                                                                   FILED
                                                                   14-0265
                                                                   2/4/2015 11:52:10 PM
                                                                   tex-4028401
                                                                   SUPREME COURT OF TEXAS
                                                                   BLAKE A. HAWTHORNE, CLERK

                             No. 14-0265

                               In the 
        Supreme Court of Texas
                        BRANDON DARBY,
                                             Petitioner,
                                  v.
               THE NEW YORK TIMES COMPANY 
                AND JAMES C. MCKINLEY, JR.,
                                             Respondents.


        On Petition for Review to the Seventh Court of Appeals, 
         arising from the 274th District Court of Hays County


PETITIONER’S BRIEF                      ON THE       MERITS

                                         
Robert B. Kleinman                      Don Cruse
State Bar No. 24055786                  State Bar No. 24040744
KLEINMAN LAW FIRM, PLLC                 LAW OFFICE OF DON CRUSE
404 West 7th Street                     1108 Lavaca Street,  
Austin, Texas 78701                       Suite 110-436
(512) 299-5329                          Austin, Texas 78701
(512) 628-3390 fax                      (512) 853-9100
robert@kleinmanlawfirm.com              (512) 870-9002 fax
                                        don.cruse@texasappellate.com
                                        COUNSEL FOR PETITIONER 

 
 
 
                   I DENTITY OF P ARTIES AND C OUNSEL

      Please note: This section is unchanged from the petition for review.


Plaintiff/Appellant/Petitioner
      Brandon Darby 
       
      Counsel in this Court          Don Cruse 
      and the court of appeals:       SBN 24040744 
                                     LAW OFFICE OF DON CRUSE 
                                     1108 Lavaca St. #110-436 
                                     Austin, Texas 78701 
                                     (512) 853-9100 
                                     (512) 870-9002 fax 
                                     don.cruse@texasappellate.com

                                     Robert B. Kleinman 
                                       SBN 24055786 
                                     KLEINMAN LAW FIRM, PLLC 
                                     404 West 7th Street 
                                     Austin, Texas 78701 
                                     (512) 299-5329 
                                     (512) 628-3390 
                                     robert@kleinmanlawfirm.com

      Counsel at trial and               Rain Levy Minns 
      in the court of appeals:            SBN 24034581 
                                         MINNS LAW FIRM, P.C. 
                                         4412 Spicewood Springs, Suite 500 
                                         Austin, Texas 78759 
                                         (512) 520-4034 
                                         (512) 861-2403 fax  

                                      



                                           i
Defendants/Appellees/Respondents
     James C. McKinley, Jr. 
     The New York Times Company

     Counsel:                      Laura Lee Prather 
                                    SBN 16234200 
                                   Catherine Lewis Robb 
                                    SBN 24007924 
                                   HAYNES & BOONE, LLP 
                                   600 Congress Ave., Suite 1300 
                                   Austin, Texas 78701 
                                   (512) 867-8400 
                                   (512) 867-8470 fax
      
                                   Jonathan H. Hull 
                                    SBN 10253350 
                                   401 Main Plaza, Suite 200 
                                   New Braunfels, Texas 78130 
                                   (512) 625-8026 
                                   (512) 625-4433 fax 




                                     ii
                                       TABLE OF C ONTENTS

front matter
    Identity of Parties and Counsel .................................................................i

    Table of Contents ....................................................................................iii

    Index of Authorities.................................................................................vi

    Statement of the Case..............................................................................ix

    Statement of Jurisdiction ..........................................................................x

    Issue Presented .......................................................................................xii


brief on the merits
Introduction...................................................................................................1

Statement of Facts .........................................................................................4

    I. Facts Related to the Events in Minnesota .............................................4

         A. Events leading up to the 2008 GOP Convention............................4

         B. A Molotov cocktail plot is thwarted................................................5

         C. McKay first blames Darby, but is forced to recant .........................6

    II. The Facts of the Reporting Process.....................................................7

         A. The February 22, 2011 article ........................................................7

         B. After a second editorial process, the paper publishes  
            a modified article on March 16, 2011 ..............................................9

    III. Procedural History ...........................................................................11

                                                         iii
Summary of the Argument ..........................................................................13

Argument.....................................................................................................16

    I. A Court Evaluating ‘Reckless Disregard’ Must Examine 
       How Conflicting Information Was Reconciled...................................16

         A. The court of appeals refused to examine the reporting process ....17

         B. The record includes contrary facts that have gone unexplained ...18

             1. Statesman article of February 18, 2011 .....................................19

             2. Materials from the Times research department ........................19

             3. Coverage in the Times Past archive .........................................22

         C. Purposeful avoidance raises a fact question ..................................23

         D. The selective omission of facts also raises a fact question ............25

    II. The Court of Appeals’s Approach to ‘Reckless Disregard’  
        Effectively Immunizes Reporters in Public-Figure Cases. .................27

    III. Reckless Disregard of the Truth Should Start With the  
        Same Concept of ‘Truth’ as Other Defamation Elements .................29

         A. Actual malice should be tested against the ‘gist’  
            of the article ..................................................................................29

         B. When evaluating malice, the court of appeals used  
            dictionary definitions rather than evaluating  
            knowledge about the story’s ‘gist’ ................................................32

         C. The movants did not try to establish that they actually  
            held some idiosyncratic view of the meaning of these words ........36


                                                         iv
    IV. The Affidavits Also Failed To Meet Rule 166a .................................37

         A. Defendants’ burden on summary judgment .................................38

         B. Conclusory affidavits do not meet Defendants’ initial  
            summary-judgment burden...........................................................38

         C. Neither defendant met this initial burden ....................................40

              1. The New York Times Company ..............................................40

              2. McKinley .................................................................................42

    V. The Court of Appeals Ignores the Substantial Evidence of  
       Actual Malice in the Second Editorial Process ..................................44

Prayer ..........................................................................................................49

Certificate of Service ...................................................................................50

Certificate of Compliance ...........................................................................50




                                                           v
                                  I NDEX OF A UTHORITIES

Cases
Bentley v. Bunton,  
      94 S.W.3d 561 (Tex. 2002) ................................................................18, 29
Carr v. Brasher, 
      776 S.W.2d 567 (Tex. 1989) ....................................................................38
Casso v. Brand, 
      776 S.W.2d 551 (Tex. 1989) ...............................................................38-39
Churchill v. State, 
     876 A.2d 311 (N.J. App. 2005) ............................................................46n.
Doubleday & Co. v. Rogers,  
      674 S.W.2d 751 (Tex. 1984) ....................................................................17
Firth v. State, 
       775 N.E.2d 463(N.Y. 2002) ..................................................................46n.
Forbes, Inc. v. Granada Biosciences, Inc.,  
       124 S.W.3d 167 (Tex. 2003) ....................................................................36
Franco v. Cronfel,  
      311 S.W.3d 600 (Tex. App.—Austin 2010, no pet.) ..................................x
Harte-Hanks Comm’ns v. Connaughton,  
      491 U.S. 657 (1989).....................................................................18, 23, 24
Huckabee v. Time Warner Ent’mt Co.,  
     19 S.W.3d 413 (Tex. 2000) ...........................x, 23, 24-25, 28, 38, 39-40, 43
In re Davis, 
       334 B.R. 874 (Bankr. W.D. Ky. 2005) ...................................................46n.
Lehman v. Har-Con Corp., 
     39 S.W.3d 191 (Tex. 2001) ......................................................................45
Masson v. New Yorker Magazine, 
     501 U.S. 496 (1991) .....................................................................16, 30-32



                                                    vi
Neely v. Wilson, 
       418 S.W.3d 52 (Tex. 2013) .........................................x, 23n., 27-28, 29-30
New Times, Inc. v. Isaacks, 
     146 S.W.3d 144 (Tex. 2004) ....................................................................29
New Times, Inc. v. Wamstad,  
     106 S.W.3d 916 (Tex. App.—Dallas 2003, pet. denied) ..........................27
New York Times v. Sullivan, 
     376 U.S. 254 (1964) ................................................................................16
Olson v. Westergren, No. 13-10-00054-CV 
      (Tex. App.—Corpus Christi Aug. 18, 2011, pet. denied) ....................x, 18
St. Amant v. Thompson, 
      390 U.S. 727 (1968) ................................................................................15
Turner v. KTRK TV, Inc., 
      38 S.W.3d 103 (Tex. 2000) ......................................................................29
WFAA-TV, Inc. v. McLemore,  
    978 S.W.2d 568 (Tex. 1998) .........................................................36-37, 39
Woodhull v. Meinel, 
     202 P.3d 126 (N.M. App. 2008) ...........................................................46n.

Constitutions, Statutes, and Rules
TEX. GOV’T CODE §22.001(a) ...........................................................................ix
TEX. PENAL CODE §7.02(a)(2) ..........................................................................32
TEX. R. APP. P. 47.1 .......................................................................................45n.
TEX. R. CIV. P. 166a ..........................................................................................39

Other Authorities
MIRRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2003) ....................34
PROSSER AND KEETON ON LAW OF TORTS (5th ed. 1984) ................................31
RESTATEMENT (SECOND) OF TORTS §563........................................................31 

                                                         vii
                           STATEMENT OF THE C ASE

    Nature of the Case:        Defamation

           Trial Court:        274th District Court, Hays County
                               Hon. Gary Steel

Course of Proceedings:         Traditional summary judgment

Trial Court Disposition:       Granted summary judgment for defendants
                               without specifying grounds. Tab A.

     Parties on Appeal:        Appellant:    Brandon Darby 
                               Appellees:    James C. McKinley, Jr. 
                                             The New York Times Company
      Court of Appeals:        Transferred to the Seventh Court of Appeals,
                               where the panel was Chief Justice Quinn, Justice
                               Pirtle, and Justice Campbell.

           Disposition:        On February 26, 2014, the court of appeals
                               divided 2-1 to affirm:
                               • Chief Justice Quinn concluded that the ground
                               of actual malice supported summary judgment.
                               Tab B.
                               • Justice Pirtle concurred and dissented,
                               concluding that the defendants had failed to meet
                               their summary judgment burden on actual
                               malice. Tab C.
                               • Justice Campbell also concurred and dissented.
                               He would have found a second ground supported
                               summary judgment. Tab D.




                                      viii
                      STATEMENT OF JURISDICTION

      This case implicates Government Code §22.001(a)(1), (2), and (6).

      Dissent jurisdiction: The panel had two dissents. One Justice dissented

on “actual malice” and the judgment. See Tab C. A second dissented on what

legal standard governs defamation per se. See Tab D.

      Importance jurisdiction: Beyond the importance of coherent First

Amendment principles, the court of appeals’s approach to “actual malice” poses

risks for future media defendants. First, by refusing to require initial summary-

judgment affidavits to detail how conflicting evidence was rejected, or even what

source materials actually were consulted, the court of appeals’s approach will

necessitate more frequent and more intrusive early depositions, both of the press

and its sources. Indeed, depositions are precisely what the court of appeals

recommends to address vague and detail-lacking affidavits. Op. 18. That

approach is inferior to simple adherence to Rule 166a.

      Second, to fill those gaps in the affidavits, the court of appeals violates the

core idea that actual malice is subjective. It parses out-of-context phrases from

deep within a document that there is no evidence that McKinley ever read, or

even saw. Op. 16. And it credits McKinley with his sources’ own subjective

knowledge, rather than what they actually told him to influence his. Op. 15-16.


                                         ix
This loose approach to actual malice, which rescued the media defendants here,

presents a double-edged sword for those sued in future cases.

      Conflicts jurisdiction: The opinion below presents serious problems for

how actual malice should be analyzed, some of which present direct conflicts

with previous decisions of sister courts and this Court, including:

      • whether reckless disregard should be measured against the gist of
        the article or against some idiosyncratic meaning derived from
        dictionary definitions, see pp. 29-37; cf. Neely v. Wilson, 418 S.W.3d
        52, 69 (Tex. 2013) (examining whether a defendant “acted with
        actual malice as to the gist of the broadcast”).

      • when it is proper to examine a reporter’s internal research process
        when evaluating reckless disregard, see pp. 16-18, such as by evi-
        dence of purposeful avoidance or that facts needed for context
        were selectively omitted to give a different impression, see
        pp. 23-26; cf. Olson v. Westergren, No. 13-10-00054-CV, 2011 Tex.
        App. LEXIS 6611, at *8-10 (Tex. App.—Corpus Christi Aug. 18,
        2011, pet. denied); Franco v. Cronfel, 311 S.W.3d 600, 607 (Tex.
        App.—Austin 2010, no pet.); Huckabee v. Time Warner Ent’mt
        Co., 19 S.W.3d 413, 425-26 (Tex. 2000).




                                         x
                       I SSUE P RESENTED

The court of appeals’s handling of actual malice presents five
different sub-issues:

1. Purposeful avoidance and selective omission. The court of
   appeals sided with an anachronistic view of Texas law in holding
   that it was barred from considering irregularities in the reporting
   process when evaluating “reckless disregard.” It therefore refused
   to consider evidence of both purposeful avoidance and selective
   omission of facts needed for context.

2. One source does not conclusively disprove reckless disregard.
   In tension with the recent Neely decision rejecting the third-party
   allegation rule, the court of appeals has effectively immunized a
   reporter with at least one unattributed source.

3. Whether the reporter held a different, idiosyncratic
   understanding of his own article is another fact question. The
   court of appeals evaluated malice using a different meaning for
   “encourage” than it had used to test defamation per se, substantial
   truth, or protected opinion, thereby failing to test whether the
   reporter had serious doubts about the truth of what an ordinary
   reader would glean from the story.

4. Initial burdens on summary judgment. The affidavits here are
   conclusory and failed to conclusively negate actual malice by
   detailing the reporting and editorial processes that led to this
   accusation.

5. Second publication. There is no evidence negating actual malice as
   to the March 16, 2011 version of the article—which came after two
   knowledgeable reporters had written McKinley highly critical of his
   specific charge against Darby. 

                                 xi
                                I NTRODUCTION

      Actual malice defines the outer boundary of the First Amendment’s

protection of truthful reporting. It protects certain untruthful reports, so long as

the defendants have shown the right attitude toward truth. When a defendant

exhibits appropriate care for the truth of what they are reporting, this doctrine

creates a zone of First Amendment protection shielding them even if it later

turns out they were mistaken. But when a defendant exhibits reckless disregard

for the truth or falsity of what is published, there is no First Amendment interest

in protecting them from the consequences of having published falsehoods that

damage another’s reputation.

      The courts have recognized that reckless disregard for the truth or falsity

of a report constitutes actual malice. That can include a reporter who disregards

contrary information without explanation, a reporter who purposefully avoids

learning information that could blow up their working thesis, or a reporter who

selectively omits exculpatory facts and thus conveys a false impression.

      Those hallmarks of reckless disregard are present here. This reporter,

James McKinley, has offered no information about how he chose to disregard a

research bundle he was sent by Times researchers that cast doubt on the

accusation he made against Darby. His email acknowledging receipt says he


                                         1
thought it was “Great. This is great.” But his affidavit does not explain what he

did with that material. Nor does it explain his choice to avoid what key

documents from the Minnesota trial said—even after he assured another Times

editorial staffer that he would “check on the legal question.” And neither

McKinley nor his editors has explained their selective omission of exculpatory

facts, such as that a federal judge already rejected the gist of their theory.

      On February 22, 2011, McKinley and the Times published an accusation

that the plot to use Molotov cocktails against police cars at the 2008 GOP

Convention, one that Darby reported to the FBI and with their help stopped,

was actually one that “he had encouraged.” The difference is one of cause or

cure. After that 2008 incident, one of the Minnesota plotters made a similar

charge against Darby and obtained an initial mistrial. But he later recanted,

under oath, at his federal sentencing—and a judge concluded that this attempt to

blame Darby was obstruction of justice warranting a sentencing enhancement.

The FBI issued a press release with the details, and the finding was reported by

the local press—and by The New York Times. The FBI press release and local

press accounts were within the focused research bundle that McKinley received.

The Times archive was brought to his attention by a copy-editor who flagged




                                          2
another way his account diverged from the Times’s prior coverage. Yet he

pressed forward in making this accusation.

      After the print publication of his article, two outside reporters contacted

McKinley to relay their concerns about what he had written. Both noted the

discrepancy between his unqualified accusation and the state of the facts as they

knew them. Both had far greater knowledge of the underlying facts; both told

McKinley as much. He thanked one of them for “straightening us out.” But,

when it came time for the paper to make some corrections to the piece,

McKinley and his editors repeated without qualification their accusation.

      A divided court of appeals held that the reporter and newspaper had

conclusively, beyond any fact question, established a lack of reckless disregard

and thus were entitled to summary judgment. But if this record does not at least

show a fact question for summary judgment, with all reasonable inferences to be

drawn against summary judgment, it is difficult to see what short of an outright

confession might meet that test. The court of appeals was fundamentally wrong

about its role in a defamation case. When evaluating actual malice, courts can

inquire into the reporting process and, thereby, protect the balance stuck by the

First Amendment’s actual-malice doctrine.




                                         3
                               STATEMENT OF FACTS

I.     FACTS RELATED TO THE EVENTS IN MINNESOTA
       The colorful backstory involves Austin-based anarchist groups, a thwarted

plot to use Molotov cocktails at the 2008 Republican Convention in Minnesota,

and an FBI informant traveling with them who told authorities about the plot.

       A.     Events leading up to the 2008 GOP Convention

       Brandon Darby built a reputation among activists through his

unconventional work in New Orleans after Hurricane Katrina. 2CR487.1 His

group, Common Ground, eventually earned the begrudging respect of local law

enforcement. 2CR488.

       In 2007, Darby moved to Austin. He explored the idea of an organization

to provide aid overseas, but while discussing that idea, he was propositioned to

help fund terrorism in Israel. 2CR492-93 (“And I was, like, ‘No, I’m not… I’m

not doing this, man.’”). Darby called a police officer he trusted in New Orleans,

who in turn told Darby to call the FBI. 2CR492-93. Darby did. 2CR493.

       The next year, the FBI asked Darby to check out a local Austin activist

group that was planning to protest the 2008 Republican National Convention.



1This citation, along with some others here, is to a This American Life episode about Darby
and the events in Minnesota, which is part of the summary-judgment record.

                                              4
“Brandon thought [this] was a waste of time, but he says when he got there, the

group used a phrase that alarmed him. They talked about protests involving a

diversity of tactics.” 2CR494. The FBI asked Darby to travel to the Republican

Convention with the group, which included McKay and Crowder. 3RR1220, ¶4.

      B.    A Molotov cocktail plot is thwarted

      On August 31, 2008, two members of the group (McKay and Crowder)

bought components for Molotov cocktails, including a gas can, tampons, motor

oil, and rubber bands at a Walmart in St. Paul, Minnesota. 3CR1213. Darby was

not aware of this bomb plot until it was underway. 3CR1223, ¶45-47. Another

person traveling with the group told Darby about these materials. 3CR1220-21,

¶¶7-8; 3CR1222, ¶24. Darby then told the FBI about the plot. 3CR1214.

      In the timeline of this defamation case, this is the precise point—when

Darby “told authorities of the plot”—described in the article:

      An F.B.I. informant from Austin, Brandon Darby, was traveling with
      the group and told authorities of the plot, which he had encouraged.

2CR425 (emphasis added). Darby alleges that the statement that “he had

encouraged” this plot is defamatory, portraying him as someone who took part

in a serious crime rather than as the one who stopped it.




                                        5
      After Darby told the FBI, he was asked to gather more information. To

that end, the FBI arranged to record discussions between Darby and McKay.

3CR1215. In one recorded conversation, according to the affidavit of an FBI

agent, McKay said “that he [McKay] and Crowder manufactured several

Molotov cocktails together.” 3CR1215. McKay then described how these

bombs had been assembled and how and where he intended to use them.

3CR1215. Soon after, the bomb materials were seized. The FBI agent in charge

later thanked Darby for his role in stopping this plot. 3CR1221, ¶13 (“[He] later

wrote to me … ‘Brandon: we would not have stopped this … without you.”);

3CR1309 (note).

      C.     McKay first blames Darby, but is forced to recant

      In the criminal prosecutions that followed, McKay’s first defense strategy

was claiming that Darby urged him to make the Molotov cocktails. 3CR1093.

That approach secured an initial mistrial, but when McKay learned that his

friend Crowder would to testify against him in a second trial, McKay recanted.

3CR1093-95. After a plea, at his sentencing hearing, McKay testified, “I

embellished and, I guess, factually lied that Brandon Darby came up with the

idea about the Molotov cocktails.” 3CR1121. The federal judge enhanced his

sentence, finding that he had obstructed justice in his first trial by trying to


                                          6
blame Darby. 3CR1127; 3CR1289. The coverage of this sentencing in The New

York Times noted that, although McKay had first blamed Darby, his story

changed under oath: “McKay told a federal district judge that he would have

made the bombs without knowing [] Darby.” 3CR1133 (Mar. 18, 2009 piece).


II.   THE FACTS OF THE REPORTING PROCESS
      A.    The February 22, 2011 article

      On Friday, February 18, 2011, the Austin American-Statesman ran an

update on the investigation of the Texas Governor’s Mansion arson.

3CR1131-32. That piece was straightforward and mentioned Darby’s role in

stopping the Minnesota plot in 2008:

      “Authorities said the men intended to use the Molotov cocktails on
      police vehicles and perhaps even police officers, but their plot was
      stopped with the help of Austin-area activist turned government in-
      formant Brandon Darby.” (3CR1131).

Later that day, James McKinley wrote an email to that Statesman reporter asking

how to contact “any of these anarchist types you quoted today,” explaining, “I

need to match your story.” 3CR1229. He eventually spoke to Scott Crow, a

member of the local anarchist community who did not travel to Minnesota, and

to McKay’s criminal-defense attorney. 2CR767-68.




                                       7
      A research staffer at The Times emailed McKinley the text of three articles

related to the Minnesota incident, including:

      • The Department of Justice press release about McKay’s sentenc-
        ing hearing, which included that “[t]oday’s sentence [of McKay]
        included a finding by Judge Davis that McKay obstructed justice
        at his January trial by falsely accusing a government informant,
        Brandon Darby, of inducing him to manufacture the Molotov
        Cocktails,” 3CR1241; and

      • A contemporaneous article from the Pioneer Press of St. Paul,
        Minnesota in which “Crowder said he and McKay, alone, built the
        devices and nobody influenced their decision to do so,” 2CR1232.

McKinley acknowledged receipt of that packet of information, 2CR1231

(“Great. This is great.”). His affidavit does not say, however, if he read these

articles or how he squared this information with his contrary thesis. 2CR768.

      McKinley also heard from another Times staffer, who told him that “two

previous Times Past [archive] references to the St. Paul convention case say the

two men pleaded guilty…” 3CR1149-50. McKinley acknowledged that email

and said that he would look into it. 3CR1149 (“I’ll check on the legal question.”)

His affidavit does not mention this, or explain whether he did “check on” those

questions or how he reconciled what he found with his thesis. 2CR768.




                                         8
      On February 22, 2011, The New York Times published McKinley’s

accusation stating flatly, and without qualification, that the plot Brandon Darby

reported to the FBI was one “he had encouraged”:

      Yet federal agents accused two men from these circles of plotting to
      make firebombs and hurl them at police cars during the convention.
      An F.B.I. informant from Austin, Brandon Darby, was traveling with
      the group and told the authorities of the plot, which he had
      encouraged.

2CR425. The article does not mention McKay’s retraction or a federal judge’s

conclusion that his allegation against Darby had obstructed justice. 2CR424-26.

      B.      After a second editorial process, the paper 
              publishes a modified article on March 16, 2011

      Shortly after, other journalists shared what they knew about these facts.

On February 24, 2011, Michael May, who spent months researching the episode

of This American Life about Darby and Minnesota, emailed McKinley:

      I read your article on the mansion fire with interest. But I was very
      surprised by this sentence:

           An F.B.I. informant from Austin, Brandon Darby, was traveling
           with the group and told the authorities of the plot, which he had
           encouraged.

      I spoke to Brad Crowder yesterday and he told me that Brandon only
      learned they’d made the Molotov cocktails after the fact. My inves-
      tigation uncovered that Darby may have encouraged the group to


                                         9
      prepare for a violent confrontation with a [sic] police, … [b]ut this is
      quite different from saying he encouraged “the plot” to build Molo-
      tov cocktails.

3CR1253-54 (emphasis added).

      Jim Walsh, a journalist at the Minneapolis Star Tribune, also wrote, noting

the lack of essential context:

      I covered this case from beginning to end, including the trial. Darby
      repeatedly testified that he NEVER encouraged violence or the
      making of Molotov cocktails. That was a defense of [McKay]’s, that
      Darby talked him into it. [McKay] won a hung jury with his en-
      trapment defense, but later admitted he lied when Crowder was go-
      ing to testify against him.

3CR1256.

      McKinley did not budge, and there is no evidence whether or when he

shared these criticisms with his superiors. It was after being sued that “we

immediately investigated whether a clarification or correction was in order, and,

if so, what it should state.” 2CR903-04, ¶8 (Strum); see also 2CR769, ¶16

(McKinley). The affidavits provide no details about the second editorial

process, how it took into account the specific criticisms brought to its attention

by journalists Walsh and May, what other sources and research materials the

newspaper considered to support its contrary view, or how it led to a revised

article that — while changing the context of the accusation against Darby by

                                        10
including some details from the later criminal trials — still maintains that Darby

“had encouraged” “the plot” that he reported to the FBI.

      On March 16, 2011, the newspaper published a correction notice with

some details about McKay and Crowder’s criminal proceedings. 2CR577. It

also replaced the original article in online archive with this new version.

2CR581-83. The new version still contained an unqualified accusation against

Darby, now set against a new context describing more of McKay and Crowder’s

trial proceedings. 2CR581-83.


III. PROCEDURAL HISTORY
      On March 10, 2011, Darby filed suit. 1CR1-17. On September 7, 2011,

Darby filed a second amended petition that took into account the new version

published beginning March 16, 2011. 1CR160-61, ¶¶49-51, ¶¶53-54; see also

1CR161, ¶54 (providing the URL for that new version).

      Defendants filed a new answer, along with a new set of special exceptions,

1CR209-223, which included an assertion that the petition “fails to mention that

The New York Times printed a clarification that has been permanently appended

to the online version of the article.” 1CR209-210 (Exception B). A third

amended petition was filed on January 11, 2012 to remove any doubt that the

March 16, 2011 version is a distinct basis for defamation liability. 3CR1044-45.

                                         11
      In the meantime, Defendants had filed this motion for summary judgment.

2CR366-1024. Darby filed his response to the summary-judgment motion on

January 12, 2012. 3CR1170-1411. The trial court held a hearing on January 19,

2012. Defendants brought a reply brief and a set of motions to strike with them

to the hearing, having filed them that morning. 3CR1824-52 (reply);

3CR1853-72 (motion to strike).

      On March 28, 2011, the trial court granted the motion for summary

judgment. 3CR1887. The court also denied Defendants’ pending request to

strike the third amended petition. 3CR1886; 3CR1894. An appeal was taken to

the Third Court, 3CR1895, and the case was transferred by docket-equalization

order to the Seventh Court.

      On February 26, 2014, the three-judge appellate panel issued three

separate opinions. The majority held, by a 2-1 vote, to affirm the summary

judgment on the sole ground of actual malice. Op. 22. Justice Pirtle in dissent

would have reversed on all grounds, concluding that fact questions remained on

actual malice. Dissent Op. 6-7. Justice Campbell concurred. He would have

found that a second ground supported summary judgment. Concurring Op. 4.

      This petition followed and, on November 21, 2014, the Court requested

briefing on the merits. 


                                       12
                      SUMMARY OF THE ARGUMENT

      The indications of reckless disregard here should have easily defeated a

traditional motion for summary judgment. The reporter was sent at least two

emails by other staffers at his newspaper, pointing him to information

contradicting his thesis (including that one of the parties he painted as a victim

had recanted his allegations under oath, in front of a judge). Yet McKinley’s

article made an unqualified, unattributed accusation that Darby “had

encouraged” “the plot” he reported to the FBI. That stark allegation led, in

turn, to even more remarkable evidence: critical emails sent to McKinley from

two outside journalists, each of whom were far more knowledgable about the

underlying facts, who told him that his accusation departed from the facts.

Those emails arrived before the paper’s second editorial process, and yet were

ignored as the newspaper again accused Darby, in the unqualified voice of the

newspaper itself. Whether reckless disregard is analyzed as selective omission of

exculpatory facts, purposeful avoidance of those facts, or outright refusal by

defendants to detail in affidavits how they came to reject the contrary

information known to them, this record should defeat summary judgment.




                                        13
      Instead of crediting the summary-judgment evidence, the court of appeals

made a series of untenable legal holdings:

      • It declined to examine details of the reporting process. Op. 19-20.
        Nowhere in the opinion does it discuss, for example, the contents
        of the research bundle sent to McKinley, nor does it discuss the
        back-and-forth that McKinley had with an editor in which he
        promised to look into issues related to the Minnesota sentencing.

      • Looking to support for the idea that the reporter was not reckless,
        the court of appeals looked to documents there is no basis to think
        the reporter ever saw—and then drew improper inferences from
        that evidence against the non-movant. E.g., Op. 15-19; see also
        Dissent Op. 5-6 (criticizing that aspect of the majority).

      • It described having a source as essentially outcome-determinative:
        “[r]elying on a single source of information which source reflects
        only one side of the story is not actual malice.” Op. 16-17.

      • Ignoring what it had already held was the article’s ‘gist’ as would
        be understood by an ordinary reader, it used dictionary definitions
        of “entrap” and “encourage” to develop a “distinction” under
        which knowledge “about McKay recanting or being found to have
        obstructed justice by lying” would be “irrelevant.” Op. 21-23.

      • The court also held that the boilerplate affidavits, which merely
        stated that they had no reason to doubt the article, were “of a type
        that could be readily controverted [because] Darby could have de-
        posed McKinley and Strum to test their representations.” Op. 18.

Those legal errors infect every part of the judgment below.



                                        14
      And there is a second major reason to reverse: the second version of the

article was published after the defendants had even more information in their

possession, including two remarkable emails from other journalists critical of

precisely the accusation made against Darby here. 3CR1253-54; 3CR1256. Yet

the defendants have offered no summary-judgment evidence to explain how they

chose, in the face of those emails, to again make an unqualified accusation of

wrongdoing against Darby. Far more than boilerplate affidavits would be

required, if indeed conclusive disproof of reckless disregard were possible given

these unusual circumstances. Cf. St. Amant v. Thompson, 390 U.S. 727, 732

(1968) (“The defendant in a defamation action … cannot, however,

automatically insure a favorable verdict by testifying that he published with a

belief that the statements were true. The finder of fact must determine whether

the publication was indeed made in good faith.”). Although the Court should

reverse the judgment in its entirety, if it does not, it should at a minimum reverse

on this second publication.




                                        15
                                  ARGUMENT

I.    A COURT EVALUATING 'RECKLESS DISREGARD' MUST EXAMINE
      HOW CONFLICTING INFORMATION WAS RECONCILED.
      Actual malice is an attitude toward truth, not toward the plaintiff. Masson

v. New Yorker Magazine, 501 U.S. 496, 511 (1991). It does not require actual

awareness that an accusation is false, although that is sufficient. New York Times

Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). A person can also exhibit actual

malice through a “reckless disregard of whether it was false or not.” Id. (quoted

in Masson, 501 U.S. at 510).

      McKinley might have set out to “match” the Statesman’s straightforward

account of an update about an ongoing criminal investigation, 3CR1229, but he

took a very different path. He painted the local Austin anarchist community as

peaceful and engaged in good works, an inexplicable target for the authorities

investigating the 2008 arson at the Governor’s Mansion. 2CR424-26. The piece

suggests the image of anarchists as violent is “dated,” contrasting that with their

“run[ning] a recycling center, a food-distribution program, a bookstore, a cafe,

and even a thrift shop.” 2CR425. It also portrays the investigators as out-of-

place (“rangers in their trademark cowboys hats … [in] the city’s countercultural

hangouts”) and ultimately out-of-touch with this new strain of anarchism.



                                        16
      McKinley’s thesis confronted inconvenient facts: two members of this

same anarchist community were convicted of federal crimes related to a plot to

firebomb a political convention, at about the same time as the 2008 Governor’s

Mansion arson. McKinley’s solution was to explain away “the plot” as

something the federal informer Darby “had encouraged,” and thus no basis for

suspecting Austin’s community of utopian anarchists. 2CR425.

      A.     The court of appeals refused to examine the reporting process

      In evaluating reckless disregard, the court of appeals refused to examine

the reporting process itself. It brushed aside Darby’s evidence related to the

newspaper’s internal research process, reasoning that it was prohibited from

what it called “guess[ing] about that” by the general rule that a mere failure to

investigate did not show actual malice. Op. 19-20. And it wrongly held that even

the bundle of research materials that the record shows was gathered by internal

staffers and acknowledged by McKinley prior to publication “misses the mark”

of relevance. Op. 19.

      The court of appeals relied on broad statements in, among other

authorities, Doubleday & Co. v. Rogers, 674 S.W.2d 751 (Tex. 1984). Op. 19-20.

But as other courts of appeals and this Court have recognized, evidence about

deliberate failures to investigate or other irregularities in the research process


                                         17
can be combined with other evidence suggesting subjective intent—such as a

defendant’s desire to avoid the truth, or the deliberate omission of facts needed

for proper context—to be at least some evidence of actual malice. E.g., Olson v.

Westergren, No. 13-10-00054-CV (Tex. App.—Corpus Christi Aug. 18, 2011, pet.

denied) (“Olson’s failure to investigate does not stand alone in this case”); see

also Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002) (citing Harte-Hanks

Comm’ns v. Connaughton, 491 U.S. 657, 667-68 (1989)).

      Standing on the wrong side of that division in the law, the court of appeals

did not credit—and because of its erroneous view of Texas law, did not even

discuss—the red-flag evidence that Lyles and Bagley put in McKinley’s email

box during the editing process. As explained more below, McKinley’s

unexplained avoidance of this information, and omission of that necessary

context from his article, should have defeated summary judgment.

      B.    The record includes contrary facts that have gone unexplained

      This record contains documents from McKinley’s email box, including

emails from other Times staffers directing him to materials raising doubts about

the truth or falsity of his story about Darby. The affidavits do not explain how

these materials were used.




                                        18
            1.    Statesman article of February 18, 2011

      McKinley’s reporting began with another paper’s conclusion. He was

assigned to (in his words) “match” some original reporting by the Austin

American-Statesman. 3CR1229 (“Hate to do this, but I’m [McKinley] up a

creek… I need to match your [Three Tied to Arson Inquiry] story.”). The

article that McKinley set out to “match” described Darby as the person who

“stopped” the plot—not who started it:

      Authorities said the men intended to use the Molotov cocktails on
      police vehicles and perhaps even police officers, but their plot was
      stopped with the help of Austin-area activist turned government in-
      formant, Brandon Darby.

