Thursday, July 29, 2010

Sherrod to Sue Breitbart; Probably Has Stronger Suit Against The USDA

Shirley Sherrod says she will sue conservative blogger Andrew Breitbart. Breitbart posted a heavily edited speech that Sherrod delivered at an NAACP event. The portion of the speech, along with commentary on Breitbart's blog, misleadingly portrays Sherrod as a racist. The full version of the tape, however, paints a completely different story (see here).

It is unclear what type of action Sherrod will bring, but she will probably sue for libel. In order to prevail, she will have to prove that Breitbart acted with actual malice. This standard requires that Sherrod prove that Breitbart published information about her that he knew was false or that he acted with reckless disregard for the truth. Although this is normally a tough standard, Sherrod might prevail, given the circumstances of the scandal. It will be difficult, however, given the First Amendment interests at stake.

Stronger Case Against the USDA
Sherrod probably has an even stronger lawsuit against the government (unless she is a "political appointee," which would change this analysis significantly; update below). USDA officials forced her out of her government job without due process of law. She was not given the opportunity to explain herself, nor did her supervisors listen to the full speech before demanding her resignation.

Federal statutes and constitutional law provide procedural protections for government employees who face potential discharge. Although Sherrod has not indicated that she will sue the government, she would probably have an even better chance with that litigation.

Links to this article: Ta-Nehisi Coates, The Atlantic, Sherrod's Chances

Update: Readers here and elsewhere have made very good points. First, some readers have argued that Sherrod should not sue the government because she can make a stronger statement in a litigation against Breitbart. After all, the government has apologized and offered her another position. I do not question the soundness of those claims. Nonetheless, saying that a particular course of action is stronger from a legal perspective does not mean that the plaintiff should actually take that path.

Second, at least one reader at The Atlantic has pointed out that Sherrod was a "political appointee." If this is true, then her chances against the government under any legal theory are sharply diminished. This does not alter the difficulty of a libel action against Breitbart. Both paths represent an uphill battle.


Darren Lenard Hutchinson said...

I suspect Sherrod will not sue the government, because she wants to continue working with the agriculture community on rural/farming issues. Perhaps a suit would alienate her from a lot of contacts in that arena -- especially government networks.

David Schraub said...

My knowledge of these sort of suits is limited, but how would her suit against the government proceed given that she was rehired (albeit to a new position)? Though Ms. Sherrod still suffered considerable injuries aside from loss of employment, that's the injury that's attributable to the USDA (rather than Breitbart), and that's also an injury that's been largely mooted.

Darren Lenard Hutchinson said...

David: The new position could mitigate any damages she suffered -- although it is not the same job that she previously held. But firing her in such a public way damaged her reputation. Also, the firing clearly took place without due process of law. The greatest wrinkle I could imagine is that the government would argue that she resigned. But under the circumstances, her resignation was really a dismissal.

Darren Lenard Hutchinson said...

PS: With his appearance on The View today, Obama has twice said it was "wrong" to fire Sherrod. I think this certainly would help her case.

Abe Froman said...
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liberal dissent said...

I can't see it being successful, though if it does get past a motion to dismiss or judgment on the pleadings I'd really love to read the deposition transcript of Breitbart...

Bouncer said...

And that seems to be a telling argument. If the Chief Executive Officer of a company admits the company made a mistake and therefore acted improperly, then it certainly opens that company to liability. It is an admission of wrong doing. The same is clearly true if the CEO of the United States gov't, to wit the President, makes that admission.

How does the gov't effectively argue against it's own CEO? If it is successful it has just undermined the authority of that same Executive Officer, from whom it's very authority comes.

In any case, I doubt she'll file suit against the gov't. She has been rehired and although certainly unhappy with the way she was treated, seems to have focused her desire for justce/retribution on the individuals who committed the hatchet job.

If I wre here lawyers I would go after both Breitbart AND Fox News Corp. Breitbart for not meeting any standard of journalism before publishing the video, and Fox for completely failing in any standard of verification of truth. It's not like the rest of the video was hidden or unavailable. The smallest amount of fact checking would have found this to be taken so completely out of context it became a lie. Fox News certainly has an obligation (as it uses publicly licensed FCC airwaves) to verify that it is not engaging in deliberate deception. In fact, thinking about it, I'd ask my lawyers to see what could be done about kicking Fox OFF thei ariwaves. Probably not very much, but I imagine a hefty fine from the FCC might get their attention. Or perhaps a fine, and a prime time apology explaining how they failed in their journalistic responsibilities as FCC licensees to the public at large (who actually own the airwaves they use).

That might be a more effective tool in getting them in line than any lawsuit.

Adam said...

