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    Dissecting Shirley Sherrod’s Complaint Against Andrew Breitbart

    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 http://d1.scribdassets.com/ScribdViewer.swf

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    Comments


    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.

    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.

    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.

    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.

    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.


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