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Tuesday, February 15, 2011

Dissecting Shirley Sherrod's Complaint Against Andrew Breitbart

I'm not going to repeat all the background; read my prior posts:
Where we are today is that last Friday Sherrod filed and this weekend served a Complaint against Breitbart and one of his producers, asserting three Counts:  Defamation, False Light, and Intentional Infliction of Emotional Distress. 

Sherrod is represented by Thomas Yanucci of Kirkland & Ellis, who has a reputation as a top media litigator.

The Complaint is 42-pages long, but the legal weakness of the case was given away right in the first paragraph (emphasis and italics in original; underscoring mine):
This is an action brought by Shirley Sherrod, a former Presidential appointee and former Georgia State Director for Rural Development for the United States Department of Agriculture ("USDA") for defamation, false light and intentional infliction of emotional distress.  Mrs. Sherrod was forced to resign from her job after Defendants ignited a media firestorm by publishing false and defamatory statements that Mrs. Sherrod "discriminates" against people due to their race in performing her official federal duties. Defendants drew false support for their claims from a speech given by Mrs. Sherrod that they edited, deceptively, to create the appearance that Mrs. Sherrod was admitting present-day racism. In fact, Mrs. Sherrod was  describing events that occurred twenty-three years before she held her federal position and, in fact, was encouraging people not to discriminate on the basis of race.
Notice the themes right at the start:  A distinction between past and present discrimination and an emphasis on Sherrod's "federal duties."
These themes are picked up throughout the 42-pages, as summarized in paragraph 4 of the Complaint:
"Specifically, Defendants defamed Mrs. Sherrod by editing and publishing an intentionally false and misleading clip of Mrs. Sherrod’s speech and added the following statements as a narrative to the clip:

• “Mrs. Sherrod admits that in her federally appointed position, overseeing over a billion dollars ... She discriminates against people due to their race.”
• Mrs. Sherrod’s speech is “video evidence of racism coming from a federal appointee and NAACP award recipient.”
• “[T]his federally appointed executive bureaucrat lays out in stark detail, that her federal duties are managed through the prism of race and class distinctions.”
• “In the first video, Sherrod describes how she racially discriminates against a white farmer.”
• Her speech is a “racist tale.” [....]"
The remainder of the Complaint is spent fleshing out these assertions with screen shots and other evidence, all of which purports to show actual malice.  (Note:  Plaintiff's counsel seems to recognize that Sherrod will be considered a public figure for the purpose of the dispute in this case, hence the extensive labor to paint Breitbart as having acted with malice.)
So what is wrong with these seemingly impressive allegations?
Sherrod's counsel must recognize that the video (whether the edited or full version) demonstrates -- arguably -- past discriminatory intent and conduct by Sherrod in how she treated a poor white farmer who came to her for help.
Here are some screen shots from the edited video showing Sherrod making statements which, if said by a white person about a poor black farmer who came for help, undoubtedly would be viewed as racist and discriminatory:

That is why the Complaint labors so hard to draw the distinction between past and present discrimination, and between discrimination when she was employed at a state agency versus her then current federal position.

But that is a distinction strained by the words used by Breitbart to describe the discrimination.  The Complaint makes much of Breitbart's use of the term "discriminates" rather than "discriminated," for example in one of the opening captions to the edited video (note:  the clarification was added after the initial release):

But it is not clear that "discriminates" excludes prior discrimination, or if so, that the distinction is defamatory.  It is the alleged false accusation of discrimination which might be defamatory, but the video itself demonstrates -- arguably -- that the accusation was true at least at one point in time.

The fact that the discrimination was in the past, regardless of the screen caption, also is evidenced by the edited video itself, in which Sherrod talks about this having been an event in the past.  So to the extent Breitbart's characterization of "discriminates" was not accurate, the facts disclosed were accurate as to the past/present distinction.

Additionally, the edited video revealed a key element of Sherrod's claim, namely, that she did in fact help the white farmer to some extent:

Additionally, the edited video reveals that Sherrod came to the realization that race was not the issue.  In fact, this parable of the awakening of Sherrod to such realization is a key element of the supposed deception of the edited version, but in fact this awakening was revealed on the edited video:


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.

