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.
Mike Appleton
1, July 29, 2010 at 7:23 pm
Yissil, I believe the case will be settled out of court because it will survive a motion to dismiss and Breitbart will not want the publicity of a trial since its focus will be on his character. But there won’t be a resolution any time soon.
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What if Mrs. Sherrod isn’t interested in an out of court settlement?
Dear Slartibartfast and Mike
If sherrod goes after private parties she can only collect assets they have but if she goes fast enough she can probably go on presumed damages. If she wins under the Privacy Act, she gets a minimum of $1,000 plus all her legal bills, no matter how much. Then she can reclaim her reputation and strike a blow against defamation and false light publicity.
My husband is sitting near me trying to put our brief on http://www.rightscase.com. I asked him to convert the Microsoft word document of the main brief to HTML and to worry about the table of contents later.
I hope Mrs. Sherrod’s lawyers do not omit to sue FOX news and at least some of the right-wing web sites that promulgated the libel. Especially any that called for her resignation.
Perhaps one has to have been a government employee (as I was for 11 years – State of NJ) to appreciate how personal attacks can intimidate people from doing their jobs. I’m not saying government employees should be shielded from deserved criticism of their official actions – but they should be protected from frivolous lawsuits, blackmail, threats of assault, etc. – and from egregious libels. Having your own words selectively edited so as to appear to be a racist when you’re anything but – that’s a unique form of character assassination.
Every public employee and elected official should thank Shirley Sherrod if she goes forward with her lawsuit. It will make the right-wing media check their facts before sliming their next target. And that will deter at least some unwarranted attacks.
As for damages… just because the truth came out and Mrs. Sherrod was offered a better job doesn’t mean she hasn’t suffered compensable damages. Yes, she probably won’t suffer monetary loss. But unless Breitbart, Fox et al publish extensive retractions and take affirmative steps to tell their audience that, no, Shirley Sherrod is not a racist, and yes, they were very, very wrong to publish an edited tape that made her look like one, many members of their audience will hold to the conviction that Shirley Sherrod is a racist. (To prove it all she’ll have to do is pull up comments on the right-wing blogs.)
A final point: it doesn’t seem to me that Mrs. Sherrod sought the national spotlight. To be dragged into the glare of publicity, unsought, and in this way, ought to an element of damage in itself. If that isn’t the current state of the law there’s new law to be made.
sorry “by statute”. Turley should have an edit function.
Dear Mike
I asked my husband to put our new brief on our website. What happened is that I sued the City of Steamboat Springs and its city council president and various city officers and lawyers under 42 USC section 1983 because I was harassed and hurt in a scheme to let the city council president take over the road adjoining our former home and build in violation of the zoning. Because about 200 lawyers knew about what were basically criminal acts but didn’t want to get involved I argued that the ABA was a proximate cause. I moved from CO to WI and sued in federal court under diversity. My case was assigned to former judge Naughty Nottingham who was using prostitutes thru our entire litigation. I think DOJ has evidence that my defense lawyers were paying for Nottingham’s prostitutes. I had a lawyer I had paid over $3,000 to who gave me an encouraging letter but he said that he was afraid of retaliation against his law practice if I sued lawyers, which was necessary to make sense of what happened.
The procedure I received in federal court was not what is written. Nottingham did not write a memorandum opinion. The defense bills show that they realized that what was happening would not be res judicata against a new claim so they came up with the idea of getting a NO PRO SE order for succeeding litigation.
After losing in the 10th Circuit, I filed for relief from judgment in a non rendering court under Rule 60b(3) and I relied on 30 day federal tolling to represent my claims. With the knowledge and blessing of the ABA, Nottingham ordered me imprisoned to stop me from pursuing my litigation in the other federal courts. The Marshals ignored their own rules and all sorts of laws to imprison me without a criminal charge.
I think the Denver Marshals did this because Nottingham had been taking them to strip clubs and brothels and that he or someone associated with him got photos of the Marshals in compromising positions. I think the Denver Marshals pulled favors with the Wisconsin Marshals. I think that the ABA was getting payments from Lloyds of London, which sells insurance to attorneys over the Internet. The lawyer was billing Underwriters at Lloyds London to defend a lawyer I sued, who was a state of Colorado prosecutor. I think Lloyds pays protection to various court clerks and attorney regulation counsel around the country and that Lloyds pulled strings to have the clerks and magistrates in Wisconsin break the law.
