The law and ethics of partisan blogging

Britten Fay

Shirley Sherrod, a former U.S. Department of Agriculture employee, has stated she intends to sue conservative web publisher Andrew Breitbart for releasing edited video that damns her as a racist.

Breitbart seized on a small section of the speech Sherrod was giving at an NAACP conference in hopes of highlighting racist elements within the NAACP to counter their accusations of racism within the conservative Tea Party movement.  His abbreviated version of her speech was picked up by Fox News and has since made the full media gamut, resulting in Sherrod’s forced resignation from her post with the USDA.

Sherrod says she told the story in order to show her own struggles with racist feelings in the past and used this instance to illustrate how she overcame these shortcomings.

But before we consider her case, we should explore Breitbart’s actions from an ethical standpoint.  As a political blogger, he isn’t confined by the more stringent ethical guidelines that strictly informative media should be beholden to. His realm is more of the persuasive one that we expect from pundits.  Even so, he ignored what most people might consider ethical by hanging Sherrod out to dry in order to prove an erroneous point.

“If he had a bigger agenda in trying to make a statement about the NAACP, it seems very odd to take a USDA inspector’s speech out of context to make this point,” said Jens Koepke, attorney and journalism professor at CSUN.  “There is a private individual’s livelihood potentially at stake.”

We could charitably assume that Breitbart has a conscience, but he ignored simple ethical rules society generally lives by, like “don’t be rude or screw the other guy over for your own personal gain.” Breitbart, in gunning for the NAACP, showed no concern for any consequences that might befall Sherrod when he publicly painted her as a racist.

Though his methods were questionable, breaching ethical code is not a death sentence for bloggers and Breitbart still has the right to free speech.  It is up to the audience to continue following him or sideline his work as invalid, skewed and unworthy of attention.
But does Sherrod have a defamation case against him? The answer is yes.

Defamation is damage to a person’s standing in the community through a falsified report that attacks an individual’s character or professional abilities.

Sherrod must show that she has sustained this damage.  The loss of her job and her good name as a public servant due to Breitbart’s editing would seem to meet this standard.

In order to prove Breitbart is guilty of defamation, a public figure must show actual malice.  Malice is defined as knowledge of falsity or reckless disregard for truth of statement.

The casual observer has to understand that people in public service asked to be there and, in doing so, are subject to scrutiny from the media and the public.  That’s the beauty of our democracy.

Unfortunately for Breitbart, I don’t think he will successfully argue that Sherrod is a public figure.  Yes, she works for the government, but so do mail carriers and clerks at the DMV.  That doesn’t meet the test of an all-purpose public figure like being the president or even a city mayor.

Since I don’t believe she will qualify as a public figure, she just has to show Breitbart was negligent, which is a much easier task. She has exactly what she needs to nail him.

If Breitbart thinks he is protected with a reporter privilege, which allows reporters to publish anything spoken at a government proceding, he should think again. Even if this were a government proceeding, which it was not, he is bound by the reporter privilege clause that demands he fairly and accurately report Sherrod’s speech. He certainly did not.

Breitbart has one last card to play in hopes of redemption. He could try relying on the opinion element of defense. Accurate quotation of a source does offer him some protection.

But Sherrod isn’t suing him for something he said; she is suing because he used her words out of context, creating a negative implication about her.

Perhaps Breitbart had his heart in the right place and was attempting to tilt the scales of his perceived one-sided racism back to center, but he overstepped.

“The damage is clear,” Koepke said. “Whatever noble intentions he may have had or didn’t have, they don’t provide a defense for defamation.”

Good luck with your future credibility, Breitbart.