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”

  1. Dear Anon Nurse

    I’m not entirely sure I understand your comment. I looked at your link and found

    “Zinn had harsh words for the FBI during his academic career. In a paper published not long before his death, Zinn said the best thing the public could do to curb the FBI’s powers was to “continue exposing them.”

    Of the FBI, he said, “They don’t like social movements. They work for the establishment and the corporations and the politicos to keep things as they are. And they want to frighten and chill the people who are trying to change things. So the best defense against them and resistance against them is simply to keep on fighting back, to keep on exposing them.”
    http://www.alternet.org/rights/147693/fbi_admits_investigating_howard_zinn_for_criticizing_bureau

    If I was researching this, I would send in FOI requests to the FBI. Your congressional representative may be helpful. I would also physically go to Boston U and spend time in the libraries including the old stacks. And I would look for both libraries and organizations that could have received copies of old papers. I would send in request to Library of Congress and if possible physically go to their facility in D.C. There might be letters from Congress in old hearings directed towards the subject. There might have been sermons. There might be class notes in any of the colleges and universities around there. I would go to the Harvard Law library. There might be speeches to the Massachusetts or Boston Bar Association or articles in old bar association journals. I would contact all the offices of all the congressional representatives from Boston as to old letters they might have received. Check out the state libraries too.

    In my facts, DOJ asserted for USMS a right to investigate citizens without a warrant applied for under the rules of criminal procedure. By statute, USMS is a DOJ agency under the direction of the attorney general. I sued USMS as part of my suit against DOJ and they did not dispute that USMS is a federal agency and a component of DOJ. In his decision dismissing all claims for extortion and unlawful imprisonment, Judge Bates made a comment that DOJ had not disputed that USMS is a DOJ component. It seems weird to me that he would write that, but maybe there is an attempt to position USMS as a Court Agency, a sort of private police under direction of the judges without an open procedure. That is prohibited by the APA 5 USC section 552.

    Judge Bates wrote:

    “she argues that the USMS violated the Privacy Act by conducting a non-criminal investigation of her. See Am. Compl. ¶ 44 (“I believe this shows a violation of the Privacy Act because the USMS is confined to criminal matters.”); Am. Compl. Exhibit 18 (USMS “Reportof Investigation”). The Privacy Act does not, however, restrict the Marshals’ investigative authority. And in any event, the Marshals’ authority plainly extends to the non-criminal matter — enforcement of a civil bench warrant — noted in the USMS’s Report of Investigation that Ms.Sieverding references. See 28 U.S.C. § 566(c) (USMS “shall execute all lawful writs, process, and orders issued under the authority of the United States, and shall command all necessary assistance to execute its duties”).

    The word “warrant” does not appear in the rules of civil procedure. And in criminal procedure, a warrant is issued in response to a formal written request by an authorized federal law enforcement officer investigating a crime. In 5 USC section 552 “Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be
    adversely affected by, a matter required to be published in the Federal Register and not so published”.

  3. Some new info on the murder of her father. The MSM got a lot of the story wrong. He was shot in the chest, not the back. Sherrod also said that. The FBI is looking into it. The person who shot him claimed self defense and is dead. There were some blacks on the jury for the civil trial. Criminal charges were brought before three grand juries, with no indictment.

    http://www.albanyherald.com/home/headlines/99673549.html

  4. kay sieverding: Thank you for the information. (How best to proceed is the question. With FOIA requests? Seems like a long, protracted route, but perhaps it’s the best path to some sort of resolution.)

  5. Got to love me some MediaMatters.org.

    Here they are schooling one of Breitbart’s minions trying the “ambush interview” tactic again. The target was a MM tracker. The goal this time was to apparently “discredit” MediaMatters by implying that George Soros funds them (which he doesn’t).

    Although the punk won’t say who he works for, it’s pretty obvious by the smartass look on his face (soon wiped off) and the GOP standard issue cheap blue blazer.

    [youtube=http://www.youtube.com/watch?v=PAdzNTIZDcg&hl=en_US&fs=1]

    BTW, TraitorB, don’t touch your nose so much when you’re lying. That’s a horrible tell. However, a guy from Vegas named Big Vinnie called about your poker loses. He didn’t sound as amused by this as I am.

