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.
I was talking about Breitbart being a public figure in your speculation about him having a suit, you hard of reading troll.
Slarti,
Trolls as I understand it try and diffuse the topic of the thread(s) so that nothing substantive can be discussed. You will notice an increase in activity when either the professor is going to be on a tv program or Obama is going to be on tv or the Democrats actually do something.
It is rare that they will ever come out in droves like they do when a republican is doing the same thing. The comments are as lite as they are in qualitative analysis.
This is my opinion and if it reeks I have done my job well. I wake up in the mornings just to annoy. If you need proof go back to September 9 or 10th of 2009 and you will see it for yourself…..
Buddha wrote:
“The burden of proof would shift the burden of proof to make Breitbart prove Sherrod (a private figure) had actual malice to Breitbart before she called him a racist.”
This is what Professor Turley stated:
“In this case, Sherrod would be considered a public figure or limited public figure.”
From The Citizen Media Law Project:
“The “public officials” category includes politicians and high-ranking governmental figures, but also extends to government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of government affairs. Courts have interpreted these criteria broadly, extending the public figure classification to civil servants far down the government hierarchy. For example, the supervisor of a county recreational ski center was held to be a “public official” for purposes of defamation law. See Rosenblatt v. Baer, 383 U.S. 75 (1966).”
http://www.citmedialaw.org/legal-guide/proving-fault-actual-malice-and-negligence#publicFigure
It appears that she would be a public figure for her Government work.
Blouise,
Your poll may have been unscientific, but your experiment was very much in the spirit of science (and you were upfront about the anecdotal nature of your study). Thank you. And if you ever figure out what trolls are trying to accomplish, please tell the rest of us…
Blouise,
I’ll let you in on a secret. You have to promise not to tell a soul even Buddha, but not only is vanity a downfall, humility is a blow out…..for him as well…..lol
Buddha Is Laughing,
Yes, but in trying to impress you I might have slightly messed up Elaine’s strategy … vanity is my downfall!
Pardon the sloppy typing.
I’ve got chicken on my fingers.
Blouise,
Impress moi with your knowledge?
You had me at ‘finely tuned sarcasm’. 😀
Consider me impressed and appreciation conveyed.
Now that would be funny.
New York Times v Sullivan, 376 U.S. 254 (1964), creates an exception for public figures. The burden of proof would shift the burden of proof to make Breitbart prove Sherrod (a private figure) had actual malice to Breitbart before she called him a racist. Considering that he tried to paint her as racist and what she said was in response to that attack? The public figure must prove that Sherrod knew the statement was false (which his antics are clear race baiting), or Sherrod acted in reckless disregard of the statement’s falsity or truth. There is a reason public figures almost never sue for slander or libel. They can almost never overcome the burden of proof required.
So good luck with that.
Andy shouldn’t be counting his chickens before the eggs rot, er, hatch.
Elaine M.
1, July 26, 2010 at 4:14 pm
Blouise–
I know what TraderB is up to. I was just wondering if he/she would express–in clear and explicit language–exactly what it is that he/she wants me to say. So far no word on that. I just get asked for a YES or NO answer. I think each of us has his/her own way of dealing with trolls.
=============================================================
I knew you knew … I was trying to impress Buddha with my sophisticated knowledge of a a false dilemma.
What, exactly, are trolls trying to accomplish? That is a serious question … I don’t understand.
Actually, I wonder if Breitbart has a good law suit against Sherrod. She has said some pretty nasty things about him.
Jill,
Based on several of your posts, I decided to do a little “interviewing” of my own this weekend. I had 3 large parties to attend right here in my small town and, wanting to gauge the “racism” issue associated with the teabaggers I knew that the freshness of the Sherrod/Breitbart affair would be a good way to introduce the subject without having to come straight out and say, “By the way, are you a racist?”
I have lived in this town for decades and my reputation is established as someone who, when dealing with or on behalf of the government, doesn’t lie or make excuses for wrongdoing. This town is republican through and through as can be found on the voter roles with registered republicans outnumbering registered democrats by more than 3-1. (2008)
I talked with 18 republicans. Eight identified themselves as ardent Tea Party folk, four as sympathetic to the Tea Party issues, and six who had no use for the Tea Party and were “loyal” republicans.
My method was simple. I started asking questions about the Tea Party and then brought up the Sherrod/Breitbart situation along the lines of, “So what do you think ….?”
Of the twelve Tea Party sympathizers … all 12 responded to the Sherrod/Breitbart situation as being just another attempt by blacks trying to put one over on the white man. Eight were adamant and had no use for anyone who is black or an immigrant, four were a little less racist, but certain Obama had black sympathizers who would do anything for him as long as it hurt whitey. The six loyal republicans thought that the video was unfortunate and should never have been aired but also thought that the NAACP and the Obama administration had acted badly in response.
Now I know this was unscientific as hell and only took into account the opinion of 18 people but Jill, when I scratched the surface of a teabagger I found racism unabashed and unashamed. I don’t know what kind of teabaggers you have in your neck of the woods but here … well, I will not work with such folk. It was all I could do to remain civil while they were venting. (I had to since I was the one who introduced the subject into the conversation.)
That last post alone should tip the hand that a Sherrod lawsuit is not the best way to punish Breitbart.
His lackey has openly said he wants it. He knows it’s a win/win. And he fears simply being marginalized like the propagandist he is.
Oops!
Don’t go to Vegas with that poker face, TraitorB.
I certainly hope Sherrod files a lawsuit against Breitbart. We can then find out who in the White House told Cheryl Cook to fire her. She appears to be in the Witness Protection Program.
Andy B.–
I only get a piece of the action if I go easy on him??? How will I get my daily yuks?
Elaine M.
“Are you attempting to absolve Not-So-Brightbart of any wrong-doing in regard to the Sherrod incident?”
No, I am just stating something that can be objectively proven. His tape contains the gist of her story. The entire speech does elaborate on the theme, however. The networks’ omission of 52 seconds changed the story from one of redemption to a racist plot.
He was at fault for saying that the incident occurred while she was working for the Federal Government. He should have checked on the timing. It did not make sense for it to have occurred recently. However, he did put a note on his site as soon as he realized it.
Elaine:
I was offering you a piece of the action, much better than just a job.
What is perhaps funniest in the most subliminal way is that ‘ol Distortion there is standing in front of a background drop reading “Accuracy In Media” and not catching fire like a vampire in the noonday sun.
(pssst! That last part was a joke too. *wink wink nudge nudge*)
Elaine,
It is most unfair and warrants looking in to but it’s no more unfair than MoveOn.org giving Breitbart what will forever be known as “The Breitbart Treatment” in this video.
[youtube=http://www.youtube.com/watch?v=QHN_IZ7WjSU&color1=0xb1b1b1&color2=0xd0d0d0&hl=en_US&feature=player_embedded&fs=1]
I guess if Andy can’t get the influence his craven little heart desires, he’ll have to settle for ignominious infamy.
Besides, I was just playing hard to get to get us a package deal. 😉