Shirley Sherrod, the former Agriculture Department official who was falsely accused of giving a racist address to the NAACP, said Thursday that she is planning to take legal action against Andrew Breitbart, the man who published the heavily edited video that caused the uproar.
The prospect of Ms. Sherrod, the no-nonsense former rural development director for the Agriculture Department in Georgia, taking on one of the bulwarks of the conservative blogosphere could rekindle the race debate that largely flared out after Sherrod was vindicated.
Moreover, in a time when hyperpartisan Internet blogs and cable news channels have begun to echo the pamphleteer days of America's founding – when partisans used phrases like "syphilitic bastard" against political opponents – the case could become a landmark, beginning to define the limits of the largely unchallenged Internet press.
"Vigorous public debate is permitted by the court and people can't be punished for an error made in good faith," says Gene Policinski, director of the First Amendment Center in Nashville. "So there would be an investigation into the good faith aspect of this."
Even without a lawsuit, many Americans are increasingly questioning the veracity of news from online sources such as Mr. Breitbart's Big Government website. "I think we're past those early days [on the Internet] when we're excited to find 400,000 items about thumb tacks, and we're now at the point of [asking], 'Do I believe what I really read about thumb tacks?' " says Mr. Policinski.
Jumping to conclusions
Last week, Mr. Breitbart published on his website a 2-1/2 minute clip of a video showing Sherrod at an NAACP luncheon, talking about how she did not use the full force of her office to help a white farmer. The clip set off a furor, resulting in Sherrod's forced resignation, tendered via BlackBerry from the side of a road.
A full airing of the video, however, showed that Sherrod, who grew up in the Jim Crow South, was making a point about her own journey – how she has stopped stereotyping based on race and realized that the greatest inequality in America today is class. Agriculture Secretary Tom Vilsack and President Obama both apologized to Sherrod, and offered her another job in the Agriculture Department.
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.
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.