Patterico's Pontifications

5/24/2011

The People vs. Andrew Breitbart

Filed under: General — Stranahan @ 5:29 am

[Guest post by Lee Stranahan]

I love this scene. I love this movie, too. Watch…

I believe in the First Amendment. Let me go further. I love the First Amendment – that scene makes tears well up in my eyes. For me, it started with comedy.

I was a comedy nerd as long as I can remember. When I was around eleven years old, every week after church, I’d walk across the grass field to shopping center where the Friendly’s restaurant was. There was also a drug store there and they had a one of those rotating carousels of paperback books and one of them was a book standup comedy routines.

I wanted that book for weeks. I’d read a little bit of it in the store. It was just transcriptions of routines by comics like Woody Allen and Gabriel Kaplan, when they did stand-up. This was in the mid-1970s, before Netflix and Comedy Central and HBO and cable television. Access to stand-up comedy for an 11 year old was tricky. Clubs were out. It was LP records and books.

Eventually, I got the book and it also featured Lenny Bruce. And so I was on the path of First Amendment, via Dirty Lenny.

I bought Lenny Bruce’s albums, which are so-so funny but I knew there was some kind of brilliant mind there. I read anything I could find about Lenny – sometimes at the library but often poring through the used books and magazines at Johnson’s Bookstore in downtown Springfield, Mass. I got a VHS copy of Lenny on stage close to the end of his life, reading from his legal briefs on stage.

From Lenny, I moved on to learn about other comedy heroes who fought censorship every step of the way – from George Carlin to Richard Pryor to Howard Stern to Bill Hicks. Later, I moved to an interest in other censored artists, mostly photographers like Mapplethorpe or magazines like On Our Backs. This is a consistent position of mine for decades; regardless of subject matter…I oppose censorship of all kinds; by the state, by lawsuit, by bullying.

And that winding road brought me to Andrew Breitbart. Here’s the thing about the people being censored – they often have a small but loyal group of fans but a wide range of detractors. And that’s certainly Andrew.

I get accused of defending Andrew because I work with him. Nothing could be further from the truth. It’s my chosen destiny to be friends with the modern day First Amendment hero. And make no mistake, the establishment wants to shut him up. Lenny Bruce found fewer and fewer clubs he could play in and there’s a similar campaign by the left to cut off Breitbart’s outlets.

Shirley Sherrod’s lawyers say some pretty stupid stuff in their latest case pleading, but it’s pretty outrageous for them disrespect our Constitution as they do when they claim that Breitbart’s First Amendment rights aren’t at stake here. Sherrod’s sharks say…

Plaintiff can only presume that the heightened and inflamed rhetoric of their “Summary of Additional Facts” is the start of what will be Defendants’ larger, self-serving attempt to cloak themselves as defenders of the First Amendment. But far from aiming to quash Defendants’ political speech on the broad range of political topics addressed in Defendants’ Summary of Additional Facts, the relief Mrs. Sherrod seeks in her Complaint is specific, circumscribed, and limited to the specific defamatory falsehoods that Defendants published about her individually which are the subject of the tort claims alleged in the Complaint.

They are claiming that they aren’t trying to take away Andrew Breitbart’s right to talk about ALL political topics – just the specific stuff about their client.

Guess what? That’s what almost ALL defamation suits do. NYT v. Sullivan wasn’t trying to shut down the Grey Lady’s entire Op-Ed page; just the advertisement that alluded to Sullivan. Jerry Farwell’s lawsuit against Larry Flynt wasn’t trying to stop the public of Beaver Hunt; it was ‘specific, circumscribed and limited to’ the stuff that Flynt published about Falwell.

So, yep – Andrew Breitbart is likely cloaking himself in the First Amendment. And it’s on his side.

Shirley Sherrod was a public official. She was a government appointee in charge of over one hundred people and millions of dollars. Whether or not she was a public figure is irrelevant, by the way. She was a public official, without question, and that status is what’s important, not the ‘public figure’ standard that expanded on the Sullivan ruling a decade later.

You want to hear some sweet poetry? These quotes are from the New York Times v. Sullivan opinion by Justice Brennan.

Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.

Erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the "breathing space" that they "need

That’s our Law. It’s wonderful, It’s important because it allows us breathing space for robust debate and recognizes human fallibility. It allows us to discuss the great issues of our time without worrying that we’re under the constant threat of some government official suing us when we make a mistake or publish something about them that they don’t like.

