Constitutional Law, Lawyering, Media, Politics, Society, Torts

Sherrod To Sue Breitbart

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.

227 thoughts on “Sherrod To Sue Breitbart”

  5. Tomdarch has an interesting post on the East St. Louis Lays Off Roughly One-Third of Police Force thread 5:52pm

  6. “Two weeks ago I wrote about a possible — yet unlikely — changing of the tide within the Tea Party. Following the NAACP’s call to the Tea Party leaders to expel racists elements in their ranks, Mark Williams, now the former head of the Tea Party Express, was forced to resign in shame after posting an offensive, racially charged letter which suggested that African-Americans enjoyed slavery and wanted to return to it in an effort to avoid paying taxes and enjoying the benefits of welfare. In any other world, these visceral rants would be considered psycho babble — unworthy of any serious consideration. The perpetrators would be silenced and dismissed.”

    http://www.thegrio.com/politics/how-the-far-right-chooses-to-reward-racism.php

  7. 99% of those who live off the feds whether as federal employees or as fundraisers probably don’t care at all about the party planks except as it affects their income. Abortion politics are just an example. I bet there isn’t a single family member of a federal employee with a ranking of GS10 or higher or of member of congress or of a lobbyist who have ever even considered getting an abortion. They put their daughters on expensive birth control pills claimed to control acne and emotional behavior. If Sherrod sues, she won’t be pro se so she will actually get a memorandum opinion or a jury trial and she won’t be imprisoned for engaging in pro se civil litigation without permission as I was.

  8. From CNN Politics
    RNC cancels Breitbart fundraiser
    Posted: August 1st, 2010 04:51 PM ET

    From CNN Senior Political Editor Mark Preston
    http://politicalticker.blogs.cnn.com/2010/08/01/rnc-cancels-breitbart-fundraiser/?fbid=aAf3VaPyjlf

    Excerpt:
    Washington (CNN) – The Republican National Committee has cancelled a fundraiser with conservative blogger Andrew Breitbart, who is under fire for promoting an edited video that falsely portrays former Agriculture Department employee Shirley Sherrod as having boasted about discriminating against a white farmer looking for her assistance.

    Breitbart was scheduled to appear with RNC Chairman Michael Steele at a reception later this month in Beverly Hills.

  9. From the LA Times

    From neocons to crazy-cons
    Once the conservative movement was about finding meaning in private life and public service. But it has undergone a shift toward demagoguery and hucksterism.
    August 01, 2010|By David Klinghoffer

    http://articles.latimes.com/2010/aug/01/opinion/la-oe-klinghoffer-conservatism-20100801

    Excerpt:
    Once, the iconic figures on the political right were urbane visionaries and builders of institutions — like William F. Buckley Jr., Irving Kristol and Father Richard John Neuhaus, all dead now. Today, far more representative is potty-mouthed Internet entrepreneur Andrew Breitbart, whose news and opinion website, Breitbart.com, is read by millions. In his most recent triumph, Breitbart got a U.S. Department of Agriculture official pushed out of her job after he released a deceptively edited video clip of her supposedly endorsing racism against white people.

    What has become of conservatism? We have reached a point at which nothing could be more important than to stop and recall what brought us here, to the right, in the first place.

    Buckley’s National Review, where I was the literary editor through the 1990s, remains as vital and interesting as ever. But more characteristic of conservative leadership are figures on TV, radio and the Internet who make their money by stirring fears and resentments. With its descent to baiting blacks, Mexicans and Muslims, its accommodation of conspiracy theories and an increasing nastiness and vulgarity, the conservative movement has undergone a shift toward demagoguery and hucksterism. Once the talk was of “neocons” versus “paleocons.” Now we observe the rule of the crazy-cons.

  10. The sharing of information between the feds and local government agencies is controlled by 42 USC §14616 “Criminal Justice Information Services”

    (4) Criminal history records
    The term “criminal history records”—
    (A) means information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, or other formal criminal charges, and any disposition arising therefrom, including acquittal, sentencing, correctional supervision, or release; and
    (B) does not include identification information such as fingerprint records if such information does not indicate involvement of the individual with the criminal justice system.

    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:

    (A) information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status;
    (B) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or
    (C) reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision. http://www.justice.gov/opcl/privstat.htm
    http://www.law.cornell.edu/uscode/5/usc_sec_05_00000552—a000-.html

    “the exemptions provision details the kinds of records that may be exempted, and they all relate to law enforcement activities that require a measure of secrecy. As the House Report explained,

    Only records maintained by the Central Intelligence Agency and criminal justice records could be so exempted. Even they would be subject to the requirements relating to conditions of disclosure” H.R. Rep. No. 93-1416, 93d Cong., 2d Sess, reprinted in Legislative History of the Privacy Act of 1974, at 311-12 (1976)Maria H. Tijerina, v. Honorable Harry N. Walters CDC.0000279, 1987

  11. To continue, lottakatz,

    …and civil rights abuses the likes of which we’ve probably never seen before because the machine is so incredibly sophisticated, as well as the technology. This is a machine which knows no bounds — sneak and peek searches (as well as “vandalize and steal” intrusions), safety deposit box thefts, intrusive surveillance of homes and law-abiding people, defamation, harassment, interference with employment and the list goes on and on. Some of the same old tactics, but they’ve been ramped up, in my opinion. If one meets the criteria for “Perfect Citizen” (in reference to the recently revealed NSA program, one might be left alone (as much as one will ever be left alone by the “terror-industrial complex).

