Shirley Sherrod has said that she is considering legal action against Andrew Breitbart. While personally I would love to see her take the bastard for everything he’s worth, some questions for those better acquainted with the law than I am (or those who aren’t but wish to chime in anyway):
Does she have to prove malicious intent on his part or is negligence enough?
Does the fact he had no control over the USDA jumping the gun and firing her weigh against her case? Or the fact she was offered another position (presumably at same or greater salary) a day later mean she cannot claim loss of earnings?
Can a video be libellous if it is, technically, real? In other words, while the video was undeniably shown out of context she really did say what she says in the tape- it wasn’t a case of her voice being digitally manipulated, just divorced from her purpose and intent.
In short, does she have a case and what are her chances of winning a libel/defamation/whatever suit against him?
I’ve studied my fair share of libel cases over the years. Criticism of a government official (even a low- to mid-level bureaucrat like Sherrod) is something both the “original intent” and “expansive interpretation” factions of the legal game both agree on – it’s pretty much the reason there’s a First Amendment. And to compound the issue, Sherrod wasn’t just a government official, she was speaking in public about a public issue. So Sherrod is going to have to present an overwhelming case that Breitbart acted with actual malice.
The standards for proving malice vary from state to state, but in every case, they’re damned high. I don’t think Breitbart showing an out-of-context snip from a speech is enough by itself to prove malice. And remember, *the Breitbart video wasn’t technically about her, it was about the NAACP. *Breitbart could make a case that anything that happened to Sherrod wasn’t directly a result of his efforts.
The stadards for slander (in those states that make a distinction) and defamation, however, are different than for libel. And Sherrod has an advantage in showing that the video actually did result in damages (she was fired, even if only for a day or two.)
MY WAG is that Sherrod won’t be able to make a libel or slander charge stick. She might have a shot at showing that Breitbart defamed her, but I have my doubts that it would hold up on appeal.
To which I add Breitbart is a douche worthy of King Kong’s mother and I really that whether Sherrod wins or not that at least the attorney’s fees make him squeal like a little piggy boy.
Not my area of law, but I think Sherrod has a huge burden to make here. As long as the video was not altered, but merely cut, I almost think as a matter of law she cannot recover.
Notice the classy comment about “looks forward to exercising his full and broad discovery rights”, IOW: "now I’m gonna use the Court to really try and dig up real dirt on you, the Ag Department, the NAACP, Obama, etc. "
It depends on the jurisdiction. Defamation law varies. In addition to making stuff up, there are torts for presenting something true in a false light and using truth to suggest something that isn’t true. If this were in California, Breitbart would be in serious trouble. Editing something to make it say the opposite of what it was intended to say gets past all those pesky reckless disregard and knowledge of falsity problems that commenting on public figures have to get past.
Even the edited video had her remarks at the end about realizing the issue being poverty, not race. So she has no actual basis for her action. By trying to continue to appear as a martyr, she has HANDED him the keys to the door. Obviously her ego has led her into an arrogant AND stupid action. She gets NO sympathy from me.
Classy? In reality, certainly. Obama trumpeted transparency. You’re not afraid of that, are you? And Breitbart really means he’s going to expose the corruption in the Pigford funding cases. You’re not afraid of exposing corruption, are you?
Finally, if you exchange the races in her incident, the white official would have been fired and NOT rehired, and utterly vilified in the legacy media, regardless of context. Would that be classy? Why has she been treated much more sympathetically? (Both rhetorical questions. Everybody knows the answers.)
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Finally, if you exchange the races in her incident, the white official would have been fired and NOT rehired, and utterly vilified in the legacy media, regardless of context. Would that be classy?
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I don’t think it would have happened. A white person, whose father had been murdered by a black man who got away scot free, admitting s/he used to be racist but who then had an epiphany and realized racial divides are an artificial construct and who has black people vouching that s/he went out of the way to help them? They’d probably be more lauded than Shirley Sherrod.
What he is referring to is her participation in the Pigford case. His website has been pushing the story that 50,000 people will receive money for being discriminated against even though there were only 19,000 black farmers in the country. He has a specific agenda and this suit and the attendant publicity will probably help him in that agenda.
Breitbart need only show that a public official stated a professed racial bias in her duties. The fact that she goes on to state she did the right thing does not absolve her from previous interaction with the public and puts her in the spotlight of public review for every action she has ever taken. This presumably is the reason why she was removed from the job and it was not offered back.
Suppose the text stuff added to the beginning of the video (and part of the Breitbart ‘article’) matters?
Besides being factually inaccurate (her story didn’t occur while she was in her federal position), it also gives a misleading impression of what her story is about.
Here’s the full complaint (42 pages, pdf). It goes into a bit of detail about what defamatory statements they are alleging that Breitbart made. The text Jophiel mentions is brought up, along with the fact that the video still contains that text, and is still posted on Breitbart’s site, and he has never retracted the claims (only writing a “correction” stating that the events in question took place before she was in her Ag Dept position).
Yes, how dare she get upset that she was villified on the internet based on a deliberately edited and distorted version of something she said.
Who gives a shit? Dealing with the situation that actually happened on planet Earth, she told a story about a learning experience. She was made to look likea bigot by people who wanted to gain political advantage by playing to racists. They lied and she lost her job. That’s a raw deal when it happens to anyone, isn’t it? And in general, I think people are understanding when someone admits they have overcome a bias like that. If Sherrod didn’t feel that way, she wouldn’t have told the story.
That would be hard to prove since it isn’t what she said. I’m not sure it’s his best defense anyway; the first amendment angle seems easier. I think the truth is the last thing he’d want to argue about here. There’s no argument at all that the video accurately reflects what Sherrod was saying, and the text at the beginning was false. That sounds like presenting facts in a false light to me. Whether it meets the legal standard for a lawsuit on those grounds, I have no idea, and I’m sure it won’t be easy.
This is a reminder of the kind partisan insanity does have actual victims.
If it’s real corruption, then I’m all for exposing it. My concern, given the person who’s doing the exposing, is that corruption will be manufactured for political gain.
There’s no question that Thomas Yannucci boxes in the heavyweight class for this type of litigation, but I don’t agree that his filing the suit means he thinks he can win it. It means that he sees value for his client in doing so – forcing a retraction, or giving her more time on the national stage to tell her story, could be goals as well.
But since this isn’t my area of law, I freely admit that I could be totally off base here and Sherrod has the best battle plan since Hector v. Agemmenon.
The ‘rush to judgment’ exhibited by the NAACP (and they had the complete tape in their possession) I find far more egregious than anything else in this mess.
As a snarky friend of mine commented, “I was under the impression they were genetically incapable of committing that particular sin”.