If I Were Shirley Sherrod’s Attorney…

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Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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32 Responses

  1. Avatar North says:

    Agreed Mark. If she decides to wrestle this pig they’re both gonna get dirty but the pig’ll love it.Report

  2. Avatar Aaron says:

    You foresee Breitbart filing counterclaims against Sherrod? What facts or legal theories do you have in mind that could actually support a counterclaim?Report

    • Avatar Mark Thompson in reply to Aaron says:

      @Aaron, I expect that he’d take a tit-for-tat strategy and try to make an issue out of her subsequent comments accusing Breitbart of racism and wanting a return to slavery.

      These counterclaims would probably have even less merit than hers (despite my use of the word “equally” above) since her statements were far less deliberative (having been given in an interview), but they’d certainly give Breitbart extra room for grandstanding.Report

  3. Avatar Jaybird says:

    Oh, my god, the discovery in this would be obscene.Report

    • Avatar Mark Thompson in reply to Jaybird says:

      @Jaybird, That’s exactly why filing this complaint is such a bad idea for Ms. Sherrod.

      I can predict the outcome of discovery right now, in fact: Breitbart opponents will find that all of their worst assumptions about Breitbart and conservatives are confirmed; Breitbart supporters will find all of their worst assumptions about Sherrod, the NAACP, and the Obama Administration are confirmed; and Ms. Sherrod will have had every single little thing she’s ever done forced under a microscope and dissected in painstaking detail. She’s human, so bad things will be found. But even if they aren’t, the process will remain humiliating and invasive. The inquiry into Breitbart’s actions will be intensive, but far more limited in scope.

      I predict that no matter the strength of her desire to score a blow against Breitbart and conservative media, and no matter what kind of result she gets from the case, she will wind up regretting this suit.Report

  4. Avatar Michael Drew says:

    Every informed person I’ve heard comment on the prospects of such a suit gave the same opinion as far as I can recall. “There is no such thing as an open-and-shut defamation suit” is the quote I seem to remember, and I don’t see how this wouldn’t even be a candidate for such.Report

  5. Avatar trizzlor says:

    This seems like a reflexively defensive position quite similar to the one that many center-left commentators took with regards to the initial NAACP statement that sort of sparked the whole mess. Essentially “Don’t hit the the far-right because they’ll hit back harder and flood the zone with misinformation”.

    While I’m weary of the temptation of spite politics, the actual facts are that Ms. Sherrod was wronged, both by Breitbart for being an unscrupulous reporter and by the people who fired her for not considering her side of the story. This much is not in dispute, and regardless of her legal chances, Ms. Sherrod deserves her day in court to confront both parties. That’s just the right and proper thing to do, and we should encourage people to stand up to the kind of cowardice displayed by Breitbart and Vilsack rather than accept it.

    Politically speaking, while the law might be imprecise on this, the facts are on her side. No matter what the defense digs up on her or her husband or her, all the blame whitey tapes in the world won’t change the fact that Breitbart took a doctored videotape, didn’t bother to watch the whole thing or do any fact-checking, and broadcast conclusively that the person on the tape is a racist. Do you really think people are going to be scrutinizing Shirley Sherrod when the right cranks this kind of shit to eleven in Breitbart’s defense?Report

    • @trizzlor, I think this is a lot different actually. And to be sure, some of this is colored by my general distaste for defamation actions.

      But my point here isn’t so much that “the Right’s just going to come back and hit you with misinformation,” as it is “litigation is not a path that should be undertaken lightly, and especially not by individuals.” Not because they don’t deserve their day in court, but because it’s quite easy for that day in court to come at a tremendous personal toll. It’s all well and good for supporters to cheer her on and hope that she scores a blow against Breitbart, but they should keep in mind that they won’t be the ones going through the litigation, having depositions taken, etc. That’s a lot to ask of one person for what is likely a long-shot chance at a favorable verdict.

      In other words, this isn’t a question of whether her suit is a politically wise idea for liberals. It’s a question of whether the suit will do her more personal harm than good.Report

      • Avatar trizzlor in reply to Mark Thompson says:

        @Mark Thompson, That’s fair. My issue was primarily with your conclusion that Breitbart’s reputation will not suffer as a result. Rather, I think that if he defends himself by character assassination (which, of course he will) he will come out looking even worse because the facts are patently not on his side. In that sense, if Sherrod wants Breitbart to be held responsible, I think this is a reasonable way to do it, even if she loses the suit. Weather or not she’s prepared to crawl through mud to get there is up to her, and she doesn’t seem to me to be a weak woman, but I’ll cede that point.Report

      • Avatar Imaginary Lawyer in reply to Mark Thompson says:

        @Mark Thompson, you don’t think Sherrod and her attorneys have considered this?Report

  6. Avatar Will H. says:

    I filed a defamation suit in Milwaukee County.
    The opposing party (a blogger) was in Missouri. I could choose either venue, and I went with Milwaukee because the Wisconsin courts have held that damage is inherent in all libel, ie it need not be proven as a separate element of the case.
    There’s a lot to verify, sure. And it takes a long time. It is indeed quite expensive, and comes with a heavy personal toll.

