I listened to your podcast as usual yesterday, and thought I'd take a minute to clear up the confusion over the question of whether or not Ms. Sherrod could sue Breitbart for defamation. ("Libel" is written defamation, "Slander" is oral defamation, incidentally; but the legal standard for both is the same.)

The prevailing legal standard was set in the landmark case of New York Times v. Sullivan, which ruled in favor of the New York Times in a defamation action. The Court ruled that "public officials" (which Ms. Sherrod is) and "public figures" could not recover for defamation--even if the information published was false (which it would have to be, to be defamatory)--unless the information was published with "actual malice", which is a legal term of art which means "knowing or reckless disregard of the truth", in other words that the publisher either knew the material was false; or recklessly disregarded the possibility that it was. The case held that the 1st Amendment's interest in promoting free speech afforded considerable protection to publishers of information, particularly with regard to public officials or those whose actions or position made them of interest to the public; thus the strict standard for recovery.

In this case, the question would be whether or not Breitbart's actions meets that standard. In my opinion they well may; his editing was such that it promoted a portrayal of the events in a way that a reasonable person should have known was the exact opposite of what Ms. Sherrod actually said. It would be up to a jury to decide whether this editing was a knowing or reckless disregard of the truth. Looks pretty strong to me; if I were Breitbart I'd be looking for a good lawyer right now.

Hope that helps! Love the show, of course, although I do with you'd lose the "Full Monty"--one minute Thomas Jefferson, the next--Rupert Murdoch. Oy... :-) ~alamac


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