Shirley Sherrod Sues Andrew Breitbart

Shirley Sherrod's lawsuit against Andrew Brietbart promises to be an interesting test of the boundaries of defamation law in the political blogosphere.

As I noted yesterday, Shirley Sherrod has filed a defamation lawsuit against Andrew Breitbart over the video that he posted on her website in July that ended up costing her to lose her job with the USDA:

WASHINGTON — Shirley Sherrod has filed a defamation suit against Andrew Breitbart, the conservative gadfly she alleges triggered her firing by the Obama administration and ignited a national debate on race and reverse discrimination. Sherrod was the Georgia director for rural development for the U.S. Department of Agriculture until last June, when Breitbart posted online a heavily edited video excerpt of her speaking to a Georgia civil-rights group in which Sherrod, an African American woman, suggested that she once discriminated against a white farmer seeking help. The resulting tumult led the USDA to ask for Sherrod’s resignation. But once the entire video was made public, it became clear that Sherrod was talking about overcoming her own racial prejudices. (…) “Although the defamatory blog post authored by Defendant Breitbart purported to show video proof that Mrs. Sherrod exhibited racism in performance of her USDA job,” states the complaint, posted Monday by the website Talking Points Memo, the video Breitbart used was an excerpt “from a much longer speech by Mrs. Sherrod that demonstrated exactly the opposite.” As a result of Breitbart’s actions, the complaint says, Sherrod has suffered “enduring damage to her reputation, as well as emotional distress and financial damages from her loss of employment at USDA.” The lawsuit does not request a specific award and seeks punitive damages. It also requests that Brietbart and his company remove all “defamatory language and video” from his blog at BigGovernment.com — as well as from YouTube. Breitbart was served with the suit late last week while attending the Conservative Political Action Conference in Washington.

The full complaint is embedded below, but here’s the meat of Sherrod’s allegations against Brietbart and his co-Defendants:

3. Although the defamatory blog post authored by Defendant Breitbart purported to show “video proof” that Mrs. Sherrod exhibited “racism” in the performance of her USDA job responsibilities, the short two-minute thirty-six (2:36) second video clip that Defendants embedded in the blog post as alleged “proof” of this defamatory accusation was, in truth, an edited excerpt from a much longer speech by Mrs. Sherrod that demonstrated exactly the opposite. In sharp contrast to the deliberately false depiction that Defendants presented in the defamatory blog post, the unabridged speech describes how, in 1986, working for a non-profit group that helped poor farmers, Mrs. Sherrod provided concern and service to a white farmer who, without her help, would almost certainly have lost his farm in rural Georgia.
4. Specifically, Defendants defamed Mrs. Sherrod by editing and publishing an intentionally false and misleading clip of Mrs. Sherrod’s speech and added the following statements as a narrative to the clip:

• “Mrs. Sherrod admits that in her federally appointed position, overseeing over a billion dollars … She discriminates against people due to their race.”

• Mrs. Sherrod’s speech is “video evidence of racism coming from a federal appointee and NAACP award recipient.”

• “[T]his federally appointed executive bureaucrat lays out in stark detail, that her federal duties are managed through the prism of race and class distinctions.”

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

• Her speech is a “racist tale.”

To this day, Defendant Breitbart publishes these exact same defamatory statements on his website despite his admitted knowledge of the truth. Indeed, he has subsequently stated that he “could care less about Shirley Sherrod,” underscoring that Mrs. Sherrod’s reputation was, at the very least, expected and acceptable collateral damage to his agenda. http://video.foxnews.com/v/4288023/racial-double-standard-in-white-house.

5. As a direct result of the highly-charged internet media environment, where misleading video segments and defamatory accusations can “go viral” and spread to a global audience in a matter of seconds, the defamatory blog post about Mrs. Sherrod — and the deceptive video segments that accompanied it — did extensive and irreparable harm to Mrs. Sherrod and her reputation.

Later in the Complaint, Sherrod alleges the following:

38. None of these five introductory slides — or the defamatory text that appears on  them — were present on the video of Mrs. Sherrod’s speech prepared by the NAACP, or the video of the full speech that had been broadcast repeatedly on DCTV3 in Douglas and Coffee Counties. On information and belief, Defendants O’Connor and/or DOE, at the specific direction and with the full knowledge and consent of, Defendant Breitbart, added the introductory slides and defamatory text to the video clip embedded in the blog post. Defendant Breitbart then repeated, republished and adopted as his own the false and defamatory statements in the introductory slides when he embedded the video clip containing those introductory slides and text into his independently defamatory blog post — and published the slides and text to a worldwide internet audience on BigGovernment.com.

