So You Think You Had it Bad?

And he keeps on digging:

If Sherrod wanted to meet with you, what would you tell her?

I’d have a long discussion with her, and I’d tell her that I’m not one of these people in this country that thinks racism doesn’t exist. And that I’m not one of these people who says that she hasn’t suffered from racism. And that the scars of her racism aren’t warranted. But I’d also tell her that my passion in life and my political trajectory from left to right was born from watching the Clarence Thomas hearings. I didn’t understand how he NAACP sat on its hands while privileged white gentlemen hammered him mercilessly and humiliated him and the media and the NAACP allowed for it to happen.

Just so we’re clear, Sherrod was scarred by the murder of her father and subsequent failure to prosecute the murderers in the Jim Crow south, and Breitbart was scarred when Clarence Thomas was beaten to death on live television in the well of the Senate by Ted Kennedy and Joe Biden while the NAACP stood by and did nothing asked some questions before being promoted to a lifetime position in the highest court of the land. See- they’ve both been traumatized!

Two thoughts:

1.) Crazy people honestly have no idea how insane they sound, do they?

2.) After the Jeffrey Lord outburst this week, I’ve concluded the lunatic fringe of the right finds “high-tech lynchings” far more awful than, you know, actual lynchings.

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198 replies
  1. 1
    Tom Hilton says:

    Yup, and yup.

    Also, I had forgotten that Anita Hill was a privileged white gentleman. Or maybe I never knew that.

  2. 2
  3. 3
    John O says:

    Now this is a post that should go viral.

  4. 4
    flounder says:

    Meanwhile our media cops are out filling us with with insight and original thinking:

    HowardKurtz Portland police closing probe is good news for Al Gore. Wonder if that’s the end of the National Enquirer story.

  5. 5
    Alex S. says:

    If I sat next to someone like Breitbart in a bus, I’d choose a different seat, because he’s craaaaaazzzyyyy ! ! !

  6. 6
    debbie says:

    Oh, she’ll definitely be meeting with you, Andrew. In court.

  7. 7
    trifecta says:

    Anita Hill was born a privileged white man….

    Breitbart should have gone with the I work with Drudge, and have been woken up several times at 2am to buy cartons of eggs at a time, so I know suffering angle.

    It all circles back to the evil or stupid debate.

  8. 8
    fasteddie9318 says:

    To be fair, John, those nasty white Senators were trying to impinge on Thomas’ right to engage in bizarre sexually perverted activity, a right that Republicans hold nearly as sacrosanct as life itself.

  9. 9
    Tom Hilton says:

    More of my faulty memory: I could have sworn that the enraging thing about the Clarence Thomas hearings was seeing a bunch of privileged white men (not terribly gentle) mercilessly hammering Anita Hill. How could I have gotten it so wrong?

  10. 10
    El Cid says:

    Yeah.

    And that the scars of her racism aren’t warranted.

    It wasn’t just the murder of her father.

    These bastards should have gotten out there in rural fucking Georgia and organized black people to vote when such organizers were getting shot down around the South.

    Fuck these god-damned lunatic assholes.

  11. 11
    cbuckser says:

    I’m playing my 3-inch violin for poor Andrew Breitbart, the real victim.

  12. 12
    Tom Hilton says:

    And of course what Breitbart saw was exactly what George H. W. Bush wanted him to see. That was the point of picking Thomas.

    That, and scoring a hit against affirmative action by deliberately picking someone manifestly unqualified for the position (see also: Palin, Sarah).

  13. 13
    trifecta says:

    Totally off topic, but Long Dong Silver died a few years after the hearing, never able to capture much profit in the attention that was brought on by Clarence Thomas’ viewing habits.

    RIP Long Dong Silver.

  14. 14
    Stooleo says:

    I hope she sues the shit out of him. If she does we might find out who fed the tape to Breitbart in the first place, which should be interesting.

  15. 15

    These m-f have absolutely no shame do they? I mean really. I am ashamed to have cheerleaded for these fuckwads at some point in my life.

  16. 16
    demo woman says:

    Let’s see, Breitbart sympathetic to Clarence Thomas but not Anita Hill a black woman. Sherrod is another black woman who Breitbart tried to destroy. There must be a story here.

  17. 17
    steviez314 says:

    You forget, this stuff isn’t designed to convince you and me. Or even the independents.

    It’s to make sure that every last right-winger shows up in November, even if they’d rather be home masturbating to Red Dawn.

  18. 18
    jwb says:

    @Dan: I unfriended Target today when I learned the company had given monetary support to Emmer. I actually called the corporate headquarters and told them I would no longer be shopping at Target.

  19. 19
    El Cid says:

    By the way

    I’ve concluded the lunatic fringe of the right finds “high-tech lynchings” far more awful than, you know, actual lynchings.

    of course we know that there were no actual lynchings, because my reading of Supreme Court cases and Riders of the Purple Sage informs me that lynching is only when groups of 5,000 or more white people hang a black person from a structure over 10,000 feet high.

  20. 20
    The Dangerman says:

    …my political trajectory from left to right was born from watching the Clarence Thomas hearings.

    As opposed to the trajectory that occurred after he raced out to buy Long Dong Silver. Left to right, right to left…

    Clarence Thomas has certainly shown those privileged white gentlemen through his deeply erudite questions and the quality of his legal opinions.

  21. 21
    Cacti says:

    And remember, to be a real lynching, there have to be more than 3 people and a rope has to be used, statutory language to the contrary not withstanding.

  22. 22
    jwb says:

    @El Cid: I thought the crowd had to be 100 million people and at least 8 million feet, but I use the wingnut multiplier.

  23. 23
    El Cid says:

    @jwb: That may be true, but the use of reference materials is frankly contrary to the spirit of modern conservatism. You always just consult your gut as far as what the answer is, or should be.

  24. 24
    burnspbesq says:

    @demo woman:

    Not sure where you’re going with that, but I hope you brought enough brain bleach for everyone.

  25. 25
    jwb says:

    @El Cid: Well, 5,000 people is conceivable, so we definitely need to apply the multiplier to that, but we can probably accept 10,000 ft as it stands, since really anything above 100 feet is gravy.

  26. 26
    Tonal Crow says:

    Teh Revisionism, it burns like Mount Doom in full eruption.

  27. 27
    Jay in Oregon says:

    I’ve concluded the lunatic fringe of the right finds “high-tech lynchings” far more awful than, you know, actual lynchings.

    Well, actual lynchings only happened to “Those people” while high-tech lynchings could happen to them.

    That’s why they’re worse.

  28. 28
    Kiril says:

    @jwb: Megan? That you?

  29. 29
    Tonal Crow says:

    @El Cid:

    of course we know that there were no actual lynchings, because my reading of Supreme Court cases and Riders of the Purple Sage informs me that lynching is only when groups of 5,000 or more white people hang a black person from a structure over 10,000 feet high.

    Are you kidding? A lynching occurs only when a person says something true about conservative philosophy.

  30. 30
    Leo says:

    Based on my cursory Google research of NYT v. Sullivan I’ve concluded that Breitbart is probably dead meat if Brown sues him for defamation. (Particularly if she chooses an appropriate venue — such as a plaintiff-friendly urban area.)

    With the right jury, the damages could get pretty big too. Lost a relatively prestigious job; slandered on national television for several days; etc.

    I really hope this comes to pass.

  31. 31
    Frank says:

    @jwb:

    I unfriended Target today when I learned the company had given monetary support to Emmer. I actually called the corporate headquarters and told them I would no longer be shopping at Target.

    Emmer responded to the boycotters with the following comment:

    For his part, Emmer has criticized such boycotters. “The sad part to me is, I thought we were supposed to be able to exercise our rights of free speech,” said Emmer. “We’re supposed to celebrate the fact that we have different perspectives. And it doesn’t seem like that’s what this is about. This seems to be more personal and we’ve got to get over that.

    It is amazing that Emmer can’t distinguish between free speech and the freedom for people to shop wherever the hell they want. So now Emmer wants to force me to shop at Target, eh?!

  32. 32
    Rommie says:

    Don’t miss the point that he moved from the left to the right *because* of the horrible way CT was treated.

    Yeah, really, Breitbart would be a DFH today, if ONLY Kennedy and Biden hadn’t, er, if only the NAACP had done something about those mean questions. It’s True, it’s True!

  33. 33
    chopper says:

    hey, to those holocaust survivors – you have scars. i understand; once a guy in a cab shouted something anti-semitic at me. totes the same.

  34. 34
    Kryptik says:

    Shame and irony are completely and utterly lost on these sociopaths, aren’t they?

  35. 35
    lucslawyer says:

    ab was upset about what happened to ct, and yet he nails SS to the cross?…yeah, I’d say that’s a total fail….

  36. 36
    GregB says:

    Breitbart seemingly un-self aware when it is pointed out that though his feelings were hurt when Mrs. Sharrod called him a racist in response to Breitbart calling her a racist.

    Hopefully this Breitbart turd will wash out to sea one day.

  37. 37
    lamh32 says:

    OT, but fits into the theme.

    MSNBC Does a Re-Do on Matthews Defending Breitbart and Saying He Didn’t Edit the Sherrod Tape

    This has to be one of the most bizarre things I’ve seen in a long time. Chris Matthews has Howard Dean and Joan Walsh on to discuss the Shirley Sherrod debacle and what Andrew Breitbart did to slime her and the Obama administration’s response and when both Walsh and Dean point out to Matthews that despite his assertions to the contrary, Breitbart’s video was highly edited, Matthews goes ballistic on them and claims that the nearly hour long video wasn’t edited…

    Apparently in Tweety’s mind, Breitbart including that somehow absolved him from the editing of the tape he did. The more Walsh and Dean tried to point out to Matthews that the tape was edited and that what he was saying wasn’t true, the more agitated he got.

    Digby was kind enough to transcribe some of this nonsense for us and I’ve got a couple of theories for why Matthews acted the way he did. Her transcript along with what MSNBC aired in place of this along with part two of the segment they apparently didn’t want anyone to watch below the fold…

  38. 38
    r€nato says:

    After the Jeffrey Lord outburst this week, I’ve concluded the lunatic fringe of the right finds “high-tech lynchings” far more awful than, you know, actual lynchings.

    You know that joke that goes, “comedy is when you fall into an open manhole; tragedy is when I stub my toe”?

    Republicans take this very literally.

  39. 39
    JAHILL10 says:

    @El Cid: It is so wrong that I almost aspirated pizza upon reading this.

    I keep looking for the white rabbit or Jabberwocky to come burbling through one of these reality-free winger declarations

  40. 40
    demo woman says:

    @burnspbesq: Breitbart sounds as though he has some repressed feelings.
    We are fortunate that not all folks saw the Thomas hearings the same way.. David Brock brought us media matters.

  41. 41
    burnspbesq says:

    @Frank:

    “So now Emmer wants to force me to shop at Target, eh?!”

    Wait, you thought “free market” meant you were free to shop wherever you want, and make that choice for any reason or for no reason?

