Defamation Suit Against Blogger Breitbart Survives Motion to Dismiss

U.S. District Judge Richard Leon issued a series of orders this morning denying motions to dismiss or relocate former U.S. Department of Agriculture official Shirley Sherrod's defamation lawsuit against conservative blogger Andrew Breitbart.

Leon denied Breitbart's initial motion to dismiss as well as a special motion to dismiss under Washington's new statute barring strategic lawsuits against public participation, or SLAPPs. Leon did not publish a written opinion along with his orders.

Sherrod is suing Breitbart, Breitbart’s colleague Larry O’Connor and an unnamed defendant 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, argues Breitbart made defamatory accusations of racism based on a “deceptively edited” clip that was taken out of context.

Breitbart and O’Connor had argued that they were engaging in protected speech under the First Amendment when they posted the clip and comments online. They also argued that if the case is not dismissed, it should be moved to U.S. District Court for Central California because it’s where Breitbart and O’Connor live and work on the Web-based businesses in question.

Leon heard oral arguments on July 19.

Sherrod’s attorney, Thomas Clare of Washington’s Kirkland & Ellis, could not immediately be reached this morning. Breitbart's attorney, Eric Kuwana of Washington's Katten Muchin Rosenman, also could not immediately be reached.

O'Connor's attorney, Bruce Sanford of Washington's Baker & Hostetler, in a statement this morning, reiterated his client's belief that Sherrod "cannot form the basis of a libel action under longstanding American defamation law."

"Anyone who looks at the tape of her speech or the excerpts put up by Andrew Breitbart can see that we are in the realm of pure opinion," he said.

Breitbart and O’Connor are among the first parties in Washington to invoke D.C.'s new anti-SLAPP law, which went into effect March 31 and offers an early remedy, in the form of a special motion to dismiss that stays discovery pending resolution, for defendants who believe they are being sued over protected speech.

Sherrod challenged the applicability of the law in federal court and also argued that the defendants were time-barred from filing.

Sherrod, former Georgia state director for rural development for USDA, filed her lawsuit after the clip of Sherrod speaking at a March 2010 event was posted on Breitbart’s Web site. The clip went viral after it was posted on July 19 and, by the end of the day, Sherrod resigned. When the full video was released, however, Sherrod received a number of apologies, including from Agriculture Secretary Tom Vilsack and President Barack Obama.

Comments

[Keith Curran]

This case will set important legal precedent and is necessary to ensure the justice that Sherrod as well as all victims of internet libel and defamtion deserve. The action was intentional, with malice, and had the intention to of harming the public through deception and harm of a public representative.

The attack on Sherrod should be considered an attack on the people in this regard. I myself am a plaintiff in a nasty libel case.
The law does not favor the victims of these tortuous acts and that needs to change.

[Bonnie Middlebrook]

I hope that she win and win big. It's to bad it won't detroy him politically.

[Luigi]

The Scalia Court has reportedly already assured Andrew Breitbart and his financial handlers that it will overturn any decision against Breitbart and associates in the Sherrod matter.

[Anon]

Scott, most people agree that this video was selectively edited to purposely hurt this person by portraying a lie. It is pretty clearly deflationary at this point, and had easily provable consequences. That isn't fighting the good fight or exposing hypocrisy of the left, that is defamation of an innocent individual, which is why we have this lawsuit, and why it was not thrown out.

[Bill Michtom]

SEC, exactly what "hypocrisy" has Ms. Sherrod committed?

[Scott E. Carter, Esq.]

Andy. My heart goes out to you. Stay tough and don't give up the good fight to expose the hypocrisy of the left.

SEC, Esq.

[Karim]

Breitbart better settle. He has no chance of winning now.