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Saturday, April 23, 2011

Andrew Breitbart Seeks Dismissal of Shirley Sherrod Lawsuit

On February 15, 2011, I dissected the lawsuit filed by Shirley Sherrod against Andrew Breitbart and Lawrence O'Connor, for defamation and other claims arising out of the release of Sherrod's speech to the NAACP about her experiences with a white farmer.

In my analysis, I noted the weakness of the claims, finding:
Hence, each of the key elements of the alleged falsity -- the fact of the discrimination being in the past, that Sherrod did help the farmer, and that Sherrod's tale was one of not being racist after the incident -- all were disclosed in the edited video which forms the basis for the lawsuit.
I also noted that:
The problems go even deeper.  Regardless of the caption and the interpretation of the word "discriminates," the facts were revealed to the viewer, rendering the characterization of "discriminates" or "racism" being matters of opinion, and hence not actionable in a defamation case.
Subsequent to my post, the case was "removed" by Breitbart from the D.C. Superior Court to the U.S. District Court in D.C.  The "removal" process is a federal procedure whereby, if certain conditions are met, a defendant can take a case out of a state (or in this case, D.C.) court and place it in the federal court in that jurisdiction.  Sherrod recently sought to "remand" the case back to the Superior Court, a motion which has not yet been rule upon by the federal court.

A few days ago, Breitbart filed a motion to transfer the case (change "venue") from D.C. to the Central District of California, or alternatively, to dismiss the case.  A copy of the Memorandum in Support of the motion is here.

On the change of venue portion, Breitbart argues that no one is in D.C. (Sherrod is from Georgia), and that the events at issue took place in California.  The arguments appear at pages 4 - 15 of the Memorandum.

Far more interesting to me are the arguments in favor of dismissing the case, in the event the case is not transferred.  Breitbart echoes the arguments I made.

First, Breitbart notes that the video and his commentary were not false:
"Each of the statements reflecting Breitbart’s belief that Sherrod’s conduct was “racist” or revealed signs of “racial discrimination” must be dismissed as a non-actionable expression of opinion based on truthful disclosed facts. The video excerpt of the NAACP speech published on BigGovernment.com is representative of the whole. It recounts that Sherrod initially declined to offer professional assistance to a white farmer on account of his race but then experienced a change of heart and obtained a new lawyer for him when she realized that poor people deserve help regardless of the color of their skin.  In her Complaint, Sherrod states that her full speech stressed that “poverty, not race, must be the critical factor for helping those in need.”  (Complaint ¶ 43.) That is exactly what the excerpt and the Blog Post show her to profess. Thus, judged by Sherrod’s own articulation of the message she intended to convey, the clip captured the gist of the speech."  (p. 28 of Memo, p. 37 of pdf.)
The fact is, as I pointed out with video screenshots, Sherrod did recite a tale of her prior discrimination against a farmer on the basis of race.  She may regret having those feelings, and she may regret telling people what she had done, but such regret does not amount to a legal claim against people who give light to her own words. 

The so-called "edited" video (which was not really edited, it simply was an excerpt of a very long speech) did in fact disclose that Sherrod was talking about something that had happened in the past, and that she had come to realize the error of her ways.

Next, Breitbart argues that his characterizations and opinions of Sherrod's conduct cannot give rise to a defamation claim because opinions based on dislcosed facts are constitutionally protected:
"But from the truthful facts laid out in the excerpt, Breitbart drew a contrary conclusion about the meaning of what was said, as Americans with different beliefs and formative experiences often do when the topic is the endlessly arguable subject of race relations. In Sherrod’s admissions and the audience reactions, he saw evidence that she had evaluated and initially declined to help an individual because of his race, even if she eventually had a change of heart. Breitbart thus took her – and the NAACP – to task for, in his view, casually condoning a double-standard when the civil rights organization had been repeatedly attacking the Tea Party as “racist.” But just as the NAACP’s rhetoric about Tea Party racism was not objective and verifiable assertions of fact capable of being proven true or false, so is Breitbart’s rebuke of the NAACP and Sherrod. The Blog Post contains subjective, non-verifiable opinion protected by the Constitution. The claims based on these statements must be dismissed. (p. 28-29 of Memo, p. 37-38 of pdf.)
Among other things, Breitbart cites court decisions (some of which I had cited in my blog post) holding that where the facts upon which the opinion were disclosed, even calling someone "racist" is a non-actionable opinion.  (Memo. at 33-34, pdf. at 42-43)

I can't predict what will happen to the motion to dismiss, but I can say what should happen.  Sherrod's lawsuit should be dismissed for failure to state a legal claim. 

