If I Were Shirley Sherrod’s Attorney…
I’d strongly advise against this course of action. It is certainly true that what Breitbart did was wrong and blatantly misleading. To the average person lacking a preexisting loyalty to Breitbart, the defenses Breitbart has raised have come across as hollow and implausible, or at least woefully poor excuses that amount to an admission of extraordinary recklessness. And I have no idea what kind of distress Ms. Sherrod may or may not be experiencing as a result of all this, regardless of the fact that this incident will open up plenty of opportunities for her to make her government salary many times over in our media environment. Certainly, if she is experiencing real and credible death threats as a result of this never-should-have-happened circus, those opportunities may well be woefully inadequate.
But a defamation suit is not the right answer, either. I don’t say that because I’m a First Amendment absolutist; in fact, as far as defamation suits go, this one will likely be less chilling than most. I say this because her suit is extraordinarily unlikely to succeed. I say this because the costs of emotionally-charged litigation, as this would be, go far beyond the money one pays their attorney, and especially if that emotionally-charged litigation turns out unfavorably. All of this will be exacerbated by the massive public relations battle that will be involved in this fight and the equally unlikely to succeed counterclaims that Breitbart will file in response. Worse, if and when she fails to obtain a verdict against Breitbart, Breitbart will be able to position himself as a champion of free speech and take to the airwaves to proudly, if wrongly, proclaim that the verdict demonstrates the correctness of his initial allegations.
And Sherrod’s case will almost certainly fail. Sherrod was, at the time of her speech and at the time of Breitbart’s post, a government official. Breitbart’s attacks on her, while morally indefensible, were attacks in her official government capacity rather than attacks on her as a private citizen. This fact makes the already-high bar for proving a defamation case even higher. The video Breitbart posted, by itself, is certainly misleading and irresponsible. But there’s no denying that she told the story that she told. The story she told is absolutely a legitimate subject for public commentary and reporting, of and by itself, and regardless of whether it was published in full context.
Although it was only on the basis of that highly misleading video clip that Breitbart was able to credibly call Sherrod a “racist government official,” the accusation of racism is a pure statement of opinion about a government official in their capacity as a government official. Actually, that’s putting it too mildly – accusations of racism fall within the category of “”name calling, epithets, and abusive language,” which “no matter how vulgar or offensive, are not actionable.” Ward v. Zelikovsky, 136 N.J. 516 (1994). At this point, in fact, it is generally the rule that “Accusations of “racism” no longer are “obviously and naturally harmful”. The word has been watered down by overuse, becoming common coin in political discourse.” Stevens v. Tillman, 855 F.2d 394 (7th Cir. 1988).
Although there are some instances where an accusation of racism was found to be defamatory, those cases are typically older and in each case the primary reason the accusation was considered actionable seems to be that the topic was found entirely a topic of private concern. Kimura v. Superior Ct., 230 Cal. App. 3d 1235 (6th A.D. 1991)(noting that “the public concern factor weighs heavily in favor of protecting the speech, and its absence may have influenced [a] decision which found the implied accusations of racism actionable.”). Criticism, no matter how abhorrent, of Sherrod in her capacity as even a relatively low-level government official is nothing if not a matter of public conern.
It’s simply impossible to see any way that Sherrod could win this suit. In the meantime, she will have to endure the stress of an emotionally-charged litigation, continuing public scrutiny, and an almost certain upsurge in vitriolic commentary from Breitbart and his supporters. The one saving grace will be that the suit will be unlikely to survive a motion to dismiss, so at least these stresses will last but a few weeks or months rather than years. This of course says nothing about the additional stresses that will come if and when the suit is tossed out and Breitbart and his supporters get to celebrate.
And what if I’m wrong? What if she somehow wins? This will mean that in all likelihood the litigation lasts years. That kind of litigation takes a very real toll on people in an emotionally charged situation. And what will she have gained? Breitbart’s supporters will just make him a martyr to speech and will make sure that he doesn’t pay a dime of your damages. There will be no revenge, and Breitbart’s reputation will be no worse than it already is and will likely be even better amongst his supporters. If she doesn’t care about the revenge and just wants compensation for her damages, she will be able to do far better simply focusing on maximizing other streams of income (of which I have no doubt there will now be plenty).
UPDATE: Libby Spencer (and how the heck are ya these days, Libby?) suggests Sherrod could also have strong contract claims against Breitbart. This has little better possibility of success than a defamation claim, though. Breitbart had no contractual relationship with her, so there’s no contractual duty. If Libby’s suggesting a claim based on tortious interference with a contractual relationship, the trouble I see is that in the cases of which I’m aware, tortious interference claims based on a defamatory statement require that a plaintiff first establish a defamation claim.
That said, I just became aware of some case law in Texas holding that “a plaintiff can bring a claim for defamation when discrete facts, literally or substantially true, are published in such a way that they create a substantially false and defamatory impression by omitting material facts or juxtaposing facts in a misleading way.” Turner v. KTRK TV, 38 SW 3d 103 (2000). That case explicitly rejected the approach taken by just about every other jurisdiction, but the point is that there is at least one state where Breitbart’s actions would clearly fit within the realm of a defamation claim.
Still, I can’t imagine Texas being a viable venue for this case, and even if it were, it would remain true that even victory in this case would come at an extraordinarily high cost.