You’re free to think whatever you want to think about Andrew Breitbart and Shirley Sherrod – but don’t support her lawsuit, which strikes at the very heart of your own freedom to think, speak and criticize the government.

- Lee Stranahan

26 Comments

  1. I love the Noble First, too.
    Better than half a century ago, I loved the Friendly’s in Longmeadow.

    Comment by Richard Aubrey (cafc94) — 5/24/2011 @ 6:40 am

  2. Richard, small world! Well, you PROBABLY mean the Friendy’s out by Longmeadow Street — I would go to the one on Bliss and go to Bliss Pharmacy next door.

    My dad was the golf pro at Longmeadow Country Club for 20+ years.

    Comment by Lee Stranahan (708cc3) — 5/24/2011 @ 6:48 am

  3. Meh, not a big fan of that movie. first, I think frankly the hustler case was overblown. It merely said that you can write satire as long as you clearly label it as such (esquire had a problem with that, recently, when it published satire that was hard to distinguish it from the real thing). I think bluntly it as a no-brainer in the S.C. as evidenced by the fact that it was a unanimous decision. http://scholar.google.com/scholar_case?case=5069891851949874011&q=485+U.S.+46&hl=en&as_sdt=2,47

    I felt that Fallwell was being a cheeseball about it. most of the world would never have even heard of the hustler parody but for his whining about it.

    But flynt was playing drama queen just as much.

    And flynt was a much bigger @$$hole than the movie depicts him as. For instance, he had a photo spread of a woman on a pool table. Later on a woman was gang raped on a pool table. Feminists claimed that his magazine caused that. I tend to think that claim was bunk, but his response wasn’t to mock the claim but to mock the rape itself.

    And I think that this feeds into the movie itself. The movie says that freedom of speech is for everyone, including scumbags. But that message is compromised when it doesn’t show you what a complete scumbag flynt is.

    Even the title was an irritant. It was a civil case. there was no “people v.” in that because the people were not represented in that courtroom, only flynt, hustler and falwell.

    Not to mention the creepiness of Courtney love. So… yeah, its not a movie that has aged well for me.

    By the way, you can go to the oyez site on the subject, here.

    http://www.oyez.org/cases/1980-1989/1987/1987_86_1278

    Comment by Aaron Worthing (e7d72e) — 5/24/2011 @ 6:57 am

  4. Imdw is as predictable as the sun rising.

    Comment by JD (318f81) — 5/24/2011 @ 7:11 am

  5. Lee,

    I promise, I’m not simply trolling. I’m curious; did Mapplethorpe encounter efforts to prevent his publication or display of his work during his own lifetime? Or is the “censorship” issue limited to the hullaballoo over the public funding of that one traveling exhibit? And if the latter, by what reasoning is declining to publicly fund something “censorship”?

    Or are we talking about the British incident, and their draconian and somewhat absurd censorship laws?

    (Plummy British voice) “When I go to the Theatre I want to be taken out of myself. I don’t want to see Lust and Rape and Incest and Sodomy…..I can get all that at home!”
    Beyond The Fringe

    Comment by C. S. P. Schofield (8b1968) — 5/24/2011 @ 7:12 am

  6. Aaron,

    Eh, what Surely Shirley Sherrods Shysters are missing is that regardless of what Andrtew did or didnt do, or should have done.

    Andrew didnt fire Sherrod, didnt ask for her to be fired, didnt even float a hint that she should be fired.

    As if the legal hurdle is to convince a jury with a straight face that Breitbart somehow was more influential with a democrat administration than one of its own employees.

    Comment by EricPWJohnson (887385) — 5/24/2011 @ 7:43 am

  7. Eric

    um, i think you mean to address that to lee. this is not my post and i only commented on the quality of the people v. larry flynt as a movie.

    Comment by Aaron Worthing (e7d72e) — 5/24/2011 @ 7:45 am

  8. #4
    uh?

    Comment by quasimodo (4af144) — 5/24/2011 @ 7:46 am

  9. CSP – In Cincinatti, the Community Arts Center and its Director were prosecuted for obscenity because of their exhibit of Mapplethorpe’s work. The jury acquitted them, but they still had to go through the trouble of a trial.

