Thursday, July 29, 2010

Sherrod v. Breitbart

The Root editor Joel Dreyfuss reported today that Shirley Sherrod intends to file a lawsuit against conservative blogger Andrew Breitbart for posting to his Web site a deeply abridged video that portrayed her in a racist light. The former and possibly future U.S. Department of Agriculture employee, speaking at a crowded venue at the annual convention of the National Association of Black Journalists in San Diego, said she would "definitely" take legal action against Breitbart.

Dreyfuss reported that Sherrod regretted Breitbart’s absence at the convention because she had some questions to ask him (a real safe bet). She said she believed Breitbart "had to know" that the video he released last week wildly distorted her personal racial perspective.

With this pending action Sherrod implicitly calls for more responsibility for sourcing in the videocentric age we live in, especially as it relates to the ruthless politics we practice today.

This kind of thing has happened before. Back in May, Fox News was taken to task by Michael Moore in Media Matters for editing out applause during President Obama’s address before West Point cadets, leaving a cavernous silence for several seconds. The actual feed of that part of the speech, available at the White House Web site, showed that Obama paused because of the applause of the cadets. Applause you didn’t get watching it on Fox.

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It’s this selective interpretation of time and space we’re heir to in the video age. Dismayingly, for some, it’s no big deal. Edward Royce makes this point, commenting at TheRoot: “All Breitbart did was post a video clip of Shirley Sherrod speaking her story in her own words. If posting a short unaltered video clip of someone saying their own words is defamation then every TV & web news corporation is in serious trouble. Suing Breitbart will achieve nothing and probably will get thrown out of court.”

But anyone interested in journalism law who remembers the phrase “false light” knows that Sherrod may well have a case against Breitbart, possibly even a good one. According to the Reporters Committee for Freedom of the Press:

False light invasion of privacy occurs when information is published about a person that is false or places the person in a false light, is highly offensive to a reasonable person, and is published with knowledge or in reckless disregard of whether the information was false or would place the person in a false light.

False light includes ... distortion (the arrangement of materials or photographs to give a false impression) ...

Some courts have decided that false light lawsuits aren’t really necessary, since defamation covers much the same legal terrain but with more clearly defined legal language. “However, a false light claim has the potential to succeed against the media where a defamation claim would fail,” Wendy Tannenbaum of RCFP reported in 2002. “It is possible, for instance, that the ‘gist’ of a story could be considered false, even where the actual statements in the piece are true.”

Sherrod's prospects for winning such a lawsuit, of course, also hinge on the threshold of what constitutes a "public figure" — the tripwire of libel-related litigation. In this case, is the term "public figure" subject to an absolute interpretation, or a relative one? And in these days of Web access and instant visibility, what really distinguishes one "public figure" from an otherwise unknown person with a digital camera and a YouTube account?

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But in the end, there’s a very good chance that Shirley Sherrod is filing a lawsuit not so much to make money as to make a point. This may be her way of calling bullshit on the rampant use of doctored video clips proffered to the world on the blogosphere and elsewhere as intact, unaltered visual documents of a statement or an event.

Whether she prevails in court or not, assuming it gets that far, Sherrod’s intention to sue is a call for more accountability, by news organizations (and those that masquerade as such) for use of doctored, unsourced and unsourcable material.

And in the runup to an election in which race has dominated the media agenda like never before, it’s a message from a veteran of the civil rights era that’s refreshing in its 21st century embrace of the law and media as the best weapons against racialist distortion in the media: Sometimes, the best way to deal with a bully is to bully a bully.
Image credits: Sherrod: USDA (public domain). Breitbart: Fox News Channel.

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