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.
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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.
Climate Audit 
95 Comments
Please do not comment on the Zimmerman murder trial or anything to do with race relations. And please avoid writing comments that I’ll have to delete.
From your Politics USA link:
Wow!
I say that Steve McIntyre uttered a prayer for Michael Mannic’s victory over Mark Steyn to the Great Gaia Pixie in the Wood. It’s not true as far as I know but I can get away with claiming it because Steve McIntyre can’t prove that he didn’t. At least that seems to be da judge’s lodgick here.
Now, Steve, when did you stop praying the Great Gaia Pixie in the Wood? 🙂
Actually, I don’t find this amusing at all. Dat judge is twisted.
One can easily think of potentially far worse examples, involving say false claims of paedophilia, for instance. This is NOT good.
I must emphasise that my emphasis wasn’t emphasised even though I did emphasise it. Only I can’t prove it now.
Not at all. in the Zimmerman case Zimmerman is the plaintiff NBC the defendant. The burden of proof is on Zimmerman. In Mann v. Stein Mann is the plaintiff the burden of proof is on him and since Mann is a public figure it is a very high standard of proof
Mann has to prove that Stein’s claim of fraud is false he must also prove that Stein knew it was false. This is a much higher standard of proof than the typical preponderance of the evidence, more likely than not, that normally exists in civil court.
Reblogged this on I Didn't Ask To Be a Blog.
“NBC later fired three editors involved in the incident, but conceded nothing to Zimmerman in their defence.”
I’m no legal beagle, but isn’t said firing a tacit admission of wrongdoing? The very fact that not one, not two, but three editors were involved in this blatant misrepresentation of the phone call (and were fired thereafter) certainly indicates malice aforethought. Evidently NBC also apologized to its viewers for this shoddy journalistic tactic, but not to Zimmermann himself. Perhaps if Steyn apologized to his readers and fired himself, Mann’s case would evaporate.
It’s important to note, as Steve does, that courts can vary widely based on geography and demographics. Florida is in the 11th Circuit, which includes Alabama and Georgia, and is therefore significantly more conservative than the DC Circuit (a judicial circuit unto itself), which is probably the most liberal in the country.
This was a state court action instead of a federal case, so the federal circuit in not relevant.
Yes, I noted this, too. If NBC’s position is that they did nothing wrong, then why were the editors fired?
Steve: there are many possibilities. NBC presumably took the position that the editors broke company policy through their editing, while also taking the position that this did not rise to “actual malice” as defined in libel law. This seems very plausible to me. Not everything that is “wrong” is libel.
You guys need more lawyers here. 🙂 First of all, no one (dynam01) says, “malice aforethought” anymore, and even when they did, it was a criminal law term not civil. “Malice” concerns a state of mind, specifically a mental state of hatred or ill-will or of reckless disregard for the rights of others. So you say, well, that’s what NBC did. But NBC is a corporation, and its state of mind is not automatically inferred from the state of mind of any individual employee(s). From that point of view, terminating the employment of the offending employees helps to insulate NBC from the allegation. Firing the editors is only a “tacit admission” that they violated company policy and not that NBC acted with malice, or even that they did so.
But the decision didn’t turn on the difference between the editors’ state of mind and the company’s. The court held that there could be no actual malice because there was no material change in the meaning of Zimmerman’s words between the unedited and edited version of the 911 tape. The court recognized that the dispatcher’s question (asking for a description)was edited out. But Zimmerman also volunteered, later in the call, that the intruder was “a black male.” The judge didn’t think that this necessarily portrayed Zimmerman as racist but only that he was identifying Martin, correctly enough, as black.
If you want to criticize the decision, look at the discussion of “limited purpose public figure.” But once the court makes that determination, it correctly rules that the bar for the case going forward is very high. This should work in Mark Steyn’s favor in the Mann case, although there I fear that the courts are less intellectual honest.
trytoseeit, Jul 10, 2014 at 9:59 AM
You state: “The judge didn’t think that this necessarily portrayed Zimmerman as racist but only that he was identifying Martin, correctly enough, as black.”
But this is a factual issue which the judge is forbidden to determine on summary judgment. “If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined.” Hoch v. Rissman, Weisberg, Barrett, et al., 742 So.2d 451, 456 (Fla. 5th DCA 1999).
At trial, after hearing all the plaintiff’s evidence, the judge may deem the evidence insufficient to allow the jury to decide the issue on a Motion for Directed Verdict, Fla. R. Civ. P., 1.480, but not on summary judgment.
