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Legal experts seem to be in agreement that Shirley Sherrod will have a very tough time trying to sue Andrew Breitbart:
Ousted former federal agricultural official Shirley Sherrod made news Thursday by announcing a lawsuit against conservative blogger Andrew Breitbart who, she claims falsely accused her of being racist against white people.
Although it would make for an interesting showdown, media lawyers contacted by the Examiner said that that Sherrod’s case stands little chance of succeeding or even making it to trial.
According to Ron Coleman, intellectual property attorney and blogger and general counsel for Media Bloggers Association, “[Sherrod] is a public figure, and she would certainly have to prove actual malice to prevail,” something that would be much more difficult than proving negligence on the part of Breitbart.
Andrew Mirsky, an intellectual property attorney based in the District, assrets that Sherrod would have two tasks in such a suit: The first? To prove “That she was actually defamed, and I do think she has a plausible argument on that,” and depending on her status as a public figure she would have to prove either negligence or malice.
Coleman, on the other hand, questioned the validity of Sherrod’s defamation claims. “Practically speaking, isn’t she likely to have a far more economically rewarding career now than before?” asked Coleman. Since resigning Sherrod has been offered another position in the USDA.
Regardless of the viability of her case, both are doubtful the case will actually go to court. “The chances of this actually getting to a trial are very, very slim. And her chances of collecting damages are infinitesimal,” Coleman explained. “Considering that [Breitbart] did, at the end of the day, portray her unfairly, she can hardly be blamed for trying.”
Complicating the issue, according to Mirsky, is that Sherrod did say the things in the video Breitbart posted. “This wasn’t the classic Photoshop cut and paste job,” Mirsky said, “it was just badly and unfairly excerpted.” Mirsky cited as a possible, although weak, defense for Breitbart the libel principle of “neutral reporting” under which “a publisher can argue that all they were doing was reporting facts.” Mirsky deemed this defense “weak,” as this privilege also requires that the reporting be fair and balanced.
TerryF98 // Jul 30, 2010 at 9:18 am
She was not a “public figure” until Briebart thrust her into the spotlight with his trickery.
abj // Jul 30, 2010 at 9:50 am
Defamation would be difficult to prove – you’d have to establish that the statements are false, and technically, they aren’t – her statements were just edited to the point where they’re wildly misleading. Also, as the article notes above, establishing intent could be difficult.
She may have a cause of action under a privacy tort like false light – but suits based on those are rarely successful.
Unfortunately, I doubt she could survive a motion to dismiss.
Rabiner // Jul 30, 2010 at 2:29 pm
abj:
“establishing intent could be difficult”
I don’ think intent should be too difficult to prove. Breitbart has on many occasions said what his motivation was and it wasn’t to ‘report the facts’ but rather to ‘prove’ that the NAACP is racist.
Oldskool // Jul 30, 2010 at 3:19 pm
Righto, Breitbart’s words would also seem to matter. How he described the part of the video he released was misleading and he made his intent clear in previous statements. I think she’d have an easy time finding a sympathetic jury and punitive damages could be huge.
busboy33 // Jul 30, 2010 at 3:46 pm
a) Why is the article interviewing IP attorneys?
b) I’m not sure how she was a public figure, since nobody had ever heard of her before the incident. By that logic, nobody is ever defaned since once you get defamed, you become public, and therefore can’t be defamed. Entertaining intellectual exercise . . . but the facts don’t bear that out.
c)the “she’s got no damagesa because she’ll make more money now that she’s been defamed” argument — so if I go around and tell everybody that the nice secretary in my office is really a slutty nymphomaniac, and she gets fired because of my misdeeds, I can claim that she hasn’t actually been damaged because NOW she can make more money in porn or prostitution? What, she should thank me?
These “experts” think Sherrod has a weak case. I respectfully disagree.
Rod Hoffman // Jul 30, 2010 at 4:48 pm
I’m with busboy33 on (much of) his point c). Whatever Coleman’s expertise is, I wouldn’t want him handling my case at trial.
