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Jul. 30 2010 - 6:34 pm | 739 views | 0 recommendations | 35 comments

Shirley Sherrod’s missing that leg she needs to stand on

I’m not exactly surprised that Shirley Sherrod is planning to sue conservative blogger, Andrew Breitbart, but I do find the whole affair troubling. Liberals and enemies of Breitbart are excited by the news, but I think they fail to grasp its implications.

First off, should bloggers face lawsuits for posting misleading information about political figures or anyone else for that matter?

In Britain, libel laws are so lax that bloggers and others in the media are effectively censored by the threat posed by potential lawsuits. Often just the threat of a lawsuit is enough to shut down a potentially controversial report. Whether or not Breitbart was right or wrong to post the video, should he face civil penalties for doing so? What repercussions might this have on the blogosphere and the American media writ large? What does this say about the state of free speech in America?

Second, Sherrod is very unlikely to win her suit in the first place. As a public figure making public remarks, suing for defamation becomes extremely difficult and with good reason. As Ed Morrissey notes:

Sherrod is a public official, which makes that kind of lawsuit darned near impossible.  Breitbart used the clip to criticize the NAACP, not Sherrod directly, although she certainly came into the line of fire.  People are allowed to criticize public officials in harsh and even unfair terms, especially when they make public remarks.

A court is not likely to look favorably on this for another reason — Sherrod’s public statements about Breitbart. She accused him of being pro-slavery, which is a ridiculous and demagogic attack.  Even if a court somehow found that Breitbart acted with malice specifically towards Sherrod to a level that overcomes the right to criticize public officials and that he lied about Sherrod specifically in doing so, under those same terms Breitbart would have a countercase against Sherrod.  Otherwise, Breitbart has become enough of a public figure that Sherrod’s statements about him would probably not be actionable, either.

Which leaves us with a whole lot of sound and fury. Breitbart will come out of the mess with more publicity and a stronger brand. Sherrod will have her extended fifteen minutes of fame. And the Obama administration will try to quietly navigate the sidelines, hoping desperately that the focus stays on Breitbart and not on the fact that it was the USDA that actually forced Sherrod out.

In the end, I doubt this will add up to anything more than some extra filler for the chattering class’s slow summer.


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  1. collapse expand

    Erik:

    First off, should bloggers face lawsuits for posting …

    Yeah. Why not? If the court finds that some tort occurred, why should the medium matter?

    Second, Sherrod is very unlikely to win her suit in the first place.

    So what? It’s her dime, and, um, she probably has some further motive that doesn’t require winning, like, the opposite of this:

    Breitbart will come out of the mess with more publicity and a stronger brand.

    She thinks the suit will hurt Breitbart, you think it will help him. We just have to see.

  2. collapse expand

    Hey didn’t she lose her dad to Murder!!!!

  3. collapse expand

    Mr. Kain,

    Mr. Morrisey said:”Sherrod is a public official, which makes that kind of lawsuit darned near impossible. Breitbart used the clip to criticize the NAACP, not Sherrod directly, although she certainly came into the line of fire.”

    The question here is did Mr. Breitbart defame Ms. Sherrod. That he sought to discredit the NAACP by first defaming Ms. Sherrod is entirely irrelevant.

    A private citizen who is defamed, whether that defamation was spoken (“slander”) or written (“libel”), only needs to prove in court two things;

    1) that the false and/or derogatory statements were made about her

    2) That she suffered harm to his reputation as a result, which losing her job would certainly qualify.

    As a private citizen, it is very clear that she has a very strong case.

    If the defamed individual were not a “private citizen” but rather a “public figure” then there is a third detail which must be proven, “actual malice”. This is indeed a very high threshold as actual malice is “reckless disregard of whether it was false or not.” All that the defendant has to show is “absence of malice” to prevail.

    This standard was set in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), in which the New York Times was accused of making false claims against a public figure, L. B. Sullivan, the Montgomery Alabama city commissioner. This case is very apropos of this as the case arose out of the civil rights movement.

