Wednesday, June 26, 2013

Appeals Court SLAPPing Around Bloggers

They chose a dead guy, too!

"Appeals court allows lawsuit against blogger" Associated Press, June 26, 2013

WASHINGTON — A federal appeals court says former Agriculture Department employee Shirley Sherrod can continue her defamation case against a conservative blogger.

Larry O’Connor, a colleague of the late blogger Andrew Breitbart, asked a federal court of appeals to throw out the case, saying it violates his freedom of speech rights. The appeals court on Tuesday upheld a federal district court’s rejection of that motion to dismiss.

The case is one of the first high-profile federal lawsuits to test bloggers’ freedom of speech rights, and large news organizations including the New York Times Co., Washington Post Co., and Dow Jones & Co., have filed friend-of-the-court briefs in the suit.

The ma$$ media and bloggers on the same side?

Sherrod was ousted from her job as a rural development official in 2010 after Breitbart posted an edited video of Sherrod, who is black, supposedly making racist remarks.

See: Matters of Black and White

She sued Breitbart, O’Connor, and an unnamed defendant for defamation and emotional distress after USDA officials asked her to resign and the video ignited a racial firestorm.

Breitbart died unexpectedly last year.


And down the memory hole it went. 

If I'm not here you know what happened.

Sherrod’s lawyers said the unnamed defendant is the person they believe passed the video on to Breitbart, though the person’s identity remains unknown.

The video on Breitbart’s website 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 an attempt at telling a story of racial reconciliation. Once that was obvious, Sherrod received public apologies from the administration — even from President Obama himself — and an offer to return to the Agriculture Department, 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.

O’Connor’s lawyers had argued to have the case dismissed under a District of Columbia statute that aims to prevent the silencing of critics through lawsuits. The statute is called anti-SLAPP, or ‘‘strategic lawsuit against public participation.’’

A federal district court judge rejected their motion to dismiss, citing timing and jurisdictional issues, prompting the appeal. The appeals court affirmed that O’Connor’s lawyers missed the deadline for filing the dismissal request.

In March arguments, the lawyers told the court of appeals that O’Connor and Breitbart, before he died, stood by the content, saying the blog post was opinion.

Mine happens to be that and analysis.

‘‘What happened here is what happens in journalism every day,’’ said Bruce Brown, a lawyer for O’Connor.

Sherrod’s lawyers disagreed and said dismissal under the District of Columbia statute would violate their right to a trial.

The case has been closely watched as a test of the District of Columbia’s anti-SLAPP statute.

And will continue to be.


While we are on race:

Related: Sunday Globe Special: Zimmerman Trial Will Make You Want to Scream

"Judge hears Zimmerman’s previous calls to police; Will decide whether jurors should hear them" by Kyle Hightower and Mike Schneider |  Associated Press, June 26, 2013

SANFORD, Fla. — Several times in six months, neighborhood watch captain George Zimmerman called police to report suspicious characters in the gated townhouse community where he lived. Each time, when asked, he reported that the suspects were black males....

Defense lawyer Mark O’Mara argued that the calls were irrelevant and that nothing matters but the seven or eight minutes before Zimmerman fired the deadly shot into 17-year-old Trayvon Martin’s chest.

The prosecution is ‘‘going to ask the jury to make a leap from a good, responsible, citizen behavior to seething behavior,’’ O’Mara said. The judge did not immediately rule on whether to admit the recordings....

Also, prosecutors presented graphic photos of Martin’s body, a police officer described trying to revive Martin as bubbling sounds came from his chest, and a police manager described how she helped Zimmerman set up the neighborhood watch....

Zimmerman, 29, could get life in prison if convicted of second-degree murder in the killing of Martin....

Zimmerman has asserted self-defense, saying he opened fire after the teenager jumped him and slammed his head against the concrete sidewalk.

Zimmerman, whose father is white and mother is Hispanic, has denied the confrontation with the black teenager had anything to do with race, as Martin’s family and its supporters have charged.

On Tuesday, the second day of testimony, prosecutors called to the stand a former neighbor of Zimmerman, Selene Bahadoor, the first witness to say she saw part of the struggle....

O’Mara later confronted her with a post she made on Facebook in which she ‘‘liked’’ a petition that championed the arrest of Zimmerman following the shooting....

Wendy Dorival, former coordinator of the Sanford Police Department’s neighborhood watch program, testified about how she had worked with Zimmerman to set up a watch in his neighborhood. When asked by prosecutor John Guy if neighborhood watch participants should follow or engage with suspicious people, she said no.

‘‘They are the eyes and ears of law enforcement,’’ Dorival said. ‘‘They’re not supposed to take matters into their own hands.’’ Similarly, Donald O’Brien, president of Zimmerman’s homeowners association, said it was his understanding that neighborhood watch members are supposed to ‘‘stay at a safe distance’’ and ‘‘let the police handle it.’’

But Dorival said she was impressed with Zimmerman’s professionalism and dedication to his community. ‘‘He seemed like he really wanted to make changes in his community, to make it better,’’ she said.



"Friend of Martin describes final phone call before shooting" by Mike Schneider and Kyle Hightower |  Associated Press, June 27, 2013

SANFORD, Fla. — A friend who was on the phone with Trayvon Martin moments before he was fatally shot by George Zimmerman testified that she heard the Miami teen shout, ‘‘Get off! Get off!’’ before his telephone went dead.

Rachel Jeantel, 19, is considered one of the prosecution’s most important witnesses, because she was the last person to talk to Martin before his encounter with Zimmerman on Feb. 26, 2012.

She testified that Martin described the man following him with a racial epithet, and that he said he thought he had evaded him....

She said Martin said Zimmerman was behind him, and that she heard Martin ask, ‘‘What are you following me for?’’ She then heard what she said sounded like Martin’s phone earpiece dropping into the grass, followed by Martin yelling, ‘‘Get off! Get off!’’

Then the phone went dead, she said.

Zimmerman, 29, could get life in prison if convicted of second-degree murder for killing Martin. Zimmerman had followed Martin in his truck and called a police dispatch number before he and the teen got into a fight.

Zimmerman has claimed self-defense, saying he shot Martin after the teenager jumped him and began slamming his head against the concrete sidewalk.

Zimmerman, who is Hispanic, has denied that his confrontation with the black teenager had anything to do with race, as Martin’s family and its supporters assert.

Jeantel’s testimony came after two former residents of the neighborhood testified about hearing shouts for help in the moments before the shooting.

Jayne Surdyka told the court that immediately before the shooting, she heard an aggressive voice and a softer voice exchanging words for several minutes in an area behind her townhome at the Retreat at Twin Lakes.

‘‘It was someone being very aggressive and angry at someone,’’ she said.

During the struggle, she said, she saw a person in dark clothes on top of the other person. Martin was wearing a dark sweatshirt and Zimmerman wore red clothing. Surdyka said she saw the person who was on top get off the body after the shot was fired.

During cross-examination, defense lawyer Don West tried to show there was a lapse in what Surdyka saw. Defense lawyers contend Martin was on top of Zimmerman during the struggle, but after the neighborhood watch volunteer fired a shot, Zimmerman got on top of Martin.