Thursday, July 29, 2010

Shirley Sherrod to sue Andrew Breitbart 

Shirley Sherrod has announced that she will sue Andrew Breitbart. It is not clear from the lame press coverage what her cause of action will be. Presumably "false light" invasion of privacy or libel or some such strained tort. Natch, I have a few thoughts.

  • It seems to me that suing Andrew Breitbart is the surest way to make "Shirley Sherrod," heretofore only known to blog readers and other newshounds, into a household name. Whatever her notoriety now, it will be much greater by the time this case is resolved. Perhaps that is her objective.

  • Is not Sherrod, who chose to speak about race in front of a storied political organization (the NAACP), a public figure for the particular purpose of this controversy? If so, I believe I am correct that the standard of New York Times v. Sullivan applies, and she will have to prove actual malice to win on liability, a high hurdle even in the case of Andrew Breitbart. Any better lawyers than me out there who have a different view?

  • If Sherrod argues that Breitbart libeled her by implying she is racist, Breitbart's defense will be truth. In other words, he will have a huge incentive to develop evidence that Sherrod is, in fact, racist. Friends and acquaintances of Shirley Sherrod had better start preparing for their depositions. Does Sherrod really want to put her friends through that? Does she want to run the risk that a jury will find with Breitbart? I'm fairly sure I would not want a court to determine that I was racist.

  • If this case has not been filed, it certainly seems that Sherrod has made a tactical error. Breitbart should consider suing her and seeking a declaratory judgment that he did not, in fact, libel her. Then he gets to choose his court.

  • Either way, Breitbart should make a jury demand. He's much better off with a jury determining matters of fact than a judge. Juries are a lot less likely to apply post-modern or academically fashionable (e.g., asymmetrical) norms in any determination of what is and is not racist.

  • A prediction: This case, if it proceeds, will almost certainly demonstrate once again that courts of law are terrible forums for establishing the legitimacy of one version or another of social morality. Our national conversation on race will get more coarse, not less, in its wake.

  • Release the hounds.


    By Anonymous Anonymous, at Thu Jul 29, 03:54:00 PM:

    Honestly I don't see what all the concern is about. Are people ~really~ upset that a news personality leveled false charges against an administration figure?

    Where were these people during the greater part of the 8yr long Bush Administration?  

    By Blogger MTF, at Thu Jul 29, 05:15:00 PM:

    On the basis of my tremendous qualifications in current events,

    Thank you for your playing the O'Quiz!
    You answered 10 of 10 correctly.
    The average score on this O'Quiz is 4.95

    I can tell you with certainty that this will be a circus of the first order, regardless of whether she actually files or not. Even the public discussion of the possibility of such a suit will be a laugh-a-day.  

    By Anonymous Roger Cotton, at Thu Jul 29, 05:44:00 PM:

    I watched the entire video that is posted on the NAACP site.

    The woman IS a racist. Her hatred of whites comes through in her voice when she talks about Breitbart. The fact that she ends up saying we should divide based on class warfare and not on race does not diminish the fact that she DID act on her racist attitude years ago. She admitted it.

    She has nothing on Breitbart.  

    By Anonymous Ignoramus, at Thu Jul 29, 07:45:00 PM:

    Recall that The New York Times tried to torpedo John McCain during the 2008 campaign by running a story that falsely said that lobbyist Vicki Iseman had an affair with him. Iseman sued but couldn't even get an apology out of The Times, even though she wasn't a public official and had her career damaged with resulting economic loss.

    Breitbart has to be more careful now -- a new defense to his agitprop is to deflect back onto Breitbart personally. Which is why I suspect he's been funnelling JournoList leaks through Tucker Carlson.  

    By Anonymous Anonymous, at Thu Jul 29, 10:07:00 PM:

    She's an idiot playing a role and being manipulated the same way Obama is a suit that has someone else pulling his strings and programming his teleprompter,

    Behind the scenes she's a pawn of someone willing to pay layers to harrass the opposition. As was the NAACP itself in trying to falsely accuse the Tea Party of racism merely to staunch Obama's steep slide.

    They brought racism into it. If they want to keep it up they will merely continue to lose credibility. Jim Webb's comments indicate people are getting sick of this race card.

    Obama was the least scrutinized Presidential candidate ever. People will soon get to the point where he can't hide behind his race. When he is judged on (lack of) performance he is in big trouble.

    In short, you are correct in your analysis. This is a desperate move.  

    By Blogger Gary Rosen, at Fri Jul 30, 01:39:00 AM:

    Agree with anon 10:07. My first reaction was someone put her up to this to "get" Breitbart. We'll see who gets whom.  

