Talking Points Memo reports the latest on the Shirley Sherrod fiasco:
Shirley Sherrod said this morning on CNN that she would like to “get back at” Andrew Breitbart.
Asked if she would consider a defamation suit against Breitbart, the conservative blogger who posted the edited clip that got her fired, she said, “I really think I should.”
“I don’t know a lot about the legal profession but that’s one person I’d like to get back at, because he came at me. He didn’t go after the NAACP; he came at me,” she went on.
To recap the underlying facts here:
BigGovernment.com “broke” a story yesterday about a speech given a few months ago by Shirley Sherrod, USDA Georgia Director of Rural Development, at an NAACP Freedom Fund dinner. In it, Sherrod tells a story from 24 years ago about not helping a white farmer as much as she could have because she was “struggling with the fact that so many black people had lost their farm land.”
The point of this story, told in a public venue, was that she quickly realized that she had done wrong. “That’s when it was revealed to me that it’s about poor versus those who have. It’s not so much about white…it is about white and black but it’s not, you know…it opened my eyes.”
Breitbart apparently edited the video he released, removing the context which showed the timeframe in which it occurred, Sherrod’s quick realization of how wrong she had been, and Sherrod’s subsequent friendship with the white farmers at issue. To anyone who saw the video and the report — including Secretary of the Agriculture Tom Vilsack and the NAACP — it appeared that Sherrod had unabashedly admitted discriminating against whites in her official duties.
The NAACP sharply criticized Sherrod, and Secretary Vilsack promptly fired her. Once the full tape was released, the NAACP apologized profusely for having been “snookered” by Breitbart, and Vilsack offered Sherrod her job back. Breitbart also posted a correction:
Correction: While Ms. Sherrod made the remarks captured in the first video featured in this post while she held a federally appointed position, the story she tells refers to actions she took before she held that federal position.
So if everyone supposedly now knows the truth, can she still sue for defamation?
Two words: Richard Jewel.
What came to mind when you read that?
If you’re like me, you thought: Olympic Park Bomber.
Jewel wasn’t the bomber, of course — that was Eric Rudolph — but after he was identified as a “person of interest,” the media quickly cemented in the public’s mind a nefarious, rather than heroic, connection between Jewel and the bombing. Subsequent corrections were issued, but the libelous link lingered.
He sued in Georgia, where Sherrod is based and where she would likely sue.
The problem, though, was the high bar he had to reach to prevail:
The central issue presented by this appeal is whether Jewell, as the plaintiff in this defamation action, is a public or private figure, as those terms are used in defamation cases. This is a critically important issue, because in order for a “public figure” to recover in a suit for defamation, there must be proof by clear and convincing evidence of actual malice on the part of the defendant. Plaintiffs who are “private persons” must only prove that the defendant acted with ordinary negligence. Jewell contends the trial court erred in finding that he is a “public figure” for purposes of this defamation action.
Atlanta Journal-Constitution v. Jewell, 555 SE 2d 175 (Ga. 2001). Jewel lost on that, though, and had to move forward in his case as a “public figure.”
But he prevailed anyway, negotiating settlements with several media outlets that were apparently in the six or seven figure range. We’ll never know what a jury would have found in his case, but we know that the defendants were certainly worried about it, despite the subsequent corrections.
Breitbart apparently senses the danger, and has, through his site, started a defense:
Did Breitbart really excise or ignore the exculpatory portion of Sherrod’s remarks? The initial version of the video included Sherrod’s change-of-heart conclusion that she ought to engage in class warfare rather than race warfare. Her subsequent remarks (the ones that were supposedly edited out) simply built on that theme. Also, does anyone really believe that Andrew Breitbart would intentionally distort a video clip to make a one-day splash? Risk his growing reputation with a deliberate, easily refutable distortion? For those clamoring for more careful consideration of context and intent, perhaps they should contemplate those questions.
Those are just the type of questions a jury would contemplate in assessing whether or not Brietbart acted with “actual malice.” Indeed, there’s reason to believe Brietbart had some objective in mind with the edited video:
It’s also important to understand that Andrew Breitbart’s timing of the release of the grossly distorted video of Sherrod, which he admits having had for weeks, may not be entirely random. Congress will soon vote on whether to fund part of a settlement between the USDA and African-American farmers who faced acknowledged discrimination — farmers like Sherrod and her husband used to be. It’s a tiny piece of the upcoming war supplemental bill.
The only way we’ll actually get an answer to Breitbart’s own questions is if Sherrod does indeed sue.