Bizarre, Media, Politics

Can Sherrod Sue Over Edited NAACP Tape?

The controversy continues over a video of Georgia director of Rural Development Shirley Sherrod at the NAACP. Sherrod, and many supporters, have objected that the tape from the NAACP event was clearly edited to cut off her comments to mislead the viewers. Andrew Breitbart released the video but insists that he did not edit it. The question is whether Sherrod can sue over the video. Most criticism is focusing on Andrew Breitbart who released the video on his media sites. Raw Story released the full video without the editing. In response, Breitbart told Fox News “this is not about Shirley and Andrew.” He appears half right given the growing condemnations directed at him.

The video itself is certainly misleading as edited.

Sherrod immediately objected that the remarks were “misconstrued.” Nevertheless, she resigned after the video was made public and was denounced by both the NAACP and Secretary of Agriculture Tom Vilsack. She claims that she was forced to resign by the White House. The White House later issued an apology to Sherrod.

UPDATE: Vilsack has apologized to Sherrod and offered her a “unique position.”

The NAACP has now retracted the original statement below.

This video shows Sherrod recounted “the first time I was faced with having to help a white farmer save his farm” and how she viewed the farmer as trying to be “superior” to her while she controlled the money for such farmers.

“He had to come to me for help. What he didn’t know while he was taking all that time trying to show me he was superior to me was I was trying to decide just how much help I was going to give him . . . I was struggling with the fact that so many black people have lost their farmland and here I was faced with having to help a white person save their land — so I didn’t give him the full force of what I could do. I did enough.”

She notes that, to avoid any later complaints, she said she took him to see “one of his own” — a white lawyer” “I figured that if I take him to one of them, that his own kind would take care of him.”

Media Matters has responded to the story and accused Breitbart of misleading people on the story. They note that Sherrod was telling a story she had described took place decades ago when she worked for the Federation of Southern Cooperative/Land Assistance Fund. The video reportedly excluded the fact that Sherrod spoke of how she went on to work with and befriend the man. She is quoted as saying at the end of the story: “And I went on to work with many more white farmers,” she said. “The story helped me realize that race is not the issue, it’s about the people who have and the people who don’t. When I speak to groups, I try to speak about getting beyond the issue of race.”

This account is supported by the farmer’s wife who credited Sherrod with saving their land. For the video interview, click here.

There is no question that the edited material left a false impression as to the point of the speech. Before getting to the possible legal consequences of such editing, it is important to note that the added material is redeeming but still leaves some disturbing racial elements in the speech. First, the video appears to show a few members of the audience responding positively to the racially-loaded portions of the speech, though that is subject to interpretation. Moreover, these audience comments are not made by Sherrod. However, it is disturbing to hear positive reactions to that portion of the speech. One possible interpretation is that the audience understood where she was going with the speech or was simply encouraging her in a build up to the crescendo of the speech. Second, Sherrod clearly states that roughly 20-25 years ago, she was viewing individuals in strikingly racial terms. That would put this story around the late 1980s and 1990s. It is pretty shocking to hear that Sherrod was still thinking of that white should work with their “own kind” and viewed the case in largely racial terms. The ultimate result of Sherrod overcoming race is commendable, but I have to say that I do not agree that it fully answers the concerns about this story. I would be very disturbed to hear that a white politician was in 1986 uncomfortable with fully assisting black people and actively sought to have “one of their kind” help them. It may be a sign of my age, but 1986 doesn’t feel that long ago and I would have been appalled to hear such views at that time. Moreover, the racial elements of the speech seemed to in part explain the earlier view in light of how black farmers were being treated. In defense of Sherrod, it has been noted that she was working for the Federation of Southern Cooperative/Land Assistance Fund, which specifically aids black farmers.

Putting aside this issue, the editing was clearly intended to make the story worse than it was. She uses the racially loaded story to explain that “That’s when it was revealed to me that it’s about poor versus those who have.” That is a very different story where she was trying to explain how she learned to overcome racial sentiments. Other leaders like the late Henry Byrd Jr., made similar redemptive speeches. While I am still bothered by the fact that this was a revelation in the 1980s or 1990s (as opposed to the 1950s or 1960s), it is still a very different story than shown on the video released by Breitbart.

