially including their legal adversaries in defamation. 

Introduction

In December 2012 George Zimmerman filed a defamation lawsuit against NBC television and three of their news reporters / producers – Ron Allen, Lilia Rodriguez Luciano, and Jeff Burnside. Zimmerman alleged that the producers maliciously edited a recording of Zimmerman’s 911 call, falsely accused him of uttering a racial epithet, and falsely reported the facts of the Trayvon Martin shooting in such a way as to make Zimmerman appear that he racially targeted Martin and gunned him down in cold blood. Zimmerman alleged that this was done for the purpose of generating high television ratings. 

The defamation action was stayed pending the outcome of the criminal trial against Zimmerman, which subsequently ended in acquittal. When the proceedings resumed, the case was dismissed as to the producer defendants due to a minor procedural error by Zimmerman’s counsel. The case was dismissed in its entirety in June 2014 when the trial court found that Zimmerman was a public figure, thus requiring him to show that NBC acted with “actual malice”. Trial Court Judge Debra Nelson apparently ruled that Zimmerman could not show malice, thus could not adequately state a claim. 

Two potential Constitutional issues arise in Zimmerman:

• Did the lower Courts err in finding Zimmerman to be a public figure? 
• Assuming Zimmerman to be a public figure for purposes of defamation, did the lower Courts err in finding that Zimmerman failed to allege malice?

To examine these issues in Zimmerman requires studying the history of the tension between the opposing concepts of defamation and free speech. 

Defamation at Common Law

At Common Law, the tort of defamation was held to be a strict liability offense. A plaintiff could prevail by proving that a publication of false statements injured his reputation, without regard to any showing of fault on the part of the publisher. 

Prior to the 20^th century, the United States was mostly silent on defamation, allowing States to establish varying standards of proof. For example, Alabama (the State from which the New York Times case would ultimately arise) allowed an action for actual damages to proceed on a theory of negligence, but required a showing of “actual malice” by the defendant for the plaintiff to recover punitive damages. Actual malice was understood as actual knowledge of falsity, or reckless disregard for the truth. 

Hoeppner v. Dunkirk – Actual Malice and Punitive Damages

Since proof of a malicious state of mind is hard to show, proof that the publisher knowingly published a falsehood was generally accepted as proof of malice, under the theory that only a malicious person would knowingly publish a falsehood.  In Hoeppner v. Dunkirk Printing Co. (1930) the New York Supreme Court opined:

The plaintiff alleges that this criticism of him and of his work was not fair and was not honest; it was published with actual malice, ill will and spite. If he establishes this allegation, he has made out a cause of action. No comment or criticism, otherwise libelous, is fair or just comment on a matter of public interest if it be made through actual ill will and malice.  

While actual malice set a high standard of proof for increased damage awards, the relatively low standard of general proof was viewed as having a chilling effect on free speech, an effect brought to the fore in the United States civil rights movement of the 1950s. By the early 1960s, there were some $300 million in outstanding libel claims against news organizations in Southern states, who became increasingly reluctant to report on civil rights, for fear of being sued. 

New York Times v. Sullivan – Actual Malice and the Public Official

In March of 1960 the New York Times newspaper ran a full page ad seeking donations for the legal defense fund of civil rights leader Martin Luther King, who was defending against charges of perjury in Alabama. The ad stated that King had been arrested 7 times by the Alabama State Police. In fact, by that date King had only been arrested 4 times, the other 3 incidents being detentions, not arrests. 

Montgomery, Alabama Public Safety Commissioner L.B. Sullivan brought suit against the New York Times for defamation. Although Sullivan was not identified personally in the ad, he argued that it injured his reputation and the reputation of the department by falsely suggesting that police were harassing Martin Luther King. Sullivan prevailed at trial. The Alabama Court awarded Sullivan a $500,000 judgment. The  New York Times appealed, but the Alabama Supreme Court affirmed. The case was eventually heard by the United States Supreme Court in 1964. 

In his opening remarks, Justice William Brennan characterized the legal problem succinctly:

We are required in this [New York Times v. Sullivan] case to determine for the first time the extent to which the constitutional protections for speech and press limit a State's power to award damages in a libel action brought by a public official against critics of his official conduct. 