Will J. Richardson,
Obviously I know what the general summary-judgment standard is. You need to read the court’s opinion, or do some independent research, to understand how that standard is affected in libel cases brought by public figures. I said earlier that one can quarrel with what the court decided on the “limited-purpose public figure” issue but once that one goes against Zimmerman, the court was well within its power to rule on the undisputed facts (the words of the transcript aren’t subject to dispute) that editing out the question prior to “he looks black” didn’t put Zimmerman in a false light, since he has volunteered at another point in the transcript (without a prompting question regarding race) that Martin was African-American.
Steve brings up Zimmerman v. NBC for the insight it might have in Mann v. Steyn. As I said, the parallels are helpful to Mark Steyn, but I fear that the court in his case is not displaying the same legal-analytic rigor as in Zimmerman’s case. Otherwise, Mann would have been thrown out of court a long time ago.
“that editing out the question prior to “he looks black” didn’t put Zimmerman in a false light, since he has volunteered at another point in the transcript (without a prompting question regarding race) that Martin was African-American.”
That is at best a misreading of the transcript. Zimmerman was asked a question. He says, ‘I think x.’ Later, to clarify and eliminate doubt, he says, ‘Yes, x.’ The context of the asked question is still in operation and only legal blindness or idiocy would take his later statement as independent of any context.
It would be hard to understand these two cases without considering the role of PR agencies. Julison Communications was acting to further the Martin family interests from March 5. They offer “Specialized Public Relations for Attorneys” with “story framing” and their website at the time specified an ability to plant stories in the Los Angeles and NY Times as well as arranging “scripted interviews” on network and local TV. http://www.washingtonpost.com/lifestyle/style/trayvon-martin-story-found-the-media/2012/04/12/gIQA9VGmDT_story.html
The PR staffed “charities” supporting Mann are of course legion and the University of East Anglia’s spending over $200,000 with London’s Outside Agency (with Neill Wallis of phone hacking infamy as director) to spin Climategate http://notalotofpeopleknowthat.wordpress.com/2012/05/07/uea-waste-112000-on-public-relations-consultancy-during-climategate/
and subsequent UEA inquiries.
“The work included advice and guidance on the acceptance, arrangement and conduct of individual and parliamentary interviews and press conferences, and on statements to the media. It also included work to monitor press activity as a supplement to the work being carried out by our own Press Office”
Be wary of drawing too many comparisons. The judge in this case was the same at the murder trial and demonstrated a high degree of bias against Zimmerman that you may not see with Mann. The boys over at Legal Insurrection can explain all the instances of bias if it interests you.
People seem to be focusing on the snippet of audio coons vs punks. That should instead be evidence in Zimmerman’s favor with the more serious edit of removing the dispatcher’s question. The idea that ‘He looks like he’s up to no good. He looks black’ has the same impact on viewers as the actual conversation is pretty hard to accept.
Note also, the Zimmerman is a public figure does not rest on the shooting of Martin, but on prior activity he did in the community. He organized protest against the police, when they did not take action in a case of a beating in the area.
it seems strange that the plaintiff has to prove that he was misquoted, if that is what this matter of law requires. Since there appears to be no discernable word in the recording, doesn’t the newsgroup absorb any liability for imagining a nasty one? the truth appears to be that they made up one and since it was a nasty one should have been liable for its effect on the plaintiff, his family, and his reputation.
Doubtless there is some good reason why the law didn’t come down on the nbc folks over this invention of theirs and some other reader will enlighten us.
@ j ferguson said:
I suspect you live outside the USA. Here we have our first amendment free speech rights. Bad as it may be, it’s not illegal to lie about someone. The only remedy against a liar is a slander/libel suit, which are very difficult to win, as Zimmerman and many other people have learned.
I was careless in using “…law come down on the nbc folks…” Of course it isn’t illegal to lie, but I think zimmerman should have gotten some headway with their invention of his words in what seemed to me a malicious manner. Despite living here in US for 71 years, It’s pretty clear that there’s a lot I don’t understand.
j ferguson,
The Judge is obviously wrong in making this factual conclusion. Zimmerman can testify that he did not use a racial epithet. She is weighing a disputed issue of material fact here in violation of the summary judgment standard. On summary judgment, if there are disputed issues of material fact she is required to deny the summary judgment.
This is not the first time this judge has been very wrong on the law. As was seen plenty of times in the criminal trial.
“…A single publication gives rise to a single course of action.”
…I’m assuming this is why Racehorse Haynes was a defense attorney, and not a plaintiff attorney.
Maybe their appearance is similar because of a teleconnection.
“One libel plaintiff is a vigilante who prowled his gated community and attacked anyone who deviated from the consensus.”
Which plaintiff?
Don Monford
You can’t be serious
Why is he kidding? One man was the president of a legally constituted Neighborhood Watch–which by definition means he cannot be a vigilante. The other one takes it upon himself to punish anyone who disagrees with him. They way it’s written–“The other is, uh, …”–seems to indicate they are both vigilantes.