    That said, in Ms. Sherrod’s case, there are two main sticking points (from my somewhat limited knowledge).
    The first is “innocent construction.” This goes back to the fact that Breibart used an excerpt from an interview, and not his own, to defame her.
    The other is “actual malice.” That’s the standard for a public official. No matter what he may have said before, that’s all commentary, and protected speech. She has to show personal motive on the part of Mr. Breibart, and I don’t think that being diametrically aligned politically is sufficient to prove actual malice.
    I’m sure there are considerations in the choice of venues, but I’m not familiar enough with the particulars to say what they would be.

    She might as well file for recklessness for all of the other news outlets that carried the story without verifying it.Report

    • Avatar Will H. in reply to Will H. says:

      @Will H., fwiw, in my defamation suit mentioned above, I was accused of having forged the signature of a judge in a civil (sic) proceeding. Definitely not true.
      This is a crime, and that’s the sort of thing that constitutes defamation.
      Proof of authorship is a bit more touchy. This occurred on the Blogger platform, a Google property. The defamatory material was deleted in an effort to make it unavailable (destruction of documents is quite common in defamation cases), but backups are required by law to be held for a number of years.
      To recover this evidence, it was necessary to procure an attorney in Santa Clara County, California, to serve Google with the discovery documents from a court in the same jurisdiction as their primary place of business.
      As I said, there’s a lot to it.
      But I had went looking specifically for an attorney who had successfully prosecuted a libel case against a blogger.
      That incident had to do with a receptionist at a law firm that had a blog where she discussed clients of the firm. Not a good policy.
      Most of what is published on blogs falls under the same rules as magazines, but there are special rules for electronic evidence. It gets kind of touchy.Report

  7. Avatar Boonton says:

    I kind of recall a few years ago conservatives cheering on some Texas cattlemen who sued Oprah for ‘defaming the beef industry’ or some such nonsense so I’m going to say go with it! Let’s see if Breitbart’s supporters really have the rhetorical courage to make him a ‘free speech martyr’. The gist of your argument here seems to be right wing wackos should be given yet another pass because to do anything else about it will just get them all excited.

    Yes she was gov’t official and that does set the bar higher. In this context, I’d say racism is not just name calling. It’s an assertion that she is of low character (i.e. some type of white-hating radical black panther type) and corrupt (i.e. inclined to use her position in an illegal manner). That’s not a criticism of gov’t policy but a personal attack on an individual’s character and yes that is exactly what defamation suits were designed for. Yes Breitbart has a defense but the woman has a case. She was raked thru the coals, lost her job and probably was subjected to death threats until the right wing machine realized its error and backed off. She should have her case heard and maybe, just maybe, ilk like Breitbart will actually have an incentive to add some better reporting practices in their partisanship rather than just running with anything that sounds like it will serve their ideological agendas.Report

    • Avatar Mark Thompson in reply to Boonton says:

      @Boonton, “The gist of your argument here seems to be right wing wackos should be given yet another pass because to do anything else about it will just get them all excited.”

      Not at all – if liberals want to investigate the hell out of this as group or pass resolutions calling Breitbart a racist or anything like that, I’ve got little to say. Hell, if the NAACP as a group wanted to file suit, I’d probably not say much of anything (although its chances of success would be even slimmer) – organizations don’t have to experience emotional, non-economic tolls and litigation for them is no more than a line item in the budget.

      And while this may fit within the purpose of defamation law, defamation law is heavily restricted in this purpose by the First Amendment and the balance struck with the First Amendment is fairly clear in most locales on issues of this nature. That Breitbart suggester her to be an extremist or someone of low character is something that every case I’ve looked at considers to be a pure statement of opinion that is entirely an issue of free speech (with the exceptions noted above). I’m also not sure how what Breitbart posted implied that she was corrupt in the sense of being willing to use her position to violate the law. An implication of racism by a government official does not equate to an implication of corruption.

