Thursday, July 29th, 2010

So What's Shirley Sherrod's Grounds for a Suit?

Ooh, Shirley Sherrod says she's going to sue Andrew Breitbart. (Her announcement today made Twitter fun again briefly.) But. Lawyers? Please to discuss her claim.

49 Comments / Post A Comment

BadUncle (#153)

It's about time someone stuffed a summons up his ass.

brent_cox (#40)

Not an actual lawyer, but I don't think how process is traditionally served.

scroll_lock (#4,122)

@BadU: "You have the right to bend over and grab your ankles."

barnhouse (#1,326)

I'm not a lawyer but can I ask something?

Maybe the point of the suit is just the discovery part? Who edited the video, on whose behalf, who paid, why was it done?

If Shirley Sherrod sues Breitbart (for what exactly?) could she force these revelations?

scroll_lock (#4,122)

If only some pervy Chicago-based hack of a shyster would weigh in with a comment about this so we'd know what to think.

KarenUhOh (#19)

Yeah, let's hear from a PERV.

In the meantime, I'd opine she's on sound legal footing if just backs a car over him.

Crantastical (#4,127)

Can I put in a request that she gets this lawyer?

scroll_lock (#4,122)

@Cran: He's the white Jackie Chiles! That hair!

scroll_lock (#4,122)

"If they made you quit, they're full of shit." -Zombie Johnnie Cochran.

KarenUhOh (#19)

@ Cran: Where the hell did you come up with him? I think that's the guy who cuts my hair.

Crantastical (#4,127)

He was supposed to represent Lindsay Lohan (I read about him on Dlisted )

scroll_lock (#4,122)

@Karen: I'm sure you know which perv I meant.

saythatscool (#101)

Sorry, I was having a five martini lunch and then a three-way with Blagojeviches who are extremely bored waiting for the jury to return a verdict.

So, I don't know what her claim would look like. I can only imagine it would be a claim of defamation per se.

The state of Illinois has a defamation per se claim that recognizes certain statements or publications as always defamatory without a burden of proof by the injured party. The court automatically pressumes these statements and publications have caused harm to the defamed person's reputation. In Illinois, accusing a person of job incompetence or job corruption are considered defamation per se.

The fair reporting privilege provides a defense for government reports and proceedings available through public records. I think that's where the speech came from, right?

If the information is reported fairly and accurately as it appears in the public record, usually a court will hold that the defendant has not committed defamation. A neutral report privilege covers reporters that may publish accusations made by a "public figure about another," but the Illinois Supreme Court has not recognized or rejected that particular defense. Likewise, the "wire service defense" covers the republication of a news item from a "reputable news" source and has only been ruled on in an Illinois federal court.

I don't like her chances here, because I find that most courts are unwilling to find against journalists or media people for a variety of reasons. Nobody wants a chilling effect on the First Amendment, even if it's a dickhead like Breitbart. Plus, Sherrod is a public figure, so there is that going against her. But not every lawsuit is about recovering money, sometimes it's just to make the point. But maybe Karen, res have a different valid opinion.

Now if you'll excuse me all, it's gimlet season.

saythatscool (#101)

forgot to close my italics.

scroll_lock (#4,122)

@STC: 'Bout time, perv.

kneetoe (#1,881)

It will later turn out that what she said was that she would NOT sue Andrew Breitbart.

scroll_lock (#4,122)


kneetoe (#1,881)

Yes, I typed it asfastasIcould so no one would beat me to it.

defamation? tortious interference with contractual relationship?

Not really any damages there, though, right? since she was offered her job again in days and the truth came out in days. Can you sue someone for basically failing to sully your rep?

kneetoe (#1,881)

Or, like, improving it?

scroll_lock (#4,122)

I think Oprah should get involved. "YOU get compensatory and punitive damages! And YOU get compensatory and punitive damages!!"

bobthebutcher (#6,183)

I want an estimate on how much Breitbart would have made in increased page views on his site since he posted either 1) a knowingly false claim / attack piece and yeah the discovery process would be awesome. Who did he warn at News Corp? Who presented the tape? Did he exercise any due dilligence. This is going to be awesome

DoctorDisaster (#1,970)

Well, I'm not a lawyer, but J-school covered libel pretty carefully.