As a disclaimer, I, too, have taken the Neighborhood Watch training from the local police department.
He was kidding. The deep penetrating humor of one S. McIntyre.
The judge’s statements as quoted here are almost incredible, and obviously wrong. Surely it is clear that pasting together two different statements of Zimmerman’s: “This guy looks like he’s up to no good. He looks black.” so as to make it appear that the second statement is the cause of the first, gives a _totally false impression_ of what he was saying?
I don’t understand the other part of the decision either. If no one can tell what he said, then it seems to me that it is libelous to claim that he said something bad. The statement that “I know what he said” is false. It is as completely false as, “I saw George speaking to his wife yesterday, and (though I couldn’t hear him or read his lips) he admitted that he was a bank robber.”
Although there I could hear a claim that it is possible that the defendants honestly misheard it, perhaps influenced by their mindset about Zimmerman, but honestly nevertheless.
I think the judge is saying that there’s enough there volunteered by Zimmerman to put the burden of proof back onto Zimmerman to “prove” that he didn’t volunteer statements that can be construed to be as questionable as the one that was inadvertently created through NBC’s editing ‘trick’ (or ‘technique’ or ‘better way of doing things’).
So if in the second quote (the “F-ing punks” bit) the judge considers it un-provable that he specifically didn’t say the pejorative phrase, then it’s therefore accepted that he did say the worst offending phrase. It follows further then that NBC’s editing ‘trick’ is immaterial because it’s essentially the same thing as what is already assumed to have been done elsewhere. Consider it akin to parallel lines of evidence. Nevermind that in one case there’s considerable noise obstructing the signal, and in the other, well, the ‘trick’.
I would have reached a different conclusion re parallel paths.
If one of the two paths was inconclusive, I would throw it out and then we’d be left with only the first path, which clearly shows NBC did something they should not have done to make the listeners come to a different conclusion (if, not, why bother changing the text?).
I can’t see an inconclusive path invalidating one that is clear.
But, then again, not only am I not a lawyer, but I don’t even play one on TV.
I think you are correct. Even in a civil trial a jury’ chief task is as the judge will tell them finding the facts. The clear fact is the editing. Based upon that, the secondary issue becomes how the reporters “heard” the portion of the tape that can’t be made out. Taken with the edit, what they claim they heard becomes part of a pattern that appears biased. It will still depend a great deal on the jury though. Once the judge gives them instructions, they may or may not abide by them literally. When they return hey do not provide an explanation of their reasoning, just a verdict. Quite often the lawyers can be really desperate to find out what the jury thinks they did right and where they when off the rails. That leads to intervenes in the hall outside the courtroom. It is quite something to watch a lawyer’s face as you explain how their inconsistency torpedoed their case.
Miker613,
The implication is clear. If the same legal standards and tests are used in Mann’s cases as was used in the Zimmerman case, then Mann’s work is legally presumed to be fraudulent until he can prove otherwise. I’ll leave it up to others to speculate on how difficult a hurdle he faces in making that proof.
And even if they prove that Mann’s work is not fraudulent, that it’s still has scientific value, they will have to prove that Steyn et al did not believe it was fraudulent and that they recklessly disregarded the truth in making their claims. That will be very difficult to prove.
In the Zimmerman case, it’s clear that NBC had a bias, that they wanted to paint Zimmerman as a racist. They probably believed in their hearts he was a racist and while they flagrantly violated journalistic standards to make him appear more guilty than the evidence showed, the truth is not ascertainable in the case, therefore there can be no finding of a reckless disregard for the truth on the part of NBC.
There wasn’t enough evidence to convict Zimmerman and the charges themselves were racially motivated, but there also is not enough evidence to convict NBC of libel.
The finding that Zimmerman was a public figure is disturbing however. It’s arguable that he was a public figure only because NBC instantly made him one. When the alleged crime was committed he was obviously not a public figure.
Mann’s work is legally presumed to be fraudulent until he can prove otherwise.
That’s like saying that because first degree murder requires the state to prove an intent to kill, that the victim is legally presumed to be alive.
In NYT v. Sullivan, the case that established the “actual malice” standard, both sides acknowledged that some of the allegedly defamatory statements were false. It makes no sense to say those statements were legally presumed to be true.
Steve: your comment makes sense, but illustrates the peculiar reasoning of the Florida judge. As you observe, an reasoning on actual malice on the racial epithet ought to start with the presumption that the allegation was false i.e. that Zimmerman did not make the alleged racial epithet, and analyze whether the false statement was made with “actual malice” in the technical meaning of libel law – which is, more or less, knowing or believing the opposite, but making the statement anyway. (I’m aware that there are other nuances, but this is the main one.) I think that a plausible argument could be made that NBC did not make the racial epithet statement with “actual malice” (sensu libel). While the judge’s reasoning on this point is cocked up, on reflection, her conclusion on this count might well be right. It’s too bad that the reasoning is wrong. Similarly on the editing issue, while her reasoning doesnt make much sense, one can picture actual malice arguments that might work better. The amount of questionable reasoning ought to give anyone pause before contemplating the court system – a caveat that lawyers usually urge potential litigants to consider.