The question is whether there is legal recourse for such editing. There is but it is not easy. An employment action based on being pressured to resign is doubtful. Company and government lawyers often prefer employees to resign because it effectively waives a host of statutory and common law protections. Sherrod herself has stated that she is not sure she even wants her job back. It would have been a far stronger case if she had forced termination proceedings. However, at least one expert thinks she might have a case under employment law.

John Dean wrote a terrific piece on this issue.

The most obvious claims would be false light and defamation.

The Restatement Second defines the tort of false light:

652E. Publicity Placing Person in False Light

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

This would certainly seem to be a case of intentional or reckless act. It could also be claimed to be highly offensive to a reasonable person. However, the editor can claim that the tape was meant to show not just the racially loaded comments of a speaker but the reaction of the audience to that portion of the speech. Moreover, Sherrod is still admitting to pretty disturbing racial views in her earlier view of white farmers from the 1980s or 1990s. That is not an entirely complete defense, however, because it still does not explain why the editor would cut out the point of the story.

False light cases have resulted in high damages against news organizations as in this case. However, this verdict was later overturned, which rejected the very use of false light as a tort action.

Some states have curtailed or abandoned false light because such cases can be properly heard in defamation cases. In this case, Sherrod would be considered a public figure or limited public figure. As such, she would need to prove that the editor or people like Breitbart acted with knowledge of the falsity or reckless disregard of the falsity. The question is whether it was false in terms of what was intended to be shown. The editor could claim that he or she was seeking to show the racial elements at the NAACP in response to that organization’s criticism of the Tea Party. That is the position taken by Breitbart in interviews in response to outrage over his role in the controversy,here

Of course, if Sherrod were to sue, she would likely make it past initial motions to dismiss and could secure embarrassing discovery in the case, including possible internal emails and communications on the purpose of the editing and release of the video.

842 thoughts on “Can Sherrod Sue Over Edited NAACP Tape?”

  1. @Tony C.

    “Of course those four things affect an individual. Even if you don’t think they are complete, I assume you think the four you named are the most important.”

    The four things that I mentioned are the four that I can think of off hand with out unduly straining my brain, it does not mean I think that they are the most important although I suspect that they are pretty important. I don’t rule out that something which I have not included in the list because I have not thought of it being more important than the ones that I have included.

    “Bad Nutrition? No child conceived tomorrow (or mother impregnated tomorrow) need ever suffer malnutrition.”

    Does malnutrition of a mother during her childhood affect her phenotype when she is adult? I suspect that it does.

    Does her damaged phenotype when adult affect the phenotype of a child she carries even if she is properly nourished during pregnancy? I don’t know but I would not bet that it doesn’t.

    If the child is a girl, will any damage done to her phenotype by her mothers malnutrition during childhood have no damaging on a child she bears even though she is properly nourished during her entire life up to and including her pregnancy.

    I would suspect that at least 3 generations would be needed to purge the damaging effects of malnutrition on the translation of genotype to phenotype. The same may be true for other negative environmental factors I mentioned.

    “Your “eighty years” is unsupportable, you provide no evidence for the claim.

    My eighty years is my estimate of 3 generations. I cant prove this is a good estimate. As you say there is no chance that the experiment to find out whether your prediction or mine is closer to the truth is never going to happen because enlightened self interest sufficient for a democracy to spend enough money on an underclass that the respectable people despise in a way that would benefit them does not exist. It is not that we do not spend money on the underclass, we do but it goes on things like police and prisons and making them properly miserable.

    The rest of the gloomy predictions in your post I completely agree with. In the USA, the UK and to a lesser extent so far in Australia, too many people have been brainwashed into believing an ideology that tilts the terms of trade between the rich and the rest decisively in favour of the former. The oligarchs need the underclass to terrify the rest of the non-rich into supporting advancing fascism.

  2. I guess it says something about the hot button of racial issues in the country that this event should generate so many posts.

