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Zimmerman Libel Suit Against NBC Thrown Out

Zimmerman Libel Suit Against NBC Thrown Out

Judge Debra Nelson, who presided at murder trial, rules Zimmerman’s victim status alone is sufficient to subject him to deliberate libel

How can we miss her, when she won’t go away?

Judge Debra Nelson, who presided over the murder trial of George Zimmerman, today issued a ruling dismissing his libel suit against NBC (a copy of that ruling can be found at the bottom of this post).

Those of us who followed the Zimmerman murder trial closely will recall Judge Nelson as ruling so consistently in favor of the Prosecution, fairly bending over backwards in her deference to prosecution arguments.

Judge-Debra-Nelson-trayvon-martin-case

In contrast, her rulings in favor of the defense were few and far between.  It was surely a similar perception by the defense that inhibited them from ever seeking self-defense immunity for Zimmerman, as provided for under Florida statute 776.032 “Immunity from criminal prosecution and civil action for justifiable use of force.”

That the same judge who so consistently ruled against Zimmerman at his murder trial would be the one chosen to also preside over his libel suit against NBC is eye brow raising, to say the least.

Zimmerman’s libel suit against NBC was based on NBC’s admitted doctoring of the audio of his 911 call to police, apparently done with the intent of making Zimmerman appear to be racist.

Purported evidence of racism on the part of Zimmerman was, at the time, extremely important to the prosecution of the case, for two reasons.

First, it added  fuel to the political fires raging in favor of Zimmerman’s prosecution, without which the prosecution would never have occurred given the facts and evidence in this case.  In my nearly 20 years of focusing my legal practice exclusively on self-defense cases, Zimmerman’s shooting of Trayvon Martin is by far the cleanest, legally speaking, self-defense shooting I have ever seen brought to trial.

Second, purported evidence of racism was essential to the Prosecution’s laughable efforts to obtain a second degree murder conviction.  

Under Florida law, second degree murder (782.04 Murder) requires some degree of a “depraved mind” or malice, and such malice almost invariably is a function of a prior existing relationship between the persons involved.

The difficulty, of course, was that Zimmerman and Martin were unknown to each other, thus providing no prior opportunity for malice to have developed between them.  If evidence of racism could be produced, however, the Prosecution could make the argument that the supposedly racist Zimmerman actually possessed malice against ALL black people, including Martin, thus meeting the malice requirement of second degree murder.  

It was particularly entertaining, then, to watch as every black witness brought to the stand by the Prosecution spoke with extreme favor of Zimmerman in their interactions with him. If anything, the evidence produced of trial was strongly counter to any claim of racism on Zimmerman’s part.

It was in the vacuum of actual evidence of Zimmerman’s purported racism that the NBC doctoring of the 911 audio recording was intended to be a “game changer” in favor of the Prosecution.  Here’s what was ACTUALLY said in the exchange between George Zimmerman and the police dispatcher during the 911 call:

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 white, black or Hispanic?”

Zimmerman: “He looks black.”

In the audio played repeatedly by NBC on the air to a national audience, the dispatcher’s inquiry was spliced out, as was Zimmerman’s explanatory text of why it appeared that Martin’s behavior was notable:

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

The doctored audio obviously suggests that Zimmerman purportedly believed Martin was “up to no good” solely on the basis of being black–prima facie racism.  Utterly fabricated, of course.

Despite this, Judge Nelson has dismissed Zimmerman’s libel suit against NBC on the basis that he had become a “limited public figure” in the controversy.  How so? Judge Nelson writes:

[Zimmerman]e 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.  Moreover, Zimmerman’s shooting of Martin rendered him a public figure in the ensuing controversy.

Yep, according to Judge Nelson, Zimmerman became a limited public figure unable to pursue a clear case of libel because, while doing nothing whatever unlawful himself, and conducting himself precisely as instructed by the police who managed the Neighborhood Watch Program in which he participated, became the victim of a vicious, life-threatening attack by Trayvon Martin.

More simply, if you are the utterly innocent victim of a violent criminal attack by someone of another race, and defend yourself, that makes you a limited public figure subject without recourse to deliberate libel by the news media.