Steve – this begs the following question on libel/defamation law “As you observe, an reasoning on actual malice on the racial epithet ought to start with the presumption that the allegation was false i.e. that Zimmerman did not make the alleged racial epithet, and analyze whether the false statement was made with “actual malice” in the technical meaning of libel law.
Since the most logical purpose of the false statement was to enhance ratings, is that in itself not a reflection of malice?
Steve: as I just noted inline to another comment, “actual malice” has a technical meaning in libel law and does NOT mean “malice” as understood in discussion. The best way to understood the difference is to read some decisions. The key issue is not whether they disliked Zimmerman or whether they were seeking ratings, but whether they knew that the statement was false and made it anyway, and whether Zimmerman has a plausible basis for proving this. In respect to the racial epithet, it is evident that some contemporary commenters thought that Zimmerman had used the racial epithet. Perhaps the belief was a mistake, but once ZImmerman is considered a public figure, he doesn’t have much remedy against such a mistake. The editing out of the question is a little harder, but the line of reasoning is similar.
Steve – I concur that malice has a very narrow legal definition for libel/defamation purposes, only pointing out that the more generic use of the term malice by editing that tape for rating purposes even though they know it is likely to convey false information.
Compare and contrast the NBC dateline GMC side gas tank explosions, or the Consumer Reports Suzuki Samari rollover exposes.(though those two cases were not defamation/libel cases). Also compare and contrast the CBS killian memo story, where no one with any level of critical thinking skills thought those memos were authenti. Granted Bush II was a public figure and during political campaigns you can lie with near virtual impunity.
Just because someone is a competent statistician does not mean he is also a deep thinker.
Mann and his legal buddies may not have a strong libel case because Mr Mann is a public figure and it is going to be hard to prove that Steyn et al. knowingly and with reckless disregard for the truth libeled our hero.
I don’t see that the Zimmerman libel case is analogous.
What am I missing?
One is a member of the establishment, the other one is not.
As a lawyer myself I find the judge’s conclusion that because the FBI could not ascertain from the recording what word was spoken therefore the plaintiff could not prove what word was spoken quite peculiar. It seems to assume that the plaintiff could not give evidence of what word was spoken which a properly instructed jury could believe. What word was spoken is a question of fact which would ordinarily lie in the province of the jury to determine, not that of the judge. Perhaps counsel more familiar with the law of evidence in Florida could comment?
Ianal. I doubt it matters what was actually said. What matters is what NBC reporters thought was said in the * recording*.
When the FBI say “it might be anything”, Zimmerman might at a stretch be able to prove what was actually said, or what he meant to say, but is extraordinarily unlikely to prove others must have heard and interpreted the *recording* in the same way.
“One libel plaintiff is a vigilante who prowled his gated community and attacked anyone who deviated from the consensus.”
It took me a few minutes, Steve, but I finally got the humor. This one slices deeply…thank you.
Question: Why was George considered a public figure? A man defends himself and the state tries to railroad him, along with various media outlets, and voilà…private figure becomes public one?
in answer to your public figure question.
The 911 tapes were released/available to the media approx 4-5 days after the shooting and NBC broadcast their version of the story/transcript 5-7 days after the shooting.
By that time Zimmerman was a “limited public Figure”
Having now read the judge’s entire Final Summary Judgment, I am persuaded that she has not correctly applied Florida’s Summary Judgment standard with regard to the defendant’s burden to prove the absence of disputed issues of material fact.
Hoch v. Rissman, Weisberg, Barrett, et al., 742 So.2d 451, 456 (Fla. 5th DCA 199)
The Judge made several factual decisions, such as whether or not NBC’s editing of Zimmerman’s non-emergency 911 call “resulted in a material alteration” of the meaning of Zimmerman’s statements and that because the FBI could not discern whether Zimmerman used a racial epithet on the tape, that Zimmerman could not offer evidence that he did not use a racial epithet by testifying that he did not utter the words “f**cking c**n” as NBC alleged he did.
This will probably be reversed on appeal by the Fifth District Court of Appeal (which also decided the case I cite above), because the Judge make so many factual findings. The Appellate court will review the case de novo, without any deference to the trial judge’s findings of fact or conclusions of law, and make its own decision.
