I stand by my prediction. Sherrod gets jack **** from Breithbart.
Dissecting Shirley Sherrod’s Complaint Against Andrew Breitbart*|*Yes, But, However!
The Complaint is 42-pages long, but the legal weakness of the case was given away right in the first paragraph (emphasis and italics in original; underscoring mine):
Notice the themes right at the start: A distinction between past and present discrimination and an emphasis on Sherrod’s “federal duties.”This is an action brought by Shirley Sherrod, a former Presidential appointee and former Georgia State Director for Rural Development for the United States Department of Agriculture (“USDA”) for defamation, false light and intentional infliction of emotional distress. Mrs. Sherrod was forced to resign from her job after Defendants ignited a media firestorm by publishing false and defamatory statements that Mrs. Sherrod “discriminates” against people due to their race in performing her official federal duties. Defendants drew false support for their claims from a speech given by Mrs. Sherrod that they edited, deceptively, to create the appearance that Mrs. Sherrod was admitting present-day racism. In fact, Mrs. Sherrod was describing events that occurred twenty-three years before she held her federal position and, in fact, was encouraging people not to discriminate on the basis of race.So what is wrong with these seemingly impressive allegations?
Sherrod’s counsel must recognize that the video (whether the edited or full version) demonstrates — arguably — past discriminatory intent and conduct by Sherrod in how she treated a poor white farmer who came to her for help.
Hence, each of the key elements of the alleged falsity — the fact of the discrimination being in the past, that Sherrod did help the farmer, and that Sherrod’s tale was one of not being racist after the incident — all were disclosed in the edited video which forms the basis for the lawsuit.
The problems go even deeper. Regardless of the caption and the interpretation of the word “discriminates,” the facts were revealed to the viewer, rendering the characterization of “discriminates” or “racism” being matters of opinion, and hence not actionable in a defamation case. See, e..g., Smith v. School District of Philadelphia, 112 F.Supp.2d 417, 429 (E.D.Pa. 2000)(accusation that plaintiff was “racist and anti-Semitic” was non-actionable opinion); Edelman v. Croonquist, 2010 WL 1816180 (D.N.J.)(accusation that someone was “racist” was non-actionable opinion particularly where the facts supporting the opinion were disclosed).The false light claims really are derivative of the defamation claim, and typically a court will not allow a plaintiff to evade the defamation laws by casting a defamation claim as a false light claim. And the “intentional infliction of emotional distress” claim is a reach, again because there was nothing done by Breitbart (as opposed to the Obama administration) aside from the alleged defamation.
Breitbart’s attorneys likely will make the arguments with more force and clarity than I have in seeking to have the Complaint dismissed. The point of this post is that the Sherrod complaint is weak as a legal document, and the underlying merits appear even weaker when subject to scrutiny.
Sherrod’s lawyer has done a good job of creating a document to minimize the weaknesses of the claim, but the weaknesses are right there, on Page One.