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.
Bruddha:
“You’ve claimed you are wasting your time here and should be at the WSJ. You’ve claimed the tapes weren’t edited. And that the tapes were edited.”
I should be at the WSJ.
Where did I claim that the tapes were not edited? Editing is relative. According to a poster, the NAACP tape was edited from the original to remove something at 21 minutes. It was pretty obvious that Breitbart’s tape was edited, which means “to prepare for publication or public presentation.”
TV stations do that all the time. My one case of talking to a TV reporter showed me how far the producers will go. She made it appear that I had said just the opposite. I was fishing in a park. The county had started charging a parking fee to prevent groups of blacks from driving around and around. I had a camo jacket on and the reporter obviously thought she would get some good red-neck footage. I told her I thought it was a dumb idea to charge the fee. By the time it was edited, they had me saying I supported it. I did not say anything about the blacks, so she could not edit it to make it racist. The reporter must have been lambasted for being so negligent. (The county gave up on the fee a few weeks later and the fad ended.)
AY,
My point was that there are multiple definitions, not an absence of definition.
However Buddha, there are generally accepted theories of what each means, ergo a defined definition. Just because some nut job wants to have the meaning that they ascribe to does not make it correct. As those that used to work at Price Waterhouse what the term GAAP means to them, those that didn’t go to club fed. There are some that do enjoin the nice island life, where the US has no extradition treaty for economic crimes….
Gyges and Byron,
This is going to be one of those arguments that never ends. There is no precise definition of the subconscious and what it does. The usage of the term varies by the school of psychological thought and is further distorted by being applied to some “New Age” concepts.
Byron,
What do you think is meant by this?
“The subconscious does perform automatically certain important integrations (sometimes these are correct, sometimes not), but the conscious mind is always able to know what these are (and to correct them, if necessary).The subconscious has no purposes or values of its own, and it does not engage in diabolical manipulations behind the scenes. “
Oh you can attack me all you want. I know what I am and, worse for you, I know what you are too.
Malice aforethought is simply the inverse of absence of malice as malice is a form of mens rea. And according to New York Times Co. v. Sullivan, 376 U.S. 254 (1964), to use the public figure exception (and I stipulated she was a public figure since you wanted it that way) that a publisher/journalist must be absent malice to validly assert the public figure defense.
Given his intent which as you stated is “he does not try to hind the fact that he wants to bring down all left-wing organizations” and his track record for other falsehoods and false light portrayals of people and organizations (the complete acquital of ACORN over the actions by Breitbart employee O’Keefe, et al.) shows malice aforethought, thus vitiating Breitbart’s claim to the defense in this instance.
Elaine,
Wow; I haven’t seen that bit in more than 20 years!
Buddha wrote:
“….as it shows an absence of due diligence and/or…..malice aforethought.”
Are you sure you are a lawyer? As I understand it malice aforethought refers to a state of mind before someone is murdered.
This is what Wikipedia says about malice aforethought:
“In other words, knowledge that through an action or omission, the result will be someone’s death.”
From Black’s Law Dicitonary (West Group):
“malice aforethought. The requisite mental state for common-law murder. encompassing anyone of the following: (1) the intent to kill, (2) the intent to inflict grievous bodily harm,(3) extremely reckless indifference to the value of human life (the so-called “abandoned and malignant heart”), or (4) the intent to commit a felony (which leads to culpability under the felony-murder rule).”
Gyges:
I dont think so, if I am I am all eyes as to why you think so.
Again with the defense of someone you are painting as media victim when he is apparently the victimizer. He didn’t loose his job over this. Yet.
And a byline? He’s holding himself out as a journalist. A purveyor of original content based on his sources of information he’s accumulated and passing on to the masses for their consumption. Even if he’s only an “aggregator” that still means he’s an editor.
The encyclopedic definition of a journalist is “a journalist collects and disseminates information about current events, people, trends, and issues. His or her work is acknowledged as journalism.
Reporters are one type of journalist. They create reports as a profession for broadcast or publication in mass media such as newspapers, television, radio, magazines, documentary film, and the Internet. Reporters find sources for their work, their reports can be either spoken or written, and they are often expected to report in the most objective and unbiased way to serve the public good. A columnist is a journalist who writes pieces that appear regularly in newspapers or magazines.
Depending on the context, the term journalist also includes various types of editors and visual journalists, such as photographers, graphic artists, and page designers.” http://en.wikipedia.org/wiki/Journalist (emphasis added) This could (and likely would in court) be extrapolated to include his columnist like postings on the Internet, but he’s already by plain definition capable of being characterized as a journalist.