Here is more on the Florida Summary Judgment standard from the Fifth District Court of Appeal which will hear Zimmerman’s appeal:
Wal-Mart Stores, Inc. v. Tracz, 799 So.2d 413, 414 (Fla. 5th DCA 2001). The Fifth District Court continues, stating:
Id. at 414-5
A small correction. The case was not dismissed. Summary judgment was granted in favor of the defendants. That means the case was decided in their favor. There are some differences that can come into play, such as whether or not one can refile the complaint.
(The “motion for dismissal” actually moved for a dismissal or summary judgement. They got the latter.)
Let’s see — NBC turns Zimmerman into a public figure and then claims his lawsuit against them should be denied because he is a public figure.
So isn’t this exactly like the man who kills his parents and then asks for mercy because he is an orphan?
Certainly the lies that NBC told were hugely responsible for this matter gaining nationwide attention. But NBC can’t be sued for those lies because after the lies were told Zimmerman became a “public figure”? At the time the lies were told Zimmerman was not a public figure. That is the relevant point. Is that judge stupid or what?
Eugene WR Gallun
A couple of points
1) the NBC broadcast occurred 5-7 days after the shooting. So while there is some dispute regarding Zimmerman being a public figure, there was ample time between the shooting and the broadcast in which Zimmerman had become a “limited Public figure”.
2) The second point is since the broadcast was 5-7 days after the shooting, there was more than sufficient time available to ensure that NBC broadcast a story that was accurate. I am not saying the editing was done with malice, but it was certainly done for rating purposes.
3) Defamation law only has the actual malice standard, where as basic tort law has negligence, gross negligence and intentional negligence, Knowingly editing the tape in manner which is intended to leave a false impression would at least be gross negligence.
Would that not be an exact parallel of the Richard Jewell v. NBC case where the court disagreed with this exact interpretation made by NBC.
The bombing occurred on July 27th, Brokaw made his libelous statements on July 30th. The court rejected the arguments of NBC.
This decision cannot be allowed to stand or anyone can be libeled by the media because the act of being libeled in itself makes you a public figure.
The judge is an idiot. She proved that during the murder trial.
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1135&context=iplj
Richard Jewell v. NBC
Attached is a good article on the jewell V NBC case. Beginning on page 684 of the law review article, – it discusses the standards of care for a private individual.
Upon further review – I think the issue of private individual v limited public figure is much more complicated/grey area than I originally thought. It should be noted that the Jewell v NBC was settled out of court. –
joe, the broadcast did not happen 5-7 days after the shooting. The shooting happened on February 26th. The first supposedly libelous broadcast Zimmerman lists in his complaint aired on March 19th.
The story first broke in national news on March 7th, more than a week after the shooting. There was more than a week of media coverage prior to the broadcasts being sued over.
Brandon – I stand corrected on the time line. The actual time line makes it look more like malice and/or attempt to spike ratings by falsely embellishing the story.
Add the extra couple of days or week, demonstrates that NBC had additional time to get the correct story instead of the narrative they wished to put forth.
Steve: “actual malice” in libel law has a technical meaning that is different than “malice” as understood in discussion. Better to research this topic before getting drawn too far into reasoning about the topic.
Michael Mann won’t like this comparison.
IMHO the judges major error is finding that Zimmerman was a public figure. This would run contrary to the precedent that was set in the Richard Jewel v. NBC case where NBC again libeled an individual and then tried to claim the the party was a public figure because they made him one. The court disagreed and said that the media cannot make one a public figure by libeling them and then claim that they are a public figure for sake of trial. NBC was forced to settle.
In the course of this case I was not impressed at all by the judge. Frankly she is an idiot. Expect this to be overturned on appeal. No higher court can allow such a gross misinterpretation of the law to stand. By definition the media would be free to libel anyone they want because the act of libeling someone makes them a public figure according to this horrible decision.
Tom T,
Did Zimmerman or his associates hold a press conference during the period when the question of whether he was or was not a public figure was at a tipping point? Can someone become a public figure by holding a press conference or is more required?
Tom T, the situations are not remotely comparable. NBC did not turn Zimmerman into a public figure with anything Zimmerman complains about. The first broadcast he complains about was on March 19th, well after the Zimmerman controversy had received a large amount of media attention. It had received enough attention there were protests and the White House was investigating the issue. He was clearly a limited purpose public figure prior to any broadcast he sued over.
An additional point is by organizing a neighborhood watch for his community, he took an active, public role in regard to certain topics. In controversies which arise regarding those topics, he would be considered a public figure. Given his activities designed to affect the public realm directly led to the controversy of the broadcasts, he was certainly a limited purpose public figure in reference to those broadcasts.
NBC didn’t take some random, unknown person and bring him into the public view. They just covered a person who had inserted himself into a narrow segment of the public view and had received a large amount of media attention in regard to that segment.