I tried to get relief from the 10th Circuit but I didn’t get it and I think this is because Lloyds and Faegre & Benson paid the clerk of court (which I can’t prove but have evidence supporting). I think they paid off the 8th Circuit to dismiss my appeal there. That was dismissed on a motion stating that I am not allowed to represent myself.
Then I sued DOJ in the District of Columbia. The government argued that I deserved to be incarcerated without a criminal charge and Judge Bates dismissed my case. I don’t think that DOJ or Judge Bates believed what they wrote. I think they thought that I wouldn’t be able to get thru the appeals process. I filed a timely paid notice of appeal and got approved for a PRO SE ECF account. DOJ filed a “motion for summary affirmance” in the name of a 25 year old inexperienced lawyer only. That disputed the record and asked me to respond with a procedure much inferior to the regular appellate procedure. I avoided the invitation to use the inferior procedure by claiming I wasn’t ready, which I wasn’t at the time, and supplied references to the record supporting our (my husband and I) issues on appeal. Then DOJ filed a reply and claimed that our issues on appeal weren’t in our complaint. They claimed they served me by email to two different email address but that was a lie and they knew that I didn’t have our PRO SE ECF account set up and that I wouldn’t get the paper copy until after July 4, on my birthday in fact which they knew when my birthday was. But when I got their reply, I hustled to pay up my $500 PACER account and get the ECF account active and filed a motion to adduce additional evidence i.e. the complaint before the Court ruled. So then they got until 7/22 to object, but they didn’t. Then I theorized that the Court would rule last Monday so I hustled to get my brief filed by ECF before I went to bed so it would be there in the AM.
These are our issues on appeal currently pending in CDC:
1.) Does the First Amendment limit restraints against PRO SE speech?
2.) Is there an exemption from the NonDetention Act, 18 USC § 4001, for the detentions and threats that DOJ inflicted on the appellants?
3.) When arrest and detention are accomplished without a criminal charge, and systems of records are used, is there remedy under the Administrative Procedure Act?
4.) If either Mr. or Mrs. Sieverding does not have remedy under the Administrative Procedure Act, is there remedy under 42 USC § 1985(2), Obstructing justice; intimidating party, witness, or juror?
5.) Is DOJ required by the Administrative Procedure Act to make annual reports available to the public?
That is why I studied up on the First Amendment.
The last question refers to reports by DOJ’s Data Integrity Committee per 5 USC section 552a(u). They haven’t been filing these reports that they are required to be statute. The reports involve information not just records and therefore go beyond the reports discussed in section 552. We had complained about violations of matching agreements and the plain law of the statute requires DOJ report all such complaints and responses to them. DOJ argued that I didn’t have standing and that a motion under Rule 65 was inadequate to get injunctive relief. So we had to argue statutory interpretation. I think our opening brief was adequate. I think DOJ tried to trick us and used bad faith but I think we got thru the tricks.
I read somewhere that NO PRO SE orders were a foolproof way to avoid a decision on the merits.
I was lucky that Nottingham’s use of prostitutes was exposed thru his divorce.
My belief is that I am not just arguing for myself but that the entire future of democracy rests on my shoulders because PRO SE rights are the foundation of democracy. The former president of the ABA, (before Lamm, Robert J. Grey) wrote that Access to Courts is the Right from Which All Rights Flow and I believe that is true. I think PRO SE rights are necessary as an absolute fundamental right even when litigants have lawyers, so that their lawyers are their agents not their masters.
BTW:I think Chris Matthews put his whole leg in his mouth today regarding the Breibart tapes.
kay sieverding :
Its obvious you misunderstood my comment about thats funny.
Your situation was serious,but after telling us the run down,your wind up was as I said ‘funny”no intent to belittle what you were talking about.
Yissil, I believe the case will be settled out of court because it will survive a motion to dismiss and Breitbart will not want the publicity of a trial since its focus will be on his character. But there won’t be a resolution any time soon.
Kay S,
‘Slartibartfast’ is the name of a character in Douglas Adams’s book ‘The Hitchhiker’s Guide To The Galaxy’. He’s a member of a race that manufactures planets (and, in fact, manufactured the Earth) who likes making fjords (he won an award for Norway).
Thanks for explaining – that seems like a pretty thin case against the government considering that the damage Ms. Sherrod suffered at their hands (loss of her job) was almost immediately redressed with the offer of another job and that she seems much more inclined to go after Breitbart than the government.
Mike Appleton
But Greg’s observation leads you to believe that the case will be settled out of court because the libel is so blatant?
