Last July, George Zimmerman sat down with Sean Hannity of Fox News for a multi-topic and much-viewed interview. The discussion went into minute detail on Zimmerman's deadly encounter with Trayvon Martin, from the moment he spotted Martin to the initial violence to his reflections on the whole thing: "I feel it was all God's plan," Zimmerman told Hannity.
That whole setup -- Zimmerman chatting with Hannity in front of a huge cable-news audience- -- could work to his detriment in the suit that the neighborhood watchman filed last week against NBC Universal. The legal action alleges that NBC News defamed Zimmerman with by mis-editing the 911 call that he made prior to the Martin shooting. The misleadingly rendered audiotape framed Zimmerman as a hardened racial profiler.
As it gears up to defend itself, NBC Universal is all but certain to mount a familiar argument. Zimmerman, it will likely contend, is a "public figure" for the purposes of the lawsuit. Under defamation law, those whom the court terms "public figures" bear a heightened burden of proof when bringing a libel case against a news outlet. They must prove that the outlet acted knowingly to spread falsehoods or with reckless disregard of the truth -- a standard known to lawyers as "actual malice." Regular folks -- non-public figures, that is -- have much less burden to prevail in a libel action; they need prove only that the news outlet acted with negligence or carelessness. The spirit behind the bifurcated standard in libel cases is to "free criticism of public officials from the restraints imposed by the common law of defamation."
Atlanta attorney Lin Wood calls public-figure arguments "the linchpin for successful defense of defamation cases."
So what's Zimmerman? Is he just a private guy under defamation law? Or is he a bona fide public figure?
Prior to Feb. 26, 2012, the answer to that question was simple. Zimmerman was about as private a citizen as they come; he patrolled his gated community in Sanford, Fla., as a neighborhood watchman. He attained international name recognition only through his deadly encounter with Martin on that night.
Yet Zimmerman's status as a regular dude prior to the Martin confrontation doesn't mean he cannot qualify as a public figure under defamation law. The Supreme Court has ruled that people who "thrust" themselves into the "vortex" of a public issue or dispute can become public figures for the purposes of defamation law, and thus create obstacles for themselves when it comes to filing a libel complaint.
Chuck Tobin is the chair of the media practice team Holland & Knight and has litigated defamation claims in Florida courts. The way he sees it, Zimmerman's standing as a public figure under his suit against NBC is a "no-brainer." The court, he says, will apply a straightforward test in determining the question:
*Whether there was a public contretemps over Zimmerman's racial views;
*Whether those views are relevant to the criminal proceeding;
*What role did Zimmerman "voluntarily play or not play in that controversy?"
Precedent in Florida courts, says Tobin, has been quite friendly to news outlets -- as judges have ruled over and over that otherwise private folks have qualified as "limited-purpose" public figures thanks to the controversies that they happened upon. As highlighted on the Web site of the Citizen Media Law Project, Florida courts in the past have applied the public-figure designation to a corrections officer, a police officer, a harbormaster and a hospital administrator.
As evidence that Zimmerman has thrust himself into controversy, Tobin cites his television appearance -- the Hannity thing, that is -- plus the Web site that promotes his viewpoints, not to mention his legal team's use of the media during the controversy. "There's a very strong case to be made that he's a public figure," says Tobin.
James Beasley, Zimmerman's attorney in the case, argues that Zimmerman "didn't thrust himself into the public light," thus preserving his status as a private citizen. "Defendants [media outlets] try to make everyone a public figure The press can't create a monster and then say because this person's now out, he's a public figure."
Oh yeah? The late Richard Jewell discovered a backpack containing a bomb while he was working at the 1996 Atlanta Olympics as a security guard. He acted heroically to clear out the area of Centennial Olympic Park where the device had been planted. Subsequently, he turned into an FBI suspect, as conveyed in media accounts. After he was exonerated, he sued news outlets for having reported him as such. Georgia courts, however, found that he was a public figure because of interviews that he'd granted to the media. "It's a ruling that I still disagree with," says Wood, who represented Jewell. "At the request of his employer, Richard had given a handful of interviews that were requested by the media to provide factual information about the circumstances of the bombing to the public. He did not advocate any position or express any opinions in those interviews."
Wood focuses on chronology in determining whether Zimmerman is adjudged a public figure. The NBC News tape-manglings occurred in late March, though Zimmerman didn't go on "Hannity" until months later. "If his public appearances by way of the Internet and television interviews were subsequent in time to the edited tape, I believe he would be deemed a private figure," says Wood.
Yet Wood also notes that NBC Universal could well try to categorize Zimmerman as an "involuntary public figure," which is essentially someone who acquires a high profile for being "in the wrong place at the wrong time," as Wood puts it. Should be a fascinating case.