    You big silly.

  42. 42
    eric says:

    @Leo: I have written this before, but she should not be suing him. Truth is a defense and they can make this very very intrusive on her and her friends and god forbid she ever spoke bluntly in a private email…..whatever she thinks she is going to find is going to mandate that they look even harder for something to defend the implication of the piece that she is a racist.

    she is a public figure, so this will be a tough fight for her

  43. 43
    Elie says:

    @debbie:

    And whether he contributes a dime, I hope she runs up a healthy tab for the organizations that end up carrying his load. Too bad she can’t make him serve jail time in lieu of a financial settlement. Lord would that feel good…

  44. 44
    asdf says:

    OK, this is too much. It’s time to start drinking in earnest.

  45. 45
    lamh32 says:

    I agree with Dibby. Chris Matthews is an idiot. Here’s digby’s update after the transcript:


    Chris Matthews Is An idiot Part XXVII

    …Update: Matthews called Walsh back to the studio to re-do this story on his second broadcast with Mark Vogel of Politico instead of Dean. He slightly back tracked and seemed to understand the real narrative a little bit better. Walsh and Vogel were both able to explain it more fully, with Vogel filling in the fact that the little snippet of “white and black” in the Breitbart tape was probably left in there out of amateurishness. The person apparently didn’t have the skills to send the clip via email.)( I’m still not sure Matthews really understands this but it’s obvious that somebody talked to him.

  46. 46

    @Jay in Oregon:

    Well, actual lynchings only happened to “Those people” while high-tech lynchings could happen to them.

    Not unless they’re – you know – dark-skinned.

  47. 47
    gbear says:

    @Frank:

    What amazes me about Emmer’s response is how he asks the protesters not to get personal about it while he’s pushing an adgenda that would cut off any opportunity for a large number of Minnesotans to marry the person that they love. Talk about a fucking clueless, clueless fuck, Emmer is right up there with Bachmann. My feeling is that Emmer may be much worse than Bachmann.

  48. 48
    HumboldtBlue says:

    Eric she is not a public figure, she was a public employee. And as hard as they can make it on her I’m thinking it can be just as hard on the defendants, Breitbart and FOX. She was libeled, viciously so, if she and her counsel feel she has a strong enough case I hope she hammers him. If not, I hope the View hires her as their race and history expert and she brings this shit up every fucking day.

  49. 49
    Tonal Crow says:

    Wow. Just wow. And what *should* the NAACP have done about those terrible senators who, you know, asked Thomas about what he’d do if they were to, you know, give him a lifetime appointment to the most powerful court in the world? Should the NAACP have denounced them for “racism” because they treated Clarence Thomas like, you know, pretty much every other Supreme Court nominee?

    And if so, why won’t Mr. Bratbart denounce his fellow fifth-columnists for racism for their actual racist treatment of candidate (and President) Obama?

    Could it be that Bratbart is all about lying to create the impression that he and his fellow fifth-columnists are in the right, and everyone else is wrong?

    Perish the thought.

  50. 50
    eric says:

    @HumboldtBlue: she is a public figure. not a close call. You are wrong that it will be worse for them. they have the power of the right wing wurlitzer…look what they did to the climate emailers. lawsuits are rarely a satsifying way of getting justice.

  51. 51

    @eric:

    she is a public figure, so this will be a tough fight for her

    A limited public figure at best. I mean, rural development director for Ga. isn’t well-known.

    Breitidiot elevated her into national consciousness.

  52. 52
    lamh32 says:

    Sorry, OT again, but yesterday, I posted a little blurb in the open thread about President Obama signing the “Tribal Law and Order Act”. Here’s a little bit more, now including WH video of the event. Try not to be affected by the ladies introduction.

    The President signs the Tribal Law and Order Act

    According to a Department of Justice report, Native American women suffer from violent crime at a rate three and a half times greater than the national average. Astoundingly, one in three Native American women will be raped in their lifetimes.

    The Act includes a strong emphasis on decreasing violence against women in Native communities. Focusing not only on prosecution, however, the Act includes important provisions aimed at prevention. It reauthorizes and improves programs to prevent and treat alcohol and substance abuse, as well as programs that improve opportunities for at-risk Indian youth.

  53. 53
    Suffern ACE says:

    In her full speech, Sherrod openly talks about how her decision to stay and help make a better life was strongly influenced by her faith in God, not simply the effects of Segregation, and that she looks at her life as one where God has opened opportunities for her and for other people. It isn’t just about race, or the haves vs the have nots for her and it never has been.

    I am so used to encountering saavy political types, charlatans, Elmer Gantries and people outwardly preaching a faith-based hypocrisy on our national stage that I sometimes forget what a beautiful thing faith can be and what it can do for people.

    I hope that by fighting back, she can reach that poor man’s soul.

  54. 54
    Elie says:

    @eric:

    I can see your point to some extent, but if she can settle out of court, that works. Also, discovery and digging works both ways, right? Of course, Breitbart’s racist rantings help him. Maybe they can find pictures of him doing little brown skin boys or something…point being that discovery is both ways — not just her emails but his.

    I do see that on the whole, this helps him more because he likes being a racist pig and looks for opportunities to lay it out…

  55. 55
    HumboldtBlue says:

    I’m sorry Eric, she was a public employee, not a public figure. If she wants to sue I am heartily behind her and hope she wins. I really don’t give a fuck what a blog commenting shithouse lawyer thinks. She was slandered by a very public figure and a very public new organization. I hope she reaps her just rewards.

  56. 56
    gbear says:

    @Suffern ACE:

    I hope that by fighting back, she can reach that poor man’s soul.

    …with a well placed lightning bolt.

  57. 57
    The Dangerman says:

    @gbear:

    I hope that by fighting back, she can reach that poor man’s soul.

    I hope she buries her first so far up his ass she can tell if he’s chewing gum.

  58. 58
    slag says:

    @jwb: Target’s bad. Back when buyblue (or whatever it was called) was around, I looked them up. All I remember is that I will never shop there again. Not that this was…you know…a huge sacrifice. But it’s a thing.

  59. 59
    Patriotic Liberal says:

    she is a public figure, so this will be a tough fight for her

    I am very familiar with the law of defamation, and I don’t think it will matter.

    You are referring to the distinction in the law of defamation that makes it hard for a public figure to collect damages. Unlike a private person, who need only show negligence on a publisher’s part, a public figure must show that the publisher of defamatory material acted with “reckless disregard for the truth or falsity” of the material in question.

    There seems little question that Breitbart, by publishing partial quotes arranged to convey the opposite of what Sherrod actually conveyed in her complete speech, acted with “reckless disregard for the truth or falsity” of the material. In fact, I think a reasonable jury would have a tough time concluding anything other than that Breitbart intentionally lied about Sherrod, which is never shielded from defamation damages unless the material is a parody.

    If Breitbart tries to argue that he was simply using Sherrod’s own words, he will run into two more problems. One is the “false light” doctrine, which is closely aligned with defamation and allows damages for putting people in a false light. Another is that Breitbart used not just Sherrod’s words, but added his own assertions of “facts” that weren’t facts.

    If I were Sherrod and were serious about my threat of a lawsuit, I wouldn’t respond to Breitbart. I would let my attorneys do the talking, and in private would be just fine. I hope she does follow through, because I think she has an excellent case for damages against the young weasel.

  60. 60

    @lamh32: This could be good news, but of course, Obama is a thuggish war mongering authoritarian. Just one more reason he’s worse than Bush. He should have named it The I’m Okay, You’re Okay Enforcement Act.

  61. 61
    eric says:

    @HumboldtBlue: fuck you asshole. I am telling you that her reward is not so easy to come by, not that she wasnt wronged. Look at Wen ho Lee, those cases are not easy on the person even when you do win.

    i have defended defamation cases for papers and i am telling you it is not the place you want to make a stand. Networks take this seriously and will spend money to prove themselves right even if they are dead wrong. She could prove he spliced the tape like the Simpsons Gummy DeMilo episode, but if there is one person or one email intimating a hint of racism, they will smear her ina way that makes this look like childs play.

    it is nto about justice, it is about peace of mind

  62. 62
    Mike says:

    As difficult as it probably was for her, it’s been difficult for me as well, especially to hear her hurl an accusation of racism at me, when my motivation is absolutely pure and is driven by a desire for this country to move beyond its horrid racist past.
    That’s Breitbart. Imagine, the horror of being accused of some thing like racism, when you are actually attending the Uni-Tea event THIS WEEKEND! I mean, Shirley Sherrod and Barack Hussein Obama aren’t going to that are they?

    Context is everything.
    http://biggovernment.com/abrei.....acism2010/

  63. 63
    M. Bouffant says:

    I didn’t understand how the NAACP sat on its hands while privileged white gentlemen hammered him mercilessly and humiliated him and the media and the NAACP allowed for it to happen.

    Pretty well proves the NAACP isn’t racist, doesn’t it BB? They could spot an unqualified hack several miles away.

  64. 64
    Patriotic Liberal says:

    Incidentally, I would like to see Sherrod also go after any other right-wing blogger who republished Breitbart’s lies, or even linked to them. She should also go after Fox News, which republished the lies. Both the bloggers and Fox are just as liable as Breitbart, under the republication doctrine. Whether linking to defamatory material is cause for damages would be an interesting question; if I were Sherrod, I’d say, “Hell, why not try,” and thereby blast a nice, big hole in a bunch of wingnut wallets. Revenge is best served cold, baby.

  65. 65
    bemused says:

    @jwb: I emailed CEO Steinhafel saying I would no longer shop at Target. Gregg Steinhafel and his wife have also personally donated to Pawlenty, Michele Bachmann and other MN republicans who support Pawlenty’s all too successful efforts to financially strangle our school districts, Minnesota Care, LGA & just about everything else. I believe it was a current Twin Cities Daily Planet piece that went through a US Census report which clearly shows what the no tax agenda has done to MN in just a few short years. MN now leads the nation in declining revenue. Target supporting Emmer who would just continue to grind down MN makes lousy business sense to me. Corporate priorities are short term profits over long term viability of the stores, imo. If Pawlenty’s agenda is continued there will just be fewer and fewer Minnesotans able to buy much of anything at Target or anything else.
    I was just thinking of how much we have spent on average at Target in a month. Nope, I do no want to give $1 to 2 thou a year to a corp that supports people that want to turn MN into dirt poor rightwing state and destroy everything that made MN exceptional.
    @Tom Hilton:
    That’s a win.

  66. 66
    demo woman says:

    I didn’t understand how he NAACP sat on its hands while privileged white gentlemen hammered him mercilessly and humiliated him and the media and the NAACP allowed for it to happen.
    Where is Breitbart’s comment about the white gentlemen painting the poor black woman who testified against Thomas as disturbed. Where is Breitbart’s comment about the crap that Sotomayor had to put up with because she is Latino?

