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Should Shirley Sherrod Sue Andrew Breitbart and Fox News?
John W. Dean

Should Shirley Sherrod Sue Andrew Breitbart and Fox News?

By JOHN W. DEAN
Friday, July 23, 2010

Shirley Sherrod's story was big news this week. If you missed it, the story went like this: Conservative blogger Andrew Breitbart posted a video clip of Sherrod -- a kindly African-American woman who was the Georgia State Director for Rural Development of the U.S. Department of Agriculture -- giving what appeared to be a racist, anti-white speech to an NAACP audience in March.

In the speech, Sherrod appeared to be openly discriminating against a white farmer. Fox News ran large with the story, with prime-time hosts O'Reillyand Hannity in red-faced rage over Sherrod's remarks, calling for her head. The Obama Administration quickly, and thoughtlessly, fired Sherrod, and the NAACP foolishly embraced her firing.

Turns out everyone except Sherrod got it wrong. Now, many are asking, Should Sherrod sue Breitbart, Fox News, or both?

With a Video Clip Distorting the Truth, Should Sherrod Sue for False-Light Invasion of Privacy?

Breitbart's video clip (which was 2:38 minutes long) totally distorted Sherrod's redemption talk (which was 43:15 minutes long). Breitbart's blog post characterized Sherrod's point as the exact opposite of what she was, in fact, sharing with her audience. CNN, which refused to run the initial story, talked with both Sherrod and the farmer, and they explained that, in fact, Sherrod had helped him save his farm.

By mid-week, and with the full forty-three-minute speech available online, White House Press Secretary Robert Gibbs apologized to Sherrod on behalf of the Administration, and Secretary of Agriculture Tom Vilsack, who had earlier demanded her resignation, was trying to persuade the wronged Sherrod to take a new position with his department. The NAACP announced that it had been "snookered" by Breitbart and Fox News, and apologized to Sherrod as well.

Clearly, a great injustice was done to Shirley Sherrod. So it is not surprising that she is considering -- and many have urged her to file -- a lawsuit to right the wrongs she has suffered. By week's end, Sherrod told the CBS Morning Show that she "would definitely consider" legal action.

There have been posts all over the Internet encouraging such action. Here is a small sampling. At CNN: " I'm thrilled that the NAACP has owned up to its mistake and come to her defense. I would hope that this includes legal assistance, and that she files a very loud, very messy lawsuit against all parties involved in this despicable episode," said commenter Julieann Wozniak. A newsvine.com poll on the question "Should Shirley Sherrod sue Andrew Breitbart over edited video tape or simply move on?" was running eighty-nine percent favoring the suit when I last checked. And George Washington University law professor Jonathan Turley wrote an extended blog post asking a more fundamental question: "Can Sherrod Sue Over the NAACP Tape?"

Setting aside the race-baiting politics of Breitbart, and the remarkably inept handling of this matter by the Obama Administration and the NAACP, since there has been no shortage of commentary on both subjects, I would like to examine the potential of such litigation if Sherrod were to file it, as well as its likely impact.

Sherrod's Most Viable Lawsuit -- Based on a "False Light" Claim -- Is Problematic

Professor Turley zeroes in on the most viable lawsuit Sherrod appears to have based on the known facts: a suit for what is called false-light invasion of privacy. Such a claim is separate from a defamation claim, and in some states, depending on the facts alleged, courts see the two types of action as duplicative and dismiss the false-light claim in order to proceed with the defamation claim. What is interesting here, however, is that the false-light claim seems to more accurately describe what was done to Sherrod than a defamation claim -- which requires a specific, false factual statement -- would.

To explain the nature of the action, Turley cites and quotes the Restatement of Law definition of the tort known as Publicly Placing a Person in a 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."

Of course, the Restatement is merely a model, without its own legal force. But Georgia, where Sherrod was injured by the false attack, and California, where Breitbart lives, both have laws recognizing a false-light tort along the lines the Restatement describes.

Professor Turley points out the difficulty with respect to Sherrod's succeeding in such a suit: Plaintiffs who are public officials are considered public figures, and held to a different standard. Sherrod appears to be both a public official and a public figure, as an USGA official who has been forced to thrust herself into the spotlight in her own defense.

To be more specific, the U.S. Supreme Court has imposed a First-Amendment standard on all state laws (as well as on federal law) through its interpretation of the Constitution. To protect freedom of speech and the press, the High Court has required extremely high levels of proof and evidence before anyone making a public statement will be held accountable for it.

Thus, the offending statement must have been made with "actual malice," a state of mind which, ironically, need not be actually malicious. (This is not the best label the Court has ever selected, as it can thus be very misleading.) Rather, this Supreme-Court- created constitutional requirement has come to mean that for a defendant to be liable when sued by a public person, the statement at issue must have been made with the knowledge that it was false, or with reckless disregard to whether it was true or false. Furthermore, this knowledge -- amounting to "actual malice" -- must be established by clear and convincing evidence.