3CR1311. Yet McKinley, who had not previously researched the events in

Minnesota, 2CR767, ¶5, published the opposite accusation in his own piece.

McKinley does not explain what (if any) process he followed to reconcile his own

conclusion with that of the Statesman piece that he had set out to match.


            2.    Materials from The New York Times research department

      Before publication, McKinley asked Toby Lyles, a researcher at The New

York Times, to provide him with more information about the Texas Two case.

We know that he was sent the text of at least three articles. 3CR1231-44.

McKinley replied to this email, “Great. This is great.” 3CR1231.


                                       19
      The three items in that bundle were: (1) the Department of Justice press

release from May 21, 2009 about McKay’s sentencing hearing; (2) an article

about McKay’s trial and Darby’s role from the Pioneer Press of St. Paul,

Minnesota dated January 25, 2009; and (3) an Austin American-Statesman article

about the case.

      The Department of Justice press release included the following:

      Today’s sentence [of McKay] included a finding by Judge Davis that
      McKay obstructed justice at his January trial by falsely accusing a
      government informant, Brandon Darby, of inducing him to manu-
      facture the Molotov Cocktails.

      …

      During a conversation overheard by law enforcement through elec-
      tronic surveillance on Sept. 2, McKay told an informant that he in-
      tended to throw Molotov cocktails at police vehicles parked in a lot
      [that was]... visibly patrolled by U.S. Secret Service, various police
      agencies and the military.

3CR1241 & 3CR1243. McKinley thus had before him a statement—from the

Department of Justice—that a federal judge found that McKay obstructed

justice by falsely accusing Darby of inducing him to make the firebombs. Yet

McKinley published a contrary statement, with reckless disregard for its falsity.

McKinley says that he relied on his recollection of a discussion with McKay’s

attorney, 2CR768, ¶9, the person whose litigation strategy in McKay’s first trial

                                        20
was arguing that Darby had entrapped him. Given that context, McKinley offers

no explanation why he treated DeGree’s account as sufficiently authoritative to

support an unqualified accusation. St. Amant v. Thompson, 390 U.S. 727, 732

(1968) (“recklessness may be found where there are obvious reasons to doubt

the veracity of the informant or the accuracy of his reports”).

       The St. Paul Pioneer-Press story described a trial proceeding in which

Crowder gave testimony casting serious doubt on whether Darby “had

encouraged” this plot:

       Under questioning by a prosecutor, his lawyer and Davis, Crowder
       said he and McKay, alone, built the devices and nobody influenced
       their decision to do so.

2CR1232.2 This article should have cast doubt both on the statement and on

using DeGree as the source for a contrary accusation here.




2 If McKinley saw those transcripts—his affidavit does not specify what research materials he
was provided—he would have seen that McKay’s sentencing contains the following
admission: “I embellished and, I guess, factually lied that Brandon Darby came up with the
idea about the Molotov cocktails.” 3CR1296. That led to a finding by the judge that
McKay’s earlier testimony had been an obstruction of justice and thus warranted a sentencing
enhancement. 3CR1289.

                                             21
       The Statesman article references (and quotes) an affidavit by the FBI

highlighting McKay’s role as the one advocating the use of Molotov cocktails

against police cars. That article says:

       In a conversation recorded by the FBI, McKay told the FBI infor-
       mant later identified as Darby that he planned to throw the explo-
       sives at a parking lot used as a staging area for police and federal
       agents, an FBI affidavit said.

       “What if there’s a cop sleeping in the car?” Darby asked McKay,
       according to the affidavit.

       “He’ll wake up,” McKay replied, according to the affidavit.

       McKay also said, “It’s worth it if an officer gets burned or
       maimed,” the affidavit said.

2CR1241.3


              3.      Coverage in the Times Past archive

       In 2009, The New York Times published an article about McKay’s

sentencing. The newspaper reported: “Mr. McKay told a federal district judge

that he would have made bombs without knowing Mr. Darby.” 3CR1133. While

there is no general rule that a publication is always charged with knowledge of its


3The “FBI affidavit” it mentions explains: (1) that McKay and Crowder made the Molotov
cocktails without the knowledge of Brandon Darby; (2) that it was ultimately through the
actions of Darby that the FBI was able to prevent the bombing. 2CR1211-18 (Langert
affidavit). No evidence says whether this affidavit was considered in either editorial process.

                                              22
own archives, this record contains evidence that the editorial staff and reporter

were made aware of these reports about the events in Minnesota.4 The email

from Marlene Bagley to McKinley points out that “two previous Times Past

[archive] references to the St. Paul convention case say the two men pleaded

guilty…” 3CR1149-50. McKinley acknowledged that email and said that he

would look into it. 3CR1149 (“I’ll check on the legal question.”). His affidavit,

however, leaves us guessing whether McKinley did follow through—and if not,

why not. The Times Past story about the sentencing included McKay’s

retraction of his earlier accusation. 3CR1133. Without some explanatory details,

the affidavits do not conclusively disprove reckless disregard.

       C.     Purposeful avoidance raises a fact question

       McKinley avoided the evidence that “would have confirmed or denied

many of [the] claims” he sought to level at Darby to bolster his story about the

peaceful local anarchist community. Huckabee v. Time Warner Ent’mt Co., 19

S.W.3d 413, 427-28 (Tex. 2000) (citing Harte-Hanks, 491 U.S. at 692). That a

reporter “purposefully avoided learning facts” can suggest actual malice. That

4In its reply brief below, Defendants assert “McKinley did not know of the [2009] article …
prior to writing his article.” 3CR1831 n.22. His affidavit does not say, and the Bagley email
suggests he was pointed in the direction of two Times Past articles about that event. The
reasonable inference from the evidence in the record is that he did. See Neely, 418 S.W.3d at
59-60 (must indulge every reasonable inference and resolve any doubts against the motion).

                                              23
same principle should have at least defeated summary judgment here. Yet the

court of appeals, with its overly rigid view of “reckless disregard,” did not even

entertain this argument.

      In Harte-Hanks, the newspaper published an allegation of corruption,

without actually listening to a recording it had been provided that “would have

confirmed or denied many of Thompson’s claims.” Huckabee, 19 S.W.3d at

427-28 (citing Harte-Hanks Comm’ns, Inc. v. Connaughton, 491 U.S. 657, 692

(1989)). That paper “failed to interview Stephens, the one person not associated

with Connaughton who could have confirmed or denied Thompson’s

allegations.” Huckabee, 19 S.W.3d at 427 (citing Harte-Hanks, 491 U.S. at

691-92). “[T]he newspaper’s failure to consult the two sources that could have

objectively verified the story was evidence that the newspaper purposefully

avoided learning facts that would have shown the story to be false.” Id. That a

newspaper “purposefully avoided learning facts” was enough to establish actual

malice in Harte-Hanks and support a defamation claim.

      Huckabee stands as a useful contrast. There, the Court found that

filmmakers had not purposefully avoided the truth where they “interviewed

several people on both sides of the story, including [the accused]” and they read

“among other documents, the transcript of the [court] hearing.” Huckabee,


                                        24
19 S.W.3d at 428 (emphasis added). Our case is different on both counts.

McKinley only spoke to DeGree (who was McKay’s lawyer in the first trial, the

one in which the federal judge later concluded McKay had obstructed justice by

blaming Darby) and to Scott Crow. This is barely one “side” of the story,

certainly not both sides, and Defendants’ refusal to seriously consider the other

resources brought to its attention was purposeful avoidance. At the least, given

the inferences to be drawn in favor of the non-movant, a fact question remains.

      D.    The selective omission of facts also raises a fact question

      Certain facts omitted from a story can also support an inference of actual

malice sufficient to defeat summary judgment. Huckabee, 19 S.W.3d at 426. The

example the Court gave is instructive:

      For example, when an article reported that an FBI memorandum
      mentioned plaintiff several times in connection with Jimmy Hoffa’s
      disappearance, the newspaper’s decision not to report that the
      memorandum also cleared plaintiff of wrongdoing was held to be
      evidence of actual malice. In such a case, the omission so changes
      the character of the story that one could infer that the defendant
      knew, or at least suspected, that the omission would convey a false
      impression.

Id. (emphasis added; citations omitted). That fits our case. Defendants

reported an allegation made against Darby without reporting that the

prosecutors and a federal judge formally rejected it. Nor did the article report

                                         25
that McKay had recanted this allegation at his sentencing, as had Crowder at his.

2CR1232.

      By contrast, when the New York Times covered this case in 2009, the

article included the statement “Mr. McKay told a federal district judge that he

would have made the bombs without knowing Mr. Darby, said David Anderson,

a spokesman for the United States Attorney’s Office.” 3CR1133. That reporter

wrote an email to Darby explaining:

      I thought it was important to include something in the Times making
      the point that McKay told the judge that he would’ve made explo-
      sives whether or not he knew you. In particular I think that was
      necessary on many levels after all the attention the original stories
      stirred up about the “Austin Affinity Group.”

3CR1135. McKinley and Strum chose to omit those same facts. That decision,

unexplained in their affidavits, is at least some evidence toward actual malice.

Yet the court of appeals, with its overly rigid view of reckless disregard, did not

even entertain this argument.




                                         26
II.   THE COURT OF APPEALS’S APPROACH TO ‘RECKLESS DISREGARD’
      EFFECTIVELY IMMUNIZES REPORTERS IN PUBLIC-FIGURE CASES.
      Neely rejected the suggestion by various media groups that the press is

effectively immune, so long as they attribute defamatory statements to a third

party. Neely v. Wilson, 418 S.W.3d 52, 64-65 (Tex. 2013) (“we cannot locate such

a rule in any other jurisdiction [and] did not establish a third-party allegation rule

in McIlvain [v. Jacobs, 794 S.W.2d 14 (Tex. 1990) (per curiam)]”).

      The court of appeals may have created a loophole for public-figure cases.

It held that having one source for a defamatory statement—even an unattributed

source—was not merely some evidence relating to “reckless disregard” but was

actually conclusive evidence, obviating any need for the court to evaluate

competing evidence about the reporting process. Op. 16-17 (“As stated, a

reporter may rely on statements by a single source.”) (citing New Times, Inc. v.

Wamstad, 106 S.W.3d 916, 928 (Tex. App.—Dallas 2003, pet. denied)). But

what the Dallas Court did not hold in Wamstad, and this Court has never held, is

that a reporter can rely on a single source despite indications calling into doubt

the truth of the statement being made.

      Much as the inquiry into substantial truth does not end as soon as a third

party is willing to be credited with a defamatory statement, see Neely, 418 S.W.3d



                                         27
at 64-65, the inquiry into reckless disregard does not stop if a source is willing to

whisper some self-serving falsehood into the reporter’s ear.

      The inquiry for ‘reckless disregard’ is not whether there is at least one

supportive source, but rather what process was followed in disregarding the

information that cast doubt on the accusation. Especially on summary

judgment, the existence of other reasons to doubt the truth of the story should

create a fact question. Here, that included the emails sent to McKinley by the

Times staffers, as well as the materials they brought before him. 3CR1231-43 (the

research bundle); 3CR1149-50 (referencing specific previous coverage in the

Times archive); 3CR1233 (that previous coverage). There is no explanation of

why McKinley disregarded this information and chose, instead, to make an

unqualified accusation against Darby. Without that, the reporter has not

conclusively disproven reckless disregard. Cf. Huckabee v. Time Warner Ent’mt

Co., 19 S.W.3d 413, 428 (Tex. 2000) (no reckless disregard where interviewed

people “on both sides of the story” and read “among other documents, the

transcript of the [court] hearing”).




                                         28
III. RECKLESS DISREGARD OF THE TRUTH SHOULD START FROM THE
     SAME CONCEPT OF ‘TRUTH’ AS OTHER DEFAMATION ELEMENTS.
      A.     Actual malice should be tested against the gist of the article

      Neely held that the ‘gist’ of an article was the proper measure of its truth

or falsity. Neely v. Wilson, 418 S.W.3d 52, 63 (Tex. 2013). It explained, “[w]e

determine a broadcast’s gist or meaning by examining how a person of ordinary

intelligence would view it. ‘If the evidence is disputed, falsity must be

determined by the finder of fact.’” Id. at 64 (citing Turner v. KTRK TV, Inc., 38

S.W.3d 103, 114-15 (Tex. 2000) and quoting Bentley v. Bunton, 94 S.W.3d 561, 587

(Tex. 2002)). The inquiry goes beyond parsing text to understanding the

context. A story that “err[s] in the details but that correctly convey[s] the gist”

is substantially true. Id. at 63-64. “On the other hand, a broadcast ‘can convey a

false and defamatory meaning by omitting or juxtaposing facts, even though all

the story’s individual statements considered in isolation were literally true or

non-defamatory.’” Id. at 64 (quoting Turner, 38 S.W.3d at 114).

      Does that same concept of truth apply to actual malice? In Neely, the

Court assumed that it did. Although Neely was not a public figure, the question

of actual malice nonetheless came up in the context of a statutory privilege.

Neely, 418 S.W.3d at 69 (looking to the common-law standard for “reckless

disregard” in New Times, Inc. v. Isaacks, 146 S.W.3d 144, 162 (Tex. 2004)). In

                                         29
that discussion, the Court used the ‘gist’ of substantial truth when assessing

actual malice: “…acted with actual malice as to the gist of the broadcast that

Neely was performing unnecessary surgery.” Id. (emphasis added).5

       The link between substantial truth and actual malice has been noted by the

U.S. Supreme Court. In Masson v. New Yorker Magazine, 501 U.S. 496 (1993),

the Court examined a summary judgment that had been granted on the basis of

actual malice. There, the defamation involved some “allegedly fabricated

quotations,” which the district court held “were either substantially true, or

were ‘one of a number of possible rational interpretations of ambiguous

conversations.’” Masson, 501 U.S. at 508-09. A divided court of appeals

affirmed, echoing those reasons. Id. at 509. The Supreme Court reversed—and

in so doing, described how actual malice intersects with state-law concepts of

substantial truth.




5The Response not only rejects Neely’s approach, but is highly critical of the court of appeals
dissent for adopting it. Resp. to Pet. viii (saying the dissent below should be ignored because it
“conflates two separate elements—‘substantial truth’ and ‘actual malice’”); see also Dissent
Op. at 6 (echoing Neely’s reasoning, and citing Neely for the proposition that “in determining
the ‘truth’ of a statement, the assessment of a broadcast’s ‘gist’ must be the critical focus.”).
The majority opinion below is, respectfully, the one that departs from Neely.

                                               30
      The Supreme Court discussed how actual malice builds on “the concept

of falsity” borrowed from other elements of defamation:

      The constitutional question we must consider here is whether, in
      the framework of a summary judgment motion, the evidence suf-
      fices to show that respondents acted with the requisite knowledge of
      falsity or reckless disregard as to truth or falsity. This inquiry in
      turn requires us to consider the concept of falsity; for we cannot
      discuss the standards for knowledge or reckless disregard without
      some understanding of the acts required for liability.

Masson, 501 U.S. at 513 (emphasis added).

      Actual malice should start from the same view of truth and falsity as the

tort of defamation itself. “The common law of libel takes but one approach to

the question of falsity, regardless of the form of the communication.” 501 U.S.

at 516 (citing RESTATEMENT (SECOND) OF TORTS § 563, cmt. c (1977); W.

KEETON, D. DOBBS, R. KEETON, & D. OWEN, PROSSER AND KEETON ON LAW

OF TORTS 776 (5th ed. 1984)). The Masson Court discussed how state law had

refined these concepts into a coherent doctrine of substantial truth. Id. at 516-17.

It then added, “Our definition of actual malice rests upon this historical

understanding.” Id. at 517. And it then analyzed actual malice using that same,

reader-focused model of truth. Id. at 517-19 (examining whether “the alteration




                                        31
[of quotations] results in a material change in the meaning conveyed by the

statement” and what “a reasonable reader would conclude”).

      B. When evaluating malice, the court of appeals used dictionary
      definitions rather than evaluating knowledge about the story’s ‘gist’

      Before reaching actual malice, the court of appeals had already

demonstrated that it grasped the ‘gist’ of the article. When evaluating

substantial truth, it held that an ordinary reader could understand Darby to be

accused of “helping Crowder and McKay further the particular bit of arson and

assault they planned,” Op. 10, referring to “the plot” in the article. The court

noted that this was a crime. Op. 4-5 (citing TEX. PENAL CODE §7.02(a)(2)).

And it also (correctly) rejected the defendants’ attempt to say “encourage” was

inherently too vague to be more than opinion. Op. 7-8. As it recognized when

discussing that issue, the context brings clarity: “McKinley was not speaking of

unverifiable fact or proffering vague rhetoric. Rather, he was speaking of

particular crimes and the identity of those to whom the crimes could be

attributed.” Op. 9.

      Yet when the court of appeals turned to actual malice, it seemed to be

describing an entirely different article. Pages after recognizing that “McKinley

was not … proffering vague rhetoric [but] was speaking of particular crimes,”



                                        32
Op. 9, the Court decided that maybe he was. Instead of looking at the article’s

‘gist’ as the measure for truth or falsity, the Court used dictionary definitions to

explain why it would not seriously consider Darby’s evidence. Op. 20-22.

      The dissent called out this doctrinal misstep, as well as the departure from

Neely v. Wilson it represents:

      … the majority finds McKinley’s affidavits sufficiently negate actual
      malice because [the article] was published without knowledge of the
      falsity or reckless disregard of the truth. In reaching this conclu-
      sion, the majority focuses on the question of whether Darby “en-
      couraged” the criminal conduct in question. However, in determin-
      ing the “truth” of a statement, the assessment of a broadcast’s
      “gist” must be the critical focus. Neely [v. Wilson, 418 S.W.3d 52, 63
      (Tex. 2013)].

      … the gist of the statement—i.e., that Darby participated in the
      commission of a criminal act—is equally controverted by Darby’s
      summary judgment evidence. The majority as much as says so in its
      analysis of grounds two and three.6

Dissent Op. 6-7.

      Instead of directly confronting Darby’s evidence, the court dismisses it as

an “attempt [by Darby] to paint McKinley with the brush of malice by

attempting to confuse the distinction between the words ‘encourage’ and



6The second ground contended that the statement was mere opinion. Op. 7-9. The third
ground contended that the statement was substantially true. Op. 9-12.

                                          33
‘entrap.’” Op. 20. The court observed that some of the evidence related to

what happened in Minnesota used the word “entrap.”7 The substance of that

evidence, however, is broader. The member of the Texas Two who went to trial

(McKay) originally accused Darby of having a greater role, leading to a mistrial.

But he later admitted he “embellished and, I guess, factually lied” about his

allegations against Darby, 3CR1121—and was subjected to a sentencing

enhancement for obstruction-of-justice for having made the accusation in the

first place. E.g., 3CR1231-44 (research packet); 3CR1133 (Times Past article).

       The court of appeals viewed this evidence as categorically irrelevant

because the dictionary definitions of “encourage” and “entrap” are not perfectly

coextensive. We are told that the dictionary definition of “encourage” includes

some senses broad enough to also mean “to inspire with courage, spirit, or

hope,” among other things, and could even be consistent with cheerleading

“even after the other already committed the act.” Op. 21 (citing MIRRIAM-

WEBSTER’S COLLEGIATE DICTIONARY 410 (11th ed. 2003)). Thus, the court of

appeals majority reasoned, evidence that McKay’s actual accusation against




7Not all of it actually used that term. One article in the research bundle describes “a finding
by Judge Davis that McKay obstructed justice by falsely accusing a government informant,
Brandon Darby, of inducing him to manufacture the Molotov Cocktails.” 3CR1241.

                                              34
Darby was false was “no evidence of a subjective belief about the accuracy of the

statement that Darby encouraged the misconduct.” Op. 20.

       A reader of the article may or may not have a copy of Webster’s Collegiate

Dictionary handy. But the context in which that word was used—discussing a

criminal prosecution, and whether a government informant (as the Times flatly

stated) “had encouraged” a specific plot he reported to the FBI—is a powerful

clue to what the article means by that word.

       The word “entrap,” however, is not in the original version of the article.

2CR424-26. Yet the court of appeals relies on a supposed distinction between

“entrap” and “encourage” to ignore “[a]ll Darby’s allusions to evidence about

McKay recanting or being found to have obstructed justice by lying”:

       This distinction between the two words or concepts is of import be-
       cause McKinley did not say in his article that Darby “entrapped”
       McKay or Crowder. Rather, he said Darby “encouraged” the plot.
       All Darby’s allusions to evidence about McKay recanting or being
       found to have obstructed justice by lying are irrelevant, since they
       relate to McKay’s claim of entrapment. In short, potentially know-
       ing that Darby did not entrap McKay does not mean he also had
       doubts about whether Darby encouraged him.8


8 This last sentence illustrates a related problem: That the court of appeals drew inferences
against the non-movant (Darby), rather than against the movants. This mode of reasoning
from dictionaries meant that the court was using the most favorable possible meaning of each
word, without any basis in the record to conclude it was the view subjectively held.

                                             35
Op. 21-22 (emphasis added). The court’s categorical rejection of this evidence

based on dictionary definitions departs from Neely and Masson.

      C. The movants did not try to establish that they actually held
      some idiosyncratic view of the meaning of these words.

      Absent real evidence that a particular defendant subjectively held an

idiosyncratic understanding of what the words meant, the baseline rule should

be the one mentioned in Neely and Masson, that a reporter’s actual malice is

tested against how an ordinary reader would understand their words.

      It is possible, of course, for any writer to subjectively mean something

different than a reader might perceive. Not all writing succeeds. But this is

another question of fact. In a different procedural situation, the court has

recognized that sorting out multiple meanings might be part of the plaintiff’s

trial burden: “When the defendant’s words lend themselves to more than one

interpretation, the plaintiff must establish either that the defendant knew the

words would convey a defamatory message, or had reckless disregard for their

effect.” Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003)

(citing Bunton, 94 S.W.3d at 603). On traditional summary judgment, what

matters is that the burden of conclusive proof falls on the movants. WFAA-TV,

Inc. v. McLemore, 978 S.W.2d 568, 574 (Tex. 1998) (burden is on the movant to



                                         36
“negate actual malice as a matter of law,” including “evidence that shows he or

she did not publish the alleged defamatory statement with actual knowledge of

any falsity or with reckless disregard for the truth”). They have offered none.9

       Indeed, the newspaper disavows that there was any secret, subjectively-

held meaning to this article. See Resp. to Pet. 16. The affidavits said nothing

about there being any such meaning, held either by the reporter or the editorial

staff. The court of appeals fundamentally misframed actual malice by presuming

without proof that these words meant something different subjectively to the

reporter than they would to an ordinary reader.


IV. THE AFFIDAVITS ALSO FAILED TO MEET RULE 166A
       The court of appeals’s analysis of the summary-judgment record was

distorted by the legal errors above. Had it viewed this record through the correct



9 In this regard, it might be objected that McKinley is not an “ordinary reader.” But the
natural reading of his words is still a natural place to start. Moreover, to the extent the point
might be disputed, this summary-judgment record actually does contain two data points of
how a reporter familiar with these facts might read this exact statement. Michael May wrote
that the accusation made in the article was too broad, distinguishing general encouragement
from what it said: “this is quite different from saying he encouraged ‘the plot’ to build
Molotov cocktails.” 3CR1253-54. Jim Walsh wrote, reacting to the same thing, nothing that
the idea Darby encouraged violence “was a defense of [McKay’s]” and he “later admitted he
lied when Crowder,” the other member of the Texas Two, “was going to testify against him.”
3CR1256. Both of those reporters recognized this article as making a very specific (and
unsupported) accusation. At the very least, this should confirm that a fact question exists.

                                               37
legal lens, it should have reversed because the defendants offered merely

boilerplate affidavits that could not conclusively disprove reckless disregard.

      A.     Defendants’ burden on summary judgment

      Actual malice does not ask whether a person’s intent is malicious in the

common sense. Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). Reciting that a

person harbors no ill will toward the plaintiff does not disprove “actual malice.”

      On summary judgment, “[a] libel defendant can negate actual malice as a

matter of law by presenting evidence that he or she did not publish the statement

with knowledge of its falsity or reckless disregard for its truth.” Huckabee v. Time

Warner Entm’t Co. L.P., 19 S.W.3d 413, 420 (Tex. 2000). In the defamation

context, “reckless disregard” means “a high degree of awareness of probable

falsity.” Carr v. Brasher, 776 S.W.2d 567, 571 (Tex. 1989). The evidence

presented in the motion must be sufficient to “negat[e] actual malice as a matter

of law.” Huckabee, 19 S.W.3d at 420. Only then would any burden shift to the

plaintiff to offer controverting evidence. Id.

      B. Conclusory affidavits do not meet Defendants’ initial
      summary-judgment burden

      The Court rejected as inadequate a defamation defendant’s affidavit that

said “never did I make an untrue statement knowingly” and “all I did was to


                                         38
make logical and justified inferences from facts known to me personally.” Casso,

776 S.W.2d at 559. The Court held that this was not enough: “If it attempts to

negate actual malice, it provides no information as to Casso’s knowledge that the

statements were not false or were not made with reckless disregard to their truth

or falsity. In short, this proof meets none of the tests of rule 166a.” Id. at 559

(citing TEX. R. CIV. P. 166a).

      That is because, even in a defamation case, affidavits from interested

witnesses must be “clear, positive and direct, otherwise credible and free from

contradictions and inconsistencies, and [contain allegations that] could have

been readily controverted.” Casso, 776 S.W.2d at 558 (citing TEX. R. CIV. P.

166a(c). Summary-judgment affidavits must address the issue completely, which

for actual malice means addressing both whether the defendant had knowledge

of falsity and whether the publication was made with reckless disregard for truth

or falsity. McLemore, 978 S.W.2d at 574 (negating actual malice requires

“evidence that shows he or she did not publish the alleged defamatory statement

with actual knowledge of any falsity or with reckless disregard for the truth”)).

      Huckabee illustrates the type of affidavits that might satisfy the

Defendants’ burden. Those affidavits included significant detail about the

reporting process being followed, including how conflicting information was


                                         39
reconciled. 19 S.W.3d at 423-24. That media defendant included details about

why it chose to rely on the reputation of its reporter. Id. at 423. That reporter

provided not only a complete list of sources consulted, but also “detailed her

reasons” for choosing to disregard the view of one side in favor of the other. Id.

at 424. None of those details were offered here.

      C.    Neither Defendant met this initial burden.

            1.     The New York Times Company

      The newspaper offers an affidavit from Charles Strum, who identifies

himself as “the editor of the article at issue in this lawsuit.” 2CR903, at ¶4. The

following paragraphs are Mr. Strum’s only discussion of the reporting process,

the editorial process, his own personal state of mind, and what facts were known

to any other member of the paper’s editorial and research staff:

      6.    I believed the statement “which he had encouraged,” in refer-
      ence to Brandon Darby, to be true at the time the article was pub-
      lished. I believe it to be true still.

            ...

      8.     Once The Times received communication that Mr. Darby
      considered the article to contain a defamatory statement (through
      the service of the lawsuit), we immediately investigated whether a
      clarification or correction was in order, and, if so, what it should
      state. On March 16, 2011, a clarification was issued.



                                        40
            ...

      10. I did not entertain any serious doubts about the statement in
      question. ...

2CR903-04, at ¶6, 8, 10. This says nothing to negate reckless disregard and falls

far short of what is needed for traditional summary judgment.

      Other summary-judgment evidence indicates that, at a minimum, Toby

Lyles of the research department selected and sent articles to McKinley.

3CR1231-44. Defendants offer no testimony, however, about its researcher

Lyle’s process, her understanding of Darby’s role, what information she

conveyed to other Times editors or to McKinley, or what articles she reviewed

herself but ultimately decided not to forward to McKinley. Nor is testimony

offered explaining Marlene Bagley’s work, which flagged for McKinley a

concern that he was describing the proceedings in a way at odds with the

newspaper’s prior coverage. When the record confirms that both of these

potential red flags were known to the defendants, their summary-judgment

affidavits have a high bar to conclusively disprove reckless disregard. These did

not even try.




                                        41
            2.     McKinley

      James McKinley’s affidavit, 2CR767-69, is also inadequate—either to

establish his own lack of actual malice or to support the newspaper’s argument

that it (as a corporate defendant) lacked actual malice.

      Conclusory. McKinley’s affidavit provides so little information about his

reporting, research, and fact-checking process as to be conclusory and not

readily subject to being controverted under Rule 166a. In particular, as to his

research, the affidavit raises questions it does not answer. It states, “Toby Lyles,

at the Times research desk, provided me with background research for the

article.” 2CR768, at ¶6. But the affidavit says no more about what that research

contained, what McKinley did with it, or how the contrary information was

reconciled with publishing the defamatory statement here.

      As to McKinley’s conversations with sources, the affidavit states that he

spoke to both Jeffrey DeGree and Scott Crow. McKinley says, “[m]y inclusion

of the statement in the article at issue was based on my then-recent

conversations with Jeffrey DeGree and Scott Crow [about Darby’s overall role].”

2CR768, at ¶9. The phrase “based on” lacks crucial detail. And the affidavit is

silent as to why these two sources—both of whom were aligned against Darby—




                                         42
were given final say as to Darby’s role.10 The affidavits in Huckabee could not be

more different. They “explained the steps” the reporter took, the specific

transcripts reviewed, the specific evidence reviewed, totaling “over two

thousand pages of documents.” Huckabee, 19 S.W.3d at 424. They also

“detailed [the reporter’s] reasons for doubting” a conflicting view, including

specific corroborating facts. Id. Given the circumstances here, including the

contrary statements under oath by DeGree’s client at the sentencing, this record

does not conclusively disprove reckless disregard.




10Scott Crow is another activist. Crow’s affidavit—submitted by Defendants—explains that
he did not participate in activities in Minnesota and has “no direct knowledge that Darby
encouraged McKay or Crowder to commit arson specifically.” 2CR673-75, ¶10, 12. That
affidavit does not conclusively disprove actual malice. If anything, it raises questions about
why McKinley would rely on Crow for precisely that. DeGree was McKay’s attorney when a
federal judge concluded that the trial strategy had been an obstruction of justice that
warranted a sentencing enhancement.

                                              43
V.    THE COURT OF APPEALS IGNORES THE SUBSTANTIAL EVIDENCE
      OF ACTUAL MALICE IN THE SECOND EDITORIAL PROCESS

      However the Court resolves the previous issues, it should reverse as to the

modified version of the story published beginning on March 16, 2011 and

continuing to this day. 2CR581-83 (article). The new text added refers directly

to the allegation against Darby, changing the context in which the accusation

would be understood. And the live pleading treats this article as a distinct basis

for defamation liability. 3CR1044-45. Yet the affidavits do not refute actual

malice in the editorial process leading to this second version. The reporter and

the paper mention that process. 2CR903-04, ¶8 (Strum: “we immediately

investigated whether a clarification or correction was in order and, if so, what it

should state”); 2CR769, ¶16 (McKinley). But they say nothing more.

      The biggest difference is that this second editorial process came after two

emails to McKinley from knowledgable fellow journalists, who were each critical

of the accusation that Darby “had encouraged” “the plot.” 3CR1253-54 (May

email); 3CR1256-57 (Walsh email). There is no evidence how this second

editorial process addressed these emails, or any other new information

developed as McKinley or Strum “investigated” the situation. Their affidavits

do not conclusively negate reckless disregard. 2CR903-04, ¶8 (Strum) (not




                                         44
describing process); 2CR769, ¶16 (McKinley). The actual-malice holding

reached by the court of appeals cannot apply to this publication.

       When Darby amended his live petition to be extremely clear that this was a

distinct basis for liability, an amendment later blessed by an explicit order from

the trial court, 3CR1886; 3CR1894, the Defendants faced a choice: they could

either adapt their motion to fully cover Darby’s claims, or they could not. By

choosing the latter path, they limited the proper reach of any summary

judgment. “So, for example, if a defendant moves for summary judgment on

only one of four claims asserted by the plaintiff, but the trial court renders

judgment that the plaintiff take nothing on all claims asserted, the judgment is

final—erroneous, but final.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200

(Tex. 2001). At a minimum, the court of appeals erred to affirm the portion of

the judgment relating to this second publication.11

       Respondents contend, as a legal matter, that defamation law cannot

impose substantive liability against such a revised publication unless the

correction text would, taken in isolation, itself be independently defamatory.12


11
 The court of appeals was silent about its reasons. But see TEX. R. APP. P. 47.1.
Nonetheless, its judgment has this effect, as does the trial court’s. 3CR1893.
12Strictly speaking, this is not a ground for summary judgment. See 2CR384-86 (grounds in
the motion). The argument appears in the reply filed the day of the hearing. 3CR1824.

                                              45
Resp. to Pet. at 17 (“Darby does not contend that the clarification contained

defamatory material.”). The legal principle they cite, however, is the single-

publication rule, which relates to a limitations clock, not a bar to liability.13 The

clock may start when a party is put on notice that defamation has occurred, but

that clock does not affect the substantive question of whether each each version

is defamatory.

       To be sure, a publication may hope that edits it makes after a lawsuit is

filed could reduce its defamation exposure, at least for future damages. But the

defamatory impact of a statement necessarily depends on context. A supposedly

“clarified” story can be more, less, or just differently defamatory based on how

the newly added context surrounds the statement.

       The changes here were both substantive and directly referable back to

Darby—they were, in short, designed to change a reader’s context for the

accusation that Darby “had encouraged” “the plot” that he reported to the FBI.


13 And even by their own terms, that body of statute-of-limitations cases is distinguishable.
When a new article is materially changed (as opposed to just rotating the ads in a sidebar or
fixing typos), a new limitations period does begin. E.g., Woodhull v Meinel, 202 P.3d 126, 131
(N.M. App. 2008) (a substantive “update” appended to an article constitutes a new
publication); In re Davis, 334 B.R. 874, 884 (Bankr. W.D. Ky. 2005) (adding an “update” and
“breaking news” section with new information related to the original material constitutes
republication); cf. Firth v. State, 775 N.E.2d 463, 466 (N.Y. 2002) (not republication if the
added material is “unrelated”); Churchill v. State, 876 A.2d 311, 315 (N.J. App. 2005) (minor
website alterations are not republication; altering “substance or form” of the article is).

                                              46
As the Response puts it, new text was permanently added to the online version

of the article “so that its Internet readers would not miss it.” Resp. to Pet. 17.

      Those are the stakes. Unlike the print era, the presentation of almost any

article or post online can evolve over time, with a new version displacing the old.

The choice to make a substantive change to that presentation can surely

implicate defamation law. While the Response says it would be “a significant

departure from existing law,” Resp. to Pet. 17n.10, the ground has already been

laid by the statute-of-limitations cases, which recognize that substantive changes

can mark a new publication. See note 13, supra.

