In deciding to sue conservative Internet provocateur Andrew Breitbart for libel, former Agriculture Department official Shirley Sherrod may end up being harmed by the quick recuperation, even enhancement, of her reputation following the scandal.
Several prominent First Amendment lawyers said on Thursday that Sherrod -- who was abruptly fired from her job after misleading video of her was posted on Breitbart's website, biggovernment.com, has decent grounds on which to sue.
"There are a lot of unknowns," said Victor Kovner, a highly respected 1st Amendment lawyer for the firm Davis Wright Tremaine. "But let me say, from what I know, it is not a frivolous suit."
But in a twist of irony, Breitbart's embarrassment may end up serving to his legal advantage. For Sherrod's suit to be successful, a number of different legal criteria must be met. That criteria changes depending on whether the court rules that she was or was not a public official. But assuming she was, Sherrod must show in part that she has been damaged or harmed by the episode. And the mere fact that she is now held in such high regard, owing to the sympathy generated by her treatment, could end up complicating her case.
"It is an intriguing case," said Professor Stephen Solomon, a journalism and First Amendment professor at New York University. "But I come back to the point that she has resolved this in the court of public opinion pretty quick. The point of a libel suit is to restore someone's reputation... she was damaged very badly in the short term. But now everyone knows this is false and she is not the person she was portrayed."
As Solomon sees it, Sherrod does potentially have a case to make in the court of law. But the benefits of pursuing a trial are not that clear, especially with the likelihood that it will be dragged out over several years. "She probably can prove some reputational injury in the legal sense, as she was fired and was depicted as a racist for a few days. That certainly hurt her reputation. But in the larger sense, it seems to me that much of that injury has been ameliorated. I'd be surprised if there is any reasonable person now who believes that she's a racist; in fact, much the contrary. She is written about with great respect."
All of which seems unlikely to dissuade Sherrod from pursuing her lawsuit, which she announced on Thursday. The former Agriculture official has an obvious axe to grind, owing to the false and discourteous pretenses upon which she was fired. But there are a number of hurdles in her way if she follows her pledge and brings Breitbart to court.
For starters, the official determination must be made as to her public figure status. On this front, both Kovner and Solomon are torn. While Sherrod was a government official and part of a well-known family in her state and community, it could be that she was once obscure enough to not qualify for that distinction. Her case is much easier if she doesn't.
If she is, Kovner notes, she then must "show that not only what [Breitbart did] was false and portrayed in a false light but it was done deliberately so."
Breitbart has contended that he posted a video clip that was already edited, as in, whatever slicing was done to the video was not done by him. This too, could complicate Sherrod's attempts to prove deliberate malice. But Solomon notes that she could still argue that Breitbart exhibited "reckless disregard for the truth" which has been defined, he notes, as "a high degree of awareness of probable falsity. The defendant might not necessarily know it was false but there were circumstances that told him it was and he did it anyway."
This too is a subjective legal definition and one that could be difficult for Sherrod to prove. But Kovner predicts that the court will be tempted enough to at least see additional information.
"I think the heart of his defense would be that he was fooled and didn't know the full context," he said. "I don't know that but presumably in a lawsuit we will find out who did what when... I don't think he can get a motion to dismiss. I don't think he would prevail. He may well face some discovery."
Breitbart, in short, finds himself in a mildly precarious legal dilemma, though with the chips still stacked firmly in his favor. The conservative Internet activist has already insisted that he was trying to make a political point by publishing the footage (albeit, a point against the NAACP). And it is well established that what he ended up putting on his website was false. All of which creates a rare and intriguing foundation for a libel case.
"The thing I find really interesting about this potential suit, in almost every libel suit, especially high-profile ones, the plaintiff is basically suing to prove falsity in order to restore their reputation," said Solomon. "In this instance, she would have to prove falsity in a legal sense and he would fight that but in the public mind people now, I think, accept the fact that she was badly wronged and what was put up about her in his blog and online with the video was false. "