Shirley Sherrod: Does she have a case against Andrew Breitbart?

Without an actual lawsuit, it's difficult to parse Sherrod's potential libel or defamation claim. She could claim that, despite her role as a government official, she was a private person speaking in a private capacity in the video clip. Private individuals have far greater First Amendment protections than do public individuals, such as politicians, celebrities, and certain government employees.

If Sherrod admits she's a public figure, the standard of proof would be that Breitbart intended to injure her personally by specifically publishing information he knew to be false. She would also have to prove injury to her income and reputation, which may be a hurdle since she's been offered another job and has been hailed as a hero by many Americans.

"The 45 words of the First Amendment don't include any conditions where claims have to be accurate, fair, or nice. It simply says there's a free press," says Policinski. "The Founders envisioned an extremely vigorous public debate. Just because we now have the Internet and new technology that allows us to distribute [viewpoints] broadly, should we throw that overboard?"

Did Breitbart have the whole video?

Breitbart has stated he wasn't making a point about Sherrod but about the acceptance of reverse racism within the NAACP, which only a few days earlier had said that the "tea party" movement tolerated racists. During the past year, Breitbart – a Matt Drudge protégé – has led an aggressive campaign to fight back against what he calls liberal media bias, claiming that Democrats and mainstream newspapers use race-baiting to vilify conservatives.

He has said he had the Sherrod clip on hand to publish at the right moment for maximum effect.

"This was not about Shirley Sherrod," Breitbart told CNN.

Part of any potential discovery process in a legal case would probably include determining whether Breitbart had the entire video available to him or just the 2-1/2-minute clip he published. He has said a source sent him only the clip.

So far, Breitbart has refused to apologize to Sherrod, although others who called on her to resign, such as Fox News' Bill O'Reilly, have apologized.

Mr. Obama expressed his regret about the episode again on "The View" Thursday. "She deserves better than what happened last week," Obama said. He called the incident "a bogus controversy, based on selective and deceiving excerpts of a speech.

"Many are to blame for the reaction and overreaction that followed these comments, including my own administration," he said.

Related:

• Shirley Sherrod, ousted for 'racist' video clip, may not take back job
• Shirley Sherrod: casualty of escalating 'tea party'-NAACP race spat?
• Nasty 'tea party'-NAACP racism feud: Who's right?

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