Thursday, July 29, 2010

Suing Breitbart

Looks like Shirley Sherrod is going to sue Andrew Breitbart. Elie Mystal at Above the Law writes,
Oh Jesus Christ, please don’t tell me I’m going to have to defend Andrew Breitbart

It’s not at all clear what exactly Sherrod will sue Breitbart for. False light? Defamation by implication? Being a mean ol’ sonofabitch? The — let’s call it “creative editing” — Breitbart allegedly did to Sherrod’s statements certainly made her look bad. But at the end of the day, the real harm Sherrod endured was from the ridiculous rush to judgment engaged in by everybody, from the Obama administration on down

I agree with Elie on one thing, it's not entirely clear what grounds Sherrod will sue under. The obvious choice would be defamation/libel and I think there's a plausible but not entirely clear case to be made on those grounds. There are a lot of "ifs" and "buts" to be made about such a claim, I'll leave those to some other post. 

But Elie's "defense" of Breitbart is ridiculous. Even in my post bar exam coma I know that "Everyone knows I'm a mendacious asshole" is not a defense to a defamation claim. What Breitbart (allegedly) did ultimately cost Sherrod her job. The rush to judgment by the media and the administration was deplorable, but that doesn't let Breitbart off the hook. If anything it is pretty damn good evidence of the defamatory nature of the (alleged) acts and the economic damages suffered.

Think of it like this, if Breitbart had published his video, the media had not responded, Vilsack had not jumped on the story and Shirley Sherrod still had her job how strong of a defamation claim could she make?

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