What he calls himself is less relevant than how he can be characterized by his actions in toto.
1) He publishes articles with a byline purported to relay news from his sources which is the very nature of reporting.
2) He has editorial control
3) over several websites, including one called bigjournalism.
4) He regularly solicits known news organizations with what he has claimed to be “news”.
If it walks like a duck and quacks like a duck then it’s a duck. Because you hear a chicken and think he’s a chicken is going to be irrelevant should the matter come before a trier of fact who will look at the totality of his actions, not his preferred label, to decide if he’s holding himself forth as a journalist. Propagandists have long worn the guise of journalists.
You claim he’s getting a raw deal? You’re really not helping him. But you keep trying if you want. It’s funny.
And you still haven’t addressed whether you work for him. Which at this point you’d be hard pressed to convince anyone here that you don’t given that:
You are spending considerable time (to little effect) for someone who is “not of particular interest to [you]” and that you “do not know that much about”.
You’ve claimed to know quite a bit about him and his actions, including the nature of his business in that he is engaged in and his role in it as you’ve tried to distance him from journalism.
You’ve claimed you are wasting your time here and should be at the WSJ.
You’ve claimed the tapes weren’t edited. And that the tapes were edited.
You claim all kinds of crap but wiggle like a pinned worm when countered with evidence.
You’re really not very good at your job, paid or unpaid, at running as a media flack for a guy you supposedly have no vested interest in.
I’m sure Breitbart really appreciates the hand, er, job you’re doing for, er, on him.
Byron,
You’re getting the abstract right, but you’re misreading your quote.
Writ large over the whole quote is the premise “Your conscious mind is in control.” Proof that your actions are being determined before you consciously think about would mean that the premise is bunk. Which is where “We found that the outcome of a decision can be encoded in brain activity of prefrontal and parietal cortex up to 10 s before it enters awareness,” comes in.
TraderB–
Don’t most news organizations post/write retractions when stories they’ve posted/published prove to be incorrect?
Eliane wrote:
“I find it interesting that the Sherrod article is no longer available on FoxNews.com. Why do you suppose it was removed?”
I do not know, but assume it is because it was incorrect. The text ends where the re-edited version of Breitbart’s tape ends. There is not way to tell if they lined to the re-edited tape or to Breitbart. MM says the latter, but they did not realized that there were two versions.
Buddha–
“He {Breitbart} is not of particular interest to me, beyond the fact that he is getting a raw deal in the media.”
**********
Help me! My body is going into convulsion. I need someone to slap me upside the head.
Gyges:
I am not at all afraid of snakes and used to collect them as a child, I spent many happy hours roaming through fields collecting specimens of the various snakes in our locality. By 15 I probably knew every snake and it habitat and eating habits in the United States and had caught, kept and released at least 50 (probably closer to 100) over a 5 year period.
I don’t think fear is inherited, it is learned for the most part by watching our parents and other adults. Or as in my case being bitten by a spider. Interestingly enough I was also bitten by a centipede but don’t have the same concerns over them that I do over spiders. A healthy respect but not a visceral response. A visceral response is centered in the sub-conscious as explained above.
Buddha wrote:
“We come again to Breitbart playing at journalist to hide his true nature as propagandist.”
He is a sometimes commentator, but mostly an aggregator. I have never heard him called a journalist. He supposedly appeared on Fox numerous times, but I do not recall him. The Acorn Tapes were the first time I remember hearing of him.
Actually, if you watch the Jon Stewart video, you will find that he does not try to hind the fact that he wants to bring down all left-wing organizations. Propaganda implies that he wants to spread false information. I have not really seen anything to indicate that, but I do not know that much about him. He is not of particular interest to me, beyond the fact that he is getting a raw deal in the media.
Gyges:
“There has been a long controversy as to whether subjectively ‘free’ decisions are determined by brain activity ahead of time. We found that the outcome of a decision can be encoded in brain activity of prefrontal and parietal cortex up to 10 s before it enters awareness. This delay presumably reflects the operation of a network of high-level control areas that begin to prepare an upcoming decision long before it enters awareness.”
How does that disagree with what I posted above? I am probably out of my league here but I will give it a shot.
We receive stimulus from our 5 senses, there is no other way to obtain information from our world as proof of this I would direct you to Helen Keller and Anne Sullivan. Up until the time Miss Sullivan was able to make Keller understand the symbol for water the only thing in her brain was from whatever stimulus she had processed prior to her becoming blind and deaf.
