Shirley Sherrod Says She’ll Sue Andrew Breitbart

It looks like the Shirley Sherrod story isn’t quite over yet. This morning, she announced that she’s going to sue conservative blogger Andrew Breitbart:

Former Agriculture Department employee Shirley Sherrod said Thursday she will pursue a lawsuit against conservative blogger Andrew Breitbart – the man responsible for posting an edited video clip of Sherrod appearing to say she discriminated against a white farmer looking for assistance.

“I will definitely do it,” she said when asked whether she was considering legal action. Sherrod made her remarks during an appearance at the National Association of Black Journalists convention in San Diego.

Breitbart “had to know that he was targeting me,” Sherrod said. “At this point, he hasn’t apologized. I don’t want it at this point, and he’ll definitely hear from me.”

This isn’t entirely surprising, and it should be an interesting case to watch given some of the legal issues likely to be in play.

Update: Law Professor Jonathan Turley had a very good piece last week examining the potential legal claims that Sherrod may have against Breitbart.

FILED UNDER: Blogosphere, Law and the Courts, Quick Takes, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. PD Shaw says:

    Like whether Breitbart’s speech is protected by the First Amendment because she’s a public official.

  2. There is a fairly strong argument that she was not a “public figure” for NY Times v. Sullivan purposes at the time the tape was released

  3. Zelsdorf Ragshaft III says:

    Doug, she worked for the government and she was making a public speech. Whereas, Breitbart has grounds for a counter suit. She slandered him on national TV. (if CNN is considered national) by saying he wanted a return to slavery. I think she would have a very difficult time proving that allegation. Andrew would only be required to show she was not the target by showing the whole video posted on his website. In that video her transformation point was made at the end. Editing was done on news programs which did not wish to show the whole picture. Breitbart posted all that he had at the time. Interestingly enough, by opening the door to who she is and allowing us to know a bit about her husband. We now know she is a racist and a marxist. Further, it may be reveals that the pigford suit was a sham. Maybe Shirley will end up in prison. Wouldn’t that be a shame.

  4. sam says:

    I was about to say, Doug. “X is a public official” !-> “X is a public figure.” I wouldn’t be surprised if Breitbart tried to use this argument:

    But she was a public figure!

    Why!

    Well, I published something on my blog about her.

    But even if the “she is a public figure” argument were to prevail, Breitbart would still, I think, run afoul of the actual malice test:

    The actual malice standard requires that the plaintiff in a defamation or libel case prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity.

    I think she can make a case that he acted in reckless disregard, given the way all this ended up.

  5. Brummagem Joe says:

    “Like whether Breitbart’s speech is protected by the First Amendment because she’s a public official.”

    Sure, the first is no bar against slandering an individual. It’s a fine legal point I’m sure whether she has other grounds to bring suit but all the discovery and the trial if it gets into court are probably going to turn over all kinds of stones and cost Breitbart a lot of time, money and general aggravation. It will probably never get court because Breitbart will settle.

  6. Brummagem Joe says:

    Does being a mid level bureaucrat make you “a public figure?” So is the town tax collector in my town a public figure. She’s not an elected official so how is she a public figure exactly.

  7. Brummagem Joe says:

    “Breitbart posted all that he had at the time.”

    Maybe. This would be established during discovery.

  8. Depending on the laws of the state where she sues there is a cause of action that is called, somewhat inaccurately, “false light privacy”

    Basically, its a step below actual libel but holds a person responsible for knowingly or negligently releasing information that paints a persons in a false light. Assuming that it exists in the state she sues in (which would seem to have to be either Georgia or whatever state is “lucky” enough to have Breitbart call home) it could be her strongest claim

  9. Jennifer says:

    I hope she crucifies Ms. Riefenstahl (Britefart, the liar) and leaves her rotting corpse up there for other propagandists to contemplate.

  10. wr says:

    ZR: If you are suggesting that Breitbart should tell the court “that’s the only piece of tape I had, so I posted it to prove she was a racist without trying to find out the rest of the truth,” you should really read up on the concept of reckless disregard.

  11. Steve Plunk says:

    Isn’t that Sherrod’s modus operandi, sue for success? How could Breitbart slander her with her own speech?

