February 2011 Archives

Prominent Defamation Lawyers Pursue Sherrod's Libel Case Against Breitbart

February 19, 2011,

Last summer, United States Department of Agriculture official Shirley Sherrod was forced to resign after conservative activist Andrew Breitbart posted online a speech that she had made 23 years before, when she worked for a nonprofit organization. The video that Breitbart posted supposedly showed that Sherrod, who is African American, had engaged in racial discrimination against a white farmer who needed financial assistance. It soon emerged, however, that the video clip that Breitbart placed online was significantly edited, and that in full context, Sherrod emerged as a supporter of equal opportunity rather than as a racist. After all that background was revealed, President Obama took the unusual step of formally and publicly apologizing to her. She was offered her job back, but she declined the offer. Instead, she hired a team of preeminent defamation attorneys to take Mr. Breitbart to court.

On February 11, 2011, Sherrod filed a defamation suit in D.C. Superior Court against Breitbart and two alleged accomplices, alleging that the depiction of her as a racist had caused her financial losses, physical symptoms, and "irreparable reputation and career damage." Sherrod is seeking compensatory and punitive damages as well as a court order that Breitbart remove the offending material from his blog. Breitbart has not yet formally responded to the lawsuit, but he did say in a statement that he "categorically rejects the transparent effort to chill his constitutionally protected free speech."

Defamation suits against public figures are never easy. The First Amendment has been interpreted by the Supreme Court for several decades to give a very wide berth to people who criticize public officials or discuss matters of public concern. In general, celebrities or other Sherrod.jpgpublic figures who sue for defamation cannot win unless they can show that the defendant made the offending statement with "actual malice," which essentially amounts to knowledge that the defamatory statements were false, or reckless disregard for their truth or falsity.

Sherrod's complaint makes clear that she does, in fact, intend to prove that Breitbart made the defamatory statements with actual malice: either that he knew when he posted the speech online that Sherrod had done nothing racist and that the version he posted was grossly manipulated or distorted, or that he recklessly disregarded that possibility.

For example, she wrote in the complaint that Breitbart and his associates "acted with actual malice, reckless intent and gross indifference to the false and misleading nature of the edited clip posted on his blog and the effects that the posting would have on Mrs. Sherrod." She also wrote that the defendants "acted with actual malice in altering the video -- that is, acted with actual knowledge of the falsity of the speech or reckless disregard of it." Sherrod will have to prove those allegations if she hopes to prevail.

Defamation Lawsuit Exposes Redskins Owner to Ridicule

February 4, 2011,

It doesn't take a defamation expert to see the flaws in the $2 million libel lawsuit filed this week by Redskins owner Dan Snyder against the Washington City Paper. Mr. Snyder took offense at an article titled, "The Cranky Redskins Fan's Guide to Dan Snyder: From A to Z (for Zorn), an Encyclopedia of the Owner's Many Failings," which contains a detailed list of reasons the author considered him a bad owner. Mr. Snyder also disapproved of an image of him, published with the article in question, on which someone had doodled devil horns and a mustache, which Mr. Snyder deemed "an anti-Semitic caricature of himself" which "forced" him to file the lawsuit. Talk about thin skin.

First of all, how ironic is it that Mr. Snyder claims he was forced to bring this lawsuit to protect his reputation and good name, and yet by virtue of suing the newspaper, he has stoked the interest of the media and triggered widespread public scrutiny into his prior activities, vastly increasing the number of people who will seek out and read The Cranky Redskins Fan's Guide to Dan Snyder? Personally, I'm not a regular reader of the Washington City Paper and would never have known about the alleged defamatory statements had Mr. Snyder not called my attention to them by suing the paper. Mr. Snyder and his lawyers have alerted the otherwise complacent populace to a long list of alleged bad acts by the Redskins owner. Even if he wins the case, will he really have done himself and his reputation any favors by suing an outspoken critic?