Brennan summarizes the theory of the lower Courts’ findings under Alabama statute, which as Brennan acknowledges elsewhere, was simply a codification of Common Law:

Under Alabama law, as applied in this case, a publication is "libelous per se" if the words "tend to injure a person . . . in his reputation" or to "bring [him] into public contempt"; the trial court stated that the standard was met if the words are such as to "injure him in his public office, or impute misconduct to him in his office, or want of official integrity, or want of fidelity to a public trust. . . .” 

In its now landmark decision, the High Court overturned the Common Law strict liability standard and established a new category of defamation plaintiff – the public official. Previously necessary only for an award of punitive damages, in  New York Times “actual malice” became the standard of proof for any defamation action by a public official. 

While the decision was widely regarded as an advancing the interest of free speech, the Court has since struggled to define “actual malice”. In concurring for the majority, Justice Black predicted the need for future Court involvement:

‘Malice,’ even as defined by the Court, is an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides at best an evanescent protection for the right critically to discuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amendment.

Curtis Publishing Co. v. Butts – Establishing the Public Figure

New York Times had effectively insulated the news media from defamation action by public officials such as political office holders and police. It was unclear how far the Court would be willing to extend its reasoning into the private sphere. 

Georgia Bulldogs football coach Wally Butts sued Curtis Publishing Co. for libel because Curtis published a story suggesting that Butts had conspired with rival coach Bear Bryant to fix college football games. In defending the action, Curtis argued that Butts should be held to the actual malice standard established in New York Times, because as a football coach he is a public figure, and thus a legitimate target for public criticism. 

Both Butts and Bryant prevailed at trial, and were awarded substantial punitive damages. 

The appeals process had to consider the issue of whether Butts, as a well-known college football coach, would be considered a “public official” under New York Times, because it impacts whether or not he must prove actual malice by Curtis Publishing Company. Curtis argues that they may have been negligent in not investigating the truthfulness of the football game-fixing story, but cold not have been malicious because they were not the original source of the allegations, thus could not have the requisite state of mind. 

In upholding Butts’ successful defamation action, the Curtis Court did draw a distinction between “public official” and “public figure”. While continuing to hold public official plaintiffs to the very high standard of actual malice, Curtis is generally interpreted to mean that public figures who are not public officials may still prevail against news organizations if they disseminate information about them which is recklessly gathered and unchecked.

The Curtis decision invited further reviews of both the standard of proof and the definition of public figure. That review would occur in 1974, in the case of Gertz. v. Welch. 

Gertz v. Welch – Defining the Public Figure

Elmer Gertz was an attorney representing the family of a man shot and killed by a police officer. The American Opinion magazine, owned by Robert Welch Inc., published a series of articles describing a communist conspiracy to discredit local police officers so as to effectuate a national dictatorship. One article made reference to Gertz and the case involving the police shooting, claiming that the police officer was framed, that Gertz had a criminal history, and that Gertz was a “Lenninist” and a “Communist-fronter”. 

Welch defended, arguing that Gertz was a public figure under Curtis, and therefore must show actual malice to prevail. The trial court ruled that Gertz was neither a public figure nor a public official, and instructed the jury to consider only damages.  Gertz prevailed at trial and was awarded damages. After the appeals process, the case reached the U.S. Supreme Court in 1974, which found: 

In this context, it is plain that [Gertz] was not a public figure. He played a minimal role at the coroner's inquest, and his participation related solely to his representation of a private client. He took no part in the criminal prosecution of [the police officer]. Moreover, he never discussed either the criminal or civil litigation with the press, and was never quoted as having done so. He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation. 

Thus Gertz established a test for defining a public figure for defamation purposes: Did the plaintiff thrust himself into the vortex of the public issue? With this language, the Court had no difficulty deciding that Elmer Gertz was not a public figure, because Gertz was a private attorney representing a client, and did nothing to invite publicity. 

