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. The key point in the Newsweek article is that his video contained the redemption, but, in hindsight, he wishes he could have included more. I know many people who viewed it, as opposed to the networks’, and missed the redemption.

  3. Based on this from the Citizen’s Media Law Center, it appears that Sherrod would be classified as public figure and would have to prove actual malice, even if she were accused of a crime:

    “The “public officials” category includes politicians and high-ranking governmental figures, but also extends to government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of government affairs. Courts have interpreted these criteria broadly, extending the public figure classification to civil servants far down the government hierarchy. For example, the supervisor of a county recreational ski center was held to be a “public official” for purposes of defamation law. See Rosenblatt v. Baer, 383 U.S. 75 (1966). Some courts have even extended the protection to all individuals engaged in matters of public health, such as hospital staff, given the importance of health issues for the general public. See Hall v. Piedmont Publishing Co., 46 N.C. App. 760, 763 (1980).

    “In general, if an individual is classified as a public official, defamatory statements relating to any aspects of their lives must meet the actual malice standard of fault for there to be liability. Moreover, even after passage of time or leaving office, public officials must still meet the actual malice standard because the public has a continued interest in the misdeeds of its leaders.”

    http://www.citmedialaw.org/legal-guide/proving-fault-actual-malice-and-negligence#publicFigure

  4. I am headed out with my friends to a vegan raw food restaurant. I don’t think there will be too many republicans there even in Dallas.

  8. Buddha Is Laughing,

    Pull together a file complete with you thoughts and feelings about that day and the years that followed. Put it in your Will. Who knows where it will surface down the road of time but “revisionists” will always be with us and it is our duty to keep the historians honest! (Think of all we’ve learned from the Jefferson/Adams letters and all we missed out on thanks to Martha destroying so much of George’s correspondence)

  9. Smom,

    That’s funny in the way only a bad joke can be funny.

  11. Blouise,

    I’m with you in re the Saudi flights provided by the Bush Crime Cartel. Like I’ve said before, the U.S. Constitution, Art. 3, Sec. 3 says “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

    Helping suspects and possible perpetrators of an attack against the country most certainly counts as giving them aid and comfort.

    George Bush and Dick Cheney are traitors. Period.

  12. Bdaman, your last comment is inaccurate. A law degree is useful because it provides career flexibility that a medical degree does not. (Of course, a law degree does not provide the same income potential as a medical degree.) There are many lawyers who do not practice law for a living. I had classmates in law school who had no intention of practicing law. And there are hundreds, if not thousands, of lawyers leaving the practice of law each year for a variety of reasons.

  13. Smom and Anurse,

    The thing that most disgusts me about that day (besides the needless deaths and property destruction) is not Bush’s “deer in the headlights” freeze in the classroom, nor his long, cowardly flight aboard Air Force One … what most disgusts me is his facilitating the flights that carried all his family’s Saudi friends out of the country that day. All other planes were grounded but the, oh so special, Saudi nationals were allowed to leave … unvetted and unheeded. Who knows what culprits joined the group.

    Probably not in my lifetime, but certainly sometime within the next few decades, that entire story will be known and written up in the history books with all the appropriate analysis.

    My grandchildren will know the whole story of that day and the years of bad decisions that followed. Sadly, by not pushing to prosecute torture, Obama will find himself tied to that despicable crew.

    I prepared a written memory line of that day and the weeks that followed complete with my thoughts and feelings and those of my friends and neighbors so that my grandchild and great grandkids will have their own “source” of material. It is a file complete with print outs from newspapers and flash drives with videos.

  14. Kay S: I noted your comment about discussing pro se litigation rights. You should understand a couple of things. First, there are no special considerations afforded to pro se litigants outside of small claims courts, where rules of evidence are flexible and judges assist the parties in presenting their claims and defenses. A person bringing an action pro se is expected to comply with the applicable rules of procedure, including the fundamental requirement that the pleadings state a cause of action recognized in the jurisdiction. They are required to strictly comply with the rules of evidence. And they are expected to find and submit the law governing their claims. In my experience that is a virtually impossible task for most lay persons.

    Second, it is unlikely that you will find any attorney prepared to do an online review of your case with you. That’s called practicing law and that’s not the purpose of this blog as far as I know. Furthermore, it would not be possible, even if one were so inclined, to provide competent insight into your situation based upon your web site and your posts. If you wish feedback from a lawyer about your case, you should arrange to contact one. That person will likely wish to meet with you personally and review the entire record and the factual history. That person will also likely charge you a fee for the service.

    I hope this doesn’t sound harsh, but you should no more expect legal advice over the internet than you would expect an online medical diagnosis.

  15. bdaman,

    What I choose to do and why is none of your business.

    Know what I mean?

  16. Well, I’ll let it slide this time, but according to the jolly fat man he’s been working on computers for thirty years.

    Something is a miss, a doctor doesn’t acquire a license to practice and not use it. I would think that a law degree would be the same, of course that is if that particular person lacks dedication and focus or the other alternative in which they were given no choice in the matter, be it a lawyer or a doctor that is.

    Know what I mean

  18. I asked my husband who is a member of the bar that question. There are many that have law degrees that do not practice. That does not mean they are not knowledgeable about the law.

  19. Elaine:

    I suggest you buy a copy of the AP Stylebook (cheap at Amazon) and read the chapter on media law. Compare what they say to what people write here. For example:

    Greg wrote on July 29, 2010 at 5:52 pm
    “… Ms. Sherrod never admits that “in her federally appointed position…she discriminates against people due to their race.” That is false. And, since it accuses her of a crime, it is libel per se in most jurisdictions (meaning she can recover without proving specific damages).”

    Mike Appleton wrote on July 29, 2010 at 6:07 pm
    “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.”

    Buddha Is Laughing wrote on July 29, 2010 at 6:10 pm
    “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.”

    Elaine M. wrote on July 29, 2010 at 6:18 pm
    “Greg–
    Excellent point! It pays to be observant.”

  20. Elaine,

    You are welcome … the weather here, yesterday, was gorgeous and I specifically pushed it east to you

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