1. She's not a public figure, which makes it a lot easier to win a libel suit.
2. Whoever edited the video was clearly acting out of malice, because they had the whole speech and cut it to maximize damage to Sherrod's reputation.
3. As a recording, the video wasn't technically false, and I expect this is where Breitbart will try to defend himself. However, I think that editing to make a false claim can probably count as falsehood; I don't know if there's precedent on that question. Any headlines describing her as a racist are still falsehoods.
4. There were damages to Sherrod in the form of major negative publicity and the loss of her job. I don't think there's a "my libel was publicly discredited" defense. However, as she was offered her job back, the damages to her were pretty minor. (This may be why she is still considering whether to take the job back; she could claim that the knee-jerk firing suggests a hostile workplace in the wake of the smear.)

Hmm, actually you can make the case that pretty much all government employees are de facto public figures.

Small nitpick: she wasn't actually offered her job back; they offered her a new job with the same agency. The new position didn't even exist a year ago, and is almost entirely ceremonial, so she probably can make a decent case that the job is not equal to what she lost, and that accepting it would not be advantageous to her career.

KarenUhOh (#19)

"Public Figure's" a close question, given who she was (before all this), and how the original source material was generated. I tend to say no, but I want her to succeed.

I agree with the idea from up above, that getting to the editor of the tape may find the target defendant–hope it was Breitbart, but, hmm, wonder if he'll admit to that???, or plead "good faith" for "reporting" from a "source"–

—which, HMM some more, maybe he'll decline to reveal? Because he's a "journolist"???

If not malice on AB's part, it's sure reckless. It's a good faith pleading, at the very least, and she can make the fucker drop some tall coin trying to get his ass out of a[n] [alleged] sling.

KarenUhOh (#19)

To the Colonel, etc.: there's definitely damage to reputation here. The toothpaste of deception got loose from the tube. This is a checkbook offense.

oudemia (#177)

IAPrettyMuchtheOppositeofAL, but I thought it took very little to turn someone into a "limited purpose public figure."

LondonLee (#922)

Can you sue someone just for being a cunt?

scroll_lock (#4,122)

Usually only pricks sue on those grounds.

You're only getting away with using the c-word because you're from London, where it comes as naturally as breathing. Sorry to Americans however.

saythatscool (#101)

Yeah, I know I'm fired.

abbyjean (#508)

the standard applied depends on whether she's considered a public figure. if yes, then nytimes v sullivan (376 US 254) says that the "actual malice" standard will be used, meaning that breitbart will be liable if he had either "knowledge" that it was false or that he demonstrated a "reckless lack of investigation."

if she's not a public figure, then she just has to show that it was false, and breitbart can argue whether he had a reasonable belief that it was true.

the sup court has narrowed its view of who is a public figure, so i think it's unlikely she'll be considered one. (see this time article for more on that issue.)

so – can he show that he had a reasonable belief that the video was true? (reasonable for a normal reasonable person, not what he subjectively believed.) i think his public statements of having a goal of bringing down the institutional left may cut against him here, showing that he may have unreasonably tried to interpret things in the worst light possible.

(i am not a libel attorney and this is not legal advice)

First, damn your auto-refresh! Totally lost most of this the first time around.

Anyway, I'm a lawyer, although not a tort lawyer.

That said, the obvious causes of action would be defamation or false light (similar but not identical), which are challenging in the strongest of cases. She may even tack on "intentional infliction of emotional distress" (favorite of law students, rarely successful in the real world).

1. Arguably, Breitbart's presentation of the video clip was an attack on Sherrod's professional standing, making Breitbart's actions "defamation per se". This means that Sherrod would not have to show damages. (The other 3 categories of per se defamation: saying someone committed a "crime of moral turpitude"; saying he/she is "unchaste" (used to just be "she", though); saying he/she has an STD. For real!)

2. Otherwise, Sherrod could argue "regular" defamation, needing to prove negligence and damages. I agree with others that damages could be tricky. That said, while most mainstream Americans now know that Sherrod was wronged, there is a considerable number of people who will now and forever think she is a racist. I'm sure Sherrod can point to numerous publications AFTER the full video came out in which she is still called a racist. Also, even if we think her new job offer is as good or "better" than her old job, it's not her old job.