      Moreover, whether she is entitled to have her case heard is irrelevant to the point I’m making here, as I say above. I’m saying that the personal toll – without regard to the political toll, about which I care not at all – of having her case heard will be more than she can possibly hope to recoup. Even a victory for her will wind up Pyrrhic.Report

    • Avatar Jaybird in reply to Boonton says:

      @Boonton, saying that a victory, if achieved, would be pyrrhic and, thus, best avoided is hardly the same thing as saying that bad folks ought be given a free pass.

      This is an arena where the battle is best fought in public opinion and *NOT* the courts.Report

  8. Avatar Boonton says:

    The NAACP or ‘liberal groups’ have no grounds to sue him. His damage was not done to them but to her and while a trial can certainly be ’emotional’ having your life ruined by someone else’s defamation of you is much more emotional. Yes its nice that after the fact people came to her defense but the damage was done to her by him and she has a right to sue.

    The First Amendment protects speech from gov’t interference. It does not prevent private victims of defamation from suing to recover for their damages. He didn’t express an opinion that she was a racist, he asserted falsely that she acted to discriminate against whites because they were white. As a gov’t employee that’s charging corruption as discrimination is illegal and in terms of her reputation its defamation as most private sector positions would disqualify someone who would use their job as a platform for discrimination. Now if she wants to turn the other cheek or if she simply does not want to deal with the time and emotions of a trial that’s her business, but I don’t see that as a convincing reason for her to be advised against suing him. She has a case and should be heard. His ‘free speech rights are not in jeopardy.Report

    • Avatar ThatPirateGuy in reply to Boonton says:

      @Boonton,
      If this isn’t slander then what is?

      Are we going to ignore all slanderous statements?Report

      • @ThatPirateGuy, See below. Not all slander is actionable slander or defamation. You have to demonstrate actual falsity (and in this case actual malice, as well), and false opinions don’t count.

        What would count? A good illustration is the following:

        “ThatPirateGuy is an alcoholic. I have seen him going into the pub across the street every single night for the last year and a half. One night, I actually went in to the pub and watched him do 20 shots.”

        If, in fact, you have not been to the pub across the street from me most nights in the last year, or if you never drank anything approaching 20 shots at said pub, and you are not an alcoholic….you will win your defamation claim.

        If, on the other hand, you are not an alcoholic but have been to the pub across the street from me most nights in the last year and one night in fact did something approaching 20 shots….not legal defamation.Report

    • Avatar Mark Thompson in reply to Boonton says:

      1. I only said that the NAACP could sue him (and they really could – it was an NAACP event and Breitbart explicitly levelled the same charges against the NAACP as he levelled against Sherrod, and then added a bunch of other charges on top of that).

      2. “while a trial can certainly be ‘emotional’ having your life ruined by someone else’s defamation of you is much more emotional.” I’ve known people who would strongly disagree with this assertion. But even if it’s true, it assumes that (“emotional and economic benefits of favorable verdict ” x “odds of obtaining favorable verdict”) is greater than (“emotional toll of years of invasive discovery, litigation, and appeals”). I cannot see a circumstance in which that equation would be valid right now.

      3. “Yes its nice that after the fact people came to her defense but the damage was done to her by him and she has a right to sue.” Absolutely agreed, and I’ve never denied that. That still doesn’t mean that she will, on average, wind up better off from the suit.

      4. “The First Amendment protects speech from gov’t interference. It does not prevent private victims of defamation from suing to recover for their damages.” This is correct, but misleading. Defamation suits are limited by the First Amendment, a narrow exception thereto. Simply alleging defamation does not overcome the First Amendment; you need to show that the defamatory speech was of the sort that the courts have found unprotected by the First Amendment. In the case of a government official being criticized as a government official, this means you’ve got to show actual malice (a tremendously high bar), and a whole bunch of other stuff. And opinions have absolute protection under the First Amendment no matter how insane (admittedly, the line between opinion and fact is extremely blurry, though).

      5. “He didn’t express an opinion that she was a racist, he asserted falsely that she acted to discriminate against whites because they were white.” This is incorrect. The whole point of her story was that one time, long, long ago, she did in fact discriminate against whites because they were white. This fact was taken completely out of context, particularly given that her story went on to say that she quickly realized the error of what she had done. But it is a fact nonetheless.
      6.”As a gov’t employee that’s charging corruption as discrimination is illegal and in terms of her reputation its defamation as most private sector positions would disqualify someone who would use their job as a platform for discrimination.” No, it is not charging corruption – not all illegal acts by a government official are corrupt, which implies a criminal act and discrimination is not a criminal act. Moreover, Breitbart never explicitly said she committed this act while a government employee (in which case it may not have been illegal at all) and quickly issued a correction to clearly state that the act occurred before she was with the government.