    Comment by aphrael (9802d6) — 5/24/2011 @ 8:01 am

  10. Even the title was an irritant. It was a civil case. there was no “people v.” in that because the people were not represented in that courtroom, only flynt,

    The movie may not have focused on it but Flynt did face plenty of criminal charges in his time as well. The Falwell cases wasn’t even the only time Flynt won at SCOTUS.

    Comment by Soronel Haetir (b1adf2) — 5/24/2011 @ 8:02 am

  11. Aaron,

    Ya know — it’s art. Opnions different.

    The ‘People vs.’ doesn’t refer to the case but was a metaphor for the way Flynt alienated himself from everyone.

    And I thought Courtney was great it in.

    As for the case — there’s actually a Falwell v Flynt precedent in the Sherrod v. Breitbart caase. The Sherrod lawyers filed 3 duplicative claims about exactly the same material — they filed as defamaztion, as false light (which is a privacy tort that I don’t believe is even applicable to public officials) and as emotional distress. Everything but the defamation claim should be immediately tossed, if for no other reason than the duplication of claims.

    It’s all an end run attempt to get around the high bar for defamation against a public official.

    But the dual Emotional Distress / Defamation claim is exactly what the SCOTUS ruling on Falwell v. Flynt was about…Flynt won Emotional Distress but it was overturned by SCOTUS.

    Comment by Lee Stranahan (708cc3) — 5/24/2011 @ 8:06 am

  12. I was about to answer but aphrael got it right — it was the Cincinnati case where I first heard of Mapplethorpe. His work was minor influence on min eventually, but the story was interesting, too…

    Comment by Lee Stranahan (708cc3) — 5/24/2011 @ 8:08 am

  13. Lee – that was an example of fast internet research. Pull up the Wikipedia page; see an unsourced claim; go looking for information about that claim; find a news report. :)

    Comment by aphrael (9802d6) — 5/24/2011 @ 8:12 am

  14. Lee – Is there a website where somebody is accumulating the pleadings in the Sherrod case or can you provide a link to the court where they can be found?

    Comment by daleyrocks (bf33e9) — 5/24/2011 @ 8:14 am

  15. Freedom of Speech is under wide-spread attack in the US, and especially so on our nation’s college campuses. David Horowitz is scheduled to address UC Santa Barbara students on Thursday, May 26th.

    However, at Horowitz’s most recent appearance at UCLA on the 11th of May, student and faculty fascists conspired in an attempt to silence him.

    Similarly, at UCSB organized attempts are currently underway to deny both funding and sponsorship for his scheduled appearance at UC’s Campus-by-the-Sea where the bank burned down. The Muslim Students Association, unable to prevent his appearance, is planning a protest.

    Here’s an excerpt from Horowitz’s UCLA address:

    “Free speech today is under systematic, nation-wide attack on our college campuses. It is under attack by the political Left — by people who call themselves progressives and are always screaming that it is they who are the victims of McCarthyites and witch-hunters. In fact, it is they who are the McCarthyites and witch-hunters, seeking to demonize their opponents and drive them from the discussion.

    Tonight’s event is occurring under a cloud of intimidation, and determined efforts to prevent it from taking place. A speech by one individual speaking to 300 people in a single room on a campus with a population of 45,000 is apparently too much for the progressive witch-hunters who have sought to shut us down. The Muslim Students Association, Students for Justice in Palestine and Jewish Voice for Peace have joined in a campaign to vilify and demonize me and claim that I am unfit to speak on their campus. It is not just me that is their target, because I come, and I go. It is the students who have sponsored me. The opponents of what you are about to hear tonight tried to prevent anyone from inviting me in the first place and then to tried to prevent the College Republicans, who did invite me, from holding the event this evening, and also from putting up the “Palestinian Wall of Lies” I created to refute the genocidal propaganda displayed on this campus during “Palestine Awareness Week.”

    One of the threats against me was serious enough that the campus police notified my security. I don’t go to a university campus anymore without a bodyguard because I have been physically attacked on several occasions on university campuses. Moreover, there is such hatred directed at me, usually accompanied by made up quotes designed to portray me as a “racist” and “Islamophobe” that I have to take seriously the possibility that some deranged individual or group might want to act on that hatred and cause me bodily harm.

