                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-12-00193-CV


                            BRANDON DARBY, APPELLANT

                                             V.

                       THE NEW YORK TIMES COMPANY AND
                        JAMES C. MCKINLEY, JR., APPELLEES

                          On Appeal from the 274th District Court
                                     Hays County, Texas
                 Trial Court No. 11-0528, Honorable Gary L. Steel, Presiding

                                    February 26, 2014

                 CONCURRING AND DISSENTING OPINION
                  Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      I join in Chief Justice Quinn’s opinion, with the exception of its section addressing

the first ground for summary judgment asserted by appellees The New York Times

Company and James C. McKinley, Jr.1 By that ground, appellees contended that the

statement referring to Brandon Darby in McKinley’s article did not constitute libel per se.

Chief Justice Quinn and Justice Pirtle find summary judgment for appellees cannot be

      1
        Like my colleagues, for brevity I sometimes will refer to appellees jointly as
McKinley.
supported on that ground. I respectfully disagree with my colleagues, and would hold

that the trial court’s summary judgment is supported by that meritorious ground, as well

as by the “actual malice” ground Chief Justice Quinn finds meritorious. I thus join in the

judgment affirming the trial court’s judgment for appellees, but dissent from my

colleagues’ conclusion regarding appellees’ first ground for summary judgment.


       There are two types of defamation: per quod and per se. Tex. Disposal Sys.

Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 580 (Tex. App.—Austin

2007, pet. denied), citing Moore v. Waldrop, 166 S.W.3d 380, 384 (Tex. App.—Waco

2005, no pet.). Darby does not dispute that his suit asserted McKinley’s article was

defamatory per se.


       Like the initial determination whether a statement is reasonably capable of a

defamatory meaning, the determination whether a statement is defamatory per se is

“first an inquiry for the court.” Hancock v. Variyam, 400 S.W.3d 59, 66 (Tex. 2013).

Conducting such an inquiry, the trial court “should consider the statements and

determine whether, even without proof of harm, the statements were so obviously

injurious to the plaintiff that, as a matter of law, the plaintiff is entitled to recover

damages.” Tex. Disposal Sys., 219 S.W.3d at 581. “A false statement will typically be

classified as defamatory per se if it . . . charges a person with the commission of a crime

. . . .” Id.; see Main v. Royall, 348 S.W.3d 381, 389 (Tex. App.—Dallas 2011, no pet.)

(libel per se includes written statements that “unambiguously charge a crime”).2




       2
        See Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (West 2011) (defining libel to
include a written defamation that tends to injure a person’s reputation and thereby

                                            2
      A statement’s defamatory meaning is determined “from the perspective of an

ordinary reader in light of the surrounding circumstances.” Hancock, 400 S.W.3d at 66,

citing Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 655 (Tex. 1987); see

Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex. 2000) (allegedly defamatory

publication should be construed as a whole in light of the surrounding circumstances

based upon how a person of ordinary intelligence would perceive it). “The person of

‘ordinary intelligence’ described in [Turner v. KTRK Television, Inc.] is a prototype of a

person who exercises care and prudence, but not omniscience, when evaluating

allegedly defamatory communications.” New Times, Inc. v. Isaacks, 146 S.W.3d 144,

157 (Tex. 2004). The court in Turner cited Kapellas v. Kofman, 1 Cal. 3d 20, 459 P.2d

912, 81 Cal. Rptr. 360 (Cal. 1969) (en banc), for the proposition that a publication

should be viewed “not so much by its effect when subjected to the critical analysis of a

mind trained in the law, but by the natural probable effect on the mind of the average

reader.” Turner, 38 S.W.3d at 114.


      McKinley’s article refers to Darby only in one sentence. The sentence identifies

Darby by name, and describes him as an FBI informant from Austin. In the context of

the article as a whole, it further tells the reader that Darby travelled to Minnesota with

the anarchist group, and told the authorities of McKay and Crowder’s plot to make

firebombs and throw them at police cars. The sentence ends with the statement Darby

had encouraged the plot. The article further tells the reader that McKay and Crowder

were prosecuted, plead guilty and sentenced.



expose the person to public hatred, contempt, ridicule, or financial injury, or to impeach
the person’s honesty, integrity, virtue, or reputation).

                                            3
       In my opinion, an “ordinary reader” or “average reader” of the article is not going

to perceive it as charging Darby with a crime. Nor can I agree that such a reader,

untrained in the law, will read the article as charging Darby with criminal liability for the

conduct of McKay and Crowder, especially given the information Darby was acting as

an FBI informant. The trial court reasonably could have concluded the article did not, as

a matter of law, constitute libel per se, and thus properly granted summary judgment to

appellees on that asserted ground.3




                                                         James T. Campbell
                                                              Justice




       3
          In his response to appellees’ motion for summary judgment, Darby also
asserted the article was damaging to his reputation among law enforcement authorities
and among community activists. See Hancock, 400 S.W.3d at 66 (statement
constitutes defamation per se if it injures a person in his office, profession or
occupation) (citing Tex. Disposal Sys., 219 S.W.3d at 581). Here again, in my view, the
trial court properly could have concluded that an “ordinary reader” would not have so
perceived the article.

                                             4
