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.

Online Dating Leads to Jailhouse Online Defamation Lawsuit

Believe it or not, your “fame quotient” dictates what you have to prove when perusing a defamation lawsuit. It’s one of the few things in life where celebrities and politicians have it harder than you or me. It’s much easier for a private citizen to win a defamation lawsuit than a famous (or notorious) person. In fact, recognizable people who did not intentionally seek notoriety, but somehow became inserted into common discourse, will often try to argue that they’re not “public figures” when filling libel and/or slander claims.

Recently, this denial of fame tactic was used by jailhouse-lawyer/convicted felon, Edmund D. LaChance, Jr.

The Desire to Date

In 2005, Ed thought it was about time he branched out and nurtured his inner Bridget Jones. So, he dug deep, wrote what he thought was a welcoming personal profile and let it loose on the website, Inmate Connections. For obvious reasons, Mr. LaChance failed to mention in his bio that he was a convicted rapist.

Enter the Boston Herald who decided to do a series of reports on the dangers of interacting with felons online. Edmund LaChance and his grossly misleading profile were highlighted in the Herald’s informative, public service features. LaChance was neither flattered by, nor appreciated, the unwanted attention the article brought and opted to file a defamation lawsuit—LaChance vs. Boston Herald was born.

But, I’m not Famous!

Famous people are required to prove malice when filing defamation lawsuits, so LaChance filed the suit as a private citizen in an attempt to avoid having to meet the condition. The court, however, disagreed with this status and ruled that Mr. LaChance was considered a “limited purpose public figure” who willingly put himself in the public’s eye the second he clicked “submit” and posted his bio online.

Initially, the Boston Herald made some small factual errors about LaChance in their reporting. Ed tried to use this to his advantage, but was once again knocked down by the court. The judge ruled that the mistakes were protected by the “fair report privilege” and deemed the errors inconsequential since they weren’t “actionably false”.

Public Concern Trumps Online Defamation of Public Figures

Speaking to the larger issue, the court also determined that since the Herald’s articles addressed a matter of public concern, Mr. LaChance was also required to prove that the journalists acted with malice or reckless disregard for the truth. In other words, Ed would have to prove that the Boston Herald went out of their way to make him, the convicted rapist, look bad.

As one would imagine, the court threw the case out and the appellate division upheld their decision.

LaChance’s outcome had a lot to do with the fact that he was considered a public figure. The rules change when defamatory statements affect private citizens. If you are currently in the middle of an online defamation battle, we can provide legal guidance. There are quick, inexpensive ways to legally force defamatory statements about small businesses and individuals to be removed from the Net. And we’re the lawyers who can make that happen for you.

Fill out the secure form to your right to begin the conversation. We’ve passed the bar and we’re Internet geeks; in other words, the perfect legal team to handle your online defamation lawsuit needs.

Important Defamation Lawsuits in US History: 1700s – 1960s

In the United States, defamation has always been a legal arena known to expand and change with the advent of new communication mediums and social mores. Due to the Constitution’s free speech guarantee, defamation has also always been very difficult to prove in American law courts. With the Web now a permanent part of our lives, you can expect defamation legislation to, once again, mold and change.

Cosby v. Zenger

One of the first, pre-Constitutional, defamation lawsuits involved British Governor William Cosby and newspaper editor, Peter Zenger. Encouraged and backed by high-powered, influential anti-colonists, Zenger printed anonymous editorials in his Daily Journal accusing Cosby of fixing elections and misappropriating taxes. Cosby was outraged by the accusations and demanded that the local government grant him the right to shut down Zenger’s newspaper. Refusing to bend to the Brit’s wishes, the legislative panel denied Cosby’s requests. Furious at the snub, Cosby enlisted his royal-leaning friend (and judge) to disbar Zenger’s attorneys. For good measure, Cosby also had Zenger thrown in jail.

Famed lawyer, Alexander Hamilton, came to Zenger’s rescue.

Astonishingly, Hamilton convinced a jury that the law used to convict Zenger was, simply put, unfair. Hamilton pleaded that “truth should be an absolute defense against libel charges”. Thankfully, Hamilton won the case and “truth as a defense against defamation” is a legal principle still applied today.

The New York Times Co. v. Sullivan

The New York Times Co. v. Sullivan set a legal precedence of actual malice in defamation lawsuits involving public figures. At the beginning of the civil rights movement, southern public figures had filed approximately $3 million dollars in defamation lawsuits against various news outlets. Unsurprisingly, for fear of being slapped with expensive lawsuits, papers and networks shied away from disseminating stories about the actions and statements of politicians.

The New York Times chose to fight back and the result was the Supreme Court ruling which defined “actual malice” as a requirement for defamation lawsuits brought forward by public figures. This decision greatly expanded what could be entered into public discourse without fear of prosecution.

The attorneys at the Kelly Law Firm are equally as geeky about both the history of Internet law and defamation law. If you currently find yourself in the middle of an online defamation legal battle, we’d be happy to help. With dozens of successful Internet defamation cases under our belts, we’re known for our ability to get situations cleared up quickly and therefore inexpensively.

In today’s technologically- dependent world, it’s imperative to rectify any online reputation issues as quickly as possible. Contact us today to get started.