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.
From Yahoo News (7/30/2010)
Many in Gulf are outraged at reports of vanishing oil
By Brett Michael Dykes
http://news.yahoo.com/s/yblog_upshot/20100730/bs_yblog_upshot/many-outraged-over-reports-of-oil-in-gulf-vanishing
Excerpt:
Now that BP engineers have managed to place a cap on the company’s bleeding well in the Gulf, the sprawling oil slicks seem to have retreated from the water’s surface, claimed many media reports this week.
“Where is all the oil?” an AFP headline asked. Time magazine ran a piece suggesting that the environmental impact of the spill has been “exaggerated.” The New York Times ran a story that said the “Gulf oil spill is vanishing fast.” And this very news organization ran a story suggesting that oil-gobbling microbes are eating up a lot the oil.
These reports have angered many — particularly those close to the disaster who are still, well, seeing lots of oil.
“There was more oil at South Pass Tuesday than I’ve seen since this whole thing started; it was really discouraging,” Louisiana charter boat captain Mike Frenette told the New Orleans Times-Picayune’s Bob Marshall. “I don’t know where everyone else is looking, but if they think there’s no more oil out there, they should take a ride with me.”
Don Sutton, another charter boat captain, concurred, telling Marshall that he followed a line of floating oil “that stretched from South Pass to Southwest Pass probably two to three miles off the shore,” more than 15 miles. “And that wasn’t all we saw. There were patches of oil in that chocolate mousse stuff, slicks, and patches of grass with oil on them. The Gulf might look clear, but we’re still seeing oil coming ashore.” Recent satellite photos showing large swaths of discolored water seem to back up the claims by Frenette and Sutton.
From USA Today (7/30/2010)
Gulf oil spill released toxic, tough-to-track chemicals
http://www.usatoday.com/tech/science/columnist/vergano/2010-07-30-oil-spill-toxins_N.htm
By Dan Vergano, USA TODAY
Out of sight, out of mind?
With surface oil slicks fading from view in the Gulf of Mexico, courtesy of the capped Macondo well, we’d be out of our minds to think that the oil still isn’t there, warn forensic toxicologists.
“We’re finding less and less oil as we move forward,” disaster response chief Thad Allen said last week, noting skimmer boats having trouble finding slicks. The retired Coast Guard admiral also pointed out that some 40% of the leaked oil, more than 90 million gallons of crude by U.S. Geologic Survey scientist estimates, is missing. “There’s the issue of whether or not we may find oil under the water,” Allen added.
Under the water is where the oil is, say environmental chemists such as Jeffrey Short of the conservation group, Oceana, and not just in deep sea clouds of oil reported by National Oceanic and Atmospheric Administration (NOAA) scientists. “Oil tends to congeal and where you saw a broad slick, you now have a lot of droplets and tarballs,” he says. Whether floating as tarballs, buried under Mississippi River mud or carried off in currents to the Atlantic, much of the spilled oil remains in the water, Short says.
From Huffington Post (7/29/2010)
Scientists Find Evidence That Oil And Dispersant Mix Is Making Its Way Into The Foodchain
http://www.huffingtonpost.com/2010/07/29/scientists-find-evidence_n_664298.html
Excerpt:
Scientists have found signs of an oil-and-dispersant mix under the shells of tiny blue crab larvae in the Gulf of Mexico, the first clear indication that the unprecedented use of dispersants in the BP oil spill has broken up the oil into toxic droplets so tiny that they can easily enter the foodchain.
Marine biologists started finding orange blobs under the translucent shells of crab larvae in May, and have continued to find them “in almost all” of the larvae they collect, all the way from Grand Isle, Louisiana, to Pensacola, Fla. — more than 300 miles of coastline — said Harriet Perry, a biologist with the University of Southern Mississippi’s Gulf Coast Research Laboratory.