      None of this excuses what Breitbart did or makes it honest, but law and morality are two extraordinarily different things.
      Nor will Breitbart get off scot-free here – his reputation has already taken a substantial hit amongst all but his loyal acolytes (who unfortunately are large in number). His credibility is shot with all but those acolytes, which hopefully means that any stories he tries to push in the future will be ignored by the rest of the world.

      But what he did is really no more a colorable case of defamation than if he had simply reported, without posting any video, something along the following lines:

      “The Obama Administration has appointed Sherrod to the USDA in Georgia. We have learned that Sherrod has a long history of discriminating against whites, including at least one instance where she has even acknowledged that she refused to do all she could for a white farmer on account of his race, and instead sent him on his way to find “one of his own kind” to help him.

      Not only does Sherrod have a history of racism, but this racism is emblematic of the NAACP. Indeed, when she told the above story to an NAACP audience at a recent event, audible laughter could be heard.”

      This story would still be completely despicable, but it is not remotely a defamation claim. Every fact alleged is true. No additional – but knowingly false – facts are implied. But lots of conclusory opinions can be reached. That most people would find those conclusions to be wrong with more facts is not relevant.

      But, you say, doesn’t he have a responsibility to disclose that her speech went on to say that she realized what she did was wrong? A moral responsibility, yes; a legal one, no. Doing so would not change the factual accuracy of his accusation that she has a history of racial discrimination including the aforementioned incident. All it would do is change the opinions most people would draw. But what if Breitbart himself would not draw that opinion; what if, in fact, he simply doesn’t believe that she sufficiently realized the errors of what she did? Does he not have the right to express that opinion without fear of retribution?

      Again, none of this is to defend in any way, shape, or form what Breitbart did. It is simply to say that I have a very difficult time seeing how Ms. Sherrod would have a sufficiently strong chance at winning a defamation action as a legal matter, no matter what her injuries, to make the toll of litigation personally worthwhile for her.Report

  9. Avatar Boonton says:

    Simply alleging defamation does not overcome the First Amendment; you need to show that the defamatory speech was of the sort that the courts have found unprotected by the First Amendment. In the case of a government official being criticized as a government official, this means you’ve got to show actual malice (a tremendously high bar), and a whole bunch of other stuff.

    And this is why the ‘free speech’ cries are spurious. If Breitbart loses a defamation case, it will hardly be because he lacks free speech protections.

    No, it is not charging corruption – not all illegal acts by a government official are corrupt, which implies a criminal act and discrimination is not a criminal act.

    Asserting that she actively discriminates on the job is defamation just as much as falsely accusing her of being an alcoholic is defamation even if being an alcoholic isn’t technically illegal.

    Nor will Breitbart get off scot-free here – his reputation has already taken a substantial hit amongst all but his loyal acolytes (who unfortunately are large in number). His credibility is shot with all but those acolytes, which hopefully means that any stories he tries to push in the future will be ignored by the rest of the world.

    That’s all well and good, maybe, but irrelevant. Sherrod was defamed and harmed and if she wins it would hardly be an empty victory, she would collect good money and Breitbart will pay her good money. For the rest of us defamation law is our friend not our enemy. Lack of defamation laws let’s journalists get too sloppy, substituting sensational lies for good reporting. Yes it’s possible to have too much defamation protection, in which case you make it almost impossible for honest criticism but as you point out the US has a well balanced law here.Report

    • Avatar Mark Thompson in reply to Boonton says:

      @Boonton, @Boonton,
      “And this is why the ‘free speech’ cries are spurious. If Breitbart loses a defamation case, it will hardly be because he lacks free speech protections.” But the point is that free speech protections are exactly why Breitbart will win.

      “Asserting that she actively discriminates on the job is defamation just as much as falsely accusing her of being an alcoholic is defamation even if being an alcoholic isn’t technically illegal.”

      That’s not my position though; you said one of her bases for suit is that he accused her of corruption, which he plainly did not. Nonetheless, asserting that a government official is a racist or “sees her job through a prism of race….” is simply not the sort of false assertion of fact that would give rise to a defamation suit. Ditto a blanket accusation of alcoholism in most situations, at least not unless the defendant knows the person well enough to know that they’re not.

      Not every defamatory or misleading statement gives rise to a colorable defamation suit.

      Whether or not you consider defamation law a friend or an enemy, defamation is an extraordinarily difficult case to prove, and it’s quite easy for the costs of proving that case to exceed the benefits of prosecuting it, even successfully. That is just the reality of defamation law. That goes doubly true where you’re talking about a government official, criticism of whom gets an even higher level of protection under the First Amendment. You may not like it, but that is the state of defamation law in the United States unless you are aware of precedent that I am not.Report

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