Nice.

Of course, even as a limited public figure Zimmerman could still sue for libel if he could demonstrate malice. Judge Nelson deals with that by simply concluding that he cannot demonstrate malice:

Zimmerman cannot carry his burden of proving that the single, allegedly [?!?!–AFB] defamatory statement he challenges in the March 20 TODAY show broadcast was disseminated with actual malice.

She similarly dismisses other disseminations of essentially the same libelous content.  You can almost hear the smugness in her opinion as she writes:

The question whether a plaintiff can carry his burden of proving actual malice is, as a threshold matter, an issue of law to be decided by the court.

Meaning, of course, by Judge Debra Nelson.  What good fortune she has.

There’s more of the same in the full-length ruling, which can be found below, if you’ve the stomach for it.

Zimmerman can, of course, appeal this decision.  One would hope he could find financial support for such an appeal from organizations that recognize that innocent victims of crime, through no fault of their own, ought not to be subject to deliberate libel by national news organizations simply as a function of their victimhood.

–-Andrew, @LawSelfDefense


Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog and Amazon.com (paperback and Kindle). He holds many state-specific Law of Self Defense Seminars around the country, and produces a series of Law of Self Defense Videocasts and Podcasts available on iTunes, Stitcher, and RSS).

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Comments

Horrible. Just horrible.

PS – This is similar to what happened when Time magazine was shown to have intentionally lied in accusing Ariel Sharon of war crimes. They got off because malice could not be proven!

    sequester in reply to mzk. | June 30, 2014 at 3:47 pm

    That case went to a jury. The jury found Time had deliberately defamed Sharon. The issue was over whether Time’s actions met the heavy burden of the Sullivan standard. There the jury hesitated, but the jurors were convinced Time Magazine did Sharon wrong.

    Nelson is not even giving Zimmerman a jury trial.

      Milhouse in reply to sequester. | July 1, 2014 at 12:52 pm

      Wrong. Had they found that Time deliberately defamed him, he would have won. That is the Sullivan standard. But the jury bought Time‘s claim that it had mistakenly believed the story, or at least had thought it was likely to be true. For a non-public figure that would still be defamation, but for a public figure the defendant must either have known for a fact that the story was false, or else not cared whether it was true or false.

      In this case, the ruling makes no sense. I wonder whether this so-called judge actually understands the definition of “actual malice”. It seems to me that in this case actual malice proves itself. The very act of doctoring a recording necessarily requires that the doctorer knows what he is producing is not what was said, and it’s easy for a jury to find that the doctorer realized exactly how the cut version would be misunderstood, and meant it to be misunderstood that way. She seems to focus on the motives of the “disemination”, but surely the doctoring itself was done by an NBC employee, so as a corporation it constructively knew the story was false, even if the presenters who aired the doctored recording didn’t.

From the little I read, Nelson’s opinion itself libels Zimmerman. Can he sue?

We are lucky she didn’t override the jury.

    Milhouse in reply to mzk. | July 1, 2014 at 1:07 pm

    Unfortunately, judicial immunity is absolute. He can’t sue her. He can lobby for her impeachment, or campaign against her when she comes up for reelection. There’s probably also a judicial misconduct panel with whom he can lodge a complaint. Unfortunately none of these things is likely to have any effect, and none would get him anything.

Zimmerman’s status should be his grounds for appeal, such that the “lack of malice” hand-wave never has to be reached.

My understanding has always been that a “public figure” only acquires that status by some volitional act or acts. You don’t become a “public figure” by getting hit by a drunk driver in a notorious case.

    sequester in reply to Ragspierre. | June 30, 2014 at 4:01 pm

    I believe that “actual malice” is an issue of fact that must almost always be put before a jury. Testimony and discovery need to proceed.

    This ruling is blazingly defective. For one thing the “facts” Nelson bases her conclusion on are not the only “facts” that may be brought out a trial through testimony.

    From the text of the decision it does not appear that Nelson permitted discovery and depositions to be completed. Is that the case? If it is I am flabbergasted..

      Ragspierre in reply to sequester. | June 30, 2014 at 4:19 pm

      Here in Texas, we have two modes of summary judgment.