      As a policy matter, the Response also protests that recognizing the

possibility of a defamation claim here would “discourage publications from ever

running retractions, clarifications or corrections.” Resp. to Pet. 17n.10. To the

contrary, it would ensure that the common-law incentives are aligned. A

“correction” that actually cures the ‘gist’ of the article would not be subject to

liability. So, too, would a “retraction” that actually retracted the original

accusation. Both of those are encouraged by the normal application of the

elements of defamation. The reason the defendants are not shielded by those

normal principles is that they neither actually cured the defamatory ‘gist’ nor

recanted the accusation, which remains unqualified and full-throated. What has


                                         47
changed is the surrounding context. If anything, an ordinary reader would also

quite naturally understand the accusation made against Darby had been further

blessed by the Times when it survived a formal corrections process.

      Readers today will encounter only this new version. Whether a modified

version of an online article is defamatory, and whether it was made with actual

malice, are fact questions precluding summary judgment. Media defendants are

not, and should not be, shielded from defamation liability as a matter of law

merely by virtue of having previously published a different version of the story. 




                                         48
                                   P RAYER

      The petition should be granted and, ultimately, the summary judgment

reversed and the cause remanded for further proceedings.

                                        
                                       Respectfully submitted,

                                       /s/ Don Cruse
                                       _________________________
                                       Don Cruse
                                       State Bar No. 24040744
                                       LAW OFFICE OF DON CRUSE
                                       1108 Lavaca Street, Suite 110-436
                                       Austin, Texas 78701
                                       [Tel.] (512) 853-9100
                                       [Fax] (512) 870-9002
                                       don.cruse@texasappellate.com

                                       Robert B. Kleinman 
                                       State Bar No. 24055786 
                                       KLEINMAN LAW FIRM, PLLC 
                                       404 West 7th Street 
                                       Austin, Texas 78701 
                                       (512) 299-5329 
                                       (512) 628-3390 fax 
                                       robert@kleinmanlawfirm.com

                                       COUNSEL FOR PETITIONER
                                         




                                           49
                          CERTIFICATE OF SERVICE
        I certify that on February 4, 2015, this Petitioner’s Brief on the Merits
was served on counsel of record by electronic service (or, if not possible when e-
filing, by fax):

            Laura Prather
            HAYNES & BOONE, LLP 
            600 Congress Ave., Suite 1300 
            Austin, Texas 78701 
            (512) 867-8400 
            (512) 867-8470 fax 
            Counsel for Respondents

                                      /s/ Don Cruse
                                      Don Cruse




                      CERTIFICATE OF COMPLIANCE
      This brief complies with Texas Rules of Appellate Procedure 9.4 because
the sections covered by the rule contain no more than 10,585 words. The font
used in the body of the brief is no smaller than 14 points, and the font used in the
footnotes is no smaller than 12 points.

                                      /s/ Don Cruse
                                       Don Cruse




                                        50
Appendix
     Tab A
               
Final Judgment 
      (3CR1893)
                                               CAUSE NO.                                               FILED
                                                                                                 2012 HAR 29 AM II: 21
       BRANDON DARBY,                                     §       IN THE DISTRICT COURT OF
                                                          §
                               Plaintiff,                 §
                                                                                                      DISTFffcT ClEfm
                                                          §                                              COU:HY. lEY
       VS.                                                §
                                                          §
       THE NEW YORK TIMES COMPANY,                        §
       and JAMES C. McKINLEY, JR.,                        §
                                                          §
                               Defendants.                §       274TH JUDICIAL DISTRICT

             ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

             On January 19,2012, the 'parties appeared before the Court to hear and consider Defendants'

       Motion for Summary Judgment, Plaintiff's Response to Defendants' Motion for Summary Judgment

       and Defendants' Reply to Plaintiffs Response to Defendants' Motion for Summary Judgment.

               After considering the arguments of counsel, Plaintiff's response, Defendants' reply, any

       objections, and exhibits, affidavits, and pleadings on file, at the time of the hearing and, after a

       hearing on the motions and objections, the Court ftnds that Defendants' Motion for Summary

       Judgment should be, and hereby is, GRANTED.

             IT IS, THEREFORE, ORDERED, ADJUDGED MTD DECREED that the Defendants'

       Motion for Summary Judgment is GRANTED in its entirety, and Plaintiff's case is dismissed in its

       entirety with prejudice. Plaintiff shall take nothing of and from Defendants, and Defendants shall
N
N      recover their costs from Plaintiff together \vith such other and further relief to which Defendants may
LI')
o      be justly entitled, at law and in equity.
c.!)
a..
              THIS ORDER CONSTITUTES A FULL AND FINAL DISMISSAL WITH PREJUDICE

       OF ALL CLAIMS IN THIS CASE.
                                +n
              Entered            day of March, 2012.




                                                                                                         001893
           Tab B
                         
    Majority Opinion
(Chief Justice Quinn)
                                        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

                                    MEMORANDUM OPINION
                       Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

        This appeal involves a claim of defamation. According to Brandon Darby, the

New York Times and its writer, James C. McKinley, Jr., besmirched his reputation by

uttering   a   falsehood   in   an   article.      McKinley’s   article   delved   into   the   burning   of   the  

Texas Governor’s   mansion,   the   people   allegedly   behind   that   bit   of   arson,   self-styled

political activists or anarchists, and the 2008 Republican National Convention in

Minnesota. Among  the  article’s  many  paragraphs  appeared  one  stating  that:
        . . . federal agents accused two men from these circles of plotting to make
        firebombs and hurl them at police cars during the convention. An F.B.I.
        informant from Austin, Brandon Darby, was traveling with the group and
        told the authorities of the plot, which he had encouraged.


        Darby does not dispute his status as a purported activist-turned-paid

government informant. Nor does he deny participating in the adventure to the

Republican  Convention  with  a  small  group  from  Texas,  which  group  included  the  “two  

men”   alluded   to   in   the   writing.   That the group members went there to engage in

protests  and  that  Darby’s  purpose  for  joining  them  included  the  gathering  of  information  

about their activities for the FBI is similarly undisputed.                What he does question,

however, is the accuracy of the   statement   indicating   that   “he   had   encouraged”   the  

“plot”  to  “make  firebombs  and  hurl  them  at  police  cars.”    

        The   “two   men”   alluded   to   in   the   article,   David   McKay   and   Bradley   Crowder,  

actually made Molotov cocktails. Darby knew that. McKay and Crowder planned to

throw the incendiary devices as part of their protest. Darby knew that as well. But, the

two had a change of heart. That change did not prevent McKay and Crowder from

being arrested, prosecuted, convicted, and jailed.

        Because he believed he was wrongfully accused of encouraging the plot, Darby

sued the newspaper and McKinley for defamation.1 The latter moved for summary

judgment, which motion was granted them. We now address the propriety of that

judgment and, upon doing so, affirm it.




        1
            We refer to the New York Times and McKinley as McKinley for purposes of this opinion.


                                                     2
       Applicable Law


       The standard of review applicable to summary judgments is settled. Rather than

reiterate its general tenets, we cite the litigants to Neely v. Wilson, No. 11-0228, 2013

Tex. LEXIS 1082, at *10-11 (Tex. June 28, 2013).                     Whether the movant seeks a

traditional or no evidence summary judgment may affect the respective burdens of the

parties. However, when each party presents evidence supporting their position, the

issue is not so much whether a party fulfilled its burden but whether a material question

of fact exists. Id. at *11.       In deciding this, we construe the evidence in a light most

favorable to the non-movant; so too are reasonable inferences from that evidence

drawn in favor of the non-movant. Id.

       Because   the   trial   court’s   judgment   at   bar   did   not   specify   a   particular   ground  

upon which it acted, Darby has the burden to illustrate why none of those grounds

support   the   trial   court’s   decision.      Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473

(Tex. 1995). In other words, we must affirm the decree if any one of the grounds

asserted is meritorious. Western Investments, Inc. v. Urena, 162 S.W.3d 547, 550

(Tex. 2005).

       Application of the Standard


       McKinley proffered seven grounds purportedly warranting summary judgment in

his favor. We address those necessary to the disposition of the appeal.




                                                     3
        Whether the Statement is Libelous Per Se


        McKinley and his employer initially contended that the statement in question was

not libelous per se because it failed to accuse Darby of a crime or injure him in his

office, profession, or occupation. We disagree.

        The category of statements deemed per se defamatory include those 1)

accusing one of untruthfulness, dishonesty or fraud, 2) that impute to the complainant

the commission of a crime, indicate he contracted a loathsome disease, or indicate that

he engaged in sexual misconduct, and 3) causing injury to a person's office, business,

or profession. Medical Gardens, LLC v. Wikle, No. 07-12-00111-CV, 2013 Tex. App.

LEXIS 6699, at *3-4 (Tex. App.—Amarillo May 29, 2013, no pet.) (mem. op.) Whether

the comment at issue falls within one of these categories is a question of law.

Hancock v. Variyam, 400 S.W.3d 59, 66 (Tex. 2013); Medical Gardens, LLC v. Wikle,

2013 Tex. App. LEXIS 6699, at *3-4. And, being a question of law, we consider it de

novo. Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011) (stating that an

appellate court reviews questions of law de novo).

        McKinley did not suggest via his motion that manufacturing and possessing

Molotov cocktails with the intent to throw them at police officers is not a crime. So, we

need not consider that. See TEX. R. CIV. P. 166a(c) (stating  that  issues  “not  expressly  

presented to the trial court by written motion . . . shall not be considered on appeal as

grounds   for   reversal”). Instead, he and his employer initially proposed that accusing

one  of  encouraging  another’s  engagement  in  criminal  conduct  is  not  a  crime.    Section  

7.02(a)(2) of the Texas Penal Code illustrates otherwise.                    It provides that one is

criminally   responsible   for   an   offense   committed   by   another   where   the   former   “acting  



                                                    4
with intent to promote or assist the commission of the offense . . . solicits, encourages,

directs, aids, or attempts to aid the other person   to   commit   the   offense.”     TEX. PENAL

CODE ANN. § 7.02(a)(2) (West 2011) (Emphasis added). So encouraging others to

make and throw Molotov cocktails at police officers may indeed be a crime itself.

        The movants also asserted that no crime was involved because Darby was

acting as an informant for the FBI and he enjoyed immunity from prosecution as an

informant or lacked the mens rea to be a co-conspirator. Interestingly omitted from this

argument, though, is citation to authority holding that one must be subject to actual

prosecution before a false assertion about engaging in criminal activity can be

considered defamatory per se.               Also missing is citation to authority holding that

immunity somehow washes away the criminal character of criminal acts or somehow

cleanses a dirty mens rea of its taint. This omission may arise from the fact that

immunity simply insulates one from prosecution or lawsuit; it does not cleanse the act

of its character. See Leach v. Texas Tech University, 335 S.W.3d 386, 392 (Tex.

App.—Amarillo 2011, pet. denied) (wherein the court explained that while immunity

bars a lawsuit for breach of contract the contract parties remain responsible for their

breach).

        Nor can one reasonably extrapolate from the authority cited by McKinley, e.g.,

Boyer v. State, 801 S.W.2d 897 (Tex. Crim. App. 1991), the premise that an

informant’s   action   cannot   be   classified   as   criminal.         Admittedly,   the   Boyer court held

that when an informant serves as an intermediary and acts as an agent for a law

enforcement officer in carrying out his official duties, the intermediary cannot be held

criminally responsible for his conduct. Id. at 899. Yet, the court did not say that the



                                                     5
intermediary’s  conduct  was  not a crime. Indeed, if the status of being an intermediary

or informant somehow meant his act was not criminal, then the Boyer court had no

reason to decide whether the informant could be held criminally responsible for it; after

all, it matters not whether one may be criminally prosecuted for acts that are not

crimes.

        Furthermore, the very same court has since held, and quite repeatedly, that this

freedom  from  criminal  responsibility  exists  as  long  as  “their  actions  do  not  rise  to  a  level  

of illegal conduct.”      Reese v. State, 877 S.W.2d 328, 336 (Tex. Crim. App. 1994) (and

cases   cited   therein).      That   is,   “state   agents   [used]   in   ferreting   out   crime   are   not  

themselves  parties  to  the  crime  as  long  as  they  do  not  bring  about  the  crime.”    Id.; see

also Burns v. State, 473 S.W.2d 19, 20 (Tex. Crim. App. 1971). So, as can be seen,

an informant may well be convicted of crimes arising from his performance as an

informant.

        As for the argument involving the mens rea of an informant, it may well be that

an informant can escape prosecution as a co-conspirator  because  he  lacks  the  “intent  

to  further  the  objective”  as  suggested  by  McKinley.    Yet,  lacking  mens rea for purposes

of being a co-conspirator is not the same as saying that being an informant means, as

a matter of law, he commits no crime.                   Reese, Burns and their progeny illustrate

otherwise.

        In   view   of   the   foregoing,   we   cannot   say   that   Darby’s   status   as   an   informant  

entitled McKinley to summary judgment as a matter of law. We know of no authority

saying that one cannot defame an informant simply because the informant, in certain




                                                       6
situations, may not be subject to criminal prosecution, and we do not wish to create

such authority now.


        Constitutionally Protected Nature of the Statement


        McKinley next sought summary judgment on the ground that the statement was

constitutionally protected due to its status as an unverifiable fact. In other words, the

word   “encourage”  or  “encouraged”  is  too   vague   and   actually   expresses nothing more

than   one’s   opinion,   according   to   McKinley.      The   argument   did   not   entitle   him   to  

summary judgment as a matter of law.

        Opinions may be actionable if they imply false statements of objective fact.

Simmons v. Ware, 920 S.W.3d 438, 449 (Tex. App.—Amarillo 1996, no writ).

Furthermore, "the meaning of a publication, and thus whether it is false and

defamatory, depends on a reasonable person's perception of the entirety of a

publication   and   not   merely   on   individual   statements.”   Bentley v. Bunton, 94 S.W.3d

561, 571 (Tex. 2002), quoting Turner v. KTRK TV, Inc., 38 S.W.3d 103 (Tex. 2000).

The same is no less true when determining if the utterance is an actionable statement

of fact or a constitutionally protected expression of opinion. Id. All depends on a

reasonable person's perception of the entirety of a publication and its verifiability. Id. at

582.

        The article wherein the statement at issue appeared concerned the arson of the

Texas   Governor’s   mansion.      It   spoke   of   the   Texas   Rangers   “finally   closing in on the

person  responsible”  and  the  link  between  that  person  and  a  group  of  local  anarchists.    

Reference was then made to purported members of that local group who pled guilty to

“making  and  possessing  gasoline  bombs  during  the  2008  Republican  Convention . . . .”    


                                                    7
The author then returned to describing the investigation into the arson of the

Governor’s  mansion  and  how  the  investigators  engaged  in  “old-fashioned police work,”

such   as   watching   video   footage,   “penetrat[ing]   counter culture   hangouts”   whereat

“fashion   accessories   tend   toward   piercings   and   tattoos”   and   “globalization   is   a   dirty

word,”   and   offering   cash   in   exchange   for   “leads.”         At   that   point,   effort   was   taken   to  

describe how the viewpoints of some local anarchists had changed. Some no longer

attacked all forms of government, the author wrote, but instead engaged in social

causes such as food distribution, recycling, and the like.

         Discussion of the two individuals who “plead guilty to making and possessing

gasoline bombs during the . . . Convention”  then  became  the  focal  point  of  the  article  

once   again.      McKinley   alluded   to   them   “plotting   to   make   firebombs”   and   throw   the  

bombs at the police cars. He then named the individuals (that is, Crowder and McKay),

revealed their respective prison sentences, alluded to Darby as being an F.B.I.

informant who travelled with them, and   followed   that   by   stating   that   Darby   “told  

authorities of the  plot”  that  he  “encouraged.”

         Mention   was   also   made   of   Crowder   denying   involvement   in   the   “mansion   fire”  

and ridiculing  the  idea  that  a  local  anarchist  group  was  “behind  both  crimes.”    McKinley    

closed his story by quoting an Austin anarchist who knew Crowder and McKay and

also belittled the notion that a cohesive Austin anarchist group was involved in the

incident at the Republican Convention.

         From   the   context   described   above,   “a   reasonable   person's   perception   of   the  

entirety  of  a  publication”  would  be  that  McKinley  was  discussing  crime,  its  commission  

in both Austin and Minnesota, and the identity of those responsible for its commission.



                                                          8
And, in disclosing the identity of two individuals known to have committed the

Minnesota   crime,   McKinley   described   Darby   as   encouraging   their   criminal   “plot.”         A  

reasonable person reading the allusion to Darby in the context of the article as a whole

could rationally perceive it as attributing criminal conduct to Darby. This is especially

so  given  the  aforementioned  statute  expressing  that  one  who  “encourages”  another  to  

commit a crime is also guilty of that crime.

        In short, McKinley was not speaking of unverifiable fact or proffering vague

rhetoric. Rather, he was speaking of particular crimes and the identity of those to

whom the crimes could be attributed. The scope of his attribution included Darby, and

the identity of those engaged in specific crimes is verifiable fact, as illustrated by the

numerous convictions emanating from our criminal courts.


        True or Substantially True


        McKinley also sought summary judgment on the ground that the statement was

true or substantially true.        Upon reviewing the record, we find the presence of a

material issue of fact on the matter.

        That the utterance is true or substantially true is a defense to a defamation

claim. Neely v. Wilson, 2013 Tex. LEXIS 1082, at *17-18. Specific statements that err

in the details but correctly convey the gist of a story are substantially true. Id. at *22.

However, a statement "'can convey a false and defamatory meaning by omitting or

juxtaposing facts, even though all the story's individual statements considered in

isolation were literally true or non-defamatory.'" Id. at 22-23, quoting Turner v. KTRK

TV, Inc., 38 S.W.3d 103 (Tex. 2000).                 And, as we do when determining whether

speech is mere opinion or verifiable fact, we focus on the gist of the broadcast or


                                                     9
writing as viewed through the eyes of a person of ordinary intelligence when assessing

its truth or substantial truth. Id. at 23.


         Again, McKinley wrote of arson and those committing it. In asserting that Darby

"encouraged" the plot to make "firebombs" and "hurl them" at police cars, he charged

Darby with helping Crowder and McKay further the particular bit of arson and assault

they   planned,   or   so   a   reasonable   person   could   interpret   the   statement’s   gist.      As   for  

evidence illustrating the statement’s   accuracy,   some   does   appear   of   record.      For  

example, one acquaintance of Darby disclosed how Darby described himself as a

“militant   revolutionary,”   sought   to   burn   down   a   bookstore   in   Austin,   provoked   and  

encouraged others to do violent acts in the past, and often talked about taking violent

action encompassing arson and the use of guns. Another acquaintance who worked

with Darby in New Orleans remembered driving with Darby when Darby suggested that

“we   use   Molotov   cocktails   to   bomb   an   insurance   company”   and for help in recruiting

people to do the bombing.                 Furthermore, Darby told McKay and Crowder, when

discussing  the  RNC,  that  1)  he  “was  going  to  shut  that  fucker  down,”  2)  any  group  he  

went   with   was   “going   to   be   successful   in   their   efforts,” 3) he views “process   as  

something that is developed through working together . . .,” 4) they all needed to have

their   “voices   heard,”   5)   each   needed   a   say   to   assure   that   none   “of   us   were   doing

something we weren’t comfortable with,”   6)   he   “wasn’t   there   to   fuck   around,”   7)    

“direction  action  is  intense  and  that  we  could  all  expect  to  have  violence  used  against  

us,”  8)  “we   could   all   expect   to   be   intimidated   in   jail  and   that   the   cops   would   probably  

put us into cells with people who would try to ass rape us or hurt us,”  9) he  was  “ready  

to deal with the potential for violence and that if . . . [they] were not  then  they  shouldn’t  



                                                         10
work with [him],”  and  10)  McKay  and  Crowder  looked  like  they ate  “tofu”  and  needed  to  

eat   “beef”   so   they   “could   put   on   muscle   mass”   and   they   “weren’t   going   to   be   able   to  

fight anybody until . . . [they] did  so.”    Darby  also  said  such  things  as  they  had  to  carry  

arms to support what they believed and asked McKay if he was that type of person and

whether he was willing to burn people for his beliefs. Other evidence attributes to

Darby  such  comments  as  how  he  thought  he  could  “reach”  Crowder  and  McKay,  how  

he acted as their mentor, how he sought permission from the FBI to violate certain

laws, and how he spoke with McKay and Crowder about training techniques and

techniques they could use while in a protest.                      So too is there evidence of Darby

admitting to knowing that McKay bought items to make Molotov cocktails and had a

meeting with him to see with his own eyes whether McKay had manufactured explosive

devices.

         Upon  reading  the  transcript  of  McKay’s  plea  hearing  before  a  federal  judge, one

would also encounter evidence about Darby providing him money to acquire the

components for the Molotov cocktails and discussing the number of bombs involved

and their deployment. And, though Crowder (at his own federal plea hearing) denied

that Darby had any direct involvement with the decision to make incendiary devices,

Crowder nevertheless told the judge of a story Darby imparted. It concerned an Italian

man who made and threw his own Molotov cocktails. The story concluded with Darby

saying that "if you want to do this, [that] is how it's done."

         To this, we add evidence of McKay growing hesitant once the incendiary

devices were built. Apparently Darby became aware of this and texted him such things

as  1)  “‘You  be  trippin’. All jimmy  hendrix  style  and  shit,’”  2) “‘It’s  your  call.    I  support  you  



                                                        11
making whatever choice you are comfortable with. Be proud of yourself for your work

and take a chill,’” and 3)  “‘Its   all good bro. I respect the work youve [sic] done here.

Youre [sic] going to get up and feel bad. I’ve done that many, many times. Sometimes

its best to fight another day. I respect and care for you . . . . ’”    

        On the other hand, the record also contains evidence absolving Darby of any

supposed  encouragement  and  placing  into  question  whether  McKinley’s  utterance  was  

accurate. For instance, Darby denied encouraging the plot. He also said he attempted

to dissuade McKay and Crowder from pursuing it and considered   the   two   “some  

strange   form   of   collateral   damage”   in   his   effort   to   gain   access   to   plans   involving   the  

RNC protests and as he played his role as informant. And, it is this mix of evidence

which prevents us from concluding that the trial court could have legitimately awarded

McKinley and his employer summary judgment on the basis that the comment was true

or substantially true. The record before us presents a material issue of fact on the

matter necessitating resolution outside the summary process of Texas Rule of Civil

Procedure 166a. See Halsell v. Dehoyos, 810 S.W.2d 371, 372 (Tex. 1991) (holding

that material issues of fact must be resolved by a jury).


        Actual Malice


        McKinley also argued that Darby was a public figure, which Darby conceded.

Consequently, the latter had to prove that the statement at issue was made with actual

malice to entitle him to recover. According to McKinley, however, the record disproved

the existence of such malice, as a matter of law. We agree.

        It has long been true that one cannot be held liable for false statements uttered

about a public figure unless the falsehoods were made with actual malice. New York


                                                        12
Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).2

Furthermore, the burden to prove such malice lies with the complainant; it is his

obligation to satisfy that burden via clear and convincing evidence. Turner v. KTRK

Television, Inc., 38 S.W.3d 103, 116 (Tex. 2000). Because the issue was raised via a

motion for summary judgment, the movants (McKinley and the New York Times) had

the obligation to present evidence disproving malice, as a matter of law.

       Next, actual malice is a term of easy definition but difficult application.                 It

denotes a statement uttered with actual knowledge of its falsity or with reckless

disregard as to its truth or falsity. Hearst Corp. v. Skeen, 159 S.W.3d 633, 637 (Tex.

2005); Bentley v. Bunton, 94 S.W.3d at 591. One acts recklessly when his statements

are  “. . . made  with  a  high  degree  of  awareness  of  probable  falsity”  or  when  the  “. . .

defamer  entertained  serious  doubts  that  his  declaration  was  true.”    Doubleday & Co. v.

Rogers, 674 S.W.2d 751, 756 (Tex. 1984). Thus, the standard or test is a subjective

one. Hearst Corp. v. Skeen, 159 S.W.3d at 637. And, the focus lies upon what the

writer knew or thought at the time the article was written or published. Id. And, therein

lies the reason for its difficulty in application.

       Experience shows that seldom do those to whom improper conduct is attributed

admit to engaging in such conduct. Nor do they tend to admit to having the type of

mens rea needed to inculpate the individual. So too may one have the propensity to

view  an  accused’s  utterances  about  his  innocence  with  a  dubious  eye.      That  may  be  

why summary judgment procedure authorizes entry of judgment based upon

testimonial evidence of an interested party only if that evidence is uncontested, clear,


       2
          We treat the issue of whether the purportedly defamed individual is a public figure as a
question of law. Neely v. Wilson, No. 11- 228, 2013 Tex. App. LEXIS 511, at *13 (Tex. June 28, 2013).


                                                 13
positive, direct, credible, free from inconsistency, and of the type that could be readily

controverted. TEX. R. CIV. P. 166a(c). Yet, if the testimony is of that ilk, it may indeed

provide the basis for summary judgment. And, most importantly, the accused in a

defamation proceeding is free to testify about his thoughts at the time and reasons for

saying what he did. Bentley v. Bunton, 94 S.W.3d at 596. If his affidavit illustrates his

belief  in  the  statement’s  truth  and provides a plausible basis for that belief it may well

be sufficient to negate actual malice as a matter of law. Huckabee v. Times Warner

Entertainment Co., L.P., 19 S.W.3d 413, 424 (Tex. 2000).


       Again, McKinley's statement underlying this libel suit was:


       federal agents accused two men [Crowder and McKay] . . . of plotting to
       make firebombs and hurl them at police cars during the convention. An
       F.B.I. informant from Austin, Brandon Darby, was traveling with the group
       and told the authorities of the plot, which he had encouraged.


(Emphasis added). According to the writer, as disclosed in his affidavit, he had not

previously written any articles on Brandon Darby, Bradley Crowder, or David McKay.

While researching his story, the writer contacted Stephen McCraw, Director of the

Texas Department of Public Safety, Tom Vineger, spokesperson for the Texas

Department  of  Public  Safety,  Jeffrey  DeGree  (McKay’s  attorney),  Bradley  Crowder,  and  

Scott Crow who was an Austin activist who knew McKay, Crowder, and Darby. Effort

was made to also contact Darby, but it proved unfruitful. Toby Lyles, of the research

desk at the New York Times, also provided him with background research.

       According to McKinley, his statement about Darby encouraging the plot was

based   upon   “then-recent conversations with Jeffrey DeGree and Scott Crow." They



                                              14
"discussed Brandon Darby's involvement with David McKay and Bradley Crowder

leading up to and during the 2008 RNC and Brandon Darby's role as an undercover

informant." DeGree purportedly "told . . . [him] that . . . Darby had encouraged . . .

McKay and . . . Crowder's behavior and that was the basis for the statement at issue."

Scott Crow also told him that Darby encouraged McKay and Crowder "to take actions

beyond peaceful demonstrations during the protest at the 2008 RNC."                McKinley

further attested that he 1) believed the utterance to be true at the time of its publication,

2) had no feelings of hatred, ill will, or spite toward Darby, and 3) had never heard of

Darby prior to writing the article.

       Charles Strum, the Deputy National Editor for the New York Times, also

executed an affidavit wherein he stated that 1) he believed  the  statement  about  Darby’s  

encouragement to be true at the time of publication, 2) he still believed it to be true, 3)

at no time prior to filing a lawsuit did Darby contact the New York Times to request a

retraction or correction or to assert that the article contained an inaccurate statement,

4) he had no feelings of hatred, ill will, or spite toward Darby and nothing he learned

while editing the story caused him to have any negative feeling toward Darby, and 5)

he did not entertain any serious doubts about the statement in question and if he had

reason to believe it was untrue, he would not have allowed it to be published without

further verification.

       A third affidavit was also appended to the motion for summary judgment. It was

that of Scott Crow. In it, Crow mentioned that McKinley interviewed him and that he

(Crow) believed that Darby had encouraged Crowder and McKay. His belief, the affiant

continued, was based upon his past activist experiences with Darby.



                                             15
       As previously mentioned, DeGree represented McKay in the criminal

prosecutions related to his action at the Republican Convention. During the first of the

two criminal proceedings,3 McKay contended that Darby had entrapped him into

planning the Molotov cocktail assault. The allegation was recanted before the second

trial  began,  however.    At  that  point,  McKay  admitted  that  Darby  had  not  “induced”  him  

to act and admitted to having a predisposition to engage in the conduct at issue.

Nevertheless,   Darby’s   involvement   in   the   plan   remained   an   aspect of his defense.

McKay  described  the  extent  of  Darby’s  involvement  at  a  plea  hearing  held  before  the  

commencement of the second trial. He told the trial court that 1) the three individuals

(i.e., McKay, Crowder, and Darby) engaged in a conversation around a "computer," 2)

the conversation "involve[ed] Molotov cocktails," 3) though Darby did not broach the

subject, Darby's "suggestions were about the tactics we were going to use with them,

about having enough to hand out, [and about] a . . . specified meeting point in the

park." And, in response to questioning by DeGree about whether Darby gave him "20

to 30 dollars to make—to buy the materials to get the Molotov cocktails," McKay also

answered, "Brandon gave me money to contribute, yes."

       Relying on a single source of information which source reflects only one side of

the story is not actual malice.              New Times, Inc. v. Wamstad, 106 S.W.3d 916, 928

(Tex. App.—Dallas 2003, pet. denied). Here, McKinley had several sources saying the

same thing. And,  while  he  did  not  attest  to  reading  the  transcription  of  McKay’s  plea  

hearing before writing his article, the transcript nonetheless contained information

supporting  DeGree’s  representation  that  Darby  had  encouraged  the  activity.    Knowing  

that DeGree represented McKay at the proceeding, McKinley had basis to believe that
       3
           The initial trial resulted in a hung jury.


                                                        16
DeGree knew of what he said. In other words, McKinley understood that DeGree was

privy to relevant information underlying his observation about Darby encouraging the

plot. And, aside from Darby’s  factually  unsubstantiated  insinuation  within  his  appellate  

brief that an attorney representing a criminal defendant cannot be believed when

proclaiming the innocence of his client, we have been cited to no evidence of record

suggesting that McKinley   should   have   disbelieved   DeGree.      Couple   that   with   Crow’s  

own  disclosure  about  his  activist  experiences  with  Darby  and  Crow’s  belief  that  Darby  

encouraged McKay and Crowder, McKinley had at least two viable sources upon which

to make the utterance.         As stated, a reporter may rely on statements by a single

source. See New Times, Inc. v. Wamstad, 106 S.W.3d at 928 (stating that a reporter

may rely on statements by a single source even though they reflect only one side of the

story without showing a reckless disregard for the truth).

        Again, affidavits are sufficient to support a summary judgment in their favor if

they  state  the  affiants’  belief  in  the  truth  of  those  statements  and  describe  the  sources  

underlying that belief.      Nelson v. Pagan, 377 S.W.3d 824, 834 (Tex. App.—Dallas

2012, no pet.) (finding affidavits of editors sufficient which stated that the subject

postings were based on discussions with a particular reporter, documents provided by

the reporter, and a review of related articles and that they believed the statements to

be true); see also Freedom Newspapers v. Cantu, 168 S.W.3d 847, 853 (Tex. 2005)

(holding that affidavits from a publisher and copy editor averring that neither had

knowledge of inaccuracies or any reason to doubt the accuracy of the articles was

some evidence that the newspaper acted without malice and shifted the burden to the

defendant to produce contrary evidence). The affidavits of McKinley and Strum do just



                                                  17
that.    They  illustrate  that  neither  the  writer  nor  his  employer’s  representative knew the

utterance about Darby encouraging the plot was false.4 They illustrate that neither

harbored serious doubt about the accuracy of the utterance at the time it was made.

They   also   illustrate   the   foundation   underlying   McKinley’s   utterance about Darby

encouraging the plot.5               So too were the affidavits clear, positive, direct, and free from

inconsistency.            And, most importantly, they were of a type that could be readily

controverted. That is, Darby could have deposed McKinley and Strum to test their

representations, but he did not. So too could he have questioned or deposed DeGree,

Crow, or any of the other individuals alluded to in the documents to determine what

they may have told McKinley and whether McKinley prevaricated in the least bit, but he

did not.

          Instead, Darby counters by referring to emails sent to McKinley by other

reporters after the article was published. That the comments were made after the fact

render them inconsequential to the issue before us. We reiterate that actual malice is

determined by what the writer knew or thought at the time of the writing or publication,

not what was discovered thereafter.6 Hearst Corp. v. Skeen, 159 S.W.3d at 637. And,


          4
         We need not delve into the rather interesting proposition about whether a purported defamer
can know a statement is false when evidence exists allowing a rational jury to find the statement true or
harbor serious doubt about its truthfulness given like evidence.
          5
            That   McKinley’s   affidavit   mentioned   his   belief   about   the   accuracy   of   what   he   said,   who   he  
spoke with prior to making the statement, and that two of those sources said Darby encouraged the
conduct  negates  Darby’s  assertion  that  the  document  was  conclusory.    Though  more  could  have  been  
included, it provided factual data underlying his conclusion about why he thought as he did. See
Thompson v. Curtis, 127 S.W.3d 446, 450 (Tex. App.—Dallas 2004, no pet.) (holding a conclusory
affidavit is one that fails to allege facts that support the conclusion).
          6
             In one email, the reporter states that he spent six months covering the story about Crowder
and McKay, spoke with Crowder who allegedly told him that Darby learned of the Molotov cocktails
“‘after   the   fact,’”   and   wondered   why   McKinley   would   state   that   Darby   encouraged   the   plot   “‘without  
attributing  it  to  someone.’”    What  was  meant  by  “after  the  fact”  went  unexplained.    Again,   Darby himself
admitted to knowing of the cocktails before effort was made to deploy them. So too did his own texts


                                                               18
that   other   reporters   may   have   disagreed   with   McKinley’s   proposition is not evidence

illustrating a subjective awareness of or presence of serious doubt regarding the

accuracy of the statement. See New Times, Inc. v. Wamstad, 106 S.W.3d at 927-28

(stating that because the plaintiff and a judge disagreed with a source’s  

characterization of a statement is not evidence that the media defendant reiterating the

statement acted with actual malice).

          Another  effort  missing  the  mark  is  Darby’s  assertion  that  a  “complete  picture  of  

the  newspaper’s  internal  research  process  is essential because the information that . . .

would have [been] found with even a cursory search would raise serious doubts about

the truth of this article.”    He  fails  to  cite  us  to  anything  of  record  suggesting  what  such  a  

search would have uncovered; nor may we guess at that. Additionally, our Supreme

Court  has  held  the  “[f]ailure  to  investigate  the  truth  or  falsity  of  a  statement  before  it  is  

published”   is   no   evidence   of   actual   malice.         Dun & Bradstreet, Inc. v. O'Neil, 456

S.W.2d 896, 901 (Tex. 1970), quoting El Paso Times, Inc. v. Trexler, 447 S.W.2d 403



reveal   that   he   supported   McKay   in   “whatever”   course   of   action   he   opted   to   pursue;;   one   such   course  
could have been the use of the bombs. This alone could lead one to question the accuracy of what the
reporter was insinuating in his email. We further note that after the reporter commented about the lack
of attribution, New York Times published a corrected version of the story. Therein, the newspaper wrote
that  while  both  Crowder  and  McKay  pled  guilty,  one  of  the  two  “implicated  Mr.  Darby,  saying  Mr.  Darby  
had  persuaded  him  to  make  the  bombs.  He  later  conceded  that  Mr.  Darby  had  not  entrapped  him.”  The  
latter  comports  with  McKay’s  testimony  at the federal plea hearing.

