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.
Source: Politico.
“The video itself is certainly misleading as edited.”
If the video were ONLY of Sherrod’s speech, you could fairly describe it as “misleading.” However, for the first 15 seconds of the video, there is added text which does not IMPLY that Sherrod is a racist, it baldly states that Sherrod has ADMITTED TO A CRIME!
“Ms. Sherrod admits that in her federally appointed position, overseeing over a billion dollars…She discriminates against people due to their race.”
If you separate the video from that offending text, the video might be simply false light, but with the video purporting to support that conclusion, taken as a whole, in other words, the video is libelous. Ms. Sherrod never admits that “in her federally appointed position…she discriminates against people due to their race.” That is false. And, since it accuses her of a crime, it is libel per se in most jurisdictions (meaning she can recover without proving specific damages).
” But remember I am a pro se litigant who couldn’t even keep myself out of jail.”
Now thats funny.:-))
Man, lawyers have to do a *lot* of reading.
Dear Slartibartfest (how did you come up with that name?)
Monell v. Department of Social Services holds that local governments may be liable for damages, as well as declaratory and injunctive relief whenever “the action that is alleged to be unconstitutional implements executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. Moreover . . . local governments . . . may be sued for constitutional deprivations visited pursuantto governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decision-making channels.”While qualified immunity is available to an official sued in his personal capacity, there is no qualified immunity available in an official capacity suit. The Supreme Court has held that a local government defendant has no qualified immunity from compensatory damages liability… Monell allows the imposition of government liability not only when the challenged conduct executes or implements a formally adopted policy, but also when that conduct reflects “practices of state officials so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” Liability is attributed to the municipality in custom-type cases through a policy maker’s actual or constructive knowledge of and acquiescence in the unconstitutional custom or practice. Acts of omission,as well as commission, may serve as the predicate for a finding of unconstitutional policy or custom… The Court held that “the inadequacy of training policy may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact….. Justice O’Connor was also willing to recognize that municipal liability on a “failure to train” theory might be established “where it can be shown that policy makers were aware of, and acquiesced in, a pattern of constitutional violations involving the exercise of police discretion, . . . [which pattern] could put the municipality on notice that its officers confront the particular situations on a regular basis, and that they often react in a manner contrary to constitutional requirements.”….. First, deliberate indifference may be established by demonstrating a failure to train officials in a specific area where there is an obvious need for training in order to avoid violations of citizens’ constitutional rights…. where a pattern of unconstitutional conduct is so pervasive as to imply actual or constructive knowledge of the conduct on the part of policy makers, whose deliberate indifference to the unconstitutional practice is evidenced by a failure to correct the situation once the need for training became obvious… government liability attaches when the constitutional injury results from the implementation or “execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy…. In Pembaur v. City of Cincinnati,355 a majority of the Court held that a single decision by an official with policy-making authority in a given area could constitute official policy and be attributed to the government itself under certain circumstances…. But Monell’s language encompasses other officials “whose acts or edicts” could constitute official policy. Thus, where a government’s authorized decision maker adopts a particular course of action, the government may be responsible for that policy “whether that action is to be taken only once or to be taken repeatedly.”…. A number of circuits use the Supreme Court’s analysis in City of Canton v. Harris as an analogy in determining whether a supervisory official is deliberately indifferent to the violation of constitutional rights. In Shaw v. Stroud,376 the court held that a three-prong test must be applied in determining a supervisor’s liability. A plaintiff must establish: (1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor’s response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices”; and (3) that there was an “affirmative causal link” A number of circuits use the Supreme Court’s analysis in City of Canton v. Harris as an analogy in determining whether a supervisory official is deliberately indifferent to the violation of constitutional rights. In Shaw v. Stroud, the court held that a three-prong test must be applied in determining a supervisor’s liability. A plaintiff must establish: (1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor’s response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices”; and (3) that there was an “affirmative causal link”.. In Stump v. Sparkman, the Court held that Judge Harold D. Stump had performed a judicial act when he ordered a mentally retarded girl to undergo a tubal ligation at the request of her mother. The Court explained that absolute immunity applies to actions taken by judges “in excess of [their] authority,” but not in the “clear absence of all jurisdiction.” To distinguish between these two standards, the Court provided an example: If a probate judge who has jurisdiction only over wills nevertheless tries a criminal case, then the judge has acted in the “clear absence of jurisdiction.” On the other hand, if a judge with jurisdiction over criminal matters convicts a defendant of a nonexistent crime, then the judge has performed a “judicial act” in “excess of his jurisdiction.”. Federal Judicial Commission report http://www.scribd.com/doc/8763965/Section-1983-Litigation
Section 1983 Litigation by Karen M. Blum and Kathryn R. Urbonya Federal Judicial Center 1998
I’m not a lawyer either. In fact, DOJ put me in jail for 5 months for representing myself without permission.
http://ftp.resource.org/courts.gov/c/F2/820/820.F2d.1245.79-1244.80-1383.html
05/29/87 Josiah Haynesworth and v. Frank P. Miller, Chief,Law Enforcement Section, Office of the Corporation Counsel
Josiah Haynesworth and Fred Hancock brought this Bivens action for alleged violations of their First, Fourth and Fifth Amendment rights by the District of Columbia and several of its officials.