Hustler Magazine Inc. v. Falwell – Testing Intentional Infliction of Emotional Distress

In the 1988 case against Hustler Magazine Inc. v. Falwell, the Court had no difficulty in finding that Jerry Falwell was indeed a public figure, because Falwell was a televangelist and frequent guest on television and radio shows. Hustler provided clarification on the role that Intentional Infliction of Emotional Distress can play in a defamation action by a public figure. 

In 1983 Hustler magazine published a parody about minister and televangelist Jerry Falwell which described Falwell’s first sexual encounter as being with his mother in an outhouse. 

Falwell brought suit for libel and Intentional Infliction of Emotional Distress. The jury rejected the  libel claim, finding that parody was within the confines of protected speech. However, the jury found Hustler liable for Falwell’s emotional distress, and awarded $150,000 in damages. 

The case reached the Supreme Court in 1988. Citing the First Amendment, the Court rejected Falwell’s attempt to rebrand defamation as Intentional Infliction of Emotional Distress:

At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. The freedom to speak one's mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions. 

Factual Background of Zimmerman v. NBC

Zimmerman became notorious after he shot and killed 17-year-old Trayvon Martin in Sanford, Florida in February of 2012. Initially local officials declined to prosecute Zimmerman, finding that he acted in self-defense and in accordance with a Florida “stand-your-ground” statute.

National news broadcasts, including those by defendant NBC, incited a groundswell of protest calling for Zimmerman’s arrest and prosecution. Some groups were even openly offering a bounty on Zimmerman’s head. Zimmerman went into hiding. An early news broadcast by the defendants included an edited excerpt of recording of the 911 call Zimmerman made just prior to the shooting: 

Zimmerman: There is a real suspicious guy. Ah, this guy looks like he is up to no good or he is on drugs or something. He looks black. 

911 Dispatcher: Are you following him?

Zimmerman: Yeah. 

911 Dispatcher: Ok we don't need you to do that. 

Zimmerman: Okay. 

Given the above dialog, its seems reasonable to infer that Zimmerman harbors racial animosity toward black people, because he appears to be offering up the information “he looks black” unsolicited and in connection with “real suspicious guy” and “looks like he is on drugs or something”. 

In fact, George Zimmerman never said what is quoted above. A significant portion of the conversation after  “on drugs or something” and before “he looks black” had been edited out. The actual part of the conversation between Zimmerman and the 911 dispatcher went as follows:

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. 

911 Dispatcher: OK, and this guy - is he white, black, or Hispanic?

Zimmerman: He looks black. 

Two very important distinctions must be discerned between the edited and un-edited versions. First, Zimmerman is offering a reason why he believes “this guy” [Trayvon Martin] appears “suspicious”. According to Zimmerman, Martin was “just walking around, looking about”, which is fairly suspicious in any weather condition, and especially so in the rain, because ordinarily people seek shelter from rain. 

Secondly, Zimmerman only identifies Martin’s race after being explicitly asked to do so by the dispatcher.  Zimmerman’s complaint goes on to identify three additional versions of the 911 call broadcast by the defendants, each edited differently than the first one, but each omitting the part where the 911 Dispatcher asks “is he white, black or Hispanic?”

For example, on NBC’s Today Show, defendant Luciano referred to Trayvon Martin as “the teen gunned down last month as he walked through the gated community wearing a hoodie”, then played this edited version of the 911 call:

Zimmerman: He looks like he's up to no good. He looks black. 

911 Dispatcher: Did you see what he was wearing? 

Zimmerman: Yeah, a dark hoodie. 

The reporter clearly states that Martin was “gunned down”. . .  “as he walked through the gated community”, when, by all accounts, the shooting occurred during a fight between Zimmerman and Martin. Moreover, as before, the edit in the 911 recording makes it appear that Zimmerman is associating Martin’s race with the notion that he is “up to no good”. 

The audio-splicing technique is not the only method by which NBC communicated the message that George Zimmerman was a racist. In a news broadcast, defendant and NBC reporter Ron Allen stated:

Sanford Police say that Zimmerman shot and killed Trayvon Martin in self-defense, a shooting without racial overtones, no hate crime. But when Zimmerman was calling the police the night Trayvon Martin was killed, he described the victim using a racial epithet. 