             As   for   the   second   email   sent   by   a   different   reporter,   it   states   that   McKay   “‘admitted   he   lied’”  
about   Darby   once   he   realized   “‘Crowder   was   going   to   testify   against   him.’”        That   was   followed   by   the  
statement  that  “‘[i]t  has never been proven that Darby was anything more than an informant along for the
ride.’”      Yet,   the   testimony   captured   within   the   transcript   of   McKay’s   plea   hearing   reveals   that   McKay  
never recanted his accusation about Darby encouraging his plan. Rather, he simply retracted his
allegations about being entrapped. And, as will be discussed infra, they are two different matters. As for
the  reference  to  Darby  never  having  been  proven  to  be  complicit  in  the  activity,  we  again  refer  to  Darby’s  
texts to McKay and his admission about knowing of the bombs and contacting McKay about them. Yes,
Darby   may   well   have   just   been   an   informant   as   suggested   by   the   reporter.      But   evidence   of   Darby’s  
complicity as more than an informant appears of record, as previously described. And, that evidence
tends to erode the premise offered by Darby that had McKinley read the emails he would have somehow
been required to believe his statement was false.


                                                                    19
(Tex. 1969); see also Austin v. Inet Techs., Inc., 118 S.W.3d 491, 497-98 (Tex. App.—

Dallas 2003, no pet.) (holding the same). Nor   is   the   “failure   of   defendant   to   perform  

verification  required  by  its  own  standards”  such  evidence.    Doubleday & Co. v. Rogers,

674 S.W.2d at 756.          It may evince negligence or activity below that expected of a

reasonable person, but not actual malice. Dun  &  Bradstreet,  Inc.  v.  O’Neil, 456 S.W.2d

at 901.

        Nor  can  we  ignore  Darby’s  attempt  to  paint  McKinley  with  the  brush  of  malice  by  

attempting to confuse   the   distinction   between   the   words   “encourage”   and “entrap”.    

McKinley knowing McKay recanted the entrapment allegation (assuming McKinley

knew that in the first place) is no evidence of a subjective belief about the accuracy of

the statement that Darby encouraged the misconduct. To conclude otherwise would be

to say that an apple must be as sour or bitter as a quince because both look the same

and grow on trees. Because two things have similarities does not mean they are the

same.     Entrapment is a legal theory providing a defense to one being criminally

prosecuted.      It   consists   of   two   elements,   the   first   being   the   accused’s   lack   of  

predisposition  to  commit  the  offense  and  the  second  being  the  government’s  inducing  

the accused to engage in the crime.             United States v. Nelson, 732 F.3d 504, 513-14

(5th Cir. 2013); accord Thomas v. State, No. 07-12-00446-CR, 2013 Tex. App. LEXIS

13614, at *3 (Tex. App.—Amarillo November 4, 2013, no pet. h.) (stating that

entrapment   is   a   defense   requiring   proof   that   “the 1) accused engaged in the conduct

charged, 2) he was induced to do so by a law enforcement agent, and 3) the agent

used  persuasion  or  other  means   likely   to   cause   persons  to   commit   the   offense”).      As  

stated by the court in Nelson, the ultimate question revolves  around  "’whether  criminal  



                                                    20
intent originated with   the   defendant   or   with   government   agents.’”      United States v.

Nelson, 732 F.3d at 514, quoting United States v. Bradfield, 113 F.3d 515, 521 (5th Cir.

1997) (Emphasis added). As such, the focus lies upon what was said and done when

the relationship between the government and its eventual dupe began. If the accused

was predisposed or had already decided to engage in the activity before government

intervention, then he was not entrapped. And, McKay ultimately conceded those to be

the circumstances involved; Darby did not entrap him.

        On   the   other   hand,   “encourage”   connotes   “to   inspire   with   courage,   spirit,   or  

hope,”  “to  hearten,”  “to  attempt  to  persuade,”  and  “to  give  help”.    MERRIAM-W EBSTER’S

COLLEGIATE DICTIONARY 410 (11th ed. 2003); see e.g., Pete v. State, No. 07-03-00037-

CR, 2004 Tex. App. LEXIS 2576, at *12-13 (Tex. App.—Amarillo March 23, 2004, no

pet.) (not designated for publication) (holding that Pete encouraged the commission of

the crime for purposes of rendering him a party by driving the party possessing the

drugs to the place where the drugs were acquired and to another location where they

were sold). Unlike entrapment, nothing in the plain meaning of that word restricts its

focus solely to the circumstances existent at the inception of the relationship between

two parties. Indeed, one can inspire, persuade, help, or advise another even after the

other already committed to act.

        This distinction between the two words or concepts is of import because

McKinley  did  not  say  in  his  article  that  Darby  “entrapped”  McKay  or  Crowder.    Rather,  

he   said   Darby   “encouraged”   the   plot.      All   Darby’s   allusions   to   evidence   about   McKay  

recanting or being found to have obstructed justice by lying are irrelevant, since they

relate  to  McKay’s  claim  of  entrapment.    In  short,  potentially  knowing  that  Darby  did  not  



                                                     21
entrap McKay does not mean he also had doubts about whether Darby encouraged

him. The trial court did not err in granting McKinley and his employer summary

judgment   on   the   issue   of  actual  malice.     This   coupled   with   Darby’s  undisputed   status  

as a public figure relieves us from having to address any other issue raised by

appellant. The summary judgment is affirmed.




                                                                  Brian Quinn
                                                                  Chief Justice



Campbell, J. Concurring and dissenting

Pirtle, J. Concurring and dissenting




                                                    22
EXHIBIT 1




    23
              !Jorl< e\mts·

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February 22, 2011



Anarchist Ties Seen in '08 BOInbing of
Texas Governor's Mansion
By JAMES C. McKINLEY Jr.
HOUSTON - It has been two and a half years since an arsonist tossed a firebomb into the
governor's mansion in Austin and slipped into the night, but the Texas Rangers say they are
finally closing in on the person responsible.

Steven C. McCraw, the head of the Department of Public Safety, said on Friday that
investigators had linked the arsonist to a group of anarchists known as Austin Affinity. He said
two members of the same group had pleaded guilty to making and possessing gasoline bombs
during the 2008 Republican National Convention in St. Paul, Minn., three months later.

But one of the men who pleaded guilty in Minnesota said the anarchist group that the rangers
are focusing on did not exist. The man, Bradley Crowder, said it was an ad hoc collection of
young anarchists who had pooled resources to hire a van for the trip north.

"It was like an activist car pool," said Mr. Crowder, who is 25 and served two years in prison
for his role in making eight gasoline bombs in wine bottles, which were never used.

The rangers, however, see things differently. A break in the case came several months ago, they
said, when a ranger who was helping review thousands of hours of surveillance tapes from 11
cameras around the Capitol and mansion spotted something strange.

Four days before the fire, three men in a white Jeep Cherokee stopped in front of the mansion
about 2 a.m. and a person in the back seat snapped photos of the building. The ranger thought
the men might have been casing the place.

But the video camera did not capture the license plate number. So the police began a
painstaking hunt through 3,000 similar Jeeps in Texas, eliminating them one by one, Mr.
McCraw said. "Everyone of them had to be looked at," he said, "and it had to be done in a way
that you are not letting the person know."

"It was good, old-fashioned police work," he said. "Sometimes it's the minutiae and the
                                                                                  000015
tedious that links you to something."
Months later, investigators found the car and interviewed the owner, who turned out to have a
connection to people who were part of the Austin Affinity anarchist group, Mr. McCraw said.
The owner also identified the two passengers, one of whom was near the mansion at the time
of the fire.

All three men in the Jeep have been questioned in connection with the arson and are
considered suspects, though they have denied involvement, the police said.

Mr. McCraw said the arsonist is believed to be a fourth person, whose shadowy figure can be
seen in video taken by another camera the night of the fire. Released last week, the video
shows the figure tossing a blazing gasoline bomb onto the porch of the mansion, then sprinting
away. A third camera on an adjacent street captured a grainy image of his face. The police
enhanced the picture electronically and released a sketch based on it.

The fire destroyed much of the historic two-story brick home across from the Texas Capitol
where governors have lived since 1856. Renovations continue, but Gov. Rick Perry has been
moved to other lodgings. For two years, the search for the culprit has been a priority for the
rangers and the state police, and the lack of progress had been an embarrassment for the
department.

In recent days, rangers in their trademark cowboy hats have fanned out across Austin and
penetrated the city's counterculture hangouts, where the fashion accessories tend toward
piercings and tattoos, the music is alternative rock and globalization is a dirty word. Toting
pictures of suspects and offering a $50,000 reward for leads, the lawmen have questioned
several self-described anarchists about the Affinity group and the identity of the bomber.

Not surprisingly, the investigation has been met with some suspicion. Many self-described
anarchists in Austin do not advocate attacking all forms of government, a concept they regard
as dated. Their vision of anarchism holds that people should take action themselves to fix
social problems. Local anarchists run a recycling center, a food-distribution program, a
bookstore, a cafe, and even a thrift shop.

Yet federal agents accused two men from these circles of plotting to make firebombs and hurl
them at police cars during the convention. An F.B.! informant from Austin, Brandon Darby,
was traveling with the group and told the authorities of the plot, which he had encouraged.

David Guy McKay, 24, pleaded guilty to firearms violations in the case and was sentenced to
four years. Mr. Crowder, 25, received a two-year sentence after pleading guilty to aiding and
abetting Mr. McKay in the possession of an illegal firearm, which is how the law classifies a
gasoline bomb.                                                                     000016
Mr. Crowder, who is living and working in Austin, said he had nothing to do with the mansion
fire. He called the theory that there was an anarchist organization behind both crimes
"categorical nonsense." "It never existed," he said. "It's not a real entity."

Scott Crow, an Austin anarchist who knows Mr. Crowder and Mr. McKay but did not go to St.
Paul, said the state police were "grasping at straws." He said the group that had traveled to
Minnesota was never a coherent organization and split up on returning.

"Anarchist groups, you know, they have no leader," Mr. Crow said.




                                                                                 000017
                Tab C
                          
Concurrence and Dissent
         (Justice Pirtle)
                                  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 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, J.J.

      The question in this case is this, did the Appellees, the New York Times

Company and James McKinley, Jr. (hereinafter “McKinley”), establish, as a matter of

law, that they acted without actual malice in publishing the prosecution statement the

subject of this defamation cause of action?       This question touches upon an issue

lawyers have wrestled with for centuries—how do you prove a negative? Much less,
how do you prove it as a matter of law? The majority finds McKinley has stumbled upon

the answer to this enigma. Respectfully disagreeing, I dissent.


       The facts of this case are well stated in the majority, and I will not endeavor to

repeat them here, other than to define the “prosecution statement.” The Appellant,

Brandon Darby, filed this suit against McKinley alleging he was defamed by a

publication that linked him to an alleged conspiracy to commit arson at the 2008

Republican National Convention in Minnesota. The prosecution statement appeared in

an article that delved into a mysterious fire that significantly damaged the Texas

Governor’s mansion. After discussing police investigation efforts seeking to link the

mansion fire to an Austin-area anarchist group, and their disavowing of any connection

to the fire, the article states:


       Yet, federal agents accused two men from these circles of plotting to
       make firebombs and hurl them at police cars during the convention. An
       F.B.I. informant from Austin, Brandon Darby, was traveling with the group
       and told the authorities of the plot, which he had encouraged.


Darby contends this statement defamed him by accusing him of criminal conduct and he

filed suit.   McKinley filed a traditional motion for summary judgment stating seven

independent grounds:


   (1) The prosecution statement is not libelous per se.

   (2) The prosecution statement is constitutionally protected because it does not state
       a verifiable fact.

   (3) The prosecution statement is literally true or substantially true and Darby cannot
       meet his burden of establishing material falsity.




                                            2
   (4) The prosecution statement is an accurate report of allegations made against
       Darby and therefore protected by the substantial truth doctrine.

   (5) The prosecution statement is privileged and published without actual malice.

   (6) Darby is a public figure and cannot sustain his burden of establishing actual
       malice.

   (7) Darby has failed to establish evidence of actual damages.



       The trial court granted summary judgment without specifying the grounds for its

ruling. Therefore, applying traditional notions of summary judgment, Darby has the

burden of establishing why none of those grounds support the trial court’s decision.

Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). In other words, on

appeal an order granting summary judgment must be affirmed if any one of the grounds

asserted is meritorious. Western Investments, Inc. v. Urena, 162 S.W.3d 547, 550

(Tex. 2005).    The majority opinion methodically deals with the first six grounds,

pretermitting the seventh ground as being unnecessary to the final disposition of the

appeal. See TEX. R. APP. P. 47.1. I agree with the majority’s disposition of grounds one

through four, disagree with the disposition of grounds five and six, and will briefly

address ground seven to support my final conclusion.


GROUNDS ONE, TWO, THREE AND FOUR


       As to the first ground asserted by McKinley, the majority finds, and I agree, the

prosecution statement is libelous per se. As to the second ground, the majority finds,

and again I agree, the prosecution statement is not constitutionally protected due to its

status as an unverifiable fact. As stated by the majority, “[a] reasonable person reading

the allusion to Darby in the context of the article as a whole could rationally perceive it

                                             3
as attributing criminal conduct to Darby.” The publication in question dealt with the

commission of specific crimes and the identity of persons engaged in the commission of

those crimes, clearly verifiable facts.       Addressing the third ground contending the

prosecution statement is literally true or substantially true and focusing on the gist of the

broadcast as viewed through the eyes of a person of ordinary intelligence, the majority

finds there to be a material question of fact. Again, I agree. Finally, concerning the

fourth ground, McKinley contends the prosecution statement is an accurate report of

allegations made against Darby and therefore protected by the substantial truth doctrine

as a third-party allegation. The Texas Supreme Court recently rejected this third-party

allegation argument in Neely v. Wilson, No. 11-0228, 2013 Tex. LEXIS 1082 at *2 (Tex.

June 28, 2013)1 (holding that the gist of a broadcast must be true in order to avail

oneself of the truth defense).


GROUNDS FIVE AND SIX


       We come then to McKinley’s fifth and sixth grounds for summary judgment—the

absence of actual malice.         Here, the majority thoroughly examines the summary

judgment affidavits and ultimately concludes McKinley’s summary judgment evidence

disproved the existence of malice, as a matter of law because McKinley’s summary

judgment evidence denies knowledge of any material inaccuracies and disavows any

doubt as to the accuracy of any facts.          The majority then concludes these denials

constitute “some evidence that the [media defendant] acted without malice and shifted



       1
        Dissenting opinion by Justice Lehrmann appearing at Neely v. Wilson, No. 11-0228, 2014 Tex.
LEXIS 114 (Tex. Jan. 31, 2014).


                                                4
the burden to the defendant to produce contrary evidence.” 2 This is where my view

departs from the majority.          By shifting the burden to Darby, the majority’s analysis

misapplies the standards of review for a traditional summary judgment.


        We do not have one set of summary judgment principles for defamation claims

and another set of principles for everything else. We apply the same standards of

review to a summary judgment proceeding concerning defamation as we do any other

case. Neely, 2013 Tex. LEXIS 1082, at *11. In that regard, we review a trial court’s

grant of summary judgment de novo, Valence Operating Co. v. Dorsett, 164 S.W.3d

656, 661 (Tex. 2005), the party moving for summary judgment bears the burden of proof

in all cases, Roskey v. Tex. Health Facilities Comm’n, 369 S.W.2d 302, 303 (Tex.

1982), and we review the summary judgment record “in the light most favorable to the

nonmovant, indulging every reasonable inference and resolving any doubts against the

motion.” City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).


        Where, as here, a defendant seeks a traditional summary judgment without

further seeking a no-evidence summary judgment, the motion should be granted only if

the movant disproves at least one essential element of the non-movant’s cause of

action, or establishes all the elements of an affirmative defense as a matter of law.

Shaw v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). McKinley’s summary judgment relies
        2
            In the context of a trial, the United States Supreme Court, the Texas Supreme Court, and even
this Court have afforded media defendants greater protections by shifting to the claimant the burden of
proving that the alleged defamatory statement is false when the statement was made by a media
defendant over a matter of public concern. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777
(1986); McIlvain v. Jacobs, 794 S.W.2d 14 (Tex. 1990); McAlister TV Enters. v. Blue, No. 07-99-00458-
CV, 2001 Tex. App. LEXIS 188 (Tex. App.—Amarillo 2001, no pet.)(mem. op.); Simmons v. Ware, 920
S.W.2d 438 (Tex. App.—Amarillo 1996, no writ). However, the fact that we shift the burden to the
claimant at trial does not mean that the burden is shifted to the non-movant in a summary judgment
proceeding. Neely, 2013 Tex. LEXIS 1082, at *18-19. While Darby will have to prove actual malice at
trial, at this stage of the proceeding, it is McKinley’s burden to prove, as a matter of law, the absence of
actual malice.

                                                     5
upon the premise that an essential element of Darby’s cause of action, to-wit: actual

malice, was disproved as a matter of law. And thus, we come face to face with the

question—how do you prove a negative, particularly in the context of a motion for

summary judgment where every reasonable inference and any doubts must be resolved

against the movant? Relying on Freedom Newspapers v. Cantu, 168 S.W.3d 847, 853

(Tex. 2005), the majority finds McKinley’s affidavits sufficiently negate actual malice

because the prosecution statement was published without knowledge of the falsity or

reckless disregard of the truth. In reaching this conclusion, the majority focuses on the

question of whether Darby “encouraged” the criminal conduct in question. However, in

determining the “truth” of a statement, the assessment of a broadcast’s “gist” must be

the critical focus. Neely, 2013 Tex. LEXIS 1082, at *23.


       A broadcast with specific statements that err in the details but correctly convey

the gist of a story is a “substantially true” statement. Id. On the other hand, a broadcast

“can convey a false and defamatory meaning by omitting or juxtaposing facts, even

though all the story’s individual statements considered in isolation were literally true or

non-defamatory.” Id.


       McKinley argues that the prosecution statement is substantially true because

there is undisputed summary judgment evidence that Darby “encouraged” the two

militants ultimately convicted in connection with the firebombs at the Republican

National Convention. While this individual statement considered in isolation may be

true, the gist of the statement—i.e., that Darby participated in the commission of a

criminal act—is equally controverted by Darby’s summary judgment evidence.             The

majority as much as says so in its analysis of grounds two and three. Reviewing the

                                            6
summary judgment record “in the light most favorable to the nonmovant” and “indulging

every reasonable inference and resolving any doubts against the motion,” there exists a

fact question regarding a material issue.


GROUND SEVEN


      The majority did not address the merits of McKinley’s seventh and final ground

for summary judgment—the absence of evidence establishing actual damages.

Because Darby has established a cause of action for defamation per se, he is entitled to

recover general damages without specific proof of the existence of harm. Bentley v.

Bunton, 94 S.W.3d 561, 604 (Tex. 2002) ("Our law presumes that statements that are

defamatory per se injure the victim's reputation and entitle him to recover general

damages, including damages for loss of reputation and mental anguish."); Exxon Mobil

Corp. v. Hines, 252 S.W.3d 496, 501 (Tex. App.—Houston [14th Dist.] 2008, pet.

denied). Accordingly, this ground too does not provide a basis upon which the trial

court could have granted McKinley’s motion for summary judgment.


                                      CONCLUSION


      While McKinley might ultimately prevail on the issue of actual malice at trial, he

certainly has not done so here—at least not as a matter of law. Accordingly, I would

reverse the judgment of the trial court and remand the case for further proceedings.


                                                Patrick A. Pirtle
                                                    Justice




                                            7
               Tab D
                        
Concurrence and Dissent
     (Justice Campbell)
                                   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
                Tab E
                             
Court of Appeals Judgment
                                                                                     FILE COPY




                                   No. 07-12-00193-CV

Brandon Darby                                §      From the 274th District Court
 Appellant                                            of Hays County
                                             §
v.                                           §      February 26, 2014
The New York Times Company and               §      Opinion by Chief Justice Quinn
James C. McKinley, Jr.                               Concurring and Dissenting Opinion
 Appellees                                   §       by Justice Campbell
                                             §       Concurring and Dissenting Opinion
                                                     by Justice Pirtle


                                     JUDGMENT


       Pursuant to the opinion of the Court dated February 26, 2014, it is ordered,

adjudged and decreed that the judgment of the trial court be affirmed.

       It is further ordered that appellant pay all costs in this behalf expended for which

let execution issue.

       It is further ordered that this decision be certified below for observance.

                                           oOo
                       Tab F
                                 
Excerpts from the Clerk’s Record
             REDACTED
                                                                            Withheld based on
                                                                           TEX.R. eiV. P. 193.3(c)




From:
From : NYTimes.com [emailus@ms2.lga2.nytimes.com)
Sent: Thursday, February 24, 2611  11:26 AM
                              2911 11:29
To
To:: McKinley, Jim
Subject
Subject:: READER MAIL: James C. Mckinley Jr.
                                         Jr .

Email: may@texasobserver.org
URL :Anarchist Ties Seen in '6S
                            '9S Texas Bombing
Comments:Dear
Comments :Dear James,

I'm a fellow journalist who spent six months in 2669
                                                2999 tracing the convoluted story of Brandon
Darby and the two men (Crowder and McKay) who made firebombs at the 2998
                                                                    2668 RNC for the show
This American life.

htto:llwww.thisamericanlife.org/ radio-archives / episode/ 3Sl/ turncoat
htto:llwww.thisamericanlife.org/radio-archives/episode/3Sl/turncoat

I read your article on the mansion fire with interest. But I was very surprised by this
sentence:

An F.B.! informant from Austin, Brandon Darby, was traveling with the group and told the
authorities of the plot, which he had encouraged.

I spoke to Brad Crowder yesterday and he told me that Brandon only learned they'd made the
Molotov cocktails after the fact. My investigation uncovered that Darby may have encouraged
them to prepare for a violent confrontation with a police, and I basically argued this was
inappropriate for an older activist who was working for the FBI. But this is quite different

                                                 1                                      NYTlMcKinley001',1

                                                                                           001253
from saying he encouraged &quot;the plot&quot; to build Molotov cocktails. I'm not sure why
you would make a statement like that without attributing it to someone.

Sincerely,
Michael May
Managing Editor
Texas Observer




                                                                                NYTIMcKinleyOOi::)
                                              2


                                                                                    001254
                                              REDACTED                            Attorney/Cllont
                                                                                  AttomeylCllen\    .
                                                                             priVileged communication
                                                                             privileged




          . · ··,· ··Or1gina1
                   --Origina1 Message-----
          From: NYTimes. com [,"ail to: en,ailus@ms2.1ga2.nyUmes.c011l]
          Sent: Thursday, March 83, 2811 18:89 AM
          To: McKinley, Jim
          Subject: READER MAll:MAIL: James C. Mckinley Jr.


          Email : jim.walsh@startribune.com
          Email:
                     Gov.. lIansion arson
          URL: Texas Gov
          Comments: James)

          1j cover federal courts and federal agencies for the Star Tl'ibune
                                                                    Tl'ibunc in Minneapolis.

          In your story, you state:

          Yet federal agents accused two men from these circles of plotting to make firebombs and hurl
          them at police cars during the convention
                                          convention.. An F.B.I informant from Austin, Brandon Darby, was
          traveling
          trave ling with the group and told the authorities of the plot, which he had encouraged.

( ':'.or
( ) r covered the this case from beginning to end, including the trial. Darby repeatedly
    testified that he NEVER encouraged violence or the making of Molotov cocktails. That was a
               McCabe' 5, that Darby talked him into it.
    defense of McCabe's,                             it . McCabe won a hung jury with his
    entrapment defense, but later admitted he lied when Crowder was going to testify
                                                                               test1fy against him
                                                                                               him..

          It has never been proven that Darby was anything more ttlan an informant along for the ride.
                                                                                                 ride .




r, " ,"


                                                                                          NYTIMcKinleyOOO13



                                                                                               001256
           REljACTED
           REliACTED



                                                    Attorney/Client
                                             Privileged Communication




-----Or1ginal Message-----
-----Original
From : McKinley, Jim
Sent: Thursday, March 83,e3, 2ell
                             2811 1e:28
                                  18:28 AM
To: 'jim.walshj!startribune.com'
     'jim,walshj!startribune,com'
Subject: Thanks
For you letter and for straightening us out on that pOint,
                                                    pOint.        Yours,
                                                                  Yours . Jim
                                                                          jim




                                                                                001257
                                   CAUSE NO.. 11-0528
IlHANDON DARIlY,                             §        IN nm I}(STRICT COURT 0.1<"
                                             §
                      Plaintiff,             §
                                             §
n.                               §                    IIA YS Co.UNTY, TEXAS
                                 §
TJlIi: NEW yo.RK TIMES Co.MPANY, §
And .JAMES C. McKINLEY, ,JR.,    §
                                 §
                                 §                   274T11 JUDICIAL DISTRICr


                        AF.FIDAVIT o.li' CHARLES STRUM


       Before me, the undersigned notary public, personally appeared CHARLES

STRUM, who heing duly sworn upon his outh did depose and state us Ibllows:

I.    My name is Charles 8111lm. I am over the age of eighteen Hnd um fully competent
      to make this amdavit. The facts stated herein arc within my pCI'sonal knowledge
      Ull0 are true and com:cl.

2.    I am currently ,1 Dcputy National Editor for Thr, New Yurk Time.\'. I have been the
      Deputy Nationlll Editor since Februnry 2011. Prior to thnt time. I wus lin
      Associate Managing Editor and. berore that. obituaries edilor. t have been
      employed by        New York Times since 1979.
3.    I graduated from Dickinson College in 1970.
4.    I was" Deputy Nutionul Editor In the days leading up to February 22. 20 II. and I
      WllS the editor of the article atisslle in this lawsuit. which was posted online on
      Tila New York Times's wehsite on I'cbntary 22. 2011 and which uppeared in the
      print edition of The New York Times on February 23. 20 II ("the Article").
5.    Tho AI1icle concerned UI1 alleged link between orson at the Texas Governor's
       Mansion and some Austin anarchists.
6.    I believed the statement "which he had cncourutled," in reference to Brandon
      Durb)" to be true at the time the article was published. I believe it to be true still.
7.    At no time prior to the date of this lawsuit did Urundoll Darhy or anyone usserting
      to be acting on his behalf contact any person at lhe New )'ark '/)mes to request a
      retraction or correction - or even to advise tlUit he believed the AI1icie contained
      all inaccurate or defamatory statemcnt.
H.    Once The Times received communication thllt Mr. Darhy cunsidered the article to
      contain a defamatory statcment (through the service of the IlIwsuit), we




                                                                                            000903
       immediately investigated whether 1I clarilicution or correction was in order, nnd. if
         whut it should        On Mureh 16, 201 I, u cJurilicution was issued .
       I did not (Bnd do not) harhor any leeJings oj' hatred, ill will, or spite toward
        Brundon D!II·by. Additionally. Ilolhing Ilcol'lled in Ihe process orediting the slory
       caused me 10 huve ony negutive fe.lin", towards Mr. Darby.
I O.   I did not enterlain any serious doubts about the statement in question. If I had
       believed the stlltement "which he hud eneomaged," to be untrue, nr htld reason to
       believe thut the statement might be unh1Jc, I would not have allowed ilia be
       published without fUl1her verilication.
       P\lrther A mun! suyetll not.




       SWORN TO AND SUI3SCRIBED hetore me Oil the                     duy of!:'!. 20 I I.




Notal')' I'ublic. Slate of Ncw YOI'.


                                                      [printed nome J



My Commission Expires:
            I   2.',",   1..3'
                                                            DAV/o EDWARO McCRAW
                                                          Notary        8Cata of New_
                                                                 No. 02MCtlO33872
                                                          0u0IHI0d In Wn_ CconIy
                                                        CommIoeIan EJrpIr•• Otc. 8.




                                             2




                                                                                            000904
                                CAUSE NO. 11-0528
BRANDON DARBY,              §                      IN THE DISTRICT COURT OF
                            §
                Plaintiff,  §
                            §
vs.                         §                      HAYS COUNTY, TEXAS
                            §
THE NEW YORK TIMES COMPANY, §
And JAMES C. McKINLEY, JR., §
                            §
                Defendants. §                      274T11 JUDICIAL DISTRICT


                     AFFIDAVIT OF JAMES C. MCKINLEY


       Before me, the undersigned notary public, personally appeared James C.

McKinley, who being duly sworn upon his oath did depose and state as follows:

I.     My name is James C. McKinley Jr., I am over the age of eighteen and am fully
       competent to make this affidavit. The facts stated herein are within my personal
       knowledge and are true and correct.
2.    I am currently a writer for the arts section of The New York Times. I have been
      employed by The New York Times since 1986 and have been a reporter for The
      New York Times since 1989. 1 was· the Houston Bureau Chief from 2008 until
      June 2011. 1 am now based in New York City covering culture and popular music
      for The New York Times.
3.     Prior to that time, 1 was a reporter in Ithaca, N.Y., with WfKO from 1981-1984
       and with QI04 in 1985. I graduated from Cornell University in 1984.
4.    I am the author of the article at issue in this lawsuit, which was posted online on
      The New York Times's website on February 22, 2011 and which appeared in the
      print edition of The New York Times on February 23, 2011 (''the Article").
5.    The article concerned an alleged link between arson at the Texas Governor's
      Mansion and some . Austin anarchists. I bad previously done a story on the
      mansion fire, but had not done any articles (or research) on the RNC or the Texas
      Two, or on Brandon Darby.
6.    In doing research for the Article, I contacted a number of persons familiar with
      the story and with the Texas Two. Among others, I interviewed Steven McCraw,
      Director of the Texas Department of Public Safety; Tom Vinger, spokesperson for
      the Texas Department of Public Safety; Jeffrey DeGree, David McKay's attorney
      in his criminal case; Bradley Crowder; and, Seatt Crow, an Austin activist who
      was very familiar with David McKay, Bradley Crowder, and Brandon Darby.




                                                                                            000767
      Additionally, Toby Lyles, at The Times's research desk, provided me with
      background research for the article.
7.    I also attempted to get in touch with Brandon Darby to interview him regarding
       the article, but was unsuccessful in ever reaching him.
8.    When I spoke with Jeffrey DeGree in the course of my research, Mr. DeGree told
      me that Brandon Darby had encouraged David McKay and Bradley Crowder's
      behavior and that was the basis for the statement at issue. This was also
      supported by Scott Crow, who told me that Brandon Darby had encouraged David
      McKay and Bradley Crowder to take actions beyond peaceful demonstrations
      during the protest at the 2008 RNC.
9.    My inclusion of the statement in the article at issue was based on my then-recent
      conversations with Jeffrey DeGree and Scott Crow, where they discussed
      Brandon Darby's involvement with David McKay and Bradley Crowder leading
      up to and during the 2008 RNC and Brandon Darby's role as an undercover
      informant.
10.   I believed the statement to be true at the time the article was published.
11.   At no time prior to the date of this lawsuit did Plaintiff Brandon Darby (or anyone
      asserting to be acting on his behalf) contact me to advise me that he believed that
      the Article was defamatory or contained inaccurate information.
12.   At no time prior to the date of this lawsuit did Brandon Darby (or anyone
      asserting to be acting on his behalf) ever contact me to request that I publish a
      correction to, or issue a retraction of, the Article.
13.   At no time prior to the date of this lawsuit did Brandon Darby or anyone asserting
      to be acting on his behalf contact any other person at The New York Times to
      request a retraction or correction - or even to advise that he believed the Article
      contained an inaccurate or defamatory statement.
14.   On or around March 3, 201 I, I received an email from a Jim Walsh, who stated he
      was a reporter at the Minnesota Star-Tribune. At that time, I was very busy with
      other stories and did not read most of my emails, which sometimes numbered as
      many as a hundred on any given day. But, I did briefly see Mr. Walsh's email
      and, out of professional courtesy, responded immediately to thank him for
      contacting me about the story. In the email.Mr. Walsh advised that he had
      covered the trial of McKay and gave a brief outline of what he saw at the McKay
      (repeatedly incorrectly spelled as "McCabe" in his email) trial. He did not advise
      me that he believed a correction to my story was in order. Instead, his email
      reported on details about the trial testimony concerning Darby's influence on
      McKay and Crowder. I had not written about tbe trial in the Article but thought
      his points might be worth researching if I covered the anarchists or the mansion
      bombing in the future . Thus, I simply thanked him for his response and for
      setting out the facts about what the trial showed about McKay's claim of
      entrapment.


                                           2



                                                                                            000768
15.   Mr. Walsh's emoil provided no notice Ihnl Mr. Darby or nnyone else wn9
      requesling 0 rclrnclion, eorreelion, or clarificnlion. Mr. Walsh did nol soy Ihal he
      Ihought Ihere shollid be II correclion or clnrification.
IG.   Once we received eommunleotlon thnt MI'. Dnrby considered Ihe arlicle to eonloin
      n defamatory statemenl (throllgh the service of the luwsuit), we immedlntely
      investignled whether n clarifiention or correction WIIS in order, lind, if so, whot it
      ShOllld state. On Morch 16,2011,0 clorifieotion wns issued.
17.   1 did not (and do not) horbor any feelings of hatred, ill will or spite towonl
      Brandon Dorby. Prior 10 writing the article in question, I had nevcr hcftrd of
      Brandon Darby ond knew nothing nbout him. Addilionally, nolhinG I Icnmcd in
       the process of reporting the story caused l11e to hove nny negalive feelings towards
       Mr. Dorby.
       Further Affinnt snyelh not.


                                                     10mes C.    MCKi11IY

       SWORN TO AND SUBSCRIBED before me 011 lhe                -#:: day ofll, 2011.


       [Scnl]
                                                           j      LL) C-         ',---c_


Notm'y Public, State of New York
                                                    );      j     b.l",wJ (I '(
                                                    [printed name)


My Commission Expires:




                                           3




                                                                                               000769
.   ,,"




          t!!bt Nt\U !lork t!!hllrso Reprints
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          Til;' copy illor YOllr           nonCommercial uSC only. You can order presenlalion-rearty copies 101
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                                                                                                                          MARCH 18

          February 22. 201'



          Anarchist Ties Seen in '08 Bombing of
          Texas Governor's Mansion
          By JAMES C. McKINLEY Jr.
          HOUSTON - It has been two and a half years since an arsonist tossed a firebomb into the
          governor's mansion in Austin and slipped into the night, but the Texas Rangers say they are
          finally closing in on the person responsible.