    In a July 19th ACLU article titled “Our Secret Security Establishment: The Big Picture”, Jay Stanley wrote:

    “The national security establishment is out of control.” (not news to many) “The $75 billions intelligence budget is two and a half times its size before 9/11.” And then this, which an accurate depiction, given my limited vantage point:

    “There is no person or agency with the “authority, responsibility or a process in place to coordinate all these activities,” in the words of one official. ‘There’s only one entity in the entire universe that has visibility on all’ secret programs, the Obama administration’s nominee to be the next director of national intelligence told the Post. “That’s God.”

    And those good and decent Americans who get caught in the crosshairs of the weapons wielded by the machine have only one hope, it would seem: divine intervention.

  12. anon nurse, and stories like the ones we are linking are everyday things now. It seems as if I can’t make the rounds of the news sites I visit daily any more without running into news stories like these or, just as troubling, examinations of the way business is operating to abuse its customers (or planning to operate) while Congress either looks the other way or supplies a new tax incentive to them.

    One of the interesting things in the recent WP articles “Top Secret America” about the security state we are becoming was that there is an explosion of building going on in the DC and Virginia area primarily by the various Intelligence Agencies. Billions of dollars in new state of the art building projects and their high-status accouterments. Virtually a blank check for such projects hidden throughout the Federal budget including he economic stimulus funds. There is a new class in government, a new estate as it were: the Intelligence domain that has little or no oversight by Congress or the courts and rife with redundancy and waste.

    Democrat-backed terror bill would ‘gut Miranda rights’
    http://rawstory.com/rs/2010/0801/terror-bill-gut-miranda-rights/

  14. lottakatz: Thanks for the link to the NSA article. From that article, the following sobering statements by the late Frank Church:

    “Bamford ends The Shadow Factory by quoting Senator Frank Church, the first chairman of the Senate Intelligence Committee, during the original hearings on the NSA in the 1970s. “If a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know. Such is the capability of this technology,” said Church more than three decades ago.”

  15. anon nurse: “When the whole truth is revealed (if it ever is), good Americans will be outraged. It’s perilous (not an overstatement) to allow what’s going on to continue.”

    ____

    It’s too late I fear- 1984’s already here, it just needs to be adequately staffed.

    The panopticon economy
    The NSA’s new data-mining facility is one component of a growing local surveillance industry.

    ” “No longer able to store all the intercepted phone calls and e-mail in its secret city, the agency has now built a new data warehouse in San Antonio, Texas,” writes author James Bamford in the Shadow Factory, his third book about the NSA. “Costing, with renovations, upwards of $130 million, the 470,000-square-foot facility will be almost the size of the Alamodome. Considering how much data can now be squeezed onto a small flash drive, the new NSA building may eventually be able to hold all the information in the world.” ”

    http://www.sacurrent.com/news/story.asp?id=69607

  17. There was a breakdown in the system, and it is being addressed,” he said. “But it must say something about the power of Fox, that a week after she resigned, we’re still talking about this.”

    The breakdown occurred following Fox’s afternoon news meeting that day, when Clemente, according to The Washington Post’s Howard Kurtz offered the following advice: “Let’s take our time and get the facts straight on this story. Can we get confirmation and comments from Sherrod before going on-air. Let’s make sure we do this right.”

    http://www.politico.com/news/stories/0710/40374.html

  18. re feedback

    sorry I was gone after my morning comment

    re Mike Appleton — the feedback I get over the Internet is useful to me. As far as my pro se competence, in my underlying lawsuits I went on a new use of 1985(1) right to sue (someone should), 1985(2), 1983, 552a g(1). For my exhibits I used mostly government documents, records of other courts, and verified attorney bills supplied by my defendants. It is a problem for PRO SES not knowing what they don’t know and I am not alone in that. However, I do have a masters degree from MIT and always was a pretty good researcher. I took an aptitude test that rated me in the 99th percentile in reading speed, reading comprehension and long term thinking. And I spend a lot of time on it. What really helped w my current brief was the forms and rules of the CDC, which are very elaborate. They clued me into thinking about it as a matter of statutory construction. Then I compiled a huge addendum, which I later cut down, but that helped me. I also have a huge collection of SC dicta and was ecstatic when I read that CDC treats it like law. My preferred way to write briefs is to string dicta together and compare it to my facts. What really helps me a lot are the advanced search functions on my Mac. Another thing that really helps is spending money on PACER to look at lawyers’ pleadings. I copied whole paragraphs from Steven Hatfill’s lawyers’ objections. I also copied paragraphs on a motion for judicial notice and then I argued that the lawyer had a good resume and the opposing counsel, representing a Fortune 400 company, didn’t object so therefore what the lawyer wrote must be right.

    Re Bdaman — every blogger has an agenda of some sort. And I was getting something useful out of this thread, related to Sherrod’s facts, until certain people as they said highjacked it. The Colorado Pols website is not my very own blog — I can’t even post on it. I tried to do one on Wordsmith and it wasn’t even visible. Maybe I will put one on http://www.rightscase.com, if my son helps me with the software as at least that site is visible.

    I consider that what I am doing by blogging about the criminal Witness Intimidation, 18 USC section 1512, directed to stop my Access to Courts is attempting to influence public policy by advancing PRO SE rights. I also do blog about subjects unrelated to my lawsuit. For example,
    http://blogs.wsj.com/law/2010/07/29/bearly-legal-trader-greenwood-pleads-to-fraud-other-charges/

Comments are closed.