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. Buckeye there runnin behind a little. I exposed Mrs. Shirley’s racist husband here days ago.

    Bdaman 1, July 26, 2010 at 12:19 pm

    Video of Charles Sherrod, husband of Shirley Sherrod, railing against the white man and “Uncle Toms”.

    In which

    Buddha Is Laughing 1, July 26, 2010 at 12:24 pm

    Responded

    She is not her husband, badtroll. And since when did you think you’d be taken seriously after using the “Christ Killer” stick in here, bigot? Oh, that’s right! You like your play pal TraitorB here can’t tell when you’re the objects of ridicule and not the dispensers of ridicule.

  2. oh dear, I can’t claim ownership of that one. It was from the the wicked mind of The General – that’s why i posted the link.

  3. EC,

    When I get there, I’ll hold a seat for you. Be sure and pick up baskets for the gathering. I think Buddha has a fire sale. Please pick up extras as we could make a profit…..

  4. EC,

    Behind that tiara and the lovely pink tresses lies a person with a wicked sense of humor. 😀

  8. Yes, now the video of Charles Sherrod, Shirley’s husband, where he says “We must stop the white man and the Uncle Tom from stealing our elections”, is making the rounds on Hannity and at Human Events.

    And Bill O’Reilly has found another problem with Ms. Sherrod. She “endured” the Bush years.

    I can see nothing but dirty laundry being aired and distraction from the issues for the next 96 days – or much, much longer.

  11. Discovery can be a messy process, Wayne. Make no mistake though – most of the mess PropagAndy stepped in is of his own making. The Administration will likely get a little on themselves, but their exposure is almost nothing compared to his especially when you compare what they stand to lose versus what he stands to lose. Breitbart should have thought of that before acting with malice and disregard for the truth. And as pointed out by several others, his ultimate costs of concern are likely not of the economic variety.

  12. I just don’t see it. Even the edited version was clear that the point of her anecdote was that she learned a lesson from the encounter. It’s not accurate to say that Brietbart edited out “the point of her story.” Go re-watched the Brietbart version and pay special attention to the part where Sherrod states (to paraphrase) “it’s not about black or white . . .it about those who have and those who have not.” The point of the story was crystal clear, which is why it was pretty shocking that the Obama administration reacted the way it did.

    There also seems to be a First Amendment issue here. Do we really want a regime where every politician can run to the courthouse whenever they feel a sound bite has been taken out of context? Talk about a chilling effect. Michael Moore has become filthy rich through creative editing to make his point. Every Michael Moore movie would subject him to probably dozens of “false light” lawsuits. What studio is going to step up to that kind of liability exposure. You guys may hate Brietbart, but you have to see that a successful Sherrod lawsuit would be very bad for free speech.

    Also discovery is a two-way street. And when I was in law school they taught us that “truth is a defense” to defamation. If Sherrod feels comfortable telling a crowded room that she took a white guy “to one of his own” what private documents and records might lurk out there?

    Finally, Brietbart didn’t fire Sherrod. It seems to me that Brietbart would have a contribution claim against those who did fire Sherrod, and they could be brought in as third-party defendants. Again, lots of embarrassing discovery opportunities here.

  13. Legal Experts: Sherrod Lawsuit Against Breitbart Has Merit
    July 29, 2010 4:51 pm ET by Joe Strupp

    Now that Shirley Sherrod has said she plans to sue blogger Andrew Breitbart for posting an edited video of her comments that he claimed indicated racism, the question arises as to whether she has a case.

    At least three attorneys experienced in defamation and libel tell Media Matters for America that she could well win.

    “Most certainly she does have a case,” said Attorney Deborah Drooz of Brownstein, Hyatt, Farber, Schreck in Los Angeles, which has handled such cases for Martha Stewart and Aretha Franklin. “What Mr. Breitbart did was to create the false appearance that Ms. Sherrod was a racist. He used that to further his conservative agenda. He deprived the viewer of the ability to decide for himself what Ms. Sherrod said.”

    Drooz added, “If he knew that this was only an excerpt, he published it with the knowledge that there was something else. To publish something that created the impression without investigating further, that is acting with reckless disregard for the truth.”

    Breitbert, who first posted the clip on July 19 at his BigGovernment.com site, has been under scrutiny after it was revealed the clip misrepresented Sherrod’s message during a speech in March before a group of NAACP members.

    Fox then posted an online article reporting on the clip, linking to Breitbart’s video. Breitbart did not seek comment from Sherrod prior to his report; Fox News also gave no indication that they had done so. She was forced to resign later that day.

    In the edited tape, she spoke about how she had not initially helped a white farmer as much as she could have in 1986 when he was going to lose his farm. In the posting, Breitbart made it appear as though the story had occurred during her time as a federal official and not 24 years ago when she worked for a non-profit organization, and said that her comments demonstrated racism.

    Breitbart also did not include the entire context of the speech, in which she later explained that she learned from the situation and ended up helping the farmer, Roger Spooner and his wife. Both Spooners have spoken out several times to support Sherrod and voice that they would have lost their farm if not for her help.

    Sherrod, speaking at a National Society of Black Journalists conference today in San Diego, revealed she planned to sue Breitbart.

