Let's pretend journalists applaud Sherrod threat to sue Breitbart

Shirley Sherrod says she plans to sue conservative blogger Andrew Breitbart, the Associated Press reports from San Diego: “Speaking Thursday at the National Association of Black Journalists convention, Sherrod said she would definitely sue over the video that took her remarks out of context”:

Sherrod said she had not received an apology from Breitbart and no longer wanted one. “He had to know that he was targeting me,” she said.

Does she have a winning case? Probably not.

For one thing, the alleged defamation (or, to be precise, the defamation that she would allege if she filed suit) took place while she was a public official and involved claims about the performance of her public duties. Thus she would have to meet the rigorous standard, set forth by the Supreme Court in New York Times v. Sullivan (1964), of proving not only that Breitbart published a damaging falsehood about her but that he did so “with ‘actual malice’–that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Even if she proves that Breitbart published false and defamatory statements about her, he wins the case if he did so only negligently.

To put it in layman’s terms, she would have to demonstrate that the falsehood Breitbart published about her–the claim that the video showed “her federal duties are managed through the prism of race and class distinctions”–was a lie, not just an error. But Breitbart issued a timely correction of this statement, creating a strong presumption against such an allegation. (As to video itself, Breitbart could almost certainly defend it as truthful.)

Blogger William Jacobson notes some other pitfalls for Sherrod of suing Breitbart–the most notable is that if the case went ahead, he would be able to use the discovery process to uncover new information about her and about his other adversaries whose conduct is relevant to the case, namely the NAACP and the Obama administration.

Of course, she hasn’t actually filed a lawsuit, and our guess is that a smart lawyer will advise her against it–and that if she does sue, she will end up settling in exchange for an apology or a more emphatic correction. Her threat to sue, in short, is largely an empty one, even if one can empathize with her feeling of having been wronged by Breitbart.

But one aspect of this story strikes us as passing strange: The venue in which she issued this threat was a convention of journalists. What’s more, someone who was there tells us that when she said she planned to sue, the audience applauded. Our source was careful to note that there were nonjournalists in the audience too (PR men and corporate sponsors). Still, we have to ask: What kind of journalist would applaud the threat of a defamation lawsuit?