Are there any DU lawyers here who can talk about Sherrod's chances in her lawsuit against Breitbart?

[CTyankee]

For instance, I was wondering if she were to take the better job at USDA than she had, would that "prove" that she wasn't harmed by Breitbart actions? Was she a "public person" before the video went viral?

[opihimoimoi]

1. she gonna rip his ass with PUNITIVE Damages...

[babylonsister]

2. I don't know if you saw this from MM, but some legal experts

weigh in...

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x8845720

[boston bean]

3. I am not sure.

I do know that she would definitely have a case against the people who believed it, without any further examination or investigation and fired her.

[ProgressiveProfessor]

5. Not true

Believing something is not inherently actionable. Acting on it is.

[uncommon]

11. Precisely.

[Traveling_Home]

15. ..".and fired her"

from the post "who believed it, without any further examination or investigation and fired her"

[CTyankee]

19. But what I am saying is that if she takes the new job at USDA, it will be a better one

than the one she had before the incident. So she comes out better than "whole." My point was that if she asks for damages it could be aruged that "well, she's actually better off BECAUSE of Breitbart's actions." Of course, such an argument does not take into account her emotional suffering...

[Traveling_Home]

21. I agree...and I don't think her current situation would support an emotional suffering claim.

She is rightly seen in everyone's eyes (incl hers) as a hero.

[Solomon]

38. That's ridiculous. She's going to clean up.

There's really no defense to this one. How many times have I heard white people say almost daily: "calling someone racist is the absolute worst thing you can say about a person today"

I see no reason why this doesn't apply to Ms. Sherrod.

[Dogmudgeon]

4. She was NOT a public citizen

A "public citizen" is one who has stood for election. There are a few other cases, but Ms. Sherrod was clearly an employee of the American People. She has tort cases she can pursue against Andrew Breitbart AND Fox News.

--d!

[ProgressiveProfessor]

8. Anybody can sue for anything at any time. That is the American way.

That is the American way. Success is another thing all together.

Its not that I approve of what happened, its just that I am a total cynic when it comes to the courts.

[dsc]

28. that is baldly inaccurate

First people like Madonna are public figures without standing for election. But you are also wrong as it comes to government employees. As a teacher I would be considered a public figure in many instances (say a school news paper or even a local one). I don't know if she qualifies or doesn't but the simple fact she didn't stand for election isn't determinative (or else Scalia isn't either).

[ProgressiveProfessor]

6. Sherrod has done some dumb things too

She has subsequently called Breidbart a racist (CNN Anderson Cooper interview) and other similar things. Situation is sufficiently muddy that a clear finding is going to be hard to get.

Best guess is that this will fade away when the next cause celeb hits the mass media

[ck4829]

10. Calling him that didn't make him lose his job though

Her case isn't leakproof, but it won't sink like a rock.

[ProgressiveProfessor]

16. its still defamation and was a dumb thing to do

doctrine of unclean hands may well kick in

[sabrina 1]

20. What is dumb about calling a racist a racist ? I doubt he'd

want to make an issue of that as there is ample proof that he and those who back him ARE racist. I hope if nothing else, the lawsuit's discovery phase will uncover the backers of this whole racist movement which has existed since the Civil Rights Act was passed, and the CRA (Community Reenactment Act put in place to ensure there would not be discrimation against blacks trying to buy homes). That is when ACORN entered the picture. To help make sure minorities were helped and that those laws were not broken.

The attacks on ACORN began way back. Those who tried to keep blacks down had to couch their racism in faux issues, such as 'they won't be able to afford mortgages'. When that turned out not to be true, most of those helped by ACORN DID pay off their mortgages, they fabricated 'election fraud' charges which were also proven to be untrue. Once again, the fear of Black People voting.

Breitbart/O'Keefe/Giles are only the looney front guys for a much larger organization and if you really want to Breitbart go even more insane than his usual temper tantrums, ask him about the funding for all the racist stunts he has posted on his blog.

I would be very surprised if Breitbart (well, his lawyers, he's notsobrightbart himself) would want to open that can of worms.

[DefenseLawyer]

27. He's a public figure

And that's just like, you know, her opinion, man. Your best guess isn't much of a legal analysis. Sorry.

[seattleblue]

29. Your opinion expressed can be defamation to another.

Just because it is your "opinion" in not a defense at all. Sorry.