  67. 67
    Suffern ACE says:

    @lamh32: Read Somersby at the Dailyhowler today. The problem is that there are two videos. Walsh and Dean are referring to the edited one that was on Fox TV while Matthews is referring to the actual unedited version that Breitbart released. The brief little snippet that Matthews is referring to was in the original unedited already highly misleadingly edited video.

  68. 68
    Patriotic Liberal says:

    if there is one person or one email intimating a hint of racism, they will smear her ina way that makes this look like childs play

    Two points to make. One is it’s not any kind of done deal that they could get all of her e-mails. Breitbart’s material looks to me like it was prima facie defamatory, so her e-mails might be held irrelevant.

    Second, it certainly does matter whether she’s got the stomach for a nasty fight. The wingnuts are already going after her, tooth and claw. If I were her, I’d figure why not, might as well go for it.

  69. 69
    eemom says:

    @Patriotic Liberal:

    I agree, and I’ve been hoping for this lawsuit, including for Fox to be named as a defendant, since the whole mess started.

    As I’ve said before, I expect Breitbart et al will try to buy her off. But settlement is NOT good enough in a case like this, and I suspect that big bucks is not what Sherrod is after.

    This is that rare case that really is about principle, and once again, it will be Eleventy Kinds of Awesome to watch a skilled plaintiff’s attorney fry Breitbart’s ass in front of a DC jury.

  70. 70
    Mojotron says:

    I have written this before, but she should not be suing him. Truth is a defense and they can make this very very intrusive on her and her friends and god forbid she ever spoke bluntly in a private email…..whatever she thinks she is going to find is going to mandate that they look even harder for something to defend the implication of the piece that she is a racist.

    she is a public figure, so this will be a tough fight for her

    note to self, do not accept legal advice from BalloonJuice commenter “eric”.

    as for me, my moment where I switched to conservative was when a black, a woman, two Jews and a cripple beat up James Watt

  71. 71
    chopper says:

    I didn’t understand how the NAACP sat on its hands while privileged white gentlemen hammered him

    of course they were ‘white gentlemen’, there wasn’t a single black person in the senate at the time. come to think of it, maybe the NAACP was busier trying to fix that problem than come to the side of a trogladyte like thomas.

    maybe the NAACP should have showed their support for fellow blacks by helping destroy the reputation of Hill, a black oh crap.

  72. 72
    HyperIon says:

    Clarence Thomas…

    always makes me think of Dave Barry’s “pubic hair” column.

  73. 73
    eemom says:

    also, WTF is this pussy-ass attitude that Sherrod should let herself be intimidated out of the lawsuit by the inevitable sleazoid tactics Breitbart’s thugs will employ? Fuck that. The lady is made of sterner stuff.

    Are you the kind of guy who suggests rape victims not file charges, “eric”?

  74. 74
    bemused says:

    If Sherrod does sue Breitbart, it will be interesting to see who will financially help the racist shit with the cost of his legal team.

  75. 75
    Suffern ACE says:

    @eric and @humboltblue

    Since you claim to both be familiar with defamation law, do either of you know if it would make a difference whether or not Breitbart was actually a reporter? Could he just say “Hey, I received this video. I’m not in the media business. I just reacted to this video someone gave me, and drew the same conclusion as the Secretary of Agriculture and the head of the NAACP.”

  76. 76
    M. Bouffant says:

    NAL, but she was not a public figure until Bitchbart made her one, assuming that the legal definition of “public figure” is somewhat related to the real world & plain English.

  77. 77
    eemom says:

    @bemused:

    if Fox is a defendant, all the Murdick’s horses and all the Murdick’s men will try to put Breitbart together again.

  78. 78
    jwb says:

    @bemused: It’s a bit like the Whole Foods CEO signing on to the anti-HCR crusade: not really understanding the politics of his customer base. I haven’t shopped at Whole Foods since. Historically, I have spent a whole lot more money at Target.

  79. 79
    M. Bouffant says:

    “Hey, I received this video. I’m not in the media business. I just reacted to this video someone gave me, and drew the same conclusion as the Secretary of Agriculture and the head of the NAACP.”

    He can’t deny he’s in the media business. I don’t think, “I’m not a real reporter” is going to hold defensive water. Were I to be caught/read by anyone whom I’ve slandered, insulted &/or threatened, that wouldn’t be a defense, ’cause I did it in a public if little read forum.

    And the AgSec & NAACP reached those conclusions on the basis of Bitchbart’s making the tape public, posting his conclusions, & screeching about them.

  80. 80
    burnspbesq says:

    @eric:

    Sorry, but you’re wrong on whether Sherrod is a public figure. And even if you’re right, Breitbart absolutely acted with reckless disregard for truth.

    You go, girl. SEPARATE that fool from his money.

  81. 81
    Suffern ACE says:

    As for the public figure discussion, since she was invited to give a speech, and had given similar speeches in the past (I think I read that she speaks at schools), does that make her public figure, if one not known much outside of Georgia?

  82. 82
    slag says:

    @lamh32: Thanks for that. Just watched the speech. Very moving. Hoping that new legislation is all it’s cracked up to be. Something needs to be done and only time will tell.

  83. 83

    @Suffern ACE:

    does that make her public figure, if one not known much outside of Georgia?

    (obligatory IANAL) public figures are a fascinating issue. One could almost argue that she became a vortex public figure (google it) through no fault of her own.

  84. 84
    bemused says:

    @jwb:
    I remember reading about the Whole Foods CEO. He was astonishingly clueless and self righteous.
    The problem with ditching Target or any other store where one buys certain things all the time is deciding where to shop next for those things. Shopping for cleaning supplies, TP, laundry detergents, 30# bags of dog food, etc is easiest and usually cheaper at one stop, big chains store like Target. All those items are so much more expensive at grocery stores. Oh well, I will adjust.

  85. 85
    burnspbesq says:

    @eric:

    Citations would be nice. You’re in a room full of lawyers. We all know how to read and analyze cases.

  86. 86
    bemused says:

    @eemom:
    Is it possible that Fox could get sucked into it too? My heart be still.

  87. 87
    burnspbesq says:

    Just a thought: how many people would have to have clicked on Breitbart’s shit from the UK to create jurisdiction over there? Their defamation law us much more plaintiff- friendly than ours.

  88. 88
    liberal says:

    But I’d also tell her that my passion in life and my political trajectory from left to right was born from watching the Clarence Thomas hearings.

    That has to be the lamest, least sensible reason I’ve ever heard from moving from left to right.

  89. 89
    Suffern ACE says:

    @burnspbesq: Or Sweden. O.K. my knowledge of Swedish law comes from The Girl with the Dragon Tattoo, but I believe in the story, slander by reporters leads to jail time.

  90. 90
    liberal says:

    It’s obvious that she’s not a public figure. What’s not so clear is the extent to which she can claim she’s been harmed—they offered her a job (if not her original one).

    Not that I don’t think it would be nice if somehow all the money was sucked out of Breitbart et al.’s bank accounts.

  91. 91
    curious says:

    the strikeout text was awesome.

    um, breitbart does seem to have some rather low expectations for how well a black supreme court nominee should handle questioning. what, were naacp special ops supposed to whisk thomas away when senator moynihan got too fresh?

  92. 92
    Suffern ACE says:

    @liberal: Exactly. That idea is born under the assumption that the NAACP is obligated to “protect its own kind” in all circumstances, and failure to do so is a problem for him.

    Of course, if they did so, then they would be exactly the type of organization he wants them to be. However, I am very vague on the history, since it was so long ago. I don’t know if they were silent. It is also possible that their silence was due to a division. Who knows? I can’t remember. The silence on Thomas is one of those right wing canards that might be worth a revisit. Perhaps they were just on mute.

    As an aside, the man Thomas replaced was Thurgood Marshall, who was definitely an important figure in the history of the NAACP. I think the NAACP could decide that Thomas was not a replacement.

  93. 93
    eric says:

    @burnspbesq: whether she is a public figure is a question of fact and one that wont be decided right away. my point is less legal and more practical…she opens herself up to discovery and stands to lose more than Fox or Brietbart beause he can become a martyr and get wingnut welfare. they will go after her to destroy her and they would not be out of bounds for doing so. I am not am saying that she cannot win; i am saying that the falsity of the statements is not automatic victory and one which could prove pyrric.

  94. 94
    eric says:

    @burnspbesq: it wont be HIS money. that is my point. this is what they want to go after Obama and her. Dont think of them as normal litigants, because they are not.

  95. 95
    eemom says:

    @eric:

    do your clients know what a chickenshit they have for a lawyer?

  96. 96
    Karen in GA says:

    So if I understand this correctly, before the Clarence Thomas hearings the NAACP mattered so much to Breitbart, and his faith in them was so pure and trusting — almost childlike — that their failure to defend Thomas changed his entire worldview? He was that hurt by it?

    Okay, then.

  97. 97
    handy says:

    Leave it to the analysts in a certain someone’s head to cast Dean and Walsh as the bad guys for progressive politics.

  98. 98
    kay says:

    @Suffern ACE:

    Exactly. That idea is born under the assumption that the NAACP is obligated to “protect its own kind” in all circumstances, and failure to do so is a problem for him.

    Believing anything he says is born under the assumption that he’s operating in good faith.
    He’s not. The lawyer they trotted out last week, Mr. Lord, wasn’t either. That’s why nothing they say makes any sense. Nothing. It doesn’t hang together, and it never will, no matter how many times they change the story, or redefine “lynching”, or whine about how they’ve suffered.

    It’s not about black people. It’s about scaring white people.

    Breitbart knows, if he followed the Thomas hearing as closely as he says he did, that the NAACP didn’t “sit on their hands” re: Clarence Thomas. They opposed Clarence Thomas, and they had a damn good reason. He had a record, in an agency, the EEOC, and they were aware of his work there.

    The N.A.A.C.P. has criticized Judge Thomas in the past over his opposition to race-based affirmative action programs and what the group says was his failure to enforce civil rights laws while chairman of the Equal Employment Opportunity Commission in the Reagan Administration and the early days of the Bush Administration.
    At a meeting at a Washington hotel, the group’s directors voted 50 to 1 to oppose Judge Thomas’s nomination to the High Court.

    It would have been pretty fucking remarkable if the NAACP had defended Clarence Thomas during his confirmation, when members voted 50 to 1 to oppose him in August of that year, based on his record at the EEOC, a record they had criticized before he was nominated, and his oft-stated opposition to affirmative action.
    You know, this has reached the point where Breitbart and his lawyer are just insulting our intelligence.

  99. 99
    r€nato says:

    @eric: IANAL, but… that she gave a speech to the NAACP, which she knew was being recorded… would that not make her a ‘public figure’ in the legal sense, thus raising the bar for proving defamation and/or libel?

    What is the standard for a ‘public figure’, anyhow? I recall from my college broadcast media classes (oh so long ago) that the bar is (was) pretty low… that it’s not all that hard to be considered a ‘public figure’. I seem to recall that one can be considered a ‘public figure’ by just getting up and speaking in front of a group of people, or on the street corner.

