Should Shirley Sherrod Sue Andrew Breitbart and Fox News?

Shirley Sherrod's story was big news this week. If you missed it, the story went like this: Conservative blogger Andrew Breitbart posted a video clip of Sherrod -- a kindly African-American woman who was the Georgia State Director for Rural Development of the U.S. Department of Agriculture -- giving what appeared to be a racist, anti-white speech to an NAACP audience in March.

In the speech, Sherrod appeared to be openly discriminating against a white farmer. Fox News ran large with the story, with prime-time hosts O'Reilly >and Hannity in red-faced rage over Sherrod's remarks, calling for her head. The Obama Administration quickly, and thoughtlessly, fired Sherrod, and the NAACP foolishly embraced her firing.

Turns out everyone except Sherrod got it wrong. Now, many are asking, Should Sherrod sue Breitbart, Fox News, or both?

With a Video Clip Distorting the Truth, Should Sherrod Sue for False-Light Invasion of Privacy?

Breitbart's video clip (which was 2:38 minutes long) totally distorted Sherrod's redemption talk (which was 43:15 minutes long). Breitbart's blog post characterized Sherrod's point as the exact opposite of what she was, in fact, sharing with her audience. CNN, which refused to run the initial story, talked with both Sherrod and the farmer, and they explained that, in fact, Sherrod had helped him save his farm.

By mid-week, and with the full forty-three-minute speech available online, White House Press Secretary Robert Gibbs apologized to Sherrod on behalf of the Administration, and Secretary of Agriculture Tom Vilsack, who had earlier demanded her resignation, was trying to persuade the wronged Sherrod to take a new position with his department. The NAACP announced that it had been "snookered" by Breitbart and Fox News, and apologized to Sherrod as well.

Clearly, a great injustice was done to Shirley Sherrod. So it is not surprising that she is considering -- and many have urged her to file -- a lawsuit to right the wrongs she has suffered. By week's end, Sherrod told the CBS Morning Show that she "would definitely consider" legal action.

There have been posts all over the Internet encouraging such action. Here is a small sampling. At CNN: " I'm thrilled that the NAACP has owned up to its mistake and come to her defense. I would hope that this includes legal assistance, and that she files a very loud, very messy lawsuit against all parties involved in this despicable episode," said commenter Julieann Wozniak. A newsvine.com poll on the question "Should Shirley Sherrod sue Andrew Breitbart over edited video tape or simply move on?" was running eighty-nine percent favoring the suit when I last checked. And George Washington University law professor Jonathan Turley wrote an extended blog post asking a more fundamental question: "Can Sherrod Sue Over the NAACP Tape?"

Setting aside the race-baiting politics of Breitbart, and the remarkably inept handling of this matter by the Obama Administration and the NAACP, since there has been no shortage of commentary on both subjects, I would like to examine the potential of such litigation if Sherrod were to file it, as well as its likely impact.

Sherrod's Most Viable Lawsuit -- Based on a "False Light" Claim -- Is Problematic

Professor Turley zeroes in on the most viable lawsuit Sherrod appears to have based on the known facts: a suit for what is called false-light invasion of privacy. Such a claim is separate from a defamation claim, and in some states, depending on the facts alleged, courts see the two types of action as duplicative and dismiss the false-light claim in order to proceed with the defamation claim. What is interesting here, however, is that the false-light claim seems to more accurately describe what was done to Sherrod than a defamation claim -- which requires a specific, false factual statement -- would.

To explain the nature of the action, Turley cites and quotes the Restatement of Law definition of the tort known as Publicly Placing a Person in a False Light: "One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed."

Of course, the Restatement is merely a model, without its own legal force. But Georgia, where Sherrod was injured by the false attack, and California, where Breitbart lives, both have laws recognizing a false-light tort along the lines the Restatement describes.

Professor Turley points out the difficulty with respect to Sherrod's succeeding in such a suit: Plaintiffs who are public officials are considered public figures, and held to a different standard. Sherrod appears to be both a public official and a public figure, as an USGA official who has been forced to thrust herself into the spotlight in her own defense.

To be more specific, the U.S. Supreme Court has imposed a First-Amendment standard on all state laws (as well as on federal law) through its interpretation of the Constitution. To protect freedom of speech and the press, the High Court has required extremely high levels of proof and evidence before anyone making a public statement will be held accountable for it.

Thus, the offending statement must have been made with "actual malice," a state of mind which, ironically, need not be actually malicious. (This is not the best label the Court has ever selected, as it can thus be very misleading.) Rather, this Supreme-Court- created constitutional requirement has come to mean that for a defendant to be liable when sued by a public person, the statement at issue must have been made with the knowledge that it was false, or with reckless disregard to whether it was true or false. Furthermore, this knowledge -- amounting to "actual malice" -- must be established by clear and convincing evidence.