      “Traditional” summary judgment requires that, after giving credence to every fact supporting the non-movant (and forgive me for not reciting the magic words), the court finds that one or more elements of a cause cannot be met, OR the movant has proven a defensive theory, again after indulging every fact issue in favor of the non-movant.

      The second is “no-evidence” summary judgment. The movant challenges the non-movant to support each element of their case with evidence sufficient to at least raise a fact issue (though not to “prove” their case).

      In the latter, a non-movant can answer by objecting that adequate time for discovery has not been had, since it is only a fair process when both sides have had time to illuminate the issues they have to establish via discovery.

      These two modalities are pretty common in other states, as I understand.

        sequester in reply to Ragspierre. | June 30, 2014 at 5:06 pm

        You ably state the standards that most jurisdictions follow. Here is the gravement of Nelson’s ruling:

        Therefore, on summary judgment Zimmerman must present record evidence sufficient to satisfy the Court that a genuine issue of material fact exists which would allow a jury to find by clear and convincing evidence the existence of actual malice on the part of Defendants.

        Under the “rational interpretation” analysis of actual malice, the Supreme Court has held that as a matter of law, actual malice may not be inferred simply from the falsity of a statement as long as the statement represents a rational interpretation of an ambiguous source. See Time, Inc. v. Pape, 401 U.S. 279, 290 (1971). See a/so Bose
        Corp. v. Consumers Union of the U.S., Inc., 466 U.S. 485, 512-13 (1984).

        Summary judgment may be brought at any point in Florida. Nelson was ruling on Defendants “Motion to Dismiss or in the Alternative Summary Judgment” filed on 03/21/2014. The case had been stayed until 03/06/2014. The timing leads me to believe that Zimmerman did not have discovery or deposition.

        To prove actual malice, plaintiff needs to be able to explore not only the falsity of a statement but the reasons behind that falsity. A finding of actual malice is inferential in nature and therefore in all but an exceptional case should normally require a finding by a jury.

        Tell me why I should not be flabbergasted. I am open minded.

          “The timing leads me to believe that Zimmerman did not have discovery or deposition.”

          Nailed it. 15 days for discovery? Ridiculous. In an inferential case that involves decisions made by numerous persons since separated from the accused company, and now gone to who knows where? Absurd.

          Almost as absurd as the criminal trial.

          –Andrew, @LawSelfDefense

          Ragspierre in reply to sequester. | June 30, 2014 at 5:38 pm

          No Florida mavin, but it seems like “reversed on appeal” is written all over it.

          As I noted above, I don’t see how Nelson got to the “limited public figure” status. I REALLY don’t get how she got there after using the summary judgment standards. That is the FIRST WRONG ruling.

[Zimmerman]e 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. Moreover, Zimmerman’s shooting of Martin rendered him a public figure in the ensuing controversy.

WOW
I am actually at a loss for words and that is a RARE occasion.

    Gremlin1974 in reply to dmacleo. | July 1, 2014 at 1:48 am

    Yea, the way I read it is that because he was the victim and engaged in lawful self defense, that means he can’t sue.

I thought proving “actual malice” was the threshold for proving slander against public figures?

this is not that-

Straighten me out…somebody.

    Ragspierre in reply to Browndog. | June 30, 2014 at 1:13 pm

    “Yep, according to Judge Nelson, Zimmerman became a limited public figure…”

    That is the crux of the holding by the court. Nelson…kind of on NO evidence I can see…ordained Zimmerman a “limited public figure” on New York Times v. Sullivan analysis.

    I think it should be appealed.

    Well besides the rest of it she seems to have decided, “You can’t prove malice.. because I said so. Begone. You have sullied my court for too long. Go!”

MouseTheLuckyDog | June 30, 2014 at 1:02 pm

What does it take to finance an appeal?
It’s not like Zimmerman has to post a bond for the judgement.
( Like for example, an employer sued and found guilty of discrimination, would have to post a bond of the amount of the judgement before appeal. )

HappyWarrior | June 30, 2014 at 1:04 pm

Is there a reason why this lawsuit wasn’t filed in federal court?

