The violent storm that was the Shirley Sherrod story, which rolled through the blogosphere and mainstream media outlets the past couple of weeks, has already begun to dissipate. In its aftermath, however, commentators have started to ponder on what the media, political groups like the NAACP and Tea Partiers, the Obama administration, and the public at large can and should take from this — if not “teachable” — certainly revealing moment.
From the Internet’s perspective, the great thing about this story is that, like the BP oil spill, you can blame just about anyone and everyone you like! Obama administration? Cowed to the pressures of the right-wing media and 24-hour news cycle in its decision to demand Sherrod’s resignation before it had all the facts. NAACP? Reactionary denouncement of Sherrod even though it was likely in possession of the full, unedited clip of Sherrod’s speech, which was given at one of its conferences. Like several commentators, though, most of my dismay and outrage is directed at the media and its (mis)handling of the entire affair. Obviously, Fox News and Andrew Breitbart deserve the lion’s share of the blame for their decision to run the edited-beyond-recognition clip. But in this, the Daily Show era of meta-news-about-news reporting, those reporting about the principal players are also culpable for their collective failure to call out Fox and the right-wing blogosphere on their ever-increasing foray into bright — I’m talking neon — yellow journalism.
So to review, we’re angry at the executive branch, we’re angry at the civil rights organizations, we’re angry at the media, and we’re angry about the other media. But in case you hadn’t noticed, this is a law blog, and I am here to tell you: we should be angry at the law too.
Sherrod recently announced her intention to sue conservative blogger Breitbart, who first ran the edited video of her speech, setting off this whole controversy. And in a recent article, John W. Dean, former counsel to president Nixon and a respected legal columnist, explained why he believed that Ms. Sherrod would have a difficult time bringing either a defamation or false-light invasion of privacy claim against Fox News and/or Breitbart. But while I think Dean answered his question correctly — namely, could Sherrod successfully bring and collect on her claims — I find myself asking a slightly different question: should the law of defamation be expanded to allow Sherrod to recover on a defamation claim against Fox and Breitbart? Not only do I think the answer to my question is yes, but I think even Tea Partiers should agree. Here’s why.
Dean highlights two primary obstacles to Sherrod’s defamation claim: (1) the lack of a specific, false factual statement, made by either Breitbart or Fox News; and (2) the difficulty Sherrod would have in proving that Fox/Breitbart acted with “actual malice” in posting the hopelessly edited clip (actual malice being the additional element a “public figure” plaintiff is required to establish in bringing a defamation claim, which requires such a plaintiff to show the defendant acted with knowledge that the statement was false, or with reckless disregard as to whether it was true or false). I agree that “falsity” and “actual malice” will present the greatest hurdles to Sherrod’s defamation claim. But in light of the ever-expanding public role of bloggers as Internet “journalists,” as well as the prominence of cell phone and other homemade videos in contemporary reporting, I think the elements of falsity and the “reckless disregard” prong of actual malice need to be expanded to encompass Fox and Breitbart’s actions (or, in this case, lack thereof).
As to falsity, it is true that the typical defamation case involves a specific, false statement regarding the plaintiff’s actions or character (for example — obligatory Brangelina reference alert — Angelina Jolie and Brad Pitt recently received an undisclosed amount in connection with a defamation suit against a British tabloid which had falsely reported the couple met with attorneys to arrange custody for their six kids and divide assets in anticipation of an immanent break-up). But I don’t see any reason why, if all the other elements are met, it should not be similarly unlawful to publish a severely edited video or audio clip, such as the Breitbart Sherrod video, which unquestionably portrays a false characterization of its subject. The law of defamation is meant to protect a person’s interest in his or her reputation and good name. I don’t see how the Breitbart video — which presented the African-American Sherrod as bragging about her unwillingness to assist a white farmer despite his entitlement to assistance, when in reality her speech was about how she had helped the man save his farm — is any less of an invasion of that interest than the Brangelina tabloid story. Sherrod may have actually said the portions of the speech that were in the clip posted by Breitbart and ran by Fox News. But the way in which the clip was edited made it appear as if she had said and done the exact opposite of the totality her actual words and actions. And because Breitbart’s falsity was conveyed using a video of Sherrod herself, the harm to her reputation was likely greater than if Breitbart had merely falsely reported on the contents of the speech. A lie by omission is still a lie.
The “reckless disregard” issue is equally troubling. Dean hypothesizes that Sherrod would have difficulty establishing Fox News acted with reckless disregard in airing the clip because it had no reason to suspect the clip had been edited (this could hold true for Breitbart too, since he claims he was given the clip by an undisclosed source), and because other networks were airing the clip as well. But in this media landscape — where individuals and national news outlets both get their information from any and every Tom, Dick and Harriet with a cell phone, a computer, and the good luck to witness “Don’t Tase Me, Bro” firsthand — bloggers, networks and all the press in between need to be held to a higher standard of journalistic vetting and integrity. At the very least, Fox and Breitbart repeatedly aired the misleading clip (and cheerfully offered their own scathing commentary on the image of Sherrod portrayed within it) without so much as questioning whether the video clip came from a larger whole, and what the remainder of that whole might have contained. Their actions caused a woman to undeservedly lose her job and be subjected to relentless criticism by almost every news outlet in the country. Since the unedited video surfaced just days later, we know that some simple fact-checking could have shielded Sherrod from what most people would consider intolerable, life-shattering injustice.
For me, what it comes down to is this: the law, and the law of defamation specifically, is meant to incentivize people to act in socially acceptable and productive ways. In an age where a digital videos is worth a thousand words of newsprint, and every would-be Walter Cronkite on the Internet can squeeze their 15 minutes of fame out of the 24-hour news cycle, I think the law of defamation needs to evolve to force media contributors to be more accountable for what they attempt to pass off as a legitimate news story. In a democracy, we all need to be able to rely on the integrity and truthfulness of the press.
And I think that’s something that even the Tea Partiers could agree with.