During a Tuesday hearing, Breitbart’s lawyers also said that U.S. District Court for the District of Columbia is not the proper venue for the suit, which the former USDA official, Shirley Sherrod, first filed in D.C. Superior Court in February. Breitbart removed it to federal court.
An attorney for Breitbart, Alan Croll, a litigation partner in Katten Muchin Rosenman’s office in Los Angeles, tried to convince U.S. District Judge Richard Leon that the events underpinning the suit happened in California.
Croll also said Breitbart and co-defendant and Lawrence O’Connor, editor in chief of Breitbart.tv, live in California and do not have strong professional ties to Washington.
“This case cries out to be transferred to California,” Croll said at a hearing that lasted more than 90 minutes on Tuesday afternoon.
There’s a reason for the push to get the case moved to the west coast. Croll trumpeted California’s laws against so-called “strategic lawsuits against public participation,” or SLAPP, which are filed to chill protected speech. The District’s statute took effect in March, a month after the suit was filed. California’s law has been on the books for much longer.
Central to the dispute is video and commentary Breitbart posted about a speech that Sherrod, then a rural development director, gave about race relations in March last year at a NAACP banquet in Georgia.
Sherrod’s lawyers said in the suit that Sherrod was forced to resign from her post at the USDA last July after Breitbart “ignited a media firestorm by publishing false and defamatory” statements that Sherrod discriminates against people based on race.
In the video, Sherrod was describing events that happened more than 20 years ago, and she was encouraging people not to discriminate, her lawyers contend. The video on Breitbart’s blog was “deceptively” edited, according to Sherrod’s attorneys.
In court Tuesday, Judge Leon didn’t seem eager to embrace Croll’s argument that because the video and blog were published in California the case should be litigated there.
Leon questioned whether, in this modern era of Internet communication, it makes a difference for venue purposes that a blog is published in, say, California, Texas or Florida. The judge noted the lawyers can hold depositions in California.
Kirkland & Ellis partner Thomas Yannucci, who practices in First Amendment and defamation litigation, and litigation partner Michael Jones, argued for Sherrod.
Jones rejected the suggestion that Sherrod was forum shopping, searching for the most favorable venue in which to litigate. Jones said the video Breitbart published on his blog had a “devastating impact here in Washington, D.C.”
Baker Hostetler partner Bruce Brown, arguing for O’Connor and Breitbart, said the video and commentary are protected opinion speech and urged Leon to dismiss the suit.
Yannucci said in court the video itself is misleading and defamatory in the way it was edited. He argued that Breitbart was making a statement of fact, not an opinion.
“This is not a roughly thrown-together complaint based on suspicions or innuendo,” Sherrod’s lawyers said in court papers. “Mrs. Sherrod has amassed and alleged ample evidence — much of it taken from the defendants’ own admissions — that defendants knowingly or recklessly defamed her.”
Leon did not immediately rule on the venue question and whether to dismiss the suit. He said he would issue an opinion if he grants the defense motions.
Mike Scarcella can be contacted at firstname.lastname@example.org .