[DefenseLawyer]

30. Can you cite a case?

I don't think you can, but I would be interested in seeing one. A statement must be fact or a mixture of opinion and fact, but pure opinion? No. An opinion can't be proven true or false, which means summary judgment, thanks for playing, we have some lovely parting gifts for you. That's the analysis, whether there is a sufficient expression of fact. Saying "I think he's a racist" can't be proven and is never going to be actionable, and that's without even getting to malice.

[seattleblue]

36. I'm not going to look up cases

but for example if some RWer in the 50s called a Democratic representative a communist I think that would have been actionable given the times. Even though it was just an opinion. What are facts in the mind of one person can be opinions to another. Which is why defamation/libel is so hard to prove and you can count the number of defamation cases at the SC level on a hand. I don't think Sherrod will be successful given that her reputation has been enhanced by this episode and given the fact the video while edited was not doctored. Also I think it spells big trouble for the White House because Breitbart will be able to depose all sorts of people, maybe even Obama, in an effort to show her lack of damages. He may be able to join them as defendants. We will see.

[justanaverageguy]

7. She may have trouble showing actual damages

in terms of her financial losses. But this is a tort case, not a contract case. In torts you can seek punitive damages. That's a lot more difficult to predict.

[ThomWV]

59. She was fired - is that not damage enough

[marias23]

9. Libel Per Se

There is legal theorem called "libel per se" in which damages are assumed to have occurred. Lying about someone's professional activities is libel par se.

[NoNothing]

12. But what's the lie then?

Her personal beliefs are not a professional activity, and the extend professional activity is in question, she doesn't deny that she did what she said she did in the video.

If there is a tort, it would have to be a false light tort - but proving "actual malice" might be difficult.

[Paladin]

13. Sherrod Will Win This Suit---Regardless Of The Verdict.

It ought to be pursued with all haste and energy, with an aim of inflicting maximum public damage on Breitbart et al. How refreshing to contemplate action against our political enemies---rather than just meekly sitting around and taking abuse from them, as so often happens these days....

[Traveling_Home]

14. He will have as much of a right to ...

discovery as she does. That means he can seek discovery about the issue up to and including Vilsack and White House; that means discovery of the issue up to and including the NAACP; that means discovery of her personal background and statements to establish what her reputation is (incl her suit against USDA).....

The powers that be would not be happy. I don't think the suit ever gets any REAL start - all word no action is my prediction.

[ProgressiveProfessor]

17. Quite right and some of her subsequent actions only make it worse

[Solomon]

62. Oh jeez. I get a headache from listening to people talk about

stuff they don't have a clue about. Is it so bad that this lady has Breitbart by the shorthairs?

He can't get all the discovery you're hoping for. He's not going to be able to dirty her up like you're hoping.

Some people are having a fit that she has a case. As an attorney who has handled defamation cases, I can tell you, she's gonna get paid.

[Gothmog]

18. Case has merit

The key thing in one of these cases is surviving the initial motion to dismiss. There is enough here so that her case should survive such a motion. This means that Sherrod will get to conduct discovery on brietbart and find out who gave him the tape and ask questions about his policies on showing edited materail. That discovery will be helpful in showing that this man is not a journalist.

As for the actual malice issue, even if Sherrod is held to be a public figure, she has the facts to show reckless disregard.

[Llewlladdwr]

22. Does being a journalist matter?

Serious question. Whether Breitbart is a journalist or not he still has First Amendment rights.

Also, as noted above, discovery goes both ways...and Sherrod hasn't been all that careful about her comments since this came out. Breitbart also gets to go trolling through all her past statements looking for proof that she is, in fact, a racist.

Finally, I'm just not seeing actual malice or even reckless disregard. Seems simple enough to show that it was Vilsack and the White House that jumped the gun here, not Breitbart.

[CTyankee]

24. Well, she DID get a very personal apology from the official, Vilsack, who was

responsible for her firing. And she also got an offer for a BETTER job from him. AND she got a call from the President expressing his deep regret over the incident. These were all done in a timely manner.

Breitbart keeps on obstinately refusing to acknowledge he did anything wrong, when it is clear to most people that he did. Remember, he had time to check out the tape and chose not to do so. That's pretty reckless, in my book...

