In a court filing (PDF) last week, a U.S. District Court judge explained that he refused to dismiss a defamation lawsuit against conservative blogger Andrew Breitbart in-part because the dismissal motion was filed much later than what the law allows.
Breitbart’s initial motion to dismiss was filed April 18, 2011 — 65 days after having been served with a complaint filed by former U.S. Department of Agriculture employee Shirley Sherrod. It was filed under the Washington, D.C. Anti-SLAPP Act, which gives journalists and other members of the public greater leverage in “strategic lawsuits against public participation” (SLAPP) which may chill free speech.
The problem is that the law only allows 45 days for an anti-SLAPP motion, meaning that, for some reason, Breitbart’s attorney was 20 days late in filing.
That’s not the only problem with Breitbart’s motion, according to Judge Richard Leon: even if it were filed on time, the D.C. Anti-SLAPP Act, passed in 2010, only became applicable on or after March 31, 2011. Since the alleged defamation occurred in 2010, Breitbart’s attorneys were not only late on their motion, they also sought to make the law retroactively applicable, which Leon outright rejected by noting that, in the law, “there is no clear legislative intent of retroactivity.”
Leon’s filing came at the request of a higher court that’s currently weighing an appeal by Breitbart’s attorneys. The U.S. Court of Appeals in Washington, D.C. last week asked Judge Leon for clarification of his July 2011 order that denied Breitbart’s motion to dismiss.
Sherrod’s complaint alleges that Breitbart, colleague Larry O’Connor and another unknown person defamed her by deceptively editing video to give the impression that she favored African-American farmers over white farmers in dolling out government aid.
Sherrod, whose father was killed by a white farmer when she was a little girl, was actually speaking about overcoming prejudice to bridge a perceived racial divide, which was not reflected by the two-and-a-half minute edit of her 46-minute speech published on one of Breitbart’s websites. Soon after the video was published, Sherrod was ordered to submit her resignation, but once it became clear that Breitbart’s video was not truthful, the government offered to re-hire her in a better paying job.
Sherrod declined the government’s offer, saying she would rather take matters into her own hands to ensure that Breitbart’s websites are shut down for good.
“I don’t see how that [site] helps us at a time when we … should be looking at how we can make space for all of us in this country so that we could all live and work together,” she told CNN in 2010. “He’s doing more to divide us.”
Reached by Raw Story, both Breitbart and his attorney, Eric Kuwana, refused to comment on this story. A message left for Thomas Clare, Sherrod’s lead counsel, went unreturned.
The higher court has not yet made a decision on Breitbart’s appeal, and the case remains on hold until they do.
Stephen C. Webster is the senior editor of Raw Story, and is based out of Austin, Texas. He previously worked as the associate editor of The Lone Star Iconoclast in Crawford, Texas, where he covered state politics and the peace movement’s resurgence at the start of the Iraq war. Webster has also contributed to publications such as True/Slant, Austin Monthly, The Dallas Business Journal, The Dallas Morning News, Fort Worth Weekly, The News Connection and others. Follow him on Twitter at @StephenCWebster.
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