Does Shirley Sherrod have a libel case against Andrew Breitbart?

Mike Riggs Contributor
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At a meeting of the National Association of Black Journalists in San Diego last week, former USDA employee Shirley Sherrod announced her intention to sue conservative journalist Andrew Breitbart in just two sentences:

“He’ll definitely hear from me,” Sherrod said to the gathered journalists. “I will definitely do it.”
Since then, neither party has said much about the affair. Sherrod hasn’t elaborated on her plans, and Breitbart has refused to entertain doomsday scenarios.

“I’m not going to respond to the lawsuit,” the conservative provocateur told Newsweek in an interview published July 30. “She mentioned it last week, when it fueled 36 hours of coverage, and then again this week, when it fueled another round of coverage. Until there’s a lawsuit, unless there’s something to answer to, there’s nothing I can comment on.”

On July 19, Breitbart posted a video of Sherrod on his Big Government site, in which Sherrod could be seen crowing to a mostly black audience about once denying aide to an impoverished white farmer. Not until Agricultural Department Chairman Tim Vilsack forced Sherrod to resign did anyone discover that Breitbart’s video had been heavily edited. In the full video of Sherrod’s speech, she goes on to say that she eventually helped the white farmer, and that they’re still friends.

“I put up what I had,” Breitbart told Newsweek. “It granted a great portion of her redemptive tale, but not all of it. If I could do it all over again, I should have waited for the full video to get to me.”

But by the time Newsweek published its interview last Friday, it was too late. The White House had already invented new ways to apologize for Vilsack’s hasty actions, Sherrod was launching a new career as a talking head, and political writers from D.C. to California had lapped each other in the race to prove that this particular episode signaled the death of American political journalism.

Two weeks after patient zero lurched to life on Big Government, an even larger specter looms: What happens if Sherrod follows through on her threat?

“Andrew Breitbart is going to be fine. He’s done nothing wrong,” wrote Brent Bozell, publisher of the conservative media criticism site NewsBusters. “I wonder if Ms. Sherrod, who is such a champion of transparency, will publicly disclose who is putting her up to this. And I also hope this champion of honesty will stop lying about Fox News,” he added, referring to the now-debunked claim that Fox News drove the Sherrod story from the start.

Progressive blogger and attorney Glenn Greenwald, writing at Salon a full two weeks before Sherrod made her threat, had a different take on Breitbart’s chances of winning a lawsuit. “As a practical matter, it’s probably difficult to prove damages (if she is offered her job back),” Greenwald wrote days before Vilsack did indeed offer to reinstate Sherrod. “Beyond that, Breitbart is claiming it wasn’t him but his “source” who did the editing, and you’d probably have to have a fight over whether he can conceal the source’s identity under some sort of shield law.”

Greenwald, who has come out publicly in favor of Sherrod suing Breitbart, argued that the edited video which Breitbart posted was “a form of recklessness that could be actionable even if he wasn’t the one who did the editing.” Adding, “I think it’d be worth it to sue him just to uncover his ‘source’; who did the editing. ‘Journalists’ are supposed to expose their ‘sources’ if they use the journalist to perpetrate a fraud.”

While neither Greenwald nor Bozell argue libel cases for a living, their skepticism was confirmed by someone who does. David Hudson, a law professor at Vanderbilt University, told the LA Weekly (Breitbart’s hometown alternative paper) that a libel case “would be a difficult case to make.”

Why? Because Breitbart was using Sherrod’s own words in his video and because he believed them to be true.

“If Sherrod is considered a public figure, Breitbart is on much safer terrain,” wrote LA Weekly’s J. Patrick Coolican after speaking to Hudson, who is a scholar at the First Amendment Institute. “In the case of New York Times v. Sullivan, the U.S. Supreme Court decided that proving libel against a public figure requires not only showing the defendant said something false, but also that there was ‘actual malice’ in the alleged libelous speech.”

“Even before her new fame,” wrote Coolican, “Hudson notes that her work with the Department of Agriculture could give her public figure status, as even police officers and teachers have been called limited public figures in libel cases.”

But there are those who think Sherrod may have a case, based on the snatches of text that Breitbart placed in between clips of Sherrod’s speech, which make the claim that Sherrod admits in the video to practicing discrimination.

“If that statement is not true, that’s problematic,” libel lawyer John C. Stivarious Jr. told the Atlanta Journal-Constitution. “It certainly impugns her character and it’s out in the public for all to see.”