Sherrod to Sue Breitbart; Probably Has Stronger Suit Against The USDA

Shirley Sherrod says she will sue conservative blogger Andrew Breitbart. Breitbart posted a heavily edited speech that Sherrod delivered at an NAACP event. The portion of the speech, along with commentary on Breitbart's blog, misleadingly portrays Sherrod as a racist. The full version of the tape, however, paints a completely different story (see here).

It is unclear what type of action Sherrod will bring, but she will probably sue for libel. In order to prevail, she will have to prove that Breitbart acted with actual malice. This standard requires that Sherrod prove that Breitbart published information about her that he knew was false or that he acted with reckless disregard for the truth. Although this is normally a tough standard, Sherrod might prevail, given the circumstances of the scandal. It will be difficult, however, given the First Amendment interests at stake.

Stronger Case Against the USDA
Sherrod probably has an even stronger lawsuit against the government (unless she is a "political appointee," which would change this analysis significantly; update below). USDA officials forced her out of her government job without due process of law. She was not given the opportunity to explain herself, nor did her supervisors listen to the full speech before demanding her resignation.

Federal statutes and constitutional law provide procedural protections for government employees who face potential discharge. Although Sherrod has not indicated that she will sue the government, she would probably have an even better chance with that litigation.

Links to this article: Ta-Nehisi Coates, The Atlantic, Sherrod's Chances

Update: Readers here and elsewhere have made very good points. First, some readers have argued that Sherrod should not sue the government because she can make a stronger statement in a litigation against Breitbart. After all, the government has apologized and offered her another position. I do not question the soundness of those claims. Nonetheless, saying that a particular course of action is stronger from a legal perspective does not mean that the plaintiff should actually take that path.

Second, at least one reader at The Atlantic has pointed out that Sherrod was a "political appointee." If this is true, then her chances against the government under any legal theory are sharply diminished. This does not alter the difficulty of a libel action against Breitbart. Both paths represent an uphill battle.

Speaking of Obama, Rendition and Torture. . . .

For an analysis of Obama's comments on rendition during his interview with the New York Times, visit this link: Obama's "Interesting" Comments About Rendition.

John Schwartz of the New York Times has written an interesting article about a lawsuit on the subject of rendition and torture (an issue that caused much angst among partisan Obama supporters earlier this week). The suit alleges that on behalf of the U.S. government, a Boeing subsidiary transported several individuals to nations where they were subsequently tortured. The trial court dismissed the case after the government asserted the "state secrets" privilege. The state secrets privilege shields from discovery any documents or other materials that contain sensitive information related to national security. Courts have broadly applied this doctrine in torture litigation and, according to the ACLU, this has resulted in the dismissal of each anti-torture lawsuit against the Bush administration.

The case is now on appeal, and oral arguments will take place next week. Many human rights activists are waiting to see whether the Obama administration will abandon or modify the state secrets argument. In their critiques of rendition, human rights groups have often condemned Bush's usage of the state secrets privilege as a convenient tool to mask deprivations of human rights and to evade judicial review. Attorney General Holder has said that he would review pending cases that assert the privilege, but it remains unclear how he will approach the subject in this particular case.

I really hate "guessing" an attorney's potential legal strategy (especially based on reading one newspaper article). But if the oral argument is slated for Monday, and the government has not yet indicated that it wants to reschedule the date of the hearing or otherwise demonstrated that it will shift gears and make a completely new argument, then I suspect that it will defend the judgment it has already won in the trial court. DOJ will probably argue that the court correctly applied doctrine related to the privilege. This would not dictate how the U.S. asserts the privilege in future cases, but it would deny these particular plaintiffs of the opportunity to build their case.

Ben Wizner, of the ACLU, would take a sharply different view a DOJ argument favoring dismissal:

If he repeats the Bush administration’s argument that this case must be
dismissed at the outset,” Mr.Wizner said, “then we’ll know that despite the
change of administration, the policy of the United States that torture victims
be shut out of the courtroom has continued.

Well, at least from the perspective of the ACLU, Monday could answer a lot of political and legal questions.

For more on the state secrets privilege, see:

Constitutional Law Prof Blog

Reforming the State Secrets Privilege (written by my colleague Professor Amanda Frost and Justin Florence).

For articles on rendition, see:

Obama's "Interesting" Comments About Rendition

Elevating Form Over Substance: Liberals Now Argue that They Oppose the Label of Bush's Program, Not the Substance

Still a Flip-Flop: My Fellow Liberals Push Back Against Allegations of Inconsistency Concerning Rendition

Major Flip-Flop by Human Rights Watch: Organization Waiting for Obama to Develop Kinder, Gentler Rendition Program