    And this is true for many a conservative speaker. On the other hand, it is not true for any leftists. Leftists do not feel the need to bring bodyguards to campus, and university administrators do not feel the need to provide the kind of security you can see here tonight. So you can judge for yourself who is threatening whom, and to whom the label “fascist” might be appropriately applied…”

    Comment by ropelight (4823c2) — 5/24/2011 @ 8:19 am

  16. Breitbart to be indicted in 3 … 2 …. 1 …

    Comment by JD (d48c3b) — 5/24/2011 @ 8:22 am

  17. I had missed that quirk of the Cincinnati fuss somehow. Politically, I’m what used to be called a Crank. I am against censorship in the narrowest sense of using the authority of the State to prevent the publication, distribution, or display of something, but I am also against government funding of controversial “art”. No tax payer should see his money going to fund art that insults or upsets him, and if that means that the art that can be funded is so bland that there is no point in funding it at all, well it isn’t as if we are having trouble running through a vast surplus of tax monies.

    My principal is this; Preventing the publication or display of something offensive is Censorship. Declining to pay for it is thrift.

    Comment by C. S. P. Schofield (8b1968) — 5/24/2011 @ 8:24 am

  18. They’re hiding, JD. I think this time you’ve scared them off!

    Comment by Icy Texan (b7f42a) — 5/24/2011 @ 8:33 am

  19. Lee.
    My grandmother lived on Greenacre Ave in Longmeadow. There was a Friendly’s a couple of blocks away.
    Forty cents for an Awful-Awful, thirty-five for a foot-tall sundae.
    Saved my allowance for our trips back to New England–we’d moved to Michigan–with Friendly’s in mind.

    Comment by Richard Aubrey (cafc94) — 5/24/2011 @ 8:47 am

  20. One can love the first amendment while believing that the judiciary has gone way too far in restricting the right of public people and officials to have their reputations protected from defamation. In my opinion Sullivan went way too far. Ariel Sharon should have prevailed in his suit against Time. And if Breitbart defamed Sherrod (which I don’t think happened), then the first amendment should not protect him from having to make her whole.

    The root of the problem is that when the framers originally came up with the Glorious First, they only had federal laws in mind, and cases for defamation, obscenity, etc. were typically brought in state courts, so they didn’t feel the need to make exceptions. When the 14th was ratified, the thought that this would extend the First verbatim to the states didn’t occur to anyone. And when the Supreme Court decided that it did, they of necessity had to start carving out exceptions, which are ill-defined because they’ve been making it up as they go along. And those exceptions have propagated back into the federal law, where in my opinion they don’t belong.

    Comment by Milhouse (9ef3cc) — 5/24/2011 @ 9:34 am

  21. Sullivan was decided exactly right — and it’s even more important now that everyone has the ability to be a publisher and a broadcaster.

    Comment by Lee Stranahan (708cc3) — 5/24/2011 @ 9:58 am

  22. The First Amendment’s speech clause was intended to protect political speech. Today politicians pass laws restricting political speech while “first amendment defenders” talk about photos of guys with whips in their butt and dancing girls with or with out pasties.

    Meanwhile a woman who stated in oral arguments before the Supreme Court, that the Federal Government could stop the publication of a book if it violated a law limiting negative comments about a politician, is nominated to and confirmed to sit on that Court.

    Comment by Have Blue (854a6e) — 5/24/2011 @ 10:08 am

  23. To be fair, the general presumption is that a lawyer acting as an advocate her client’s position, not her personal beliefs. It’s not clear if Kagan believes the government could stop the publication of a book, or if she was merely articulating the Obama administration’s (indefensible, outrageous overreach of a) position.

    Comment by aphrael (e0cdc9) — 5/24/2011 @ 11:34 am

  24. Breitbart to be sent to gitmo in 5…4…3…2…1…NEVER

    All the Sherrod kool-aid drinkers hardest hit.

    Comment by DohBiden (15aa57) — 5/24/2011 @ 2:32 pm

  25. Lee–

    I caddied at a New England PGA club pro event in Connecticut in the seventies. I was on the bag for the pro from Wallingford (Ct.) Country Club. There was a Stranahan who could hit it. I mean, HIT IT.

    Comment by Birdbath (19803d) — 5/24/2011 @ 3:47 pm

  26. Birdbath,

    That was my father — he could still hit it up to just a couple of years before passed waya last October, too.

    Comment by Lee Stranahan (708cc3) — 5/25/2011 @ 4:43 am

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