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. I’m a lawyer who is simply not interested in your personal problem that you bring to every single thread you post on.

    According to Swathmore Mom you have to be listed with the bar and be in good standing, your not, next.

  2. Blouise–

    You mean you’re not interested in right-wing propaganda?

    The weather where I live is beautiful today. I’ll be outside doing yard work and reading “The Omnivore’s Dilemma.” I think I may become a vegetarian when I finish the book.

  4. Elaine,

    I’m going to ignore them today … completely … no reading … no responding … too many new things to talk about.

  5. “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. …” (Zinn)

    Zinn’s points are legitimate for only a bureau so wrapped up in the types of concerns Zinn mentions could have missed the dangerous presence of 19 foreign terrorists on our soil for months and months thus leaving the citizenry vulnerable to the attacks on 9/11. Had the FBI been on the job from the top down …

  7. Kay,

    No. Speaking for myself, I’m a lawyer who is simply not interested in your personal problem that you bring to every single thread you post on. You have your own blog, which you’ve informed everyone of many times. This isn’t the “Pro Se Property Litigation Blog”.

    badtroll and TraitorB,

    Yeah. There are some wannabes here alright. Propagandist trolls who wannabe taken seriously and manage to fail massively at it.

  8. Trader B

    The problem is that the info is readily available on the internet. All a person need do is search with IXTOC 1. I educated myself on the topic before I posted. There are a number of scientific papers online.

    I’m in total agreement, too many depend solely on google who happens to be this administrations number one engine.

    Swathmore Mom

    The only person in this thread who I am aware of who is in good standing with the bar is the highly esteemed Mike Appleton.
    That better.

    P.S. last week I made mention of the liberal media and either you or Mrs. Elaine said what liberal media, something to that effect.

    Question: Have you heard about the JournoList.

  10. What we have now is the TIPS program on steroids. Red Squads are back and, in full force, in my opinion. And it’s possible that they’re working with the FBI, given what I’m seeing. Some of the methods that were used in the old Soviet Union are being used to marginalize and discredit those who are out of step with the status quo (and also happen to be vulnerable). It’s an outrage, but few are paying attention, it would seem.

  12. Swarthmore mom:

    Sadly, it’s a reflection of our educational system (and the media), that many Americans have been kept in the dark about the FBI’s abuses over the years. I’m guessing that you’ll agree that it wasn’t all right then and it isn’t okay now. And, from my perspective, following the reign of Bush and his gang, things are as bad as they’ve ever been, if not worse.

    (And some, it would seem, don’t want to know the truth. Many are content to go blindly about their business with little concern for what doesn’t directly impact them. Andrew Napolitano’s book “A Nation of Sheep” would apply here.)

  13. “Not all of us who comment regularly at the Turley Blawg are lawyers–but there are several REAL lawyers who do.”

    Really? I have not found the discussion of Sherrod’s case to be very insightful here, much better on WaPo and NYT. Professor Turley’s article is very good though, although he does not seem to know that the redemption is in the Breitbart tape.

    Most of the people who know somthing about defamation at WaPo and NYT did not think she had a case. Many thought that it might even be dangerous for her to sue. The only ones who think she should sue are the ones who think she has to prove malicious intent to prove defamation.

    The main reason I would like to see a suit is to clear Breitbart and to find out who in the White House told Cheryl Cook to fire her.

  15. Elaine M

    I am sure they can find spots where there is a lot of oil. I am sure there is still oil in the estuaries, but it is concentrated. It will largely have to be cleaned up manually. The microbes consume a lot of oxygen, so a concentrated mass will rapidly deplete available oxygen in the water, so it takes a long time to consume it. That is why they use dispersants. I gave 1-2 years for complete clean-up, but it is likely to occur faster.

    The biggest mistake was political. The Government used many of the scarce booms to protect the beaches for political reasons. They are the most conspicuous, but easy to clean. They should have used them all to protect the estuaries, which are very difficult to clean.

    About a million barrels year seep naturally into the gulf yearly. Tar balls washing up on the shore are a natural occurrence.

  16. anon nurse J Edgar Hoover kept tabs on many people as you know. I don’t understand why some think domestic spying is something new.

  18. bdaman One just has to be a member of the bar in good standing to be a real lawyer.

  19. Bdaman;

    The problem is that the info is readily available on the internet. All a person need do is search with IXTOC 1. I educated myself on the topic before I posted. There are a number of scientific papers online.

  20. kay–

    Not all of us who comment regularly at the Turley Blawg are lawyers–but there are several REAL lawyers who do. Trolls also comment here.

Comments are closed.