There is no question that the way the video clip was edited left a false impression as to what Sherrod was really saying, and that the editing was meant to make the story worse than it was, notes George Washington University law professor Jonathan Turley in a post on his popular legal blog.
Is there legal recourse for such an action?
“There is, but it is not easy,” writes Turley.
She could pursue a tort of false light invasion of privacy, or defamation, according to Turley and other law experts. The problem is, as a former public official, she would likely be a “public figure”, under the law – and that raises the bar about what she must prove to win the suit.
In the US, public figures need to show that the person who portrayed them in a false light or defamed them acted with “actual malice”, which the Supreme Court has defined as reckless disregard for whether the statement was true or false, writes John Dean, former counsel to President Nixon, on the FindLaw blog.
It is possible that a court would find Breitbart acted with reckless disregard, writes Mr. Dean. Breitbart himself has said he did no editing of the tape once it was provided to him. But Dean notes that Breitbart surely knew a full speech could reveal a different message than a short clip, and it appears he never bothered to try to find out what the different message might be.
“I think a case might be made,” writes Dean.