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The NBC NonApology to George Zimmerman
By now the basic story is too well known to require extensive recapitulation. NBC News committed grievous and unprofessional reporting when it took this conversation involving George 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.”
The 911 officer responded saying, “OK, and this guy — is he black, white or Hispanic?”
Which it then turned into this:
“This guy looks like he’s up to no good … he looks black.”
For which NBC then apologized in a news release to its viewers:
During our investigation it became evident that there was an error made in the production process that we deeply regret. We will be taking the necessary steps to prevent this from happening in the future and apologize to our viewers
Here is my free advice to NBC. First, hire a lawyer to negotiate a handsome settlement in a libel case. Second, fire the people who are responsible for the perverse apology, which only compounds the original mistake.
Let me take these one at a time:
First, the abbreviated statement is clear defamation by the standard definition that covers false statement of facts intended to damage the reputation of the plaintiff. It is not that the words quoted are false. It is worse than that. They were quoted out of context to give them the opposite appearance of their obvious and intended meaning. The quotation shows a report, followed by an inquiry, followed by an answer that was truncated to make it appear that Martin was followed because he was black. Those willful and knowing changes meet the most exacting standard of actual malice that could be raised against a media defendant. They are sufficient to support claims for actual and punitive damages.
The apology makes it worse. The first point to note is that the apology was not a correction of the mistake. If NBC were to make an actual correction of the mistake, it would have to put out the full version of the story and correct the earlier misimpression. Second, the correction would have to be made in the same way and with the same level of attention of the original story. Put otherwise, it would have to be put on the air with the same level of publicity and the original report.
Next, any correction has to be truthful. This feeble pabulum was not. No, there was not some “error” in production for which there are always some (weak) excuses. This was a deliberate fabrication that did, and was intended to, fan the flames of racial discord. In my view, the evasive, incomplete, and underpublicized “apology” aggravates the original libel by refusing to acknowledge NBC’s internal breakdown in basic news decorum.
The betting here is that NBC News will not have the courage to come clean. For an organization that lives by its own (tattered) reputation, it should take my free advice: make a clean breast of the situation right now before the scandal grows.
Published in General
As you know, NBC is the same network that allows Al Sharpton to be a race activist and then come back in the afternoon and so-called report on the situation. The world in which this exists is so far down the rabbit hole that those executives who should heed your legal advice will instead listen to nothing but their own echoes. … What is heartening, I think, is that this slander was revealed at all. My cynical take—having worked for two daily newspapers in the early 1980s, back when it was anathema for reporters and feature writers to hob nob with the people they covered—is that this kind of thing happens all the time—indeed, that this is why so many people are so dreadfully misinformed and ginned up even as the media assert that they are not biased. I’d really like to know how the story got out. Was it an anonymous whistle-blower at NBC? Someone in the Sanford, Florida, PD? The Florida AG’s office? My hope is that it suggests that regular folks are going to start stepping up the push back against these truly horrendous people who call themselves reporters.
Richard,
Somebody needs to stay on top of NBC until they fire somebody for this. With your expert opinion:
“Those willful and knowing changes meet the most exacting standard of actual malice that could be raised against a media defendant. They are sufficient to support claims for actual and punitive damages.”
I think getting to them might not be as hard as it sounds.
Thanks,
Jim
Well stated Richard. I wonder to what degree NBC has colluded with other networks who have come out with corrections, but similar apologies. However, my real anger is directed at GE, who has been putting up with this crap for a long time, and Comcast, whose poor delivery of customer service, almost bordering on contempt, is legendary. I never knowingly give any three of them my business and delight in tearing up there marketing material.
I think a public and nasty libel suit would be awesome.
Bryan Preston says this guy is responsible.
” This was a deliberate fabrication that did, and was intended to, fan the flames of racial discord.”Prof Epstein, I believe that to be the case, I’m curious as to how that could be established in court? Take us to school if you would please.
Redacted. See Below.
Redacted. See Below.
Richard, this is the first time in my life that I wish that I were a lawyer.
A further thought. What sort of lawyers advise NBC? Buffoons?
Is it my imagination, or does he look exactly like Mr. Incredible’s boss at the insurance company?
I believe the military would refer to the plethora of producers to target and the slump in the legal profession as a “target rich environment.” It reminds me of a story I heard on 60 Minutes once about litigators who specialized in going after companies for misleading financial statements.
“For us, hearing the phrase “restatement of earnings” is like ringing the dinner bell.”
Hi Richard. Excellent, to-the-point analysis. I don’t presume to have any expertise in law but it strikes me that your abbreviated summary misses an important point of reference that I mention here, not because I think you need correction (you clearly don’t, and certainly not by me!) or because your argument requires more strength (it looks pretty open-and-shut to me) but because here in Canada (I don’t know about the U.S.) this would be a turning point in both judgement of tort and in determination of a settlement.
I speak of the matter of material harm. No details necessary here — it is well-known to what degree this libel has brought harm to George Zimmerman, his direct and extended family, and others (such as the white 78-year-old man, Dallas Watts in Toledo, who was jumped by 6 black youths March 31, beaten mercilessly, and told “this is for Trayvon” and “kill that white man”). I’d advise NBC to consider mortgaging a couple of studios and get ready to be taken to the cleaners.