    As to Breitbart’s defense should she actually bring a lawsuit against him… you better believe he’ll have the best defense money can buy, and that he won’t be paying all that much of it. How? The same folks who made sure Paula Jones had an excellent legal team. There’s a much larger agenda to be advanced here, beyond simply Breitbart defending himself. A real political proxy battle.

    I hope that Ms. Sherrod also manages to obtain a quality legal team funded by, among others, the NAACP and/or other progressive organizations. Or maybe there’s some attorneys who wish to donate their time to fight this good fight.

    Agreed, lastly, that if she truly intends to sue… she needs to shut up and let lawyers do the talking about this going forward.

    edit: I would also be curious to hear if the defense, “I did not knowingly publish false information; after all, someone else edited it!” is likely to hold much water. I mean, it’s one thing to know something is false and publish it; it’s another to not know and just publish it without bothering to check… or is it?

  100. 100
    Mark S. says:

    @Patriotic Liberal:

    Another is that Breitbart used not just Sherrod’s words, but added his own assertions of “facts” that weren’t facts.

    Yeah, that’s what I read a couple of days ago:

    An Atlanta expert on libel law said the video could conceivably open the door to a lawsuit by Sherrod, were she so inclined. It’s not the editing that matters from a legal standpoint, said the lawyer, John C. Stivarious Jr. After all, the edited video accurately captures her words. Rather, it’s the text that was overlayed onto the video as an introduction that could be libelous. It says that Sherrod “admits” that “she discriminates against people due to their race.”

  101. 101
    eric says:

    @eemom: who the fuck are you? I do what is in the best interest of my client, not what is in my best interest. One of us has successfully overturned a 21 year old murder conviction on habeas review and sure as fuck wasnt you.

    It may be in your bet interest to fight Breitbart, but it is not in her interest.

    Most people underestimate the toll litigation takes on them. Remember, she has everything to lose and very little to gain. She might win $250k at best, but she will not have a decent night sleep for 12 to 18 months and these are people trying to DESTROY her and Obama. This is not about her racial opinions …it never was and never will be. It is about telling a narrative of racial tension and resentment and that is exactly what a lawsuit would foster.

  102. 102
    kay says:

    @Karen in GA:

    No. He didn’t pay any attention to the NAACP or the Thomas hearings, because he missed the NAACP involvement in the Thomas hearings. I don’t know how he missed that, because they met with Thomas personally before they voted 50 to 1 to oppose him, and then they held a press conference. Before the hearings.
    It’s bullshit. He made it up.
    No one in their right mind would imagine they were going to ride to the rescue after specifically and very publicly opposing his nomination. Why would they do that? It’s insane.

  103. 103
    eric says:

    @r€nato: it is not that she wont have the money for a lawsuit…there are plenty of people that would do it for free.

    The Breitbarts of the world want a black-white fight as she goes after his “First Amendment” rights. The mistake is using our ordinary categories of right and wrong to gauge what the Right Wing wants. They like fights because they are unpredictable and they have a noise machine that can manufacture great harm

    Do you really think that the rest of the MSM is going to side against Fox when reporting a defamation case? really? the press will be one sided and it wont be in her favor.

  104. 104
    Leo says:

    @eric: Discovery is always horrible for individual plaintiffs. Brown has to know herself and her think carefully before deciding to go forward. But the bottom line is that she can show the tape as edited, then show it in full, and then put the white farmer who was the subject of the story on to testify as her closer. That’s a winning case. And you haven’t raised any technical or other defenses that keep her from reaching a jury.

    As for the larger media game, that could go a number of ways. I’m not sure that Fox would make it a big deal on their own because Brietbart could lose big and if that happens they won’t want it to get big coverage. If it does get big there will be a smear campaign. But if it’s big and she wins then it is a big win, and could permanently affect the credibility of Brietbart, right-wing blogs, or even Fox.

  105. 105
    r€nato says:

    @eric: IANAL (again)… but I’m with you. One better be ready for all-out war in a case like this, which is loaded with political baggage.

    Everything she has ever said or written to anybody will be subject to scrutiny and twisted into something evil and vile and racist. The kind of selective editing Breitbart committed will look positively benign compared to what his defense team (and their accomplices in the right-wing media) will do.

    If this woman has any enemies, for whatever reason – a jealous co-worker, a neighbor who doesn’t like the way she trims her hedges – they’ll get their shots at her too.

    Susan Mc-fucking-Dougal can tell you what happens when you stand up to the right-wing minions of Sauron. She spent 18 months in jail thanks to her refusal to play ball with the Whitewater witch hunt:

    During the grand jury, McDougal stated her full name “for the record”, then refused to answer any questions. In her book, McDougal explained that “I feared being accused of perjury if I told the grand jury the truth. The OIC had accepted David Hale’s lies as the truth. They were also now relying on Jim McDougal’s lies, which they’d carefully helped him construct. If I came in and directly contradicted those two — whose testimony had been used to convict me of four felonies — I feared the OIC would next accuse me of perjury.” She also writes that she feared the same fate as Julie Hiatt Steele who had contradicted the testimony of White House aide Kathleen Willey: “Simply telling the truth cost Steele everything she had, almost landed her in jail [for perjury], and jeopardized her custody of her adopted son.”

    McDougal’s grand jury testimony included her response “Get another independent counsel and I’ll answer every question”. She was publicly rebuked for refusing to answer “three questions” about whether President Clinton had lied in his testimony during her Whitewater trial, particularly when he denied any knowledge of an illegal $300,000 loan. U.S. District Court Judge Susan Webber Wright sentenced her for civil contempt of court.

    From September 9, 1996 until March 6, 1998, McDougal spent the maximum possible 18 months imprisonment for civil contempt, including 8 months in solitary confinement, and subjected to “diesel therapy”, the practice of hauling defendants around the country and placing them in different jails along the way. In her case, from Arkansas to “Los Angeles to the Oklahoma City transfer center, and then on to the Pulaski County Jail in Little Rock, Arkansas”.

  106. 106
    r€nato says:

    @eric:

    the press will be one sided and it wont be in her favor.

    You got that one right.

  107. 107
    r€nato says:

    @Leo:

    I’m not sure that Fox would make it a big deal on their own

    Maybe not all on their own… but you bet they’ll be in on it. In for a penny, in for a pound. Besides, there’s so much mileage to be gained out of bashing a black person and the NAACP.

  108. 108
    eric says:

    @Leo: they wont care about losing the case in court. it is not about court. it was not about court and paula jones. it is all about giving them subpoena power. every civil litigant gets it. this will be a circus for her and the administration. Plus, they will manufacture stories about other racist statements to “win” the battle in the press. These people are evil. Scooter Libby was convicted and the guy is still iconic on the Right.

    Please do not misunderstand. The issue is not whether she could win or whether he deserves “punishment.” She will “lose” a protracted lawsuit when he has Rush and Beck shilling for him and against her and Obama.

  109. 109
    eric says:

    @r€nato: This. Exactly.

  110. 110
    Tehanu says:

    @Suffern ACE:

    He hasn’t got a soul. Nonetheless that was a kind thought.

  111. 111
    hamletta says:

    eric, you’re right that lawsuits suck, even when you win.

    But Ms. Sherrod has been through at least one long, ugly lawsuit that we know of, Pigford v. Vilsack. I get the impression she’s very smart and very tough.

    She won’t be walking into this blind.

  112. 112
    Hob says:

    @eric: I get what you’re saying here, but I totally do not get the point of your original comment – “truth is a defense”. You’re not actually saying Breitbart could show that his smear was true… obviously… and you’re not saying she would actually lose the case… so… what on earth is the relevance of truth being a defense, and how could it give him leeway to dig up her private emails or whatever in this case?

    I mean, wouldn’t “truth” have to be truth of the thing Breitbart claimed— not of some other hypothetically related facts about her character? If I reported that you fucked Glenn Beck at high noon in Rockefeller Plaza in front of a cheering crowd, and that is unquestionably not so, am I still allowed to subpoena some old email to show that you once praised Beck’s shapely tush?

  113. 113
    kay says:

    And the “privileged white gentlemen” bit is more utter nonsense, because the Thomas hearings, famously, in political lore, led to the Year Of the Woman, in the next election.
    Men didn’t respond sympathetically to Clarence Thomas being questioned by Democratic white men.
    Women responded to Anita Hill being questioned by Republican white men.
    The hearings were about sexual harrassment. Gender, not race. I don’t know why in the hell the NAACP would jump into that.
    Did he even watch these hearings? I honestly don’t think so.

  114. 114
    hamletta says:

    Julie Hiatt Steele! Susan McDougall! I hadn’t thought about them in years!

    I used to read Bartcop every day before there were blogs. He did a big fundraiser for Steele when she was losing her house and her son. God bless them all.

  115. 115
    hitchhiker says:

    Finally realized what the convenient editing of that tape reminded me of . . .

    Say somebody went into an AA meeting and taped a talk given by a recovering alcoholic. At some point the speaker would definitely be describing some of the more unsavory behaviors that led him to hit bottom — and that part would definitely be followed by a realization and a story of recovery meant to inspire the audience.

    If you cut the tape at the moment before the redemption, it would sound like the speaker was bragging about being a drunk. But only a complete idiot would fail to understand that you need the beginning and the end of the story for it to make sense.

    Did Chris Matthews really miss this? Maybe he belongs at an AA meeting.

  116. 116
    Leo says:

    Well sure she will lose on in the right wing press. That’s sort of a foregone conclusion.

    And every civil litigant gets to take discovery, but just because you ask doesn’t mean you get it. The lawsuit won’t/shouldn’t be framed over the general issue of whether Brown is a racist. It will/should be framed over a specific statement or statements about the NAACP speech in question. Framed that way, my response to a request for emails would be to tell you to go jump in a lake. I’d be happy to take that position in front of a judge.

    Ultimately, though, I agree with you that it probably would not be worth it on a pure personal/financial level. She would have to be thinking in part about the effect of a judgment on the future Brietbarts of the world.

  117. 117
    eric says:

    @Hob: The alleged defamatory statement (or necessary implication) is that she is a racist. If she is racist, then the statement is not defamatory. So, Breitbart will try to discover past statements and actions that paint her as a racist. He is allowed to do this and will be allowed to engage in discovery to find this information. Trust is a defense means that you cant defame someone if what you said is true. He will have the power to subpoena any place she has ever been connected to.

    then, he will seek discovery as to what the administration knew about her beliefs. He will likely argue that the administation asked her to resign right out of the gate so that maybe they had non-public information that cause to act so precipitously.

  118. 118
    El Cid says:

    @hamletta: Although it was mainly a name change, she was a part of the original Pigford v Glickman case.

    FWIW, the 1999 opinion approving the settlement. (PDF here.)