Shirley Sherrod was hoisted with her own petard.  That does not give Sherrod a legal claim against those, like Breitbart, who called attention to the hoisting.

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  1. And lets us not forget the white house and Ag dept reaction to the tapes as well as the NAACP ....if she was harmed it was by them ....not AB

  2. Is this not a civil case? And in a civil case, are there not different rules of disclosure? If so, does Shirley Sherrod really want Andrew Breitbart's lawyers to depose her on her involvement with the looming Pigford scandal?
    Would not Breitbart's lawyers have the right to question other white farmers that Sherrod dealt with to see if there was any bigotry used against them in her decision on who, and who not, to help?

    Also, even though Sherrod tried to exonerate herself by saying she eventually helped the white farmer, did she also not say that she did so by taking him to a lawyer that was "one of his kind", which in itself could be considered a "racist" statement by referring to a lawyer, who was white, as "one of his kind."?

    I don't understand what Sherrod's complaint is. She was not fired by Breitbart, and he never demanded her dismissal. She was dismissed by an administration that has knee-jerk reactions to anything adverse. She also has not suffered any damage as her job was then offered back, along with all back pay. So no financial harm.

    Since Sherrod was offered her job back, and since she profited from reparations paid to black farmers (via her husband), seems she is pretty unwise to continue with this gotcha law suit.

  3. Just finished his new book, "Righteous Indignation." I agree with him that the media and culture are even more important than politics.

    Over the years, whenever I saw him on TV or heard him on the radio, I always thought of Gerry Breitbart, who was one of my dad's customers and a very nice man ... Turns out he is Andrew's father (I realized when Andrew said his father ran the Fox & Hounds restaurant in Santa Monica).

  4. Should be "hoist" and "hoising," not "hoisted" and "hoisting."

  5. @James - Hmmm ... not so sure, see this "The “hoist” of current English usage retains the same meaning, “to raise, to lift up,” but in modern usage, the past tense form has been regularized to “hoisted.”" (
    http://www.dailywritingtips.com/hoist-with-his-own-petard/) or this, ""Hoist" was in Shakespeare's time the past participles of a verb "to hoise", which meant what "to hoist" does now: to lift." (http://alt-usage-english.org/excerpts/fxhoistw.html)

    Help! Someone!

  6. Hoist, moist.

    Shirley Sherrod was hosed by her own narrative. That does not give Sherrod a legal claim against those, like Breitbart, who called attention to her stream of unconscientiousness and leak in logic.

    But I love Taranto, too!

  7. @ Sort of - I'm not sure it is that James Taranto. Remember, this is the internet.

  8. You are mistaken on two grounds, Professor Jacobson.

    1. First, Sherrod is black and under the Matsuda Doctrine "previously silenced" people who belong to certain groups are entitled to rights that the general population, merely on the basis of American citizenship, is not.

    2. I assume constitutional law is not your subject, because there apparently is a right not to be offended which supersedes more elderly legal concepts such as "free speech."

    3. Breitbart is white (technically; he's Jewish) and Sherrod is black. Therefore his criticism of her is ipso facto racist and racist remarks are not "free speech," they are "hate speech;" see point 2. above, if certain people, largely depending on their membership in Matsuda Doctrine groups, are offended by what someone who is not of that group says, the statement is hate speech and therefore not protected by the First Amendment.

  9. Alex, while your sense of satire appears to be quite keen your counting skills seem to be somewhat undeveloped.