Shirley Sherrod has a Case, Intends to Sue Breitbart (…But, Should She?)
The sad political-media fiasco that brought about the forced resignation of Shirley Sherrod from her USDA post is far from over. At the crux of the controversy is a video clip, posted by conservative political operative Andrew Breitbart, featuring Sherrod speaking before a NAACP crowd. Over the next 24 hours, Breitbart’s “Video Proof” of “Sherrod’s racist tale” – a story of a black bureaucrat discriminating against a white farmer — reverberated through the conservative blogosphere, raising the ire of the usual suspects at Fox News, which, in turn, led to Sherrod’s hastily forced resignation.
After 48 hours, once it became clear that Breitbart’s post clearly misrepresented Sherrod’s broader message, the former claimed himself the victim, and the latter became the recipient of many, well deserved, apologies.
Among the apologies yet to be tendered is one from Breitbart, himself, which won’t be forthcoming. And that’s just as well, because, according to an ABC News report, she doesn’t want one. Rather, Sherrod would prefer that Breitbart explain his actions in court.
“[Breitbart] hasn’t apologized. I don’t want it at this point…,” Sherrod explained to attendees of the National Association of Black Journalists meeting, July 29, in San Diego. When asked if she intended to pursue legal action over the matter, Sherrod responded, “I will definitely do it.”
Sherrod’s “most viable” lawsuit…
Some instinctually assume that Sherrod would pursue a claim of defamation against Breitbart and/or Fox News. John Dean explains, invoking the sound opinion of Professor Johnathan Turley, “… the most viable lawsuit Sherrod appears to have based on the known facts: a suit for what is called false-light invasion of privacy.”
Both, Dean and Professor Turley, note that the distinction between a false-light claim and one of defamation is subtle enough for many state courts to ignore it. That said, the main difference between them is that a claim of defamation “requires a specific, false factual statement, whereas a claim of false-light requires”…
(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.
Though this describes Breitbart’s actions quite well, Sherrod would still face an uphill, exorbitantly expensive and lengthy legal battle to make it stick. Sherrod’s status as a public official/figure also complicates matters; as such, the U.S. Supreme Court’s First-Amendment guidelines dictate that her claim must meet a heavy burden.
…this Supreme-Court- created constitutional requirement has come to mean that for a defendant to be liable when sued by a public person, the statement at issue must have been made with the knowledge that it was false, or with reckless disregard to whether it was true or false. Furthermore, this knowledge — amounting to “actual malice” — must be established by clear and convincing evidence.
Sherrod would also have to prove damages were incurred, the impact of which, in the eyes of the court, were lessened the moment Secretary of Agriculture Tom Vilsack offered to hire Sherrod back on at the USDA – a position she has yet to accept. Sam Stein published a related piece quoting several “prominent First Amendment lawyers” suggesting, because Sherrod’s reputation was so swiftly restored (BTW, hat-tip to CNN), that it could harm her case.
…and why she shouldn’t bother (…in court)
Despite the above obstacles all of Stein’s experts are of the opinion that Sherrod does indeed have a valid claim against Breitbart. The above mentioned Turley also concurs, as does Dean. But it is Dean who strongly suggests Sherrod not go through with it (emphasis added):
Sherrod should be advised (and I say this based on a lot of personal experience) that conservatives like Breitbart will not play nicely merely because they have been taken to court. These authoritarian personalities, and those who share their thinking, go ballistic when confronted with legal actions. They resist being held accountable, and feel particularly threatened by legal actions. What Breitbart will do if Sherrod files a lawsuit against him is to quickly create a legal defense fund, with the support and financing of like-thinking conservatives, and he will hire as nasty an attorney as is available in his tribe. Soon, he will be using the legal process to harass Sherrod by digging into every inch of her life, and perhaps even countersuing Sherrod for claims as to which she has no knowledge. It will be ugly, and she must plan on several years of intense unpleasantness.
… [Breitbart] would no doubt celebrate a lawsuit — until he lost it, and then would claim, in fact, that he had won.
I think Dean is offering Sherrod some sound advice.
As enjoyable as it would be Breitbart undergo the scrutiny of trial discovery — and his track record of misrepresentative media postings and statements all but ensure the lawsuit would make it that far — Sherrod’s potential suit, even if it were to be successful, is unlikely to yield a satisfactory outcome beyond what has already occurred; that is, Breitbart’s Sherrod hatchet job, unlike his previous efforts, quickly and publicly blew up in his face. The mainstream media outlets that fell for the scam will, it is hoped, think twice before doing it again.
They’re unfortunate circumstances, to be sure, and I imagine Sherrod as the type of person whom is loath to back down from a fight. But as Dean concludes, a lawsuit is not the only means with which to fight:
…Andrew Breitbart, the Obama Administration, and the NAACP have given her a meaningful public presence. She has an important and timely message to send, and now, she also has a commanding presence on the public stage through which to share it. She should write a book and lecture, and share her experiences.
Breitbart’s narrative is merely a segment of a much broader synical conservative political strategy: the latest incarnation of the “Southern Strategy,” exploiting the irrational fears of white voters with invented racial memes (immigration is another Southern Strategy mainstay). Sherrod’s “timely message” — that our racial prejudices distract from broader societal ills based in structural economic inequality — needs to be spread far and wide. When enough people wake up to it, the influence of the ‘Breitbarts‘ of the world will be diminished, relegated to the dark corners of the right-wing blogosphere where they belong.
Shirley Sherrod image via U.S. Department of Agriculture by way of Wikimedia Commons.