    For decades, despite its promise that “no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity of an applicant or recipient receiving Federal financial assistance from the Department of Agriculture,” 7 C.F.R. § 15.1, the Department of Agriculture and the county commissioners discriminated against African American farmers when they denied, delayed or otherwise frustrated the applications of those farmers for farm loans and other credit and benefit programs.
    __
    Further compounding the problem, in 1983 the Department of Agriculture disbanded its Office of Civil Rights and stopped responding to claims of discrimination. These events were the culmination of a string of broken promises that had been made to African American farmers for well over a century.
    __
    It is difficult to resist the impulse to try to undo all the broken promises and years of discrimination that have led to the precipitous decline in the number of African American farmers in the United States. The Court has before it a proposed settlement of a class action lawsuit that will not undo all that has been done. Despite that fact, however, the Court finds that the settlement is a fair resolution of the claims brought in this case and a good first step towards assuring [against?] that the kind of discrimination that has been visited on African American farmers since…
    __
    Reconstruction will not continue into the next century. The Court therefore will approve the settlement.

    Good old Ronald Reagan.

    Don’t like all these claims of discrimination being sent to the USDA’s Office of Civil Rights?

    No problem. Just blow that office right out of the fucking water and — presto! — no more Civil Rights complaints.

    What a hero of smaller government and states’ rights concerns.

  119. 119
    Leo says:

    Terrible memory for names. Brown should be Sherrod.

  120. 120
    eemom says:

    Sorry, “eric,” but you’re still full of shit.

    You’re not Sherrod’s lawyer. If you were, it would be your job to explain to her all the burdens the litigation would likely entail — and then let HER make the decision about whether she wanted to do it or not.

    Most people — especially most people who have been through what Sherrod has in her life — don’t want to be represented by little p*ssy ass lawyers like you who dictate which battles are or are not worth fighting — and run cowering for cover when they’re afraid they’re going to be outgunned by the opposition.

  121. 121

    This guy is going to be SO AWESOME in court. I bet his own attorney winds up wrapping a roll of duct tape around his face.

    @cbuckser: Hey, your violin is 2 1/2″ longer than Andy’s dick!

  122. 122
    Elie says:

    @eric:

    So affirmitavely and from a place of empowerment, what do you recommend that she do?

    1. roll over, let herself be disparaged and insulted by slime
    2. assume she will get her justice in another life
    3. decide not to take this on because it might be tought and she might loose

    4. what does “lose” mean? Who judges that — just assholes like Breitbart and the MSM?Does it mean something to “win” with those of us who care about her and about this issue?

    As I said upstring, you bring up good points. They are not, however, without drawbacks. Tactical retreats in the end are still retreats. What cause gets asserted, what cause gets affirmed from such retreats? Sooner or later you have to put it out there. McClelland drilled his troops a long long time in DC — but the war was elsewhere. He had no victories from marching in place. Lincoln brought on Grant and there shure was a lot of blood, but we started moving this thing… Costs either way, doubtless, but would you rather be McClelland or Grant if you are Sherrod? Or pick a third choice that suits your thinking…

  123. 123
    Leo says:

    @eric: That’s where you’re mistaken. Brietbart’s statement is that the particular story Sherrod told was racist. That’s defamatory and demonstrably false based on the context shown in the tape. Broad discovery like you’re discussing would be clearly inappropriate and arguably an abuse of process.

    (Just a position, you understand, but not a bad one in my view.)

  124. 124
    eemom says:

    The alleged defamatory statement (or necessary implication) is that she is a racist.

    And that too is utter bullshit. The alleged defamatory statement is that she decided not to help that farmer because he was white. THAT is what got her fired — and that is demonstrably, slam-dunkedly false.

  125. 125
    eric says:

    @Elie: She can speak out just as she was doing that very day. Belittle him and treat him as the slime he is. She is the superior person and that will never be up for debate.

    Everyone here knows what Brietbart did and yet the MSM still pulls its punches. I am not optimistic that she can win the battle of the pubic airwaves.

  126. 126
    Hob says:

    @eric: Sorry, maybe I’m dense, but I still don’t get it.

    Why would the alleged defamatory statement have to be so vague: “she’s a racist”? Breitbart didn’t make general claims about Sherrod’s private character; he published a story specifically claiming that she discriminated against a white farmer and that she boasted about this to the NAACP, based on nothing other than a dishonestly edited video. I don’t see how this is different than my Glenn Beck example.

  127. 127
    Leo says:

    Here’s the relevant passage from Breitbart’s original post:

    We are in possession of a video from in which Shirley Sherrod, USDA Georgia Director of Rural Development, speaks at the NAACP Freedom Fund dinner in Georgia. In her meandering speech to what appears to be an all-black audience, this federally appointed executive bureaucrat lays out in stark detail, that her federal duties are managed through the prism of race and class distinctions.
    In the first video, Sherrod describes how she racially discriminates against a white farmer. She describes how she is torn over how much she will choose to help him. And, she admits that she doesn’t do everything she can for him, because he is white. Eventually, her basic humanity informs that this white man is poor and needs help. But she decides that he should get help from “one of his own kind”. She refers him to a white lawyer.
    Sherrod’s racist tale is received by the NAACP audience with nodding approval and murmurs of recognition and agreement. Hardly the behavior of the group now holding itself up as the supreme judge of another groups’ racial tolerance.

    To me, you pick out two items from this:

    “In her meandering speech to what appears to be an all-black audience, this federally appointed executive bureaucrat lays out in stark detail, that her federal duties are managed through the prism of race and class distinctions.”

    Demonstrably false. That is not laid out in the speech at all. And nothing said in an email is at all relevant to that.

    “Sherrod’s racist tale”

    Also demonstrably false based on the video. And nothing she ever said behind closed doors will ever make the “tale” she told racist.

  128. 128
    eric says:

    @eemom: I fail to see why you are so abusive.

    To you and Leo: the issue is not what you think should be the case, but what a judge thinks should be the case. And, I would never bet on narrow discovery. The safest course to avoid reversal is to allow the discovery because it does not create reversable error to allow too much. The opposite is not true.

    Look, she could win, but it is not a slam dunk. he gets to do discovery and remember my point: the court case would be ancillary to implicating the Obama administration and tarring her on Fox and on Rush and in Drudge.

    Her actual damages are going to be very small because she was offered her job back right away.

  129. 129
    eric says:

    @Leo: “…her federal duties are managed through the prism of race and class distinctions…”

    if that statement is true, then he can argue that he did not defame her because even if his reporting was in error as to this instance, the defamatory portion (she is a racist) is in fact true. if she acted based on racial animus in other instances then she is not harmed by the allegations of racism here.

    he can say that he had heard around town that she had racist proclivities and that was why he reached the conclusion he reached in this one instance when he describe the tape. Would he name names? Likely not. But he has no shame.

  130. 130
    Leo says:

    Rush, Drudge, etc. will be tarring the administration anyway.

  131. 131
    Hob says:

    @eric: OK, let’s say you’re totally right about the judge granting very broad discovery. What does that actually mean? Would Breitbart have to at least have some plausible request for something in particular? Shirley Surely he couldn’t just say “I want to see all her emails to everyone from the last 10 years in case she said something racist.”

    Though I’m still boggling at the idea that if you publicly accuse someone of a specific action that not only did not occur, but could not possibly have occurred as claimed (i.e. Breitbart claimed she was being discriminatory as a federal employee – she wasn’t one), and if it had occurred would have been legally actionable… you can then defend yourself by saying that this person may have been, in some broadly related sense, not a nice person. I see you still haven’t addressed my Glenn Beck example, but it seems you’re saying that indeed I could go on a fishing expedition for any past statements of Beck-tush-appreciation in that case… no?

  132. 132
    Leo says:

    eric:

    Your quote is out of context, and I think you know it:

    “In her meandering speech to what appears to be an all-black audience, this federally appointed executive bureaucrat lays out in stark detail, that her federal duties are managed through the prism of race and class distinctions.”

    He said that was “la[id] out” “[i]n her . . . speech.”

    It was not laid out in her speech and nothing you have asked for could change that. It is an obvious attempt at harassment.

  133. 133
    Leo says:

    eric’s motion to compel discovery, like Brietbart’s original statement that Sherrod’s speech was “rasist,” is based on deceptive editing. By ignoring context, he hopes to get discovery and smear her. But as, Breitbart himself said “Context is everything.”

    (Just for fun. It’s been a long week.)

  134. 134
    Leo says:

    eric: The defamatory comment is NOT “she is a racist.” The defamatory comment is that this particular speech is racist.

  135. 135

    @Leo: eric’s motion to compel discovery, like Brietbart’s original statement that Sherrod’s speech was “rasist,” is based on deceptive editing LA Law reruns.

    FifY

  136. 136
    Mark S. says:

    Discovery is a two way street. I’d bet Breitbart’s got some interesting emails, surely more interesting than Sherrod’s.

  137. 137
    Leo says:

    @Mark S.: And more relevant, since they speak to what he knew and when he knew it regarding the entire NAACP speech.

  138. 138
    eemom says:

    Anyone remember the final scene of “Cape Fear,” when DeNiro lectures Nick Nolte about a lawyer’s duty to defend his client zealously within the bounds of the law?

    Same thing goes for lawyers who represent plaintiffs who have been injured by right wing “wurlitzers.”

    On that note I shall just thank God that “eric” is not my lawyer, and call it a night.

  139. 139
    eric says:

    @Leo: @Hob: Shirley Surely he couldn’t just say “I want to see all her emails to everyone from the last 10 years in case she said something racist.”

    That is exactly what he would try and do. I am not telling you he gets it, but he will certainly try and you can bet he will have “little helpers” going through the community looking for stories to tell. He will fight this outside the courtroom as much as inside.

    I had a case not unlike this. I cant post a link to it for obvious reasons or even describe it here. If you want to leave an email address, I will email you and describe it more fully.

    In all of this there are risks that she lose control of the process. there is nothing certain for either party. Once you sue, however, things can have lives of their own.

  140. 140
    Leo says:

    @eemom: I think you’re being somewhat unfair. A good lawyer tells his or her client the truth about his or her options, and if litigation is going to be difficult that needs to be part of the calculation. And any significant litigation is difficult. I think eric is being a bit too bleak about a lawsuit, but I don’t entirely disagree with him.

  141. 141
    Mark S. says:

    @Leo:

    I think eric is being a bit too bleak about a lawsuit, but I don’t entirely disagree with him.

    I agree. As for eemom going ballistic, it’s probably be because it’s a day ending in y. For fun, just bring up Glenn Greenwald.

  142. 142
    Leo says:

    g e o r g e h e n k r i k at yahoo dot com

    I’d love to see the case.

  143. 143
    Phoebe says:

    @lamh32: Oof! That was painful. Oh Tweety. “I’m right you’re wrong!” Dean and Walsh were the models of restraint here.

  144. 144
    eric says:

    @Leo: thanks. it is not so much that I am bleak on the lawsuit. I just think that most people underestimate what litigation does to them psychologically. it is always with you day and night. if he gets broad discovery rights it can get ugly.

