- The Washington Times - Sunday, February 20, 2011

The defamation lawsuit filed by a former Obama administration official against conservative blogger Andrew Breitbart promises to test the application of traditional libel laws in an emerging media landscape in which blogs and social networking websites have taken the place of newspapers and television broadcasts.

Media and legal observers say the case bears watching because of that, but that it largely will hinge on well-established law and precedents despite its high-tech setting.

“While this is one of the first high-profile blog-based libel suits, the basic underpinning is pretty simple — was the gist of the material posted not substantially true,” Jeff Stein, a communications professor at Wartburg College in Iowa who also is a lawyer, wrote in an e-mail to The Washington Times. “I think she can win on that.”

The lawsuit stems from a highly charged incident last summer in which Mr. Breitbart posted a video clip of Shirley Sherrod, who is black, delivering a speech at an NAACP event. In the video, she describes an incident in which she was reluctant to help a poor white farmer. The video ignited a media firestorm and ultimately led the Obama administration to force Mrs. Sherrod’s resignation as the Department of Agriculture’s Georgia state director of rural development.

Soon afterward, the National Association for the Advancement of Colored People released a video of the full speech showing that Mrs. Sherrod was describing an episode that took place more than two decades ago. The speech was about how she overcame her initial prejudice and helped the poor white farmer, an account the farmer corroborated. The speech’s overall message was the importance of helping the poor, regardless of their race.

The White House apologized to Mrs. Sherrod and offered her a higher-level position in the Agriculture Department. She declined the offer.

According to the lawsuit, Mr. Breitbart posted the video clip in attempt to show racism within the NAACP because he was angered by the organization’s accusations of racism against the tea party.

In a statement on his website, Mr. Breitbart expressed confidence that he will be vindicated, even hinting that the lawsuit was filed in retaliation for his work exposing what he called wide-ranging fraud that relates to reparations paid to black farmers, which he suggests involved Mrs. Sherrod.

“I can promise you this: neither I, nor my journalistic websites, will or can be silenced by the institutional left, which is obviously funding this lawsuit,” he said. “I welcome the judicial discovery process, including finding out which groups are doing so.”

Mrs. Sherrod, in a statement sent to Media Matters, a liberal media-watchdog group, said the lawsuit was not about politics or race.

“It is not about Right versus Left, the NAACP or the Tea Party. It is about how quickly, in today’s Internet media environment, a person’s good name can become ‘collateral damage’ in an overheated political debate,” she said. “I strongly believe in a free press and a full discussion of public issues, but not in deliberate distortions of the truth.

“Mr. Breitbart has never apologized for what he did to me and continues — to this day — to make the same slurs about my character,” she said.

Analysts told The Times that the case could be difficult for Mrs. Sherrod to win, especially if the court determines she is a public figure instead of a private citizen. Public figures have a higher burden in defamation cases, having to prove “actual malice” or “reckless disregard for the truth.” A private citizen must prove only that a media outlet was negligent.

“This has been a difficult standard to prove in most cases, since it requires to prove some knowledge of the intent of the person who did the publishing of the remark,” Richard J. Goedkoop, a communications professor at LaSalle University, wrote in an e-mail to The Times.

Mrs. Sherrod’s attorneys argue in the lawsuit that “the extensive and misleading nature of the defendant’s edits of the video” along with the additional text on the website show the “defendants’ defamation and disparagement of Mrs. Sherrod was done intentionally and with actual malice.”

Mrs. Sherrod has accused Mr. Breitbart, employee Larry O’Connor and the unnamed source of the video with defamation, representing her in a false light and intentional infliction of emotional distress. The lawsuit, filed Feb. 11 in Superior Court in the District of Columbia, seeks the removal of the video and related blog posts from Mr. Breitbart’s site and monetary compensation, including punitive damages, to “punish the defendants’ reprehensible conduct and to deter its future occurrence.

“Defendants deliberately edited the full video of Mrs. Sherrod’s 43-minute speech down to a short, highly misleading two-and-a-half minute clip that defendants knew, or should have known, would portray Mrs. Sherrod in a false and defamatory manner,” the lawsuit stated.

The lawsuit has more wrinkles than traditional defamation cases because it mentions the video and blog postings — including one that stated that Mrs. Sherrod “discriminates against people due to their race” — and cites messages Mr. Breitbart posted on the social networking site Twitter.

“Will Eric Holder’s DOJ hold accountable fed appointee Shirley Sherrod for admitting practicing racial discrimination?” read one of his Twitter posts, referring to Attorney General Eric H. Holder Jr. and the Department of Justice.

The lawsuit stated: “Defendant Breitbart’s Twitter message directly illustrates his intent to accuse Mrs. Sherrod of unlawful activity and to provoke and instigate financial and reputational damage to Mrs. Sherrod.”

Still, Peter Breen, executive director and legal counsel for the Thomas More Society, a pro-life, public interest law firm in Chicago involved in representing conservative bloggers facing similar lawsuits in Chicago and Quebec, told The Times that there is a strong chance the case could be thrown out on a preliminary motion to dismiss.

In addition to the increased burden of proof Mrs. Sherrod is likely to face, he said, Mr. Breitbart is a noted conservative who was criticizing an Obama administration appointee, which means his statements could be considered the sort of “hyperbolic” opinions afforded greater protection under freedom-of-speech rights.

If the case isn’t dismissed outright, Mr. Breen said, Mr. Breitbart could face considerable difficulties, such as a judge’s order to reveal the identity of the person who provided him with the video. Mr. Breitbart has refused to disclose that person’s identity.

Should a judge make such an order, said Stuart Slotnick of the Washington, D.C., law firm Buchanan Ingersoll & Rooney, Mr. Breitbart could be put in the unenviable position of either disclosing his source or risk having the judge hold him in contempt of court and possibly rule against him automatically.

In that case, Mr. Slotnick said, the only proceedings held would be to determine what Mrs. Sherrod would receive from Mr. Breitbart, although her actual damages were an open question. “She effectively, as a result of being prematurely asked to resign, got a raise and turned it down and left herself without a salary,” he said, adding that what she does have going for her is that “she was really wronged.”

“She was portrayed as a racist and the content of the statements by Breitbart were put on the Internet, in which she can argue was meant to be virally transmitted throughout the Internet,” she said. “She was labeled as a racist throughout the entire country when she was criticizing racism and attempting to be above it.”

• Ben Conery can be reached at bconery@washingtontimes.com.

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