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Rule of Law

Imagine if the conservative media had to include every fact that makes liberals look good in every story that makes liberals look bad. What if attorney-client privilege didn’t exist for lawyers providing advice to conservative publications? Imagine if those contacted by a conservative journalist were dragged into depositions by a liberal plaintiff. Imagine if the liberal plaintiff subpoenaed writers for conservative publications who covered her case.

These actions would be a way to silence and chill the increasingly powerful conservative media, and it’s exactly what is happening in former Obama political appointee Shirley Sherrod’s lawsuit against Andrew Brietbart’s widow and radio talk show host Larry O’Connor.

Last week I was forced to give a deposition in Shirley Sherrod’s defamation lawsuit against Andrew Breitbart’s widow. The deposition took place at Kirkland and Ellis’s posh “litigation center” in Washington, D.C. The drink selection at the litigation center was expansive.

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Shirley Sherrod is the former Department of Agriculture official who said on camera that she once wanted to deny benefits to a white farmer because of his race. After that doozy, Sherrod said she later decided that race shouldn’t be a factor in giving out benefits. When Sherrod said that she intended to deny benefits to a white farmer, folks in the NAACP audience laughed.

Noble stuff.

One of the topics Shirley Sherrod’s lawyers wanted to know about in my deposition is who controls the comments to articles here at PJ Media.

Sherrod’s lawsuit is premised on a dangerous idea: when conservatives speak about liberals, they shouldn’t be allowed to quote the liberal saying disgraceful things unless they quote the liberal also saying nice things. Supposedly, Andrew Breitbart’s Breitbart.com didn’t publish enough of the nice things Sherrod said, and thus Sherrod sued Andrew and Larry O’Connor (a Brietbart.com editor).

Let’s call it the not-enough-nice-context theory of defamation. They don’t teach it in law school, yet.

aaSherrod’s defamation theory is dangerous to the free press. When Sherrod said that she intended to discriminate against white farmers, that was a stand-alone story, period. Nothing else that followed mattered. It showed that no race is free from bad actors, white or black.

The stand-alone story of black on white discrimination runs counter to the well-worn critical race theory dogma that some are incapable of racialism or racism.

Sherrod’s defenders falsely claim the video Andrew Breitbart aired was “heavily edited.” What they really mean is that video of Sherrod saying things that make her look good wasn’t aired alongside video that made Sherrod look bad.

The reaction of some in the NAACP audience to Sherrod’s comment that she intended to discriminate against a white farmer is another stand-alone story. Instead of gasps of moral shock, the video reveals laughter. It’s a story worth telling regardless of Sherrod’s subsequent racial redemption.

But it’s not a story those who support the NAACP want to have told. Andrew Brietbart wanted it to be told. Andrew said that the Sherrod story was, in part, about the NAACP needing to clean up disorder in the NAACP house before they accused the Tea Party of racism.

It is true that Sherrod’s story is also a story of redemption. Later in the video, Sherrod said that she realized that race shouldn’t be a factor in providing benefits.

Great. But that’s the postscript after her big racialist reveal. When and where the story of redemption is placed is the central question behind the Sherrod defamation lawsuit.

If Sherrod’s legal theory prevails, criticism of liberals by conservative media outlets will have to be equal-opportunity criticism, else it is defamatory. It’s the Fairness Doctrine brought to the new media.

That’s why much of my deposition last week was focused on what Andrew Breitbart knew and when he knew it. Sherrod’s lawyers were keen to know what I knew about the emphasis Andrew placed on the redemptive parts of Sherrod’s speech. They were also fishing for evidence that Andrew acted with a malicious heart.

Anyone who knew Andrew knows he was more of a jester than a destroyer. He wanted the left and the NAACP to be held to the same standards on race that they hold everyone else. He sought to expose racial hypocrisy. That’s why he was so effective. In my view, that’s the real reason he was sued by Sherrod.

Sherrod’s lawsuit is also seeking to knock down the attorney-client privilege relationship at Breitbart.com. Attorney-client privilege is the idea that what a lawyer discusses with a client is confidential. Larry Solov has served for years as counsel to Andrew and Breitbart.com. Larry has been a practicing attorney since graduation from Harvard Law School. Larry gave legal advice to the company and to Andrew throughout the entire Sherrod saga — the very same sort of advice Kirkland and Ellis now provides to its big corporate clients.

No matter. Shirley Sherrod and her pro bono lawyers at Kirkland are trying to penetrate the attorney-client relationship between Solov and Breitbart. She wants documents in which Larry is giving company employees — including Andrew — legal advice and is demanding the court order that the documents be surrendered.

