Shirley Sherrod has certainly had a wild week. Could she sue somebody for all the pain and embarrassment she’s suffered?
The short answer is, yes, she probably could. But should she? That is another question entirely – one with a more complicated response.
Ms. Sherrod, an African-American, was dismissed from her Department of Agriculture job based on a video clip that seemed to show she had discriminated against white farmers. The clip was posted on BigGovernment.com, a web site owned by conservative activist Andrew Breitbart.
But as the world now knows, that clip was taken out of context. It was shorn from a full speech in which Sherrod described overcoming this impulse and helping the white farmer save his farm. Her real message was the need to overcome racial discrimination of all kinds.
Sherrod has not yet said whether she will accept the job offer. She has indicated in media interviews that she might be open to the notion of suing Mr. Breitbart for the suffering he’s caused her.
There is no question that the way the video clip was edited left a false impression as to what Sherrod was really saying, and that the editing was meant to make the story worse than it was, notes George Washington University law professor Jonathan Turley in a post on his popular legal blog.
Is there legal recourse for such an action?
“There is, but it is not easy,” writes Turley.
She could pursue a tort of false light invasion of privacy, or defamation, according to Turley and other law experts. The problem is, as a former public official, she would likely be a “public figure”, under the law – and that raises the bar about what she must prove to win the suit.
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.