If The Whole World Knows A False Statement Was Made About You... Why Still Sue For Defamation?

from the give-it-up dept

Last year, we had a brief discussion about whether or not Andrew Breitbart's actions toward Shirley Sherrod represented defamation. If you (lucky you!) missed this story last year, it involved Breitbert publishing a video of Sherrod giving a talk. The clip was taken totally out of context, and thus suggested Sherrod favored people based on race, when the point of the speech was actually exactly the opposite. However, very quickly after the video came out (and Sherrod was forced out of her government job), all of this came out. If anything, the backlash got a lot more attention than the original story did. It hurt Andrew Breitbart's credibility, and turned Sherrod (who was offered her job back) into a huge public platform to discuss a variety of issues.

In other words, the marketplace of ideas actually worked without involving the courts. Those who did wrong were punished, and those who were wronged were rewarded.

But... sometimes the legal system is just too tempting, and many months later, Sherrod has followed through on earlier threats and sued Breitbart for defamation. The lawsuit is a longshot, to say the least. Breitbart has a bunch of pretty strong defenses and it will be a surprise if he doesn't prevail. That's not to support what he did, which was pretty questionable, but to show that you don't always have to go legal. In discussing the case, Paul Levy points out that the lack of any real damages is an issue:
What Breitbart did was outrageous, and actionable. But what happened after his broadcast is in many ways testimony to the power of the marketplace of ideas to vindicate the truth far better than any lawsuit can do. Sherrod was completely vindicated in the public's eyes, she was offered her job back or even a promotion. So I wonder whether she has awardable damages, and even more I question the judgment involved in filing the lawsuit.
We live in a litigious society, no doubt. But it's a bit disturbing how often people feel the need to file a lawsuit "because they can," without looking at the larger scenario and understanding whether or not it makes sense. Frankly, filing this lawsuit may do a lot more damage to her reputation than anything Breitbart did. She came out of that situation with a much stronger reputation. The same probably won't be said of the lawsuit.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Mark Gisleson, Feb 16th, 2011 @ 12:48pm

    So Sherrod should just roll over and take it?

    I don't think you're very well informed on this one. Andrew Breitbart has been serially defaming Sherrod ever since the initial flap. He's now focused on the Pigford settlement. Please read Media Matters for America, which has done yeoman's work in chronicling all of Breitbart's attacks on Sherrod.

    Breitbart didn't attack Sherrod to be mean. He attacked her because his JOB is to attack liberals, especially minorities. The defamation was calculated and meant to injure the entire African American community. Sherrod was just the vehicle for a much greater slander.

    The major media was very slow to pick up on this libel, and they failed utterly to look beyond this one case. For the most part they did not walk this back to the ACORN tapes, which were every bit as fraudulent as the Sherrod video. And now Lila Rose, James O'Keefe's ACORN partner, is falsely accusing Planned Parenthood of breaking the law with more edited tapes.

    It's vitally important that someone with legal standing take these serial slanderers to court. Please search for Breitbart at Media Matters to learn more about his anti-liberal, anti-minorities jihad.

     

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  2.  
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    Anonymous Coward, Feb 16th, 2011 @ 12:49pm

    If I state that Hitler did a great job in hurting Germany's reputation for years. I doubt I could win in a lawsuit if I am quoted as saying Hitler did a great job.

    Does this statement qualify as ending the conversation?

     

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  3.  
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    Anonymous Coward, Feb 16th, 2011 @ 12:54pm

    I'm curious, because it seems to me that the ends are entirely the basis for your claim. If, supposedly, I lost my leg due to the negligence of my employer, but won a one-legged race with a prize of $2 billion, wouldn't your logic dictate that I shouldn't sue for negligence?

    Obviously the example is contrived, but just because Sherrod was vindicated in the end doesn't mean that a) she didn't suffer for the duration and b) a legal wrong wasn't committed. I don't know the particulars of defamation law, so I can't comment on the legitimacy of the claim, but supposing it is I have no problem with her doing this.

     

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  4.  
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    jjmsan (profile), Feb 16th, 2011 @ 12:57pm

    Re:

    Not even close. I am betting she will win because in fact the whole world may not have heard the retraction. Simply because it is proven that a statement someone made about you is a lie does not mean they are not libel for damages it causes you.

