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NBC seeks dismissal of Zimmerman suit over 911 tape edits

Lawyers for NBC News in March urged a Florida circuit court to dismiss the defamation suit filed in December 2012 by George Zimmerman, who was acquitted last July of second-degree murder in the Trayvon Martin case. The suit centers on NBC News broadcasts that misportrayed a 911 call placed by Zimmerman on Feb. 26, 2012, as the neighborhood watchman pursued Martin through a Sanford, Fla., subdivision. Edits to the tape made it sound as if Zimmerman had volunteered a comment that Martin is black, when in fact the dispatcher had asked him whether Zimmerman was “white, black or Hispanic?” Another contention in the complaint was that NBC News had knowingly reported the false claim that Zimmerman had uttered a “racial epithet” in the 911 call.

The case was stayed for about a year in deference to Zimmerman’s criminal trial, but motions are now flying back and forth between the parties.

Here’s a rundown of the argument from NBC Universal LLC as to why Zimmerman has no “viable” defamation claim:

* He’s a public figure: The way NBC tells it, Zimmerman was both a “limited purpose” public figure and an “involuntary” public figure when the NBC broadcasts at issue occurred. This contention is a critical point in the litigation, because defamation law gives news organizations significant protections when covering public figures. Most commonly, those protections apply to stories of full-fledged public figures like celebrities and politicians — any complaints from such folks who hold themselves out for public scrutiny must prove that the offending news organization acted with what’s known in legal circles as “actual malice”: That is, knowledge that the allegations were false or a reckless disregard in the matter.

Media law has carved out subcategories of “public figure,” and it’s here that NBC’s motion for dismissal pounces. A “limited purpose” public figure is someone whose profile rises in a public controversy. From the motion: “In this case, Zimmerman became a limited purpose public figure because he played a prominent role in several overlapping public controversies surrounding the issues of race relations, public safety, and the death of Trayvon Martin and the broadcasts he has placed at issue were all germane to his participation in those controversies.”

The first of NBC News’s botched broadcasts hit the air on March 19. By that time, argues NBC’s motion, the Zimmerman-Martin encounter had already earned national attention, a point that the Zimmerman complaint concedes. More from NBC:

Zimmerman became a limited purpose public figure because he both (1) voluntarily injected his views into the long simmering public controversy surrounding race relations and public safety in Sanford and (2) pursued a course of conduct that ultimately led to the death of Trayvon Martin and the specific controversy surrounding it.

The network’s attempt to cast Zimmerman as a limited-purpose public figure — as opposed to an anonymous guy living in some Florida neighborhood — starts “well before” any of the disputed NBC broadcasts. For instance, Zimmerman “spearheaded” opposition to the Sanford Police Department’s “perceived lethargy in investigating the relative of a law enforcement official who was allegedly involved in the beating of a black man” and pushed for the establishment of the neighborhood watch in his area — a leadership role that invites public scrutiny, argues NBC. And, after the shooting, says the NBC motion, Zimmerman’s “representatives took to the airwaves and the Internet on his behalf to disseminate to the public his views concerning whether his actions were racially motivated and otherwise appropriate,” contends the complaint.

And if you don’t buy the network’s argument about Zimmerman fitting the legal definition of limited-purpose public figure, he’s at least an involuntary one: No matter his intentions, Zimmerman became “the central figure (or at least the sole surviving central figure) in what quickly became a national, and indeed international, public controversy, encompassing not only whether Zimmerman killed Martin lawfully but also the broader issues of racial profiling, vigilantism, and ‘stand your ground’ laws,” argues the NBC document.

*He hasn’t stated a claim regarding the broadcasts at issue: NBC’s motion rips through the various broadcasts that Zimmerman cites as defamatory, and dismisses merit to any of the claims. For one broadcast in which Zimmerman was alleged to have uttered a racial epithet — “f___ing coons” — NBC argues that Zimmerman “cannot carry his burden of proving … that the challenged statement is false.” For the broadcasts in which he’s depicted as volunteering racial information, the NBC filing argues that he is “unable to make the requisite showing that omission of the question resulted in a material change in the meaning of what he actually said.”

*He can’t prove harm from NBC’s actions: The argument here is that Zimmerman cannot possibly tease out the NBC broadcasts as the source of any identifiable damages. “The undisputed record evidence reveals a virtual firestorm of negative publicity directed at Zimmerman well before the first broadcast at issue here – including accusations from several quarters that he killed Martin after profiling him because of the color of his skin and demands that he be charged with murder as a result,” reads the NBC document.

In a forceful answer dated April 30, Zimmerman attorneys James Beasley and Henry Didier argue that the tape edits made by NBC News created a false and highly actionable set of news reports: “The plaintiff can show, as a matter of fact, that the defendants created a false recording, by taking the plaintiff’s words out of context and splicing them together in a way which altered their meaning and created the false implication that the plaintiff had targeted and shot Martin because he ‘looks black.'”

As to the question of whether Zimmerman used that terrible epithet in referring to Martin in the 911 call, Zimmerman’s lawyers have this to say: “In this case, such testimony can be provided by the plaintiff, the dispatcher and others, including the investigators who attested in a sworn affidavit filed with the Court in the criminal proceedings against Mr. Zimmerman that he did not use a racial slur, but instead said ‘f________ punks.’ In addition, the audio-recording itself is available,” says the Zimmerman filing.

Rebutting the network’s claims about how Zimmerman is a public figure of some sort, Beasley and Didier insist that NBC cannot argue that Zimmerman was a “public figure for the purposes of the controversy they created.” More on that front: “The plaintiff has alleged there was no pre-existing public controversy over whether he was guilty of racially profiling Trayvon Martin, as proven by his own statements on the audio recording, until the defendants created one.” (Bolds and underline in original).

Furthermore, the plaintiff’s lawyers contend that no matter which way a court may rule on Zimmerman’s public-figure standing, his complaint alleges actual malice by NBC News. “He has alleged that defendants knowingly and deliberately manipulated his own words, by splicing together disparate parts of the recording of his 911 call, to create the illusion that plaintiff targeted Martin because Martin looked Black and that his death was the result of a heinous act of racial profiling,” argues the filing.

And don’t go telling the Zimmerman lawyers that their client didn’t suffer harm from these awful broadcasts. Those who heard the reports, argues the filing, were likely to place credence in them, for the following reason: “The public is far more likely to assume the accusations must be true, when they are broadcast by the media. That is particularly so when the falsehood is presented by that media in the most damaging way: as coming out of the accused’s own mouth as self-condemnation,” says the filing.

The Erik Wemple Blog Court rules that the network’s motion to dismiss (or for summary judgment) must be routed to the nearest shredder. Whatever you make of all the legalese that gets tossed around in these filings, NBC’s actions amounted to a journalistic felony that demands a full hearing in the courts.