    I have to say I agree with Prof. Turley and am also uncomfortable with a government employee expressing racists sentiments in late 1989 (when Chapter 12 [Farmer bankruptcy] was put into effect). This isn’t Robert Byrd in a Klan suit in the 1940’s.

    I also agree with Prof. Turley that when you listen to the tape there definitely murmurs of approval from the crowd when she relates this story of being talked down to by and white guy and getting revenge. I was practicing bankruptcy law at the time and would have been outraged if I felt that a govermental employee was failing to provide help to a white person and wanted to send him to “his own kind” for help.

    I am glad she finally saw that this was the wrong approach. She shouldn’t have been fired, that was a big WH mistake. I am sure Vilsack wouldn’t have fired her without WH approval. The WH is terrified of Faux News and that’s bad.

  3. Tony,

    You said, “When the rich sociopaths have a free hand, and in our government they do, they exploit the living shit out of their employees, literally to the point of killing them or the employees killing themselves out of despair.”

    This leaves out a third option and the inevitable result of fascist repression.

    The repressed won’t eat cake but rather they’ll eat the rich.

  4. @Carlyle: Of course those four things affect an individual. Even if you don’t think they are complete, I assume you think the four you named are the most important. Every one of them can be cleared in one or two years, and none of them need affect children conceived tomorrow.

    Please read that again: Children conceived TOMORROW.

    They have no phenotype! No body! So,

    1) Bad Nutrition? No child conceived tomorrow (or mother impregnated tomorrow) need ever suffer malnutrition. To the extent that they DO in America, it is because we fail to provide for them.

    2) Chronic disease due to lack of medical treatment? No child conceived tomorrow need suffer for lack of medical treatment, as a fetus or after being born. Mothers impregnated tomorrow may already be suffering from chronic problems, but if they are caused by a lack of medical treatment they are NOT HERITABLE. They are also treatable, so said mothers continue to suffer because we choose to let them suffer rather than treat their disease.

    3) Chronic Stress? Does not have to be a problem for the child born tomorrow, or the mother impregnated tomorrow. The typical culprits in chronic stress can be solved in a few years; namely medical care, a safe environment, food, education and a job. Although it is true that mothers under stress give birth to infants with lower life expectancies and weakened immune systems at birth (and perhaps for life), the stresses in question can be relieved quickly. (The study I read looked at children born to mothers that conceived in war zones and were there for all or most of their pregnancy; i.e. the stress was being pregnant and in physical danger. I cannot remember if it applies to the stress of poverty, joblessness, or untreated illness, although it probably applies to the stress of living in a crime-infested neighborhood.)

    4) Actual toxins in the environment due to proximity to polluting industries? There is no reason on EARTH we should be letting industries pollute with actual toxins. Of course we do, but there is no reason on earth we should let them pollute the environment of the poor MORE than the environment of the middle class or the environment of the rich. That is pure sociopathic exploitation of the poor, and if we wanted to, we could stop THAT too, within six years (a full election cycle). We just don’t want to.

    Your “eighty years” is unsupportable, you provide no evidence for the claim.

    To be clear, this is purely a theoretical exercise. If we are talking about when we might *actually* solve the problems, the answer in my book is NEVER. We won’t do it. The country will collapse before we do, we will have a revolution, or let industry kill us all before we solve the problems of poverty. We are just too short-sighted, and frankly just too stupid, emotionally driven, greedy and uncaring about the grave consequences of our actions if we don’t think we will have to pay for them. If somebody can make one dollar by costing society at large a hundred, you will have a long, long line of Americans ready and willing to do that.

    We have poverty, wasted lives, underemployment, sickness, early deaths and all of that because of people willing to fuck over others to make a buck for themselves. Willing to move jobs overseas to make a buck. Willing to destroy the entire gulf fishing industry to make a buck. Willing to deny the unemployed $300 bucks a month to save a buck. Willing to fight wars to make oil cheaper. Willing to let coal miners and oil rig workers die to make an extra half of a percent on the quarterly report.