Kay, I’ve been trying to follow your posts since your arrival, but I am unable to understand them within any sort of context. I understand that you have been through litigation from your posts, but I have no idea what any of it is or was about. I think my reaction is fairly typical, which may be why you are not getting much feedback on your comments.
Yissil, the answer to your question is that most of us do not relish the prospect of being pilloried for a couple of years. See, e.g., the post by Gary Welsh following yours. Secondly, it is a political case. Judges are understandably concerned when a partisan political attack becomes the basis of a libel action. There’s a lot of highly unethical mudslinging in the political arena on a good day, but unethical doesn’t mean actionable.
Dear Eniobob
You know some eople thought the Jews were funny when they were dirty before they were exterminated in Auschwitz and some people thought Southern blacks were funny before they were lynched. I didn’t think it was funny at all. I was a victim of felony witness intimidation and felony deprivation of rights under color of law. I was kidnapped and assaulted by my own government, and I hate my government because of it. I had a right to rely on the NonDetention Act 18 USC section 4001 and other laws and regulations including 28 USC § 516, 28 USC § 566, 28 USC § 1654, 42 USC § 14616, 28 CFR § 16.22, 28 CFR 50.2
The current president of the ABA, Carolyn Lamm, was the opposing counsel. If my claim against the ABA was so frivolous, then they shouldn’t have paid $950 per hour for a lawyer.
The facts of Ms. Sherrod’s case reminds me of a case I read about which involved a photo of a ranch that was distributed. There was a photo of a muddy place and the suggestion was made that there was bad management of the ranch and leased government land. The photo was distributed as if the whole area had had the vegetation removed. Actually it was a small place near a parking lot used by government agents and they were the ones who caused the mud. And Professor Turley analyzed it that way as a tort by government employees. But if Ms. Sherrod can make her claim under the Privacy Act, she can go against the government itself. And, she can get more money than collecting from the employees. Which means that more resources can be devoted to litigation.
I really am sick of government actors clothing themselves in perceived “immunity” to deliberately hurt people thru misleading conduct. If the government has to pay, then the government will control its rabid dog employees instead of letting them victimize the population.
Furthermore, because the facts of my case weren’t heard, because the ABA wouldn’t let them be heard, a man named David Engle died.
Information comes to light in dribs and drabs, Yissil.
Getting at Breitbart was never the issue. Sun Tzu said, “The face of victory is always changing.” He said this because 1) goals should be malleable to fit 2) changes in enemy tactics and 3) changes in the weather and/or terrain.
Please, continue to salivate. You’re still likely to get some tasty morsels.
So Sherrod goes on national television and accuses Breitbart of wanting to make blacks slaves again in America, but she has a case of defamation against him for playing comments she does not deny she made at a public meeting. Okay, Jonathon. If everyone who used a comment a public figure made out of the context in which it was made, our courts would be filled with lawsuits. I guess he could always file a countersuit against her, right? C’mon, Jonathon. She’ll be laughed out of court.
So why was there any hesitation in the first place on the part of Sherrod and her lawyers? Why was there such widespread opinion that it wouldn’t succeed or wasn’t worth it? It seems like nobody else noticed this, including JT.
I hope you can satisfy my doubts so I can go back to salivating like a hungry wolf.
Greg–
Excellent point! It pays to be observant.
Greg,
Nice catch there. Kudos.
And what Mike said. This will probably not go to trial but if it does?
I’ll probably laugh so hard I’ll hurt myself. I better start limbering up now just in case.
Greg, that’s a very good point. I’ve been focused on the video, but not the intro. It is libel per se. This case will never go to trial.
“Speaking Thursday at the National Association of Black Journalists convention, Sherrod said she would definitely sue over the video that took her remarks out of context. Agriculture Secretary Tom Vilsack has since offered Sherrod a new job in the department. She has not decided whether to accept.
Sherrod said she had not received an apology from Breitbart and no longer wanted one. “He had to know that he was targeting me,” she said.
Breitbart did not immediately respond to a call or e-mails seeking comment.”
And this:
“Sherrod said her faulty firing should not be blamed on all media.
Before the full video was released, Fox News host Bill O’Reilly said Sherrod should be fired, and others called her speech racist. O’Reilly later apologized.
“They had a chance to get the facts out, and they weren’t interested,” Sherrod said.
She said she declined to give Fox an interview because she believed they were not interested in pursuing the truth. “They would have twisted it,” she said.
A Fox News spokesperson did not immediately respond to a request for comment.”
From: The AP via http://www.huffingtonpost.com/2010/07/29/shirley-sherrod-to-sue-an_n_663656.html
No comment, eh?
I must giggle now.