This is naked ass-covering. She did a crap job, and despite her attempt to help the prosecution, he was found innocent. Now the suit which shows how he was railroaded needs to “go away.”

For us non-lawyers…. is this the end of this or are there other options open for Zimmerman?

From a non-lawyer. This is incredible. The ONLY reason for the edit to occur as it did was to make George Zimmerman look like he was racially profiling Martin. The edit had a DELIBERATE purpose, there is no other explanation.

How in the world can George Zimmerman be a limited public figure at the time that edited tape aired? He had given no public interviews (that I can remember). He was claiming to be the victim of a crime and the police had not charged nor arrested him.

The net effect of Judge Nelson’s ruling will be:

Why get involved in reporting a crime? The media can erase/edit tapes and make you appear to be racist/guilty/pretty much anything, and you have no legal recourse.

This is asinine. Zimmerman had NO expectation that anything he was saying to the police would be made public. NBC took that recorded comment, edited out a critical question posed to Zimmerman, then played his comments on National TV making it appear that he was racist in his “pursuit” of Martin.

This is PRECISELY the reason that many, many Americans no longer trust anything the news media tells us. We have no idea whether it is the truth or even part of the truth.

This doesn’t protect the “Freedom of the press”. This protects the press so that they can lie and smear people with edited tapes.

Un-freaking believable.

    Milhouse in reply to Bryan24. | July 1, 2014 at 1:32 pm

    How in the world can George Zimmerman be a limited public figure at the time that edited tape aired? He had given no public interviews (that I can remember). He was claiming to be the victim of a crime and the police had not charged nor arrested him.

    I think she’s saying that by getting involved in the issue of crime in the neighborhood, and organizing the neighborhood watch, he had injected his views into a public controversy, and become a limited-purpose public figure. Which is ridiculous.

Holy moly, Nelson looks an awful lot like Candy Crowley. Just sayin’.

    platypus in reply to walls. | July 1, 2014 at 1:48 am

    Come to think of it, has anybody seen the two of them in the same room at the same time?

Another craven example of bias on Nelson’s part. Poor George. Poor us.

This is worthy of an appeal. It is a clear abuse of discretion by Judge Nelson, and will be overturned as such by any appellate court that decides to look at it.

I’m surprised that the attorney involved didn’t move to have Nelson recused, and then appeal THAT decision when she said “no.”

    Ragspierre in reply to Chuck Skinner. | June 30, 2014 at 3:13 pm

    If the standard of review for summary judgment in Florida is anything like Texas, this should be overturned on appeal.

    It’ll be interesting to watch.

      sequester in reply to Ragspierre. | June 30, 2014 at 5:14 pm

      Rags, it is a de-novo review in Florida. What do you think of the quality of Nelson’s legal work?

      Sorry, this case was just not ripe for summary judgment. Bizarre.

Was there no rule to recuse Judge “I am the law” Nelson from this case?

    Ragspierre in reply to EBL. | June 30, 2014 at 3:15 pm

    Most times, recusal is a very steep hill to climb.

    They should have made the motion, seems to me, to make a record on appeal. Maybe they did. Dunno…

      sequester in reply to Ragspierre. | July 1, 2014 at 11:50 am

      Surprisingly in Florida disqualifying a judge is not as high a mountain as in other states. The movant must show:

      that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge; or

      The operative words are “that the party fears”. Case Law (at least in criminal cases) means all that must be demonstrated is a well founded fear of the movant. Yet I cannot find a motion to disqualify Nelson in the case log. I do see some substitution of counsel orders for Zimmerman. That may be the reason.

Florida’s legal system disgraces the state once again.

How did this woman get on the bench in the first place?

nordic_prince | June 30, 2014 at 5:34 pm

So if you’re the defendant in a murder trial, it’s OK for you to be libeled? Is that really the long and short of this bizarre situation?

    Milhouse in reply to nordic_prince. | July 1, 2014 at 1:43 pm

    No. If you get involved in the issue of crime, e.g. by joining a neighborhood watch, then you’re a public figure for that limited purpose, and newspapers can report things about you in that context, which they think are at least likely to be true, without first making absolutely sure they’re true. Requiring them to do that sort of digging would mean a lot of reporting in the genuine public interest would not get done. So far, so good. This really is the law.