    Poverty in the USA could be wiped out in the time it takes a child born tomorrow to graduate college; about 22 years. Nevertheless, poverty will NOT be relieved in our lifetime, or our children’s, or their great grandchildren’s lifetime. It will probably never be relieved, and that is because we are too stupid. We Americans are metaphorically standing in the path of an oncoming train, blowing its whistle, and arguing with each other over insane shit, like whether tax cuts should count as adding to the deficit, or whether a sociopathic health insurance industry should be regulated and if that counts as socialism.

    So the train is coming and it going to hit us, and kill us. We can’t get Americans off the god damned track, and the closer it gets the louder they shout at each other to be heard over the noise.

    I honestly don’t see how this path is sustainable for much longer. The sociopaths will come after social security, and Medicare and Medicaid, and drive the American populace into modern serfdom. We will all be treated like the “free market” treats overseas employees, soon enough. When the rich sociopaths have a free hand, and in our government they do, they exploit the living shit out of their employees, literally to the point of killing them or the employees killing themselves out of despair.

    I think that is where we are headed. Enjoy your freedom and comfort while it lasts, because it won’t last long.

  6. @Tony C.

    Rummaging in my brain for memories from 1967, from my 1st year university biology course, I retrieved the terms “genotype” and “phenotype”.

    Genotype refers to the coding in the genes, phenotype to the actual life form that is produced by the combined effects of genes and the environment.

  8. All who think that Shirley Sherrod should sue.

    You are forgetting one thing, that is that a proportion of the people on any jury would be white anti-Negro racists who watch Fox news.

    My advice as someone pretty ignorant of the law would be don’t sue but keep talking and writing about Breitbart’s scams, don’t let them be forgotten.

  9. @Tony C

    “Either you believe in genes or you don’t.”

    I believe in genes, but they are not the only influence, environment makes a contribution and a toxic environment has toic effects. I will mention 4 possible mechanisms by which the the environment can make negative contributions;-

    1/ Bad nutrition;
    2/ Chronic disease due to lack of medical treatment;
    3/ Chronic Stress;
    4/ Actual toxins in the environment due to proximity to polluting industries.

    I don’t believe that my list above is anywhere near complete.

    I believe that it would take at least a eighty years 3 generations before the overhang of the environment would be cleared from the system. I am still searching for the program/article on stress. I have found plenty of hits but not yet the one I want.

    A new field of study is called epigenetics. It is about how the environment alters the function of genes and how this modification can be inherited by following generations.

  10. @PoetX: I’m not a lawyer, as I said before, but if she said she “believes” he is a racist, typically slander requires a *false* statement. Saying what she believes would be protected under her freedom of speech. It is not slander to tell somebody else, “I think that guy is an asshole,” or even “I think he is lying to us.”

  11. I’m afraid that she may not have much of a case against Breitbeart. She told Anderson Cooper on CNN that she believes he is a racist. He can sue for slander if she decided to take him to court. Breitbart is a slimeball in my opinion, but the truth is, it will pretty hard for Sherrod to win this case.

  12. Smom,

    Sad news indeed. I’m not only a fan of Schorr’s reporting (especially from the Nixon era) but his ubiquitous and often funny presence on NPR’s “Wait, Wait, Don’t Tell Me!”.

  15. I just read an interesting Slate profile on Brietbart and I’m more convinced than ever that the way to truly punish him is to neutralize his voice.

    You can’t hurt this guy by taking his money. Money is a side-effect of what he desires. What he desires is influence.

    You can destroy him by limiting and/or destroying his influence. Why? He’s nothing but pure ego. It just shines through in the profile that he’s a narcissist and megalomaniac.

  16. Buddha,

    I taught for many years in a school that had carpeted classrooms. Imagine trying to get the odor of “vomit” out of carpets???

    There are some things I definitely don’t miss about teaching.
    Fortunately, I never got head lice!

  18. Elaine,

    I can’t argue that last point. As a former educator, I was something as a kid I am sure you are familiar with: a “sympathy puker”. Blood, broken bones, lacerations, never a problem. But the instance some other kid puked? It simply meant I got to go home too. 😀 It’s not much better as an adult.

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