You are processing information all the time, some you are aware of and some you are not, i.e. at a “sub-conscious” level. What the abstract above apparently is describing is the brains assembling of information from prior experiences into an integrated whole upon which action can then be taken.
For example I do not like spiders because I was bitten by one as a child, I am on cruise control when it comes to spiders because of that experience which was probably traumatic and tucked away in some file cabinet to be accessed once I see a spider. Which I might add you can “see” even though your conscious mind might not yet be aware of it’s presence. I would imagine something like that is going on with the study in the link you provided.
So I would not necessarily dismiss what I posted above as at odds with science.
And the distancing from Breitbart begins . . .
TraderB–
“The networks use the term ‘break’ to mean running the story on air, not their websites, for some reason.”
Is there anything more? Have you, perhaps, been taking courses at the Frank Luntz School of How to Use Language and Conservative Talking Points?
I find it interesting that the Sherrod article is no longer available on FoxNews.com. Why do you suppose it was removed?
Sorry. Having intermittent power outages here.
TraitorB,
Again, Mike’s answer stands. Just because you want to pass the buck that FOX is the responsible party for not doing their due diligence doesn’t clear your boy Breitbart. More than one defendant can be filed against and defendants file cross-complaints against each other all the time. And I’m betting Rupert (and by extension his pet, O’Reilly) has deeper pockets to pay his attorneys than you guys do. So let the games begin.
As to “who” edited the tape?
We come again to Breitbart playing at journalist to hide his true nature as propagandist.
To that end, Elaine’s comment stands. Even if Breitbart personally didn’t edit the tape, the next best suspect is arguably an employee (even if part time or freelance) and under Breitbart’s control as he runs the various “big” websites under the pretense they are news. The content of the big sites is most certainly under his editorial control.
All it takes to clear Breitbart of being the tape editor proper is an admission by O’Connor that he or a named party other than Breitbart and outside his control edited the tape, did so without Brietbart’s knowledge and/or control and that he/they then deceived Brietbart in a material manner with the express goal of into posting the edit as the truth (instead of the libelous lie of omission that it is).
Which would be an admission of a crime, namely fraud, and with said required admission, makes a good case for the tort of libel against Breitbart (who is holding himself out as a journalist as he claims to be a purveyor of news who employs journalists – no matter how shady they may or may not be) as it shows an absence of due diligence and/or (depending on if O’Connor or this unnamed person is willing to take the hit without rolling on Breitbart) malice aforethought. What do you know! A potential way around the public figure defense (which arguably at the time she made this speech, she wasn’t).
This would also be practically impossible for Breitbart to get out of as the “story” over at biggoverment is titled “Video Proof: The NAACP Awards Racism–2010 by Andrew Breitbart”. Read that byline again. “by Andrew Breitbart”
Oops. There’s fingerprints on that smoking gun!
Even if you clowns have people just lining up to throw themselves under the bus for your cause and/or Andy?
He’s still screwed. Much to my amusement.
Just as much as I’m amused you are trying to distance yourself from him by saying “I don’t know if Breitbart is worried about. I don’t post at his site, so have not read what is over there. However, people are still disparaging his work, so I would think that he would want to notify those still doing it” which is not the same as “I am not paid by and do not work for Andrew Breitbart”.
Which is odd.
This is belied by the fact that you are spending a lot of time trying to clear the name of a guy who 1) you allegedly don’t know if he’s even worried about it and 2) you have not expressly stated that you don’t work for 3) despite carrying his water for the last three days straight.
It doesn’t take a genius to see what’s wrong with that picture.
Hypothetically, if I were your attorney (which I would never be any more than I’d be his)? I’d advise you to stop talking. Now and about three posts ago. You can try to pass the buck to Rupert’s boys all you want but I’ve been watching that weasel long enough to know that he’s richer and smarter than you guys and is coated in Teflon by comparison. And if you try to get some on him? He’ll destroy your boy. And he has an army of reporters and investigators to task to the job. His middle name is “Ruthless”.
Worried? I’m thinking Breitbart is sweating in buckets now that the full tape is out. Because the various media outlets beyond his direct control that he tricked into buying his bullshit? They can make a suit go from a win/win to a lose period given the situation. They can do that thing he fears most: take away his voice as being credible to such a degree people defending him and his “news” in the future will dismissed as either hacks themselves or loons. And do you honestly think these news organizations, as professional news organizations, are going to sacrifice what integrity they may have to save Andrew Breitbart and his overheated ego?
Not a chance in Hell.