Saturday, July 31

Analyzing the Case of Sherrod v Breitbart

Although many pundits openly admit that Shirley Sherrod deserves her day in court against Andrew Breibart, few seem all that willing to openly say whether she has a chance of winning or not. Herein I take a basic look at the case and the law, and invite practicing attorney's to weigh in...

Let's start with the original post and video.

Much of the media has portrayed Breitbart's own commentary on the video as being rather minor, but it is not. It's actually quite extensive, going on to lay out the entire background for the dispute between the Tea Party and NAACP.

In his view, the Tea Party is completely and totally innocent of the charge of Racism. He claims that Democratic Congressmen staged their walk through the crowds inside the Capital Building - it's not like they WORK THERE OR ANYTHING - in an attempt to provoke Tea Partiers, which he also claims failed.

But it got even more blatant when Congressmen Andre Carson and John Lewis and other Congressional Black Caucus members staged a walk through the Tea Party crowd in front of the capitol the day before the health care vote. They claimed they were threatened by a violent mob and were subjected to the vile N word slur fifteen times. With the unpopularity of the toxic health care bill that the majority of Americans did not want, the Democrats needed a November strategy. Neutralizing the growing Tea Party movement with charges of racism was clearly its post-health care reform vote priority.

See, the only accusation of bigotry on the part of the Tea Party was the "N-World" during that one moment even though there were witnesses, it had nothing to do with this...

Or Mark William's "Colored People Like Slavery" Letter.

The core of his argument, to cut to the chase, is that the "Real" Racists are the Congressional Black Caucus and the NAACP.

The NAACP and the Congressional Black Caucus do not want racial harmony. They want political victory, and the race card is their Stradivarius.

We are in possession of a video from in which Shirley Sherrod, USDA Georgia Director of Rural Development, speaks at the NAACP Freedom Fund dinner in Georgia. In her meandering speech to what appears to be an all-black audience, this federally appointed executive bureaucrat lays out in stark detail, that her federal duties are managed through the prism of race and class distinctions.

In the first video, Sherrod describes how she racially discriminates against a white farmer. She describes how she is torn over how much she will choose to help him. And, she admits that she doesn’t do everything she can for him, because he is white. Eventually, her basic humanity informs that this white man is poor and needs help. But she decides that he should get help from “one of his own kind”. She refers him to a white lawyer.

Sherrod’s racist tale is received by the NAACP audience with nodding approval and murmurs of recognition and agreement. Hardly the behavior of the group now holding itself up as the supreme judge of another groups’ racial tolerance.

As we all now know Mrs. Sherrod was not speaking about something that occurred within her "Federal duties" and this actually is indicated within even just this excerpt when she says "I thought the Department of Agriculture had sent him to me". Why would she say that if she was working for the Department of Agriculture?

This clip also includes her saying "It was revealed to me that it wasn't about was abut haves and have nots" which also shows that she was actually making a point that was broader than race. Also part of the reason, as she describes it, that she didn't want to work with this particular farmer was because "He was trying to show that he was superior to me"... in other words, he was being a bit of a prick, her negative reaction to hm and reluctance to "give hm the full force of what I could do" wasn't just because he was white - he was being an asshole.

She doesn't refuse to help him, she just gave him a reference to an attorney she thought would give him a fair shake. The point of the story was that he didn't, but what's even more interesting about Breitbart's post is that he didn't stop there.

He posted a second video.

The NAACP which has transformed from a civil rights group to a propaganda arm of the Democratic Party and social-justice politics, supports a new America that relies less on individualism, entrepreneurialism and American grit, but instead giddily embraces, the un-American notion of unaccountability and government dependence. Shirley Sherrod, a federal appointee who oversees over a billion dollars of federal funds, nearly begs black men and women into taking government jobs at USDA — because they won’t get fired.

It’s unfortunate that the NAACP’s recent resolution and false accusations have forced us to show you video 1 when video 2 is the bigger problem. That’s not to say video 1 is not a problem, but this country can ill afford, in this time of economic peril, to waste our time poking and prodding at the racial hornet’s nest that was supposed to have been removed with this post-racial presidency. But now President Obama and the modern-day Democrat party reveal they are anything but post-racial.

The emerging Tea Party nation understands that the media has focused on the manufactured racial schism while intentionally ignoring the schism between free market thinkers and government expansionists, that the latter of which is brazen in its desire to transform America into a European-model welfare state with a healthy dose of socialism.

All Sherrod says in the second clip is that it's difficult to fire a Federal Employee, and that's true due to Civil Service rules unless they happen to be a political appointee as Sherrod herself was, at which case they serve at the "Pleasure of the President" and can be removed without any reason or cause at all - just ask David Iglesias. What's so sinister about this statement I can't quite fathom, other than the idea that "black people are using the Government as a Jobs Program paid for on the backs of hard working Whites" or something...

The basic Legal issues are these... did Breitbart commit Libel?

LIBEL AND SLANDER occur when a person or entity communicates false information that damages the reputation of another person or entity. Slander occurs when the false and defamatory communication is spoken and heard. Libel occurs when the false and defamatory communication is written and seen. The laws governing libel and slander, which are collectively known as DEFAMATION, are identical.

A plaintiff who wishes to sue an individual or entity for libel or slander has the burden of proving four claims to a court: First, the plaintiff must show that the DEFENDANT communicated a defamatory statement. Second, the plaintiff must show that the statement was published or communicated to at least one other person besides the plaintiff. Third, the plaintiff must show that the communication was about the plaintiff and that another party receiving the communication could identify the plaintiff as the subject of the defamatory message. Fourth, the plaintiff must show that the communication injured the plaintiff's reputation.

Even as a layman, this appears to be a slam dunk. But was it truly Defamation?

Any intentional false communication, either written or spoken, that harms a person's reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.

So the crux here is that the statement has to be intentionally false and that the defendant has to be aware of the falsity of the statement. Truth is an absolutely defense, but then so is ignorance. If you don't know that your statement is false, then it is not intentional defamation.

In the case of the New York Times v Sullivan (1964) the Supreme Court established the Actual Malice Standard for the Defamation of Public Figures.

Actual Malice is defined as "knowledge that the information was false" or that it was published "with reckless disregard of whether it was false or not." Reckless disregard does not encompass mere neglect in following professional standards of fact checking. The publisher must entertain actual doubt as to the statement's truth Actual malice is different from common law malice which indicates spite or ill-will.

Larry Flynt attempted to invoke the Actual Malice standard in his case Hustler Magazine v Falwell but was rejected since his case involved a parody and satire, not an intentionally false statement - even though Flynt did ultimately prevail in that case.

It's pretty clear that Breitbart fits the definition of "common law malice" including spite and ill-will when it comes to Democrats, the NAACP, the President anyone associated with the - including Shirley Sherrod - and anyone who would challenge the Tea Party. He does show a blatant disregard of the facts, even of the scant information shown within the truncated version of the video - and makes clearly disprovable claims about them and about Sherrod.

But is that just intellectual laziness on his part or willful and malicious disregard for the truth?

I think it might be difficult to meet the "Actual Malice" standard if the only evidence is just this one post, but if a pattern of delibeate malice can be shown by - for example - bringing in the evidence of the Full Length ACORN tapes which were reviewed by the Brooklyn DA and California Attorney General showing that nearly all of Breitbart's claims about them were just as false and malicious as his claims about Sherrod I think Andrew might find himself in a fairly hot kettle for fish.

Update:There's also the fact that even after the full tape was released, Breitbart was still calling Sherrod "A Racist" - showing that even when he does have the facts, he continued to Defame Her.

What say you attorneys?


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