39. In addition to the false and defamatory statements directed specifically to Mrs. Sherrod, the introductory slides that the Defendants added to the video segment contained false statements of fact about the position that Mrs. Sherrod held at the time that she allegedly “discriminate[d] against people due to their race.” Despite the fact that Mrs. Sherrod’s story regarding her dealings with the Spooners described events that had occurred in 1986 — twenty three years before she was appointed to her federal position — the introductory text falsely states that Mrs. Sherrod “discriminates against people due to their race” in “her federally appointed position,” in the course of administering “over a billion dollars” of federal funds. Only later, after Defendants’ deceptive editing of the video was publicly revealed, did Defendants add a “disclaimer” box to the introductory slides that stated: “While Ms. Sherrod made these remarks while she held a federally appointed position, the story she tells refers to actions she took before she held that federal position.” The disclaimer did not appear on the video at the time it was initially embedded and published and at the time that the media firestorm ensued.

40. Defendants knowingly and intentionally edited the video of Mrs. Sherrod’s speech in a false, deceptive and misleading manner, with the specific intent of creating a video clip to support the conclusion that Mrs. Sherrod “discriminates against people due to their race” in the performance of her government job duties. In truth, Mrs. Sherrod’s story demonstrated exactly the opposite point. Specifically, Defendants knowingly and intentionally edited the video of Mrs. Sherrod’s speech to conceal Mrs. Sherrod’s true message and instead misleadingly presented only a short excerpt of the speech in which Mrs. Sherrod recounted her initial, internal struggle about helping a “white farmer.” Defendants’ selectively-edited video segment intentionally left out critical statements in the speech both before and after the portion that was presented.

This is just the opening Complaint, of course, and there’s much more to come as this case makes its way through the Courts.  Brietbart will file his response, as will the other Defendants, and discovery will commence, but reading through the Complaint it strikes me as a fairly well-developed defamation claim that is likely to at least survive any preliminary legal challenges.

Perhaps most interesting of all is who is representing Sherrod in this lawsuit:

The complaint is telling for just who Shirley Sherrod’s attorneys are, and it is a very significant point. There are a team of four attorneys at the DC office of Kirkland & Ellis, Thomas Clare, Michael Jones and Beth Williams with the lead being one Thomas D. Yannucci. And who is Tom Yannucci? Glad you asked. He is, if not the preeminent, one of the most preeminent plaintiffs defamation attorneys in the United States. From a September/October 2000 Columbia Journalism Review article:

In-house lawyers at top news organizations describe him as “extremely aggressive,” “very effective,” a straight shooter, and someone who, more than any other plaintiffs’ lawyer, “strikes fear in news organizations’ hearts.”

It is not hyperbole. Yannucci is the attorney who embarrassed and gutted NBC’s Dateline on the fraudulent GM exploding gas tank story and who obtained a page one above the fold retraction from Gannett Newspapers and the Cincinnati Enquirer, and reportedly $18 million dollars, in the Chiquita Brands story.

In other words, not the kind of attorney who would take on a case he didn’t think had a pretty good chance of succeeding. This one is going to be very interesting to watch.

Here’s the Complaint: Shirley Sherrod v. Andrew Brietbart et al

FILED UNDER: Law and the Courts, Race and Politics, 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. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Chad S says:

    If there’s dirt, Brietbart will settle quietly, then claim victory.

  2. Michael Reynolds says:

    A couple of days ago I made the point that it wouldnt be Sherrod who had to worry about discovery – assuming she had competent counsel. Well. Question answered.

  3. sam says:

    He’s not helping himself with this, Breitbart Changes Tune On Why He Released Sherrod Video. Hard to believe that his lawyer hasn’t told him to shut up.

  4. PD Shaw says:

    If I were Breitbart’s attorneys, I’m going after Secretary Vilsack. He sets the standard for investigating an accusation before taking action; he is the more immediate causation of her injuries and arguably the primary source of her damages.

  5. superdestroyer says:

    Sherrod must feel that she is bulletproof on discovery. I wonder if her lawyers will let it get to that point. On the other hand, maybe Sherrod is just lawsuit happy since she had made so much on previous lawsuits.