The Court made this the law in order to give public commentary ample breathing room, for it assumed (incorrectly, for many, I believe) that because public people have access to the media, they can often easily correct false information concerning them, when it makes its way into the marketplace of ideas, by simply entering into the public debate themselves.

If Sherrod Were to Sue, Her Problem Would Not Just Be Proving "Actual Malice" But Also Proving Damages

In truth, the Court has created a wonderful refuge for scoundrels, the kind of place from which a Fox News or Andrew Breitbart can safely attack others with impunity. Here, in the Sherrod situtation, it would be all but impossible to prove that Fox News acted with actual malice.

Let's start with the possibility of a suit against Fox News. Here is how things will likely go: Fox News will claim that it had no reason to suspect that there was more to the video clip than it was given -- notwithstanding that Fox News surely knew that Breitbart, generally, was less than a reliable source. Other news organizations ran the clip as well, which would help Fox News's suggestion that its action in running it was reasonable. There is nothing better than a lawsuit (or a charge of recklessness) to bring out claims of innocence by news organizations.

What about a suit against Breitbart himself? As for proving that Breitbart released this clip with reckless disregard for its truth or falsity, I think a case might be made, although he has said he did no editing of the clip; rather, it was given to him by his unnamed source, which he is unwilling to reveal. (When and if that source is revealed, his or her identity will be very interesting to learn.) Nonetheless, Breitbart surely knew there was more to Sherrod's speech than the small clip he was given, and he never bothered to find out what Sherrod had actually said. So he may well have acted with reckless disregard. But there is another problem with a lawsuit against Breitbart, as well.

No doubt Jon Turley wrote his blog posting before Secretary Vilsack offered Sherrod an apology and reinstatement at USAD in a "unique" position to work on civil rights. This offer has largely removed any financial damages that would otherwise have arisen from her forced resignation forty-eight hours earlier. Moreover, the intense media coverage has further ameliorated the damage -- for it is now well-understood by anyone who follows the news at all that Sherrod is not a racist, but rather the victim of Andrew Breitbart's ugly politics. It is clear that she was unfairly and falsely charged.

With only nominal damages at issue now, no attorney is going to take on this case on a contingency basis; even if a jury (or judge) were to award punitive damages to punish Breitbart, it does not appear he has very deep pockets, and libel-law-related verdicts are often dramatically reduced on appeal. In short, filing the action would not be financially rewarding, and it certainly would be (as with all lawsuits) very expensive, easily costing over a million dollars.

Overall, Shirley Sherrod Would Be Wise Not to Sue Anyone Over The Incident

Frankly, if I found myself in Shirley Sherrod's situation, I would file a lawsuit next week. But I could represent myself in court, and would take delight in going after a jackass like Breitbart, not to mention Fox News, to expose what they are doing. For me, the reward would be holding them accountable for even nominal damages and making their lives miserable.

There is little doubt that such a legal action could proceed beyond any initial motions seeking immediate dismissal. And after that crucial threshold, I would have subpoena power and the ability to question those involved under oath. This would make it possible to fully uncover how this fraud was actually perpetrated. While I might enjoy doing this, I cannot recommend that anyone without legal training and litigation experience get into what might nicely be described as a brawl with skunks.

Sherrod should be advised (and I say this based on a lot of personal experience) that conservatives like Breitbart will not play nicely merely because they have been taken to court. These authoritarian personalities, and those who share their thinking, go ballistic when confronted with legal actions. They resist being held accountable, and feel particularly threatened by legal actions. What Breitbart will do if Sherrod files a lawsuit against him is to quickly create a legal defense fund, with the support and financing of like-thinking conservatives, and he will hire as nasty an attorney as is available in his tribe. Soon, he will be using the legal process to harass Sherrod by digging into every inch of her life, and perhaps even countersuing Sherrod for claims as to which she has no knowledge. It will be ugly, and she must plan on several years of intense unpleasantness.

Breitbart, it is clear, is not backing down. Authoritarians never do. He refuses to explain where he got the edited video clip of Sherrod, and he is not apologizing. This is standard authoritarian behavior. To the contrary, he is continuing to attack Sherrod, along with his larger target, the NAACP. He claims that he is sorry that she got messed over by the Obama Administration and the NAACP, but he is not letting up on his race- baiting. He would no doubt celebrate a lawsuit -- until he lost it, and then would claim, in fact, that he had won. Andrew Breitbart doubtless loves all the publicity he is getting, for authoritarians feel no shame, and they become so swept up in their self-righteousness, that they believe they are doing the world a favor.

Hopefully, Sherrod will not proceed with a lawsuit for it will involve much more unpleasantness, and much of her time, with little reward. On the other hand, Andrew Breitbart, the Obama Administration, and the NAACP have given her a meaningful public presence. She has an important and timely message to send, and now, she also has a commanding presence on the public stage through which to share it. She should write a book and lecture, and share her experiences. Even thinking conservatives must acknowledge that Breitbart made himself look more the jerk, so I would hope that Sherrod gives her malevolent detractor no more of the negative attention he so craves.


John W. Dean, a FindLaw columnist, is a former counsel to the president.

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