The Zimmerman is a public figure does not come from this case either, but a prior action he took where he led protests about a beating that the police were ignoring.
I didn’t realize he had led protests. If he led protests about an issue related to the broadcast, he definitely can’t claim to be a private figure.
In Mann v Steyn, it is conceded that Mann is a “public figure” and therefore the issue of whether Zimmerman was a public figure raises issues that are not contested in Mann v Steyn. I would appreciate it if readers would move on from “public figure” to issues that are in play in both libel cases, including “actual malice”, summary judgement etc.
But that’s difficult Steve! (The reason I’ve avoided this thread so far. Snip as required.)
Mann’s lawyers may have conceded public figure, but almost all of their case centers around harassment of a scientist, as if he were not public. Mark Steyn I think has done a good job of highlighting the public nature of Michael Mann including references to Jessica Alba and James Cameron.
Brandon,
Zimmerman handed out fliers at black Sanford churches a year before the shooting. He was outraged that a white police lieutenant’s son was captured on video sucker-punching a homeless black man and was not arrested on the spot. I don’t know if he was in any news reports at the time. I guess that’s irony or something like it.
chuckr, that’s kind of funny.
That’s a claim made by Ziimmerman’s father. I’ve not seen any substantiation of it.
It happened. And the lieutenant whose son did the beating, was the same one who interviewed George after the Martin shooting.
Carrick,Jul 8, 2014 at 1:53 PM
The NBC Motion for Summary Judgment also discusses Zimmerman’s activism on the issue of the policeman’s son beating the homeless black man, with evidentiary references, in support of the Zimmerman’s status as a public figure.
Shame on you, Steve, for spreading lies about Zimmerman. He did not “prowl the neighborhood attacking anyone who deviated from the consensus”. Zimmerman was attacked by Martin. He had every right to protect himself and he did just that.
That was the other guy with goatee. Irony, man.
No irony. Just the facts.
Just a quick technical comment. Currently, in the Mann libel case the issue ruled upon is whether Mann’s complaint should be dismissed on the pleadings before any discovery. Typically, this is done through a Motion to Dismiss for Failure to State a Cause of Action. A ruling on such a motion requires that the Court consider all properly pleaded allegations to be true. The exact standard applied under a SLAPP Act case has not been clearly articulated in the case law. In this case, the district court took the allegations in Mann’s complaint as true.
The Zimmerman case was decided on a motion for summary judgment that involves different rules. In a motion for summary judgment the Plaintiff is required to show that he has some admissible evidence to support each element of the case. There are many, many cases that survive a “motion to dismiss” in which the plaintiff loses on a motion for summary judgment. I think that Mann will have a difficult time even after discovery presenting evidence that Steyn knew his statements were false and acted in reckless disregard to their truth or falsity.
Steyn can submit an affidavit stating he believed that Mann’s hockey stick graph was fraudulent. Mann will then have to respond with evidence that Steyn is lying or that he was reckless in holding such a belief.
Pauldd, ul 8, 2014 at 1:11 PM
One quibble with your scenario. You are correct that the judge in the Mann case refused to dismiss the case because she/he assumed that Mann’s allegations were true, but that is clearly not the standard to be applied under the DC Anti-Slapp statute which in relevant part states:
WASHINGTON D.C. CODE §16-5502(b). The statute further provides for limited discovery by the plaintiff to discover evidence which would demonstrate “that the claim is likely to succeed on the merits”. I read the language of the statute as requiring Mann to offer actual evidence to defeat the Anti-Slapp motion. The judge cannot simply deem Mann’s allegations as proof he is likely to prevail on the merits. Because the DC Court of Appeals recently approved an interlocutory appeal of the denial of a similar Anti-Slapp motion under a different section of the law in Doe v. Burke, I anticipate that the Court of Appeals will reverse the trial judge and direct an evidentiary hearing on the Anti-Slapp motion filed against Mann, when Mann will be required to produce evidence which “demonstrates that the claim is likely to succeed on the merits”.
In reply to Will J & PaulDD –
The statute cited 16-5502(b) indicates that the person moving for dismissal (Steyn, NR CEI) must show the issue is one of right of advocacy of public interest, which then shifts the burden to respondent (Mann). There are two questions that arise 1) did any of the 4 defendants show that it was the right of advocacy of public interest, at least in the motion to dismiss and 2) I have seen virtually nothing in the pleadings and other legal commentary stating the the burden shifts to the plaintiff in any of the other legal blogs. (granted, mine was more of cursury view of the pleadings and the other legal blogs tend to quickly delved into the merits of AGW and the HS, etc and therefore seem to miss the point you made. (fwiw – i am not agreeing or disagreeing – only asking the question for clarification and/or more insight)
Joe, Jul 9, 2014 at 12:06 PM
Mann conceded that the defendants “[made] a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest”.