When a conservative media outlet is sued, apparently it’s time for a fishing expedition. We hear so much about the invaluable and ancient attorney-client relationship when it involves common criminals and al-Qaeda terrorists. But conservative new media outlets? Some treasured legal institutions aren’t so treasured when Breitbart is involved.

Keep in mind, I was subpoenaed for this deposition because Andrew emailed me a single link to a YouTube video of Shirley Sherrod’s speech before he published it. Niger Innis, a frequent guest on Fox News, was also subpoenaed for the same reason.

What else do I have in common with Niger? Both of us engage in high-profile conservative commentary on racial issues, commentary I would suspect Shirley Sherrod finds rather disagreeable.

Get one email in 2010, get a subpoena in 2014. Such are the ways of lawfare.

Shirley Sherrod’s lawyers were also keen to know in the deposition if I was a “fact checker” for Breitbart.com. It would seem that receiving a 2010 email linking to a video not only lands you a subpoena, but means you might have been a fact checker.

This is the stuff Sherrod’s defamation suit is made of.

Author and Andrew Breitbart lunching at Smith House, Los Angeles, February 2012

Author and Andrew Breitbart lunching at Smith House, Los Angeles, February 2012

Of course there may be other reasons some were eager to drag me into a deposition. I had tweeted out that it was my opinion that Shirley Sherrod was a “greedy redeemed racist.” Sure enough, Sherrod’s lawyer Jonathan F. Ganter was armed with the Tweet as an exhibit with questions to follow.

“Did you tweet this; do you believe it!?,” or words to this effect were the query.

pogOf course I do. Let’s review.

Greedy? Sherrod’s family received a $13,000,000 (yes, six zeroes) payout from the Pigford settlement. Specifically, her husband’s wacky collective farming cooperative received the money, and it is my opinion that once your family lands $13,000,000, your zeal to be a plaintiff might diminish.

What’s that you say? It wasn’t Shirley or Charles Sherrod who received the $13,000,000 payout, but really their non-profit farming collective, New Communities, Inc., that received the payout.

Please, let’s go there. People familiar with the Pigford boondoggle describe the queer coincidence that New Communities, Inc., represented one of the few, if not only, corporate payouts among all the Pigford claimants. But that’s a story for another day.

Both Sherrods also received $150,000 for “pain and suffering” that, in my opinion, they never endured. One-Hundred-Fifty Large for the wife of a corporate officer of a farming collective who didn’t get federal benefits? Again, let’s have that public discussion, Shirley.

Once the public learns these facts about Shirley and Charles, the term “greedy” might be considered generous.

The next part of the tweet Sherrod’s lawyers interrogated me about was the “redeemed racist” part. My opinion in the tweet gets to the heart of the entire litigation, and why Andrew’s story mattered.

We are allowed to talk about bad things others do and say. When Anthony Weiner exposes himself on Twitter but reluctantly repents, we can talk about the exposure without talking about the repentance. Criminals are not pardoned because they find Jesus on death row. When Trent Lott says nice things about Strom Thurmond, no amount of backtracking could slow down the leftwing firestorm against him.

But Shirley Sherrod’s lawsuit would have it otherwise. Any redemptive exculpatory comment must be juxtaposed with any prior disgraceful, racialist and discriminatory comment.

The all-important context to Mitt Romney’s “47%” comment? Who cares? He’s a Republican.

Team Sherrod wants conservative media to play by rules that the mainstream media doesn’t play by, and the left-wing media would laugh at.

Is it simple happenstance that I was one of the few people subpoenaed for a deposition after I wrote a series of articles criticizing the immorality of suing Andrew Breitbart’s widow (a woman who had nothing to do with the Sherrod saga)? But the lawyers have an answer, and if I didn’t give it here, maybe they’d sue me too for inadequate exculpatory context.

They say that Andrew’s widow is merely the representative of the estate. They fail to mention that Andrew’s “estate” is what will be used to raise and educate Andrew’s children. They fail to note the universal human experience that being in a lawsuit is a terrible burden regardless of the outcome.

Forgive them. They are lawyers. We aren’t supposed to consider such things.

Is it simple happenstance that I was one of the few people subpoenaed for a deposition after I wrote articles noting that Kirkland and Ellis has represented a Nazi camp guard at Treblinka, among other unsavory cases?

Given how little came out of my deposition, one wonders.

Conservative media also deserve some scorn. They need to step up and recognize the Sherrod case for what it is, and what it threatens. I’ve had one best-selling author tell me his publisher ejected all mention of Sherrod from his manuscript because she is sue-happy.

Not enough conservative media outlets are covering the lawsuit against Brietbart. I’m pretty sure that if any of those now-silent outlets were being sued by someone with Sherrod’s background for publishing the statements she made, Andrew Breitbart’s cavalry would have been riding to their defense. Yet where is your publication?