  7. Elaine M.,

    Pezzi also claims to have “beaten Bill Gates” on a math aptitude test:

    This may very well be true. I don’t know nor have any reasons to dispute this statement.

    turned down a blind date with Katie Couric,….

    Well I am sure she feel that this is such a loss that she’ll never get over it….this could be career breaking for her….oh she is already somebody I have heard about. Who is this clown? I have heard of Pez dispensers any relation?

    and says he’s “bigger than some porno stars.”

    Well we know what he thinks with…I wonder if he and Clarence Thomas have had measurements to see who’s who in being really big dicks….Literally and Figuratively meant…..

  8. Meet Breitbart’s Sherrod writer: Racist sexual “expert” and inventor (who cured cancer)
    August 05, 2010 2:06 pm ET by Ben Dimiero & Eric Hananoki
    http://mediamatters.org/blog/201008050030

    In two posts on Andrew Breitbart’s BigGovernment website, Dr. Kevin Pezzi smears Shirley Sherrod as a racist, claiming that “if someone deserves to be put on a pedestal for overcoming racism, it isn’t Sherrod.” The racism criticism is ironic coming from Pezzi, who has repeatedly used racial epithets like “Japs” and “Chinks,” and claimed Native and African Americans should have been grateful for their subjugation by whites.

    Pezzi, who says that “Breitbart asked me to write for BigGovernment.com,” has a peculiar self-described history. Pezzi claims to be responsible for “over 850 inventions” and schemes such as a “magic bullet” for cancer, a “robotic chef,” and sexual inventions like “penile enlargement techniques” and “ways to tighten the vagina” (because “men like women with tight vaginas”). Pezzi has started multiple websites, from term paper helpers to a sexual help site that answers “your questions about sexual attraction, pleasure, performance, and libido” (Pezzi is qualified to do so because “No doctor in the world knows more about sexual pleasure than I do”).

    Pezzi also claims to have “beaten Bill Gates” on a math aptitude test, turned down a blind date with Katie Couric, and says he’s “bigger than some porno stars.”

  9. Bdaman

    WOW!!!!! Just keeps getting deeper.

    http://biggovernment.com/kpezzi/2010/08/04/why-you-may-not-want-to-join-the-shirley-sherrod-fan-club-part-2/

    **********

    Deeper for Breitbart, you mean???

    From Media Matters for America
    What the Pezzi saga tells us about Breitbart
    August 05, 2010 6:05 pm ET by Ben Dimiero
    http://mediamatters.org/blog/201008050053

    Earlier today, we pointed out that Andrew Breitbart’s Big Government published posts from Dr. Kevin Pezzi smearing Shirley Sherrod as a racist.

    Pezzi is rather overtly racist, and has repeatedly used racial epithets like “Japs” and “Chinks,” and claimed Native and African Americans should have been grateful for their subjugation by whites. Additionally, Pezzi is a doctor/”sex expert”/author/inventor/huckster, who, among other things, says he has “beaten Bill Gates” on a math aptitude test, is “bigger than some porno stars,” and stumbled upon a cure for cancer. Pezzi has also apparently created a series of at least six fake MySpace profiles of women claiming to be big fans of his sex books.

    In response to our posts, Big Government has now disappeared Pezzi’s articles. If you attempt to visit the pages for his posts and bio, you are greeted with an error. While Big Government has disappeared Pezzi from their website, they posted the following “Editorial Note” from “Publius,” which doesn’t mention Pezzi by name:

    *****
    So…Big Government has “disappeared” Pezzi’s articles. What do you say about that, Bdaman?

  10. Bdaman,

    Regarding charles Sherrod maybe he just meant people of all colors that have an interest in civil rights, that would be consistant with his history. Or maybe he did mean black americans, so what?

    BTW, just who, or which people, do the bat-sh*t crazy politicians and candidates mean when they vow to “take back our country”? What constituency or tribe is that? Does that phrase set your teeth on edge as much as “our people” seems to? What other claims of constituency disturbs you?