[Llewlladdwr]

25. But what did Breitbart do wrong?

Are you saying he has more responsibility for her firing than the folks who actually fired her? Seems to me that by apologizing Vilsack has pretty much taken full responsibility. After all, he apparently did NO confirmation of the video himself before taking action.

[CTyankee]

26. He put out a tape that falsely suggested that she was racist in carrying out her official

job. And he didn't check it out first. He had to know he was endangering her job.

I'm not excusing the WH or the NAACP, tho...

[Llewlladdwr]

33. How could he know he was endangering her job?

Or is it your contention that ANY accusation of racism will automatically result in the accused losing employment? If not, then how could Breitbart know that she would be at risk of firing?

[CTyankee]

34. That was the whole point of his doing it. He was accusing her of racism and

trying to prove that blacks in power discriminate against whites. Since it is against the law to discriminate against people on the basis of race, he was "revealing" that a government official committed the unlawful act. Her bosses would have no choice but to fire her.

[Llewlladdwr]

44. Shouldn't they have done an investigation before firing her?

I'm still not seeing how Breitbart is the one responsible for any harm done to Sherrod. Yes, he put information out that indicated Sherrod was a racist. If he truly believed what was in the video though he can certainly defend himself by saying that actions like this by a Government official must and should be investigated. It's not his fault USDA and the White House acted without due proces.

[MarkInSavannah]

61. I don't understand..........

Breitbart only highlighted an admission she herself made; that she harbored racist thoughts. If he had come right out and accused her of racism (which he didn't) this in of itself would still lack any compelling claim of libel as she herself admits in the video that she held these thoughts. That she later explains that she was willing to put aside her racism to help the farmer is in actuality, quite meaningless. The video speaks for itself and in its entirety (I've watched it) it continues to paint her in a bad light.

[sabrina 1]

43. Also, he admitted he did it as an act of revenge

against the NAACP for calling the Teaparty 'racist'. He said that he didn't even care about Sherrod. Isn't that 'malice'? Except it was directed at the NAACP, but he used Sherrod to get his revenge. He admitted it in an interview right after it happened. Don't have a link handy, but I I can find it.

[Llewlladdwr]

45. I don't think he said that.

I believe his comments were more along the lines of pointing out hypocrisy on the part of the NAACP.

[sabrina 1]

53. No, he said his posting of the edited tape was in reaction to

the NAACP calling the Teaparty 'racist'. He was quite clear about it. In his mind, sick as it is, that was a justfiable response. He was trying to say he was not after Sherrod, he was after the NAACP which he did say he believed were hypocrites.

[WolverineDG]

39. The First Amendment does not protect you from libel or slander

why do you think they're always saying "alleged suspect" or that someone "allegedly" murdered/stole/assaulted?

dg

[Gothmog]

42. If Sherrod is a public figure, then malice is required

All the first amendment does is require one to prove malice when the plaintiff is a public figure. The malice standard can be satisfied by showing reckless disregard. Brietbart posted a tape he knew was edited. That was reckless and will satisfy the actual malice standard under the First Amendment

[WolverineDG]

55. She was not a "public figure" at the time Breitbart released his tape

that she became one afterwards is irrelevant. She does not have to prove malice.

dg

[onenote]

60. Correct

[Llewlladdwr]

47. But the truth does.

Claiming that you're speaking the truth is an affirmative defense to libel or slander. This is why Breitbart can demand access to any records of past statements by Sherrod looking for evidence that she is indeed a racist.

[WolverineDG]

56. Truth is A defense

"Claiming to speak the truth" is not.

dg

[Gothmog]

57. I agree with your analysis

The fact that Sherrod was a public official at the time of the comments does not make a public figure for First Amendment purposes. If this was the case, then each and every postal worker or other govt. employee would be subject to defamaation.

[Gothmog]

41. Breitbart was reckless

Publishing a video that you either edited yourself or you know was edited is reckless. Breitbart was reckless here in either case. breitbart is the proximate cause of the slander/defamation of Ms. Sherrod. The actions of Vilsack and the USDA were stupid but such actions were cause by and due to the actions of brietbart.

[Llewlladdwr]

49. Again, Breitbart couldn't know that USDA would fire Ms. Sherrod without due process.

Are you claiming it's reasonable to believe that the Government would fire an employee accused of racism with NO investigation whatsoever?