From the New York Times
Oil Spill Dispersants Shifting Ecosystem Impacts in Gulf, Scientists Warn
By ELANA SCHOR of Greenwire
Published: July 30, 2010
http://www.nytimes.com/gwire/2010/07/30/30greenwire-oil-spill-dispersants-shifting-ecosystem-impac-95608.html
Excerpt:
A seemingly feel-good story showed up this week on the nation’s front pages and newscasts: The oil that befouled the Gulf of Mexico for 86 days is vanishing from the surface, leaving workers with little to clean.
But scientists warn the oil’s ecological impacts are shifting, not ebbing, thanks to massive volumes of dispersants that have kept the crude beneath the waves.
“This is a management decision, to use dispersants,” College of William and Mary marine science professor Robert Diaz said yesterday. “It doesn’t make the oil go away, it just puts it from one part of the ecosystem to another.”
That dispersed oil now hovers, diluted in the water column, posing a challenge for scientists to track and measure the subsea plumes. Mapping the long-term effects of the nearly 2 million gallons of dispersant used by BP PLC may well be equally difficult, given the array of unanswered questions that surround the products’ rapid breakdown of oil droplets and their chronic toxicity.
Trader B everyone is entitled to make mistakes. Dr Keesler is no exception. The question is how many does one make. In Dr. Keesler example there have been few.
You rock Doc!!!!!
Slartibartfast wrote on May 3, 2010 at 2:38 pm
“How soon would you be willing to eat shrimp from the Gulf? Seeping spread out over undersea structures throughout the world is entirely different from 5K+ barrels of oil being spewed out of one wellhead every day. This is not a little thing that will be cleaned up and all better in a couple of years. I’m guessing that we probably wont know what the full impact of this spill is for a couple of years and the effects will last decades at a minimum.”
Slartibartfast wrote on July 29, 2010 at 5:15 am
“My PhD is in mathematics from Duke University and I don’t expect anyone to be impressed, just to understand that when I talk about math and science I’m speaking as a professional, not a layperson. And around here you’re not a PhD, you’re just a troll with no credibility – unless you’d care to tell us your name so that we can check it out for ourselves…”
I predicted on several sites that microbes would consume the oil very quickly. I was too conservative. I predicted there would be no signs (except harmless tar at the bottom of the ocean) within 1-2 years.
You do not know how much fun I am going to have with my Dukie relatives.
Ms.Kay you left out wannabee.
The only REAL lawyer, who actually has a practice,who has commented in this thread, that I am aware of, is the highly esteemed Mr. Mike Appleton.
Everyone else is just cream in da puddin.
I know, I know, you thought when you came to this blog thats what you would find, it’s not.
seems like a bunch of lawyers who don’t want to discuss PRO SE rights
Blouise,
So long as your counterpart is not the jealous type….
and I too am going out for dinner….
Sorry, sports fans, but Buddha is about to head for a different venue for the evening. It involves a young lady, some suckers and their money featuring a pool table.
Hasta mañana!
Thank you sir may I have another.
AY,
When it’s over, we’ll meet for a slobber ….
Blousie,
have a stiff 2 finger one for me. Make it a good dewars or crown black….both smooth….
FUCK YOU ASSWIPE
AY,
That’s okay … I’m happily sipping bourbon in the ladies room … there’s a very comfortable settee here ……….
AWWWW AY did your wittle feelins get hurt.
this will be a worse bitch fight
Be a man AY maybe thats what your problem is.
Blouise,
I enter very few fights. I will promise that this will be a worse bitch fight that you have ever seen with bdapestmf. He screwed with the wrong one this morning.
Buddha,
You’re a big boy … I have found that men can involve themselves in the most vicious contests, throw punches and words and when it is over, shake hands and go out for a beer … it always amazes me as women fight to the death … forever … at any rate, I try to stay out of the way when men are in the middle of a battle … so I’m going back into the ladies room and powder my nose.
Oh …May I have a few dollars to tip the attendant? (that was sarcasm aimed at we women)
Sorry Bdaman, You Motherfucker I am not. You pissed me off launching an unprovoked unnecessary personal attack and I will attack your ass anytime I see it, do you understand?