Breitbart died unexpectedly a year ago, and his status in the case is unclear; his family does not appear to have notified the court of an estate that can be sued.
The case argued before the court of appeals Friday is one of the first high-profile federal lawsuits to test the free-speech rights of bloggers.
Backed by large news organizations including the The Washington Post Co., the New York Times and Dow Jones & Co., which have filed friend-of-the-court briefs in the case, O’Connor’s attorneys argued to have the case dismissed under a D.C. statute that aims to prevent the silencing of critics through lawsuits. A federal district judge rejected their motion to dismiss, citing timing and jurisdictional issues, prompting the appeal.
The lawyers told the appeals court that O’Connor and Breitbart, before he died, stood by the content, asserting that the blog post was opinion.
“What happened here is what happens in journalism every day,” said Bruce Brown, an attorney for O’Connor.
Sherrod’s attorneys said dismissal under the D.C. statute would violate her right to a trial.
The video on Breitbart’s Web site turned out to be edited, and when Sherrod’s full speech to an NAACP group earlier that year came to light, it became clear that her remarks about an initial reluctance to help a white farmer decades ago were not racist but rather an attempt at telling a story of racial reconciliation. Sherrod received public apologies from the administration — including one from President Obama — and an offer to return to her job, which she declined.
Sherrod’s 2011 lawsuit says the incident affected her sleep and caused her back pain. It contends that she was damaged by having her “integrity, impartiality and motivations questioned, making it difficult (if not impossible) for her to continue her life’s work assisting poor farmers in rural areas” even though she was invited to return to the department.
The video was posted amid ongoing friction between the NAACP and the tea party movement, each accusing the other of having racist elements in their ranks. Breitbart said at the time that the video showed the NAACP condoning racist comments from a government official.
The full video, however, showed Sherrod explaining to an audience how she eventually became friends with the farmer and helped him save his land from foreclosure.
Brown, O’Connor’s attorney, defended the bloggers’ actions and said the suit should be dismissed under the District’s anti-SLAPP [strategic lawsuits against public participation] law, because Breitbart’s posting was an opinion. “She was a public official who saw the world through a racial prism,” Brown said of Sherrod.
The case has been closely watched as a test of the anti-SLAPP statute.
Brown asked the three judges to consider the precedent this case would have.
“It is in courts like this where First Amendment law is made,” he said.
— Associated Press