MinnLawyer Blog

I suppose this should surprise no one. Shirley Sherrod, the former U.S. Agriculture employee who was forced to resign her post earlier this month when she was labeled a racist after a video of a speech she gave hit the blogosphere, is suing the blogger who posted the video on his site.

Soon after the video went viral it became apparent that Andrew Breitbart had posted a video edited to make Sherrod look, well, worse. But it was too late. Sherrod’s boss Ag. Secretary Tom Vilsack had already asked for her resignation. According to a few reports Sherrod was in the car when someone contacted her and told her to pull over and e-mail the resignation from her Blackberry. Ouch!

My question is this. What can Sherrod sue here for? Libel? Slander? Defamation of character? Being an (expletive deleted). I honestly don’t know. It’s been a while since my J-Law class but here’s what I remember a plaintiff must do to prove libel/slander:

• First, the plaintiff must show that the defendant communicated a defamatory statement.
• Second, the plaintiff must show that the statement was published or communicated to at least one other person besides the plaintiff.
• Third, the plaintiff must show that the communication was about the plaintiff and that another party receiving the communication could identify the plaintiff as the subject of the defamatory message.
• Fourth, the plaintiff must show that the communication injured the plaintiff’s reputation.

Did Breitbart ever say he hadn’t edited the video to make her look bad? I can’t remember, but I don’t think so.

I called Jane Kirtley, the Director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota. Her advice? Sue for false light and invasion of privacy.

“False light/invasion of privacy is like libel, but it doesn’t have to be harmful to your reputation,” she said. “What [Sherrod ] would argue that because of the truncated nature of the video, it depicted her in a way that was inaccurate.”

One example is a magazine used a photo of some men sitting down on their lunch break that ran with a story about unemployment. The men successfully sued because they were in fact employed. The problem is not every state recognizes false light laws. Minnesota for example does not.