[Kurt_and_Hunter]

23. You don't need to be a lawyer. It's a frivolous suit.

The correct suit would be against the WH or her boss.

She was fired by them, not by Breitbart.

And they even admitted they were wrong to fire her.

Meanwhile, Breitbart presented a government official in a way the official felt was unfair. And not about something personal, but abou job performance.

I would prefer not to live in a country where that is a tort.

Breitbart is scum bu being scum is not actionable.

(I am glad Michael Moore isn't sued by 100 people every time he releases a movie.)

[dsc]

31. he did far more than that

First, she wasn't a government employee when the action described took place. Second, he highly editted the tape, or someone else did. It would be tantamont to my editting the tape of an anti gay religious figure to make him appear to be gay. He crossed the line here. Even with public figures there are some standards we have to follow. I think his outright refusal to apologize even now is proof of malice.

[WolverineDG]

40. She was fired BECAUSE of what Breitbart (allegedly) did

Hasta la vista, baby, because that IS a tort in this country. :hi:

dg

[Llewlladdwr]

50. No, she was fired for supposedly being a racist. NT

[WolverineDG]

54. As Breitbart portrayed her nt

[treestar]

48. No, you only have an action against the slanderer/libeler

And a plaintiff has to have damages, so that could be it.

If she has a case against her employers, it would be on a different basis. Something like discrimination.

[depakid]

51. Actually, it's a classic set of facts meeting the elements for the tort of false light

Who fired her is irrelevant to anything other than proof of damages to her reputation (which are more extensive than her simply having been fired).

[Mr. Ected]

32. Our contempt is aimed at Breitbart and FOX

But the suit needs to be directed against the employer for wrongful dismissal.

Their knee-jerk reaction to doctored videotape is what damaged Mrs. Sherrod. I would suggest that she would be successful in such a lawsuit against the USDA.

Breitbart and FOX can only be tried in the court of public opinion. In that venue, they already have a captive audience that is thrilled to death at any damage they can cause the opposition, be in based in fact, fantasy, or, as in this case, fabrication. They walk, unfettered, from this, laughing at the ineptitude of the administration and the mainstream media and concocting their next act of malice.

[H2O Man]

35. It will depend

entirely on if it is allowed to move forward. If a judge tosses it out because of the precedents of cases involving (a) public figures, or (b) journalists' protections, it dies. If the judge rules it has merit, she will most likely win punative damages.

[deaniac21]

37. Looks like the wingnuts have plans of their own......

http://www.americanthinker.com/2010/07/real_sherrod_story_still_untol.html

[treestar]

46. Some law school type stuff

Elements of Common Law Defamation

1. Defamatory language
2. Of or Concerning the Π (symbol for plaintiff)
3. Publication to θ, and (symbol for third party)
4. Damages to Π’s reputation

1. Defamatory language: tends to adversely affect one’s reputation. Impeach honesty, integrity, virtue, sanity, etc. Specific facts, not just name calling.

2. Of or concerning the Π.

3. Publication: intentional or negligent. It is the intent to publish that creates liability, not the intent to defame. Each repetition is a separate publication. The primary publisher is liable, and so are any repeaters.

4. Damages to Π’s reputation: must show special damages (pecuniary loss) for slander that does not fall into per se slander category.


The challenge would be find some way to make Breitbart's action fit the first requirement. The lie by omission attempted to impeach her virtue (doing her job right).

[opihimoimoi]

52. BriteBrat must be shittibg in his diapers by now....he is such a POS

[Gothmog]

58. breitbart did not mention Sherrod at tea party meeting on saturday

Breitbart spoke at a teaparty event on saturday and did not discuss the Sherrod matter. I saw that he told Newsweek that he wants to meet with Sherrod in private with no press. I think that breitbart is getting worried.

[walldude]

63. If it goes to trial she will win.

Have any of you ever seen some of Breitbarts videos? The defense will show tons of videos of Breitbart claiming he is the Democrats worst enemy and his life goal is to go down in history as the man who brought down the Democratic party. This guy is an ass and court isn't fucking Fox news, facts will matter, they won't get glossed over. The defense can easily show that Breitbart has an agenda and purposefully released a video he knew was edited in order to achieve his life long goal of being the man who brought down the Democratic party. He slandered her knowing what he was showing was false. If she can get this in front of a judge she will win. Easily.

[mdmc]

64. ..