    By Anonymous Sam, at Fri Jul 30, 02:09:00 AM:

    Why not sue Breitbart and Fox News for BILLIONS and give ACORN some of the settlement so it can resume its work?  

    By Anonymous Ignoramus, at Fri Jul 30, 06:26:00 AM:

    If you want to get nerdish on this, look at this clip:
    Chris Matthews actually defends Breitbart vs Howard Dean

    The tape that Breitbart used included exculpatory "redemptive" statements by Sherrod. This suggests that Breitbart was indeed aiming at the NAACP not Sherrod. In fact Breitbart's commentary was about the hypocrisy of the NAACP audience cheering when Sherrod first said that she didn't do all she could for the white farmer, but then castigating the Tea Party as a racist organization.

    Any white males here ever have to go to an inner-city DMV?

    Can't we all just get along?  

    By Anonymous Anonymous, at Fri Jul 30, 11:49:00 PM:

    Was Shirley Sherrod a public figure before Breitbart's video went viral? Not by any presently accepted definition, no.

    The problems for Breitbart will be his claim that (1) she violated the law by using illegal discriminatory criteria in the course of her duties and (2) was therefore incompetent in her profession. Both of those constitute defamation per se, whereas the accusation that she is a racist probably would not.

    This will probably be a landmark ruling for online speech, no matter how it is decided.  

    By Anonymous Ignoramus, at Sat Jul 31, 08:36:00 AM:

    Is Sherrod a public figure? She should be because what's at issue were her utterances at a public forum where she was identified as a US government offical. She put herself into this. She's no Elmer Gertz.

    Even if she isn't a public figure, Breitbart can argue that his version of the tape wasn't false.

    Even if the tape was false, Breitbart can argue no actual malice on his part, hence only actual damages -- which are small or none. He can also argue no causation on damages.

    Suing Breitbart won't get Sherrod a pot of gold. Breitbart should welcome the publicity.

    Sherrod actually has a better case against FOX, because there's some suggestion of actual malice in their editing of the tape. But a legal attack on Fox, is a legal attack on MSM.

    There's nothing in First Amendment jurispurudence to suggest that Breitbart is any less a journalist than Fox or MSNBC News, or am I missing something? That's the nub of this case, isn't it?


    "Vicki Iseman vs The New York TImes" failed because The Times story was heavily vetted by its lawyers. As a result, the story didn't say much but implied everything. Put enough dots on the page, everyone sees the cat. (Wink, wink: Vicki straps Congress-critters to advance her lobbying business. Hound Dog McCain is compromised by hot blonde lobbysists). This makes what The Times did even more reprehensible. The Times can't broke enough, fast enough for me.  

    By Anonymous Anonymous, at Sat Jul 31, 09:43:00 AM:

    Ignoramus 08:36, I like your answer (perspicacious, sounds right) and if I'm sued I'd like you to defend me, please send me your business card.  

    By Anonymous Edward Lunny, at Sat Jul 31, 11:35:00 AM:

    One would hope that Ms. Sherrod has large hands. She's going to need them after she has her posterior handed to her should she continue the pursuit of this ill-advised lawsuit.  

    By Anonymous Ignoramus, at Sun Aug 01, 09:45:00 AM:

    To Anon 9:43am Thanks.

    I trip over this stuff during my day job. This has gotten more ink than it deserves, but I need to make a correction: Fox is now adamant that they didn't post their version of the tape until after Sherrod was pressed to resign. But I could swear that I heard O'Reilly call for her resignation the night before. These aren't mutually exclusive. Howard Dean has never gotten the timeline right.

    For Fox, this is a key fact as to whether Sherrod can claim actual malice, without which Sherrod has no chance for a pot of gold.

    Sometimes you do need exacting lawyers, testimony under oath, and lots of cross-examination.

    As another example of facts mattering, someone here pointed out that Vilsack didn't have the authority to fire Sherrod. Of course "firing" isn't exactly the same thing as "pressing someone to resign", so I suspect a lot of parsing has been going on.

    What's been lost in all this is that it all started with Michelle and the NAACP. Obama moved his Queen out on the board.

    Sayeth our paper of record "To Help Democrats in the Fall, Obama May Stay Away"

    I suspect the internal polling numbers are finally getting through to Obama. Because of this, expect Evita to get sent out on the campaign trail as a likeable surrogate. That's unless the "Hanging with Royalty on the Spanish Coast / Hanging with Wannabe Royalty on the Vineyard" meme gets traction.

    The real significance of all this is that Obama played the race card by using the NAACP to castigate the Tea Party with the intent of activating his base and cowering timid moderate white voters. It didn't go as planned.  

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