George Zimmerman has once again found a way to insert himself into the news. This time, he is suing Elizabeth Warren and Pete Buttigieg for tweets that they made regarding the birthday of Trayvon Martin, the youth with whom Zimmerman got into a violent confrontation in 2012. Warren and Buttigieg claimed that Martin is an example of the damage done by gun violence and racism, but did not mention Zimmerman by name. According to the court filing, the tweets defamed the character of “a man who is Hispanic, a minority advocate, and an Obama supporter.”
If we did not have Donald Trump to illustrate the effrontery of our troll culture, George Zimmerman would easily fill that job — competing with others for the title, of course. I have to presume that this lawsuit will be dismissed soon, but even if that is the case, we have to understand why what Zimmerman is doing is damaging to a free society.
A defamatory statement is one that makes a false claim of fact that harms someone. Declaring that someone is a murderer when the accuser knows this to be untrue is an example of defamation, given the damage to the person’s reputation that could result, as well as potential consequences of accusing someone of having committed a crime. On the other hand, if the accuser has evidence to support the claim, this is the truth exception to defamation. Saying that Mr. X killed Mr. Y is legally protected if we can show that X had possession of the murder weapon and the opportunity to use it against Y. And if that statement is made during a trial, it is also protected, presumably because witnesses are obliged to tell the truth. There is also a qualified privilege against charges of defamation if the statement is made to protect others from harms, and statements made for a political purpose have an absolute privilege. Celebrities and politicians have a higher bar to clear to win a lawsuit for defamation, since they have sought the public’s attention. In their case, proving defamation requires showing that the attack was made with “actual malice,” a statement meant to cause harm and known to be false.
Zimmerman is likely to lose, thanks to several of these defenses. Warren and Buttigieg clearly tweeted their comments as part of a campaign, and Zimmerman has milked his fame — or infamy — from the incident with Trayvon Martin and following trial into a kind of celebrity.
But the key type of protected expression in this case is that of giving one’s opinions, rather than making claims of fact. Calling Zimmerman a white supremacist — even though Warren and Buttigieg did not name him in their tweets — thus fails to qualify as defamation. White supremacy is not a crime in the United States, and attributing ideological motivations to someone is, in any case, a political opinion. Saying that Zimmerman’s actions were due to racism is different from saying that he shot Martin. The latter is a testable claim of fact, while the former is an interpretation.
Why does this matter beyond the billable hours of various attorneys? Opinions can be informed or fabricated out of whole cloth, but a free society depends on the ability of each of us to express them, even if that involves stating our displeasure or disgust toward someone who has placed himself on the public stage. Zimmerman is free to declare his opposition to Warren and Buttigieg, but frivolous lawsuits like the one he has filed against them ought to result in an immediate dismissal, along with consequences both to him and his lawyers. He is welcome to his opinions, but using the courts to silence others is the kind of corrosive behavior that has become all too common in the era of Trump.