There are two issues in a tort case like this: liability and damages. The fact that Sherrod might not be able to prove damages doesn’t mean that there isn’t a good case on liability.
It is not uncommon for a libel case to end up with a damages verdict of $1. But a plaintiff who gets a liability verdict is vindicated.
pampl // Jul 30, 2010 at 5:04 pm
I don’t see why the general council for Media Bloggers Association shouldn’t be trusted on issues around speech.
I don’t think this should really be a partisan issue- whether Sherrod has a good chance or not is a pretty objective thing, and the specific points of debate here have more to do with judges’ dispositions and nuances of law than of ideological commitments and value systems.
abj // Jul 30, 2010 at 6:20 pm
pampl -
That’s a good point. Defamation law isn’t terribly esoteric, and in any event all he did was outline the general parameters of the law, which he should be qualified to.
Rabiner –
Intent in the legal sense is a bit different. What those statements show is that Brietbart doesn’t like the NAACP; they don’t establish that he intended to defame Sherrod (indeed, if his original story is true – that he didn’t know the video was edited but posted it anyway – Sherrod isn’t entitled to punitive damages, meaning her measure of damages would be nominal. Brietbart may have acted recklessly by posting the video, but that doesn’t establish intent.)
busboy –
Actually, the definition of public figure under NY Times v. Sullivan (the Supreme Court case that coined the phrase “actual malice”), as I recall, is fairly broad (and it’s been a while since I’ve researched defamation so I don’t remember offhand what the specific standard was). In this specific context, she probably would be a public figure, because she’s a federal government appointee giving a semi-public videotaped speech before a nonprofit organization.
I’ve researched defamation, but two caveats are in order. 1) It’s not the bulk of my firm’s practice and 2) I’ve only been in practice for just over a year. That said, however, it’s likely a court would determine that Sherrod is a public figure, and that she cannot establish actual malice, and dismiss the suit.
busboy33 // Jul 30, 2010 at 7:23 pm
@abj:
Interesting, and thx for the info.
Obviously, the lines of case analysis that spring from Sullivan will clarify the issue of “public official”. Just to play Devil’a Advocate, Sullivan doesn’t grant a blanket onus on public officials, but it sets a standard for libel in regards to “expression critical of the official conduct of public officials.”
It seems like the argument could well be made here that if Sherrod was talking about something that happened before her Fed job, then it isn’t related to “official conduct”. Still, she was working with a State agency at the time I think, so it might still pass muster.
Never had a libel case when I practiced (wasn’t my area) so I never looked at the rules any closer than what you cover in class . . . but while I understand the idea behind making public officials more “prone” to smacktalk by virtue of their role in society, it seems like this takes it to “if you work for the Government you might as well be the President.” I mean heck, the guy that collects my trash is a “public official” in that he fulfills a government role as a government employee, but cognitively the same “need to be free to challenge public officials” logic seems misplaced on govt. employees in general.
Still, as you said, precedent dictates.
Even if Sherrod is a public official, that just means the standard bumps up to “actual malice” as you said, and if the Supremes define that as “knowledge that statements are false or, reckless disregard of the truth” I think Breitbart’s prior history of playing fast and loose with the truth and his admitted partisan objectives make that a reachable standard. ESPECIALLY given after the incident when all this started falling down I think he made some comment in an interview that went something like “I could tell the footage had been edited and it seemed odd”, suggesting that he suspected something was up and then acted with “reckless disregard” for the truth. Maybe I just imagined him saying that, but that’s what it sounded like. He was in his “it was all the people that slipped me this tape — I’m a swell egg” phase of denial, and I got the impression he was trying to get some “I really worried about it” points (foolishly, I might add).
Certainly the standard goes way up under Sullivan . . . but I think Breitbart’s history, his inflammatory rhetoric, the overall facts (this was months ago, not a “breaking dispatch”, etc.) and so forth certainly make him vulnerable. Actual Malice may be far more stringent than Negligent . . . but its certainly attainable.
