So I see where Shirley Sherrod, the USDA official ousted from her Georgia position thanks to a misleadingly edited video posted by Big Government.com blogger Andrew Breitbart and trumpeted by Fox News, is thinking of suing Breitbart for defamation.
Unfortunately, under the Supreme Court's 1964 New York Times v.
Sullivan defamation decision, Breitbart might well win the
lawsuit because Shirley Sherrod as a USDA official addressing the NAACP
on a public issue easily could be deemed a "public figure." As such, she
cannot recover damages for slander without proof that Andrew Breitbart
published the tendentiously edited video with knowledge of its falsity
or with "actual malice" -- publication with reckless disregard of
whether it was false or not.
Still, as a lawyer myself, I'd
love to take the case because (1) the unprincipled Breitbart has some
comeuppance coming, just as his obnoxious little ACORN protege got his
in Mary Landrieu's Louisiana office, (2) it could easily be argued that
Breitbart published with actual knowledge of falsity, promoting the
purposely false impression that Sherrod was a racist who was denying
government services to white farmers, in reckless disregard for the
effect of his misleading actions upon her career.
Breitbart's lawyers might be forced to fall back upon a final line of defense: No real damages suffered by plaintiff Sherrod. She got publicly and humiliatingly canned, but everyone involved -- from President Obama to Tom Vilsack to the NAACP -- has just as publicly apologized. Her reputation has been entirely vindicated. She's been offered a government job back, and if she takes it, where are the real damages?
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