Will J – I missed the part that Mann conceded that it was an issue of public interest and therefore concur the burden shifts back to the respondent of the motion to dismiss. Though I probably overlooked the concession because so much of the pleading are directed at the hearts and minds of public opinion and not at the actual statutes.
I have looked at the docket in the case (Zimmerman v. NBC) and it appears that Zimmerman’s attorneys did not file any affidavits in opposition to NBC’s Motion for Summary Judgment until the day after the hearing held on NBC’s Motion for Summary Judgment. Florida Rule of Civil Procedure 1.510 required Zimmerman to file such affidavits at least five business days before the hearing. If Zimmerman wanted to assert additional evidence not in the record to raise a disputed issues of material fact which would preclude summary judgment, he missed his chance.
Zimmerman did file a response in opposition to the summary judgment motion which probably cited evidence in the record such as answers to interrogatories and depositions. I cannot find an online copy of Zimmerman’s Response filed April 30, 2014, but the attempt by Zimmerman’s lawyers to file affidavits late indicates that they probably should have raised those factual issues by affidavit in a timely manner. However, due to the judge opining on the weight of the evidence in her order, Zimmerman will probably get a second chance when the appellate court reverses. The only way I see the Final Summary Judgment surviving on appeal is if the appellate court deems the trial judge’s error in applying the summary judgment to be “harmless”. See §59.041, Fla. Stat. (2013)
“One libel plaintiff is a vigilante who prowled his gated community and attacked anyone who deviated from the consensus”
That is over the top even for tAV ;D. Do we really know this?
I misread the quote which makes it even funnier.
It is hard to prove libel in cases where the wronged party is a public figure, and
is involved in a hotly contested, public debate. In that case ordinary citizens have a right to give their opionion. There should be a lot of give and take. A person who is giving an opinion about a hotly contested issue is different than a professional giving
a judgement on the merits regarding another professonal in the same field. If an aircraft designer lambasts another aircraft designer in print and accuses him of non-professional conduct, that has more weight than if such comments came from a pastry chef. Can the comments of a public commentator who criticizes a scientist be given as much weight as that of another scientist? I don’t think so. Public persons, widely, hotly contested debate, non-professional critique. Steyn has an easier case to defend than the defendants in the Zimm case.
Another case that might be comparable to Zimmermann, is that of Westmoreland. Obviously a public figure, he managed to win a judgment against 60 Minutes after they edited their questions. They did a Jay Leno-style show putting in their own separate questions to go with the video of Westmoreland’s answers.
If I understand what is happening in this case correctly, Mann is trying to delay this case by blocking discovery, while Steyn is trying to get to trial in a timely fashion. It looks to me like there is enough stuff in the public domain about Mann’s hockey stick and Mann’s behavior regarding it, that would be discoverable from other sources. Could Steyn expedite the procedure by waiving discovery of Mann? The case is supposed to be about stuff that is already known anyway.
Canman says: “If I understand what is happening in this case correctly, Mann is trying to delay this case by blocking discovery, while Steyn is trying to get to trial in a timely fashion.”
I do not think that that is fair statement of where things stand. It is true that Steyn is trying to get the case to trial. It is not Mann’s fault, however, that the case is in a holding pattern. Discovery is on hold because Steyn’s co-defendants have appealed the trial court’s decision not to dismiss the case. The discovery will remain on hold until the Court of Appeals rules.
While this is frustrating to Steyn, it is nothing out of the ordinary. It would be highly unusual for the trial court to allow discovery involving one co-defendant to go forward while discovery involving the other co-defendants is on hold.
I am not a fan of Michael Mann, but I don’t think the delay can be blamed on him.
Canman – people have gone to great lengths to get Mann’s communications surrounding public / government funded research. I suspect Mann would rejoice were he able to keep hiding the relevant material.
I suspect Mann is also trying very hard to avoid having to take the witness stand. Steyn forgoing discovery of Mann wouldn’t prevent defendants in other cases from pursuing discovery.
In reply to both Canman and Mr. Methane – It is unlikely that anything of value will emerge from discovery of any of Mann’s documents/emails etc. Even if the court grants full discovery, mann will still have control of the documents such that what gets released will likely not have any value to Steyn, CEI, NR.
joe, Jul 11, 2014 at 8:30
I have to disagree with your belief that Mann can control what is disclosed in discovery. I have concluded that Mann has no compunction about lying to conceal information he does not wish disclosed, or to counter and misdirect criticism. Mann’s previous statements, records, and documents, eventually disclosed or leaked and well known to readers of this forum, have convinced me of that; others may have a different opinion. However, when answering discovery, Mann must answer under oath, subject to the penalties attending contempt and perjury. Lying while not under oath is one thing, perjury another. Also, Mann’s lawyers have ethical obligations of candor to the court and the opposing parties. If Mann’s lawyers have evidence leading them to believe Mann is hiding documents or information, they have an obligation to either convince Mann to honestly comply with the discovery requests, or withdraw as Mann’s counsel.
