High-profile blogger and web publisher Andrew Breitbart, the lead defendant in a closely-watched defamation lawsuit in Washington, died early this morning in Los Angeles, according to a statement posted on the website for his company, Big Journalism.
Big Journalism editor and in-house counsel Joel Pollack said in a phone interview this morning that Breitbart's death will not affect the defense against a defamation lawsuit brought against Breitbart and a colleague by former U.S. Department of Agriculture official Shirley Sherrod.
"We would argue that the primary motivation of the suit was to shut Mr. Breitbart's site down or 'get back at him,' in Ms. Sherrod's words. Perhaps they might change their strategy, I don’t know. Certainly we’re defending as before,” Pollack said.
Sherrod sued Breitbart and Larry O’Connor in U.S. District Court for the District of Columbia last March. She accused them of making defamatory claims of racism against her by posting a “deceptively edited” clip of a speech she gave online. Breitbart and O’Connor denied any wrongdoing, arguing that their actions were protected under the First Amendment.
A lead counsel for Sherrod, Thomas Clare of Washington’s Kirkland & Ellis, could not immediately be reached for comment this morning. Lead counsel for Breitbart, Eric Kuwana of Washington’s Katten Muchin Rosenman, and lead counsel for O’Connor, Baker & Hostetler’s Bruce Sanford, also could not immediately be reached.
The case is on hold as the U.S. Court of Appeals for the D.C. Circuit weighs the defendants’ appeal of an order denying their motions to dismiss the case. Breitbart and O’Connor filed a special motion to dismiss under the city’s relatively new law barring strategic lawsuits against public participation, known as SLAPPs. The case represents one of the early tests of the anti-SLAPP law’s applicability in federal court.
Dow Lohnes partner Michael Rothberg, who practices media law but is not involved in the case, said that in circumstances where a defendant dies, the plaintiff can substitute that person’s estate in his or her stead. It involves “procedural hoops,” Rothberg said, but the plaintiffs aren’t required to prove anything substantive, such as whether the case is likely to succeed.
The death of a defendant can put the defense at a disadvantage, Rothberg said, since that person will no longer be available to testify at trial. Public statements the defendant might have made that were against their interests are admissible under the rules of evidence, he said, but statements made in favor of his or her own interests are not.
“If the defendant had a very good story to tell, and would be a very good witness, then not being able to tell that story to a jury is going to be harmful,” he said. However, since there is a co-defendant in the case, O’Connor, “it’s unclear what the impact will be, because that co-defendant might be able to tell that story,” he added.
Breitbart was 43. No cause of death has been disclosed.
Photo by Gage Skidmore.