Yesterday, right-wing provocateur Andrew Breitbart posted a now-infamous video on his “Big” media empire. Although Breitbart’s carefully-edited video appeared to depict USDA official Shirley Sherrod admitting that she denied government services to a poor farmer because he was white, we now know that Sherrod was telling a twenty-four year old story about how she came to embrace this white farmer’s cause — enabling him to save his farm after two years of Sherrod’s hard work.
Under the First Amendment, it’s not easy to win a defamation lawsuit, and for good reason. Democracy depends on a robust and unafraid media, and reporters who live in constant terror of being sued into oblivion are far less likely to report unpleasant truths. Nevertheless, the First Amendment’s protections are not unlimited, and they simply do not apply to publishers whose callous disregard for the facts paint others in a false light.
As a general rule, when a publisher’s false statements force another person into the public spotlight they are liable for defamation if they knew or should have known that their claims were false. In other words, if a publication fails to take the most minimal steps to ensure that their content is true, they risk an expensive lawsuit if their content turns out to be false.
But Breitbart appears to have taken no steps whatsoever to verify the video’s context before he posted it alongside a rant accusing Sherrod of the most vicious racism:
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. . . .
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.
Of course, it’s now up to Sherrod and her lawyers to decide whether they want to pursue what could be a very strong defamation case against Breitbart, but other media outlets should not think that they are off the hook.
In most states, a publication or other news source can be held liable for republishing another person’s defamatory statement if they “know or ha[ve] reason to know of its defamatory character.” And all media sources now have more than enough reason to know that any story touted by Breitbart cannot be trusted. Beyond his shameful behavior in the Sherrod incident, Breitbart is, of course, most famous for publishing a deceptively edited video which falsely suggested that the now-defunct ACORN violated the law.
None of this means that reporters cannot republish Breitbart’s claims if they conduct their own investigation and determine those claims to be true, but far too many reporters (and, tragically, White House officials) failed to conduct any meaningful investigation into the Sherrod video. If a commitment to the truth wasn’t enough to inspire such an investigation this time, maybe the threat of a legal sanction will suffice the next time around.