Last week on the The O’Reilly Factor, Bernie Goldberg and Bill O’Reilly had loads of criticism for Jesse Ventura for maintaining a defamation lawsuit against the widow of Navy Seal Chris Kyle. I wondered why they left out Suzy Breitbart. If Shirley Sherrod practiced what I’ve heard her preach, this disgraceful lawsuit would end.

Top Rated Comments   
Does Sherrod's legal complaint include all of the good things about Brietbart News?
6 weeks ago
6 weeks ago Link To Comment
The problem is judges who allow suits like this and the ones filed by Brett "the Speedway Bomber" Kimberlin to proceed.

These nuisance suits should be dismissed in short order, the plaintiffs forced to pay all defendants' expenses including lost work time, and sanctioned sufficiently to discourage such nonsense from themselves and others in the future.

This is not a system of justice anymore. It's a lawyer's candy store.

7 weeks ago
7 weeks ago Link To Comment
well, with $13 million in the bank, she can sue people just for the intimidation factor, all by herself. With willing financial supporters and lawyers willing to do it, pro-bono, they can successfully intimidate any criticism, and it can go on indefinitely.

Conservatives (and libertarians) need to get better at Lawfare, and fast!
7 weeks ago
7 weeks ago Link To Comment
All Comments   (50)
All Comments   (50)
Sort: Newest Oldest Top Rated
Shirley Serrod is another example of what could go wrong when we advance people in our society because of their race or ethnicity. So many of them are unqualified for their jobs and are there for reasons other than ability, competence, leadership and honesty. The oath of office is supposed to mean something.
6 weeks ago
6 weeks ago Link To Comment
John Derbyshire has a book on it. We Are Doomed.
Highly recommended.
6 weeks ago
6 weeks ago Link To Comment
Hey J. Christian:

Here is a ready made brief regarding protected speech: Since I contributed to the defendants defense, I suppose I can share it with you, although it is in the public domain at NRO.

http://www.nationalreview.com/sites/default/files/NR_Opening-Brief.pdf

YW!
Paul
6 weeks ago
6 weeks ago Link To Comment
Pardon me for displaying some common sense, but shouldn't a reasonably-competent judge have thrown this out of court, immediately? Sherrod made the comment, as confirmed by video. She was NOT taken out of context. What possible legal basis exists for this suit?
6 weeks ago
6 weeks ago Link To Comment
Shirley Sherrod is Black, that is all that is needed in our screwed up political landscape. Its what Socialism brings.
6 weeks ago
6 weeks ago Link To Comment
Why can they do this? Can anybody who wants subpoena them and make them fly to Hawaii, say? Did you have to pay the airfare? For your time?

(Of course, if a Conservative did this, there would be intense press coverage to make everyone hate the person suing. The playing field in not level.)
6 weeks ago
6 weeks ago Link To Comment
Apparently, if you are black, you can sue just about anyone for just about anything and the courts will take the case.

As someone with 35 years of management experience, I can tell you that some black employees will sue (or at the very least file EEOC charges) against a manager for just about anything that THE EMPLOYEE wants to claim is racist and discriminatory. When this happens, the MANAGER is subjected to an intense investigation where s/he is questioned and deposed and assumed to be GUILTY until proven innocent.

In one instance that happened to a woman I worked with, we had one particularly litigious employee in the company who filed an EEOC complaint against her because she would go out and get lunch and bring it back to eat at her desk. The reason this woman had to eat lunch at her desk every day is because she had a department full of employees who would goof off if she wasn't right there watching them. OK, so one of her favorite lunches (and the restaurant was right down the street) was barbecued pork or fried chicken with a fruit salad featuring watermelon. One of the employees who resented the fact that she never left her desk (so he could goof off while she was gone) filed an EEOC complaint against her for being RACIST, as evidenced by her lunch choices. He said she was RACIST for eating fried chicken and watermelon, as that is "a code" among white people. The discrimination came in because he desperately wanted to get out of her department, but every time he posted for another job internally he would be denied because all of the other managers knew what a lazy slug he was. Plus, his own manager gave him poor performance reviews. She would have fired him but HR told her she could not because then he'd sue.

OK, so after that stupid EEOC complaint, HR made me take him on in my department. I must have been the manager from H*LL in his mind, because I was even more demanding and gave him even LESS leeway in my department. I was the same with ALL of my employees, most of whom really liked how productive my team was (and how if you worked hard in my department, you got promoted). So I treated him just like I treated the rest of my team. He HATED it! So he filed an EEOC complaint against ME because I gave him poor performance reviews and would not promote him. I was very careful to spell out what my expectations were, and they were no different for him than for any other employee. I documented EVERYTHING!