    Jennifer, I sense hostility. Rotting corpse?

  12. Zelsdorf Ragshaft III says:

    Well Doug, how are you going to prove Breitbart knowingly or negligently release information which is perported to show her in a false light? False light? She was at the time the incident took place, employed by an agency funded by the federal government to help farmers. It was then as well as now, illegal to show bias in the performance of her duties. She clearly makes the statement the white farmer was trying establish he was superior to her. Facts not in evidence. We will have to classify that as heresay. Then she states she was reminded of all the black people who had lost property and decided not to give this farmer the full benefit of what she could have done for him. Clearly this is a violation of federal law then and now. She may have had a change of heart later and did what she could to correct the situation, but like robbing a bank. Once you hand over the note or make the declaration, the egg is broken. Breitbart, not having seen the video in its entirety, had only the inforamtion he had to go by. Judging by the reaction of those in the audience, Breitbart proved his point. There are racists in the NAACP, like there was ever any doubt. Doug, on websites frequented by real lawyers, many say discovery will be edifying. I suspect Shirley has not lived in a vacumn and there is some question as to the pigford settlement and just how many thousands of people are entitled to a piece of that settlement, how the Sherrods were damaged to the tune of $300k. This settlement is beginning to look a lot like redistribution of wealth as advocated by the Obama admin. If so, the American people need to be alerted to the scam going on at USDA. Doug, I’ll bet you your law practice such as it is, this does not turn out well for Charles and Shirley Sherrod and the Obama scam.

  13. Zelsdorf Ragshaft III says:

    WT, Breitbart was not trying to prove she was the racist, it was to prove there are racists in the NAACP. Breitbart does not have a history of targeting individuals but rather organizations who seem to present other that what they are. The NAACP accused the Tea Party of harboring racist and those blacks who were participating were uncle Toms. I wonder what evidence S. Sherrod has that Breitbart want a return to Slavery and Fox news wants African Americans to walk around with their heads down? She have any evidence to back up that claim. Talk about knowingly or negligently making a statement with out any proof. Why that just might constitute SLANDER. By the way, are you familiar with the thoughts and acts of one Charles Sherrod? Discovery will be fun.

  14. wr says:

    ZR: Once again, Breitbart had a short piece of what was clearly a longer tape. (If he’s not lying.) He deliberately chose to post it with an inflammatory accusation without — by his own admission — doing anything to ascertain the truth. And, hey, a bunch of morons believed him. Of course those same morons still believe him now that the entire tape shows him to be a liar and a fraud, but some people choose to be stupid.

  15. sam says:

    @Plunk

    “How could Breitbart slander her with her own speech?”

    Seriously?

    Steve Plunk says, “I lust after little boys’ exuberance; their energy; and their just flat out ability to have good time. Gosh, I envy them.”

    Now, let’s edit that, dropping out the “‘exuberance; their energy, and … etc.” and put it on the air. What do you say now, Steve?

  16. PD Shaw says:

    I for one wonder what her damages would be. She got ran over and tossed to the winds of the 24 hour media cylce for a few days, and then received a personal apology from the PResident and her job back (presumably without loss of back pay). I wouldn’t be surpised if she’s received job offers superiour to her old job and that reputation was enhanced by the ordeal. I’m not saying she hasn’t been damaged, but her damages might not be enough to cover legal fees (while Breitbart probably has insurance for his).

  17. sam says:

    She might be satisfied with a public apology. I’m pretty sure there’s no dearth of lawyers who would take the case on contingency. If she wins, he’d probably have to pay the legal fees, anyway, right?

  18. Brummagem Joe says:

    PD Shaw says:
    Thursday, July 29, 2010 at 15:39

    “but her damages might not be enough to cover legal fees (while Breitbart probably has insurance for his).”

    I doubt this is about damages and I’m sure there is a ton of small print in Breitbart’s policy that would let the insurance company off the hook if he’s behaved recklessly (assuming he has insurance against this sort of risk which I’d have said was doubtful but we don’t know). Either way if this goes the distance Mr Breitbart is going to spend of lot of time dealing with attorneys over depositions, discovery and all the other ballsache associated with lawsuits. I’m sure some lib lawyers would love to do a discovery on Breitbart.