I can hear the closing argument now — “If THIS doesn’t rise to actual malice, What on earth would it take? Is counsel arguing that unless someone expressly states ‘Yes, I fully intend to lie in order to defame you on Tuesday’, in front of witnesses, signed and notarized, that we can’t establish a case? Actual Malice may be an extraordinarily high hurdle to overcome . . . but this is insurmountable. That’s not the standard, nor is it intended to be. I’m not sure if its possible for Mr. Breitbart to have recklessly disregarded the truth any more strongly.”
Given that reckless is still on the “accident” side of the “intentional/non-intentional” range of various levels of intent, I think he’s still staring down the barrel, and that’s BEFORE Discovery. From the little I’ve seen of him, I get the impression he has been a bit loose in his documents and correspondence, such that he’s probably given lots of ammo for her team to use. He doesn’t strike me as someone that guards their words, especially if he thinks he’s in a safe friendly environment (e-mailing friends, etc.).
Rabiner // Jul 30, 2010 at 7:46 pm
abj:
But that’s the beauty of discovery. Will Brietbart be willing to go through with a lawsuit where he has to disclose everything about his company. All private memos, emails, letters, notes, and so forth?
Also the goal may not just be monetary damages but destroying the credibility of Brietbart throughout the Conservative community (we know he has no more credibility elsewhere). In that case, nominal damages aren’t the most important issue at hand.
sinz54 // Jul 30, 2010 at 8:20 pm
rabiner: I don’ think intent should be too difficult to prove.
Intent is not the issue.
Just about every damaging media piece about any public figure is done with intent to “get the bastard.”
But for the lawsuit to be successful, she has to prove that Breitbart knew that what he was publishing was false, and yet published it without regard to whether it was true–”actual malice.”
http://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan
That’s virtually impossible to prove, unless Breitbart takes and flunks a lie detector test (which he won’t because he can’t be forced to incriminate himself). No witnesses have come forward to claim that Breitbart told them that he was going to destroy Sherrod by deliberate lying.
All he has to say is “I thought the video showed her racism,” and he’s off the hook. You can’t win a lawsuit by proving the defendant was incorrect. You have to show that the defendant deliberately lied about you.
In the United States, the bar is raised VERY high against such lawsuits, to protect freedom of the press. The alternative is very dangerous: You could have conservatives suing Olbermann and liberals suing Hannity on the basis that they are the victims of political vendettas by these media figures. Of course they are. But political vendettas are perfectly constitutional in the United States.
busboy33 // Jul 30, 2010 at 9:04 pm
@sinz:
“published it without regard to whether it was true”
that is slightly but significantly different than “reckless disregard for the truth”.
Is it a high standard? Yes, and delibrately so. But the standard you’re reading would be impossible. As you said, I could go on MSNBC and show video of Sarah Palin fellating a goat, and unless I expressly state “I knew beforehand this was false” you can’t PROVE I knew.
Look at it this way — Assault requires the knowing infliction of physical harm. If I get up from the bar, walk directly across the floor of the bar to you, then punch you in the face, you can’t PROVE I knowingly did it. Perhaps I walked over to you to ask if you’d heard the word of Jesus Christ, and once I was standing in front of you I blacked out and Martians remotely took control of my body and caused me to take a swing. I haven’t admitted to anything. “Knowingly” is a higher standard than “reckless disregard” . . . does this mean unless I confess you can’t convict me?
It sounds like according to Sullivan that Sherrod has to prove “reckless disregard for the truth”. I’m sure there’s a case that gets into exactly what does and doesn’t satisfy that term . . . but it certainly sounds like the public data suggests a seriously reckless disregard for the truth on Breitbart’s part, and that’s being polite about it.
nwahs // Jul 31, 2010 at 9:13 am
Breitbart is being so quiet about the law suit, because although he knows it has little chance of succeeding, it underlines his extraordinary oafish behavior in not apologizing for his mean spirited stunt. The woman, without a doubt, was hurt by him for no good cause. A civilized person would apologize. Breitbart can’t because his sheep would consider it a weakness. That makes Breitbart just another sheep and the law suit powerful, indeed.