     

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  5.  
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    Benny6Toes (profile), Feb 16th, 2011 @ 12:58pm

    The point of the lawsuit could be more about punishing Breitbart than Sherrod making any sort of financial gain. If she wins, then, sure, she'll probably get some money, but either way it costs him money AND time. Forcing him to deal with the lawsuit in the first place is punishing him to some extent.

    While her name may have been cleared, Breitbart got off with a, "shame on you and don't do it again." For somebody in his position, that is pretty meaningless, and he gets off scot-free. The lawsuit, right or wrong, adds incentive for him to be more careful about making the same errors in the future.

     

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  6.  
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    Jamie, Feb 16th, 2011 @ 1:00pm

    Don't know that I agree with you here, Mike. There are two things going on here, I think. 1) Breitbart is continuing to attack her, and pushing hard to make the Pigford case into a scandal. She's pushing back on that. 2) more generally, one aspect of our litigious society is society that is easy to forget is that lawsuits constitute strong endorsements of "moral correctness". Look at how victimhood in our culture works. Suing him is a signaling function.

    And she's doing so with a very high powered lawyer...

     

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  7.  
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    :Lobo Santo (profile), Feb 16th, 2011 @ 1:00pm

    Re:

    I could not agree more! Interacting with the justice system IS punishment.

     

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  8.  
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    :Lobo Santo (profile), Feb 16th, 2011 @ 1:01pm

    Re: Re:

    Edit: (sorry) it should read

    ...the "justice" system...

     

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  9.  
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    Dwight Stickler, Feb 16th, 2011 @ 1:02pm

    Litigious Society

    It is a sad thing that people can't seem to forgive and forget. Or at least forgive.
    A wise man once asked, "IS there none of you wise enough to settle such things without going to a Judge?, it is to your shame that you take matters before a court, that can easily be settled amongst yourselves" (paraphrase)

     

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  10.  
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    Mike Masnick (profile), Feb 16th, 2011 @ 1:04pm

    Re: So Sherrod should just roll over and take it?

    So Sherrod should just roll over and take it?


    Um. Did I say that? No. I said that the marketplace of ideas clearly hit back at Breitbart over this.

    Andrew Breitbart has been serially defaming Sherrod ever since the initial flap. He's now focused on the Pigford settlement. Please read Media Matters for America, which has done yeoman's work in chronicling all of Breitbart's attacks on Sherrod.

    But here's the thing: he has no credibility on this any more, and it's difficult to take him seriously.

    Breitbart didn't attack Sherrod to be mean. He attacked her because his JOB is to attack liberals, especially minorities. The defamation was calculated and meant to injure the entire African American community. Sherrod was just the vehicle for a much greater slander.

    And it backfired big time.

    That's the point.

     

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  11.  
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    Anonymous Coward, Feb 16th, 2011 @ 1:10pm

    Re:

    A) She didn't win the lottery, she got vidicated public with no doubt about her character and what really happened and was given her job back from the people who made a mistake jumping the gun.

    B) She accomplished everything she would have with a lawsuit without one.

    C) There was no physical injury.

    D) The other party probably will take years to have his reputation back, if you think she suffered you know nothing on how society deals with liars that harm others in public.

    A more accurate analogy would be that you lost your leg for negligence on somebody else and that person lost his job, credibility and people all around you gave you money and a means to keep living, why sue after that?

    Because people are emotional and want to inflict as much harm to the other party as they possibly can, that is the scary part of human nature.

     

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  12.  
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    Anonymous Coward, Feb 16th, 2011 @ 1:21pm

    Re:

    No TeaBag get off scott-free they always screw up eventually, because they are just a moronic movement that really soils the history of America.

     

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  13.  
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    CommonSense (profile), Feb 16th, 2011 @ 1:27pm

    Re:

    I think I get all the arguments against Mike's position here. It's like saying this guy did something wrong and got kicked in the face, and now he's coming back with a black eye and doing more wrong, so she wants to shoot him so he just can't come back.

    I get that, and it makes sense to an extent. Mike isn't trying to say that she shouldn't use the legal system, just because he doesn't want her to. I believe he's simply asking the question, is it really necessary to kill someone (sue them in court) just to set the punishment in stone? That black eye isn't going away for at least as long as the lawsuit outcome would be remembered anyway. The guy already lost all of his credibility, so why does she need to use taxpayer money in court to essentially establish what the "court of the common man" or in the terms used, the marketplace of ideas, has already established??