  6. Rock says:

    I found this article last year during the Breitbart & Sherrod dustup. I assume most of you have read it. If not, it’s worth the effort to do so. While it doesn’t rank up there with the Pigford scam, it does give some insight into events worthy of discovery.

    The Other Side of Shirley Sherrod:

    http://www.counterpunch.org/wilkins08022010.html

  7. ponce says:

    Couldn’t have happened to a nicer guy.

  8. Nikki says:

    That article that Rock links to contains a lot of innuendo, but no evidence against Sherrod. The author posts a link to purported supporting evidence, but the link goes to the main page of the UFW archives and it is left to the reader to find the referenced article.

  9. John Burgess says:

    Still, this one’s worth stocking up on popcorn. Discovery is going to be tons of fun, no matter which side you’re rooting for.

  10. PD Shaw says:

    I can’t root for Breitbart, he’s a slimeball. But I’m struck by the most important part of the complaint (p. 25) where the actual malice argument is made, and as I read it her attorneys are saying that this was so obviously only a portion of a longer speech, that his release of the clip and commentary on it could only have been malicious.

    Shouldn’t Secretary Vilsack also have known better? Or is Breitbart charged with foreseeing that Sherrod’s boss was a vapid, empty suit that would fire his mother if he thought it would make the administration look good?

  11. Kylopod says:

    If I were Breitbart’s attorneys, I’m going after Secretary Vilsack. He sets the standard for investigating an accusation before taking action; he is the more immediate causation of her injuries and arguably the primary source of her damages.

    Vilsack was not the one who published the bogus claims. Therefore, he cannot be guilty of defamation.

  12. sam says:

    @John Burgess

    “Discovery is going to be tons of fun, no matter which side you’re rooting for.”

    As much as I’d like to be privy to the discovery process, I don’t think I — or any of us — will be. After all, it’s not public. Besides, at the pre-trial hearing, assuming it even gets that far, there will be motions from all sides to throw this or that out as irrelevant to the issue at hand. And, unless I’m mistaken, the pre-trial hearing won’t be public. The judge is unlikely to allow in all the dirt one or the other sides digs up. He or she won’t, I think, allow the case become “Look who’s the bigger shitbag.” He or she will narrow what’s allowed in to what’s relevant to the core claim.

    Assuming it even gets that far. A lot of these cases are resolved during discovery because “Jesus, suppose somebody does find this out” or “Jesus, this is costing us a fortune and there’s no end in sight.” A lot of the times, it’s the “costing us a fortune” thing that propels settlement.

  13. superdestroyer says:

    Sam,

    If Breitbart settles, then there will be ten more lawsuits tomorrow. If Sherrod wins, then every member of the CBC will be suing the media hoping to cash in.

    Brietbart would be a fool to settle because it will be more expensive in the long run.

    As an anecdote, I once heard a talk from an attorney that defends nuclear power plants. He remarked about how few lawsuits there are against nuclear power plants since the nuclear power industry never settles. A plantiffs attorney knows that suing a nuclear power plant will costs a huge amount of money and will take years. Brietbart will either have to adopt the same strategy or go out of business.

  14. PD Shaw says:

    kylopod, you don’t have to sue the Secretary to go after him, the defense can point to the empty chair.

    Look, she’s arguing that “it is blatantly obvious” that the clip was part of a larger speech, and for him to do what he did, couldn’t simply be carelessness or negligence, it was a malicious effort to hurt her. The same would necessarily be true of the Secretary if it was so obvious.

  15. You make no mention of the much higher standard it seems Mrs. Sherrod will face as a public official. Care to comment?

  16. MarkedMan says:

    As for Vilsack being a worse a*hole than Breitbart, it may be interesting, but it has no relevance to the case. The fact that Mugger B punched you in the head twice while Mugger A only punched you once is not a serious defense of Mugger A.

  17. PD Shaw says:

    What if you’re beat-up twice on the way home, and you sue only one of them, because the second was just a misunderstanding. What do you think the defense strategy will be?

  18. Brummagem Joe says:

    “Brietbart would be a fool to settle because it will be more expensive in the long run.”

    This is a highly questionable assertion. Deep pocketed media businesses seldom create the same level of legal exposure for themselves that Breitbart has done. In fact Breitbart would be well advised to settle and probably will before discovery starts because with a lawyer of Yannucci’s standing he’s going to be on a fishing expedition mega proportions. I hope Breitbart demonstrates his heroism but I doubt he will.