    Plus, she will have to read about herself in the American Spectator and at right wing blogs. most of us dont like it when people here take shots at us and we are mostly anonymous. she will have to endure something the likes of which most of us cannot imagine. She is dealing with the political equivalent of ‘we have to burn the village to save it.” that is my point. the merits of the case are actually secondary. Her damages if she wins will be paid out of the proceeds of his new book: “How Liberals Used the Courts to Defend Racism” or some such nonsense.

  145. 145
    Steve says:

    I think some folks might be overestimating the extent to which someone who has endured what Shirley Sherrod has seen in her life is going to be traumatized by a little civil discovery.

  146. 146
    josefina says:

    @eric:

    I had a case not unlike this. I cant post a link to it for obvious reasons or even describe it here. If you want to leave an email address, I will email you and describe it more fully.

    That’s a generous offer, eric esq. Problem is, you haven’t provided any way to “leave an email address” other than posting it here in the thread.

    In all of this there are risks that she lose control of the process. there is nothing certain for either party. Once you sue, however, things can have lives of their own.

    Once you enter the water, however, things can become buoyant.

    Yep, that’s true. Thanks ever so much for pointing that out.

    Do you have anything useful to say, eric esq.?

    ETA: Apparently not. Google “Taylor Branch trilogy.” Buy the books listed. Read them. Until you’re done, shut the fuck up.

  147. 147
    Stillwater says:

    @eemom: Most people ….don’t want to be represented by little p*ssy ass lawyers like you who dictate which battles are or are not worth fighting—and run cowering for cover when they’re afraid they’re going to be outgunned by the opposition.

    Poor soul, the strain was more than she could bear. You are no lawyer, Eemom. You’re no lawyer at all!!

  148. 148
    eric says:

    @josefina: I fail to see why my posts engender such animosity. I fail to see the relevance of what you posted to anything I wrote above.

    whatever.

  149. 149
    Stillwater says:

    @eric: I fail to see why my posts engender such animosity.

    Since it’s only you and me left Eric (although sometimes Eemom lurks after she signs off in a form of virtual entrapment – you there Eemy?) I thought what you said was compelling. Now, IANAL, but I have watched alot of lawyerly shows (as well as early seasons of Psych), and I think you exposed the pragmatics that undercuts the principle of trying and winning cases on the merits. Most of the whining sounded like a cascading collapse of faith that the purpose of trial law is to ensure that justice prevails at whatever cost, rather than picking battles you believe can be won and are worth the cost.

  150. 150
    bemused says:

    @kay:
    They insult everyone’s intelligence except for robot republicans. Most media, of course, adores this kind of controversy no matter how bogus.

  151. 151
    burnspbesq says:

    @eric:

    And one of us has settled a $300 million IRS proposed deficiency for $6.8 million, and it wasn’t you. So fucking what?

    You’re entitled to your opinion, but this is a room full of smart, experienced lawyers, some of whom are in senior positions at AmLaw 100 firms. If you want to be taken seriously, earn it by showing that you really know what you’re talking about. If you really know the law on what it means to be a public figure, why aren’t you citing cases with facts that are indistinguishable from the facts of Sherrod v. Breitbart?

    Charlatan.

  152. 152
    burnspbesq says:

    @eric:

    Twenty years ago, your point would have been well taken, but as far as I can tell the days of death by discovery are gone. Breitbart would likely get to propound one set of interrogatories and take no more than 10 depositions.

    And emails? Not likely to be a factor. Ms. Sherrod is apparently pretty smart – certainly smart enough to keep any unacceptable views to herself. Plus, there was no reason for Ag to anticipate a need to preserve emails until approximately now. Anything juicy is likely to be gone, simply by the normal operation of Ag’s document retention policy.

  153. 153
    aimai says:

    @eric:

    I couldn’t agree more with Eric’s point. And I wish commenters like eemom would stop emoting the fuck all over the place instead of reading carefully. In a perfect world I want Sherrod to sue Breitbart and win a massive, crippling, monetary settlement. But this is not a perfect world. Not only is she (probably) a public figure within the meaning of the word *for winning the Pigford settlement* but the entire litigation process is probably not going to make her look very good. And that’s all that breitbart cares about. There will be very deep pockets to defend him, and its very unusual for cases like this to pay off enough fast enough to “repair” the damage rather than to do other damage to the plaintiff. Eric’s points were perfectly clear and reasonable. Stop giving the guy shit for simply making the obvious point.

    aimai

  154. 154
    El Cid says:

    @burnspbesq: You think you could settle a regular IRS income tax from a few thousand dollars down to a couple dozen? For just a few dollars? Just, you know, hypothetically speaking.

    That would be awesome.

  155. 155
    Michael says:

    Count me in with Eric as well.

    The terms “court” and “justice” are no longer synonymous, there having been about 30 years of ratfucking from the Federalist Society and Heritage Foundation on judicial culture. They’re all terrified of being decried as liberal.

    I say that as a 20 year + practitioner. I wish I didn’t have to say that – my career would be a lot more enjoyable.

  156. 156
    crack says:

    Read Errol Morris on the Dunning-Krueger effect.

    People who are bad at something are frequently unable to realize they are bad at it. Think American Idol train wrecks.

  157. 157
    eemom says:

    My point was that this is a battle worth fighting for more reasons than Ms. Sherrod’s personal interests, and I’m sure she knows that.

    People with guts, of which I suspect she is one, don’t shrink from doing the right thing just because it’s difficult and may involve personal sacrifice, or because bad people will try to do bad shit to them.

    And real lawyers Do. Not. presume to make those decisions for their clients.

  158. 158
    BC says:

    @eric: She was NOT a public figure when it happened, it was because of the incident that she became a public figure. I’m tired of your shit on this, whether you are a lawyer or not.

  159. 159
    daveNYC says:

    @jwb: McArdle wants her calculator back.

    Personally I feel that I know exactly what our troops coming back from Iraq and Afghanistan with traumatic brain injuries are going through, because one time I had a really bad hangover. Also too, hangnails.

    I’m not sure which would be worse, that he’s saying this stuff just to dial up the hate, or that he actually believes that watching the Thomas hearings is in any way comparable to having murdered and the society she lived in, not really considering it a bad thing.

  160. 160
    Stillwater says:

    @daveNYC: Personally I feel that I know exactly what our troops coming back from Iraq and Afghanistan with traumatic brain injuries are going through, because one time I had a really bad hangover.

    This is an excellent point. One time at the check out line the cashier asked about my ethnic origins based exclusively on my name. I felt dehumanized. This type of racially motivated segregation opened my eyes and heart to the suffering African Americans experienced during the slavery era, and the struggles they have gone through since. I honestly felt like I was being ‘lynched’ by the cashier, even though she was a friendly-looking blue-eyed teenager.

    Another time I stubbed my toe on a pointy rock, and I suddenly realized the difficulties surrounding limb amputation and wheel-chair confinement.

  161. 161
    DickSpudCouchPotatoDetective says:

    1.) Crazy people honestly have no idea how insane they sound, do they?

    We’re sitting here on a blog that has seen assertions such as:

    — discrimination against gays is just as bad as discrimination against blacks used to be

    — along the same line, discrimination against women is just as bad as discrimination against blacks used to be

    …. and people will sit here and discuss these absurd ideas without much pushback. Some do pushback, but by and large, it’s a safe place to advance these absurd ideas without getting your block knocked off.

    So, in the view of some, all discrimination is equal. They can’t distinguish between the horror of a Holocaust, the ignominy of American slavery and its results such as lynchings and terrorizing of black populations, and an ordinary racial slight in the checkout line at the grocery store. And then you have their counterparts, who don’t see any of these things as especially egregious, or even bad. The Lester Maddox(c) view, that people have a right to run off the people they don’t like, under cover of things like property rights or moral beliefs.

    Some people even think that the idea of an NAACP is absurd, or that the NAACP must apply its standards in a perfect and totally evenhanded way or else its entire body of work is discredited.

    Whatever nutty damn idea you can imagine, it’s out there in force. One person’s crazy is another person’s righteousness. If you read the first two sentences of Lincoln’s Gettysburg Address, you kind of get the idea of the size of the problem we are looking at. We are still trying to answer the question Lincoln posed. The verdict is not in yet.

  162. 162
    waldenpond says:

    Eric, you insist that Breitbart will prove Sherrod is racist but Breitbart’s defense is that he was showing the tolerance of racism by the NAACP. Breitbart insists this had nothing to do with Sherrod.

    Breitbart’s also going to have to show she’s a public figure. I doubt there are many articles mentioning her nor any blog write-ups. It should be to her benefit that Breitbart didn’t consider her a public figure by the lack of writings by him or fellow conservatives.

  163. 163
    Patriotic Liberal says:

    do either of you know if it would make a difference whether or not Breitbart was actually a reporter?

    No difference whatsoever.

    She will “lose” a protracted lawsuit when he has Rush and Beck shilling for him and against her and Obama.

    None of that will have any impact on the court case.

    I am not optimistic that she can win the battle of the pubic airwaves.

    Court is different from the public airwaves.

    Not only is she (probably) a public figure within the meaning of the word for winning the Pigford settlement but the entire litigation process is probably not going to make her look very good.

    The “public figure” issue is irrelevant, because his defamation easily meets the Times v Sullivan standard for defamation against a public figure. As for “looking good,” if that’s why she has threatened a lawsuit, then she’s doing the wrong thing. Lawsuits aren’t about “looking good,” they are about winning damages.

    She might win $250k at best, but she will not have a decent night sleep for 12 to 18 months and these are people trying to DESTROY her and Obama. This is not about her racial opinions …it never was and never will be. It is about telling a narrative of racial tension and resentment and that is exactly what a lawsuit would foster.

    So, litigation won’t be easy. We get it. But eric, you’ve betrayed your wingnut sympathies by claiming that her lawsuit would foster racial tension and resentment. The truth is exactly the opposite. Go back to American Spectator where you belong.

  164. 164
    grandpajohn says:

    Well first of all, Eric is the one who started the bullshit ad hominem crap

    @HumboldtBlue: fuck you asshole. I am telling you that her reward is not so easy to come by, not that she wasnt wronged.

    Nice language for a responsible lawyer isn’t it. so why the hell are you people giving others crap for responding in the same manner?
    Secondly , Erics reasoning sounds like what one would expect from some ambulance chaser not a respected lawyer. Its all about the money or time involved, maybe it doesnt matter to him , but to some people defense of their integrity , honor, and character is a battle worth fighting,no matter the cost. Like Iago’s statement in “Othello”about purses and good names

  165. 165
    grandpajohn says:

    For those who don’t recall Iago’s statement

    Who steals my purse steals trash; ’t is something, nothing;
    ’T was mine, ’t is his, and hath been slave to thousands:
    But he that filches from me my good name
    Robs me of that WHICH NOT ENRICHES HIM,
    BUT MAKES ME POOR INDEED.”

  166. 166
    Patriotic Liberal says:

    Well first of all, Eric is the one who started the bullshit ad hominem crap

    “eric” has been a talented wingnut provocateur throughout.