    Ralph Abernathy took out a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King’s efforts to integrate public facilities and encourage blacks to vote. Mr. Sullivan, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad. Under Alabama law, Sullivan did not have to prove that he had been harmed; and a defense claiming that the ad was truthful was unavailable since the ad contained factual errors. Sullivan won a $500,000 judgment.

    SCOTUS held unanimously that first amendment protects even false statements but not malicious statements (i.e. those make with “actual malice”).

    Since the statements Mr. Breitbart are obviously false and defamatory, Ms. Sherrod’s case is very strong.

    The only question is whether Mr. Breitbart can claim that Ms. Sherrod is a “public figure” and not a private citizen thus availing himself of the “absence of malice” defense. Mr. Morrissey had conflated “public official” with “public figure”. They are not the same.

    So Ms. Sherrod has a very good chance of winning.

    • collapse expand

      yes
      Publish lies that harm someone is about it
      If someone can’t even bother to read up on this then they have no business even talking about it.
      Is this writer disingenuous or this ignorant?

      In response to another comment. See in context »
    • collapse expand

      Respectfully, I disagree. It is indeed a high legal threshold.

      First, a correction. The case you cited deals squarely with public officials. In the decision, SCOTUS frames the issue as follows:

      “We are required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a PUBLIC OFFICIAL (emphasis added) against critics of his official conduct.”

      Based on the above, I think the only issue would be whether a speech at an NAACP function is considered “official conduct”? Clearly such a speech is not part of her job description, so you might distinguish this situation from the facts in NY Times v. Sullivan.

      However, I would argue that it is “official conduct”. I believe that she was identified as a public official and was invited to speak because of such a distinction. This wasn’t John Q. Public on a soapbox. She wasn’t acting as a private citizen.

      So there’s one possible issue.

      Here’s another – later in the decision, SCOTUS holds:

      “The constitutional guarantees require, we think, a federal rule that prohibits a PUBLIC OFFICIAL (emphasis added) from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

      If anything, the “reckless disregard” argument might be a battleground. Did Breitbart, in publishing this story apparently without due investigation and research, act with such reckless disregard? It even might open up a bigger question as to whether every national news agency also acted with “reckless disregard” in running with blindly trusting Breitbart’s post and then asking questions later. One could argue that it is indeed reckless behavior.

      I would argue that Breitbart was probably stupid, or even negligent reporting that comes from the zeal to “break” news. But reckless? That’s a tough legal standard to meet.

      Ultimately, it’s a steep climb to reach a win in this case, but then again, it depends on, as the author points out, if legal victory is the ultimate goal.

      In response to another comment. See in context »
      • collapse expand

        use a dictionary much? Public officials hold public office or Gov’t paid job and are authorized to use power for themselves or under a higher authority. This describes Sherrod’s role to the letter.

        If it was “reckless disregard,” the video would NOT have been edited. It was edited with a specific intent. The fact that Breitbart runs political blogs only strengthens her case.

        If he’d had been some random guy posting on YouTube, the case would be more of a challenge on Sherrod’s part.

        Reckless disregard would apply to any news organization that chose to run the story without checking facts beforehand.

        The question lies in the intent of Breitbart actually editing the video in the first place, then posting it on his political blog.

        His edited Acorn videos show he has a history of this same behavior, purposely editing a video to misrepresent a person or organization, strengthening Sherrod’s case.

        There are many factors, including Sherrod losing her job, that just stack up in her favor.

        I think she would have a stronger case against the USDA, but Sherrod is definitely victim of slander.

        This could have been avoided if Breitbart just posted the entire video at full length to begin with.

        In response to another comment. See in context »
        • collapse expand

          Bulletproofair: Please re-read. If you notice, I was noting my disagreement with the distinction davidlosangeles was drawing between “public official”, which the case he cited deals with, and “public figure”. I agree with you that there’s no issue that Ms. Sherrod was indeed a public official.

          Perhaps you know more than I do, but Beritbart claims he never edited it, just posted it and wrote based on the edited portion he received from a source.

          http://tpmmuckraker.talkingpointsmemo.com/2010/07/breitbart_i_did_not_edit_this_thing.php

          Obviously, the veracity of the statement must be tested.

