Former USDA employee Shirley Sherrod has sued blogger Andrew Breitbart over the use of an edited video that made her falsely appear to be a racist. The case could prove quite burdensome for Breitbart, but will present Sherrod with some challenges as well.

Sherrod 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 insisted that he did not edit it.

The video itself is certainly misleading as edited.

Notably, also sued is “John Doe of Georgia” who the attorneys no doubt hope to identify through discovery:

Defendant JOHN DOE, on information and belief, is a resident and citizen of Georgia. According to a statement made by Defendant Breitbart in a televised interview, Defendant Breitbart received the video of Mrs. Sherrod’s speech from “an individual in Georgia” in “early April” of 2010 whose identity he refused to reveal.
http://www.foxnews.com/story/0,2933,597324,00.html. In a separate radio interview, Defendant Breitbart stated that the video of Mrs. Sherrod’s speech came from “a guy down in Georgia.” http://www.youtube.com/watch?v=hYqr8yPMIA0.

Also sued is Larry O’Connor:

Defendant Larry O’Connor is a resident and citizen of California. Defendant O’Connor is a featured blogger at the BigHollywood.com, BigGovernment.com and BigJournalism.com websites operated by Defendant Breitbart. Defendant O’Connor also hosts “The Stage Right Show,” an internet talk radio program that is available to listeners across the country, including listeners in the District of Columbia, via the internet every weeknight. Defendant O’Connor also appears at speaking events, conferences and conventions, including those held in the District of Columbia. Shortly before Defendant Breitbart published his defamatory blog post attacking Mrs. Sherrod, Defendant O’Connor posted the edited video clip of Mrs. Sherrod’s speech to YouTube.com under the pseudonym “StageRightShow.”

The complaint below demands punitive damages and has three counts alleging defamation, false light, and intentional infliction of emotional distress.

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.

The complaint insists that she was “forced to resign from her position at the USDA, which had paid her approximately $113,000 a year.”

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.

The defamation claim will require her to overcome the status of a public official and public figure, both of which are subject to the higher standard of proof under the actual malice standard (as articulated in New York Times v. Sullivan. The complaint spends a great deal of space making out malice:

Defendant O’Connor knowingly and intentionally and/or recklessly or negligently posted the edited version of Mrs. Sherrod’s speech to YouTube in order to give the impression that Mrs. Sherrod exercised her job duties in a racist manner;
i. Defendant Breitbart knowingly and intentionally and/or recklessly or negligently posted the edited version of Mrs. Sherrod’s speech to his blog in order to give the impression that Mrs. Sherrod exercised her job duties in a racist manner;
j. Defendant Breitbart added additional commentary describing Mrs. Sherrod’s speech in which he falsely stated that Mrs. Sherrod’s “federal duties are managed
through the prism of race and class distinctions,” and in which he falsely accuses her of “describ[ing] how she racially discriminates against a white farmer” and telling a “racist tale;”
k. Defendant Breitbart acted with actual malice authoring his blog post — that is, he acted with actual knowledge of the falsity of the speech or reckless disregard of it;
l. Defendants intentionally and/or recklessly ascribed to Mrs. Sherrod conduct and characteristics that would adversely affect her fitness for her profession;
m. Defendant Breitbart acted with actual malice in posting a Twitter message encouraging Attorney General Holder to “hold accountable” “fed appointee” Mrs. Sherrod for “admitting practicing racial discrimination;”

The false light claim has obvious promise given the editing.

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.
Sherrod is quoted in the media as saying that “I’m not employed and no one’s offered me a job anywhere, so I don’t know where to look at this point. I’m just trying to survive.” She may argue that the incident made her unemployable but the offers from the Obama Administration could make that a difficult claim to make. In her complaint, she reportedly claims “enduring damage to her reputation, as well as emotional distress and financial damages from her loss of employment at USDA.”

For his part, Breitbart insists thta he is “confident of being fully vindicated.” Well, given the false image left by the video, he might have to live with partial vindication at best.

Kirkland and Ellis filed the suit in Superior Court in the District of Columbia.

Here is a copy of the complaint: 20110211-Sherrod-Complaint-File-Stamp

Source: LA Times

Jonathan Turley