The Breitbart Defense

In February, Shirley Sherrod filed a complaint against Andrew Breitbart, initiating a defamation lawsuit over the release of an edited video that portrayed her as racist and caused her to lose her job. When the full video was released, it became apparent that her speech was actually about racial tolerance, and the administration apologized to her for the error. In April, Breitbart officially responded, predictably, with a motion to dismiss the case. What's surprising is one of the arguments Breitbart used to get the case thrown out.

In the suit, Sherrod must prove that Breitbart released an edited video of her with "actual malice," legalese for knowingly promoting false information or recklessly disregarding whether something was true. One line of defense for Breitbart could be, for example, to claim ignorance that the video had been edited.

Instead, Breitbart and his lawyer Larry O'Connor filed a complaint using a surprising strategy: They argue that their video was wholly appropriate because Sherrod really is racist. As a public-relations stunt, this puts the public attention back on Sherrod and continues to smear her name. Rather than debate Breitbart's conduct, he wants to keep up the conversation – a perennial favorite in conservative circles – that various groups discriminate against white people. One way they portray Sherrod as racist in the complaint is by citing the fact that she urged African Americans to apply for government jobs:

Sherrod's invitation to her audience to apply for USDA jobs from which they cannot be fired evidences her continuing determination to advance the interests of African-Americans at the economic expense of people of other races and provides a clear, truthful basis for the view that as a USDA official "she discriminates against people due to their race."

The idea that attempts to diversify the workplace – official policy both at the USDA and many workplaces around the country – is evidence of racism is ludicrous. Legally, that doesn't matter. What's so interesting about this defense is that not only does it shift the debate from Breitbart's actions to Sherrod's character, it is also an effort to shield Breitbart under the actual malice standard. In other words, if Breitbart actually thinks Sherrod is racist, than he didn't knowingly or negligently misrepresent her.

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