Shirley Sherrod unlikely to succeed in court against Andrew Breitbart 

Ousted former federal agricultural official Shirley Sherrod made news Thursday by announcing a lawsuit against conservative blogger Andrew Breitbart who, she claims falsely accused her of being racist against white people.

Although it would make for an interesting showdown, media lawyers contacted by the Examiner said that that Sherrod’s case stands little chance of succeeding or even making it to trial.

According to Ron Coleman, intellectual property attorney and blogger and general counsel for Media Bloggers Association, “[Sherrod] is a public figure, and she would certainly have to prove actual malice to prevail,” something that would be much more difficult than proving negligence on the part of Breitbart.

Andrew Mirsky, an intellectual property attorney based in the District, asserts that Sherrod would have two tasks in such a suit: The first?  To prove “That she was actually defamed, and I do think she has a plausible argument on that,” and depending on her status as a public figure she would have to prove either negligence or malice.

Coleman, on the other hand, questioned the validity of Sherrod’s defamation claims. “Practically speaking, isn't she likely to have a far more economically rewarding career now than before?” asked Coleman.  Since resigning Sherrod has been offered another position in the USDA.

Regardless of the viability of her case, both are doubtful the case will actually go to court. “The chances of this actually getting to a trial are very, very slim.  And her chances of collecting damages are infinitesimal,” Coleman explained.  “Considering that [Breitbart] did, at the end of the day, portray her unfairly, she can hardly be blamed for trying.”

Complicating the issue, according to Mirsky, is that Sherrod did say the things in the video Breitbart posted.  “This wasn't the classic Photoshop cut and paste job,” Mirsky said, “it was just badly and unfairly excerpted.”  Mirsky cited as a possible defense for Breitbart the libel principle of “neutral reporting" under which “a publisher can argue that all they were doing was reporting facts.”  Mirsky deemed this defense “weak,” as this privilege also requires that the reporting be fair and balanced.

Mirsky agreed on the likelihood of a trial.  “It’s very rare to win a defamation judgment in this country,” Mirsky said.  “They generally get settled or dismissed well before they go to trial.”  While “[Breitbart] might very well love the publicity,” Mirsky explained that, in addition to dealing with the costs associated with a defamation trial, “it may not be in [Sherrod’s] interest for this to be constantly around for the next three years.”

As of yet, Breitbart, no stranger to threats of lawsuits after last year’s ACORN controversy, has not commented publicly on the possibility of a lawsuit.

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Kate Tummarello

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