The “racial epithet” to which the reporter refers comes from a later portion of the 911 call. Zimmerman makes a comment “under his breath” which is very difficult to discern on the recording. As the defendants would have it, Zimmerman said “f_____-ing  coons”. Zimmerman claims to have said “f_____-ing punks”.  A review of the audio cannot be definitive, because the statement is unclear and buried in background noise. It is unreasonable to make any definitive judgment about which word George Zimmerman used there. 

There can be no doubt that the George Zimmerman / Trayvon Martin story generated a national conversation about race and self-defense laws. But questions remain. Why this particular story? After all, homicides occur all over the United States, every day. Clearly, race was the driving factor propelling this story into the national spotlight.  Absent the race angle, the Zimmerman / Martin story is likely a local news item, and nothing more. 

Case Dismissed as to the Producer Defendants

The Trial Court first ruled to dismiss the case against the producer defendants Ron Allen, Lilia Rodriguez Luciano, and Jeff Burnside. This was done on completely procedural grounds, as Zimmerman’s attorney had missed a filing date. This may have been where the entire defamation case turned. The producer defendants are the individuals directly accused of malice. The Plaintiffs are attempting to hold NBC vicariously liable for the actions of their employees. With the employees now out of the case, NBC can argue that they had no knowledge of the malicious editing, and thus that their actions could be construed as negligent, at most. 

Case dismissed in its entirety

In dismissing the defamation action, and in finding George Zimmerman to be a public figure, trial Court Judge Debra Nelson opined that he: 

" . . . voluntarily injected his views into the public controversy surrounding race relations and public safety in Sanford and pursued a course of conduct that ultimately led to the death of Martin and the specific controversy surrounding it”

Is Zimmerman a Public Figure?

In its Motion to Dismiss, NBC provided the following evidence that George Zimmerman voluntarily injected himself into the vortex of the race issue:

By his own account, Zimmerman, who had aspired to a career in law enforcement, was moved by the Ware incident to inject himself into the ongoing controversy about the intersection between public safety and race relations. See id. ¶ 106 (“I decided that I would have to do whatever I could to help raise awareness for Mr. Ware”). 

Among other things, Zimmerman and his wife “drove around to churches on Sunday, put flyers on people's cars and most of the time approached people, handing out flyers” criticizing the Sanford police. Id. ¶ 40; see also, e.g., id. ¶ 41 (Zimmerman’s counsel explaining that Zimmerman “took [a] stand”). 

Zimmerman’s relatives have long maintained that it was his activism that finally prompted Sanford police to arrest Ware’s assailant. See id. ¶ 42 (“‘Eventually, largely due to George’s efforts, the police officer’s son was charged with the assault,’ the family has said.”). As Zimmerman’s mother explained, “[m]y son took the time to elaborate and to go and make flyers and go to churches, African-American churches, leave flyers on every car, stay there for every church session and pass [out] flyers, and get the community together to go to a council meeting. 

NBC thus brings a significant argument that Zimmerman has voluntarily acted on aspirations to be a public figure. A finding of Zimmerman’s public figure status is warranted by his prior actions in being a community safety activist (not by his subsequent notoriety over shooting Travon Martin). 

However, there is a glaring problem here. Zimmerman’s prior community activism runs contrary to the notion that he is a racist or racial profiler. Zimmerman, who is Hispanic, invested a good deal of energy trying to help raise awareness in the Ware case, in which a black man was killed by white police officers. This is hardly the sort of conduct expected from a racist. 

NBC’s argument for George Zimmerman being a public figure succeeds. In so doing, it also succeeds in showing that Zimmerman is no racist, and that NBC had the ability to discover this fact prior to publishing the statements about Zimmerman that they did. 

Did Zimmerman Allege Actual Malice?

Under New York Times / Gertz, a defamation plaintiff suffering actual damages will prevail if the defendant issued the false statement either intentionally, or with a reckless disregard for the truth of the matter. There can be little doubt that George Zimmerman’s reputation suffered tremendous damage as a result of the news coverage of the Trayvon Martin shooting incident. But did Zimmerman properly allege intent or reckless disregard?