          Absent proof that he edited the video, there are others ways to prove actual malice. The Court held in Garrison v. Louisiana (1964) that the proof of actual malice requires establishing that the statements in question were made with a “high degree of awareness of their probable falsity.” Another factor can be dependence on an unreliable source and failure to check factual assertions in the face of substantial reasons to doubt their accuracy.

          Actual malice can also be proven through showing minimal deadline pressures, inconsistencies within a story, a failure to check important sources, evidence that journalists knew information contrary to what was published, a desire to increase circulation, and political motivations.

          Also, the evidentiary standard is “clear and convincing evidence”, which is also a heightened standard.

          Can the argument be made? Sure. Is there a winning argument? Possibly – someone with greater factual knowledge would have to answer that. But from what I see in the public record, I think that the evidence is there to show that he was stupid and negligent. But actual malice is really tough.

          In response to another comment. See in context »
  4. collapse expand

    This is NOT a subject of “free speech” this is more like the subject of assault. He intended his actions to harm her, and they did, just as if he had drawn back his fist and bashed her in the face. …and it was all a lie…

  5. collapse expand

    Well, for starters, you don’t even know that she’d sue for defamation. Ms. Sherrod could sue for a multitude of reasons, including loss of income.

    The British laws are reasonable; they are meant to insure that people look before they leap. What Mr. Breitbart did was irresponsible. A mere apology will not do. Britain and Germany have curtailed free speech. Their citizens are none the poorer for it. They take hate speech seriously, while we give the likes of David Duke and Iran’s Mr. Achmadinejad platforms and high profiles.

    TMZ doesn’t run with every lead–they do a better job vetting a story than Mr. Breitbart does. Of course Shirley Sherrod should sue! She and her reputation were harmed, and I doubt she’d have trouble proving that it was done with a malicious intent.

  6. collapse expand

    Mr. Kain,

    I’ve sung this song, but I’ll sing it again,
    Of the place that I lived on the wild windy plains,
    In the month called April, county called Gray,
    And here’s what all of the people there say:

    So long, it’s been good to know yuh;
    So long, it’s been good to know yuh;
    So long, it’s been good to know yuh.
    This dusty old dust is a-gettin’ my home,
    And I got to be driftin’ along.

    A dust storm hit, an’ it hit like thunder;
    It dusted us over, an’ it covered us under;
    Blocked out the traffic an’ blocked out the sun,
    Straight for home all the people did run,
    Singin’:

    So long, it’s been good to know yuh;
    So long, it’s been good to know yuh;
    So long, it’s been good to know yuh.
    This dusty old dust is a-gettin’ my home,
    And I got to be driftin’ along.

    We talked of the end of the world, and then
    We’d sing a song an’ then sing it again.
    We’d sit for an hour an’ not say a word,
    And then these words would be heard:

    So long, it’s been good to know yuh;
    So long, it’s been good to know yuh;
    So long, it’s been good to know yuh.
    This dusty old dust is a-gettin’ my home,
    And I got to be driftin’ along.

    Sweethearts sat in the dark and sparked,
    They hugged and kissed in that dusty old dark.
    They sighed and cried, hugged and kissed,
    Instead of marriage, they talked like this:
    “Honey…”

    So long, it’s been good to know yuh;
    So long, it’s been good to know yuh;
    So long, it’s been good to know yuh.
    This dusty old dust is a-gettin’ my home,
    And I got to be driftin’ along.

    Now, the telephone rang, an’ it jumped off the wall,
    That was the preacher, a-makin’ his call.
    He said, “Kind friend, this may the end;
    An’ you got your last chance of salvation of sin!”

    The churches was jammed, and the churches was packed,
    An’ that dusty old dust storm blowed so black.
    Preacher could not read a word of his text,
    An’ he folded his specs, an’ he took up collection,
    Said:

    So long, it’s been good to know yuh;
    So long, it’s been good to know yuh;
    So long, it’s been good to know yuh.
    This dusty old dust is a-gettin’ my home,
    And I got to be driftin’ along.