But he won't win. As I explained in an earlier blog post, not just any hurtful or offensive comment will constitute libel or slander upon which a plaintiff could DevilDoodle.jpgsuccessfully sue for millions of dollars. Defamation liability requires the publication of a false factual statement that concerns and harms the plaintiff or the plaintiff's reputation. Statements of opinion, regardless of how unfavorable the opinion, are not actionable. Thus, calling Mr. Snyder a failure, likening him to the devil, and referring to the "stain" he supposedly left on the Redskins are all constitutionally protected as free speech.

Snyder's lawyers are well aware of that restriction, and therefore focus their allegations on certain statements in the article that could be more easily interpreted as factual allegations. Namely, that "Dan Snyder...got caught forging names as a telemarketer with Snyder Communications;" that he caused Agent Orange to be used to destroy trees "protected by the National Park Service" on "federally protected lands;" that Mr. Snyder bragged that his wealth came from diabetes and cancer victims; and that Mr. Snyder was "tossed off' the Six Flags' board of directors. According to Huffington Post reporter Jason Linkins, these allegations are all demonstrably true or were intended as metaphors with substantial truth to them. If the statements are true, they are not defamatory.

Mr. Snyder has an even higher hurdle to climb if we wants to recover damages against the Washington City Paper: as a widely known public figure, Mr. Snyder will need to prove not only that the article contained false statements, but that the Washington City Paper acted with "constitutional malice": that it knew the statements were false or published the statements with reckless disregard of whether the statements were true or false.

If he fails to prove, with clear and convincing evidence, that the newspaper published false factual statements (not just opinions) about him, and that they did so with malice, he will lose the case. And while losing the case would not necessarily mean that the statements about Mr. Snyder's alleged activities are true, what will public perception be?

Virginia Supreme Court Declines to Set Aside Defamation Verdict Against County Administrator

February 2, 2011,

In Virginia, as in other states, potentially defamatory statements made in official government proceedings receive protection from defamation claims. But some such statements get the benefit of absolute privilege, which means that even a knowingly false statement can't be the basis of liability, while a larger category of statements receive only a qualified privilege. A qualified privilege gives the plaintiff an opportunity to show that the statement was made with malice -- and to recover damages if he or she can prove that it was.

In Small v. Nogiec, the Supreme Court of Virginia examined remarks made by a county assistant administrator during a meeting of the Board of Supervisors of Isle of Wight County, and concluded that only a qualified privilege applies to the statements since they were not made in a legislative context. The court therefore unanimously upheld a jury verdict for the plaintiff.

In March 2007, Alan Nogiec retired from his job as the county's director of Parks and Recreation. A few months before he retired, the county's museum was damaged by heavy rains. In May 2007, Assistant County Administrator Patrick Small gave a report at a board meeting about efforts being undertaken to repair the museum. He said that IsleOfWight.jpgbefore the storm, information about the likelihood of flooding "had been suppressed" by the parks director and that this "borders on negligence in my opinion."

Nogiec sued Small, claiming that these statements were defamatory and were made with malice. A jury returned a $150,000 verdict for Nogiec on this claim. Small appealed, asserting that his statements were absolutely privileged since he was testifying at a meeting of a county board.

The Supreme Court of Virginia unanimously upheld the jury verdict. It ruled that even assuming that absolute privilege applies to bodies such as the board of supervisors and not only to the state's General Assembly, it applies only to actual legislative work by those boards and committees and not to statements that don't concern the creation of legislation.

Here, the court found that the evidence showed that the board was acting in a supervisory or administrative capacity, not in a legislative capacity. It had convened to receive a report on the damage to the museum and the efforts to repair it, not to create legislation. Since the board was not acting as a legislative body, Small's statements were entitled only to a qualified privilege, not an absolute one. Nogiec was entitled to submit to the jury the issue of whether the statements were made with malice, and the jury found in his favor. Thus the Virginia Supreme Court upheld the jury verdict.

The court noted that it was balancing the importance of permitting people to speak freely in governmental proceedings against the right of an individual to enjoy his reputation free of defamatory attacks. Accordingly, people who make potentially defamatory remarks need understand that in many contexts, their statements won't be fully privileged and that a jury may one day be sitting in judgment of them.