    Personally, I can't pick a side on this issue... I do think that some annoyances need to be dealt with in the fullest extent possible, but I also believe that any court case that isn't really necessary is a huge waste of valuable resources and I frown upon them.

     

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  14.  
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    Jamie, Feb 16th, 2011 @ 1:51pm

    Re: Re: So Sherrod should just roll over and take it?

    But he hasn't lost all his credibility. Go hit Memorandum for right wing blogs talking about this - he's still a hero with a lot of those people.

    If he comes out with a big todo about the Pigford stuff, especially is it has video of someone seemingly acting badly, it will be all over the TV.

     

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  15.  
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    Anonymous Coward, Feb 16th, 2011 @ 2:11pm

    Hell, right-wing talk radio yesterday (Limbaugh, I think), was fawning all over Breitbart.

    Obviously, the fact that he made a blatantly false statement HASN'T hurt him. And as long as his reputation is still in tact, and people continue to see him as a hero, essentially escaping without consequences, it will just be an invitation to do the same thing again to someone else.

    I can't agree with you here, Mike. Costing him time and money fighting this lawsuit will make him think long and hard about doing the same thing again.

     

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  16.  
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    Anonymous Coward, Feb 16th, 2011 @ 2:12pm

    Damages were still done. She lost her job. Even if she was offered it back, that's still damages. She was probably stressed out of her mind while this was all happening. Ask any judge if that's a cause and he'll say yes. Once again, you're spinning this way out of proportion. To almost any judge, the consequences of being forced out of a job, and stressing over your financial situation, wondering how you'll pay bills, etc... is enough moral damages to proceed. Sure, everything was eventually "solved" but still... damages were caused.

     

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  17.  
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    Almost Anonymous (profile), Feb 16th, 2011 @ 2:20pm

    Re: Re: Re: So Sherrod should just roll over and take it?

    Dude, birthers will believe anything, provided (Rush, Beck, Hannity, Breitbart) tells it to them. But having credibility with birthers is kind of like owning a bag of air since no one really takes them seriously either.

     

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  18.  
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    Hugh Mann (profile), Feb 16th, 2011 @ 2:21pm

    She was personally injured...

    ...and is arguably entitled to personal compensation.

    It doesn't really matter that "society" "fixed" the problem. Breitbart arguably defamed Sherrod, which caused her some injury. HE owes her now. The fact that he was "punished" in the public eye does not compensate Sherrod. The fact that her employer offered her her job back is not the same as being compensated by the one done her wrong.

    Besides, it's not clear that "everyone" knows it was a false (or at least way misleading) claim about Sherrod. Sherrod was dragged into the public eye, labeled a racist, fired and publicly humiliated. I would expect that she also sues for IIED/NIED, since Breitbart's conduct was arguably outrageous and egregious. Anyway, I wouldn't doubt but that there are still plenty of people who consider Sherrod to be "that racist government woman who got fired when she was exposed."

    Without going into whether or not I think Sherrod was actually wise to tell her story as she did - I hope she gets a nice, fat judgment out of Breitbart as a warning to all that Free Speech is not a license to twist the facts in the name of political zealousness.

    HM

     

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  19.  
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    Almost Anonymous (profile), Feb 16th, 2011 @ 2:23pm

    Re:

    """And as long as his reputation is still in tact, and people continue to see him as a hero..."""

    But you have to consider the kind of people who consider him a hero.

    Having said that, I can't really blame her for filing.

     

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  20.  
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    ViperPete (profile), Feb 16th, 2011 @ 2:41pm

    Re: Litigious Society

    I think people who look at it as a litigious vs. non-litigious society are looking at the wrong scale. Litigation is a societal compromise to account for disputes where the scale is from well reasoned parties who are willing to discuss their points rationally and at the other end of the scale where one or both parties feel they have been wronged and has no recourse for justice, hence vigilantism occurs.

    Since, in most cases of dispute, the parties are affronted and unwilling to resolve their conflict with unimpassioned debate and fall to the latter end of the scale, society has determined that it is in the best interest to keep the peace to have the conflict moderated and determined by an experienced disinterested third-party and end it there with the force of law.