    However, this idiot judge goes on to say that since you are now a public figure in relation to crime, if you then happen to be the victim of a crime you’re still a public figure in relation to that, and newspapers can publish whatever they hear about you in that context, so long as they think it’s probably true.

    The idiot judge also pretends that it was possible to doctor this recording without realizing that a normal listener would draw the conclusion that Zimmerman’s suspicion that Martin was up to no good was based on Martin’s race.

How is it even ethical for Nelson to be sitting as judge in the civil case spin-off from the murder case over which she presided?

Dat be sum crazy shit dere. I hope Z’s civil lawyers filed a motion for recusal, they should win on that basis too.

    That one I actually kind of understand. It makes sense from a “judicial efficiency” standpoint for a judge to hear the issues of a related case, because that way you don’t have to educate that judge on the issues of the litigation from stage zero.

    In this instance though she should have recused herself sua sponte simply because of the prior publicity and the public perception that she has no business being a judge at all. She should be at least admonished by the Florida bar for bringing disrepute to the practice of law given her rulings which were clearly in violation of Florida Statute, shown and mocked time and time again via analysis on the various judicial news networks.

BannedbytheGuardian | June 30, 2014 at 6:07 pm

I admit. I am sunk . I have no clue as to what. to do with that hair .Maybe a feathercut with some foils for texture & tucked behind the ears & straight cut. at the napeof the neck.

She ain’t purdy but something surely is possible .

” . . . Moreover, Zimmerman’s shooting of Martin rendered him a public figure in the ensuing controversy.”

People are involved in shootings all the time, and many of those shootings pass by almost unnoticed. Much of what brought Zimmerman to widespread public attention was not the shooting per se but the allegation that he was a racist and thus the shooting was racially motivated. NBC’s doctored tape, broadcast nationwide, appeared to prove the allegation of racism.

It seems to me that Judge Nelson is in effect rewarding NBC, since inasmuch as Zimmerman may have been a “public figure,” it was significantly due to NBC’s false recording — a false recording so powerful that even today many people believe, contrary to all evidence, that Zimmerman is a racist.

I guess the lesson here is that if you want to libel someone, make sure that the libel makes the person a public figure.

JackRussellTerrierist | July 1, 2014 at 1:56 am

Appeal!!

This is an absolute crock. My G-d, this woman needs to go do something else, like be a busboy at Mickey D’s.

Read Chuck Skinner’s response to Marco 100’s post, but my question remains: who or what group appoints the appeal judge? Our legal system gets more frightening with each passing day.

From the decision:

It is undisputed that Zimmerman spoke the words attributed to him, and that he made the challenged statement about Martin’s race with no prompting from the dispatcher (“He’s got his hand in his waistband. And he’s a black male.”) Exh 9

Okay, let’s look at that exhibit:

Dispatcher: Okay. And this guy, is he white, black, or Hispanic?
Zimmerman: He looks black.
[some time later, when he’s had a better look]
He’s got his hand in his waistband. And he’s a black male.

There’s your smoking gun. Nelson lied through her teeth.

The ruling is obviously both bizarre and incorrect but I just want to make sure of one thing. Are we positive that when she says:

“[Zimmerman] 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. Moreover, Zimmerman’s shooting of Martin rendered him a public figure in the ensuing controversy.”

…she isn’t referring to the Sherman Ware incident in the first part of that? Obviously it would be bad writing on her part to not make that clearer, but I just want to clarify this because my understanding is that NBC did in fact argue that Zimmerman had made himself a public figure in the Sherman Ware incident, and her wording is so hard to believe if she’s talking about the Trayvon incident…

    Milhouse in reply to Laser Beam. | July 2, 2014 at 12:04 am

    Exactly. She means that he was a public figure with regard to crime and race relations before the Martin incident.

      Laser Beam in reply to Milhouse. | July 2, 2014 at 12:37 pm

      She’s an idiot. So everyone who has ever attended a town hall meeting in their community is a “public figure” that the media can feel free to lie about? Amazing.

