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Legal Experts: Sherrod Lawsuit Against Breitbart Has Merit

July 29, 2010 4:51 pm ET
by Joe Strupp
Media Matters.org

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.”

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Ken Carman
Admin
11 years ago

I agree with much of this, but I did find the following problematic…

“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.”

I learned long ago that you never let those you are interviewing, writing a news story or article, edit what you write. They’ll never be happy and turn it into a puff piece. Even posting a video I still wouldn’t. However when you so radically edit what someone has said: edit into the opposite, into a lie… expect a response.

RS Janes
11 years ago

It’s an indication that Breitbart’s intentions were to falsely condemn the NAACP for racism — as he’s already admitted — and, by default, Shirley Sherrod. His defense will be, if he’s ever under oath in court, that he’s not a journalist and he doesn’t ‘do’ news — he’s an ‘entertainer’ or ‘blogger’ or worse and he’ll say he has his freedom of speech to say anything he wants about anybody he wants. I would like to see how a jury would react to this idiot confessing he’s not trying to report actual news, but just operating as a political smear merchant. (I think this is why he’s desperate to meet with Sherrod in private and talk her out of the suit.) Perhaps they’ll also get him to tell where the edited video came from originally — I think they’ll find it was the hatchet editing job of a certain little weasel who once pretended to be a pimp (or didn’t actually) in order to falsely smear another group and who’s funding his vile attacks. With Breitbart, a pattern of this kind of false defamation can easily be established and her attorney may even subpoena Fox News to examine their role in the crime. That would be fascinating testimony, too.

I have to disagree with you, Ken: While you should never let those you interview dictate what you write, it’s only fair to allow a response from the focus of your reporting. At least those were the rules I went by when a news director and reporter in radio, and they were shared by others in the business as well, back then.

Ken Carman
Admin
11 years ago

I have no problem with a “response,” though I suppose post publication vs. pre is the disagreement here. I think part of my situation was it in college and we had an administration who still has the kind of reputation where they might shut the whole paper down if it was “pre.” I actually got threatened by one of them: minor story about student financing. She insist on seeing it over and over and then kept insisting on changes. When I balked she threatened to have the paper shut down.

We went ahead and, luckily, she didn’t.

The administration has that kind of rep. A few years ago they didn’t like who the student body voted for for their Pres, so they dethroned him and put in their own guy. Very heavy handed.

I’m guessing in newspapers and such it probably doesn’t get that far these days. If the editor thinks it’s too risky for advertisers or others with power they simple nix the story.

RS Janes
11 years ago

In my day, as news director, I only had the station manager and the owner to worry about, and they did kill stories or demand I rewrite them if they felt they ‘went too far,’ but this happened very rarely. (But I did lose a job at a small market station because I ran a story exposing the gross inepitude of the local police department. The police chief and the mayor were friends of the station owner and I had ‘deeply embarrassed’ them. No harm done; I was ready to leave that job anyway and itching to get into a larger market.)

People I’ve known who have written for newspapers and magazines tell me the editor or publisher just holds the story, sometimes without any explanation of why it was stuffed. The larger the publication, such as a big city daily paper, the more likely they’ll bring the reporter in and patiently explain why the story was nixed. The explanation may be obvious bullshit, but it’s intended to keep the reporter from being angry and get across the message that this area of inquiry isn’t good for their career. Not many warnings of this type are necessary for the point to sink in.

As I wrote in the earlier post, of course the subject of the piece should not be allowed to dictate or alter the story in any way, so I think we agree.

Ken Carman
Admin
11 years ago

I did do radio news, but that was mostly rip and read. At one small station the news director was sick and her notes were horrid to read.

My first on the air news experience I made some comment about “thanks to AP for proving copy that’s impossible to read.” The director reamed me out, rightfully so. If only we had those kind of ethics on a bigger scale these days.

RS Janes
11 years ago

I did a 5 minute rip-and-read newscast every half-hour for a rock station in the Chicago market. I rarely had time to pre-read the copy, or give it any more than a cursory glance. In those days, we had an AP and UPI machine, and we’d just rip according to the heads; the same with the sports and weather. To change the paper, you had to shut off the machine and tape on the new paper roll. Usually, I’d be cognizant of where int he copy I had shut off the roll and take that part out but, one time, I was in a hurry and just ripped off a piece of copy that had a header about the Cubs game that day. My listeners got a laugh when I smoothly launched into: “In sports: at Wrigley Field today, Ernie Banks hit a home run that went from the Rockies to the Gulf of Mexico…” Of course, I had shut off the machine during the sports report and turned it back on right in the middle of the weather, and the copy matched exactly. Fortunately, except for a few amused calls from the audience, management didn’t catch that one. Not so in the case of the B&H Meat Company commericial — but that’s a story for another time.

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