I posted an email earlier from a lawyer, Paul Levy, skeptical of Shirley Sherrod’s claims against Andrew Breitbart.

A Houston trial lawyer, Josh Davis, emails to make the opposite case:

If you make a review of defamation case law you’ll discover that, if proven, damages are presumed in a defamation case. The jury must award some damages based on the impact of the defamation on the person’s character and reputation.

The common law on this goes back to the 1600s. The idea being that average people like Sherrod don’t have a megaphone. When a large newspaper, network, or other public megaphone defames them they have less of an opportunity to correct the public record then a politician, celebrity or other public figure. For those public people they must prove prove malicious intent. A private person, such as Sherrod, is not required to make such a showing.

While Sherrod did have a few extra minutes on the stage, and was able to publicly clear her name, if defamation is proven, damages are presumed– a jury will be instructed to award some monetary value to the ordeal, her job offer and subsequent cable rounds notwithstanding.

Also, on the question of whether she’s a “public figure”:

In my opinion she wasn’t public until Breitbart. She obtained vocal media defenders following the ouster, but she certainly has some damages between the time she was summarily fired and the time the truth was known. And it was only when the truth came out that she obtained those public defenders.

Not every public servant is a public official and there are factors to prove a public official vs. servant. For example, this claim would not work for a guy like Van Jones– he had a higher level of public exposure. Prior to Breitbart could you get a lot of hits for Sherrod with a Google search? Probably very, very few. Not the same for Van Jones. The Google standard of review– Posner will be stealing that from me, I’m sure.

I’ve got a plaintiff’s lawyer bias, but I would definitely take Sherrod’s case and, conversely, advise Breitbart to settle for a reasonable amount.

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Original content posted by Ben Smith @Politico

Sherrod’s case, cont’d

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