Sherrod vs. Breitbart

As you may have heard, Shirley Sherrod has sued Andrew Breitbart, Larry O’Connor and “John Doe” for defamation and related causes of action in connection with the video clip that Andrew posted at Big Government. You can read the complaint here. Having read it, here are a few observations.
First, Sherrod is represented by Kirkland & Ellis, a very formidable firm.
Second, the lawsuit is venued in Washington, D.C. Without having studied the issue, it seems likely that defendants will challenge the venue, which has no apparent connection to the case. Washington is a politically-obsessed town inhabited overwhelmingly by Democrats, so it is easy to understand why Sherrod’s lawyers want the case there.
Third, the big problem for any plaintiff in a defamation suit who is a public figure or, as here, a public official, is the actual malice standard of liability. The plaintiff is required to prove not only that the defendant made false statements about the plaintiff, but that the defendant knew that they were false, or believed they were likely false. This subjective standard is extremely difficult to meet. The Sherrod complaint makes conclusory allegations of actual malice, but its factual recitations seem better suited to proof of negligence, which will not support a recovery.
Finally, I was surprised to see that Sherrod claims damages for her firing by the Department of Agriculture. This opens up a broad scope of discovery for the defendants. They will be entitled to investigate the factors that went into Sherrod’s firing by, for example, taking the deposition of Secretary of Agriculture Tom Vilsack and subpoenaing all emails, voicemail recordings and other documents in the possession of the Department of Agriculture and the White House that relate to her termination. I cannot imagine that the Obama administration would welcome this scrutiny, and one wonders whether the administration will pressure Sherrod to drop her case.

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