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 public 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.