To Sue or Not to Sue?

Shirley Sherrod indicated yesterday that she will sue Andrew Breitbart for editing and posting a video of her, which resulted in her losing her job (only to be offered another) at the USDA. There has been a lot of encouragement online, urging Sherrod to hold Breitbart -- and Fox News, which disseminated the story -- accountable. But legally, it’s not clear she would be successful, or that it would be worth it.

Lawyers Jonathan Turley and John W. Dean looked into the matter and raise questions about the ultimate success of a legal showdown. They say Sherrod’s best option, a “false-light invasion of privacy” suit, would require proving malice in the creation and posting of the video, which is difficult. Additionally, under the free-speech protections of the First Amendment, the Supreme Court “has required extremely high levels of proof and evidence before anyone making a public statement will be held accountable for it.” Generally good provisions that encourage public speech would probably thwart a Sherrod’s suit.

Dean cautions that Breitbart would be so difficult and nasty in court that Sherrod would enter into a prolonged legal feud. On the bright side, Turley points to the best possible outcome:

Of course, if Sherrod were to sue, she would likely make it past initial motions to dismiss and could secure embarrassing discovery in the case, including possible internal emails and communications on the purpose of the editing and release of the video.

The idea of holding Breitbart accountable in court -- and possibly embarrassing him -- is tempting, but it won’t heal the serious problems with race that this sad episode has exposed. While Breitbart ignited -- and has not apologized for -- the Sherrod episode, he is only a symptom of a larger problem. It is our inability as a nation to talk about race, and the administration's fear of the "race issue," that Breitbart was able to exploit.

Ultimately, while a swift and successful suit against Breitbart could discourage him from this kind of misinformation in the future, the likely drawn-out legal battle won't serve Sherrod well. A lawsuit against Breitbart would be fascinating, and he deserves to be held accountable, but it won't persuade the conservative media not to do this sort of thing in the future, truly holding Breitbart accountable, or even focus national attention on our paranoid treatment of race in America.

-- Pema Levy

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