The media tempest over Shirley Sherrod's firing has reached down to me, and I'm quoted in the Palm Beach Post's take, Racism allegations, apologies fly fast Ex-Ag exec thrust into racism debate.
The reporter wanted to know if Ms. Sherrod might have a libel claim. Leaving aside the issues as to against whom a libel or false light claim might be filed, I tried to explain to the reporter that economic injury (if it existed) was only the easiest sort to prove, not the only sort that mattered, but that got lost somewhere, I fear.
The reporter seemed surprised that it could be hard to prove the case if Ms. Sherrod ended up with a better job, even though she had been held up to a degree of insult and ridicule, but a tort claim requires you prove injury as an element of the claim and I can certainly imagine a defense based on the claim she ended up better off so where's the damage? With some juries it could work.
I’m curious about your comment regarding legal action stemming from the use of selectively edited radio and television interviews. Wouldn’t this type of liability potentially start a flood of litigation?
It seems to me that a significant portion of the material posted on sites like Breitbart and Drudge (and to a lesser extent, the mainstream press) is carefully selected, edited, and labeled with a patently misleading headline in order to create a misapprehension – often to the point of utter ridiculousness.
As despicable as this is, hasn’t it become an accepted practice of the press? With so much “news” reported out of context in the 24 hour news cycle, isn’t it risky to blur the line between falsehoods and incomplete/out of context information?
If the editing is done with malice, if it truly presents the person falsely and harmfully, all of which seems to be pretty clearly the case here, and if it is also damaging, then it is actionable. This is all long-settled law. Yet there isn’t a flood of litigation.
There isn’t a flood because most of the victims are high-profile folks, media repeat players, who understand claims take a long time, are hard to win, expensive to litigate, enrage the press, and damages are hard to monetize.
This case, though appears to be extreme in a number of ways: the editing wasn’t just sloppy but vicious. The victim isn’t high profile (although likely a public figure for these purposes, thus the need for actual malice or gross negligence to make a libel claim). And she has little to lose in making the claim, assuming there are damages worth litigating.
I found it particularly amazing to watch a straight-faced Breitbart on television, steadfastly claiming that he felt terrible about the fallout on Shirley Sherrod, and that his intention was to attack hypocrisy by the Administration and the NAACP.
I wonder if his various explanations on TV yesterday were legitimate attempts to claim moral high ground, or the beginning of a defense against a libel claim. I decided long ago to stop assuming that people like Breitbart, Drudge, and Limbaugh operate on the same reasonableness standard as the rest of us, but the self-righteousnous Breitbart displayed yesterday seemed particularly extreme.
Wasn’t this libel _per se_? How does the law deal with situations where it’s very unlikely a plaintiff is going to be able to *prove* in court that she didn’t get a job because the hiring people were conned by a widely publicized lying smear?
Spectacular use of the Twain quote
I would see the real value in a libel claim being that it will make Breitbart toxic while the case proceeds. Discovery would expose his methods and the extent to which he co-ordinates his campaigns with elements of the GOP in advance. I would be very interested to see whether he would risk defending. If he refuses to name his sources the likely sanction would be a default judgement.
As such a legal defense that merely attempted to mitigate damages would not be enough. If it gets to a jury the Breitbart empire is already dead long since and has likely implicated others in his activities.
Breitbart has already admitted that he did not see the whole video before publishing. Sounds like an admission that he was indifferent to whether what he was presenting was true. And that is if he is not lying.