Are Bloggers About to be Held to Journalistic Defamation Standards?

Are you ready for round 5,000,007 of the bout between the elephants and donkeys? This time around, in the right corner wearing the red trunks, we’ve got conservative blogger, Andrew Breitbart; and donning blue in the left is ex Department of Agriculture official, Shirley Sherrod.

Replete with accusation of defamation, racism and revenge, Sherrod vs. Breitbart has all the makings of a juicy legal showdown—the kind of case a modern day Atticus Finch would love to argue. But the question remains: with whom would Scout’s dad side.

The Ballad of Blogger Breitbart and Stateswoman Sherrod

Since the day the Founding Fathers ratified the Constitution, US Presidential elections have been exemplary case studies in political mudslinging. Without fail, during election season, passionate public interest groups have a tendency to engage in calculated smear campaigns against their favored candidate’s opponent. This serves to keep the contenders’ hands clean while at the same time pushing controversial topics to the forefront of political discourse.

One of the ongoing skirmishes that developed during the 2008 elections was between the NAACP and the movement now commonly known as the Tea Party. Like most political frays, who fired the first shot is a chicken-and-egg quandary. The NAACP and their supporters argue that the racist undertones at Tea Party rallies were the impetus for publicly criticizing the largely right-wing, grassroots movement. The Tea Party members, on the other hand, contend that there are no grounds for such bigoted accusations and that their group is open to people of all nationalities and backgrounds.

The battle between the two organizations reached fever pitch when popular conservative activist, Andrew Breitbart, posted a clip of Shirley Sherrod, then government official with the Department of Agriculture, giving a talk at an NAACP event about farming. The snippet Breitbart chose to post made it appear that Ms. Sherrod was apprehensive about helping a white farmer keep his land.

Context is rarely taken into account when it comes to maligning enemies and cries of “reverse racism” hit the conservative blogosphere; the “bigot”, Shirley Sherrod, found herself front and center for approximately two news cycles. Folding to Obama White House pressure, Sherrod was forced to resign in shame.

It didn’t matter that the NAACP published the video in its entirety which proved Shirley was making the exact opposite point than what she was being ridiculed for.

Fast forward to the 2011 Conservative Political Action Conference in Washington, DC; Breitbart was meeting and schmoozing with far-right luminaries when he was publicly served with defamation lawsuit papers—courtesy of Shirley Sherrod, of course.

Sherrod’s Side and Defamation Claims

Defamation is notoriously difficult to prove; especially for public figures. Thanks to the ground breaking 1964 Supreme Court ruling in New York Times Co. v. Sullivan, it’s the plaintiff’s responsibility to demonstrate a defamation defendant acted with malice or reckless disregard for the truth.

Sherrod and her team of attorneys believe that the standard of malice has been met in this case. They argue that the material surrounding the video clip makes it clear that the meaning of her speech was purposefully perverted and misrepresented by Breitbart.

Breitbart’s Side and Defamation Defense

Oddly enough, the legal precedence set in New York Times Co. v. Sullivan is also the case to which Breitbart will turn for his defense. In the law-changing suit, Supreme Court justices, Black and Goldberg, both made strong statements with regards to defamation.

Black asserted that “an unconditional right to say what one pleases about public affairs is what [he] consider[ed] the minimum guarantee of the First Amendment.” Goldberg added that the Constitution guarantees “unconditional freedom to criticize officials’ conduct”.

As confident as Sherrod is in her claim, Breitbart is in his defense—and they both have legal history on their side.

Legal Implications for Future Internet Defamation Cases

Perhaps the most interesting part of this libel lawsuit is the effect it will have on future Internet defamation cases. The way things work now, print journalists are held to a higher standard of proof, whereas bloggers and Internet journalist still, technically, fall outside of traditional media and communications regulations.

If the court rules in favor of Sherrod, the decision could mean bloggers will be held to the same stringent guidelines as print journalists.

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The Kelly Law firm is a pioneer in Internet law. If you’re currently embroiled in an online defamation tussle, we can help. Consultations are free and our rates priced right for online business owners. Contact us today to begin the conversation.