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.  See, e..g., Smith v. School District of Philadelphia, 112 F.Supp.2d 417, 429 (E.D.Pa. 2000)(accusation that plaintiff was "racist and anti-Semitic" was non-actionable opinion); Edelman v. Croonquist, 2010 WL 1816180 (D.N.J.)(accusation that someone was "racist" was non-actionable opinion particularly where the facts supporting the opinion were disclosed).
I assume Sherrod's counsel has researched this area of law and believes there is a basis to take the statements out of the opinion range, but my point is that Sherrod has a tough legal road to turning the accusation that Sherrod "discriminates" or exhibits "racism" into an actionable claim.

The false light claims really are derivative of the defamation claim, and typically a court will not allow a plaintiff to evade the defamation laws by casting a defamation claim as a false light claim.  And the "intentional infliction of emotional distress" claim is a reach, again because there was nothing done by Breitbart (as opposed to the Obama administration) aside from the alleged defamation.

Breitbart's attorneys likely will make the arguments with more force and clarity than I have in seeking to have the Complaint dismissed.  The point of this post is that the Sherrod complaint is weak as a legal document, and the underlying merits appear even weaker when subject to scrutiny.

Sherrod's lawyer has done a good job of creating a document to minimize the weaknesses of the claim, but the weaknesses are right there, on Page One.

Sherrod v Breitbart Complaint

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  1. Is the next step the "shopping for a friendly judge phase", or is that all over?

  2. "I assume Sherrod's counsel has researched this area of law..."

    Why? The intent of this suit is to scare Breitbart off the Pigford story; it doesn't have to have merit, just be costly and annoying.

  3. this is all about Pigford ... the discovery will be interesting because now Brietbart gets research her recent work and look for recent discrimination ... he most likely won't find any but then again Sherrod is a "justified" racist in her own eyes so who knows ...

  4. Professor,

    This is an example of why many people find the legal profession, distasteful. Though many may use stonier words than that. Where is the line drawn that in reviewing a clients case you as a member of a profession deem a case lacking in merit? Why aren't such reviews considered? Or is the chase of the all mighty dollar so strong that the legal profession has no scruples?

  5. Everyone seems to be so focused on this part of the tape that they miss the part where she admits using her Federal position to discriminate against a white land buyer.

    Look at the part of the speech beginning at about 33:40. Sherrod openly talks about how she used government lawyers "recently" -- her own word -- to try and obstruct a land sale from the black heirs of a deceased farmer and woman to a white land buyer, for no other reason that the color of the skin of the seller and buyer:

    "You know, I was helping a family here recently: 515 acres of land, never had a drop of debt on it since the grandfather bought it years ago and he -- he died in 1974. And two cousins up in the North, guess what they decided? They tried to force a sale of every acre of it. And they wanted that. One of their aunts spent all of her life on the land. She was 93 years old when she died. And she died after those "For Sale" signs went up out there on that farm -- auction sign went up on the farm. She was in the hospital. The next month she was dead. That was January -- she was dead by October.

    But we kept working at it. [racist asides about black vs white lawyers removed]

    But they were trying to force a sale of all of it. They'll eventually get 62 acres of the 515. And guess what? They have a white man already lined up to buy it. And this is the land on the creek, which is what he wanted."

    A couple of things ...

    The land was "saved"? From what?

    "and guess what -- they already have a white man lined up to buy it. Watch how she contemptuously rolls her eyes on the video as she says it. That one sentence revealed everything you need to know about her real character.

    Finally, since when are USDA officials permitted to use government lawyers and resources to pick and choose whether people are allowed to buy and sell land based on whether they are black or white?

    I think that her land sale anecdote is more than enough evidence to show not only her racism, but constitutes abuse of power as well, and is probably in violation of the civil rights act as well. The abuse of power described in that one anecdote alone should be more than enough to justify terminating Ms. Sherrod.

    I certainly hope that Breitbart is able to spend some effort in discovery finding out more information about this shocking racist abuse of power on the part of Ms Sherrod.

  6. If I was Breibart I would not ask for a dismissal on any grounds. I'd go for discovery and take my chances with a court or a jury.

