Does Shirley Sherrod Have A Libel Case Against Andrew Breitbart?

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Fri, Jul 30, 2010 at 2:04 PM

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Shirley Sherrod, the Department of Agriculture official who got caught up in a Beltway maelstrom last week when conservative provocateur Andrew Breitbart accused her of discriminating against white farmers, will sue Breitbart for libel, she told a group of assembled black journalists Thursday. Does she have a case?

By now, the story is fairly well known: Breitbart, the Santa Monica-based Internet purveyor of Big Government, Big Hollywood and Big Journalism and former editor of the Drudge Report, released a video showing Sherrod talking to a NAACP function about favoring black farmers over white farmers. It blew up on Fox, and she was fired. But the video had been edited, and she was actually telling a story about overcoming prejudice.

Once it became clear Sherrod had been wronged, Agriculture Secretary Tom Vilsack offered her job back, and everyone apologized -- though of course Breitbart went back on the attack.

The question now, does Sherrod have a case?

David Hudson, a scholar at the First Amendment Center in Nashville and professor at Vanderbilt University School of Law, thinks it would be a difficult case to make, as most libel cases are.

Hudson says there four things to consider.

1) What is her status? If Sherrod is considered a public figure, Breitbart is on much safer terrain. In the case of New York Times v. Sullivan, the U.S. Supreme Court decided that proving libel against a public figure requires not only showing the defendant said something false, but also that there was "actual malice" in the alleged libelous speech.

Is Sherrod a public figure? Well, she is now. But even before her new fame, Hudson notes that her work with the Department of Agriculture could give her public figure status, as even police officers and teachers have been called limited public figures in libel cases, Hudson says. If she's classified as a public figure, did Breitbart show actual malice? Breitbart seems to have a generalized sense of malice toward the entire world, so it's sort of hard to say.

2) Did he say anything false? Sherrod could point to a couple statements in the original blog post with the edited video. (Breitbart says he didn't edit the video, by the way, but that it came to him as-is.)

"In the first video, Sherrod describes how she racially discriminates against a white farmer."

This is false, as in the full video she goes on to explain how she did not racially discriminate against the white farmer. (The white farmer came forward and defended her last week.) Given his voluble appearances on Fox News before the accusation of racism was shown to be false, there could be other similar statements.

3) Would other defenses be applicable? Hudson says there are a couple other potential defenses. For instance, Breitbart could argue a "substantial truth doctrine," which essentially means that he got the gist right. Breitbart would likely make that argument, and has already been making it. As he said recently, "The way she's talking about white people ... is conveying a present tense racism in my opinion. But racism is in the eye of the beholder."

4)What are the damages? This is a tough one, as Sherrod is likely on her way to a book deal and speaking tour. Her reputation has actually been enhanced by this incident, rather than diminished. Hudson laughed and said, yes, that's something to consider. But he noted that her lawyer could argue that she experienced distress.

You can see here how libel cases are hard to prove in the U.S., which strengthens the First Amendment because we are less fearful of being sued every time we say something controversial.

Sherrod would have to consider something else: A high-profile libel case would just give Breitbart that which he desires more than anything: The loudest megaphone on earth.

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