Andrew Breitbart was a conservative American publisher, commentator, author and editor. He worked for such outlets as the The Washington Times and the news aggregation and blogging site Drudge Report. He was either part of the movement (if you ask Republicans) or his work was “revolting and some of it unethical or sloppy” (if you ask some Democrats). Either way, he was an American and had as much freedom of speech as the next man.

But a lawsuit against the late Breitbart is testing bloggers’ freedom of speech rights. And former government employee (and target of Breitbart’s wrath) Shirley Sherrod is behind it.

Sherrod was ousted from her job as an Agriculture Department rural development official in 2010 after Breitbart posted an edited video of Sherrod, who is black, supposedly making racist remarks. She sued Breitbart, his employee Larry 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. Sherrod’s lawyers say the unnamed defendant is the person whom they believe passed the video on to Breitbart, though the person’s identity remains unknown.

Though the lawsuit was filed a little more than a year ago, it’s back in the news now, as a colleague of Breitbart’s is asking a federal court of appeals to throw out the suit, saying it violates the blogger’s freedom of speech. There are also claims that it violates Washington’s anti-SLAPP statute.

However it ends, it’s clear that the freedom of bloggers and journalists to express their views is being tested. The Breitbart case is not the first incident and will certainly  not be the last. But we must remember, freedom of speech is the foundation of a functioning democracy.