  167. 167
    Hob says:

    @grandpajohn: Good grief man, did you not read HumboldtBlue’s comment that Eric was responding to? I don’t think I’d take very kindly to being called a “blog commenting shithouse lawyer”. Whatever you think of Eric’s legal opinions, I think a few people need to dial it way back here.

  168. 168
    Patriotic Liberal says:

    I don’t think I’d take very kindly to being called a “blog commenting shithouse lawyer”

    I think it was a pungent, piquant little insult, with overtones of spice and apricot.

  169. 169

    40 years ago Republicans had a case that the media treated them with contempt. Liberals laughed at Nixon’s “enemies list” and sure it was both stupid (and inaccurate) but reporters in that day had spent their working lives assuming that Democrats always won, that the New Deal was still relevant, and Republicans caused the Depression. (Many also countenanced Hitler until Pearl Harbor.) It drove Nixon, and those around him, crazy. But he learned — the best defense is a good offense.

    Shoe is on other foot now. So-called “lame-stream media” reporters have lived their entire working lives in an environment where Republicans win in the end. Where liberals are dismissed. It worked for both Bushes.

    Rules don’t change overnight. You won an off-year election. You won a Presidential election. But that does not mean you get a pony. It doesn’t mean things go your way. It doesn’t mean the political winds aren’t still blowing in your face.

    Rather than kvetching about it, my advice to liberals is grow a pair. Attack the other side, harder. Don’t back off an inch. Learn from Nixon, but don’t be Nixon. If you do you’ll become Reagan to your children.

    Your patience will be rewarded, but in the near term you will need patience. Obama is the New Nixon, in a good way.

  170. 170
    eemom says:

    @Patriotic Liberal:

    tee hee. Yes indeed. All ad hominem is not created equal.

    On another note, the subject of this post — Breitbart’s expressed desire to meet with Sherrod — to me screams damage control. He doesn’t want to be sued, ladies and gentlemen. He he has something to be afraid of, and he knows it. His lawyers have told him that Sherrod has a solid case.

    It’s a solid case, and a simple one, notwithstanding “eric” esq’s obfuscations above. The defamatory statement, made by showing the edited video, was that she misused her public office to deny help to white people. Simple assertion, clearly a lie, that got her fired from her job. And it was absolutely made with reckless disregard for the truth — which is kind of spectacularly easy to prove considering that the rest of the same damn video shows it’s a lie — so the whole public figure issue doesn’t matter worth a squat.

    Punitive damages, also too. And a DC jury.

    J.H.C on a skateboard. I think y’all are right that “eric” is a rightwing plant.

  171. 171
    Patriotic Liberal says:

    On another note, the subject of this post—Breitbart’s expressed desire to meet with Sherrod—to me screams damage control. He doesn’t want to be sued, ladies and gentlemen. He he has something to be afraid of, and he knows it. His lawyers have told him that Sherrod has a solid case.

    Breitbart probably thinks he can just talk some sense into that misguided colored woman. Or maybe he plans to threaten her. In any case, Sherrod would be foolish to meet with him. From now on, she should let her lawyers do the talking. She has a great case, and I very much hope she will seriously pursue it. To that end, the only thing public statements, or a private meeting with the wingnut punk, can do is hurt it.

  172. 172

    @eric:

    Why is eemom so abusive? Well it’s because you’re a lying piece of shit. You’re no more of a lawyer than I am, you’re a pathetic sack of shit who’s just making shit up. On the internet no-one knows you’re a dog and on the internet no one knows that you’re not a lawyer, you’re just some lying wankstain who lives in his mom’s basement and learned everything he knows about the law from watching Boston Legal.

    Hell, not only are you completely and totally full of shit about Sherrod being a public figure you’re also completely and totally full of shit about what the defense in any hypothetical lawsuit would be able to ask for in discovery. Take your example of subpoenaing all of Sherrod’s e-mails. You’re trying to sound smart, but as someone who worked in IT and was the backup and storage administrator at a company that had to undergo e-discovery I can tell you that it’s nonsense.

    Why? Well because most companies don’t keep years of e-mail backups or years of backups of anything else unless they’re specifically required to by law. Why? Because it’s incredibly expensive and inconvenient to do so. This isn’t just a matter of taking that old CD you have from ten years ago, putting it in a disk drive and recovering those pictures of your high school graduation. Maintaining backups that are properly cataloged so they can be searched and so that data can be restored at short notice is expensive. And the longer you maintain those backups the more expensive it gets, because as new backup technologies are introduced and replace older ones, Exabyte and 4mm replacing 9 track tape. DLT replacing Exabyte and 4mm. LTO replacing DLT and being improved with LTO 2, 3 and 4, you have the choice of either maintaining the old backups on the old storage media, or of converting them to the new storage media.

    Generally the easiest way to do this is to just maintain the old backup system, storage media and all and replace it with a new one. I know people who work for companies that have indefinite retention policies and they hate it, because you end up spending a lot of time and money maintaining a system that you may never use. So you work with your legal department to craft a document retention strategy, publish that strategy and adhere to it. And if you’re sued the plaintiffs aren’t allowed to ask for anything they like in discovery, what they can ask for and what you’re required to provide are tightly circumscribed. If you have a published corporate policy that says you only keep two months of e-mail backups and are sued by someone asking for e-mails from three months back you can point at the policy and tell them to suck it and absent any legal requirement that you maintain more than two months of e-mail backups there’s not a damned thing they can do about it. And it’s not as if they can just ask for a copy of your backups and go through it as they wish either. You seem to think that discovery is some sort of policy where the parties in a lawsuit are allowed to ask for anything they like. Sure, you can try, but what you’re allowed to ask for is constrained by case law, the judge in the case and if you’ve got good lawyers by your legal team.

    Now, there are some obvious restrictions on this. You can’t put that policy in place the day that you’re sued. But if it’s in place, documented and published you’re legally armored. You’re as full of shit about the law as Nick is about the media. Both of you remind me of the that asswipe Stuart Koehl over at Powerline who insisted that a story from Iraq about a Bradley driver running over a dog wasn’t true and proved it by playing with matchbox toys in a sandbox.

    I have to wonder what kind of pathetic, lifeless little bastard you really are? Do you go over to medical forums and pretend to be a doctor and dispense medical advice? Hang around on military forums talking about all of the missions you went on? I wouldn’t put it past you, or Nick for that matter.

  173. 173
    Patriotic Liberal says:

    completely and totally full of shit about Sherrod being a public figure

    Au contraire. Sherrod is almost exactly the sort of public official envisioned in the famous Times v Sullivan case that set a high bar for collecting libel damages for publishing lies about such people.

    Where eric, our wingnut provocateur, went wrong is in suggesting that a high bar is an absolute barrier. It is not. To quote fromt the decision: “A State cannot under the First and Fourteenth Amendments award damages to a public official for defamatory falsehood relating to his official conduct unless he proves ‘actual malice’ – that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.”

    I think Breitbart published the doctored video knowing that the impression it created was false, and certainly with reckless disregard of whether it was true or false. I would much, much rather be Sherrod in this case than to be Breitbart.

  174. 174
    Stillwater says:

    What Wile E Coyote said.

    What I heard: “You fuckinglittlenbastard, I’mgonnatear your nutsoff, you don’t even understand ….. well, see, it workslikethis ….. first there’s discovery rules …. then there’s corporate policy ….. it’s kinda complicated here…. and really quite interesting ……. and another thing to consider is …. great care has to be exercised at this point ….. but you don’t evenseemtounderstand, you littlecocksuckingfuckingretrogradepieceofshitmonster.”

    Something’s happening here, what it is…….

  175. 175
    Stillwater says:

    @Patriotic Liberal: I would much, much rather be Sherrod in this case than to be Breitbart.

    On the merits. There are other considerations at play, no?

    I think Breitbart published the doctored video knowing that the impression it created was false, and certainly with reckless disregard of whether it was true or false.

    Hell, I believe this too. But to quote one of my all-time top five lawyers, Tom Cruise in A Few Good Men: ‘it doesn’t matter what I believe, it only matters what I can prove.’ The words ‘knowing’ and ‘certainly’ (as you used them above) are hard to establish when you amend then with ‘beyond a reasonable doubt’ (or whatever you lawyers say at that point). Especially given that the assertion of ‘reckless disregard for the truth’ will be challenged by some of the brightest, most expensive and best dressed attorneys in the country. But, really, wtfdik.

  176. 176
    eemom says:

    @Stillwater:

    yeah, it’s kind of like that Far Side where the lady is talking to her dog, and the dog — being a simple-minded sort of creature — only hears its own name.

  177. 177
    Patriotic Liberal says:

    @stillwater, res ipsa loquitur: BreitBRAT’s material speaks for itself. It is manifestly untrue to a degree that motivation will be inferred, which is something that the law quite explicitly provides for. A jury is going to make very short work of this punk and his creation. People who think the law is complicated are frequently stunned by how devastatingly simple it can be.

    The only way Sherrod loses this one is if she loses her nerve and doesn’t actually file the suit, or if she loses her self-control and starts blabbing to the media now, or to BreitBRAT himself in private. She should stay calm and silent, and let her lawyers do the talking from now on.

  178. 178
    eemom says:

    @Patriotic Liberal:

    and I’m sure that she is smart enough to do just that.

    I only hope she goes to trial and doesn’t take a settlement. Because this needs to be done publicly. As I said above, I suspect she might agree.

  179. 179
    MFA says:

    “Crazy people honestly have no idea how insane they sound, do they?”

    Yes we don’t; or no, we do. Sometimes it’s both. Others neither. But we always vote for the conservative.

  180. 180
    Mark S. says:

    I was doing some googling last night on public figures and the law seems pretty damn murky to me. I was certainly surprised that a high school wrestling coach could be considered a public figure.

  181. 181
    BobS says:

    All of my legal education comes from watching Law and Order, so pardon me if my question reflects my ignorance, but could Breitbart’s role in the ACORN hoax be explored in the discovery process, and then be subsequently used in a trial to prove a pattern of acting deceptively to damage reputations?

  182. 182
    Patriotic Liberal says:

    I only hope she goes to trial and doesn’t take a settlement. Because this needs to be done publicly. As I said above, I suspect she might agree.

    It’s absolutely her call. I suppose I hope she takes it all the way to trial, too. But if she settles out of court, I’m not going to blame her, nor will I blame her if she decides to drop it now. She is the one who was harmed, and she gets to decide what to do about it.

    I was doing some googling last night on public figures and the law seems pretty damn murky to me. I was certainly surprised that a high school wrestling coach could be considered a public figure.

    There is nothing murky with respect to Sherrod. Go read New York Times v Sullivan, the case that established the distinction you’ve mentioned, and you’ll have no doubt that she is a public official envisioned when the Supreme Court defined “actual malice.”