  19. Sherrod’s damages would not be limited to just her out-of-pocket losses but also to “loss of reputation” damages that would be left to a jury to determine

  20. PD Shaw says:

    @sam, she’s quoted above as saying it’s too late for apologies. Some people bring these lawsuits seeking $1 simply for vindication, but most people that have been slandered and libelled don’t get vindicated with a high profile apology from the POTUS.

    She might find a liberal public interest group willing to do this on a contingency with the aim of discovering bad stuff to publish about Breitbart. But she runs the personal risk of depending upon partisans with their own interests, separate from hers. Ask Paula Jones about that.

    Also, I’m wondering if Breitbart could sue the NAACP for contribution; they may have some republishing liability too.

  21. PD Shaw says:

    @doug, her reputation was largely restored in a week and she’s not like a Hollywood actress whose stock and trade is in her public image. Again, I’m not saying that’s worth nothing, it just may not be worth more than the legal costs of the suit.

  22. sam says:

    Well, PD, Breitbart is living in interesting times….

  23. Drew says:

    My reaction is that Plunk has it correctly. Misleading editing and snippets happen all day long in the media. Wake up, people.

    Further, what are the damages? Breitbart didn’t fire her, the Administration precipitously did, and for obvious political gain. They had no duty to inform themselves?

  24. Zelsdorf Ragshaft III says:

    One more little thing. That was a clip of a total video. It was not edited. What she said is what she said. How the audience reacted is how they reacted. That is evidence. The lie she would be on Beck’s show that night was false. In fact Beck was a defender of her and how she was treated by those who fired her. An example of editing would be the showing of an armed person at a Tea Party Rally. Editing would occur when the size of the picture was adjusted to eliminate the fact the armed individual was an African American. Doug seems to act as a defense lawyer for this administration. Problem is he is not using the whole truth. I wonder what evidence Sherrod has when she states Breitbart wants to take Blacks back to the days of slavery? She better have some because if she sues. He will counter sue and I’ll bet she would lose on the face of that one. Only a racist would make the statement that it is racist to oppose Obamacare. I do not dislike Obama because he is black, I hate him because he is RED.

  25. Steve Plunk says:

    Sam,

    That’s not even a good attempt. I never said any of those words to start with so how can you make the comparison? Do you have me on tape saying those words? Of course not. Your pathetic attempt falls miserably short of proving anything or making any reasonable point. Up your game please.

    As time passes and additional facts are made available the evidence is vindicating Breitbart and making Sherrod look terrible. It was her words, the Administration’s imprudent reaction, and the Media’s quick condemnation that has spun this out of control. Breitbart? He posted an excerpt from a government official’s speech. Should we be condemning that? I think not.

  26. sam says:

    Oh for Christ’s sake, it was a hypothetical used to illustrate a point. You do understand hypotheticals, right? Jesus, but you guys can be dense sometimes.

  27. Brummagem Joe says:

    ” it just may not be worth more than the legal costs of the suit.”

    Depends on the jury, in the right venue it could be substantial. Not that I think this is about damages it’s about making Breitbart back up his claims in a court of law not the court of cable TV or Blogland where he’s going to find the bar a bit higher. The desperate attempts to rationalize Breitbart’s behavior and/or dismiss his legal peril is entertaining but doesn’t have much to do with the legal process.

  28. Zelsdorf Ragshaft III says:

    Discovery would be interesting. We know a lot abouit Breitbart. We would get to learn a lot about Shirley Sherrod. Like since she sued the USDA, how was it she ended up with a job there? How was she damaged by USDA’s not loaning her Pigford money? Is her husband a teacher of Wright’s Black Liberation Theology? Are there any other speeches she made which have racist content? What proof does she have to claim those who oppose Obama policy are racist? How can she be both Christian and Marxist?

  29. Steve Plunk says:

    Sam,

    Your hypothetical failed to illustrate anything so despite your swearing and calling me dense you still haven’t made a point. Apparently I understand hypothetical statements better than you. Swing and a miss, metaphorically.