Although the law was once to the contrary, *fn217 Monell firmly established that a municipality can be held directly liable in damages for constitutional violations.
That liability attaches under Section 1983 “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the [constitutional] injury . . . .”
Although Section 1983 is unavailable in this case, this form of responsibility seems clearly imposable in a constitutionally-impaired action as well.
The municipal liability of which we now speak is direct, not vicarious. It is premised, not on the mere fact that the wrongdoing officer is municipally employed, but on the existence of some policy fairly attributable to the municipal government itself. The primary justification for this type of liability is the recognition that a municipality can act only through those who enable it to function. When an officer or employee has been delegated power or responsibility to act for the municipality in a
given area, he may be acting as a unit of the municipal government, thus rendering the municipal entity liable for his constitutional wrongdoings. The critical
issue, then, is whether the municipal representative, when engaging in the activity challenged, can properly be said to have acted as the alter ego of the municipality….
Possession by a lower-level official of de facto final authority may be evidence by the failure of supervisory personnel to oversee his decisions, or by a tendency of subordinate employees to acquiesce in his directives. … Haynesworth alleged that Miller was responsible for
establishment and implementation of policies for the Law Enforcement Section of the Corporation Counsel’s Office.
It follows the analysis of government liability thru deliberate indifference and informal policy making per the S.C. in Monell v. Department of Social Services 436 U.S. 658
I got some of the analysis from HARRIS WILTSHIRE &
GRANNIS, LLP pleadings in HATFILL v. ASHCROFT et al 1:03-cv-01793-RBW I bought copies of their pleadings from PACER. The served defendants included Ashcroft, DOJ, FBI, Gonzales. The individual government employees filed motions prepared by DOJ. DOJ filed separate motions on behalf of DOJ and the FBI. Hatfill argued 1st Amendment Bivens.
I have this analysis in my opening brief filed Monday in CDC 10-5149. I argued liability per the APA or alternately for obstruction of justice intimidating parties 42 USC section 1985(2) against DOJ itself based on deliberate indifference and informal policy making. Of course 42 USC 1985(2) is a statutory base for liability. The statute says “any party” not “any person”.
I’m going to try to get this on my website at http://www.rightscase.com soon. But remember I am a pro se litigant who couldn’t even keep myself out of jail.
With all the due respect in the world to Mrs. Sherrod all I can say is “YOU GO GIRL!!”
Davis wrote:
“As a non-lawyer, I am intrigued by your term, “limited public figure”.”
It has to do with the fact that she is a Government employee. The Citizen Media Law Project has an explanation:
http://www.citmedialaw.org/legal-guide/proving-fault-actual-malice-and-negligence
I hope she wins this suit, she certainly deserves to. I hope she gets a public apology as part of the settlement.
I’d love to be a fly on the wall for the deposition.
Hell, I’d settle for just being a guy listening in.
AY, one solid deposition of three to four days should do the trick.
AY,
As a fan of mixed metaphors, I salute you! (My favorite is: ‘We’ll burn that bridge when we get to it.’)
Mike A,
Taking his deposition would be kinda like shooting fish in a barrel with the added advantage of trying to trap jello. It can be done but it’ll just be messy until you clean up the mess.
I wonder how many objections, canceled deps will be called before anyone is able to really set down and get to the truth of the matter.
As a non-lawyer, I am intrigued by your term, “limited public figure”. I assumed that Mrs Sherrod was not a public figure, and thus would have an easier case to make. Is it because she made a speech that was video taped? It certainly can’t be that the slander itself made her one. Breitbart and the right in general have made a cottage industry out of spreading falsehoods about public figures.
Well I’m all for it, and I’ve been waiting for it, just on the general grounds that I’m tired of people rolling over for slimy creeps like Breitbart and purveyors of false news and provacateurs like Fox.
Kay S,
As a non-lawyer, I’m not quite sure what you’re suggesting – that Breitbart could be held accountable for the actions of the government or that Ms. Sherrod could sue the government. If you could interpret what you said for the laymen here, I would appreciate it.
Even though Sherrods is currently employed, she has a long term interest in her reputation to defend.
