Should Shirley Sherrod Sue Andrew Breitbart and Fox News?

The Court made this the law in order to give public commentary ample breathing room, for it assumed (incorrectly, for many, I believe) that because public people have access to the media, they can often easily correct false information concerning them, when it makes its way into the marketplace of ideas, by simply entering into the public debate themselves.

If Sherrod Were to Sue, Her Problem Would Not Just Be Proving "Actual Malice" But Also Proving Damages

In truth, the Court has created a wonderful refuge for scoundrels, the kind of place from which a Fox News or Andrew Breitbart can safely attack others with impunity. Here, in the Sherrod situtation, it would be all but impossible to prove that Fox News acted with actual malice.

Let's start with the possibility of a suit against Fox News. Here is how things will likely go: Fox News will claim that it had no reason to suspect that there was more to the video clip than it was given -- notwithstanding that Fox News surely knew that Breitbart, generally, was less than a reliable source. Other news organizations ran the clip as well, which would help Fox News's suggestion that its action in running it was reasonable. There is nothing better than a lawsuit (or a charge of recklessness) to bring out claims of innocence by news organizations.

What about a suit against Breitbart himself? As for proving that Breitbart released this clip with reckless disregard for its truth or falsity, I think a case might be made, although he has said he did no editing of the clip; rather, it was given to him by his unnamed source, which he is unwilling to reveal. (When and if that source is revealed, his or her identity will be very interesting to learn.) Nonetheless, Breitbart surely knew there was more to Sherrod's speech than the small clip he was given, and he never bothered to find out what Sherrod had actually said. So he may well have acted with reckless disregard. But there is another problem with a lawsuit against Breitbart, as well.

No doubt Jon Turley wrote his blog posting before Secretary Vilsack offered Sherrod an apology and reinstatement at USAD in a "unique" position to work on civil rights. This offer has largely removed any financial damages that would otherwise have arisen from her forced resignation forty-eight hours earlier. Moreover, the intense media coverage has further ameliorated the damage -- for it is now well-understood by anyone who follows the news at all that Sherrod is not a racist, but rather the victim of Andrew Breitbart's ugly politics. It is clear that she was unfairly and falsely charged.

With only nominal damages at issue now, no attorney is going to take on this case on a contingency basis; even if a jury (or judge) were to award punitive damages to punish Breitbart, it does not appear he has very deep pockets, and libel-law-related verdicts are often dramatically reduced on appeal. In short, filing the action would not be financially rewarding, and it certainly would be (as with all lawsuits) very expensive, easily costing over a million dollars.

Overall, Shirley Sherrod Would Be Wise Not to Sue Anyone Over The Incident

Frankly, if I found myself in Shirley Sherrod's situation, I would file a lawsuit next week. But I could represent myself in court, and would take delight in going after a jackass like Breitbart, not to mention Fox News, to expose what they are doing. For me, the reward would be holding them accountable for even nominal damages and making their lives miserable.

There is little doubt that such a legal action could proceed beyond any initial motions seeking immediate dismissal. And after that crucial threshold, I would have subpoena power and the ability to question those involved under oath. This would make it possible to fully uncover how this fraud was actually perpetrated. While I might enjoy doing this, I cannot recommend that anyone without legal training and litigation experience get into what might nicely be described as a brawl with skunks.

Sherrod should be advised (and I say this based on a lot of personal experience) that conservatives like Breitbart will not play nicely merely because they have been taken to court. These authoritarian personalities, and those who share their thinking, go ballistic when confronted with legal actions. They resist being held accountable, and feel particularly threatened by legal actions. What Breitbart will do if Sherrod files a lawsuit against him is to quickly create a legal defense fund, with the support and financing of like-thinking conservatives, and he will hire as nasty an attorney as is available in his tribe. Soon, he will be using the legal process to harass Sherrod by digging into every inch of her life, and perhaps even countersuing Sherrod for claims as to which she has no knowledge. It will be ugly, and she must plan on several years of intense unpleasantness.

Breitbart, it is clear, is not backing down. Authoritarians never do. He refuses to explain where he got the edited video clip of Sherrod, and he is not apologizing. This is standard authoritarian behavior. To the contrary, he is continuing to attack Sherrod, along with his larger target, the NAACP. He claims that he is sorry that she got messed over by the Obama Administration and the NAACP, but he is not letting up on his race- baiting. He would no doubt celebrate a lawsuit -- until he lost it, and then would claim, in fact, that he had won. Andrew Breitbart doubtless loves all the publicity he is getting, for authoritarians feel no shame, and they become so swept up in their self-righteousness, that they believe they are doing the world a favor.

Hopefully, Sherrod will not proceed with a lawsuit for it will involve much more unpleasantness, and much of her time, with little reward. On the other hand, Andrew Breitbart, the Obama Administration, and the NAACP have given her a meaningful public presence. She has an important and timely message to send, and now, she also has a commanding presence on the public stage through which to share it. She should write a book and lecture, and share her experiences. Even thinking conservatives must acknowledge that Breitbart made himself look more the jerk, so I would hope that Sherrod gives her malevolent detractor no more of the negative attention he so craves.