Shirley Sherrod: Can she sue Andrew Breitbart?

In the US, public figures need to show that the person who portrayed them in a false light or defamed them acted with “actual malice”, which the Supreme Court has defined as reckless disregard for whether the statement was true or false, writes John Dean, former counsel to President Nixon, on the FindLaw blog.

It is possible that a court would find Breitbart acted with reckless disregard, writes Mr. Dean. Breitbart himself has said he did no editing of the tape once it was provided to him. But Dean notes that Breitbart surely knew a full speech could reveal a different message than a short clip, and it appears he never bothered to try to find out what the different message might be.

“I think a case might be made,” writes Dean.

Such a suit would almost certainly make it past initial motions to dismiss. That means Sherrod’s legal team would be able to subpoena documents from Breitbart, which could turn up the identity of the person who supplied the clip, and other interesting material.

But there would be at least two problems in proceeding with such a case. The first is that Sherrod appears to have suffered minimal damages, according to Dean. She has been offered a job back. Her reputation, if anything, may have been enhanced by the revelation of her full message of racial reconciliation.

As a practical matter, this means lawyers would be unwilling to take her case on a contingency basis, since they would reap small rewards if a court grants only small monetary damages.

In addition, there are two sides in a legal fight, and Breitbart would be unlikely to take a meek approach. The publicity could in fact be good for his media empire and he would continue to attack the NAACP for what he says is its reverse racial bias.

“Hopefully, Sherrod will not proceed with a lawsuit for it will involve much more unpleasantness, and much of her time, with little reward,” writes Dean.

Related:

• Shirley Sherrod debacle: why Obama stumbles on race
• Shirley Sherrod: casualty of escalating 'tea party'-NAACP race spat?
• Shirley Sherrod, ousted for 'racist' video clip, may not take back job

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