The government created the injury and:
“How “uniquely amiss” it would be, therefore, if the government itself — “the social organ to which all in our society look for the promotion of liberty, justice, fair and equal treatment, and the setting of worthy norms and goals for social conduct” — were permitted to disavow liability for the injury it has begotten. See Adickes v. Kress & Co., 398 U.S. 144, 190 (1970) (opinion of BRENNAN, J.). A damages remedy against the offending party is a vital component of any scheme for vindicating cherished constitutional guarantees, and the importance of assuring its efficacy is only accentuated when the wrongdoer is the institution that has been established to protect the very rights it has transgressed.” See Owen v. City Independence, 100 S. Ct. 1398, 445 U.S. 622 (U.S. 04/16/1980)
She might have a cause of action under the Administrative Procedure Act. That applies to federal employees too. No person can be disadvantaged by unpublished procedure used by federal agencies. See 5 USC section 552
There is a cause of action under 5 USC 552a g 1 (D) when a federal agency: “fail(s) to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection.”
this includes “5 USC § 522a (e)(7) maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity;”
The NAACP video was a First Amendment Record and under (e)(7) there doesn’t need to be a system of records, only a record.
The video started as a NAACP record but it became a federal agency record. The government possessed, altered, and redistributed Sherrod’s First Amendment Record without her permission and without a statutory purpose.
In my PRO SE “second motion for summary judgment” against DOJ in DDC 09-0562, I pled and DOJ did not dispute this:
For requested materials to qualify as “agency records,two conditions must be satisfied. First, an agency must “either create or obtain” the requested materials “as a prerequisite to its becoming an ‘agency record’ within the meaning of the FOIA.” Id., at 182. In performing their official duties, agencies routinely avail themselves of studies, trade journal reports, and other materials produced outside the agencies both by private and governmental organizations. See Chrysler Corp. v. Brown, 441 U.S. 281, 292 (1979). To restrict the term “agency records” to materials generated internally would frustrate Congress’ desire to put within public reach the information available to an agency in its decision-making processes. See id., at 290, n. 10. As we noted in Forsham, “The legislative history of the FOIA abounds with . .. references to records acquired by an agency.” 445 U.S., at 184 (emphasis added). Second, the agency must be in control of the requested materials at the time the FOIA request is made. By control we mean that the
materials have come into the agency’s possession in the
legitimate conduct of its official duties. This
requirement accords with Kissinger ‘s teaching that the
term “agency records” is not so broad as to include
personal materials in an employee’s possession, even though the Applying these requirements here, we conclude that the requested district court decisions constitute “agency records.” First, it is undisputed that the Department has obtained these documents from the district courts. This is not a case like Forsham, where the
materials never in fact had been received by the agency. The Department contends that a district court is not an
“agency” under the FOIA, but this truism is beside the point. The relevant issue is whether an agency covered by
the FOIA has “create[d] or obtaine[d]” the materials sought, Forsham, 445 U.S., at 182, not whether the
organization from which the documents originated is
itself covered by the FOIA materials may be physically located at the agency. See 445 U.S., at 157. This
requirement is suggested by Forsham as well, 445 U.S., at 183, where we looked to the definition of agency records
in the Records Disposal Act, 44 U.S.C. § 3301. Under that definition, agency records include “all books, papers,
maps, photographs, machine readable materials, or other
documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business. . . .” Ibid. (emphasis added).*fn5 Furthermore, the
requirement that the materials be in the agency’s control at the time the request is made accords with our
statement in Forsham that the FOIA does not cover “information in the abstract.” 445 U.S., at 185.
The court decisions and court issued documents are
obviously not personal papers of agency employees. The Department counters that it does not control these
decisions because the district courts retain authority to modify the decisions even after they are released, but
this argument, too, is beside the point. The control inquiry focuses on an agency’s possession of the
requested materials, not on its power to alter the content of the materials it receives. Agencies generally are not at liberty to alter the content of the materials that they receive from outside parties. An authorship-control requirement thus would sharply limit “agency records” essentially to documents generated by the agencies themselves.” United States Department of Justice v. Tax Analysts 109 S. Ct. 2841, 492 U.S. 136 (U.S. 06/23/1989)[Sieverding v. DOJ DDC 09-0562 document 52]
Breitbart and the other parties who redistributed the edited video were acting in capacity, right?
I’m glad Ms. Sherrod is moving forward – This will, hopefully at least, put Andy Dimbart on notice that those he slanders and lies about will not sit idly by.
I await further developments.
The Sherrods have faced dangerous people in dangerous situations before and have prevailed … their actions over the last few decades attest to the fact that they are not shrinking violets.
This is going to keep the falsity of Breitbart’s video in front of the media for quite a while. To the general public it will be a constant reminder of the right’s falsehoods and that, I suspect, will outweigh the martyrdom of Breitbart conservatives will trumpet.
Very good analysis of the case based upon what is known to date. I would love to take Mr. Breitbart’s deposition. His lawyers will have a very difficult time controlling him.
Well, this is going to be interesting…