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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


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    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.

    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.

    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.

    Ms. Sherrod's past and present behavior confirms that she was a racist and continues to be a racist. The color of her skin?

    We're sick and tired of Black Racists using past discrimination against perfectly decent White people today.

    Case in point is the Justice Department's refusal to enforce the Election Laws against blacks who violate the civil rights of white citizens.

    I, for one, do not take Ms. Sherrod's false claims seriously. Andrew Breitbart is going to take her apart when he lays bare the Pigford in a Poke Billion Dollar Payoff Scheme.

    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.

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