    Drooz said Sherrod’s status as a public official might be a defense, but that would not stop Sherrod’s chances: “The constitutional malice evidence against Breitbart is rather glaring.”

    Two other veteran defamation lawyers said she could have a case against Breitbart or Fox News if certain findings are made.

    “The real question would be did he know or have reason to suspect and never inquired that this clip unfairly represented what she said,” Attorney Martin London of New York said about Breitbart. “Are there some facts that could determine that he would suspect it?”

    London said that Sherrod must prove reckless disregard on Breitbart’s part and prove his state of mind. He said several pieces of circumstantial evidence could help.

    First, that he had the edited clip for at least a day or more: “He had time to check it out and he did not.”

    He also noted that Breitbart’s known conservative bent could prove he might have had a motive to discredit Sherrod. “The fact of his political leanings is some evidence that he was out to get her.”

    London said the burden would be on Sherrod to prove that Breitbart knew that the tape was edited to present her in a false light, or had cause to suspect it did.

    He added that the fact that Breitbart never contacted Sherrod before posting the clip may indicate he had suspicion that she might correct the reporting.

    “If he didn’t call her and ask her opinion that is another fact that is important,” London added. “The jury could infer he didn’t call her because she could deny it and he would lose the story.”

    Another defamation veteran, Paul Kleven, a lawyer based in Berkeley, Calif., said such a claim could possibly be made more against Fox than Breitbart. Given Breitbart’s history of doctoring videos, Fox should have suspected that a video he provided might have been doctored.

    “For them to accept it as gospel and run with it the way they did, they would have reason to doubt his integrity,” Kleven said. “He would be the sort of person they would suspect of doctoring it in some way. Getting it from Breitbart, they would have a reason to believe it could be slanted in some way.”

  14. The Obama Administration should give Shirley Sherrod her job back. They shouldn’t throw her under the bus the same way they did Van Jones.

  16. Well, I am certainly not a litigation expert. One way to look at what happened to us in Steamboat Springs is that independent of all the anxiety and reputation damages, in 2002, I counted our economic expenses conservatively at $400 K. Which is a lot of $ to us, maybe not to you. I had 2/3rd acre in prime ski resort location and the person who now owns our house, who did fix it up, tried to sell it with only half the land for $ 2 Mill. We had our business there and had bought the property for our business so that was an additional expense.

    and, there was government officials errors and omissions insurance.

    And, buddha laughing, I did actually discuss doing a mandamus action with a lawyer who suggested it earlier, but she didn’t want to rock the boat.

    It would have been much better for us to have resolved things earlier but we couldn’t make it happen without an external legal authority.

    The way that David Engle died is that people in Steamboat Springs learned from Kevin Bennett that you can violate the zoning. So his Engle’s home was officially a garage and only had one exit.

    Plus, someone in our family really could have died. There was a bullet hole thru our window.

    Someone sent me this email:

    From: “Tom Ernst”
    To: “‘David Sieverding'”
    Subject: RE:
    Date: Tue, 16 Sep 2003 08:26:17 -0600
    X-Priority: 3 (Normal)
    Importance: Normal
    X-Loop-Detect: 1

    Not much in comparison.
    I was looking at a vacant lot next door to Bennett to purchase. When we were walking the property with our three kids, we noticed the property below us and thought it was a wonderful view. Just then Bennett came out of his house and met us. In short, he said if any of us attempted to step foot on the property he would shoot us. He also mentioned that if we built a home on the property he would put up a privacy fence so we couldn’t see the property that went down to the river.

    He scared the hell out of my wife and kids. Needless to say we never went back to the property and found something else.

    TE

  17. W=c,

    That would be a correct opinion too, but applicable to all responsible people. Litigation is complex, time consuming, expensive, stressful and filled with uncertainties. It’s not something that should be undertaken unless their is no other option.

  18. Yissil 1, July 29, 2010 at 6:31 pm

    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.
    —————————-
    I don’t think that truly responsible people in the publics service are apt to take lawsuits lightly…(my opinion of course…). Maybe she thought that a lawsuit in this political climate would do more harm than good. Personally I’m glad she will pursue this because I think things have gotten way out of hand regardless and more good will come of pursuing this tact…

  19. kay sieverding :
    “The Sieverdings lived in and owned property in Steamboat Springs, CO. Their neighbor, Kevin Bennett, the City Council President, fenced off the road adjoining their home and the Sieverdings were threatened if they disturbed it.[2] Then, they were threatened with criminal prosecution in municipal court unless they agreed to give up their rights to the street, which they did.[3] Then, the city council president built extra buildings on his property in violation of the zoning.[4] Their family lawyer told them he would lose the Water and Sewer Commission account if he represented them.”

    And this is what started it all?

    As a layman and just reading what is there,all I can say is wow!

  20. It all comes down to first amendment retaliation whether you are a government employee or not. In the case of government employees, they aren’t supposed to mouth off while on the job and they also have statutory Whistleblower protection.

    My husband put our brief on our http://www.rightscase.com website, although some of the footnotes don’t show, I don’t know why. Any feedback appreciated.

Comments are closed.