In a slew of new filings yesterday in the libel lawsuit brought by former U.S. Department of Agriculture official Shirley Sherrod against conservative blogger Andrew Breitbart, Breitbart and one of his co-defendants argued for a dismissal or, at the very least, a change of venue.
Sherrod is suing Breitbart and two other defendants over the release of a video clip and accompanying text on Breitbart’s Web site claiming the video offered proof that Sherrod, who is black, discriminated against white farmers. Sherrod, in her complaint (PDF), has argued that Breitbart made defamatory accusations of racism based on a “deceptively edited” clip that was taken out of context.
In a joint motion for dismissal (PDF) filed yesterday in U.S. District Court for the District of Columbia, Breitbart and co-defendant Larry O’Connor, who works with Breitbart, claim that in lodging accusations of racism against Sherrod based on her comments in the clip, they were engaging in protected speech under the First Amendment.
The two maintain that the clip "captured the gist of the speech" and that they were within their rights to interpret her statements contrary to what Sherrod has said was the larger meaning of her speech.
“But from the truthful facts laid out in the excerpt, Breitbart drew a contrary conclusion about the meaning of what was said, as Americans with different beliefs and formative experiences often do when the topic is the endlessly arguable subject of race relations,” the defendants argued in their motion to dismiss.
Sherrod originally sued Breitbart, O’Connor and a third unnamed defendant in District of Columbia Superior Court in February. The defendants moved the case into U.S. District Court for the District of Columbia in early March on the grounds that it belonged in federal court because of diversity jurisdiction and the fact that requested damages were in excess of $75,000, but noted in their motion that they were not admitting Washington was the proper venue for the case.
As part of the joint motion to dismiss filed yesterday, the defendants argued that if the court denies the motion to dismiss, the case should be moved to the U.S. District Court for Central California because it’s where Breitbart and O’Connor live and also work on the Web-based businesses in question. Sherrod lives in Georgia, but has argued that the “significant events” surrounding the case took place in Washington.
Breitbart is being represented by a team of attorneys with Katten Muchin Rosenman; Katten attorney Harrison Dossick, when reached by phone this afternoon, declined to comment on the pending litigation.
O’Connor is being represented by Bruce Sanford of Washington’s Baker & Hostetler. Sanford declined to discuss the specifics of the case, but noted that the filings yesterday also included a preemptive special motion to dismiss (PDF) under a statute that strengthens protections against lawsuits allegedly designed to curb free speech, known as the Anti-Strategic Lawsuits Against Public Participation (SLAPP) Act. That motion would only come into play if the court denied the defendants’ motion to dismiss or move venue.
Sherrod’s attorney, Thomas Clare of Washington’s Kirkland & Ellis, declined to comment on the case, except to say that Sherrod plans to oppose the motions to dismiss and move the venue. Sherrod also has a pending motion to move the case back to D.C. Superior Court.
Sherrod, former Georgia state director for rural development for USDA, filed her lawsuit after a clip of Sherrod speaking at a March 2010 event was posted on Breitbart’s Web site.
The clip appeared to show Sherrod, who is black, admitting she discriminated against white farmers seeking her help in 1986; the full video, released shortly after, shows that Sherrod was saying that while she initially wondered if she should be focusing her efforts on helping black farmers in need, she realized that economic circumstances, not race, should determine who receives assistance. She noted that she helped the white farmers save their farm.
The original clip immediately went viral after it was posted on July 19 and, by the end of the day, Sherrod complied with a request that she submit her resignation. When the full video was released the following morning, however, Sherrod received a number of apologies, including from Agriculture Secretary Tom Vilsack and President Obama.