Does Shirley Sherrod Have a Solid Legal Case Against Breitbart?

By: Dan Farber
Topics: In The News ,; Obama Administration

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."

Christian Science Monitor: Does Shirley Sherrod Have a Case Against Andrew Breitbart?

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by writeanddraw August 5, 2010 12:10 PM EDT: sue the NAACP.; Reply to this comment


by blackbelt-jones August 3, 2010 12:29 PM EDT: You gotta love some of these comments. Conservatives are always complaining about media bias, but they will defend a proven malicious liar with their last breath, if he's a member of their cult. Legal case or not, this is all about a liar and his lies. The world knows what this guy is about now, his credibility is gone, and that's all that really matters.; Reply to this comment


by quipt July 31, 2010 7:55 PM EDT: Shirley Sherrod stating 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 is welcomed news. I for one am tire of all the false and slanted stores that inundate our airwaves these days led by the number one violator Fox News. The biggest failure in this country over the past 10 years beside President Bush has been the American press both print and TV media. What ever happen to who, what, when, where and how. There are to many experts on the news and way too many opinions being expressed by reporters who are suppose to be just giving the public the facts. Its a turn off and it is hurting and dumbing down the country!; Reply to this comment


by nearl451 July 31, 2010 6:17 PM EDT: I don't know if there is a legal case, but what is certain is that when (not if) Breitbart is convicted and put behind bars or outof business at some point, the US atlarge will benefit from lack of reams of disinformation.

Only slightly related is this nonsense at WIKleaks. Julian whatever is another gutless wonder. Publishes a bunch of things that we ALREADY know, but includes names of Afghan colluders so that they may be targeted. Acts like he's doing the world a service. Yet doesn't lifta FINGER to check validity, jsut publishes and expects the general MEDIA to filter for truth, facts (yeah we all know how well that works.) I'm nota big supporter of thewar there, but at least I understand the repsonsibility of protecting those loyal toour efforts. This guy is just plain irresponsible. Expunge the names and publish and it's a different game.; Reply to this comment


by pragmatist1 July 30, 2010 2:56 PM EDT: Sharpton and JJ must have given the lady a stiff talking too. Her entire demeanor has changed. She's talking through her clenched teeth more. She'll lose and realize she had baseless claims. She needs to sue the USDA for firing her.; Reply to this comment


by Americanwhiner July 30, 2010 1:10 PM EDT: Seems all the right-wing racists have an opinion to share. I believe that you'd back each other up even if Breitbart took Sherrod and actually lynched her old-style. It would be her fault for losing her balance when you KKK folks pushed her feet off the chair. Go Shirley. Sue their butts off. Need funding? I think America (the REAL America...you right wing morons) will be there to help you fund it. We are sick of Fox schemes and lies. We want Breitbart's head on a plate...served alongside Beck, Hannity and O'Reilly's.; Reply to this comment


by EmploymentLawyer July 30, 2010 12:27 PM EDT: Shows you law professors really know only theoretical law. The best cause of action is tortious interference with contract/business relations. To anyone that has actually tried a case, defamation and false light are ridiculous stretches of the imagination under the present facts, and only exist as a possibility on a law school torts exam.; Reply to this comment


by tsigili July 30, 2010 11:57 AM EDT: Actually, I doubt it. The details would not indicate that what was done was actually misrepresentation.; Reply to this comment


by phocusplease July 30, 2010 10:50 AM EDT: How can ones own words be used to shed 'false light'? You said them, you own them, the audience applauded, thereby proving racial bias. What a weak suit. And another thing, this Turley guy has gone around the bend...and trust me, that's not false light. The guy had flicker of common sense a few years back...but it flamed out.; Reply to this comment


by Smokey75 July 30, 2010 9:48 AM EDT: I say let her sue she can spend every penny she has and then she will broke out of job and living off governmant handouts like most of the other Liberals. Big surprise there!; Reply to this comment