    The observation that opening up ones life in court is a two edged sword BTW, considering Brietbart’s recent history with airing distorted and false stories he should be a tad concerned. Having valid, legal cause to unleash a private detective or two on his personal life might prove interesting also. I can’t wait for the depositions to be leaked, LOL.

    http://direland.typepad.com/direland/2010/07/charles-sherrod-a-hero-forgotten.html

  11. Posted by William A. Jacobson

    Associate Clinical Professor of Law, Cornell Law School, Ithaca, NY.

    Somewhere, Andrew Breitbart must be smiling about this article at Counterpunch, The Other Side of Shirley Sherrod, which exposes Shirley Sherrod in rather bleak terms as to her treatment of black farmers and their families:

    The swirling controversy over the racist dismissal of Shirley Sherrod from her USDA post has obscured her profoundly oppositional behavior toward black agricultural workers in the 1970s. What most of Mrs. Sherrod’s supporters are not aware of is the elitist and anti-black-labor role that she and fellow managers of New Communities Inc. (NCI) played. These individuals under-paid, mistreated and fired black laborers–many of them less than 16 years of age–in the same fields of southwest Georgia where their ancestors suffered under chattel slavery.

    When I first noticed the story of her firing and the association of Shirley Sherrod’s name with the rural black poor and concern for “black land-loss”, I wondered if the person being praised was the same Shirley Sherrod whom I knew. One piece posted on the July 23rd Alternet and captioned “Shirley Sherrod and the black Land Struggle” even claimed that she “devoted her entire life to economic justice”. The mistreatment of black workers at NCI under the Sherrods is a matter of record that contradicts this claim.

    The other day, in assessing Sherrod’s claims against Breitbart for releasing the original clip of her comments to the NAACP, I noted that any lawsuit by Sherrod against Breitbart would open Sherrod’s entire life up to scrutiny, and that Breitbart might relish such opportunity.

    Based on the quoted article above, Sherrod’s life may be one she prefers to leave unexamined.

    http://legalinsurrection.blogspot.com/2010/08/shirley-sherrod-may-prefer-life-left.html

    http://www.counterpunch.org/wilkins08022010.html

  15. Buddha–

    You must be feeling better!

    but you still look like shit!!!

    Karma’s a MF specially when it bites you in the ass.

  16. Elaine,

    Ehhh, not really, but I couldn’t get comfortable in bed so I decided to be uncomfortable in front of the computer a bit.

    And “yes”. That’s PropagAndy’s Trained Troll Brigade, cleverly disguised as chimps. Poo flinging, no extra charge.

  18. [youtube=http://www.youtube.com/watch?v=wQ2nVL1-XFk&hl=en_US&fs=1]

    Go PropgAndy, Go!

  20. Posted by Andrew Breitbart Aug 3rd 2010 at 8:08 am in Featured Story

    I Got My Correction Thanks to the The New York Times — Now Who’s Next?

    Buried at the bottom of a story published the other day, the New York Times printed a curious little correction:

    The Political Times column last Sunday, about a generational divide over racial attitudes, erroneously linked one example of a racially charged statement to the Tea Party movement. While Tea Party supporters have been connected to a number of such statements, there is no evidence that epithets reportedly directed in March at Representative John Lewis, Democrat of Georgia, outside the Capitol, came from Tea Party members.

    Let’s go over that again:

    * The Times is admitting that there is absolutely no evidence that any epithets were shouted at the Congressman by any member of the Tea Party.
    * This correction demonstrates we have finally proven our point to the nation’s most eminent and influential liberal media organ: that Rep. Andre Carson lied when he told the AP that members of the Tea Party hurled the “N-word” 15 times during the March 20 health-care rally that took place at the U.S. Capitol.

    That’s great, as far as it goes – a thorough vindication of the Tea Party — but it doesn’t go far enough.

    * It’s not enough for the Times to make a correction having let that calumny sit out there unrebuked for weeks and months and then, way after the fact, issue a correction.
    * It’s not enough because the Times continues to imply that something racially charged might happened on the steps of the Capitol, when we have shown conclusively, via multiple videos of the moment in question, that nothing of the sort occurred.

    http://bigjournalism.com/abreitbart/2010/08/03/i-got-my-correction-thanks-to-the-the-new-york-times/

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