July 29, 2010 4:51 pm ET
by Joe Strupp
Now that Shirley Sherrod has said she plans to sue blogger Andrew Breitbart for posting an edited video of her comments that he claimed indicated racism, the question arises as to whether she has a case.
At least three attorneys experienced in defamation and libel tell Media Matters for America that she could well win.
“Most certainly she does have a case,” said Attorney Deborah Drooz of Brownstein, Hyatt, Farber, Schreck in Los Angeles, which has handled such cases for Martha Stewart and Aretha Franklin. “What Mr. Breitbart did was to create the false appearance that Ms. Sherrod was a racist. He used that to further his conservative agenda. He deprived the viewer of the ability to decide for himself what Ms. Sherrod said.”
Drooz added, “If he knew that this was only an excerpt, he published it with the knowledge that there was something else. To publish something that created the impression without investigating further, that is acting with reckless disregard for the truth.”
Breitbert, who first posted the clip on July 19 at his BigGovernment.com site, has been under scrutiny after it was revealed the clip misrepresented Sherrod’s message during a speech in March before a group of NAACP members.
Fox then posted an online article reporting on the clip, linking to Breitbart’s video. Breitbart did not seek comment from Sherrod prior to his report; Fox News also gave no indication that they had done so. She was forced to resign later that day.
In the edited tape, she spoke about how she had not initially helped a white farmer as much as she could have in 1986 when he was going to lose his farm. In the posting, Breitbart made it appear as though the story had occurred during her time as a federal official and not 24 years ago when she worked for a non-profit organization, and said that her comments demonstrated racism.
Breitbart also did not include the entire context of the speech, in which she later explained that she learned from the situation and ended up helping the farmer, Roger Spooner and his wife. Both Spooners have spoken out several times to support Sherrod and voice that they would have lost their farm if not for her help.
Sherrod, speaking at a National Society of Black Journalists conference today in San Diego, revealed she planned to sue Breitbart.
Drooz said Sherrod’s status as a public official might be a defense, but that would not stop Sherrod’s chances: “The constitutional malice evidence against Breitbart is rather glaring.”
Two other veteran defamation lawyers said she could have a case against Breitbart or Fox News if certain findings are made.
“The real question would be did he know or have reason to suspect and never inquired that this clip unfairly represented what she said,” Attorney Martin London of New York said about Breitbart. “Are there some facts that could determine that he would suspect it?”
London said that Sherrod must prove reckless disregard on Breitbart’s part and prove his state of mind. He said several pieces of circumstantial evidence could help.
First, that he had the edited clip for at least a day or more: “He had time to check it out and he did not.”
He also noted that Breitbart’s known conservative bent could prove he might have had a motive to discredit Sherrod. “The fact of his political leanings is some evidence that he was out to get her.”
London said the burden would be on Sherrod to prove that Breitbart knew that the tape was edited to present her in a false light, or had cause to suspect it did.
He added that the fact that Breitbart never contacted Sherrod before posting the clip may indicate he had suspicion that she might correct the reporting.
“If he didn’t call her and ask her opinion that is another fact that is important,” London added. “The jury could infer he didn’t call her because she could deny it and he would lose the story.”
Another defamation veteran, Paul Kleven, a lawyer based in Berkeley, Calif., said such a claim could possibly be made more against Fox than Breitbart. Given Breitbart’s history of doctoring videos, Fox should have suspected that a video he provided might have been doctored.
“For them to accept it as gospel and run with it the way they did, they would have reason to doubt his integrity,” Kleven said. “He would be the sort of person they would suspect of doctoring it in some way. Getting it from Breitbart, they would have a reason to believe it could be slanted in some way.”