          Steven C. McCraw, the head of the Department of Public Safety, said on Friday that
          investigators had linked the arsonist to a group of anarchists known as Austin Affinity. He said
          two members ofthe same group had pleaded guilty to making and possessing gasoline bombs
          during the 2008 Republican National Convention in st. Paul, Minn., three months later.

          But one of the men who pleaded guilty in Minnesota said the anarchist group that the rangers
          are focusing on did not exist. The man, Bradley Crowder, said it was an ad hoc collection of
          young anarchists who had pooled resources to hire a van for the trip north.

          "It was like an activist car pool," said Mr. Crowder, who is 2S and served two years in prison
          for his role in making eight gasoline bombs in wine bottles, which were never used.

          The rangers, however, see things differently. A break in the case came several months ago, they
          said, when a ranger who was helping review thousands of hours of surveillance tapes from 11
          cameras around the Capitol and mansion spotted something strange.

          Four days before the fire, three men in a white Jeep Cherokee stopped in front ofthe mansion
          about 2 a.m. and a person in the back seat snapped photos of the building. The ranger thought
          the men might have been casing the place.

          But the video camera did not capture the license plate number. So the police began a
          painstaking hunt through 3,000 similar Jeeps in Texas, eliminating them one by one, Mr.
          McCraw said. "Every one ofthem had to be looked at," he said, "and it had to be done in a way
          that you are not letting the person know."

          "It was good, old-fashioned police work," he said. "Sometimes it's the minutiae and the
          tedious that links you to something. •


                                                                                                                              000424
, '-
                                                                          •
       Months later, investigators found the car and interviewed the owner, who turned out to have a
       connection to people who were part of the Austin Affinity anarchist group, Mr. McCraw said.
       The owner also identified the two passengers, one of whom was near the mansion at the time
       of the fire.

       All three men in the Jeep have been questioned in connection with the arson and are
       considered suspects, though they have denied involvement, the police said.

       Mr. McCraw said the arsonist is believed to be a fourth person, whose shadowy figure can be
       seen in video taken by another camera the night of the fire. Released last week, the video
       shows the figure tossing a blazing gasoline bomb onto the porch of the mansion, then sprinting
       away. A third camera on an adjacent street captured a grainy image of his face. The police
       enhanced the picture electronically and released a sketch based on it.

       The fire destroyed much of the historic two-story brick home across from the Texas Capitol
       where governors have lived since 1856. Renovations continue, but Gov. Rick Perry has been
       moved to other lodgings. For two years, the search for the culprit has been a priority for the
       rangers and the state police, and the lack of progress had been an embarrassment for the
       department.

       In recent days, rangers in their trademark cowboy hats have fanned out across Austin and
       penetrated the city's counterculture hangouts, where the fashion accessories tend toward
       piercings and tattoos, the music is alternative rock and globalization is a dirty word. Toting
       pictures of suspects and offering a $50,000 reward for leads, the lawmen have questioned
       several self-described anarchists about the Affinity group and the identity ofthe bomber.

       Not surprisingly, the investigation has been met with some suspicion. Many self-described
       anarchists in Austin do not advocate attacking all forms of government, a concept they regard
       as dated. Their vision of anarchism holds that people should take action themselves to fix
       social problems. Local anarchists run a recycling center, a food-distribution program, 8
       bookstore, a cafe, and even a thrift shop.

       Yet federal agents accused two men from these circles of plotting to make firebombs and hurl
       them at police cars during the convention. An F.B.! informant from Austin, Brandon Darby,
       was traveling with the group and told the authorities of the plot, which he had encouraged.

       David Guy McKay, 24, pleaded guilty to firearms violations in the case and was sentenced to
       four years. Mr. Crowder, 25, received a two-year sentence after pleading guilty to aiding and
       abetting Mr. McKay i n the possession of an illegal firearm, which is how the law classifies a
       gasoline bomb.



                                                                                                 000425
                            •                                       •
Mr. Crowder. who is living and working in Austin. said he had nothing to do with the mansion
fire. He called the theory that there was an anarchist organization behind both crimes
"categorical nonsense.· "It never existed,· he said. "It's not a real entity."

Scott Crow, an Austin anarchist who knows Mr. Crowder and Mr. McKay but did not go to St.
Paul, said the state police were "grasping at straws." He said the group that had traveled to
Minnesota was never a coherent organization and split up on returning.

"Anarchist groups, you know, they have no leader," Mr. Crow said.




                                                                                        000426
                                      TIS
Anarchist Ties Seen in '08



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                                                Bombing - NYTimes.com


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 February 22, 2011



 Anarchist Ties Seen in '08 Bombing of
 Texas Governor's Mansion
 By JAMES C. McKINLEY Jr.
 Correction Appended


 HOUSTON - It has been two and a half years since an arsonist tossed a firebomb into the
 governor's mansion in Austin and slipped into the night, but the Texas Rangers say they are
 finally closing in on the person responsible.

  Steven C. McCraw, the head of the Department of Public Safety, said on Friday that
  investigators had linked the arsonist to a group of anarchists known as Austin Affinity. He
  said two members of the same group had pleaded guilty to making and possessing gasoline
  bombs during the 2008 Republican National Convention in St. Paul, Minn., three months
. later.

 But one of the men who pleaded guilty in Minnesota said the anarchist group that the
 rangers are focusing on did not exist. The man, Bradley Crowder, said it was an ad hoc
 collection of young anarchists who had pooled resources to hire a van for the trip north.

 "It was like an activist car pool," said Mr. Crowder, who is 25 and served two years in prison
 for his role in making eight gasoline bombs in wine bottles, which were never used.

 The rangers, however, see things differently. A break in the case came several months ago,
 they said, when a ranger who was helping review thousands of hours of surveillance tapes
 from 11 cameras around the Capitol and mansion spotted something strange.

 Four days before the fire, three men in a white Jeep Cherokee stopped in front of the
 mansion about 2 a.m. and a person in the back seat snapped photos of the building. The
 ranger thought the men might have been casing the place.

 But the video camera did not capture the license plate number. So the police began a
 painstaking hunt through 3,000 similar Jeeps in Texas, eliminating them one by one, Mr.



                                                                                                                            000581
hftn·/Iwww                   c.nml?011 tn?.I?.' /nsl)'1ex"s.html? r=2&na"ewant ...rl=nrint                                  3128/2011
                                                                •
Anarchist Ties Seen in '08 TiS Bombing - NYTimes.com                                   Page2of3


 McCraw said. "Every one of them had to be looked at," he said, "and it had to be done in a
 way that you are not letting the person know."

 "It was good, old-fashioned police work," he said. "Sometimes it's the minutiae and the
 tedious that links you to something."

 Months later, investigators found the car and interviewed the owner, who turned out to have
 a connection to people who were part of the Austin Affinity anarchist group, Mr. McCraw
 said. The owner also identified the two passengers, one of whom was near the mansion at the
 time of the fire.

 All three men in the Jeep have been questioned in connection with the arson and are
 considered suspects, though they have denied involvement, the police said.

 Mr. McCraw said the arsonist is believed to be a fourth person, whose shadowy figure can be
 seen in video taken by another camera the night of the fire. Released last week, the video
 shows the figure tossing a blazing gasoline bomb onto the porch of the mansion, then
 sprinting away. A third camera on an adjacent street captured a grainy image of his face. The
 police enhanced the picture electronically and released a sketch based on it.

 The fire destroyed much of the historic two-story brick home across from the Texas Capitol
 where governors have lived since 1856. Renovations continue, but Gov. Rick Perry has been
 moved to other lodgings. For two years, the search for the culprit has been a priority for the
 rangers and the state police, and the lack of progress had been an embarrassment for the
 department.

 In recent days, rangers in their trademark cowboy hats have fanned out across Austin and
 penetrated the city's counterculture hangouts, where the fashion accessories tend toward
 piercings and tattoos, the music is alternative rock and globalization is a dirty word. Toting
 pictures of suspects and offering a $50,000 reward for leads, the lawmen have questioned
 several self-described anarchists about the Affinity group and the identity of the bomber.

 Not surprisingly, the investigation has been met with some suspicion. Many self-described
 anarchists in Austin do not advocate attacking all forms of government, a concept they
 regard as dated. Their vision of anarchism holds that people should take action themselves
 to fix social problems. Local anarchists run a recycling center, a food-distribution program, a
 bookstore, a cafe, and even a thrift shop.

 Yet federal agents accused two men from these circles of plotting to make firebombs and
 hurl them at police cars during the convention. An F.B.! informant from Austin, Brandon


                                                                                        000582
httn:llwww.nvtime<.com/2011102/21/n</21t.exa<.htm1? r=2&na"ewanted=nnnt                 312812011
Anarchist Ties Seen in '08 i t s Bombing - NYTimes.com


                                                                •
 Darby, was traveling with the group and told the authorities of the plot, which he had
 encouraged.
                                                                                        Page 3 of3




 David Guy McKay, 24, pleaded guilty to firearms violations in the case and was sentenced to
 four years. Mr. Crowder, 25, received a two-year sentence after pleading guilty to aiding and
 abetting Mr. McKay in the possession of an illegal firearm , which is how the law classifies a
 gasoline bomb.

 Mr. Crowder, who is living and working in Austin, said he had nothing to do with the
 mansion fire. He called the theory that there was an anarchist organization behind both
 crimes "categorical nonsense." "It never existed," he said. "It's not a real entity."

 Scott Crow, an Austin anarchist who knows Mr. Crowder and Mr. McKay but did not go to
 St. Paul, said the state police were "grasping at straws." He said the group that had traveled
 to Minnesota was never a coherent organization and split up on returning.

 "Anarchist groups, you know, they have no leader," Mr. Crow said.

 Correction: March 16,2011

 An article on Feb. 23 about developments in the investigation of a 2008 arsonjire at the Texas
 governor's mansion misstated the role played by an F.B.I. informer, Brandon Darby, in an
 earlier case in Minnesota. In that case, two men were accused of making and possessing
 gasoline bombs at the Republican National Convention in St. Paul in 2008. Both men eventually
 pleaded guilty. Initially, however, one of them implicated Mr. Darby, saying Mr. Darby had
 persuaded him to make the bombs. He later conceded that Mr. Darby had not entrapped him.




                                                                                         000583
hl1n·/Iwww nvtimPo< p.nm/70111O?/7,/....            r=?k.n"peWAnlen=nnnl                 112R12011
                                 Tobys-Mckinley-er1ails

From:   jim mckinley (james.c. mckinley@gmail . com]
sent:   Friday, February 18, 2011 2:41 PM
To:      Lyles, Toby
Subject:         Re: McKay and crowder
Great. This is great.
oid you find any listings for Bradley crowder or Scott crow in Austin?
.Jim

on Fri , _Feb 18, 2011 at 12 : 34 PM , Lyles, Toby <tobylyles@nytimes.com> wrote:

The name of the group is the Austin Affinity
1.      Trial of GOP convention protester may hinge on informant : Activist accused
of making Molotov cocktails for RNC
Pioneer Press (St . Paul, Minnesota), January 2S, 2009 Sunday, STATE AND REGIONAL
NEWS, 1418 words, oavid Hanners, Pioneer Press, St. Paul, Minn .
2.      · In wake of Molotov case, radicals say peace is their way
Austin American-statesman (Texas), March 1 , 2009 Sunday, MAIN ; Pg . AOl, 1743 words ,
Steven Kreytak AMERICAN-STATESMAN STAFF
3.      TEXAS MAN SENTENCED ON FIREARMS CHARGES CONNECTED TO THE REPUBLICAN NATIONAL
CONVENTION
Justice Department Documents and Publications, May 21, 2009, JUSTICE DEPARTMENT
PRESS RELEASES, 892 words




Pioneer Press (St. Paul, Minnesota)
Distributed by McClatchy-Tribune Business News
January 25, 2009 Sunday
Trial of GOP convention protester may hinge on i nformant : Activist accused of making
Molotov cocktails for RNC
BYLINE: David Hanners, Pioneer Press, St. Paul, Minn.
SECTION : STATE AND REGIONAL NEWS
LENGTH: 1418 words


Jan. 25--The government and defense agree on at leas t this much: David Guy McKay is
23; he•s from M;dland, Texas; and last summer , he came to St. Paul to protest at the
Republican National convention .


Beyond that, there is plenty of dispute about his actions and motives . In a
courtrOOlll in Minneapolis on MOnday, federal prosecutors will try to prove Mckay
built eight Molotov cocktails and told a fellow activist -- who was working
                                         Page 4


                                                                           NYT/McKlnley00066
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undercover for the FBI -- that he might use     against police.


His defense attorney will try to show McKay had no intention of hurting anyone;
McKay was arrested just three hours before he planned to board a fli9ht to Texas,
and the Molotov cocktails sat unused in the basement of the house he d been staying
in.


The defense might also try to convince jurors that were it not for the informant's
influence, the firebombs would never have been assembled.


"I'm pretty confident that we will prove that," said Michael McKay , the defendant's
father.     hope to prove that this has been an entrapment case . This is somebody
who had preplanned to have somebody arrested. somebody was going to get arrested,
and unfortunately, 1t was my son and Brad crowder."


MCKay and Bradley Neil crowder, also 23 and from Texas, have been dubbed "the Texas
2" by activists concerned about their arrests . Their supporters have issued regular
statements and have set up a web s1te in the pair ' s defense, asserting the two did
nothing wrong.


Those claims


lost a bit of weight earlier this month when Crowder stood before Chief u.s.
District Judge Michael J. Davis and pleaded guilty of possessing the Molotov
cocktails . under questioning by a prosecutor, his lawyer and Davis, crowder said he
and McKay, alone, built the devices and nobody influenced their decision to do so.


It isn't certain Crowder will testify against        and the u.s. attorney's office
declined to comment for this article. While a promise to provide testimony or aid in
other prosecutions is       a part of plea bargains, the six-page plea agreement
crowder signed Jan. 8 lacks such a clause.


The elder McKay said he expects his son to testify in his own defense.


"Absolutely, because he has nothing to h1de, " Michael McKay said.


Jeffrey DeGree, the attorney representing McKay, did not return a call for comment .


David McKay, who was a graphic designer in Austin, Texas, was indicted with crowder
in September, accused of making and possessing an unregistered firearm, which is how
federal law classifies a Molotov cocktail . They were also charged with possessing a
                                             5


                                                                         NYTIMcKinfey00067


                                                                                001232
                                 Tobys-Mckinley-emails
firearm with no serial number.

The two were among a group of activists who lived in Austin and traveled to st. Paul
to protest at the Republican National Convention, which began sept. 1. The
convention drew thousands of activists from across the country, and while most were
nonviolent, some violence broke out, and more than 800 people were arrested.


The people frOll Austin, who had rented a van and a U-Haul trailer, were, by most
accounts, part of a loose-knit group of social-justice activists, co11111unity
organizers and others. In court             the FBI has said it considered crowder,
who worked at a sandwich shop, a leader or the group, but the agency hasn't provided
details on what leadership activities, if any,     engaged in.


The trailer the van was pulling contained 35 riot shields that crowder and McKay had
allegedly made out of stolen orange plastic highway safety barrels.


What MCKay and crowder didn't know was that the FBI had infiltrated the
Brandon Darby, of Austin, an activist who had gained attention for his relief work
in New Orleans following Hurricane Katrina, had agreed to keep the FBI infonned of
the group's plans.


Darby had told the FBI about the trailer. Police found it parked in a St. Paul alley
Aug . 31 and seized it without a warrant .


The FBI claims McKay and crowder wanted revenge for the seizure, so they built
Mo1otov cocktails. That evening, members of tne group went to the Wal-Mart on
university Avenue and bought materials to       tne devices: a two-gallon gas can,
motor oil, rubber bands and tampons . Tampons are commonly used as fuses in Molotov
cocktails, and rubber bands are used to affix the tampons to the neck of bottles,
according to an affidavit by FBI special Agent Christopher Langert .


McKay and Crowder allegedly assembled the MOlotov cocktails late Aug . 31 and early
sept . l.They worked in the basement of an           building in the 200 block of
Dayton Avenue, where they had been staying; the building is six-tenths of a mile
from the Xcel Energy center, where the convention was held.


Darby told officials about the Molotov cocktails and their location sept. 1,
according to Langert's affidavitt although St. Paul police didn't apply for a
warrant to search the house unt; 1 two days later.

McKay and Crowder took part in a massive and sometimes violent street demonstration
later sept. l, the convention's opening day. Both were taken into custody and
charged with disorderly conduct . McKay was processed qu;ckly and released from
custOdy, but crowder was not .
                                        Page 6




                                                                                001233
                                Tobys-Mckin1ey-emails

McKay was incensed that police hadn't released crowder, and that's why he started
thinking about using the MOlotov cocktails , the FBI claims.


During a conversation Sept. Z McKay allegedly told Darby that he and Crowder had
assembled tke Molotov cocktaiis (although details of the assembly differ between
this conversation and the one the day before, according to Langert's affidavit}. and
that the devices "would be 1it and thrown at vehicles parked in a parking lot , '
Langert wrote.


The parking lot was used by law enforcement agencies and contained marked and
unmarked cars .


"what if there's a cop sleeping in the car?" oarby asked McKay, according to the
affidavit.


"He'll wake up," McKay allegedly replied.


"what if he doesn't?"


At one point, accordi"i to the affidavit , MCKay said: "It's worth it if an officer
gets burned or maimed.


At 3:43 a.m. sept. 3 st. Paul police applied for a search warrant for the Dayton
Avenue apartment buiidingt and they raided the place about S a.m. Paperwork filed
after the search sa;d officers found eight "Molotov cocktail devices in wine
bottles," an empty gas can, a backpack, a lighter, bolt cutters and one "Notebook
w/manifesto -- yellow."


        says in his affidavit that he questioned MCKay andi after waiving his ri9ht
to remain silent, McKay told him he and crowder had assemb ed the Molotov cocktails.


The government's case is relatively straightforward: oid McKay make and then possess
the Molotov cocktails?


DeGree has talked little about his defense strategy , but it has been clear from
McKay's father and       Austin-area activists that they hope the trial will focus
not on McKay but on Darby.


"There's a potential provocateur and informant working for the FBI, and he could ' ve
                                       Page 7

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stopped them along the way," said Scott crow, an activist who lives in Austin and
worked with Darby in New Orleans.


when the Pioneer Press first disclosed Darby's involvement in the case in October,
crow and others called the articles lies, staunchly defended Darby and said he would
never work as an informant .


But when Darby acknowledged his role in an open letter to friends Dec. 31, the
activist connunity quickly turned on him. At the web site freethetexas2 . com
<http ://freethetexas2.com/> , a group known as the Austin People's Legal collective
placed a notice looking for anyone "willing to testify as to their personal
knowledge of Brandon oarby suggesting,              or engaging in activities
involving explosives, weapons, property destruction or violence. ''


Citing the coming trial, Darby declined to discuss details of the case. "I look
forward to getting on the stand, and I look forward to speaking and saying what   I
know," he said.


In an earlier interview, he defended his activities, saying he helped stop violence
and felt he had done the morally correct thing.


The elder McKay doesn't buy that, though, and says his son is innocent.


"Even though Mr . Darby had taunted him and repeatedly asked him to use those
devices, my son was never go;ng to use those devices."


oavid Hanners can be reached at 612-338-6516.


To see more of the Pioneer Press, or to subscribe to the newspaper, go to
http ://www.twincit;es.com <http://v.ww.twincities.com/> . Copyright (c) 2009 Pioneer
Press, st. Paul, Minn. Distributed by McClatchy-Tribune Information services For
reprints, email tmsreprints@permissionsgroup.comt call 800-374-7985 or 847-635-6550
send a fax to 847-635-6968, or write to The Permissions Group Inc ., 1247 Milwaukee '
Ave., Suite 303, Glenview, IL 60025, USA.




Austin                    (Texas)
March 1, 2009 Sunday
                                       Page 8



                                                                                001235
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Final Edition
In wake of MOlotov case, radicals say peace is their way
BYLINE: Steven Kreytak AMERICAN-STATESMAN STAFF
SECTION: MAIN; Pg. A01
LENGTH: 1743 words

As eight Austin activists made the 1,200-mi1e drive to the Republican National
convention in st. Paul, Minn., in a rented van last summer, they talked about things
like food, politics and protests, said 21-year-old Gabby Hicks, who was part of the
group.

They also talked about ways, when protests seemed to be growing heated, to defuse
the situation - h¥ sitting down, for eKample, Hicks said. "There was no really
serious conversat1on about destruction or hurting people or anything that I would
view as violence. we were all under the impression that this was nonviolent civil
disobedience."

But the van was hauling 34 homemade riot shields. And during the four-day convention
in st. Paul, two members of the Austin contingent - Bradlev Crowder and David MCKay
- were arrested, accused of building a cache of homemade firebombs.


Authorities say crowder and McKay intended to use them on police vehicles and
perhaps.even police officers.

Media outlets around the nation reported on the charges that the two men
manufactured and possessed Molotov cocktails.


McKay is scheduled for a retrial March 16 after a mistrial was declared in
Minneapolis on Feb. 3.


crowder pleaded guilty in January.


Reports also focused on how the men were part of the Austin Affinity Group, the name
   FBI gave to the activists who went to St. Paul in the rented van.


In recent weeks, some self-described radical Austin activists, some of      were in
Minnesota for the convention. have spoken up in defense of the pair, who are both
23. They call McKay and crowder naive young men who were talked into making the
M91otov cocktails by Brandon Darby, 32, a more seasoned activist secretly working
with.the      McKay used that defense at trial; Darby denied pushing the men to make
the 1mprov1sed bombs.
                                       Page 9

                                                                     NYTIMcKlnley00071


                                                                                001236
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The Austin activists also say their community is a nonviolent collection of people
who dedicate themselves to changing a variety of societal ills and who think
nonviolence is the best way to make those changes .


The¥ protest corporations and governments, saying that those institutions impose
their will without the consent of the people affected.


The same activists say they devote much of their lives working to find grass-roots
solutions to conrnunity problems, such as creating community gardens to address
hunger and promoting the use of bicycles as nonpolluting      healthy transportation.


They rally around a common set of efforts such as the Inside Books Project, which
sends books to prison inmates, and Treasure city Thrift, a collectively owned and
volunteer-run East 12th Street secondhand store that uses its profits to support
other community organizations.


"we all share a vision of a society that can be different than the one we are
currently living in," said Lisa Fithian, 47. "n•s a society rooted in cooperation
and not competition, where we are not driven by profit motive and greed. we are
committed to building structures that fit people's needs, where we a11 liave power."


McKay and Crowder grew up in Midland but were living in Austin last year. The larger
group of area activists they mixed with is difficult to define and quantify - some
of them say they number in the hundreds; others, the thousands. some say that they
share goals and work on projects with more mainstream politically active residents -
such as minimizing environmental        caused by             - but that they are
different because they are willing to be arrested to make a statement and generally
have little faith in government to solve problems .


They refer to themselves as a community or as part of a movement, but there is no
formal structure. SOllle say they moved to AUstin from other places because of the
robust political scene here. The University of Texas keeps a steady flow of
disaffected students feeding the ranks.


"what I am interested in is people realizing their own power," activist Scott crow
said, "and doing things block by block and neighborhood by neighborhood."


crow, .42i said he moved to Austin from Dallas this decade to be among more
politica ly like-minded people. He co-founded an activist training camp and has
organized and               in protests against things such as the Iraq war and in
favor of animal


                                      Page 10

                                                                     NYT/McKfnley00072



                                                                              001237
                                 Tobys-Mckinley-emails
He earns a   l;ving working at ecology Action. a collective-run recycl;ng center
downtown.

Fithian has no permanent job but says she stays busy. whether i t • s organizing
demonstrations against free-trade agreements in places such as Cancun or
janitors on strike in Houston or doing env;ronmental work on behalf of Austin s save
our springs Alliance. Fithian said she lives frugally and sometiMes i s paid 1 by
environmental groups. for example. for her organizing support for specific ,ssues.


··::c have a passion for 1"ai rness and jus1:ice • ., she said.   ""My   work 1 s   transf'orrnational
work. Xt • s helping people access"lng t h e i r power.••


Hicks. 21. pursues various causes as well. whether i t • s volunteering at Resistencia
Bookstore in south Austin. an activist meeting center. or working for equal rights
or imndgrants' rights.

"x feel   like not everyone in the radical community specif;cally protests.                 They might
do other things   like volunteering.•• she said.


Texas civ;1 Rights Project Director 31m Harrington. who has represented some
frequent protesters in court. said the radical contingent of Austin•s activist
community is "very committed to social change and really works at: the grass roots of
;"\:
  ....
"They have a different political philosophy. The:!( are more                          with some
socialist ideas about limited capital1sm 1 econom,c limitation.                he said. '"They do
all this at considerable personal sacrif,ce.'"


Fred Burton a former federal agent who i s a vice president a t the Austin-based
global inteiligence company Stratfor. said he thinks the Austin activists. given
that they took shields with them to St. Paul and were caught with Molotov cocktails •
..were intent on causing anarchist kind of d"isruptions.••


Burton said that for a national event such as the Republican convention. federal
authorities would have gathered intelligence on radical groups that were planning to
attend.


The activists themselves and federal authorities often refer to small cells of
activis1:s who plan and travel together as "'affin;ty groups." he said.

Such groups. Burton said 1 often communicate on public web s;tes or in e-mail b,asts
that are easy     author,ties to intercept. rn the case of the Austin activists    the
FBX's decision to have Darby attend their meetings probably        i t suspected they
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                                                                                    NVT/McKinley00073


                                                                                                     001238
                               Tobys-Mckinley-emails
were intent on violence, he said.


"oo I think that the activist community here are every day, sitting around thinkin9
about ways to plot against the government?" B&Jrton said. 'Probably not. But in this
specific case, the evidence appears to be that they did.·•


FBI officials and federal prosecutors declined to comment for this story.


Assistant Police Chief David carter, chief of staff for the Austin Police
Department, said the department does not track local activists based on their
political beliefs and dOes not want to interfere with groups' or citizens' free
speech rights. "However if we suspect an¥ organization being involved in any
criminal activity, we'1 1 certainly investigate that," carter said.


on a recent afternoon at Treasure City Thrift, a meeting place for local radical
activists, area residents rummaged through boxes of clothing out front labeled
"free," and members of the Yellow Bike Project, which is sharing the space, 111i1led
around the parking lot, fixing bicycles. Inside, next to the used clothes, were
fliers for a variety of causes, including raising       to free former Black
Panthers from a Louisiana prison, and a business card for an online store set up to
raise money for Pa1estinians.


It was at Treasure city that crow niet crowder, who worked at a Thundercloud Subs
shop and liked to talk about politics.


"He's a bookworm," crow said. "we would talk about how to btJild sustainable
communities."


Fithian also met crowder at Treasure city and had similar recollections. "He knew I
was a trainer, and he tried to just learn from me," she said.

Fithian said she regularly travels ahead of big events to plan the best ways to
bring together disparate groups and to cause the biggest disruption.


she went to st. Paul for the first time in September 2007 to organize demonstrations
for the 2008 convention, she said .


In early 2008 , Hicks saidl handfuls of local activi sts thinking of going to st. Paul
to protest at the convention began meeting in homes, at Monkeywrench Books and at
Treasure City. The group was later dubbed the Austin Affinity Group by the FBI.


                                       Page 12

                                                                        NYT/McKlnley00074


                                                                               001239
                                Tobys-MckinleY-·emai1s   ·
 Members of the RNC welcoming committee - a self-described anarchist and
 anti-authoritarian organizing group created to disrupt the convention • paid a visit
 to Austin and helped the Austin activists plan for the protests, Hicks said.


 criminal conspiracy to riot charges are pending against eight members of the    RNC
 welcoming Committee, according to news reports.


 At these gatherings, crowder and McKay never talked about violence and instead were
 focused on coordinating logistics - funding, housing and transportation to st . Paul,
 Hicks said.

 The day after the van arrived in St . Paul, authorities, working on a tip from oarby,
 found the trailer and seized 34 shields, helmets and batons that "looked like
 cut-off shovel handles," court documents say.


 Prosecutors have said that McKay and crowder built the firebombs in Minnesota
 because they were angry that police officers had seized the trailer.


  In a conversation recorded by the FBI, McKay told the FBI informant later identified
· as Darby that he planned to throw the explosives at a parking lot used as a staging
  area for police and federal agents, an FBI affidavit sa;d.


 "What if there's a cop sleeping in the car?" Darby asked McKay, according to the
 affidavit.


 "He'll wake up ," MCKay replied, according to the affidavit.


McKay also said, "It's worth it if an officer gets burned or maimed," the affidavit
said.


on the third day of the convention, authorities raided an apartment building where
McKay and crowder were staying and seized eight assembled homemade firebombs in the
baseraent.


Hicks said building bombs is not indicative of the goals of Austin's radical
community, where "there's a strong belief in humanity."

"The idea is that, if you put your effort into the community and the building of
personal relationships within community," she said, "that makes a community that
does not need a government."
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                                                                        NYT/Mcl<lnley00075



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skreytakOstatesman.com; 912-2946




Justice Department Documents and Publications
May 21, 2009
TEXAS MAN SENTENCED ON FIREARMS CHARGES CONNECTED TO THE REPUBLICAN NATIONAL
CONVENTION
SECTION: JUSTICE DEPARTMENT PRESS RELEASES
LENGTH: 892 words
THURSDAY, MAY 21, 2009
united States Attorney Frank J. Magill
District of Minnesota


TEXAS MAN SENTENCED ON FIREARMS CHARGES CONNECTED TO THE REPUBLICAN NATIONAL
CONVENTION


MINNESOTA - A 23-year-old man from Austin Texas, who was connected to a group that
planned to disrupt the Republican Nationa1 convention in September 2008, was
sentenced today in federal court on three firearms charges.


on May 21 in Minneapclis, u.s. District Court Chief Judge Michael Davis sentenced
David Guy McKay to 48 months in prison and three years of supervised release on one
count of possession of an unregistered firearm, one count of illegal manufacture of
a firearm and one count of possession of a firearm with no serial number. McKay
pleaded guilty on March 17.


Today's sentence included a findin9 by Judge Davis that McKay obstructed justice at
his January trial by falsely accusing a government informant, Brandon Darby, of
inducing him to manufacture the Molotov cocktails.

Judge Davis told McKay that while it was acceptable for people to peacefully
protest, MCKay's activities took him down a different path, one of anarchy. "I saw
you on the             Judge Davis added, referring to evidence shown of McKay
ouring a recording OT a violent protest. "Vou were leading the charge. You and
crowder were coming up here (to Minnesota) to do anarchy againn the system."
                                         Page 14


                                                                    NYTIMcKin\ey00076


                                                                               001241
                                Tobys-Mckinley-emails


"This milestone today is another result of two years of diligent preparation for the
2008 Republican National Convention," said Ralph Boelter, Special Agent in charge of
the FBl's Minneapolis Field Office. ''The successful outcome in this case is due in
no small part to our strong working relationships with partner agencies like u.s .
Setret service, St. Paul Police Department, Ramsey county sheriff's office and the
ATF."


McKay was indicted on Sept. 22, 2008, along with a second defendant, Bradley Neal
crowder, 24, Austin, Texas. crowder was sentenced to 24 months in prison last week
on one count of possession of an unregistered firearm. McKay was tried for the
crimes in January , but the jury failea to reach a unanimous verdict.

During McKay's guilty plea hearing, he admitted that from Aug. 31 through sept. 3,
2008, he knowing1¥ possessed firearms, namely destructive devices, not registered to
anyone in the National Firearms Registration and Transfer Record. McKay also
admitted that he made the devices, as well as· knowingly received and possessed
destructive devices not identified by serial number as required by law.


Following a FBI Joint Terrorism Task Force investigation, McKay was arrested by the
st. Paul Police Department during the execution of a search warrant on sept. 3 at a
residence on Dayton Avenue. Police found eight assembled MOlotov cocktails in the
basement. They consisted of bottles filled with gasoline with an attached wick rriade
frOlll tampons.


According to trial testimony, the FBI in Texas began investigating the group ,
labeled by law enforcement as the Austin Affinity Group, in February 2008. McKay and
crowder were members of the group.


McKay admitted tnat on AUg . 28, 2008, he, crowder and other members of the Austin
Affinity Group traveled from Austin, Texas, to Minnesota. The group brou9ht a rental
trailer with them that contained 35 riot shields, made from stolen traff1c barrels .
The intended use of the shields was to help demonstrators block streets near the
xcel Energy center in order to prevent convention delegates from safely reaching the
convention. St. Paul Police seized these shields on Aug. 31.


According to trial testimony, MCKay and crowder, angered by the loss of the shields,
purchased supplies for constructing Molotov cocktails at a St . Paul Wal-Mart on Aug .
31, including a gas can, motor oil and tampons. They also purchased gasoline at a
gas station. They then 111anufactured the eight Molotov cocktails at an apartment on
Dayton Avenue where they were staying.

Law enforcement learned through an informant that McKay and crowder had 111anufactured
the Molotov cocktails.


                                       Page 15

                                                                    NYTJMcKin&ey00077

                                                                                001242
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During a conversation overheard by law enforcement through electronic surveillance
on sept . 2, McKay told an infonnant that he intended to throw the Molotov cocktails
at police vehicles parked in a lot near the Dayton Avenue apartment. The parking lot
was used as a checkpoint area for vehicles entering the security perimeter around
the convention site. It was visibly patrolled by the u.s. secret service, various
police agencies and the military.


During the execution of a search warrant by the St . Paul Police Department at the
Dayton Avenue residence where MCKay was staying when he was arrested , officers
seized a variety of items, including gas masks, slingshots, helmets and knee pads .
under the kitchen sink, officers discovered a two-gallon gasoline container
identical to the one purchased by McKay at the Wal-Mart on Aug. 31. In the basement
of the residence, officers found eight assembled MOlotov cocktails.


This case was the result of an investigation by the FBI Joint Terrorism Task Force,
which includes in addition to the FBI 1 the Bureau of Alcohol, Tobacco, Firearms and
Explosives, the Ramsey county Sheriff s office, the secret service and the St. Paul
Police Department. It was prosecuted by Assistant u.s. Attorneys Jeffrey s. Paulsen
and w. Anders Folk.