John Q // Jul 31, 2010 at 6:35 pm
“…(indeed, if his original story is true – that he didn’t know the video was edited but posted it anyway – Sherrod isn’t entitled to punitive damages, meaning her measure of damages would be nominal. Brietbart may have acted recklessly by posting the video, but that doesn’t establish intent.)”
True, punitive damages are only awarded when actual malice is proven.
If Sherrod includes the John Does who were in fact malicious in handing the tape to Breitbart in its misleading form – their names would come out in discovery – wouldn’t Ms. Sherrod have a claim for punitive damages against those presently unnamed who clearly intended to mislead the public? (This question is predicated on Breitbart’s account being true, which it may or not be: there may be witnesses we don’t know about who can shed some light on his state of mind.)
Read how to? for internet, travel, gadgets // Aug 2, 2010 at 1:37 am
Ancient Egypt travel…
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Slide // Aug 2, 2010 at 11:32 am
abj // Jul 30, 2010 at 9:50 am: “Defamation would be difficult to prove – you’d have to establish that the statements are false, and technically, they aren’t – her statements were just edited to the point where they’re wildly misleading.”
No, Brietbart’s statement on his blog preceeding the video was a LIE. This is what he said in part:
“Ms. Sherrod admits that in her federally appointed position overseeing over a billion dollars, she discriminates against people due to their race.”
http://www.mediaite.com/tv/chris-matthews-retapes-sherrod-segment-for-7pm-hardball-rerun-after-5pm-flap/
That is a lie plain and simple in my book. Brietbart’s intention was to suggest that this African-American government official discriminates against white people in her official capacity. There is no other way or reading that sentence. Of course, Ms. Sherrod was talking about an incident before she was a government employee and one in which she made amends and corrected her original actions by helping the farmer in question.
1) she was NOT a public official at the time of Brietbart’s posting.
2) what was posed was a blatant falsehood.
Still hard to win these cases, but I sure think she has a pretty good shot.
Joe
abj // Aug 2, 2010 at 2:27 pm
busboy -
Interesting, thanks for the insight. I definitely can’t claim any kind of expertise here. I did prepare a memorandum for a client analyzing his potential defamation claims, but he was not a public figure, so I didn’t spend much time researching Sullivan. “Reckless disregard” may apply here, considering that the video was obviously edited, yet he posted it on his website anyway. It seems that he’s indifferent to the truth (in this context) at a minimum. Is that reckless disregard? I’m not sure. It may be a closer question than I initially thought though.
I think it’d be tough to bring in the info re Breitbart’s background in a response to a motion to dismiss…but possibly at the summary judgment stage (assuming she could survive the motion to dismiss). Maybe you could bring it in at trial as evidence of modus operandi….or for impeachment purposes.
Slide –
On point 1 – do you mean she wasn’t a public official when the anecdote she relayed took place (or am I misreading you)? At the time of the posting, she was a federal government appointee. I haven’t looked back to Sullivan and subsequent precedent, but it’s a fairly broad standard. She was speaking in public, before a prominent nonprofit organization…and while we could argue she was offering her remarks as a private individual, she was likely invited to speak at the event because of her role in the federal government (and because she was probably introduced to the audience as a USDA employee).
On point 2 – that’s true, however, his explanation was that he received it in edited form and that he didn’t know the video had been doctored, i.e., that he just took it upon faith it was an accurate portrayal of her remarks. Assuming that’s true (which we would more or less have to do at the pleading stage), it sounds, to me at least, just shy of reckless disregard. Maybe a well-plead complaint could move the needle up to reckless disregard; I’m not sure. These are, as you say, tough cases.
Still, all things being equal, if I were in her shoes, I’d give it a shot.