Ousted Agriculture Department employee Shirley Sherrod speaks at the National Association of Black Journalists Annual Convention, July 29, 2010. (Credit: AP Photo/Gregory Bull)
In a speech Thursday at the National Association of Black Journalists convention, Shirley Sherrod said that she would "definitely" sue Andrew Breitbart, who posted a video of her remarks given to a local NAACP group that were taken out of context and made her appear racist.
Does she have a good case to bring against the conservative blogger and publisher?
Jonathan Turley, a law professor at George Washington University, said that the most obvious legal path would be "false light and defamation."
The Restatement Second defines the tort of false light:
652E. Publicity Placing Person in 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.
Turley offered this further analysis of a suit based on "false light":
"This would certainly seem to be a case of intentional or reckless act. It could also be claimed to be highly offensive to a reasonable person. However, the editor can claim that the tape was meant to show not just the racially loaded comments of a speaker but the reaction of the audience to that portion of the speech. Moreover, Sherrod is still admitting to pretty disturbing racial views in her earlier view of white farmers from the 1980s or 1990s. That is not an entirely complete defense, however, because it still does not explain why the editor would cut out the point of the story."
He also noted that as a public official or public figure Sherrod could be held to a different standard, which could make it more difficult for her to succeed in a "false light" suit.
Andrew Breitbart addresses the Conservative Political Action Conference in Washington on Feb. 20, 2010. (Credit: CBS / Stephanie Condon)
Breitbart claimed that he posted the edited video to prove his assertion that the NAACP has racist elements. He took issue with the NAACP demand that the Tea Party renounce bigoted elements. Breitbart subsequently amended his blog post, calling the action an "expression of regret."
Turley points out that in just bringing the case, legal discovery efforts could expose emails and other communications that shed light on Breitbart's motives and agenda.
John Dean, the former Nixon legal eagle, responded to Turley's analysis, noting that First Amendment standards protecting freedom of speech and the press require "extremely high levels of proof and evidence before anyone making a public statement will be held accountable for it." There must clear evidence that Breitbart knew that he was promoting false and malicious information about Sherrod.
Dean also points out that from a financial damages perspective, Sherrod has not lost her job and has been vindicated via a mass of media attention, apologies from the President on down and a job offer. Dean wrote:
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.
On the other hand, there might be some highly skilled lawyers and partisan contributors willing to fund the case.
The sage Dean, who was embroiled more than 40 years ago in the Watergate scandal, advised Sherrod to serve as her own counsel and take " delight in going after a jackass like Breitbart, not to mention Fox News, to expose what they are doing."