Lawsuit Tests Bloggers’ Freedom Of Speech Rights

March 16, 2013 by Mary Clare Jalonick

A colleague of the late conservative blogger Andrew Breitbart is asking a federal court of appeals to throw out a defamation case brought against him by former government employee Shirley Sherrod, saying the lawsuit violates the blogger’s right to freedom of speech.

Sherrod was ousted from her job as an Agriculture Department rural development official in 2010 after Breitbart posted an edited video of Sherrod, who is black, supposedly making racist remarks. She sued Breitbart, his employee Larry O’Connor and an unnamed defendant for defamation and emotional distress after USDA officials asked her to resign and the video ignited a racial firestorm. Sherrod’s lawyers say the unnamed defendant is the person whom they believe passed the video on to Breitbart, though the person’s identity remains unknown.

Breitbart died unexpectedly a year ago, and his status in the case is unclear as his family does not appear to have notified the court of an estate that can be sued.

The case argued before the court of appeals Friday is one of the first high-profile federal lawsuits to test the freedom of speech rights of bloggers. Backed by large news organizations including the New York Times Co., Washington Post Co. and Dow Jones & Company, Inc., who have filed friend-of-the-court briefs in the case, O’Connor’s lawyers argued to have the case dismissed under a District of Columbia statute that aims to prevent the silencing of critics through lawsuits. A federal district court judge rejected their motion to dismiss, citing timing and jurisdictional issues, prompting the appeal.

The lawyers told the court of appeals that O’Connor and Breitbart, before he died, stood by the content, saying the blog post was opinion.

“What happened here is what happens in journalism every day,” said Bruce Brown, a lawyer for O’Connor.

Sherrod’s lawyers disagree and say dismissal under the District of Columbia statute would violate their right to a trial. The video on Breitbart’s website turned out to be edited, and when Sherrod’s full speech to an NAACP group earlier that year came to light, it became clear that her remarks about an initial reluctance to help a white farmer decades ago were not racist but an attempt at telling a story of racial reconciliation. Once that was obvious, Sherrod received public apologies from the administration—even from President Barack Obama himself–and an offer to return to the Agriculture Department, which she declined.

Sherrod’s 2011 lawsuit says the incident affected her sleep and caused her back pain. It contends that she was damaged by having her “integrity, impartiality and motivations questioned, making it difficult (if not impossible) for her to continue her life’s work assisting poor farmers in rural areas” even though she was invited to return to the department.

The video was posted amid ongoing friction between the NAACP and the tea party movement, each of which were accusing the other of having racist elements among their ranks. Breitbart said at the time that the video showed the NAACP condoning racist comments from a government official.

The full video, however, shows Sherrod explaining to the audience how she eventually became friends with the farmer and helped him save his land from foreclosure.

Brown, the lawyer for O’Connor, defended the bloggers’ actions and said the suit should be dismissed under the anti-SLAPP law, designed to prevent strategic lawsuits against public participation, because Breitbart’s post was opinion. “She was a public official who saw the world through a racial prism,” Brown said of Sherrod.

The case has been closely watched as a test of the District of Columbia’s anti-SLAPP statute.

Brown asked the three judges to consider the precedent this case would have.

“It is in courts like this where First Amendment law is made,” he said.