CONTACT: DAVID ANDERSON
PHONE: (612) 664-5684 <te1:%28612%29%20664-5684>
HTTP ://WWW .USDOJ .GOV/USAO/MN
FAX : (612) 664-5787

From:    jim mckinley [james.c.mckinlevtomail.comJ
sent:    Friday, February 18, 2011 12:)3-PM
To:      Lyles, Toby
subject:          link
http://www.statesman.com/news/texas-politics/dps-anarchists-linked-to-arson-at-gover
nors-mansion-1264031.html
From: james.c.mckinleylginail.com              ·
Sent : Friday, February 18, 2011 6 : 37 PM
To :     Lyles , Toby
subject:          Re: Toby's leaving for the night
In good shape. Found brad and scott.
sent via slackBerry by AT&T


From : "Lrles, Toby" <tobyly1estnytimes.com>
Date: Fri, 18 Feb 2011 18:38:04 -0500
To: 'jim
subject: Toby's leaving for       night
Jim, I just want to let you know that I'll be out of the office on MOnday. but I'll
check email . So , if you really need to reach me , feel free to wri te .
Toby
                                      Page 16

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                               Tobys-Mckinley-emai1s
Toby Ann Lyles \ NY Times I News Research Desk I News Technology unit
620 Eiahth Avenue I NY NY 10018 I ph: 212.556.8832 I fx: 646.428.6176 I IM:
tobylyles@nytimes.com




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From: McKinley, Jim
Sent: Tuesday, February 22, 2011 4:54 PM
To: Bagley, Marlene
Subject: RE: texas

Arst, thanks for catching McCraw. He is Steven Mccraw.
On the dropped words make It: Toting photographs of suspects and offering a $50,000
reward, the lawmen ....
I'll check on the legal question. I know McKay pleaded guilty to possessing an Illegal
firearm and Crowder pleaded guilty to aiding and abetting, but they were accused
somewhere, perhaps in the indictment or charging instrument, with plotting to throw the
firebombs at police cars.

Jim McKinley
Houston Bureau Chief
The New York Times
mck!nlcy@nytjmcs.com
347 753 4867 (Mobile)
713 7S2 2006 Ext I (Office)


From: Bagley, Marlene
Sent: Tuesday, February 22, 2011 3:40 PM
To: McKinley, Jim
Subject: texas
Hey Jim
                                                                     NYT/McKinley00168




                                                                                 001149
First,...,.. lb the Col McGraw lboUld.be McCraw, l'fght?

Then, I don't know If ttdl makes a dll'9191"1C8, but two previoue limn Pat 19fe,.ncn to the St Paul convention CMe sey
the two men plllded gullly tD making and pa11111lng bombs during the convention. I wand9'8d ff ttun wa 10me
                                                rernnc.
legafne imlOlll8cf that might I» a problem In your             Co a "plot to bomb the oonvandon.•

Last, UUn 88lml to be something mJulng from the folowlng sentBnce from an lntert

Toting pictures of suspecta ??'mt.ve been offering a SS0,000 reward for leads in the case, the lawmen have
grilled teYeraJ aelf-desaibed         for leads about the Aftlnlty group and identity of the bomber.
You can call me at 8341 or send answers by email.
Thanks,
Marlene




                                                           z



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                n      .      .      A




From: McKinley, Jim
Sent: Tuesday, F-ebruary 22, 2011 5:02 PM
To: Bagley, Marlene
Subject: TEXAS SUBGRAPHS EXMCKINLEY

SUBGRAPHS TEXAS EXMCKINLEY
pis substitute thefollowlng graphs to deal with M. Bagley's question ....


       Yet Federal agents accused two ymmg men from these circles of plotting to make
firebombs and hurl them at police cars during the Republican convention in 2008. An FBI
informant from Austin, Brandon Darby, was traveling with the group and told the authorities of
the plot, which he had encouraged.

       David Guy McKay. 24, pleaded guilty to firearms violations in the case and was
sentenced to four years. Mr. Crowder, 25, received a two-year sentence after pleading guilty to
aiding and abetting Mr. McKay in the possession of an illegal fireann, which is how the law
classifies a Molotov cocktail.

        RETURN TO COPY


Jim McKinley
Houston Bureau Chief
The New York Times
mckin!ey@nytjmes.com
347 753 4867 (Mobile)
713 7S22006 Ex!. I (Office)
                                                                            NYT/McKlnley00170




                                                                                        001151
TimcsPa." - FULL Document Display                                              P1tge 1 or I




                                        Article 3 of 35 search matches

               March 18. 2009, Wednbdll1 Lntc Edition - PinaJ
               Section A  Pap IS

                 Desk: National Desk Length: 157 words
               Type: Brief

               NATIONAL BRIEFING I MIDWEST; Minnesota: Plea In
               Convention Case
               By COLIN MOYNIHAN

               A Texas man pleaded guilty in Federal District Court to three counts of
               malting and possessing a Molotov cocktail during the Republican
               National Convention in St Paul in September. The plea by the man,
               David McKay, 22, of Austin, ended an investigation that began months
               before the Republican gathering and was based on evidence provided by
               an informant working for lhe Federal Bureau of Investigation. Another
               man from Austin, Bradley Crowder, 23, pleaded guilty in January to one
               count of possessing a Molotov cocktail. A trial ended in a hung jury in
               February after Mr. McKay testified that the infonnant, Brandon Darby,
               influenced him to assemble firebombs. On Tuesday, however, Mr.
               McKay_told a federal district judge that he would have made bombs
               without knowing Mr. Darby, sald David Anderson, a spokesman for the
               United States Attorney's Office. He said Mr. McKay faced a maximum
               penalty of 10 years in prison on each count.


                              Copyrlaht 2809 The New York Time. Company




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                                                                                    001133
        Tab G
                  
Selected Case Law
                   Harte-Hanks Communications v. Connaughton
                              Supreme Court of the United States
                      March 20, 1989, Argued ; June 22, 1989, Decided
                                            No. 88-10

Reporter
491 U.S. 657; 109 S. Ct. 2678; 105 L. Ed. 2d 562; 1989 U.S. LEXIS 3133; 57 U.S.L.W. 4846; 16
Media L. Rep. 1881

HARTE-HANKS COMMUNICATIONS, INC. v. CONNAUGHTON

Prior History: CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT.

Disposition: 842 F. 2d 825, affirmed.

Syllabus
Respondent was the unsuccessful challenger for the position of Municipal Judge of Hamilton,
Ohio, in an election conducted on November 8, 1983. A local newspaper, the Journal News,
published by petitioner supported the reelection of the incumbent. A little over a month before
the election, the incumbent’s Director of Court Services resigned and was arrested on bribery
charges, and a grand jury investigation of those charges was in progress on November 1, 1983.
On that day, the Journal News ran a front-page story quoting a grand jury witness (Thompson)
as stating that respondent had used ″dirty tricks″ and offered her and her sister jobs and a trip
to Florida ″in appreciation″ for their help in the investigation. Respondent filed a diversity
action against petitioner for libel in Federal District Court, alleging that the story was false, had
damaged his personal and professional reputation, and had been published with actual malice.
After listening to six days of testimony and three taped interviews -- one conducted by
respondent and two by Journal News reporters -- and reviewing the contents of 56 exhibits, the
jury was given instructions defining the elements of public figure libel and directed to answer
three special verdicts. It found by a preponderance of the evidence that the story in question
was defamatory and false, and by clear and convincing proof that the story was published with
actual malice, and awarded respondent $ 5,000 in compensatory damages and $ 195,000 in
punitive damages. The Court of Appeals affirmed. It separately considered the evidence
supporting each of the jury’s special verdicts, concluding that neither the finding that the story
was defamatory nor the finding that it was false was clearly erroneous. In considering the
actual malice issue, but without attempting to make an independent evaluation of the
credibility of conflicting oral testimony concerning the subsidiary facts underlying the jury’s
finding of actual malice, the court identified 11 subsidiary facts that the jury ″could have″
                   491 U.S. 657, *657; 109 S. Ct. 2678, **2678; 105 L. Ed. 2d 562, ***562

found and held that such findings would not have been clearly erroneous, and, based on its
independent review, that when considered cumulatively they provided clear and convincing
evidence of actual malice.

Held:

1. A showing of ″’highly unreasonable conduct constituting an extreme departure from the
standards of investigation and reporting ordinarily adhered to by responsible publishers’″
cannot alone support a verdict in favor of a public figure plaintiff in a libel action. Rather, such
a plaintiff must prove by clear and convincing evidence that the defendant published the false
and defamatory material with actual malice, i. e., with knowledge of falsity or with a reckless
disregard for the truth. Although there is language in the Court of Appeals’ opinion suggesting
that it applied the less severe professional standards rule, when read as a whole, it is clear that
this language is merely supportive of the court’s ultimate conclusion that the Journal News
acted with actual malice. Pp. 663-668.

2. A reviewing court in a public figure libel case must ″exercise independent judgment and
determine whether the record establishes actual malice with convincing clarity″ to ensure that
the verdict is consistent with the constitutional standard set out in New York Times Co. v.
Sullivan, 376 U.S. 254, and subsequent decisions. See Bose Corp. v. Consumers Union of
United States, Inc., 466 U.S. 485. Based on this Court’s review of the entire record, the Court
of Appeals properly held that the evidence did in fact support a finding of actual malice, but
it should have taken a somewhat different approach in reaching that result. While the jury may
have found each of the 11 subsidiary facts, the case should have been decided on a less
speculative ground. Given the trial court’s instructions, the jury’s answers to the three special
interrogatories, and an understanding of those facts not in dispute, it is evident that the jury
must have rejected (1) the testimony of petitioner’s witnesses that Thompson’s sister, the most
important witness to the bribery charges against the Director of Court Services, was not
contacted simply because respondent failed to place her in touch with the newspaper; (2) the
testimony of the editorial director of the Journal News that he did not listen to the taped
interviews simply because he thought that they would provide him with no new information;
and (3) the testimony of Journal News employees who asserted that they believed Thompson’s
allegations were substantially true. When those findings are considered alongside the
undisputed evidence, the conclusion that the newspaper acted with actual malice inexorably
follows. The evidence in the record in this case, when reviewed in its entirety, is
″unmistakably″ sufficient to support a finding of actual malice. Pp. 685-693.

Counsel: Lee Levine argued the cause for petitioner. With him on the briefs were Richard L.
Creighton, Jr., Kevin E. Irwin, Michael D. Sullivan, and James E. Grossberg.
                          491 U.S. 657, *657; 109 S. Ct. 2678, **2678; 105 L. Ed. 2d 562, ***562


John A. Lloyd, Jr., argued the cause for respondent. With him on the brief were Sallie Conley
Lux and Jeanette H. Rost. *

Judges: Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan,
White, Marshall, Blackmun, O’Connor, and Kennedy, JJ., joined. White, J., filed a concurring
opinion, in which Rehnquist, C. J., joined, post, p. 694. Blackmun, J., post, p. 694, and
Kennedy, J., post, p. 696, filed concurring opinions. Scalia, J., filed an opinion concurring in
the judgment, post, p. 696.

Opinion by: STEVENS

Opinion

    [*659]     [***571]      [**2681] JUSTICE STEVENS delivered the opinion of the Court.

[1A] [2A]A public figure may not recover damages for a defamatory falsehood without clear
and convincing proof that the false ″statement was made with ’actual malice’ -- that is, with
knowledge that it was false or with reckless disregard of whether it was false or not.″ New York
Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964). See Curtis Publishing Co. v. Butts, 388
U.S. 130, 162 (1967) (opinion of Warren, C. J.). In Bose Corp. v. Consumers Union of United
States, Inc., 466 U.S. 485 (1984), we held that judges in such cases have a constitutional duty
to ″exercise independent judgment and determine whether the record establishes actual malice
with convincing clarity.″ Id., [**2682] at 514. In this case the Court of Appeals affirmed a libel
judgment against a newspaper without attempting to make an independent evaluation of the
credibility of conflicting oral testimony concerning the subsidiary facts underlying the jury’s
finding of actual malice. We [***572] granted certiorari to consider whether the Court of
Appeals’ analysis was consistent with our holding in Bose. 488 U.S. 907 (1988).

    [*660] I

Respondent, Daniel Connaughton, was the unsuccessful candidate for the office of Municipal
Judge of Hamilton, Ohio, in an election conducted on November 8, 1983. Petitioner is the
publisher of the Journal News, a local newspaper that supported the reelection of the
incumbent, James Dolan. A little over a month before the election, the incumbent’s Director
of Court Services resigned and was arrested on bribery charges. A grand jury investigation of
those charges was in progress on November 1, 1983. On that date, the Journal News ran a
front-page story quoting Alice Thompson, a grand jury witness, as stating that Connaughton
had used ″dirty tricks″ and offered her and her sister jobs and a trip to Florida ″in appreciation″
for their help in the investigation.
*
    A brief of amici curiae urging reversal was filed for the Associated Press et al. by P. Cameron DeVore, Daniel M. Waggoner, Douglas
P. Jacobs, Alice N. Lucan, Mark L. Tuft, Harvey L. Lipton, Jeffrey N. Paule, Lois J. Schiffer, Robert D. Sack, E. Susan Garsh, William
A. Niese, Deborah R. Linfield, Samuel E. Klein, W. Terry Maguire, Rene P. Milam, Richard M. Schmidt, Roslyn A. Mazer, Lawrence
Gunnels, Steven R. Shapiro, Robert J. Brinkmann, J. Laurent Scharff, Jane Kirtley, and Bruce W. Sanford.
                           491 U.S. 657, *660; 109 S. Ct. 2678, **2682; 105 L. Ed. 2d 562, ***572

[3A]Invoking the federal court’s diversity jurisdiction, Connaughton filed an action for
damages, alleging that the article was false, that it had damaged his personal and professional
reputation, and that it had been published with actual malice. After discovery, petitioner filed
a motion for summary judgment relying in part on an argument that even if Thompson’s
statements were false, the First Amendment protects the accurate and disinterested reporting of
serious charges against a public figure. The District Court denied the motion, noting that the
evidence raised an issue of fact as to the newspaper’s interest in objective reporting and that
the ″neutral reportage doctrine″ did not apply to Thompson’s statements. 1 The case
accordingly proceeded to trial.
[3B]

[*661] After listening to six days of testimony and three taped interviews -- one conducted by
Connaughton and two by Journal News reporters -- and reviewing the contents of 56 exhibits,
the jury was given succinct instructions accurately defining the elements of public figure libel
and directed to answer three special verdicts. 2 It [**2683] unanimously found by a [***573]
preponderance of the evidence that the November 1 story was defamatory and that it was false.
It also found by clear and convincing proof that the story was published with actual malice.
After a separate hearing on damages, the jury awarded Connaughton $ 5,000 in compensatory
damages and $ 195,000 in punitive damages. Thereafter, the District Court denied a motion for
judgment notwithstanding the verdict, App. to Pet. for Cert. 83a, and petitioner appealed.
    [*662] The Court of Appeals affirmed. 842 F. 2d 825 (CA6 1988). In a lengthy opinion, the
majority detailed why its ″independent examination of the entire record″ had demonstrated that
″the judgment does not pose a forbidden intrusion into the First Amendment rights of free
1
    The District Court explained that the neutral reportage doctrine, as defined by the Ohio Court of Appeals, see J. V. Peters & Co. v.
Knight Ridder Co., 10 Media L. Rptr. 1576 (1984), and the United States Court of Appeals for the Second Circuit, see Edwards v.
National Audubon Society, Inc., 556 F. 2d 113, cert. denied, 434 U.S. 1002 (1977), ″immunizes from liability the accurate and
disinterested reporting of serious charges made against a public figure by a responsible, prominent organization.″ App. to Pet. for Cert.
78a. Because the court was convinced that Thompson did not qualify as ″a responsible, prominent organization on a par with the State
Attorney General’s Office in J. V. Peters or the National Audubon Society in Edwards,″ it concluded that the defense was unavailable.
Ibid.
Petitioner did not argue in its petition for a writ of certiorari, and does not now argue, that the neutral reportage doctrine immunized its
coverage of Thompson’s allegations. Accordingly, we do not review this aspect of the District Court’s judgment.
2
     The jury was asked:
1. ″Do you unanimously find by a preponderance of the evidence that the publication in question was defamatory toward the plaintiff?″

2. ″Do you unanimously find by a preponderance of the evidence that the publication in question was false?″
3. ″Do you unanimously find by clear and convincing proof that the publication in question was published with actual malice?″ App.
201.

There is some debate as to whether the element of falsity must be established by clear and convincing evidence or by a preponderance
of the evidence. Compare Firestone v. Time, Inc., 460 F. 2d 712, 722-723 (CA5) (Bell, J., specially concurring), cert. denied, 409 U.S.
875 (1972), with Goldwater v. Ginzburg, 414 F. 2d 324, 341 (CA2 1969), cert. denied, 396 U.S. 1049 (1970). See also Tavoulareas v.
Piro, 260 U. S. App. D. C. 39, 63-64, n. 33, 817 F. 2d 762, 786, n. 33 (en banc), cert. denied, 484 U.S. 870 (1987); Franklin & Bussel,
The Plaintiff’s Burden in Defamation: Awareness and Falsity, 25 Wm. & Mary L. Rev. 825, 863-865 (1984). We express no view on this
issue.
                            491 U.S. 657, *662; 109 S. Ct. 2678, **2683; 105 L. Ed. 2d 562, ***573


expression.″ Id., at 828. The opinion identified the ″core issue″ as ″simply one of credibility
to be attached to the witnesses appearing on behalf of the respective parties and the
reasonableness and probability assigned to their testimony.″ Id., at 839-840. It separately
considered the evidence supporting each of the jury’s special verdicts, concluding that neither
the finding that the article was defamatory 3 nor the finding that it was false 4 was clearly
erroneous.
The Court of Appeals’ review of the actual malice determination involved four steps. It first
noted the wide disparity between the respective parties’ versions of the critical evidence,
pointing out that if the jury had credited petitioner’s evidence it ″could have easily concluded
that Thompson’s [*663] charges were true and/or that the Journal’s conduct in determining
Thompson’s credibility was not a highly unreasonable departure from the standards of
investigation and reporting ordinarily adhered to by reasonable publishers.″ Id., at 840. Second,
it [***574] inferred from the jury’s answers to the three special interrogatories that ″it
obviously elected to assign greater credibility to the plaintiff’s witnesses and proof [and that]
the jury simply did not believe the defendants’ witnesses, its evidentiary presentations or its
arguments.″ Ibid. Third, having considered what it regarded as the ″subsidiary or operative
facts″ that constituted the plaintiff’s theory of the case, it concluded that the jury’s findings
concerning those operative facts were not clearly erroneous. Id., at 843-844. Fourth, ″in the
exercise of its independent judgment″ based on its evaluation of the ″cumulative impact of the
subsidiary facts,″ the court concluded that ″Connaughton proved, by clear and convincing
evidence, that the Journal demonstrated its actual malice when it published the November 1,
1983, article despite the existence of serious doubt which attached to Thompson’s veracity and
the accuracy of her reports.″ Id., at 846.

Judge Guy dissented. In his opinion the admissions made by Connaughton in his [**2684]
interview with Journal News reporters the day before the story was published sufficiently
corroborated Thompson’s charges to preclude a finding of actual malice. Id., at 853-854. He
was satisfied, as a matter of law, that respondent had failed to prove actual malice by clear and
convincing evidence, regardless of whether determinations of credibility made by the jury are
subject to a de novo standard of review. Id., at 855.
3
   The Court of Appeals observed that ″the article was defamatory in its implication that Connaughton was an unethical lawyer and an
undesirable candidate for the Hamilton Municipal judgeship who was capable of extortion, who was a liar and an opportunist not fit to
hold public office, particularly a judgeship.″ 842 F. 2d, at 840-841.
4
    As to the finding of falsity, the Court of Appeals wrote:
″Equally apparent from the jury’s answer to the second special interrogatory is that it considered the published Thompson charges to be
false. Its finding is understandable in light of the plaintiff’s proof which disclosed that the Journal’s effort to verify her credibility ended
in an avalanche of denials by knowledgeable individuals; [and] its inability to produce a single person who supported Thompson’s
accusations. . . .
″Moreover, the jury obviously refused to credit the Journal’s construction of Connaughton’s interview of October 31. It accepted
Connaughton’s express denials of each Thompson charge and considered the significant language interpreted by the Journal to constitute
his admissions of those charges, when read in context, as nothing more than conjecture elicited by structured questions calculated to
evoke speculation. Thus, upon reviewing the record in its entirety, this court concludes that the jury’s determinations of the operational
facts bearing upon the falsity of the article in issue were not clearly erroneous.″ Id., at 841.
                           491 U.S. 657, *663; 109 S. Ct. 2678, **2684; 105 L. Ed. 2d 562, ***574

II
Petitioner contends that the Court of Appeals made two basic errors. First, while correctly
stating the actual malice standard announced in New York Times Co. v. Sullivan, 376 U.S. 254
(1964), the court actually applied a less severe [*664] standard that merely required a showing
of ″’highly unreasonable conduct constituting an extreme departure from the standards of
investigation and reporting ordinarily adhered to by responsible publishers.’″ 842 F. 2d, at 845
(quoting Curtis Publishing Co. v. Butts, 388 U.S., at 155 (opinion of Harlan, J.)). Second, the
court failed to make an independent de novo review of the entire record and therefore
incorrectly relied on subsidiary facts implicitly established by the jury’s verdict instead of
drawing its own inferences from the evidence.
There is language in the Court of Appeals’ opinion that supports petitioner’s first contention.
For example, the Court of Appeals did expressly state that the Journal News’ decision to
publish Alice Thompson’s allegations constituted an extreme departure from professional
standards. 5 Moreover, the opinion attributes [***575] considerable weight to the evidence that
the Journal News was motivated by its interest in the reelection of the candidate it supported
and its economic interest in gaining a competitive advantage over the Cincinnati [*665]
Enquirer, its bitter rival in the local market. 6 [**2685] Petitioner is plainly correct in
recognizing that a public figure plaintiff must prove more than an extreme departure from
5
     The Court of Appeals wrote:
″In Curtis Publishing Co. v. Butts, the Supreme Court accorded public figures as well as public officials recovery of damages for the
publication of ’defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly
unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by
responsible publishers.’ 388 U.S. at 155.″ Id., at 845.
At another point, the court wrote:
″Accordingly, this court concludes that the Journal’s decision to rely on Thompson’s highly questionable and condemning allegations
without first verifying those accusations through her sister, [Stephens], and without independent supporting evidence constituted an
extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers which demonstrated
a reckless disregard as to the truth or falsity of Thompson’s allegations and thus provided clear and convincing proof of ’actual malice’
as found by the jury. Butts, 388 U.S. at 153.″ Id., at 847 (emphasis supplied).
See also id., at 840.
6
     As to the newspaper’s motives, the Court of Appeals asserted:
″A review of the entire record of the instant case discloses substantial probative evidence from which a jury could have concluded (1)
that the Journal was singularly biased in favor of [the incumbent] and prejudiced against Connaughton as evidenced by the confidential
personal relationship that existed between [the incumbent] and Blount, the Journal Editorial Director, and the unqualified, consistently
favorable editorial and daily news coverage received by [the incumbent] from the Journal as compared with the equally consistent
unfavorable news coverage afforded Connaughton; (2) that the Journal was engaged in a bitter rivalry with the Cincinnati Enquirer for
domination of the greater Hamilton circulation market as evidenced by Blount’s vituperous public statements and criticism of the
Enquirer; (3) that the Enquirer’s initial expose of the questionable operation of the [incumbent’s] court was a high profile news attraction
of great public interest and notoriety that had ’scooped’ the Journal and by Blount’s own admission was the most significant story
impacting the . . . campaign[;] (4) that by discrediting Connaughton the Journal was effectively impugning the Enquirer thereby
undermining its market share of the Hamilton area.″ Id., at 843.

Later in the opinion, the court again stressed that ″the evidence adduced at trial demonstrated that the Journal was motivated to publicize
Thompson’s allegations, not only by a desire to establish its preeminence in the reporting of Hamilton political news, but also by a desire
to aid the [incumbent’s] campaign.″ Id., at 846.
                           491 U.S. 657, *665; 109 S. Ct. 2678, **2685; 105 L. Ed. 2d 562, ***575

professional standards and that a newspaper’s motive in publishing a story -- whether to
promote an opponent’s candidacy or to increase its circulation -- cannot provide a sufficient
basis for finding actual malice.

[1B]The language in the Court of Appeals’ opinion discussing professional standards is taken
from Justice Harlan’s plurality opinion in Curtis Publishing Co. v. Butts, supra, at 155.In that
case, Justice Harlan had opined that the New York Times actual malice standard should be
reserved for cases brought by public officials. The New York Times decision, in his view, was
primarily driven by the repugnance of seditious libel and a concern that public official libel
″lay close″ to [*666] this universally renounced, and long-defunct, doctrine. 388 U.S., at 153.
In place of the actual malice standard, Justice Harlan suggested that a public figure need only
make ″a showing of highly unreasonable conduct constituting an extreme departure from the
standards of investigation and reporting ordinarily adhered to by responsible publishers.″ Id.,
at 155. This proposed standard, however, was emphatically rejected by a majority of the Court
in favor of the stricter New York Times actual malice rule. See 388 U.S., at 162 (opinion of
Warren, C. J.); id., at 170 (Black, J., dissenting); id., at 172 (Brennan, J., dissenting). Moreover,
 [***576] just four years later, Justice Harlan acquiesced in application of the actual malice
standard in public figure cases, see Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 69-70 (1971)
(dissenting opinion), and by the time of the Court’s decision in Gertz v. Robert Welch, Inc., 418
U.S. 323 (1974), the Court was apparently unanimously of this view. Today, there is no
question that public figure libel cases are controlled by the New York Times standard and not
by the professional standards rule, which never commanded a majority of this Court.

[4A]It also is worth emphasizing that the actual malice standard is not satisfied merely through
a showing of ill will or ″malice″ in the ordinary sense of the term. 7 See Beckley [*667]
Newspapers Corp. v. Hanks, 389 U.S. 81 (1967)(per curiam); Henry v. Collins, 380 U.S. 356
(1965)(per curiam). Indeed, just last Term we unanimously held that a public figure ″may not
recover for the tort of intentional infliction of emotional distress . . . without showing . . . that
the publication contains a false statement of fact which was made . . . with knowledge that the
statement was false or with reckless disregard as to whether or not it was true.″ Hustler
Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988). Nor can the fact that the defendant
published the defamatory material in order to increase its profits suffice to prove actual malice.
The allegedly defamatory statements at issue in the New York Times case were themselves
published as part of a paid advertisement. [**2686] 376 U.S., at 265-266. If a profit motive
could somehow strip communications of the otherwise available constitutional protection, our
7
    The trial judge correctly instructed the jury that ″[a]ctual malice may not be inferred alone from evidence of personal spite, ill will
or intention to injure on the part of the writer.″ App. 199.

The phrase ″actual malice″ is unfortunately confusing in that it has nothing to do with bad motive or ill will. See Rosenbloom v.
Metromedia, Inc., 403 U.S. 29, 52, n. 18 (1971) (opinion of Brennan, J.). By instructing the jury ″in plain English″ at appropriate times
during the course of the trial concerning the not-so-plain meaning of this phrase, the trial judge can help ensure that the New York Times
standard is properly applied. Tavoulareas, 260 U. S. App. D. C., at 84, 817 F. 2d, at 807 (R. B. Ginsburg, J., concurring). See also
Westmoreland v. CBS Inc., 596 F. Supp. 1170, 1172-1173, n. 1 (SDNY 1984) (suggesting that jury confusion can be minimized if a less
confusing phrase, such as ″state-of-mind,″ ″deliberate or reckless falsity,″ or ″constitutional limitation″ is used in the jury’s presence).
                         491 U.S. 657, *667; 109 S. Ct. 2678, **2686; 105 L. Ed. 2d 562, ***576

cases from New York Times to Hustler Magazine would be little more than empty vessels.
Actual malice, instead, requires at a minimum that the statements were made with a reckless
disregard for the truth. And although the concept of ″reckless disregard″ ″cannot be fully
encompassed in one infallible definition,″ St. Amant v. Thompson, 390 U.S. 727, 730 (1968),
we have made clear that the defendant must have made the false publication with a ″high
degree of awareness of . . . probable falsity,″ Garrison v. Louisiana, 379 U.S. 64, 74 (1964),
or must have ″entertained serious doubts as to the truth of his publication,″ St. Amant, supra,
at 731.

[4B]

[5][6]Certain statements in the [***577] Court of Appeals’ opinion, when read in isolation,
appear to indicate that the court at times substituted the professional standards rule for the
actual malice requirement and at other times inferred actual malice from the newspaper’s
motive in publishing Thompson’s story. Nevertheless, when the opinion is read as a whole, it
is clear that the conclusion concerning the newspaper’s departure [*668] from accepted
standards and the evidence of motive were merely supportive of the court’s ultimate conclusion
that the record ″demonstrated a reckless disregard as to the truth or falsity of Thompson’s
allegations and thus provided clear and convincing proof of ’actual malice’ as found by the
jury.″ 842 F. 2d, at 847. Although courts must be careful not to place too much reliance on such
factors, a plaintiff is entitled to prove the defendant’s state of mind through circumstantial
evidence, see Herbert v. Lando, 441 U.S. 153, 160 (1979);Tavoulareas v. Piro, 260 U. S. App.
D. C. 39, 66, 817 F. 2d 762, 789 (en banc), cert. denied, 484 U.S. 870 (1987), and it cannot
be said that evidence concerning motive or care never bears any relation to the actual malice
inquiry. Thus, we are satisfied that the Court of Appeals judged the case by the correct
substantive standard.

The question whether the Court of Appeals gave undue weight to the jury’s findings -- whether
it failed to conduct the kind of independent review mandated by our opinion in Bose -- requires
more careful consideration. A proper answer to that question must be prefaced by additional
comment on some of the important conflicts in the evidence.

III

The most important witness to the bribery charges against the Director of Court Services was
Patsy Stephens, Alice Thompson’s older sister. In a tape-recorded interview conducted in
Connaughton’s home between 12:30 and 4:30 a.m. on September 17, 1983, Stephens explained
how, on 40 or 50 occasions, she had visited with the Court Administrator, Billy Joe New, in
his office and made cash payments to dispose of ″DUI″ and other minor criminal charges
against her former husband and various other relatives and acquaintances. 8 On September 22,
8
    Early in September Connaughton’s wife Martha was advised that Patsy Stephens was willing to disclose important information about
the special treatment her former husband had received in the Hamilton Municipal Court. The source of this advice was the president of
the local chapter of Mothers Against Drunk Driving. Martha Connaughton and her brother then visited with Patsy Stephens in her
                           491 U.S. 657, *668; 109 S. Ct. 2678, **2686; 105 L. Ed. 2d 562, ***577


pursuant to an arrangement [*669] made by Connaughton at the suggestion of the county
prosecutor, Stephens took a lie detector test. After learning that she [**2687] had passed the
test, Connaughton filed a written complaint against New. In due course, New was arrested,
indicted, and convicted.

Alice Thompson was one of the eight persons present at the tape-recorded interview on
September [***578] 17. 9 One of the cases Patsy Stephens described was a shoplifting charge
against her sister. Thompson volunteered some comments about the incident, but otherwise had
little to say during the long interview with Stephens. Thompson was also present on the 22d,
when Stephens took the polygraph test, but Thompson declined to submit to such a test. App.
301. On that day, the two sisters spent several hours in the company of Connaughton, his wife,
and two of his supporters. They discussed a number of subjects, including the fact that Billy
Joe New had just resigned, the question whether there was reason to be concerned about the
safety of the two sisters, the fact that Martha Connaughton might open an ice cream parlor
sometime in the future, the possibility that the two sisters might be employed there as
waitresses, and a vacation in Florida planned by the Connaughtons for after the election.
    [*670] Late in October, New’s lawyer, Henry Masana, met with Jim Blount, the editorial
director of the Journal News, and Joe Cocozzo, the newspaper’s publisher, to arrange a meeting
with Alice Thompson. Masana explained that Thompson wanted to be interviewed about the
″dirty tricks″ Connaughton was using in his campaign. Thereafter, on October 27, Blount and
Pam Long, a Journal News reporter, met with Thompson in the lawyer’s office and
tape-recorded the first of the two interviews that provided the basis for the story that Long
wrote and the Journal News published on November 1.

The tape of Alice Thompson’s interview is 1 hour and 20 minutes long. Significant portions
of it are inaudible or incoherent. It is clear, however, that Thompson made these specific
charges:

-- that Connaughton had stated that his purpose in taping the interview with Patsy Stephens was
to get evidence with which he could confront New and Judge Dolan and ″scare them into
resigning″ without making any public use of the tapes; 10
mother’s home for about 30 minutes and arranged for a later interview with Connaughton. Alice Thompson was present at a part of that
meeting, as well as at the subsequent interview. Shortly before midnight on September 16, after Patsy Stephens and Alice Thompson had
returned home from work, two of Connaughton’s supporters (Berry and Cox) picked the two sisters up and drove them to Connaughton’s
home where they remained until about 4:30 a.m. on September 17.
9
   The other seven were: Patsy Stephens, Dan and Martha Connaughton, Martha Connaughton’s brother Dave Berry, Connaughton’s
campaign manager, Joe Cox, and two of Connaughton’s neighbors, Jeanette and Ernest Barnes.
10
    ″A. They started asking me a bunch of questions so I asked Dan Connaughton. . . . I said why are you doing this. . . . And of course,
he turned off the tape recorder. And he said, I’ll tell you the truth. He said, all I want is to get enough evidence on Billy, he said, and
have Billy resign. And he said, of course, if Billy resigns, Dolan will resign, and he said, then I can just step up on the bench. . . . But
he said right out of his own mouth, all I want to do is to get a story in evidence on them, to meet them face to face, and show them what
evidence he had against him, or whatever, to get them to resign, and no more would be said about it.

...
                           491 U.S. 657, *671; 109 S. Ct. 2678, **2687; 105 L. Ed. 2d 562, ***578

 [*671] -- that he would pay the expenses for a 3-week vacation in Florida for the two sisters;
11


-- [***579] [**2688] that he would buy a restaurant for the two sisters’ parents to operate;
12


                                                                                                                                  13
 [*672] -- that he would provide jobs for both Patsy Stephens and Alice Thompson;

″Q. Okay. So in other words, based on what he said to you, you believed him?

″A. Blackmail. I mean, you know, the way he phrased it, the way he said it, you know. He said all he wanted to do was get enough
evidence on Billy, and he also used Dolan’s name, which I don’t know what he was going to get on Dolan -- to scare them into resigning.
I said what happens when they resign? Nothing more will be said about anything. He said when I take the bench nothing will be said.″
App. 291-292.
11
     ″A. . . . I asked them what I was going to get out of it.
″Q. What did they promise you? Or what did they say when you asked them?

″A. They said my help would be deeply appreciated. And they went on to talk about the three weeks vacation they was planning on taking
when the election was . . .

″Q. He was planning to take three weeks vacation?
″A. Yes, the family -- Dave Berry and Martha, and Dan.
″MR. BLOUNT: They wanted you to go along?

″A. Me and my sister would be welcome to go along with Dave . . .
″(By Mrs. Long)

″Q. Did they say they would pay your expenses?
″A. Yeah. I made it clear to them that I couldn’t afford a trip to Florida.
″MR. BLOUNT: Was the tape recorder on at that time?

″A. Oh, no.
″(By Mrs. Long)

″Q. Now where were they going to go?
″A. Three weeks in Florida.
″Q. And they added Disneyworld?