    The discovery alone would be worth it to his journalist enterprise.

  7. Uhh, correct me if I'm wrong but doesn't Shirley Sherrod openly admit she still discriminates? Instead of skin color she has chosen to use some arbitrary threshold for wealth to determine who is worth her help and who is not.

  8. There's another problem with the past vs. present tense stuff. When we report the actions of someones in the past, we often resort to the present:

    "He goes to the bedroom with his knife in hand."

    "She says that a rose is a rose is a rose."

    I think that it will be a rather simple thing for Breitbart's lawyers to find examples of their opponents doing precisely the same thing, perhaps even in the document you've just read, William.

  9. And good luck with that claim for "intentional infliction of emeotional distress," Ms. Sherrod. As any lawyer who works at a high-fallutin' firm like Kirkland & Ellis should know, the standard for that tort requires that the conduct be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." I'd give you a cite for that quote if there weren't literally thousands of decisons from which to choose. If she brought that claim in federal court, I'd bet she'd be sanctioned for frivolity.

  10. Shirley Sherrod should be fairly affluent. Her attorneys are unlikely working pro bono or on a contingency fee basis. They demanded money up front to before agreeing to represent her.

  11. Herein lies the problem with Big Government in general: unelected, unaccountable nomenklatura arbitrarily making decisions that can have substantial effect on your livelihood, wealth, and even your life expectancy, as they rent-seek and attempt to appropriate "residuals". Seeking redress is nearly impossible. I think this is the real take-away from the Sherrod saga.

  12. Professor,
    you claim:
    "it is not clear that "discriminates" excludes prior discrimination..."

    The complaint alleges that Breitbart said:
    it is clear that his claims are
    "Mrs. Sherrod admits that in her federally appointed position, overseeing over a billion dollars ... She discriminates against people due to their race."

    In this case limited to her time as a federal employee, which began in 2009. The complaint states that in the video, Sherrod was talking about events that happened 22 years before she worked for the federal government. In this case, there is no way that his claim excluded prior discrimination. His claim was entirely false since the video did not include any admission that Sherrod had used racial discrimination in her federal duties.

    You also state:
    "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."

    Breitbart's accusations of racism go well beyond opinion. He stated that the video included an admission by Sherrod that she discriminates as part of her federal job. That is an assertion of fact, though it was entirely untrue.

    In addition,you point out that mere accusations of racism do not make for actionable defamation cases. But that ignores again, the issue that Breitbart claimed that Sherrod was discriminating in the course of her federal job. That goes beyond mere racism to suggest that she is acting in a way that would get her fired, and possibly even breaking the law. I haven't checked the entire complaint to see how this issue plays out, but this is not merely about her being called a racist. It is about her getting fired.

    Look a little closer at the allegations. the problems that you see in general don't seem to be that troubling when applied to the specific claims in the complaint.

  13. If I were his lawyer I would advise against a motion to dismiss. I know this is radical for the entrenched civil litigation types because they always follow the same script. They actually fear to stray and so it goes answer, motion to dismiss (or motion to dismiss and then answer for some variety), written discovery and finally two months before discovery cutoff a frenzy of depositions. Here I would fear that the motion to dismiss would be granted. So, if money spent to defend the lawsuit is not a factor and a degree of retribution for its filing is the goal of the client...I say forgo the motion to dismiss and go hell bent into discovery. I have found that career civil lawyers as opposed to true trial lawyers (those who actually try cases) are ill equipped for a trial strategy that is not motivated by the business interests of settlement.

  14. Two things that (I believe) have not yet been addressed in this thread:

    (1) I'm not all that familiar with federal jury selection, but I believe that jurors must live within the district. That would make it likely that Breitbart's jury would be mostly African-American. If I were his attorney, I would advise him that his best bet would be to win via summary judgment or have the case dismissed by pre-trial motion.

    (2) The first amendment issues (Breitbart's backbone) have a federal standard, but the other aspects of the tort claims (i.e., whether
    Breitbart's behavior was sufficiently "outrageous") should have a state standard applied, and we don't know which state the federal court will select as a choice of law.