    Now say with two parties, A and B where d= diplomatic and u=undiplomatic, it charts as such:

    A | B
    -----
    d | d = probably no need for arbitrator
    d | u = potential for vigilantism, need for arbitration
    u | d = potential for vigilantism, need for arbitration
    u | u = Hatfield vs. McCoys, need for arbitration

    as you can see it takes two to tango and that is the more rare form, just because of human nature.

     

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  21.  
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    Anonymous Coward, Feb 16th, 2011 @ 3:36pm

    Re: Re: Re: So Sherrod should just roll over and take it?

    He lost 100% of his credibility among people who aren't drones. what more do you want?

     

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  22.  
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    Jamie, Feb 16th, 2011 @ 3:52pm

    Re: Re: Re: Re: So Sherrod should just roll over and take it?

    To not see his bullshit used to destroy more things? People seem to like to think that race-baiting doesn't work anymore. Not true, and it gets scary in this country every so often.

    Over half of self-identified Republicans are birthers, according to some recent polling. You might dismiss them, but, as they say, they are legion.

     

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  23.  
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    Memyself, Feb 16th, 2011 @ 4:12pm

    In general, I agree with the point you are making on this. However, I think that this instance carried so much potential damage and so much visibility that a lawsuit is ideal. I think people need to see that actions can have repercussions and that, regardless of whether or not the truth surfaces, defamation of this caliber is not something to be engaged in lightly.

     

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  24.  
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    Anonymous Coward, Feb 16th, 2011 @ 4:34pm

    Why $till $ue for defamation? The an$wer $hould be obviou$.

     

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  25.  
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    Anonymous Coward, Feb 16th, 2011 @ 4:36pm

    Yes, Breitbart has no credibility left except for the sheep. But, those sheep are enough. If he escapes with no repercussions for his actions, what is to stop him from doing it again? The bleating sheep will continue to defend him and support him, no matter what.

    Making him PAY will be a damn good deterrent. If he knows that such actions could cost him time and money to defend against lawsuits, he may be a lot less willingly to pull the same crap in the future. Because not even all the support of all the sheep in the world will keep him from losing his money defending himself.

     

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  26.  
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    Jamie, Feb 16th, 2011 @ 4:45pm

    Re: Re:

    I don't think the personal violence metaphor works here.

    In a direct sense, as I said In my other comment, there is a signaling function at work. If you have to view it through metaphor, think of it as publicly punching back at a bully - if you win, or at least not lose too badly, you've damaged the bully's social capital as a bully.

    But I suspect there is personal animus here, too. I'd be pissed, if I were her.

     

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  27.  
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    iamtheky (profile), Feb 16th, 2011 @ 4:53pm

    "But here's the thing: he has no credibility on this any more, and it's difficult to take him seriously."

    So it cant be defamation? That might be the most thin useless rebuttal to an honest comment about the ongoing defamation, and how it meets all the characteristics of.

    Luckily the "Masnick thinks the defamer is a joke" precedent has not been established as a reason for dismissal.

    "And it backfired big time"

    No, its ongoing, and thats the point.

     

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  28.  
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    Anonymous Coward, Feb 16th, 2011 @ 5:17pm

    I don't know either of these two people, but a lawsuit to me would be an appropriate action from the looks of it, and honestly, as an outsider, it doesn't feel like one of those corporation overreaching the social bounds that you normally see here. Maybe if Breitbart had apologized for his mistake, but from what I gather, he hasn't, and is taking his mistake in stride by continuing to attack Sherrod. To me, the lawsuit is definitely an appropriate action, regardless of how shot Breitbart's reputation is.

     

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  29.  
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    Anonymous Coward, Feb 16th, 2011 @ 9:01pm

    Re: Re: Re: Re: Re: So Sherrod should just roll over and take it?

    Yep, Briebart needs to be taken for every penny that FAUX News and that ilk send his way.

     

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  30.  
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    velox (profile), Feb 16th, 2011 @ 11:24pm

    Re: Re: Re:

     

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  31.  
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    velox (profile), Feb 16th, 2011 @ 11:27pm

    Re: Re: Re:

    "I'd be pissed, if I were her.
    Yep, Number 1 reason people sue is because they're pissed off. It's not necessarily because makes sense in any other way to sue.

     

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  32.  
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    krusty-g (profile), Feb 17th, 2011 @ 1:08am

    Seen it before

    Didn't Ed Norton try to get Larry Flynt acquitted with a similar defense in his case with Jerry Falwell?