Eventually the guy tried to get out of MY department, but, again, nobody would take him. I suffered through all of the investigations, etc. Finally he filed a lawsuit against me for creating a "hostile work environment" for him, NOT because I harassed him in any way, but because I expected him to do his JOB!!! That process took six months, at which time he lost. Not only that, but he was forced to continue working for me, so he quit. YAY!!!
6 weeks ago
6 weeks ago Link To Comment
Oh, good. Can we in Israel sue CNN and every other media outlet for doing just that?
6 weeks ago
6 weeks ago Link To Comment
It is interesting to place Sherrod's case next to Zimmerman's.

In the Zimmerman case, a huge network news outlet intentionally omitted a portion of the dispatch tape in order to FALSELY imply that Zimmerman made a racist remark. (He was replying to a direct question, not offering an independent statement)

In Sherrod, an Internet blog highlighted an admission of racist intent and did not include a self exculpating follow up.


There was not only ZERO moral outrage at the intentional tampering with the evidence in an ongoing criminal case in the former by the left, they further tried to gin up racial animosity and "invention", including the coining of the phrase "white Hispanic".

Nobody disputes that Sherrod admitted to overt racist feelings and intentions. HER audience laughed...knowingly and approvingly.

Nobody disputes that the white farmer did absolutely nothing to induce racist action upon him. He didn't repeatedly slam her head into the pavement. He wasn't mixing a drug cocktail or casing her neighborhood.

She just wanted to punish him because he happened to be white. And, she told an audience who laughed approvingly at that...she later felt a pang of conscience. And ALL the racism in THAT scene should be morally erased from view.

Andrew said to hold on a minute. The story of someone in power using racism to deprive or punish ( or dismiss charges in a defaulted case at a polling place or to say that one race does not have civil rights) is not so easily evaporated from view.

We can appreciate the pang of conscience but still examine the admission and reaction to that admission.

In the Zimmerman case, he never says anything to suggest a racial animus. In fact, evidence has to be distorted to make him "more white" than he is and have more racial intent than he had.

In other words, Sherrod admits racism and the left insists that it be ignored. Zimmerman denies racism and the left insists that it be invented.

Kirkland would never pro bono take up Zimmerman's case against the intentional slanders and manipulation of evidence against him.

As for the truth? Sherrod told it once. And her audience laughed.


6 weeks ago
6 weeks ago Link To Comment
The article was about the NAACP not Sherrod. The video clip was to show the reaction to Sherrod's statement. Most important, Sherrod's exculpatory statement WAS INCLUDED in the video clip and the paragraph describing the clip.
6 weeks ago
6 weeks ago Link To Comment
Greetings:

Growing up in the Bronx of the '50s and '60s, there was a bit of folk wisdom in our neighborhood that went, "If you're in court, you've already lost. The question to be determined is "How much?".
6 weeks ago
6 weeks ago Link To Comment
Lawsuits for any and all who dare reveal the racism of Scary Sharrod and her NAACP sycophants.
6 weeks ago
6 weeks ago Link To Comment
I would say kill all the lawyers, but there is some really nice ones here, including the author.

Man, J. Christian. You could do the country a favor, I'll go so far as history a favor, by getting your Conservative lawyer buddies to take the mantle from Breitbart - not one, not two, but hundreds of you across this country.

I know you got to make a living. But this is nothing but an absolute infringement of the very 1st Amendment. You've got an army at your back that is willing to go to war with these grievance hustlers - I disdain these jackboots.

But we're not going to go to war to sit in a courtroom and be harassed by a bunch of crooked lawyers and their black robed thugs while we watch our 401k's drained at $200 an hour.

Let's beat these folks at their own game and expose these hucksters for what they really are.

We should all be Andrew Breitbarts in this war...
6 weeks ago
6 weeks ago Link To Comment
There have to be wealthy Conservative lawyers, or at least wealthy Conservatives to fund such an operation. Of course, I recall Haig saying that one of Nixon's problems in Watergate was a lack of Republican lawyers of the right type - and that the ones he did find actually had ethics, a problem Clinton never had to deal with.
6 weeks ago
6 weeks ago Link To Comment
sign me up for the cause, Tex, but first conservative NON-lawyers must figure out how to finance it. I'm eager to help, but my babies need shoes.
6 weeks ago
6 weeks ago Link To Comment
I'm right there with you. Only in my case, babies need graduate degrees, weddings, and mom and dad got to eat and stay healthy. And for mom and dad, that's still baby shoes. ;)

And the chances real good, in short order, mom and dad in retirement mode. And I don't see any large inheritance out there in the works to pay for lawyer costs.
6 weeks ago
6 weeks ago Link To Comment
no need to explain, T - but one way or another our team desperately needs to wise up and channel some portion of the vast amount of funds currently spent on elections to lawfare instead.
6 weeks ago
6 weeks ago Link To Comment
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