Exclusive: Inside a Deposition in Shirley Sherrod's Speech-Chilling Lawsuit v. Breitbart
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.
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.
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.
Sherrod’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.
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.
Of 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.