Shirley Sherrod Defamation Suit: Is the Late Breitbart Liable?

On July 19, 2010, Andrew Breitbart posted an edited video of remarks made by Shirley Sherrod, Georgia state director of rural development for the United States Department of Agriculture, at the NAACP Freedom Fund dinner in Georgia. The clip made Sherrod, who is black, look like a racist. It forced her resignation, but the rest of the video made it clear she was telling a tale of overcoming prejudice. Sherrod has sued the bloggers that posted the video for defamation, and they filed to dismiss the suit. A federal judge upheld the suit and the bloggers are now appealing.

Is taking something out of context defended by the First Amendment? From judicial precedent, it appears that if editing changes the meaning of a statement, it is defamation. However, the case poses important and difficult questions for First Amendment rights in the era of new media.

In the clip, Sherrod says that she "didn't give" a white farmer whose land was being foreclosed "the full force of what I could do" because she felt he had been trying to prove his superiority to her and because "so many black people had lost their farm land." The incident in question took place in 1986, when she worked at the Federation of Southern Cooperative and Land Assistance Fund. She also said that she "did enough" and that the incident "opened her eyes" and made her realize that "it's about [the] poor vs. those who have."

In the accompanying blog post, Breitbart condemned Sherrod's story as a "racist tale" and said that Sherrod, who oversees over a billion dollars in funds, does her work "through the prism of race and class distinctions." Sherrod resigned after numerous officials asked her to do so.

The next day, the NAACP posted the full video, which proved Sherrod's story that she eventually helped the farmer save his land and became friends with him. The USDA later offered Sherrod a position doing internal anti-discrimination work, which she turned down for another consulting position at the agency. 

Sherrod has filed suit against Breitbart, his colleague Larry O'Connor, and the unnamed source of the edited video. (Breitbart died last year.) Sherrod says that she suffered back pain and sleeping problems in addition to losing her job. O'Connor moved to dismiss the suit under an anti-SLAPP law, defending the blog post with the edited video as "opinion." SLAPP refers to strategic lawsuit against public participation; in other words, a lawsuit one brings primarily to silence critics, rather than necessarily to win. Sherrod said this would deny her right to trial, but regardless, the judge ruled that the suit should continue, and that O'Connor had wasted "a considerable amount of judicial and litigant resources."

A 2010 decision by the U.S. Ninth Circuit Court of Appeals hints at how the court might rule. In Price v. Stossel, after the case was dismissed under the anti-SLAPP law, the appeals court upheld the suit, ruling that "[W]hen dealing with material that is portrayed as a quotation, we are to compare the quotation as published with the words the speaker actually said. Where the published quotation contains a material alteration of the meaning conveyed by the speaker, the published quotation is false." Assuming the appeal is denied, Sherrod's lawyers will argue that omitting the rest of the clip materially altered the meaning of the quotation.

It is harder to prove someone defamed a public official, because the standard for "malice" is higher: the Supreme Court ruled in New York Times v. Sullivan that if the accused making the statement about a public official did not have direct knowledge of the truth of the claim, malice must be proven by "reckless disregard" for the truth.

Obviously, what Breitbart did is morally wrong. But it seems that from appeals courts' precedents, he was legally wrong too. It is hard to argue that claiming a public official is a racist from a portion of a story displays anything but "reckless disregard" for the truth, and it's clear that he altered the meaning of Sherrod's statements, even if only by omission. He should have tried to get the full clip, or at least shown more restraint in bashing Sherrod without it. However, it's impossible to know how the court will rule.

The First Amendment issues are tricky for the implications they pose: if quoting out of context is grounds for defamation, where do we draw the line? Further, Breitbart was a blogger, and the court makes a distinction between media and non-media in defamation cases. Is posting on a social network enough to qualify someone as a member of the "media"? We should all monitor this case closely.