″A. (Inaudible) a three weeks trip to Florida. And they had a friend in Florida that wouldn’t be home at the time, that we could stay at
their condominium.″ Id., at 293-294.
12
    ″A. . . . [Connaughton] said he was thinking about putting a restaurant in there, and he was wanting to know if my mother and father
[Zella and Brownie Breedlove] would run it for him. And I said oh yeah, my mother would love to get back into the restaurant business.
He said good, when the lease is up, he said, we’ll tear the inside out and put a restaurant in there, and he said, your mother and father
can run it, and he said that way, he said you girls can help run it too, and put your sisters in there working too; he said just . . . he even
made up a name -- Breedlove’s Lunch or something like that. Ma Breedlove’s Cooking, you know. He had the names figured out and
everything. He offered to buy us a restaurant, you know, and put us in that building.
″Q. Okay. So it would just be your parents being a manager, they wouldn’t have to buy -- did you understand him that they wouldn’t
have to . . .
″A. Oh, they was going to do everything, you know. They was just going to put us in there to work, or to run it. They wanted my mother
to run the business for them.″ Id., at 307.
13
     ″Q. Did he promise you to find a job?
                           491 U.S. 657, *672; 109 S. Ct. 2678, **2688; 105 L. Ed. 2d 562, ***579

-- that he would take them out to a victory dinner at an expensive French restaurant after the
election; 14 and
-- that Connaughton would not allow knowledge of the sisters’ involvement to become public.
15


 [*673]      [***580] During the course of the interview, Thompson indicated that she had told
her story to the Cincinnati Enquirer, which declined to print it, id., at 284, and that the local
police, likewise, were not interested, id., at 310. 16 Thompson indicated that she was ″against″
Connaughton becoming a judge. Id., at 311. She also asserted that since Connaughton had
made public that she and her sister had provided evidence against New, friends had accused her
″of being a snitch and a rat″ -- epithets to [**2689] which she took great offense -- and that
one reason she came to the Journal News was ″to get that cleared up.″ 17 In her description of
the interview in Connaughton’s home on September 17, Thompson stated that Connaughton
″A. Yeah.

″Q. Why did he offer to find you a job?
″A. Because the day at the house, going back to the first time I met them, Martha was asking me did I work, or anything, and I was telling
her I was looking for work. I had been out of a job. Evidently she must have talked to her husband about it, and that night over at his
home, he said are you employed now, you know, . . . and I said no. So he said, we’ll see if we can’t do something about that. I told him
I wanted away from bartending and stuff; he said we’ll see if we can’t do something about it. You know, a decent job.″ Id., at 295-296.
″MR. MASANA: I’m going to interject. What about the job you were promised?

″A. Oh, when they promised me, you know, the secure job and everything, they also promised -- they promised Patsy a job too.
(By Mrs. Long)

″Q. That she would be in with Breedlove’s Lunch, or cafe?
″A. No, they promised Patsy a decent job, you know.
″Q. That she would be (inaudible).

″A. That she would be good up in Court. That come out of his own mouth. That come out of Dan’s mouth; he said we need somebody
like you up at the courthouse. Municipal Court.″ Id., at 309.
14
     ″A. . . . And he said he wanted me and Pat to definitely be there, and for a victory dinner he wanted to take me and Patsy to dinner
at the Maisonette.

″Q. This would be after he wins the election?

″A. Ummm-hmmm.″ Id., at 306.
15
   ″A. . . . But as far as anybody else, the public, or anything like that -- or it going to Court, we wouldn’t have to worry about it; we
wouldn’t have to go to Court and our names wouldn’t be on there.″ Id., at 296.

″A. [T]hey had already promised that our names wouldn’t be mentioned that nobody would know about us . . . .″ Id., at 302.
16
     The transcript of the interview quotes Thompson as saying: ″I explained to them the whole story, how it got off to this, or that, you
know. They was embarrassed evidently.″ Id., at 310. However, the tape recording of the interview, which the jury heard, makes clear that
Thompson actually stated: ″I explained to them the whole story, how I got offered this and that, you know. They wasn’t interested in
this evidently.″ Defendant’s Exh. J.
17
     ″A. . . . Can’t get any worse than what Dan (inaudible). Makes it sound like I’m the bad guy.
″Q. Have you had any repercussions from this?
″A. I’ve been under a lot of (inaudible) strain. I guess.
                            491 U.S. 657, *673; 109 S. Ct. 2678, **2689; 105 L. Ed. 2d 562, ***580


had frequently turned off the tape recorder, 18 that his voice would not be heard [*674] on the
tape, 19 and, somewhat inconsistently (and in response to a leading question), that most of her
comments had been made in response to leading questions by Connaughton. 20

 [***581]  Toward the end of the interview, Blount made two significant comments. He
announced that ″Pam will, of course, write the story,″ id., at 314, and he asked ″[w]hat would
happen if we called your sister,″ id., at 316. In response to the first comment, Thompson
volunteered a somewhat improbable explanation for her motivation in seeking the interview,




″Q. Other people calling you besides the Enquirer?
″A. Yeah. I’ve had people that I thought were my friends call me and accuse me of being a snitch and a rat. I don’t like to carry that
name, and that’s what a lot of people is thinking. That knows me.
″MR. BLOUNT: They were just mad, they didn’t threaten you?
″A. (inaudible) a snitch. You name it, and I’m that. I just want to get that cleared up.″ App. 320.
18
      ″A. . . . I said, what’s the whole deal? And of course, he turned off the tape recorder. . . .
...
″MR. BLOUNT: Was being questioned by the Connaughtons tougher than going to Court?
″A. Ummm-hmmm. They turned that tape recorder on and off so many times, you know, left out what they wanted to.
...
″MR. BLOUNT: Was the tape recorder on at that time?
″A. Oh, no.″ Id., at 291-293.
19
      ″MR. BLOUNT: They had it on when you were talking and off when they were talking?
″A. I don’t think Dan Connaughton’s voice is on it.″ Id., at 293.
″MR. BLOUNT: Was it Dan Connaughton himself who talked about the trip?

″A. Yeah. He did most of the talking in the living room. Like I said though the tape recorde[r] was off when Dan spoke.″ Id., at 295.
20
      ″MR. MASANA: Off the record -- you were saying something about Dan was encouraging you to say things in a certain way?

″A. Oh, yeah. He was leading me in questions, you know.
(By Mrs. Long)
″Q. Can you give us an example?

″A. Well, he kept on trying to get me to say that Dolan had something to do with this, you know?
″Q. Would he phrase it in a question? Like, did Judge Dolan have anything to do with it?

″MR. BLOUNT: Wasn’t it true that Judge Dolan did this, or something?
″A. Yeah, you know, and so on. But like I say, if you listen to the tapes you’re not going to hear it, because his voice ain’t on the tape.
...
...
″Q. Sure. So it was a yes, no, situation for you in that he’d phrase it a certain way and all you had to do was yes or no?

″A. Ummm-hmmm. And then, you know, he’d say to repeat that.″ Id., at 296-298.
                           491 U.S. 657, *674; 109 S. Ct. 2678, **2689; 105 L. Ed. 2d 562, ***581

21
   [*675] and in response to the second she gave an equivocal answer, 22 even though she had
previously assured Blount that Stephens would [**2690] confirm everything she had said. 23
On Sunday, October 30, an editorial appeared in the Journal News under the headline
″Municipal Court Race will have More than One Loser.″ 24 App. to Pet. for Cert. 45a. In the
column, Blount observed that the campaign ″battle has been all it was expected to be and
more,″ and predicted that ″[a] lot could still happen in the next eight to nine days.″ Ibid. He
went on to discuss the charges pending against New, stating that the ″array of charges and
counter charges probably has taken some votes from Dolan.″ Ibid. He cautioned, however, that
the race was still wide open and quoted an unidentified voter as saying, ″I resent voting for a
person who I later find has been deceitful or dishonest [*676] in campaigning.″ Id., at 46a.
Significantly, this unidentified person did not express indignation at dishonesty in the
administration of the Municipal Court -- a concern one would think the arrest of New might
have prompted -- but rather, a distaste for dishonesty in campaigning -- a concern that the
then-uninvestigated and unwritten November 1 story would soon engender. After questioning
the Cincinnati Enquirer’s coverage of a story critical of Dolan and suggesting that ″the
Connaughton forces have a wealthy, influential link to Enquirer decisionmakers,″ the column
indicated that the Journal News had not yet decided [***582] which candidate it favored, but
implied that an endorsement was forthcoming. Id., at 48a.
On October 31, a reporter for the Journal News telephoned Connaughton and asked him to
attend a meeting with Jim Blount, stating ″that the endorsement may hang in the balance.″ Tr.
457 (Aug. 9, 1985). Connaughton met with the reporter, Blount, and Cocozzo that afternoon
and discussed a variety of subjects. One of the subjects was the rumor that Connaughton had
an influential link to the Cincinnati Enquirer. Connaughton asserted that he had ″no
extraordinary pull or any inside track to anybody down there,″ and that any rumor to the
contrary was ″a lie.″ Id., at 458. Another subject was Connaughton’s participation in the
investigation of Billy Joe New. Connaughton provided a chronology of the events that led to
21
    ″A. I just want people to know. Because they shouldn’t vote for a man that is this dirty, you know, because I call it blackmail, what
he was trying to do.″ Id., at 314.
There is some tension between this civic interest in fair procedure and Thompson’s reluctant participation in the exposure of the corrupt
procedures at the Municipal Court, her assertion that although she realized that Connaughton’s offers were improper, she would have
accepted them if her name had never been mentioned because ″that’s the way [the system] works,″ id., at 315, and her displeasure at
being called a ″snitch and a rat,″ id., at 320.
22
     ″A. I think she’s scared right now to talk to anyone, because the Cincinnati Enquirer has been trying to get her to talk to them. She’s
getting scared now since this is all reality. My sister is . . . she’s kind of weakminded when it comes to anything like that. She won’t
do nothing for nobody unless she thinks she’s benefiting from it. And she honestly thought she was a getting a job out of this, and would
make something of herself out of this. And the Connaughtons just used her all the way. And now since she’s seeing that it’s coming down
to where she ain’t going to get nothing out of it, she’s brought up in the middle of all this and everything, she’s scared.″ Id., at 316.
23
    ″MR. BLOUNT: Obviously, we can’t quote your sister from you (inaudible). What’s your sister’s position in this, would she support
you or would she support him? In other words, if somebody said to her, who’s telling the truth here?
″A. She’ll tell you about the trips, the dinner at the Maisonette, the jobs and everything. She’ll tell you that’s the truth, because they was
offered to her too.″ Id., at 313.
24
     The full text of this editorial is reprinted as Appendix A to the Court of Appeals’ opinion. 842 F. 2d, at 848-849.
                           491 U.S. 657, *676; 109 S. Ct. 2678, **2690; 105 L. Ed. 2d 562, ***582

his filing of the complaint against New and explained that he believed that he had an obligation
″as an attorney and officer of the court to report [New’s] crimes.″ Id., at 458-459. No mention
was made of Thompson’s interview or her charges against Connaughton. Id., at 460. After
about an hour, Jim Blount received a telephone call and then told Connaughton that a reporter
wanted to interview him. Id., at 462.
Connaughton then went to another office where Blount and Long advised him that they had
interviewed Alice Thompson [*677] and were ″trying to find out . . . how much of her
statement was true.″ App. 256. The ensuing tape-recorded interview lasted 55 minutes.
Connaughton acknowledged that the meetings that Thompson described had taken place and
that there had been some speculative discussion about each of the subjects that Thompson
mentioned. He stated, however, that Thompson’s account of their meetings was ″obviously
shaded and bizarre,″ id., at 276, and that there was ″absolutely″ no ″quid pro quo for
information.″ 25
[**2691] Thus, while categorically denying that he intended to confront New and Judge Dolan
with the tape of the Stephens interview to scare them into resigning, Connaughton admitted
that he might well have speculated about what they would say or do if they heard the tapes.
26
   Similarly, while denying [*678] that he had promised Stephens and Thompson anonymity,
he agreed that he had [***583] told them that he had hoped that they could remain anonymous.
27
   He also categorically denied that he had promised Thompson a job as a waitress, promised
Stephens a job at the Municipal Court, or promised to set their parents up in a restaurant,
although he did acknowledge a general conversation in which his wife had discussed the
possibility that if her dream of opening ″a gourmet ice cream shop″ should materialize, the


25
     The transcript of the Connaughton interview states:
″MR. CONNAUGHTON: No, and it had nothing to do with (inaudible) for information or something, i[f] that’s what the point of this
question is. That’s absolutely no, if that’s that question. Well, the tape will speak for itself.″ App. 265.

The tape recording of this interview makes clear that Connaughton said, ″No, and it had nothing to do with a quid pro quo for
information. . . .″ Defendant’s Exh. I.
26
    ″A. . . . I think it would be fair to say, sometime during those three or four hours that they were there, that I probably made a remark
along the lines that I just can’t believe what I’m hearing, and, you know, I would think if they could hear what we’re hearing, they would
probably resign. I mean, I thought the allegation was that serious. But to tell her that -- to answer that -- and if she’s saying that was
my announced purpose of what I had them there for and what we were going to do with the information, my answer would be no.

″MR. BLOUNT: You didn’t tell her you were going to take the tapes to him? And play them for them?
″A. No. No. What I might have said is, boy, I’d sure like to let them hear these tapes and see what they’ve got to say for themselves,
you know, in a fashion such as that.

″MR. BLOUNT: In an expression of shock.
″MR. CONNAUGHTON: Yeah. Yeah, as I almost fell off of the fireplace. Right.″ App. 262-263.
27
     ″Q. Did you ever promise Alice Thompson anonymity?
″A. That question was discussed, and I was hoping to her, and I told her it would be my intention and hope that she could remain
anonymous, yes. But did I promise her anonymity, the answer would be no. Did we discuss it, we sure did, and I expressed to her my
desire as well as her desire that she could remain anonymous.″ Id., at 264.
                            491 U.S. 657, *678; 109 S. Ct. 2678, **2691; 105 L. Ed. 2d 562, ***583

sisters might work there. 28 There were similar acknowledgments of references [*679] to a
possible Florida trip and postelection victory dinner, but denials of any promises. 29 At the end
 [***584] of [**2692] the interview, Long went back -- stressing that Thompson’s charge was

28
      ″Q. Did you ever talk to Alice about getting a job for her in appreciation for her help with your investigation of New and Dolan?
″A. No.
″Q. Not a waitress job?

″A. No.
″Q. Did you promise a Municipal Court job for her sister Patsy Stephens?

″A. No.
″Q. Did you offer to have ’the sisters go on a post election trip to Florida with you and your family to stay in a condominium?’
″A. No.

″Q. Did you offer to set up Thompson’s parents, the Breedloves, in what is now Walt’s Chambers, which you own and lease?
″A. Absolutely not.

″Q. Why would she say this to us?
″A. What was discussed in an off-handed way, the people who own that bar, who we’re not very pleased with, their lease expires next
September. My wife has the idea that she wants to open an ice cream type shop like Graeters, or some such thing as that, and I heard
her discussing with them that maybe, since Patty had run this Homette Restaurant or something of that nature, that maybe she would
help out and participate in the operation of this -- whatever you want to call it -- deli shop or gourmet ice cream shop. Yes, and I was
present when that took place.
″Q. And when was that?

″A. Well, I don’t think it was that night. As I recall, this was a later time that we had seen them.
″Q. But that would only be for Patty (unclear)?

″A. I guess Alice was there, and the offer may have been extended to her in that fashion, that she could work there or something -- I
wouldn’t be surprised if that was said.″ Id., at 264-265.
29
      ″Q. What about this post election trip to Florida? . . .
″MR. BLOUNT: Did you talk about anything like that?
″A. Ummm-hmmm. After getting over the initial shock it became a little clearer to me of -- kind of how scary this thing was with the
information they gave to us, as far as, if their personal safety was at stake. . . . I do remember in an off-handed way it being discussed
. . . they could go down to Hilton Head or Florida, or something like that, or maybe hide out or something like that, I don’t know. But
I own no property and have nothing to offer them.
″Q. But there was talk about a friend that had a condominium that would be vacant and it was in terms of a full blown trip, you know,
you, the Berrys, the whole group going down to Florida and they were welcome to go along. . . .
″A. No. The only conversation I remember along those lines was in connection with, if their personal safety might be in question because
of going out on the line and making these serious allegations. . . .″ Id., at 266.

″Q. One last statement. At lunch Thompson said that you promised to take her and her sister out to a post election victory dinner at the
Maisonette?
″A. I promised to take them to the Maisonette? Hell, I haven’t been to the Maisonette for years.

″MR. BLOUNT: Was it discussed? . . .
″A. It may have been. It may have been. I won’t deny that some loose discussion in a kidding way was . . .

...
                            491 U.S. 657, *679; 109 S. Ct. 2678, **2692; 105 L. Ed. 2d 562, ***584

a ″hefty″ [*680] one -- and asked for a second time whether Connaughton had promised
Stephens a job at the Municipal Court if he was elected. He once again unequivocally denied
the allegation. 30
The following day the lead story in the Journal News -- under the headline ″Bribery case
witness claims jobs, trip offered″ -- reported that ″[a] woman called to testify before the . . .
Grand Jury in the Billy Joe New bribery case claims Dan Connaughton, candidate for Hamilton
Municipal Judge, offered her and her sister jobs and a trip to Florida ’in appreciation’ for their
help.″ 31 Id., at 329. The article, which carried Pam Long’s byline, stated that Thompson
accused Connaughton of using ″’dirty tricks’″ to gain her cooperation in investigating New and
that Connaughton, although admitting that he did meet with Thompson, ″denied any
wrongdoing.″ Ibid. Each of Thompson’s allegations was accurately reported, including her
claims that Connaughton had promised to ″protect her anonymity,″ id., at 330, that he had
promised Stephens ″a municipal court job″ and Thompson some other sort of work, that he had
invited both sisters on ″a post-election trip to Florida,″ and that he had offered ″to set up
Thompson’s parents . . . in the restaurant business,″ id., at 333. The article conveyed
Thompson’s allegation that ″the tapes were turned off and on during a session [that] lasted until
5:30 a.m.,″ and that these promises were [*681] made ″[w]hen the tape was turned off.″ Ibid.
In addition, Long wrote, ″Thompson claimed Connaughton had told her the tapes he made of
her . . . statement . . . were to be presented to Dolan″ with the hope that Dolan might resign,
thereby allowing Connaughton to assume the municipal judgeship. Id., at 335. Connaughton’s
contrary version of the events was also accurately reported.
As the Court of Appeals correctly noted, there was evidence in the record -- both in the
Thompson tape and in the Connaughton tape -- that would have supported the conclusion that
Thompson was telling the truth and that Connaughton was dissembling. See 842 F. 2d, at 840.
On the other hand, notwithstanding the partial confirmation of Thompson’s charges in the
Connaughton tape, there remained a sharp conflict between their respective versions of the
critical events. There was unquestionably ample evidence in the record to support a finding that
Thompson’s principal charges were false, either because she misinterpreted remarks by
Connaughton and his wife, or because Thompson was deliberately lying.
″A. . . . If she says that I made a firm statement that we were going to definitely plan a party at the Maisonette, that’s not true. . . .″ Id.,
at 272-273.
30
    ″Q. So her sister Patty, again getting back and going over the promises -- pardon me for going back to them but that seems to be
a hefty charge against you.

″A. That’s alright.
″Q. Her sister Patty is not going to get a job in the Municipal Court if you’re elected?

″A. Not that I know of.
″Q. And she’s not going to be disappointed to find that out, right?
″[A. She’s not going to be disappointed at that. Right.]″ Id., at 277.

The bracketed response does not appear in the written transcript, but can be heard on the tape recording. Defendant’s Exh. I.
31
     The full text of this article is reprinted as Appendix B to Judge Guy’s dissenting opinion. 842 F. 2d, at 858-859.
                   491 U.S. 657, *681; 109 S. Ct. 2678, **2692; 105 L. Ed. 2d 562, ***584

[7] [8A]The jury listened to the tape recordings of the two conflicting [***585] interviews and
also observed the demeanor of the two witnesses as they testified in open court. They found
that Connaughton was telling the truth and that Thompson’s charges [**2693] were false. The
fact that an impartial jury unanimously reached that conclusion does not, however, demonstrate
that the Journal News acted with actual malice. Unlike a newspaper, a jury is often required
to decide which of two plausible stories is correct. Difference of opinion as to the truth of a
matter -- even a difference of 11 to 1 -- does not alone constitute clear and convincing evidence
that the defendant acted with a knowledge of falsity or with a ″high degree of awareness of .
. . probable falsity,″ Garrison, 379 U.S., at 74. The jury’s verdict in this case, however, derived
additional support from several critical pieces of information that strongly support the
inference that the Journal [*682] News acted with actual malice in printing Thompson’s false
and defamatory statements.

IV

[8B]On October 27, after the interview with Alice Thompson, the managing editor of the
Journal News assembled a group of reporters and instructed them to interview all of the
witnesses to the conversation between Connaughton and Thompson with one exception --
Patsy Stephens. No one was asked to interview her and no one made any attempt to do so. See
App. 56-57, 61, 83-85. This omission is hard to explain in light of Blount’s and Long’s
repeated questions during the Connaughton and Thompson interviews concerning whether
Stephens would confirm Thompson’s allegations. See id., at 277, 313, 316. It is utterly
bewildering in light of the fact that the Journal News committed substantial resources to
investigating Thompson’s claims, yet chose not to interview the one witness who was most
likely to confirm Thompson’s account of the events. However, if the Journal News had serious
doubts concerning the truth of Thompson’s remarks, but was committed to running the story,
there was good reason not to interview Stephens -- while denials coming from Connaughton’s
supporters might be explained as motivated by a desire to assist Connaughton, a denial coming
from Stephens would quickly put an end to the story.

The remaining six witnesses, including Connaughton, were all interviewed separately on
October 31. Each of them denied Alice Thompson’s charges and corroborated Connaughton’s
version of the events. Thus, one Journal News reporter testified at trial that Jeanette and Ernest
Barnes denied that any promises, offers, or inducements were made and that he had known the
Barneses for several years and considered them both credible. Id., at 89-90. Another reporter
testified that she interviewed Dave Berry and that Berry stated that absolutely no promises or
offers were made. Id., at 91-92. By the time the November 1 story appeared, [*683] six
witnesses had consistently and categorically denied Thompson’s allegations, yet the newspaper
chose not to interview the one witness that both Thompson and Connaughton claimed would
verify their conflicting accounts of the relevant events.

The newspaper’s decision not to listen to the tapes of the Stephens interview in Connaughton’s
home [***586] also supports the finding of actual malice. During the Connaughton interview,
                             491 U.S. 657, *683; 109 S. Ct. 2678, **2693; 105 L. Ed. 2d 562, ***586

Long and Blount asked if they could hear the tapes. Id., at 259. Connaughton agreed, ibid., and
later made the tapes available, id., at 48, 142. Much of what Thompson had said about the
interview could easily have been verified or disproved by listening to the tapes. Listening to
the tapes, for example, would have revealed whether Thompson accurately reported that the
tape recorders were selectively turned on and off and that Connaughton was careful not to
speak while the recorders were running. Similarly, the tapes presented a simple means of
determining whether Stephens and Thompson had been asked leading questions, as Thompson
claimed. Furthermore, if Blount was truly in equipoise about the question whether to endorse
the incumbent judge for reelection -- as he indicated in the column that he published on
Sunday, October 30 -- it is difficult to understand his lack of interest in a detailed description
of the [**2694] corrupt disposition of 40 to 50 cases in Judge Dolan’s court. Even though he
may have correctly assumed that the account did not reflect on the integrity of the judge
himself, surely the question whether administrative shortcomings might be revealed by the
tapes would be a matter in which an editor in the process of determining which candidate to
endorse would normally have an interest. 32 Although simply one piece of [*684] evidence in
a much larger picture, one might reasonably infer in light of this broader context that the
decision not to listen to the tapes was motivated by a concern that they would raise additional
doubts concerning Thompson’s veracity.

Moreover, although also just a small part of the larger picture, Blount’s October 30 editorial
can be read to set the stage for the November 1 article. Significantly, this editorial appeared
before Connaughton or any of the other witnesses were interviewed. Its prediction that further
information concerning the integrity of the candidates might surface in the last few days of the
campaign can be taken to indicate that Blount had already decided to publish Thompson’s
32
      Blount testified at trial as follows:
″Q. . . . Did you listen to any of the tapes of the interview conducted by Dan Connaughton with Miss Stephens and Miss Thompson on
the 17th of September? Did you listen to any of those tapes before you approved and published the article about Dan Connaughton on
the figures of November 18, 1983?
″A. No, because we had from several sources what was on the tape, there was several sources including Mr. Connaughton, that there
was no mention of things we were exploring at this time[.]
...
″Q. You were, I presume, concerned that you were dealing with a credible person in Alice Thompson, were you not?

″A. Correct.
″Q. Wouldn’t one of the simplest ways to determine her credibility be to play the tape to see whether her statement that Dan’s voice is
not on it is true?
″A. No, because we had been told from other sources that this matter, as I previously said, saying it was not on the tape. This was not
discussed on the tape. We had been told by other persons that the tape was junk as far as evidence.
″Q. The tape was what?

″A. Junk.″ App. 30-31.
Blount further testified that by the time of trial, almost two years after he received the tapes, he had only listened to 15 minutes of the
2 1/2 hours of tape. Id., at 33.
                          491 U.S. 657, *684; 109 S. Ct. 2678, **2694; 105 L. Ed. 2d 562, ***586

allegations, regardless of how the evidence developed and regardless of whether or not
Thompson’s story was credible upon ultimate reflection.

Finally, discrepancies in the testimony [***587] of Journal News witnesses may have given
the jury the impression that the [*685] failure to conduct a complete investigation involved
a deliberate effort to avoid the truth. Thus, for example, Blount’s superiors testified that they
understood that Blount had directed reporter Tom Grant to ask the police whether Thompson
had repeated her charges against Connaughton to them and whether they considered her a
credible witness. Id., at 86-87 (Walker), 95 (Cocozzo). Blount also so testified. Id., at 37-38.
Grant, however, denied that he had been given such an assignment. Id., at 88. Similarly, at the
early stages of the proceeding, there was testimony that on October 31 Pam Long had tried to
arrange a meeting with Patsy Stephens over the telephone, id., at 94, that Blount was standing
at her desk during the conversation and overheard Long talking to Stephens, id., at 36-37, and
that Connaughton had volunteered that he would have Stephens get in touch with them, id., at
57. Connaughton categorically denied that the issue of getting in touch with Stephens was even
discussed, id., at 142, and ultimately Blount and Long agreed that there was no contact -- and
no attempt to make contact -- with Stephens on the 31st or at any other time before the story
was published, id., at 48-49 (Blount), 56-57 (Long).
V

[9][10]The question whether the evidence in the record in a defamation case is sufficient to
support a finding of actual malice is a question of law. Bose Corp. v. Consumers Union of
United States, Inc., 466 U.S., at 510-511.This rule is not simply premised on common-law
 [**2695] tradition, 33 but on the [*686] unique character of the interest protected by the actual
malice standard. Our profound national commitment to the free exchange of ideas, as enshrined
in the First Amendment, demands that the law of libel carve out an area of ″’breathing space’″
so that protected speech is not discouraged. Gertz, 418 U.S., at 342 (quoting NAACP v. Button,
371 U.S. 415, 433 (1963)); New York Times Co., 376 U.S., at 272 (same). The meaning of
terms such as ″actual malice″ -- and, more particularly, ″reckless disregard″ -- however, is not
readily captured in ″one infallible definition.″ St. Amant v. Thompson, 390 U.S., at 730. Rather,
only [***588] through the course of case-by-case adjudication can we give content to these
otherwise elusive constitutional standards. Bose, supra, at 503. Moreover, such elucidation is
particularly important in the area of free speech for precisely the same reason that the actual
malice standard is itself necessary. Uncertainty as to the scope of the constitutional protection
can only dissuade protected speech -- the more elusive the standard, the less protection it
33
     The following cases are illustrative of this tradition: Bose, 466 U.S., at 510-511 (actual malice); Jenkins v. Georgia, 418 U.S. 153,
161 (1974) (obscenity); Hess v. Indiana, 414 U.S. 105, 108-109 (1973) (per curiam) (incitement); Miller v. California, 413 U.S. 15, 25
(1973) (obscenity); Time, Inc. v. Pape, 401 U.S. 279, 284 (1971) (actual malice); Greenbelt Cooperative Publishing Assn., Inc. v. Bresler,
398 U.S. 6, 11 (1970) (defamation); Street v. New York, 394 U.S. 576, 589, 592 (1969) (fighting words); Beckley Newspapers Corp. v.
Hanks, 389 U.S. 81, 83 (1967) (per curiam) (actual malice); New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964) (actual malice);
Edwards v. South Carolina, 372 U.S. 229, 235 (1963) (peaceful assembly); Niemotko v. Maryland, 340 U.S. 268, 271 (1951) (failure
to issue license for religious meeting in public park); Pennekamp v. Florida, 328 U.S. 331, 335 (1946) (clear and present danger to
integrity of court).
                          491 U.S. 657, *686; 109 S. Ct. 2678, **2695; 105 L. Ed. 2d 562, ***588


affords. Most fundamentally, the rule is premised on the recognition that ″[j]udges, as
expositors of the Constitution,″ have a duty to ″independently decide whether the evidence in
the record is sufficient to cross the constitutional threshold that bars the entry of any judgment
that is not supported by clear and convincing proof of ’actual malice.’″ Bose, supra, at 511.

[11][12A]There is little doubt that ″public discussion of the qualifications of a candidate for
elective office presents what is probably the strongest possible case for application of the New
York Times rule,″ Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 300 (1971), and the
strongest possible case for independent [*687] review. As Madison observed in 1800, just nine
years after ratification of the First Amendment:

     ″Let it be recollected, lastly, that the right of electing the members of the government
     constitutes more particularly the essence of a free and responsible government. The
     value and efficacy of this right depends on the knowledge of the comparative merits and
     demerits of the candidates for public trust, and on the equal freedom, consequently, of
     examining and discussing these merits and demerits of the candidates respectively.″ 4
     J. Elliot, Debates on the Federal Constitution 575 (1861).

This value must be protected with special vigilance. When a candidate enters the political
arena, he or she ″must expect that the debate will sometimes be rough and personal,″ Ollman
v. Evans, 242 U. S. App. D. C. 301, 333, 750 F. 2d 970, 1002 (1984) (en banc) (Bork, J.,
concurring), cert. denied, 471 U.S. 1127 (1985), and cannot ″’cry Foul!’ when an opponent or
an industrious reporter attempts to demonstrate″ that he or she lacks the ″sterling integrity″
trumpeted in campaign literature and speeches, Monitor Patriot Co. v. Roy, 401 U.S. 265, 274
 [**2696] (1971). Vigorous reportage of political campaigns is necessary for the optimal
functioning of democratic institutions and central to our history of individual liberty. 34
[12B]

 [*688] [1C][13]We have not gone so far, [***589] however, as to accord the press absolute
immunity in its coverage of public figures or elections. If a false and defamatory statement is
published with knowledge of falsity or a reckless disregard for the truth, the public figure may
prevail. See Curtis Publishing Co. v. Butts, 388 U.S., at 162 (opinion of Warren, C. J.). A
″reckless disregard″ for the truth, however, requires more than a departure from reasonably
prudent conduct. ″There must be sufficient evidence to permit the conclusion that the
defendant in fact entertained serious doubts as to the truth of his publication.″ St. Amant, 390
34
    Of course, the protection of ″calculated falsehoods″ does not promote self-determination. As we observed in Garrison v. Louisiana,
379 U.S. 64 (1964):

″At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate
or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration. Cf. Riesman, Democracy
and Defamation: Fair Game and Fair Comment I, 42 Col. L. Rev. 1085, 1088-1111 (1942). That speech is used as a tool for political
ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at
odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be
effected.″ Id., at 75.
                          491 U.S. 657, *688; 109 S. Ct. 2678, **2696; 105 L. Ed. 2d 562, ***589

U.S., at 731. The standard is a subjective one -- there must be sufficient evidence to permit the
conclusion that the defendant actually had a ″high degree of awareness of . . . probable falsity.″
Garrison v. Louisiana, 379 U.S., at 74. As a result, failure to investigate before publishing,
even when a reasonably prudent person would have done so, is not sufficient to establish
reckless disregard. See St. Amant, supra, at 731, 733. See also Hunt v. Liberty Lobby, 720 F.
2d 631, 642 (CA11 1983); Schultz v. Newsweek, Inc., 668 F. 2d 911, 918 (CA6 1982). In a case
such as this involving the reporting of a third party’s allegations, ″recklessness may be found
where there are obvious reasons to doubt the veracity of the informant or the accuracy of his
reports.″ St. Amant, supra, at 732.

[2B][14]In determining whether the constitutional standard has been satisfied, the reviewing
court must consider the factual record in full. Although credibility determinations are reviewed
under the clearly-erroneous standard because the trier of fact has had the ″opportunity to
observe the demeanor of the witnesses,″ Bose, 466 U.S., at 499-500, the reviewing court must
″’examine for [itself] the statements in issue and the circumstances under which they were
made to see . . . whether they are of a character which the principles of the First Amendment
. . . protect,’″ New York Times Co., 376 U.S., at 285 (quoting Pennekamp v. Florida, 328 U.S.
331, 335 [*689] (1946)).35 Based on our review of the entire record, we agree with the Court
of Appeals that the evidence did in fact support a finding of actual malice. Our approach,
however, differs somewhat from that taken by the Court of Appeals.