  19. Brummagem Joe says:

    PD Shaw says:
    Tuesday, February 15, 2011 at 10:01

    With your legal knowledge you should be on the supreme court …or Judge Judy.

  20. jpe says:

    @ PD Shaw — Vilsack didn’t have access to the whole speech. Breitbart did. The argument is that the very selectiveness of the editing is proof enough of malice.

  21. PD Shaw says:

    jpe, I don’t think the complaint is necessarily relying upon the assumption that he previously had the whole tape; I don’t think they are sure. That will be for discovery. But at a minimum they are arguing that it was obviously a tape of only a part of a speech, and he had a duty to investigate the remainder of the speech before making such highly-charged accusations.

    It’s just a very interesting identification of the issue when so many actors (Vilsack, the NAACP, MSM) did not feel the same obligation.

  22. reid says:

    PD, Breitbart et al had all the time in the world to do what they did. Vilsack and the rest were reacting to a PR bomb that had exploded on them. Yes, they shouldn’t have been so quick to punish her, but the situations are very different. I’m not a lawyer, but your strategy seems strange….

  23. jpe says:

    @ PD Shaw: see page 18 of the complaint: “Through these and other deceptive editing techniques, Defendants deliberately edited the full video of Mrs. Sherrod’s forty-three minute speech down to a short, highly misleading two-and-a-half minute clip that Defendants knew, or should have known, would portray Mrs. Sherrod in a false and defamatory manner. Given the extensive and misleading nature of Defendants’ edits to the video, the addition of defamatory introductory slides and the inflammatory placement of the deceptive video segment amid defamatory text and headlines in the blog post, it is abundantly clear that Defendants’ defamation and disparagement of Mrs. Sherrod was done intentionally and with actual malice.”

  24. sam says:

    Joe beat me to it. Breitbart is not a nuclear power plant in terms of the depth of his pockets (unless the Koch Bros. come riding to the rescue). Civil suits are often settled before discovery begins or during it because one of the parties realizes the $$ that discovery is going to cost. And, as Joe said, when your opponent is Yannucci, well, fasten your seat belt.

  25. PD Shaw says:

    sam, I would expect he would have insurance, libel coverage is typically standard in a CGL policy.

    I guess it all depends on what this case is about, money or principle?

  26. PD Shaw says:

    jpe, the complaint conflates at various times a few different things. One is whether Breitbart had a copy of the entire speech at the time, for which there appears to be some dispute, and second is whether Breitbart edited whatever tape he did have, which I do not believe is disputed. I’m looking specifically at paragraphs 63 and 64.

    Part of the problem was that while Breitbart edited it down, while keeping in some of the context showing how her basic “humanity” led her to see that the white farmer needed help too, the MSM that picked up the story edited it down further.

  27. Anderson says:

    “You make no mention of the much higher standard it seems Mrs. Sherrod will face as a public official”

    Actual malice. The complaint aims for that.

  28. Todd says:

    @Nikki – I googled site:www.farmworkermovement.org “Children Farm Workers Strike Black Co-op” and found the article. It doesn’t seem as damning as suggested on the Counterpunch site, but it does provide evidence that a Charles Sherrod was in a dispute with the UFW.

    Here’s the link:
    http://www.farmworkermovement.org/ufwarchives/elmalcriado/1974/No.%209%20September%2028,%201974.pdf

    (assuming that works)

  29. Brummagem Joe says:

    PD Shaw says:
    Tuesday, February 15, 2011 at 15:04
    sam, I would expect he would have insurance, libel coverage is typically standard in a CGL policy.

    Well that means his future premium will go through the roof !

  30. Farmer Dave says:

    PD Shaw, who cares how Vilsack or the NAACP reacted? The only legal issue is whether Breitbart, with actual malice, committed libel. Unless you are alleging that Vilsack and the NAACP also saw the whole video, and then edited it down to misrepresent Sherrod’s position, your whole line of argument is irrelevant.

    The proper analogy isn’t being mugged by one or two people, because the actions of the two parties you’re comparing (Breitbart and Vilsack) are totally different. A better analogy would be Breitbart mugged Sherrod, and Vilsack refused to help her out. But in no way do Vilsack’s actions have any bearing on the question of libel.