When ruling on a Motion to Dismiss, the Court must assume as true all facts alleged by the Plaintiff, and rule purely on matters of law. Similarly, a Motion for Summary Judgment is appropriate when there remain no disputes as to substantive matters of fact, and the Court can decide the case purely on matters of law. Indeed, NBC’s Motion to Dismiss is alternatively captioned as a Motion for Summary Judgment, and repeatedly asserts that the facts of the case are not in dispute. 

Notwithstanding NBC’s contrary assertions, following is a summary of 7 factual allegations made by Zimmerman, each of which is not specifically addressed by the NBC pleading, and therefore still in dispute. Zimmerman alleges that:

• Zimmerman did not use a racial epithetZimmerman did not racially target Trayvon Martin
• NBC intentionally edited the 911 call so as to portray Zimmerman as a racial profiler
• NBC knew or reasonably should have known that Zimmerman was not a racist
• NBC knew or reasonably should have known that Zimmerman did not utter a racial epithet
• NBC falsely stated that Trayvon Martin was killed while walking for the purpose of portraying George Zimmerman as one who targets black people
• NBC created the false story about George Zimmerman in order to boost ratings

Each of these is a factual matter, relevant to the case, and plead with particularity in the complaint. Were the case to make it to trial, the jury would decide whether or not Zimmerman was able to prove each of the allegations above, and what significance to attach. However, the case did not survive the pleading stage. 

In granting the Motion to Dismiss (June 2014), Judge Nelson had to decide that a news organization does not act maliciously by intentionally portraying a known non-racist as a racist, nor by intentionally distorting facts for the purpose of discrediting a pending self-defense claim in an open homicide investigation, nor by intentionally stating that a person uttered a racial epithet knowing that the person did not utter a racial epithet. 

Substantive Due Process

Under the 5^th and 14^th Amendments, no person shall be deprived of life, liberty or property without due process of law. As one of the most despised individuals in the United States, George Zimmerman has been denied a large measure of his life and liberty. As discussed above, Zimmerman brought significant factual allegations against NBC, but was denied access to any trier of fact. 

Such a denial of due process may only be justified by a legitimate state interest. The identified state interest here, as in  New York Times, Gertz, etc., is freedom of the press. Clearly it is not the Court’s intention to extend press freedom to include malice. Thus due process requires fact-finding in Zimmerman to determine whether NBC acted with malice, or not. Such trying of facts is the purview of a jury, and outside the scope of power of a trial court judge. 

Under the 7^th Amendment:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

For the above reasons, George Zimmerman was denied due process. 

Conclusion and Opinion

Finding George Zimmerman to be a public figure is arguable. Although Zimmerman’s notoriety stems almost entirely from the Trayvon Martin case, Zimmerman was something of a community activist in prior cases, thus providing a reasonably solid foundation for public figure status. 

Finding that George Zimmerman failed to allege malice in his defamation complaint is a gross miscarriage of justice. Zimmerman brought factual allegations of malicious editing and malicious reporting. Zimmerman brought tangible evidence to support his allegations. The malice issue cannot be decided as a matter of law. 

In my view, the dismissal of the Zimmerman defamation action must not stand stand. However, in December 2015, a Court of Appeals did indeed affirm the lower Court ruling. This would  appear to have the effect of legalizing the publication of intentionally false accusations of a hate crime, using intentionally manipulated evidence, so long as the target of the false accusations was deemed to be a public figure. 

The Zimmerman decision becomes even more worrisome in consideration of the discretionary power of the news media to publicize (or not publicize) people of its own choosing. Although George Zimmerman was active in local community service activities prior to the Trayvon Martin incident, few outside Sanford, Florida would have considered him a public figure. George Zimmerman became notorious because of voluminous national news coverage of the shooting and its aftermath. 

The national news media has the ability to confer “public figure” status on individuals of its choosing. In a defamation action, this affords the news media the power to literally change the legal status of the adverse party. The time is ripe to carefully consider the far-reaching implications of this conflict.