The greater problem for a lawyer cross-examining Mann is that he would be at least as skilled as a politician in providing answers that are truthy, but when read in transcript, are not responsive to the question. Think of answers from Gavin. Then add in the problem of technical issues where it is impossible for the cross-examining lawyer to be fully conversant with the issues. I’ve seen how quickly litigation lawyers master many briefs, but even so, it’s impossible for one to be quickly briefed on some of the important issues.
They also have the ‘attorney–client privilege’.
Joe:
While it does sound unlikely, the Mann is full of surprises.
I think some of Mann’s lawyers have withdrawn already. Steyn mentioned it on his site, but I could find no story on the matter.
Steve: I haven’t seen any such mention. I think that you’re getting mixed up with the withdrawal of Steyn’s former lawyers.
Mann’s lawyers have an ethical obligation to comply with the rules of discovery. Although many people joke about lawyers and ethics, virtually all lawyers take seriously their obligation to comply with discovery rules. It is not worth risking one’s license and one’s professional reputation to serve the interests of one client.
Those who play games in discovery soon find their reputation irreparably harmed among lawyers and find it very difficult to practice law.
@Steve McIntyre, Jul 11, 2014 at 4:47 PM
But they’ll have technical backup to immediately highlight such non-answers on Mann’s part, won’t they?
Steve McIntyre, Posted Jul 11, 2014 at 4:47 PM
“The greater problem for a lawyer cross-examining Mann is that he would be at least as skilled as a politician in providing answers that are truthy.”
At trial, a skilled cross examiner will ask Mann “closed ended” questions, those that can be answered only “yes”, “no” or “that depends”. An example, “Dr. Mann, in your “hockey stick” paper, MBH98, the removal of only one of your proxies substantially alters the shape of your final graph, isn’t that correct?” “with emphasis on the last three words.
Mr. McIntyre, I am sure you could compose a wonderful set of closed end questions for the defense.
Posted Jul 11, 2014 at 12:50 PM | Permalink
I think some of Mann’s lawyers have withdrawn already. Steyn mentioned it on his site, but I could find no story on the matter.
Steve: I haven’t seen any such mention. I think that you’re getting mixed up with the withdrawal of Steyn’s former lawyers.
—————————————–
A brief mention by Steyn on 10 April:
http://www.steynonline.com/6252/a-trip-to-the-museum
“… the big news of the day is a shake-up in Mann’s lavishly white-shoed legal team. Longtime Mann lawyer Bernard S Grimm has decided to withdraw from the case.”
Am I crazy or is everyone missing the obvious? Hello, the evil goatee? One guy has the Grizzly Adam’s Starter Kit (clearly non-offensive) and the other is sporting the goatee. Who would you rather see in a dark alley? Oh, uh, I mean, who do you more trust with temperature proxies?
What more needs to be said?
Steve, in a vacuum, you would probably be correct that the question of whether Zimmerman’s two statements were related or not was a question of fact, that overlooks the fact that the entire inquiry is largely a legal fiction designed to take libel suits away from juries and state law, and make them into questions for judges applying federal (constitutional) law. The relevant analytical framework is referred to as “legal process,” and it posits that the law is not so much a set of objective, substantive rules (as laypeople tend to see it) as it is set of rules about how disputes will be resolved. As you know by now, the “actual malice” standard (which actually means exactly the opposite, i.e., “constructive malice,” i.e. “malice-implied-in-law”) was invented by the Supreme Court in 1964. It did so because libel law was causing a crisis, threatening to put national newspapers out of business entirely through the operation of state laws and courts, for doing exactly what such newspapers were supposed to do, namely informing citizens throughout the states of events important to highly contentious issues of wide public interest.
Once you understand that, the subsequent snarl of post-Sullivan case law is pretty easy to untangle. The general rule is that there is no such thing as libel any more, at least about anything that anyone cares about enough to have ever been reported by a news agency. The residual room left for successful libel suits consists of idle gossip about insignificant people and smoking-gun admissions (e.g. email saying “we know this is false, but we’re going to publish it anyway because we want to hurt this guy”). Furthermore, given the pain and expense of discovery in U.S. courts, the question will usually be resolved by a judge before discovery (since the rule would not have its intended effect otherwise). (But see Mark Steyn v. Mann for an important and outrageous exception–though even in that case discovery is stayed, and the case is liable to go away before it resumes.)