Earlier we discussed the grounds for former Agriculture Department employee Shirley Sherrod to sue Andrew Breitbart and other individuals involved in the posting of a misleading video that led to her resignation. She has now announced her intention to sue.
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 video itself is certainly misleading as edited.
Sherrod immediately objected that the remarks were “misconstrued.” Nevertheless, she resigned after the video was made public. She was quickly offered a better job by the government after the unfair editing was revealed.
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. While she recounts the racially loaded story, it was meant to explain that “[t]hat’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.
I stated earlier that an employment action based on being pressured to resign is doubtful due to her voluntary resignation. While there is a basis for a claim that she was constructively fired or coerced to resign, it is a difficult case to make and she does not appear to be moving in that direction.
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.
False light is attractive because the actual material shown can be true but still be misleading and the basis for liability. The potential for damages under either claim would be modest. She was quickly rehabilitated publicly after the editing was made public. She is now viewed by conservatives and liberals as a victim of a smear campaign. She was also quickly offered a better job.
For Breitbart the greatest threat is not the ultimate damages but the costs and discovery involved in the litigation. Sherrod could seek emails and communications revealing his motivation and knowledge before posting the video. Breitbart has often been accused of serving as a conduit for conservative interests. However, it will be interesting to see if media groups will view efforts to seize such material as threatening to press rights and interests.
227 thoughts on “Sherrod To Sue Breitbart”
One lives to be of service and I echo your sentiment.
And Andy? You do know discovery works both ways, right? Careful what you wish for, you just may get it.
Thanks for the update, Buddha.
I hope Ms. Sherrod runs Andy “Not Too Bright” Breitbart out of business.
UPDATE: Shirley Sherrod Sues Andrew Breitbart Over Video
Ol’ Andy’s response? WARNING: This is just hysterically funny.
“A statement issued on his website says Breitbart ‘categorically rejects the transparent effort to chill his constitutionally protected free speech and, to reiterate, looks forward to exercising his full and broad discovery rights.'”
Also named in the suit is Larry O’Connor, the head of Breitbart.tv.
Sorry, Andy! But malicious slander is not protected speech and a lie of omission is still a lie. Aren’t you glad I didn’t take your job offer now? You’re going to need that money for damages.
dear anon nurse
I was just trying to emphasize that the U.S. Code says that in order to be exempt from the Privacy Act the records created by the government about a person have to be related to a criminal prosecution or criminal investigation. It’s not enough for DOJ to publish on the Federal Register that it exempts its prisoner systems, NCIC systems, and Warrant Information System from The Privacy Act it also needs to use those systems only pursuant to a criminal investigation or prosecution.
In my case DOJ’s USMS division used the systems to investigate and incarcerate me without files existing in the U.S. Attorney’s office (DOJ didn’t apply for a search warrant or an arrest warrant against me, only private parties did and they did so without a statutory authority) and without a charge that I committed a federal offense. Since DOJ investigated me and imprisoned me without the statutory procedure, and the District of Columbia court granted DOJ immunity for that, DOJ has no obstacles to investigating and imprisoning whoever they want, at least by using its USMS division. What DOJ filed in response is that as long as a judge orders imprisonment it is irrelevant as to whether or not the defendant is charged with a crime or only, as in my case, doing something that is legal, but which some people don’t want them to do.
Maybe USMS will imprison Shirley Sherrod or her lawyer if she sues someone.
Shirley Sherrod Declines Offer To Return To Ag. Department
AnonNurse, 5 USC section 552a is a way to stop harassment of “good and decent Americans who get caught in the crosshairs of he weapons wielded by the machine”. In order to accomplish the harassment, the government creates records about individuals. In order to be exempt, not only must the systems of records be ordinarily involved in criminal justice but the individual records must be maintained by the CIA or fall into A,B, or C: (and the comment continues…)
I was responding to the above — but perhaps I misunderstood what you were saying.
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