  7. collapse expand

    You lost me with “Sherrod will have her extended fifteen minutes of fame…” she did not seek out “fame” – that is beyond cynical, and points to a possible flaw in your character to even suggest such a thing. You’re not worried you could post something that you didn’t research properly and have to deal with consequences too, are you?
    I’m sick and tired of a-holes like Breitbart being allowed to say any rubbish they want about anyone,(and he continues to do so) and hide behind the 1st Amendment.

  8. collapse expand

    You said “In Britain, libel laws are so lax that bloggers and others in the media are effectively censored by the threat posed by potential lawsuits.”….pardon the correction, but the word “lax” means “lacking in rigor or strictness”, so, in context, this word is not suggestive of a strict climate for bloggers…if fact it seems quite the opposite—perhaps you meant “stringent” or “harsh”?

  9. collapse expand

    Even under the strictest of standards set by Sullivan, I think Sherrod can show actual malice in her defamation claim. Breitbart had a copy of the entire interview and edited it for his web site. Thus, he meant to publish a falsehood.

    The standard set for public official and public figure are, for all practical purposes, the same, but as an official at the Ag. Dept., Sherrod is certainly a public official.

    The key question is malice and the malice is present.

  10. collapse expand

    “What does this say about the state of free speech in America?”

    If Sherrod wins, it says that the right of free speech (particularly widely-disseminated free speech) also carries with it a responsibility to be reasonably careful about the accuracy of what you disseminate. In Sherrod’s case, the video was clearly doctored, and what was posted was posted with no regard for context.

    That, in itself calls into question the validity of Douchebag’s* er, I mean Breitbart’s contention that the NAACP is crawling with vicious racists who laugh and clap at the thought of Sherrod sticking it to Whitey. What if the response that greeted the first part of Sherrod’s story was an ironic chuckle of recognition and self-reproach?

    Add to this the fact that Breitbart’s edited “expose” of ACORN turns out to be riddled with inaccuracies and distortions and well, gee, I think the First Amendment would survive the demise of Breitbart, not to mention most of what passes for “press” these days.

    *According to countless sources who preferred not be named, Breitbart is reportedly a regular imbiber of both vinegar and water, as well Summer’s Eve powder…

  11. collapse expand

    The previous poster nailed it right on.

    I just want to add that Breitbart has shown intent to slander before with the entire Acorn fiasco and his editing of that video to portray falsehoods, resulting in the dismantling of the organization.

    Basically, he has a history of this type of behavior.

    If he had no intent, the video simply would have been shown in it’s entirety.

  12. collapse expand

    After watching the Shirley Sherrod fiasco last week, pundits and analysts have been talking about teachable moments. After almost everyone involved in this mess actually got around to watching the tape and listening to the full context of Sherrod’s story about race, it seems that people are still missing the point.
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  13. collapse expand

    http://www.youtube.com/watch?v=G2y8Sx4B2Sk

    Their lax libel laws effective censor all the wittle bloggers, huh? I hope you don’t get paid for this shit.

  14. collapse expand

    I do have a problem with anyone who will sue (God!! more lawyers in our lives)just because someone calls them names or says something they dislike. If that were the case, lawyers would continue to rule our society even more.

    Grow up & accept the fact that not everyone is going to like you.

  15. collapse expand

    So, Ms. Sherrod shouldn’t sue the man who destroyed her career and ruined her reputation because of a likely conservative backlash against progressives. That’s like saying you shouldn’t stop The Klan from night-riding because it will only make them mad. Dude, you’re a racist and a shill for all the other racists and fascists parading around under the guise of “Freedom”. Talk about a pig with lipstick!

  16. collapse expand

    How is public official, & public figure different?

  17. collapse expand

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  21. collapse expand

    Mr. Breitbart is intelligent enough to know Sherrod’s case has no merit, and that she is likely being pushed to harass him with a lawsuit as leftwing payback for the usccess he’s had in exposing them.

  22. collapse expand

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