    The error is on the part of people who seem to think that public officials and/or public figures can never win libel judgments. That’s just not true. It’s harder for them to do it, but if someone intentionally lies about a public official or figure, or if they show reckless indifference to the truth about a public official or figure, the target can definitely collect libel damages. This reality is directly affirmed in New York Times v Sullivan, but people who refer to the case don’t seem to have bothered to actually go read it.

    could Breitbart’s role in the ACORN hoax be explored in the discovery process, and then be subsequently used in a trial to prove a pattern of acting deceptively to damage reputations?

    You’re damn right it could. The wingnuts who are braying on BreitBRAT’s behalf seem to forget about that one. If Sherrod follows through, this is the case where all of the little twerps chickens could come home too roost. Revenge could be served ice cold, if Sherrod so chooses.

  183. 183
    Stillwater says:

    @eemom: Exactly. (Hope that link works, it was miles long.)

    @Patriotic Liberal: Well, if she chooses to proceed, I hope you’re right about this. I agree with Eric on at least the simple point that this will get very ugly very quickly. She’s not just challenging the limits of expression here, but some tribal conception of ‘white privilege’ (or whatever the f its called) as well. And re: Sherrod talking too much or inappropriately, my understanding is that she’s a seasoned veteran at navigating political minefields. She is, apparently, no dummy on this score.

  184. 184
  185. 185
    Patriotic Liberal says:

    Oops. Meant to write: “… this is the case where all of the little twerp’s chickens could come home to roost.”

  186. 186
    Patriotic Liberal says:

    I agree with Eric on at least the simple point that this will get very ugly very quickly. She’s not just challenging the limits of expression here, but some tribal conception of ‘white privilege’ (or whatever the f its called) as well.

    It already has gotten ugly, and BreitBRAT is the one who made it so. If she sues him, she won’t be challenging the limits of anything, nor will it have anything to do with any “tribal conception.” So you can cut it out with the African drums, etc. It will be a straightforward libel case against a reckless wingnut who’s had it coming for a long time. The wingnut media and their sympathizers will say all kinds of things, but none of it will matter in court, where this will be a clean, simple, and expensive (for BreitBRAT) defamation case.

  187. 187
    Stillwater says:

    @Patriotic Liberal: You don’t think the racial aspect of this is gonna play a role in determining the outcome? I must have misread what you wrote, because you can’t possible believe that Brietbart’s motive in releasing the edited tape – his admitted, expressed motive – won’t be addressed.

    ETA: In fact, I wouldn’t be surprised if that expressed intention is the center-piece of his defense.

  188. 188
    BobS says:

    @Patriotic Liberal: Thanks for the answer.
    Ms. Sherrod seems like someone that would welcome an opportunity to bloody Breitbart’s nose in court, regardless of any monetary damages.

  189. 189
    eemom says:

    It’s absolutely her call. I suppose I hope she takes it all the way to trial, too. But if she settles out of court, I’m not going to blame her, nor will I blame her if she decides to drop it now. She is the one who was harmed, and she gets to decide what to do about it.

    of course. I’m just personally rooting for a nice, big, high profile, extensively covered, maybe even televised, trial in which the world gets to watch Breitbart squirm on the witness stand like the miserable little chickenshit he is. A girl can dream.

  190. 190
    Patriotic Liberal says:

    You don’t think the racial aspect of this is gonna play a role in determining the outcome? I must have misread what you wrote, because you can’t possible believe that Brietbart’s motive in releasing the edited tape – his admitted, expressed motive – won’t be addressed.

    It will still be a libel case, and a pretty damn simple one at that. Really, the only role for race is to establish that a charge of racism is defamatory in today’s society. That ought to be short work. Sure, BreitBRAT’s attorneys will try to make a big deal out of it, and so will his wingnut chorus on Fox News and elsewhere. But none of that will matter in court, and it’s in court where Sherrod is going to win a pile of money, as long as she plays her cards right.

    I really think that the only person who can keep Sherrod from winning that case is Sherrod herself. If I were her lawyer, that’s I’d be telling her to take a couple weeks to clear her head, and to change her phone number. The worst thing she can do is engage BreitBRAT, either directly or indirectly through the media. Fox, in particular, will be baiting the shit out of her, but so will MSNBC and others. She has to clam up now.

    I’m just personally rooting for a nice, big, high profile, extensively covered, maybe even televised, trial in which the world gets to watch Breitbart squirm on the witness stand like the miserable little chickenshit he is. A girl can dream

    Fair enough, but people and lawyers dream different dreams. My dream is for Sherrod to win a big, fat judgment against BreitBRAT. Judgments are not dischargeable in bankruptcy, so it would hang over his wingnut head for eternity. Slavery cuts both ways.

  191. 191
    Patriotic Liberal says:

    Think of the Goldmans and O.J. Simpson. In that case, they were able to hound Simpson throughout the country. But Simpson did have some judgment-proof assets. BreitBRAT shows no sign of actually having achieved anything, so if Sherrod wins a big judgment, then the poor lad will be looking over his wingnut shoulder forever, unable to have so much as a checking account without it being vulnerable to garnishment.

    Think Sisyphus. Beats a public show any day of the week, no?

  192. 192
    Patriotic Liberal says:

    Another thought before I go out on today’s errands. Courts don’t play the same ping-pong game you see in the comment-o-sphere. It’s not about who scores talking points in the abstract, like it is on Fox or MSNBC or the blogs. In court, everything happens in relation to the case law and established legal procedure, both of which heavily discourage the sort of hijinks that happen outside of the courts.

    BreitBRAT and his republishers have committed as plain an offense of prima facie libel, meeting the strictest possible standard that applies to public officials, that I’ve seen in a very long time. The perpetrators and their allies can (and probably will) huff and puff like mad, but it will not be Sherrod’s house that’ll be blown down. Ms. Sherrod, if you’re reading this, keep your eyes on the prize. It’s going to be a big one.

  193. 193
    grandpajohn says:

    Courts don’t play the same ping-pong game you see in the comment-o-sphere. It’s not about who scores talking points in the abstract, like it is on Fox or MSNBC or the blogs. In court, everything happens in relation to the law and establish procedure, both of which heavily regulate the hijinks that happen outside of the courts

    This
    and that means that makes Erics argument as to why she should not sue irrelevant. Verbal attacks and right wing character assassination will have no effect on the result.

  194. 194
    Patriotic Liberal says:

    This and that means that makes Erics argument as to why she should not sue irrelevant. Verbal attacks and right wing character assassination will have no effect on the result.

    His “argument” consisted of dire warnings about the probability of further attacks from eric’s wingnut friends, and probably some handwringing from various “liberal” “experts” about the “chilling effect” of a libel suit against a website. All of that is true enough, so far as it goes, so it’s something she will have to consider. My response would be that the wingnuts will attack her no matter what — they’ve already done it, in fact. They will keep on trashing her no matter what, so I’m not sure that it’s much of a warning anyway.

    What counts from here on out is winning the case, which I think will be a lot easier than eric and the wingnutosphere, and the handwringers of the media (including the New York Times, whose own tribal loyalties will likely lead them to soon fret about the “danger” of pursuing a website) will seek to imply. All of that will amount to nothing; there have already been successful libel prosecutions against websites, so the idea that a website is immune from libel law is a steaming pile of b.s. from here to Jupiter.

    Sherrod needs to know that she has a tankerload of sympathy out here among people who will support her all the way, whatever she does. There’s no need for her to fight it out in the media. We are on her side, and will continue to be on her side all the way through.

  195. 195
    Patriotic Liberal says:

    p.s.: You can be certain that the wingnut attacks will include the bogus assertion that liberals are all in favor of free speech until one of their own is attacked. That will be bogus, because this isn’t about free speech. It’s about libel. BreitBRAT is free to publish whatever he wants, but if he commits libel he has to answer for it in court, same as anyone else. You know, that “rule of law” thingie? It’s a bitch.

  196. 196
    Patriotic Liberal says:

    Some practical advice for Sherrod: Actual damages include lost income and whatever is spent by you or anyone else to mitigate the harm. Punitive damages are generally capped at 10 times actual damages. So:

    1. Take the longest possible leave you can afford to take from the government job, citing the stress from the incident. Even if it’s paid leave, the cost to the government will be included in an actual damages figure, even if you don’t have to repay the government.

    2. Do you need to see a therapist about this? I suspect that there are some liberal therapists, eminently qualified, in New York, who will be happy to charge you top dollar but on credit, or maybe even donate their services while keeping track of the value. Their bills, regardless of who pays them, or even if they contribute their time pro bono, will go into the actual damages calculation. So will the cost of your travel to New York, including your time to get there and back.

    3. Do you have any pre-existing conditions that might be aggravated by the stress? See your doctors, and find out. Any bills, and costs of any treatments aggravated by the stress, will be included in actual damages, even if those bills are covered by your insurance.

    4. Are you feeling physically insecure because of the threats from the wingnutosphere? Hire a security service, or arrange for government protection. Regardless of who pays that bill, those costs are included in actual damages.

    The longer BreitBRAT drags this on, or perhaps the more time you need to take to obtain thorough court review, could cause actual damages to pile up, with a potential multiplier of 10 on the punitive side. Oh, and seeing as how he did it on the Internet, the choice of venues is yours. Alabama juries are famous for their love of plaintiffs, and Mississippi law provides punitive damages for libel. As luck would have it, there are some predominantly black counties in those places. Wouldn’t it be interesting to watch BreitBRAT argue that he couldn’t get a fair trial in a predominantly black county?

    Good luck, Ms. Sherrod!

  197. 197
    Darkrose says:

    @eric:

    I just think that most people underestimate what litigation does to them psychologically. it is always with you day and night. if he gets broad discovery rights it can get ugly.

    And this is my problem with your argument. I don’t know enough about libel law to say whether you’re right or wrong on your predictions of how this will go. What I do know is women like Shirley Sherrod, black women from the South who’ve dealt with real, scary shit, not WATB’s like Breitbart, women like my mother, my grandmother, and my cousins. This is a woman who’s had relatives–including her father–murdered, and justice denied. She’s personally been involved in at least one major court case. I guarantee you that she’s well aware of exactly how ugly it can get, and she’s going ahead because she thinks it’s worth it. Assuming that she doesn’t know how bad it can be comes across as incredibly patronizing.

  198. 198
    thoughtful says:

    What happened was very unfortunate.

    It’s way to easy to get fired / laid off in the US. That’s why many European countries send jobs over here. In many countries around the world, it’s much, much more difficult to fire someone. That’s one part of the problem and the pro-business people, obviously, and you’ll hear this on Fox News, want to do away with things like the minimum wage because it creates more jobs, and so on. It should be more difficult to fire people here in the US. It would stop much of the vitriol too. You can no longer “get at” someone for what they said (criticizing Bush, for instance, would not have any consequences).

    There’s some countries where it’s very difficult to even lay people off, and there can be fines involved for doing so. We fire people too easily and lay off people too easily in the states.

    That’s point number one.

    That being said, I don’t think she has a case. What happened was unfortunate, yes, and Breitbart obviously fixates on conspiracy-like concepts (watch some interviews with him on YouTube).

    She can’t win against him, because he won’t cave. Period. She doesn’t have a case.

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