      As for this “pursued a course of conduct that ultimately lead to the death of Martin” what exactly does she mean? Nothing he did in terms of keeping an eye on Martin could reasonably have been expected to lead to anyone getting shot.

      Martin is the only one who took actions which could reasonably be expected to result in someone getting seriously wounded or killed, and which could reasonably be expected to result in traumatic, troublesome outcomes.

      Under Nelson’s reasoning, how far back do we go? Zimmerman waking up? Zimmerman leaving the house in the first place? It’s nonsensical.

      It’s meaningless to talk about his course of conduct unless and until it gets into illegal actions and/or actions which any reasonable person would understand could result in the sort of outcome which happened. No evidence shows he EVER took a single such action.

Well the message is coming down loud and clear from the entire judiciary system from Holder on down.

Don’t volunteer to help your community.
Don’t report suspicious activity.
Don’t fight back with deadly force to save your own life.
Don’t challenge the liberal propaganda machine.

You must submit to be dominated by gang violence.

Pretty sad world we live in.

    BMHGW in reply to Twanger. | July 4, 2014 at 9:24 pm

    Pretty sad world when a bully leaves his truck with a deadly weapon to follow someone.
    Would you like someone to label YOU a suspect and armed with a deadly weapon follow YOU ?
    How about if they follow your Mommy ?
    Or how about if they follow Zimmerman ?
    Is that the kind of country you want to live in ?

    You’re aware a few months before Trayvons murder Zimmerman heard a noise at his front door. He went to the door with gun in hand. It was the UPs man! It was daylight !
    It is simply UNBELIEVABLE he left his truck that night and had a gun in his back hip pocket. And at one point in his interview with Serino he claims he had “FORGET” he had his gun! HA HA HA HA Sure…. Softie would forget his gun when he ventures out on that dark rainy night believing a criminal is in the neighborhood !
    He has pulled the wool over your and others eyes.
    He got away with murder and now is trying to get blood money!
    Hopefully, all his attempts will fail.
    There is a silver lining in adversity and Zimmerman will only find that silver lining when he does some serious soul searching and admits how wrong he was !

      unitron in reply to BMHGW. | July 5, 2014 at 1:02 am

      “It is simply UNBELIEVABLE he left his truck that night and had a gun in his back hip pocket. ”

      It is unbelievable, or at least very, very unlikely, since we know he had a holster.

      As for forgetting the gun, it’s quite conceivable that, if it happened the way he said, he was stunned by that first punch, then falling or being knocked to the ground, and then getting his head banged against something harder than a pillow, and wasn’t able to detach himself from the event and think clearly, calmly, and rationally to devise the optimal self-defense strategy, but rather was just trying to prevent any further injury to himself until such time as his cries for help were answered, and it was only becoming aware that his assailant was going after his weapon that focused his thinking on the fact that he was armed.

      Twanger in reply to BMHGW. | July 7, 2014 at 3:16 pm

      Good Lord BMHGW, did you even watch any of the Trial?

      And to answer your questions…

      YES I want armed people in my neighborhood where I own my home looking out for my interests!

      YES I would LOVE to have an armed guard following my mommie around to keep her safe – if she was still alive. She passed away of dementia.

      YES, if a street thug trained in MMA techniques was beating the crap outta my neighborhood watch guy after telling him he was gonna kill him I’d want him to use deadly force to save himself from said street thug.

      Your race-baiting bleeding heart liberal snivelry has been ‘done to death’ on this web site. Zimmerman was found not guilty.

      Bwahahahahahahahahahahaha!

      Let that be a warning to other street thugs that would terrorize a neighborhood.

It’s ridiculous to say Judge Nelson was unfair to Zimmerman. She allowed that animation to be shown.
She ruled it wasn’t evidence yet that was lost on juror 37.
That animation allowed Zimmerman to tell his side of the story without being cross examined.
How fair is that ? It isn’t!

    Laser Beam in reply to BMHGW. | July 5, 2014 at 2:42 am

    He’d already been able to tell his side of the story via the prosecution putting on the video reenactment and other statements.

    The animation was simply a way to tie everything together and show how the events Zimmerman described lined up with various witness testimony and the timeline. Which they did, perfectly.

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