Could whoever was directly responsible (the technician who performed the edit, the actual producer, the actual on-air “talent”) be personally liable as well as the network?
Zimmerman is going to need the money because he and his family will have to put themselves into the same kind of “disappear” that Molly Norris went into.
Is “make a clean breast of the situation” common phrase?
Why do so many of you want someone at NBC News to be held responsible and perhaps fired over this Zimmerman recording? My God, it’s not like they did something serious, such as saying, “A chink in the armor.”
In a civil suit Zimmerman would have to subject himself to a deposition.
That’s the last thing in the world his criminal defense team wants right now.
Not sure of the Statute of Limitations for defamation in Florida, but in NJ it is 1 year. The problem presented is if Zimmerman does get charged that proceeding will take more than a year.
Update: Producer Jim Bell, who has been fingered for the edit, has been fired. Damage control. Sacrificial lamb. I wonder to what degree this covers their butts legally? I suspect not entirely, but it may save them from losing a small fortune over the matter. I wonder if it puts Bell in a precarious position.
Jim Bell, who is the Executive producer of Todayis still employed. The New York Timesreports, and others confirmed, it was a producer at the NBC Bureau in Miami that made the edit and has been fired. · 9 hours ago
Quite right EJ, I read too quickly. That it is an unnamed producer (at the point of announcement, at least) onlyreinforces to me the impression that this person is a sacrificial lamb. I wonder, how is aproducer not important enough to be named? NBC is still characterizing the matter as amistake. Why fire the man? Is a mistake, even such a serious one, not a matter ofinternal discipline? Seems their actions belie their words.
Remember the ESPN/Jeremy Linn fiasco? When they fired the person responsible they, too, refused to name names. That’s the default position – you don’t talk about personnel decisions.
Sickening. The fired editor should be identified as should the others who touched the decision.
Jim Bell, who is the Executive producer of Today is still employed. The New York Times reports, and others confirmed, it was a producer at the NBC Bureau in Miami that made the edit and has been fired.
I am sure someone is working on a very large libel claim right now on behalf of Mr. Zimmerman. I’m only sorry I am not myself an expert libel attorney, as (1) the cause is right, and (2) a settlement will come quickly.
That’s the last thing in the world his criminal defense team wants right now.
Not sure of the Statute of Limitations for defamation in Florida, but in NJ it is 1 year. The problem presented is if Zimmerman does get charged that proceeding will take more than a year. ·8 hours ago
I would think that the statute of limitations on the civil cause doesn’t begin to run until after the criminal prosecution ends.
That’s the last thing in the world his criminal defense team wants right now.
Not sure of the Statute of Limitations for defamation in Florida, but in NJ it is 1 year. The problem presented is if Zimmerman does get charged that proceeding will take more than a year. ·8 hours ago
I would think that the statute of limitations on the civil cause doesn’t begin to run until after the criminal prosecution ends. ·5 hours ago
That might seem to make sense, but sadly it generally isn’t the case.
A good general rule is that if the person to blame isn’t named, you should blame his boss instead. The buck stops there, and unless the boss is willing and able to show that it’s someone else’s fault, it’s his fault. So I’d include Mr. Bell in the defamation claim, personally. Otherwise, the easy way out is to fire a flunky while promising to rehire him in six months and giving him a nice bit of severance pay while he’s on his 6-month vacation.
This is an example of how thinking like a game theorist helps. Ask yourself how NBC, Bell, and the flunky can jointly arrange things given their private information so as to maximize the sum of their payoffs and then divide them.
Also using game theory, to throw a wrench in: Mr. Flunky, if you’re reading this, realize that if this is what happens, you can blackmail NBC. At the end of the 6 months, hold out for a million dollars, not just your old job back—- or you spill the beans to Breitbart’s outfit.
There are lots of interesting legal angles here. Maybe some good exam questions for the Epstein torts casebook, if you’re still doing it.
1. NBC is liable on respondeat superior, I suppose, for compensatory damages. How about punitive damages? Has their mediocre apology increased their liability for punitive damages.
2. Since this is malicious, am I right that the Miami producer is also personally liable? NBC is liable too, by respondeat superior, but can NBC claim compensation from the producer for whatever damages NBC has to pay out?
3. Is there any reason Zimmerman should include the Miami producer as a defendant in his defamation action? Or should he restrict himself to suing NBC, which has deeper pockets and is easier to collect judgements from.
On the statute of limitations question, would this work as a Zimmerman strategy?
He waits until just before the statute of limitations runs out, and files his defamation claim. Civil suits take years to come to trial, much longer than criminal cases, and he delays so if he’s deposed, it will be too late for the criminal case. In any case, he delays discovery as long as he can by fussing over things like federal vs. state court, refiling his pleadings, and so forth. He must also try to accelerate the criminal case, so he’s cleared soon. Is there any way for him to get a declaratory judgement on his criminal guilt, if the prosecutors try to keep him dangling?
I would like to see the fired guy get asked – in an interview or better, on the witness stand – what he saw at NBC that gave him the idea that this kind of vicious editing is what NBC would want.