3. DoctorDisaster is right that Sherrod is likely not a public figure but there is a chance she could be considered an "involuntary public figure" as a result of the fracas, making her subject to the higher "New York Times" defamation standard. (Kind of a bitch, right?) Still, though, Sherrod has a good argument that Breitbart acted either with "actual malice" or, more likely, "reckless disregard for the truth".

4. Like it or not, Breitbart is not without defenses. First, truth. Although Sherrod's words may have been taken out of context, they were her actual words. Second and third, Breitbart might be able to argue opinion or "fair comment" on a public event; I don't know that he'd get much traction.

5. I agree with barnhouse that the value of Sherrod's suit would be in the discovery phase. And in that it would constitute concrete action being taken to challenge assholes like Breitbart.

DoctorDisaster (#1,970)

I'm kind of banking on the idea that you can't be considered an involuntary public figure based solely on the publicity at issue. In other words, it would seem a little strange to claim that defaming someone to a national audience in itself makes your target a public figure. Speaking before the NAACP audience is another question, though; I remember going over limited-purpose in class, but I can't recall the exact criteria, and that may qualify.

I should note that this was probably kind of leaky. Also that, like so many areas of the law, each state has their own standards and laws which may vary…

theverbald (#1,748)

If I remember law school correctly, Sherrod probably falls under the category of "limited-purpose public figure." I think this means that malice would have to be shown for defamation related to whatever she's a "public figure" for.

Nevertheless, assuming that Sherrod sues for defamation, the real question here will be whether editing counts as "speech." Since Sherrod was the person who actulally made the statements used against her, Brietbart's defense is pretty much "I didn't say anything. I can't be guilty of defamation, because I didn't make a statement. I just exposed something that existed."

Good point, although you can argue that it's not just the editing, but Breitbart's commentary plus the editing, that is defamatory. I should have clarified that in my discussion.

Breitbart might argue truth defense as to Sherrod's own words, and other defenses as to his.

theverbald (#1,748)

Really though, has SCOTUS commented on editing as a form of speech? Because that would be an interesting issue.

No idea, but I agree! I think it's an issue that will arise more and more in These Modern Times, if it hasn't already…

saythatscool (#101)

This article is relevant:

If Breitbart claims he just found it on youtube, he'll have a much better argument that he was just a public figure commenting on another limited issue public figure.

Jamie Kelly (#5,759)

Well, as he published something with what could be seen as reckless disregard for whether it was true or not, she could be planning a libel suit. She might even be able to claim actual malice, which is another grounds for a libel win. But don't forget, it wasn't just a video, the site published a story to go along with it, taking the edited video as a basis, which doesn't help their case.

sigerson (#179)

I agree with a lot of the other lawyers posting above. (esp. clairekathleen444 who deserves the A+ Dean's Award for her answer)

Some other issue spotting:

Who is the owner of the tape and could they sue Breitbart for stealing it? Or accepting it from a party that stole it?

Can Shirley claim "false light"? Seems tenable, doesn't it?

How about a claim against the Federal Government, the Agriculture Dept. and Vilsack under Section 1983 for wrongful termination and violation of her civil rights?

Venue will be important, so I'd strongly suggest suit be laid in the Federal courts sitting in Georgia (better juries, methinks)

Intentional and negligent infliction of emotional distress (query whether her state has the claim of negligent IED theory)

sigerson (#179)

Of course, Breitbart's main defense would be the First Amendment protects his speech. Good for the goose is good for the gander, after all. Second line of defense would be the intervening tortfeasor that is the Federal Government. After all, he didn't fire her. He didn't ask for her to be fired.

KarenUhOh (#19)

S, the latter, I'd argue, was reasonably foreseeable, although you can bank on that defense being raised.

Thank you! That was knowledge gleaned from law school and a random case I worked on a couple of firms ago. Good points as well! One other point on false light: If memory serves (with all obvious disclaimers), I'm not sure that all states recognize it any more.

Re venue: Anecdotally from friends who litigate in multiple jurisdictions (more disclaimers), parts of GA can be very plaintiff-friendly. State more than federal, though, natch.

But that's "plaintiff-friendly" in the context of corporate litigation, though, duh.

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