     

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  33.  
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    mike, Feb 17th, 2011 @ 2:25am

    re: breitbart vs sherrod

    neither breitbart or his videographer have appeared to have suffered a lack of reputation, over any of the extensively edited video "evidence", in fact most people i've talked to still believe the ACORN video is proof of ACORN's evil intentions. mr kelly was recently caught trying to slander a reporter, he hasn't been injured enough to modify his business plan.

    presumably, he knew his video didn't portray the substance of the whole monologue, or he wouldn't have felt the need to leave out the real story. sue the hell out of the unrepentant (in fact boastful of their skill) liars, they don't know moral shame.

     

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  34.  
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    Anonymous Coward, Feb 17th, 2011 @ 6:28am

    The media picks what quotes it wants to use after an interview? Wow, that is a shock? Don't limit it to right wing talk shows, the left and the middle do this also.

    It's all about the soundbite and the catchy quote, doesn't matter what context it comes from, that sound bite can ruin a career.

    If someone prints or quotes one small part from something you say, I am not sure that can be considered defamation. Can it? The person did make the statement, used out of context of course, but is that against the rules?

     

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  35.  
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    Mark Gisleson, Feb 17th, 2011 @ 6:57am

    Re: Re: So Sherrod should just roll over and take it?

    No, it hasn't backfired. Search Fox News for this story. Check out the rightwing blogs. The right has its own media now, and they don't care about the truth. Breitbart's a liar? They don't care! They just keep repeating the same lies over and over again.

    Well informed people didn't take Hitler seriously either. And before you invoke Godwin's Law, remember that Godwin created it because liberals were scoring too many points by comparing Bush-Cheney policies to the 14 Defining Characteristics of Fascism. They flunked that test, so they agreed on a rule to never talk about fascism again.

    Theirs is a closed universe, and you can't dismiss their lies so lightly because they don't acknowledge your arguments.

     

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  36.  
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    Anonymous Coward, Feb 17th, 2011 @ 7:10am

    Re: Re: Re: Re:

    FOR THE LOVE OF GOD, THERE ARE INNOCENT CITIZENS OUT THERE WALKING AROUND THAT DON'T KNOW SHERROD WAS RIGHT!!"

     

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  37.  
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    Anonymous Coward, Feb 17th, 2011 @ 11:02am

    It's all political

    If you are a left winger, you think Breitbart defamed Sherrod and should be punished, even if the law has to be changed to do it. That is a sign of mental illness. Has anyone checked out how much money this lady stole from the government? She's a crook, plain and simple. What is really going to backfire is that this shines more light on what she did. Don't believe me, believe the black farmer's lawyer who was there: http://www.youtube.com/watch?v=3Ivo2X2oyIY

    Breitbart might not be perfect, but at least he got this story out.

     

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  38.  
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    Mark Gisleson, Feb 17th, 2011 @ 2:47pm

    Re: It's all political

    A.Coward, thanks for making my point for me again. Breitbart's still churning out the lies, and gullible saps are still swallowing what he's feeding them.

    Sherrod doesn't need to sue, she has to sue and she has to do so as publicly as possible.

     

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  39.  
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    Baby Savant, Feb 17th, 2011 @ 4:10pm

    Sherrod Is Taking the Correct Action

    I think that Sherrod is taking the correct action by filing a defamation lawsuit against Breitbart.

    The lawsuit isn't to determine whether or not the action of defamation was committed; it's to determine damages that Sherrod may have suffered through a voluntary action performed by Breitbart.

    Our society may be overly litigious, however, at least we have ways and methods of seeking recourse, relief, and repayment of losses.

    I'm a huge fan of Breitbart's, but the truth is that had he not edited and posted that video (all conscious actions), then Sherrod would not have lost her job.

     

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  40.  
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    Jackie, Mar 7th, 2011 @ 10:44am

    Defamation Lawsuits establish "fact"

    When someone libels or slanders you, it's good to take them to court, to establish "fact". If you don't, the slander/libel can be revived years later, when the documentation may have been lost and people less concerned with re-establishing your innocense. Best to have the judgement of a court on your side, for the rest of your life. Your enemies can libel/slander you after you are dead to their heart's content.

     

    reply to this | link to this | view in thread ]


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