Zimmerman's Latest Lawsuit

Is D6 candidate trying to silence coverage of custody case?

Don Zimmerman
Don Zimmerman (photo by John Anderson)

In early October, local political blog The Austin Bulldog published a startling article ("Candidate Lost Custody Over Abuse") about District 6 City Council candidate Don Zimmerman, recounting the details of how he lost custody of his teenage daughter. Custody disputes are often unpleasant, and there are few parents who would want theirs to become public. In Zimmerman's case, although he readily relinquished custody of his daughter, the context was particularly depressing – the Bulldog had found doctor's records (made public because they were filed with the court) describing the doctor's conversations with Zim­mer­man's daughter: "There are concerns that her father is being physically and emotionally abusive to her when she is visiting him. ... Her dad at this visit with him was yelling at her that she had demons that needed to be expelled per [the daughter]." At another point, the medical records filed with the court reflect, the girl's doctor recorded that Zimmerman "threatened to kill her and she has fears of [him] shooting her."

After Bulldog publisher and editor Ken Martin posted the story, Zimmerman sued the Bulldog for defamation.

The lawyer who filed the suit on behalf of Zimmerman is Stephen Casey. Not only is Casey Zimmerman's campaign treasurer, but he also represented Zimmerman earlier, in 2012, in his challenge of a successful city bond proposition, based on the Voting Rights Act (not to be confused with an earlier legal action, in which Zimmerman successfully challenged part of the Voting Rights Act on behalf of the Canyon Creek MUD). On behalf of Zimmerman, Casey argued that the ballot wording for the bond violated the VRA because its language was too confusing to be understood by minority voters, who (according to the lawsuit) tend to have lower reading comprehension levels than whites. (The suit was not successful.)

The failed bond lawsuit suggests something about both Casey's legal acumen and the lengths to which Zimmerman will go in his passion for litigation. The current lawsuit against the Bulldog appears similarly dubious – largely because the Bulldog carefully identified its sources, and Zimmerman has already signed off on a court order acknowledging the allegations of abuse the Bulldog had reported.

Zimmerman's lawsuit doesn't argue that his daughter did not allege abuse, but instead quibbles about the language in the Bulldog story. The title of the article is a "false statement," the suit alleges, because Zim­mer­man didn't lose "custody over abuse," since, according to the suit, "Texas is a state that utilizes the conservatorship model, and not the custody model. No abuse was ever testified to in court." (In fact, allegations of abuse are a part of the court's documentary record, and "custody" is a commonly used legal term in Texas.) Moreover, instead of claiming that his daughter did not allege abuse, Zimmer­man's pleadings argue that the "statement regarding the doctor's reports in the blog never state that the statements or alleged abuse by the doctor are repeated hearsay. It never makes the distinction that these are all reported by the daughter but never confirmed by any external investigation, and that the doctor's opinion is based solely on the child's allegations." (In fact, the doctor's records state she personally examined the daughter, confirmed her injuries, and concluded that abuse had occurred.)

Neither do Zimmerman's claims acknowledge that in agreeing to the court's order, he did not dispute his daughter's allegations of abuse. Nevertheless, the Bulldog reported that Zimmerman not only says now that the allegations are false, but that they are "offensive lies and I've never seen them before."

In a libel suit, a public figure like Zim­merman has the burden of proving that what's been written about him is false. Yet Zimmerman signed and agreed to the final order that found that the allegations were true, removed him as his daughter's managing conservator, and denied him any access to her. The order let Zimmerman retain the title of "possessory conservator," but stated that "parties have agreed that it is in the best interest of the child that respondent not have possession of or access to the child."

The Bulldog filed a motion to dismiss in late November, based in part on Texas law protecting free speech against frivolous lawsuits. As it explains, "To establish a claim of libel, a public official or public figure plaintiff must prove, by clear and convincing evidence, that the defendant published a substantially false and defamatory statement about the plaintiff with actual malice." (Emphasis added.) Even if the Bulldog did get some of its wording wrong (of which there is no evidence), the publication is in the clear as long, reads the motion, as "the 'gist' of the statement was true." (The motion to dismiss was filed by Peter Kennedy of Graves, Dougherty, Hearon & Moody, who also represents the Chron­icle.)

So why file the suit? Why doesn't Zim­merman simply categorically deny the allegations of abuse, ask for privacy for the sake of his family, and move on? As Bull­dog counsel Bill Aleshire told the Austin Monitor, the lawsuit "has the smell of a SLAPP suit." A "strategic lawsuit against public participation" is a suit intended to discourage public engagement, and to redirect the media's resources from reporting the news toward defending themselves against lawsuits – such as Zimmerman's. Such suits are designed to make other reporters covering the story think twice before proceeding. And they often have their intended effect: The Chronicle's response time on this story was slowed by needing to have our attorney comb through our reporting, making sure that we can defend ourselves should Zimmerman decide to file another lawsuit.

Download the Petition, Motion to Dismiss, Divorce Decree Redacted and Injunction Redacted.

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KEYWORDS FOR THIS STORY

Don Zimmerman, Austin Bulldog, Ken Martin, libel, defamation, December 2014 Run-off, Mayoral & City Council, Stephen Casey, Pete Kennedy

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