David: But the rememdy for the failure to follow due process of law in this case would most likley be reinstatement or lost wages. Sure, Sherod could sue and receive reinstatement back to her old job instead of her newly offered job, and could collect one or two days worth of lost wages I suppose, but I can't imagine any reasonable plaintiff actually following through with that case.

As to the firing causing damage to her reputation, that's going to be tough to establish. Afterall, not only was there a video circulating at the same time that painted her as a virulent racist, but that video was also the reason that she was fired. She was literally fired because of her damaged reputation, however unfairly that damage may have occured. It's a tough sell to say that the firing itself significantly further degraded her reputation and even harder to assign any sort of damage amount to it.

Adam said...

My apologies, I meant to address my above comment to Mr. Hutchenson

Darren Lenard Hutchinson said...

Adam: Courts do not like to order reinstatement -- particularly when the government has fired the individual. The typical remedy is a damage award representing lost wages and reputation harms.

The reputation damages are always tricky. But a lot of cases find reputation harm simply due to an unwarranted discharge. The fact that the government apologized would mitigate these damages. But when a government official is fired in such a public way, it is hard to find employment again in the government and the private sector. I believe that you are too swiftly dismissing the harm that losing a professional job causes.

Darren Lenard Hutchinson said...

David: The fact that she was rehired could mitigate damages, but it does not negate the unlawful nature of her discharge.So, I believe she still has a great claim against the government -- even stronger than a defamation action against Breitbart.

Jack said...

Why would she sue the government? They were suckered just like everyone else. They sincerely apologized, and gave her a specially tailored job. In doing so, they validated her innocence and made her a national hero. It would be ridiculous to sue the government.

Darren Lenard Hutchinson said...

Jack: I did not say that she SHOULD sue the government. Instead, I said that she has a better case against the government. It is always the potential plaintiff's choice to sue -- not the attorney's.

Also -- see the first comment in this thread. I said she probably does not want to sue the government (despite the likely winning case).

liberal dissent said...

Honestly I think she probably shouldn't sue anything; she's already been publicly exonerated, this will make it sound like she's looking to make money off of it.

Darren Lenard Hutchinson said...

Liberal dissent: Well, she did lose a job and was offered a different one that she does not want to take. So, that is a loss.

Hippi Chicki Niki said...

Though you are clearly right about the relative strength of the two cases, I understand the desire and choice to sue Breitbart instead. He is really the "cause" of all of the damage to her reputation, her job and everything else that stems from those. Plus, he has admitted publicly that this was done in an attempt to retaliate against the NAACP.

If I were in her position, I would be more interested in making a point than getting money, and perhaps that is her motivation. Despite the difficulty of proving such a case, she may be getting what she wants out of it even if she doesn't prevail. I find it interesting, as Bouncer noted, that she didn't go for deeper pockets as well (but the FCC doesn't regulate cable, Bouncer, they can actually pretty much get away with this and all of the rest with no legal consequences).

I'm really interested to see what the type of action is as well. Is there some other type of case she could bring other than libel or slander?

liberal dissent said...

Darren: I think she did suffer damages, though I do think there are too many hurdles for a successful defamation case here. She has come across in the media as a very principled woman, and I think the lawsuit risks tarnishing that.

Niki: Depending on what state had jurisdiction a "false light" claim (which is related to defamation) would probably be even more appropriate. She could also bring, if available, intentional infliction of emotional distress, malicious falsehood (also similar to defamation, but more aimed at remedying economic damages), tortious interference, and probably a bunch more that aren't coming to me right now. It depends on what state law you're suing under, and how creative your lawyer is.

Darren Lenard Hutchinson said...

LD: I generally agree with your last post, but I am not sure the litigation would tarnish her image too much, unless you think a "loss" would hurt her.

Alessandro Machi said...

The video, in the edited form, is showcasing the racist reaction of the audience to the story of the white farmers.

The media has spun this story so that we don't talk about the embarrassingly racist response of the audience. In 2008 the embarrassingly racist Reverend Phegler speech also featured a racist speech and reaction against Hillary Clinton, that too was spun away from the audience reaction.

And yet, a huge deal was recently made over the alleged racist slur against some congress people as they walked by a tea party protest in Washington D.C.

Bouncer said...

Hippi Chicki Niki:
Fair enough, but Fox affiliates do carry Fox News material, and they do (frequently) have FCC licenses and use public airwaves. In fact, Fox has 150+ broadcast stations either directly owned or owned through an affiliate program. Many of which may or did carry this or related segments produced and distributed by Fox News.

I would think a 50K fine per station that carried this segment or related segments would do the trick. a 6.5M fine and a two minute apology segment aired during the normal course of a newcast ought to make the point.

The point isn't to take them out of business, but rather to remind them they have an obligation not to use those public assets to recklessly lie about individuals.

If the FCC can fine CBS 550k for one second of offense across the public airwaves, they can probably do so in this case well given they specifically have a policy against news distortion.. or cost Fox Corp that much simply to fight the fine. Either way, the Affiliates will not be happy, and they are really the ones who can motivate Fox News and it's employees to do their due dilligence.

Hippi Chicki Niki said...

Honestly, I seriously doubt Murdoch and Ailes care enough that it would change things at FNC. Despite losing loads of money at one of his papers due to his really combative stance towards the White House, Murdoch basically sent word to employees that the goal of the paper was to destroy the administration.

Plus, given the backlash last year from Anita Dunn's criticism of FNC and the fact that the FCC is technically part of the executive (even though it is an independent agency), I'm not sure the FCC would go after FNC.

Alessandro: The video is of a woman telling a story of how IN THE SIXTIES she overcame her first, angry, retaliative reaction to racial injustice and learned the lesson that race doesn't matter and to treat all people equally. THAT is what the audience is reacting to. They are applauding her OVERCOMING racism and how she learned and grew.

The whole point of the editing was to make the benign reaction to a story of person overcoming racism, in the midst of an era of severe racial tension 40 years ago, APPEAR to be a racist reaction. That is the entire point of the controversy. The media is focusing on something other than the "embarrassingly racist" response of the audience because it was quickly discovered that the response of the audience was anything but.

The editing was done specifically to make people think what you have just said, in retaliation for the NAACP resolution. Brietbart has admitted as much.

As for the incident on the steps of the Capitol, it is generally accepted that spitting on someone and calling them the n-word is a racial slur.

Why is the incident on the steps of the Capitol "alleged" but the completely debunked issue with Sherrod (which was found to be edited to appear to be something other than what it was) a definite thing? Why are you giving the benefit of the doubt to one person, yet not even giving the benefit of a CERTAINTY to the other?

Hippi Chicki Niki said...

Prof H: I actually agree with LD. I think that the suit could tarnish her image and that a win would actually hurt her more in the eyes of the public more than a loss. The public generally accepts that the legal system can be unfair; if she loses, she will be seen as again being the victim. A win however, especially if there is a significant monetary award, will make her seem less principled and wholesome and victimized - all of the things that have made her admirable in the eyes of the public.

Alessandro Machi said...

The audience applauded and cheered, literally interrupting her speech, right after she talked of not giving a loan to the white farmers.

What happens later CANNOT erase that moment in time as the positive reaction was in support of treating the white couple in a racist manner.

liberal dissent said...

Alessandro: The audience didn't lose their job because of the tape, and the audience isn't suing Sherrod; even if you were going to accept your theory that that is what they were applauding, do you think she should be held accountable for the actions of other people?

William said...

I used to be a litigator, but I have not practiced in years. However, I believe Sherrod can win a suit against Breibart and collect damages. I believe that the Masson case cited below would allow Sherrod to sue for damages in the right state. As I also argue below, some of her damages can be calculated. In addition, if actual malice is proven, she can get punitive dmages if the state law allows it.

BTW, I had a better essy, but I lost it in trying to post on this website. It is beyond me why a commenter cannot simply use his/her name an an email address to post.

1)Masson v. New Yorker Magazine, Inc., 501 US 496 (1991).
In Masson, the Supreme Court ruled that the defendant’s falsifying of the plaintiff’s quotes could constitute libel under the actual malice standard. The Court ruled that a deliberate alteration of the quote constituted knowledge of falsity if it “results in a material change in the meaning conveyed by the statement” (p. 517). Whether it actually resulted in a material change was an issue for the jury.

2)Gertz v. Robert Welch, Inc., 418 US 323 (1974).
In Gertz, the Supreme Court ruled that the First Amendment did not ban punitive damages in libel cases, provided libel was proven against the standard of actual malice.


a)Before Breitbart’s tape appeared, no one hated Sherrod. Now, even after the apologies, millions of people in the US hate her. Attacks upon her continue to appear in comments across the Internet. Presumably, some economists could determine the cost of this animosity against Sherrod.

b)Certainly, someone could measure how many minutes each show on Fox News, etc., were spent denouncing Sherrod. The value of that time could be determined. If ten minutes of advertising time on show x costs (as an example) $1 million dollars, and the show attacked Sherrod for ten minutes, the damages for that attack would be at least $1 million.

Hippi Chicki Niki said...
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Hippi Chicki Niki said...
This comment has been removed by the author.
Hippi Chicki Niki said...


The "racist reaction of the crowd" is anything but. There were comments that preceded the ones that were played over and over again that showed the Mrs. Sherrod had already let the crowd know that the story she was about to tell was about her learning to not only help Black people and her overcoming that initial reaction.

Don't just listen to me, Watch the full video for yourself.

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