[2C]In considering the actual malice [***590] issue, the Court of Appeals identified 11
subsidiary [**2697] facts that the jury ″could have″ found. 36842 F. 2d, at 843-844. The court
35
     Petitioner concedes that ″when conducting the independent review mandated by New York Times and Bose, a reviewing court should
properly hesitate to disregard a jury’s opportunity to observe live testimony and assess witness credibility.″ Brief for Petitioner 36, n.
45. It contends, however, that this Court did reject the trial court’s credibility determination in Bose. We disagree with this reading of
Bose. In Bose we accepted the trial court’s determination that the author of the report at issue did not provide credible testimony
concerning the reason for his choice of words and his understanding of the meaning of the word ″about.″ 466 U.S., at 511-512. Unlike
the District Court, however, we were unwilling to infer actual malice from the finding that the witness ″refused to admit [his mistake]
and steadfastly attempted to maintain that no mistake had been made -- that the inaccurate was accurate.″ Id., at 512.
36
     The Court of Appeals asserted:
″A review of the entire record of the instant case disclosed substantial probative evidence from which a jury could have concluded (1)
that the Journal was singularly biased in favor of Dolan and prejudiced against Connaughton as evidenced by the confidential personal
relationship that existed between Dolan and Blount, the Journal Editorial Director, and the unqualified, consistently favorable editorial
and daily news coverage received by Dolan from the Journal as compared with the equally consistently unfavorable news coverage
afforded Connaughton; (2) that the Journal was engaged in a bitter rivalry with the Cincinnati Enquirer for domination of the greater
Hamilton circulation market as evidenced by Blount’s vituperous public statements and criticism of the Enquirer; (3) that the Enquirer’s
initial expose of the questionable operation of the Dolan court was a high profile news attraction of great public interest and notoriety
that had ’scooped’ the Journal and by Blount’s own admission was the most significant story impacting the Connaughton-Dolan
campaign[;] (4) that by discrediting Connaughton the Journal was effectively impugning the Enquirer thereby undermining its market
share of the Hamilton area; (5) that Thompson’s emotional instability coupled with her obviously vindictive and antagonistic attitudes
toward Connaughton as displayed during an interview on October 27, 1983, arranged by Billy New’s defense attorney, afforded the
Journal an ideal vehicle to accomplish its objectives; (6) that the Journal was aware of Thompson’s prior criminal convictions and
reported psychological infirmities and the treatment she had received for her mental condition; (7) that every witness interviewed by
Journal reporters discredited Thompson’s accusations; (8) that the Journal intentionally avoided interviewing Stephens between October
27, 1983, the date of its initial meeting with Thompson, and November 1, 1983 when it printed its first story even though it knew that
                          491 U.S. 657, *689; 109 S. Ct. 2678, **2697; 105 L. Ed. 2d 562, ***590

held that such [*690] findings would not have been not clearly erroneous, id., at 844, and,
based on its independent review, that when considered cumulatively they provide clear and
convincing evidence of actual malice, id., at 847. We agree that the jury may have found each
of those facts, but conclude that the case should be decided on a less speculative ground. Given
the trial court’s instructions, the jury’s answers to the three special interrogatories, and an
understanding of those facts not in dispute, it is evident that the jury must have rejected (1) the
testimony of petitioner’s witnesses that Stephens was not contacted simply because Connaughton
failed to place her in touch with the newspaper; (2) the testimony of Blount that he did not
listen to the tapes simply because he thought they would provide him with no new information;
and (3) the testimony of those Journal News employees who asserted that they believed
Thompson’s allegations were substantially true. When these findings are considered alongside
the undisputed [*691] evidence, the conclusion that the newspaper acted with actual malice
inexorably follows.

[8C] [15A] [16A]There is no dispute that Thompson’s charges had been denied not only by
Connaughton, but also by five other witnesses before the story was published. Thompson’s
most serious charge -- that Connaughton [***591] intended to confront the incumbent judge
with the tapes to scare him into resigning and otherwise not to disclose the existence of the
tapes -- was not only highly improbable, but inconsistent with the fact that Connaughton had
actually arranged a lie detector test for Stephens and then delivered the tapes to the police.
These facts were well known to the Journal News before the story was published. Moreover,
because the newspaper’s interviews of Thompson and Connaughton were captured on tape,
there can be no dispute as to what was communicated, nor how it was said. The hesitant,
inaudible, and sometimes unresponsive and improbable tone of Thompson’s answers to
various leading questions raise obvious doubts about her veracity. Moreover, contrary to
petitioner’s contention [**2698] that the prepublication interview with Connaughton
confirmed the factual basis of Thompson’s statements, Brief for Petitioner 47, review of the
tapes makes clear that Connaughton unambiguously denied each allegation of wrongful
conduct. Connaughton’s acknowledgment, for instance, that his wife may have discussed with
Stephens and Thompson the possibility of working at an ice cream store that she might
someday open, hardly confirms the allegations that Connaughton had promised to buy a
restaurant for the sister’s parents to operate, that he would provide Stephens with a job at the
Municipal Court, or even that he would provide Thompson with suitable work. 37 It is
Stephens could either credit or discredit Thompson’s statements; (9) that the Journal knew that publication of Thompson’s allegations
charging Connaughton with unethical conduct and criminal extortion and her other equally damaging statements would completely
discredit and irreparably damage Connaughton personally, professionally and politically; (10) that its prepublication legal review was a
sham; (11) that the Journal timed the release of the initial story so as to accommodate follow-up stories and editorial comments in a
manner calculated to peak immediately before the election in an effort to maximize the effect of its campaign to discredit Connaughton
and the Enquirer.″ 842 F. 2d, at 843-844.
37
     Nor can petitioner claim immunity from suit because portions of Thompson’s account of the relevant events were confirmed by
Connaughton. ″[T]he defamer may be [all] the more successful when he baits the hook with truth.″ Afro-American Publishing Co. v.
Jaffe, 125 U. S. App. D. C. 70, 76, 366 F. 2d 649, 655 (1966) (en banc). See also Tavoulareas, 260 U. S. App. D. C., at 64, 817 F. 2d,
at 787. Of course, the press need not accept ″denials, however vehement; such denials are so commonplace in the world of polemical
                            491 U.S. 657, *691; 109 S. Ct. 2678, **2698; 105 L. Ed. 2d 562, ***591

extraordinarily unlikely that the [*692] reporters missed Connaughton’s denials simply
because he confirmed certain aspects of Thompson’s story.

[15B] [16B]

[8D]It is also undisputed that Connaughton made the tapes of the Stephens interview available
to the Journal News and that no one at the newspaper took the time to listen to them. Similarly,
there is no question that the Journal News was aware that Patsy Stephens was a key witness
and that they failed to make any effort to interview her. Accepting the jury’s determination that
petitioner’s explanations for these omissions were not credible, it is likely that the newspaper’s
inaction was a product of a deliberate decision not to acquire knowledge of facts that might
confirm the probable falsity of Thompson’s charges. Although failure to investigate will not
alone support a finding of actual malice, see St. Amant, 390 U.S., at 731, 733, the purposeful
avoidance of the truth is in a different category.

There is a remarkable similarity between this case -- and in particular, the newspaper’s failure
to interview Stephens and failure to listen to the tape recording of the September 17 interview
at Connaughton’s home -- and the facts that supported the Court’s judgment in Curtis
Publishing Co. v. Butts, 388 U.S. 130 (1967). In [***592] Butts the evidence showed that the
Saturday Evening Post had published an accurate account of an unreliable informant’s false
description of the Georgia athletic director’s purported agreement to ″fix″ a college football
game. Although there was reason to question the informant’s veracity, just as there was reason
to doubt Thompson’s story, the editors did not interview a witness who had the same access
to the facts as the informant and did not look at films that revealed what actually happened
 [*693] at the game in question. 38 This evidence of an intent to avoid the truth was not only
sufficient to convince the plurality that there had been an extreme departure from professional
publishing standards, but it was also sufficient to satisfy the more demanding New York Times
standard applied by Chief Justice [**2699] Warren, 39 Justice Brennan, and Justice White. 40
charge and countercharge that, in themselves, they hardly alert the conscientious reporter to the likelihood of error.″ Edwards v. National
Audubon Society, Inc., 556 F. 2d, at 121.
38
     As Justice Harlan observed in Butts:
″Burnett’s notes were not even viewed by any of the magazine’s personnel prior to publication. John Carmichael who was supposed to
have been with Burnett when the phone call was overheard was not interviewed. No attempt was made to screen the films of the game
to see if Burnett’s information was accurate, and no attempt was made to find out whether Alabama had adjusted its plans after the alleged
divulgence of information.″ 388 U.S., at 157.
In this passage, ″Stephens″ might easily be substituted for ″Carmichael,″ ″Thompson″ for ″Burnett,″ and ″the tapes″ for ″Burnett’s notes″
and ″the films of the game.″
39
     Chief Justice Warren wrote:
″The slipshod and sketchy investigatory techniques employed to check the veracity of the source and the inferences to be drawn from
the few facts believed to be true are detailed at length in the opinion of Mr. Justice Harlan. Suffice it to say that little investigative effort
was expended initially, and no additional inquiries were made even after the editors were notified by respondent and his daughter that
the account to be published was absolutely untrue. Instead, the Saturday Evening Post proceeded on its reckless course with full
knowledge of the harm that would likely result from publication of the article.″ Id., at 169-170.
                          491 U.S. 657, *693; 109 S. Ct. 2678, **2699; 105 L. Ed. 2d 562, ***592

[2D] [8E]As in Butts, the evidence in the record in this case, when reviewed in its entirety, is
″unmistakably″ sufficient to support a finding of actual malice. The judgment of the Court of
Appeals is accordingly
Affirmed.

Concur by: WHITE; BLACKMUN; KENNEDY; SCALIA

Concur

 [*694] JUSTICE WHITE, with whom THE CHIEF JUSTICE joins, concurring.

In my view, in cases like this the historical facts -- e. g., who did what to whom and when --
are reviewable only under the clearly-erroneous standard mandated by Federal Rule of Civil
Procedure 52. Credibility determinations fall in this category, as does the issue of knowledge
of falsity. But as I observed in dissent in Bose Corp. v. Consumers Union of United States, Inc.,
466 U.S. 485, 515 (1984), the reckless disregard component of the New York Times Co. v.
Sullivan ″actual malice″ standard is not a question of historical fact. A trial court’s
determination of that issue therefore is to be reviewed independently by the appellate court.

 [***593] As I read it, the Court’s opinion is consistent with these views, and -- as Justice
Kennedy observes -- is consistent with the views expressed by Justice Scalia in his
concurrence. Based on these premises, I join the Court’s opinion.

JUSTICE BLACKMUN, concurring.

I agree with the majority’s analysis and with the result it reaches. I write separately, however,
to stress two points.

First, the case reaches us in an odd posture, one which stands in the way of giving full
consideration to aspects of the content of the article under attack that perhaps are of
constitutional significance. Petitioner has abandoned the defense of truth, see Philadelphia
Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986), despite the fact that there might be some
support for that defense. We therefore must presume that the jury correctly found that the
article was false, see ante, at 681, and decide whether petitioner acted with knowledge or
reckless disregard of its falsity. In addition, petitioner has eschewed any reliance on the
″neutral reportage″ defense. Cf. Edwards v. National Audubon Society, Inc., 556 F. 2d 113, 120
(CA2), cert. denied, 434 U.S. 1002 (1977). This strategic decision appears to have been unwise
in light of the facts of this case. The article accurately reported [*695] newsworthy allegations
that Daniel Connaughton, a political candidate, had used ″dirty tricks″ to elicit information
from Alice Thompson and her sister, information that had become central to the political
40
     Although concluding that the case should be remanded for a new trial, Justice Brennan, joined by Justice White, agreed with Chief
Justice Warren that the evidence presented at the original trial ″unmistakably would support a judgment for Butts under the New York
Times standard.″ Id., at 172.
                   491 U.S. 657, *695; 109 S. Ct. 2678, **2699; 105 L. Ed. 2d 562, ***593


campaign, and also accurately reported Connaughton’s response, which confirmed the
existence of discussions with Thompson that touched upon the subject matter of her allegations
but claimed that Thompson’s version of these discussions was incorrect. Were this Court to
adopt the neutral reportage theory, the facts of this case arguably might fit within it. That
question, however, has also not been squarely presented.
Second, I wish to emphasize that the form and content of the story are relevant not only to the
falsity and neutral reportage questions, but also to the question of actual malice. In the past,
this Court’s [**2700] decisions dealing with actual malice have placed considerable emphasis
on the manner in which the allegedly false content was presented by the publisher. See
Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U.S. 6, 12-13 (1970) (truthful and
accurate reporting of what was said at public meeting on issues of public importance not
actionable); Time, Inc. v. Pape, 401 U.S. 279, 290-292 (1971) (erroneous interpretation of
Government report not ″actual malice″). Under our precedents, I find significant the fact that
the article in this case accurately portrayed Thompson’s allegations as allegations, and also
printed Connaughton’s partial denial of their truth. The form of the story in this case is
markedly different from the form of the story in Curtis Publishing Co. v. Butts, 388 U.S. 130
(1967), where the informant’s description of the events was presented as truth rather than as
contested allegations. These differences in presentation are relevant to the question whether the
publisher acted in reckless disregard [***594] of the truth: presenting the content of
Thompson’s allegations as though they were established fact would have shown markedly less
regard of their possible falsity.
[*696] Several aspects of the majority’s opinion in this case might be interpreted as breaking
with our practice of considering the form and content of the article in making malice
determinations. The majority notes the form of the story, see ante, at 680-681, but its account
of the evidence it finds probative of actual malice, ante, at 682-685, deals exclusively with
evidence extrinsic to the story itself. The absence of any discussion of Pape and Bresler also
might be understood as a suggestion that the manner in which the contested statements are
presented is irrelevant to the malice inquiry. Finally, the majority relies upon Butts in the course
of its discussion of petitioner’s purposefully incomplete investigation of its story, ante, at
692-693, in a manner that suggests it might not have accorded significance to the difference
between the forms of the respective stories in Butts and in this case.
I am confident, however, that these aspects of the majority’s opinion are omissions in
explanation rather than in analysis, and that the majority’s opinion cannot fairly be read to hold
that the content of the article is irrelevant to the actual malice inquiry. Because I am convinced
that the majority has considered the article’s content and form in the course of its painstaking
″review of the entire record,″ see ante, at 689, and because I conclude that the result the
majority reaches is proper even when the contents of the story are given due weight, I concur.
JUSTICE KENNEDY, concurring.
I join the opinion of the Court, for in my view it is not inconsistent with the analysis set out
in Justice Scalia’s separate concurrence.
                   491 U.S. 657, *696; 109 S. Ct. 2678, **2700; 105 L. Ed. 2d 562, ***594

JUSTICE SCALIA, concurring in the judgment.

I agree with the Court’s disposition of this case, and with its resolution of the second legal issue
on which we granted certiorari, namely whether ″highly unreasonable conduct constituting an
extreme departure from ordinary standards of investigation and reporting″ is alone enough to
establish [*697] (rather than merely evidence of) the malice necessary to assess liability in
public figure libel cases.

I disagree, however, with the Court’s approach to resolving the first and most significant
question upon which certiorari was granted, which was the following:

   ″Whether, in a defamation action instituted by a candidate for public office, the First and
   Fourteenth Amendments obligate an appellate court to conduct an independent review
   of the entire factual basis for a jury’s finding of actual malice -- a review that examines
   both the subsidiary facts underlying the jury’s finding of actual malice and the jury’s
   ultimate finding of actual malice itself.″

 [**2701] That question squarely raised the conflict that the Sixth Circuit perceived it had
created with an earlier decision of the District of Columbia Circuit, en banc, concerning the
requirement we set forth in Bose Corp. v. [***595] Consumers Union of United States, Inc.,
466 U.S. 485 (1984), that judges ″exercise independent judgment″ on the question ″whether
the record establishes actual malice with convincing clarity,″ id., at 514. The nub of the
conflict, which is of overwhelming importance in libel actions by public figures, is whether this
means, as the Sixth Circuit understood the District of Columbia Circuit to have held in
Tavoulareas v. Piro, 260 U. S. App. D. C. 39, 817 F. 2d 762 (1987) (en banc), that the trial
judge and reviewing courts must make their own ″independent″ assessment of the facts
allegedly establishing malice; or rather, as the Sixth Circuit held here (explicitly rejecting
Tavoulareas), that they must merely make their own ″independent″ assessment that, assuming
all of the facts that could reasonably be found in favor of the plaintiff were found in favor of
the plaintiff, clear and convincing proof of malice was established.

Today’s opinion resolves this issue in what seems to me a peculiar manner. The Court finds it
sufficient to decide the present case to accept, not all the favorable facts that the [*698] jury
could reasonably have found, but rather only the adequately supported favorable facts that the
jury did find. Exercising its independent judgment just on the basis of those facts (and the
uncontroverted evidence), it concludes that malice was clearly and convincingly proved. The
crucial passage of the Court’s opinion is the following:

   ″Given the trial court’s instructions, the jury’s answers to the three special interrogatories,
   and an understanding of those facts not in dispute, it is evident that the jury must have
   rejected (1) the testimony of petitioner’s witnesses that Stephens was not contacted
   simply because Connaughton failed to place her in touch with the newspaper; (2) the
   testimony of Blount that he did not listen to the tapes simply because he thought they
                   491 U.S. 657, *698; 109 S. Ct. 2678, **2701; 105 L. Ed. 2d 562, ***595

   would provide him with no new information; and (3) the testimony of those Journal
   News employees who asserted that they believed Thompson’s allegations were
   substantially true. When these findings are considered alongside the undisputed
   evidence, the conclusion that the newspaper acted with actual malice inextricably
   follows.″ Ante, at 690-691 (emphasis in original).

This analysis adopts the most significant element of the Sixth Circuit’s approach, since it
accepts the jury’s determination of at least the necessarily found controverted facts, rather than
making an independent resolution of that conflicting testimony. Of course the Court examines
the evidence pertinent to the jury determination -- as a reviewing court always must -- to
determine that the jury could reasonably have reached that conclusion. But the Court does not
purport to be exercising its own independent judgment as to whether Stephens was not
contacted simply because Connaughton failed to place her in touch with the newspaper,
whether Blount did not listen to the tapes because he thought they would provide no new
information, or whether the Journal News employees believed Thompson’s allegations to be
substantially true.
[*699] While I entirely agree with this [***596] central portion of the Court’s analysis, I do
not understand the Court’s approach in conducting that analysis only on the basis of the three
factual determinations the Court selects. To begin with, I am dubious of the Court’s conclusion
that the jury must have made all three of those findings in order to bring in the verdict that it
did under the judge’s instructions, and in order to answer as it did the only relevant ″special
interrogatory,″ which was ″Do you unanimously find by clear and convincing proof that the
publication in question was published with actual malice?″ It seems to me, for example, that
even if one believed Blount’s explanation of why he did not listen to the tapes, it would still
be reasonable to find [**2702] (and I would find) clear and convincing proof of malice from
the utterly inexplicable failure to interview Stephens plus the uncontroverted evidence.
More important, however, even if each of these factual findings happened to be necessary to
the verdict and interrogatory response, I see no reason to make them the exclusive focus of our
analysis, instead of consulting (as the Sixth Circuit did, and as courts invariably do when
reviewing jury verdicts) all the reasonably supported findings that the jury could have made.
It may well be true that ″we need only consider those factual findings that were essential to the
jury verdict″ in the sense that referring to those alone is enough to decide the case -- i. e., those
alone establish clear and convincing proof of malice. But one could pick out any number of
categories of permissible jury findings that would meet that test. For example, it might be true
that we could find the requisite proof of malice by considering, not all the evidence in its light
most favorable to the plaintiff, but only that evidence produced by a particular witness. We
could then say ″we need only consider the findings the jury might have made based on the
testimony of Mr. Smith to decide this case.″ I see no more logic in limiting the inquiry the way
the Court has done than in limiting it in this latter fashion.
[*700] That can be made plain by applying the Court’s approach to a situation in which the
facts essential to the jury verdict happen not to establish clear and convincing proof of malice.
                  491 U.S. 657, *700; 109 S. Ct. 2678, **2702; 105 L. Ed. 2d 562, ***596


Assume a case in which there are innumerable controverted allegations, dozens of which, if the
plaintiff’s version is credited, would suffice to establish malice; but in which only one
controverted allegation -- the defendant’s allegation that he knew firsthand the truth of the
libelous charges -- could not possibly have been found against the plaintiff if the jury was to
come in with the verdict that it did. If we applied today’s analysis to that situation, we would
then proceed to ask whether the fact that the defendant did not know firsthand the truth of the
charges, and that he lied about that, is alone enough to establish clear and convincing proof of
malice. It clearly would not be. Surely, however, we would not reverse the judgment for the
plaintiff, when dozens of other disputed contentions which the jury might have resolved in the
plaintiff’s favor would establish clear and convincing proof. We would, as the Sixth Circuit did,
assume that all those disputes were resolved in the plaintiff’s favor -- unless, of course, we
again devised some nonfunctional category of the remaining disputes that we could look to,
perhaps [***597] those pertaining to testimony by Mr. Smith.
In sum, while the Court’s opinion is correct insofar as the critical point of deference to jury
findings is concerned, I see no basis for consulting only a limited number of the permissible
findings. I would have adopted the Sixth Circuit’s analysis in its entirety, making our
independent assessment of whether malice was clearly and convincingly proved on the
assumption that the jury made all the supportive findings it reasonably could have made. That
is what common-law courts have always done, and there is ultimately no alternative to it.

References

32 Am Jur 2d, Federal Practice and Procedure 363; 50 Am Jur 2d, Libel and Slander 135,
296-303, 4622 Federal Procedure, L Ed, Appeal, Certiorari, and Review 3:649; 33 Federal
Procedure, L Ed, Trial 77:243-77:24616 Am Jur Pl & Pr Forms (Rev), Libel and Slander,
Forms 29, 184, 29714 Am Jur Proof of Facts 2d 49, Defamation with Actual Malice17 Am Jur
Trials 223, Libel Actions by Public OfficialsUSCS, Constitution, Amendment 1US L Ed
Digest, Appeal 1673; Constitutional Law 948; Evidence 918Index to Annotations, Findings of
Fact; Libel and Slander; New York Times Rule                    Annotation References:Supreme
Court’s views as to what constitutes factual issue under ″clearly erroneous″ standard of Federal
Rule of Civil Procedure 52(a), providing that findings of fact shall not be set aside unless
clearly erroneous. 72 L Ed 2d 890. Progeny of New York Times v Sullivan in the Supreme
Court. 61 L Ed 2d 975.The Supreme Court and the right of free speech and press. 93 L Ed 1151,
2 L Ed 2d 1706, 11 L Ed 2d 1116, 16 L Ed 2d 1053, 21 L Ed 2d 976.Criticism or disparagement
of character, competence, or conduct of candidate for office as defamation. 37 ALR4th
1088.What constitutes actual malice, within federal constitutional rule requiring public
officials and public figures to show actual malice. 20 ALR3d 988.Constitutional aspects of
libel or slander of public officials. 95 ALR2d 1450.
               Huckabee v. Time Warner Entertainment Co., L.P.
                                 Supreme Court of Texas
                    November 3, 1999, Argued ; May 4, 2000, Delivered
                                      No. 98-1018

Reporter
19 S.W.3d 413; 2000 Tex. LEXIS 43; 43 Tex. Sup. J. 674; 28 Media L. Rep. 2158

DEAN HUCKABEE, PETITIONER v. TIME WARNER ENTERTAINMENT COMPANY,
L.P., RESPONDENT

Prior History: [**1] ON PETITION FOR REVIEW FROM THE COURT OF APPEALS
FOR THE FOURTEENTH DISTRICT OF TEXAS.

Disposition: Judgment of court of appeals affirmed.

Counsel: For Petitioner: Mr. James Tynan Kelly, The Marshall Law Firm, Houston, TX, Ms.
Diana E. Marshall, The Marshall Law Firm, Houston, TX, Mr. Paul J. Franzetti, The Marshall
Law Firm, Houston, TX.

For Respondent: Ms. Julie A. Ford, Haynes and Boone, Austin, TX, Mr. R. James George, Jr.,
George & Donaldson, Austin, TX, Mr. Ben Jay Cunningham, George & Donaldson, Austin,
TX.

Judges: CHIEF JUSTICE PHILLIPS delivered the opinion of the Court, in which JUSTICE
ENOCH, JUSTICE BAKER, JUSTICE ABBOTT, JUSTICE HANKINSON, JUSTICE
O’NEILL, and JUSTICE GONZALES joined. JUSTICE HECHT filed a dissenting opinion.
JUSTICE OWEN did not participate in the decision.

Opinion by: THOMAS R. PHILLIPS

Opinion

[*416] We must decide whether a media defendant sued for defamation by a public official
is entitled on the facts of this record to summary judgment on the issue of actual malice.
Because the defendant produced [*417] evidence negating actual malice as a matter of law,
and because the plaintiff did not produce controverting evidence raising a fact issue, we affirm
the summary judgment granted [**2] by the court of appeals. 995 S.W.2d 152.
I
When this claim arose, Charles Dean Huckabee was presiding judge of the 247th District Court
of Harris County, which by statute gives preference to family law matters. See TEX. GOV’T
                             19 S.W.3d 413, *417; 2000 Tex. LEXIS 43, **3

CODE § 24.424. Judge Huckabee claims that Respondent, HBO, defamed him by broadcasting
the documentary Women on Trial on its premium cable channel. This hour-long program
chronicled four southeast Texas cases in which family courts granted custody of a child to the
father after the mother accused the father of child abuse. Three of these cases arose in Harris
County, and Judge Huckabee presided over two of them. Judge Huckabee principally claims
that the documentary defamed him in its report on his decision regarding the custody of
four-year-old Wayne Hebert. See In re the Marriage of Sandra Hebert and Michael Hebert,
No. 84-13392, In re John Hebert and Wayne Hebert, Minor Children, No. 88-14873
(consolidated cases)(247th Dist. Ct., Harris County, Tex. Mar. 13-15, 1988)(″Hebert″).

The Hebert case began in 1988, when Sandra Hebert discovered that Wayne had sustained an
injury to his penis. The [**3] day before, Wayne had returned from visiting Michael Hebert,
his father and Sandra’s ex-husband. Wayne had gone with Michael to visit his grandmother’s
home in Louisiana. Believing that Michael caused Wayne’s injury, Sandra consulted with her
friend Sherry Turner, a Houston police officer who specialized in sexual abuse cases. Turner,
interviewing Wayne alone, videotaped Wayne’s statement that Michael had injured him while
taking a bath. In two other videotaped interviews, Wayne also told social worker Cheryl
Bennett and Child Protective Services caseworker Wilma Smith that Michael caused the injury.
After investigating further, Smith concluded that Wayne had been abused, but that the abuser
could not be identified. Because Michael was a Houston police officer, the Houston Police
Department’s Internal Affairs Department also investigated the incident and likewise determined
that the abuser could not be identified.

Alleging that Michael had abused Wayne, Sandra moved to modify the custody order to restrict
Michael’s visitation rights. After a three-day hearing in March 1988, Judge Huckabee rendered
a temporary order that not only made Michael rather than Sandra the managing conservator
 [**4] of Wayne, but went on to deny Sandra all access to her child, even though Michael had
not sought either of these changes. Sandra unsuccessfully sought a writ of mandamus from the
court of appeals to overturn the temporary order. See Hebert v. Huckabee, 1988 Tex. App.
LEXIS 1623, No. A14-88-00511-CV, 1988 WL 73789 (Tex. App.-- Houston [14th Dist.], July
14, 1988, orig. proceeding)(not designated for publication). She did not seek a subsequent
modification of the order, and it was still in effect when Women on Trial was broadcast in 1992.

In late 1990, Lee Grant, the director of Women on Trial, first began work on a documentary
about divorce. Hoping to examine how once happily married couples later ended up in bitter
divorces, Grant secured her husband’s production company, Joseph Feury Productions (JFP),
to produce the film. Grant assigned JFP employee Virginia Cotts to find suitable stories for the
program. In March 1991, Cotts met in Houston with Joleen Reynolds, the leader of Citizens
Organized for Divorce Ethics and Solutions (CODES), a support group for men and women
who felt that the Houston family courts had treated them unfairly. Reynolds discussed a
number of cases with Cotts, [**5] including the Hebert case. After meeting with [*418]
Reynolds, Cotts wrote a three-page summary of Sandra Hebert’s situation.
                             19 S.W.3d 413, *418; 2000 Tex. LEXIS 43, **5


Sandra Hebert’s story was included along with several others submitted by Cotts and Grant to
HBO in April 1991. In her summary of the Hebert story, Cotts included the following bullet
points: (1) ″Police ex-husband abused son″; (2) ″Corrupt Judge gave custody to father/abuser″;
(3) and ″Sandy lost all rights to see her child.″ Sandra Hebert’s story particularly impressed the
HBO executives. After reading it, HBO vice-president Sheila Nevins wrote on her copy: ″Great
story. Do at once.″ Nevins’s assistant, Cis Wilson, wrote: ″Great, sad story.″ After considering
the proposal, HBO agreed to purchase the film. Throughout the rest of the film’s production,
Cotts and Grant regularly met with Wilson and Nevins.
Cotts and Grant both came to Houston to film interviews. In addition to Joleen Reynolds,
Sandra Hebert, and her current and former attorneys, they also interviewed Ivy Raschke,
another woman who had been denied access to her children by Judge Huckabee after accusing
the children’s father of abuse. Cotts also continued her research into other allegations of
impropriety [**6] in the Harris County family courts, including those reported by local print
and broadcast media.
In September 1991, JFP delivered a ″rough cut″ of the film to HBO. Cotts’s contemporaneous
status report revealed tension between Lee Grant and Sheila Nevins over the film’s direction.
Grant apparently wanted to present a broad picture of divorce that showed both the fathers’ and
the mothers’ perspectives, but Nevins wanted a narrower piece that focused on mothers who
believed the family court system had treated them unfairly. Nothing in the status report,
however, indicated that Grant, Cotts, or anyone at HBO believed anything in the documentary
to be false or entertained serious doubts about the truth of any of the film’s allegations.
In November 1991, Grant and Cotts returned to Houston and videotaped Judge Huckabee.
While Judge Huckabee stated that he could not talk specifically about the Hebert case because
it was pending in his court, he did agree to talk about it in ″hypothetical″ terms. He then
explained that all of his decisions in this and other cases were based on the best interests of the
children. HBO did not include these statements in the final version. Instead, it [**7] aired this
response by Judge Huckabee to a question about a ″hypothetical″ version of the Hebert case:
I have to do what’s best for the child. If someone, is, uh, brainwashing the a child to the same
extent that it causes psychological and emotional problems with the child, especially coupled
with some physical abuse, in my opinion the child has to be removed from that situation.
The broadcast also aired Judge Huckabee’s explanation of his criteria for determining when a
mother in that situation could see her children again:
Well, if its [sic] a person who has mental health problems, they’re going to have to seek mental
health, uh, care. If its [sic] a person sexually abusing a child, they’re probably going to have
to seek mental health care.
Finally, the broadcast aired Judge Huckabee’s statement that he took the decision to deny
access to a parent very seriously, but that he was satisfied that he had made the correct decision
in every case in which he had done so.
                            19 S.W.3d 413, *418; 2000 Tex. LEXIS 43, **7

The filmmakers also interviewed Dr. Kit Harrison, a psychologist appointed by Judge
Huckabee in Hebert and in many other cases. Four months after Judge Huckabee rendered the
temporary order [**8] denying Sandra Hebert access to Wayne, Dr. Harrison issued a report
concluding that Michael had not caused Wayne’s injury. Rather, the report concluded that
Wayne’s older brother John committed the abuse while Wayne was in Sandra’s custody. Based
on this belief, Dr. Harrison agreed with Judge Huckabee’s decision to [*419] transfer Wayne
to his father’s custody and deny Sandra access to the child. Although the final version
mentioned Dr. Harrison’s recommendation approving of the judge’s order, it did not detail Dr.
Harrison’s reasons.
Finally, Cotts and Grant interviewed Houston attorney Randy Burton, an outspoken critic of
the Houston family courts. Among other things, Burton accused the Harris County family court
judges of practicing cronyism and disregarding the best interests of the children before them.
After these interviews, Cotts and Grant recut the film to include some of the new footage. From
April to September 1991, HBO and JFP’s lawyers reviewed the film, finally allowing the film
to air in October 1991. HBO also agreed to indemnify JFP should a judgment arise from the
film in excess of JFP’s errors-and-omissions insurance coverage.
Women on Trial aired on October 28, 1992. In [**9] addition to the Sandra Hebert and Ivy
Raschke segments, the film included two other stories. In one, another Harris County family
district court judge, Allen Daggett, had transferred custody of Mary Frances Parker’s child to
her ex-husband, a convicted rapist, even though she claimed that he was abusing the child. In
the other, Sherry Nance was convicted of murdering her ex-husband and his father after a Bee
County jury awarded custody of her son to the ex-husband. Nance claimed that she killed her
ex-husband to save her son from continuing sexual abuse. The documentary did not name the
judge in the Bee County case.
Judge Huckabee sued HBO, JFP, Grant, and Burton, claiming that they had defamed him both
by particular statements and by portraying him in general as a judge who knowingly
disregarded children’s best interests. In addition to his claim that the entire documentary
defamed him, Judge Huckabee alleged as false and defamatory these statements: (1) the
Houston family courts were ″filled″ with cases ″irrational in their decisions″ and ″medieval in
their punishment″; (2) ″women who charge their husbands with abuse are often viewed as
mentally unstable and routinely lose custody [**10] of their children″; (3) all the rulings
depicted in the documentary happened in one courthouse; and (4) Randy Burton’s conclusions
in the film that the Houston family courts ″were the last bastion of the good ole’ boy system″
and that the judges in those courts were guilty of ″conscious indifference to the child″ and
″legalized child abuse.″ Judge Huckabee also alleged that the film’s description of the Hebert
case omitted important facts that would have led viewers to conclude that his Hebert order was
justified.
After discovery, HBO moved for summary judgment asserting that: (1) HBO published the
film without actual malice; (2) Judge Huckabee’s claim actually pleaded a cause of action for
                             19 S.W.3d 413, *419; 2000 Tex. LEXIS 43, **10

false light invasion of privacy, which Texas law does not recognize; (3) all the statements
concerning Judge Huckabee were literally or substantially true; (4) these statements were
constitutionally protected statements of opinion; and (5) Women on Trial was privileged as a
fair and reasonable comment on, or criticism of, an official act of a public official and a matter
of public concern. See TEX. CIV. PRAC. & REM. CODE § 73.002(b)(2). After [**11] the trial
court denied HBO’s motion for summary judgment, HBO appealed as a media defendant who
was denied a motion for summary judgment ″arising under the free speech or free press clause
of the First Amendment to the United States Constitution, or Article 1, Section 8, of the Texas
Constitution, or Chapter 73″ of the Texas Civil Practice and Remedies Code. TEX. CIV.
PRAC. & REM. CODE § 51.014(a)(6). The court of appeals, whose jurisdiction was not
challenged, reversed and rendered judgment for HBO on the sole ground that HBO negated
one essential element of Judge Huckabee’s case by conclusively proving that it broadcast
Women on Trial without actual [*420] malice. 995 S.W.2d 152. We granted Judge Huckabee’s
petition for review under our jurisdiction to hear cases appealed under section 51.014(a)(6).
See TEX. GOV’T CODE § 22.225(d).

II

To recover for defamation, a public figure or public official, such as Judge Huckabee, must
prove that the defendant published a false and defamatory statement with actual malice.
WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Carr v. Brasher, 776 S.W.2d
567, 569 (Tex. 1989); [**12] see also New York Times Co. v. Sullivan, 376 U.S. 254, 279-80,
11 L. Ed. 2d 686, 84 S. Ct. 710 (1964). As we resolve this case solely on the issue of whether
HBO negated actual malice as a matter of law, we assume without deciding that the
documentary either expressly or implicitly made false statements about Judge Huckabee. We
also do not reach the issue of whether any of these statements, even if false, were not
defamatory because the documentary’s overall portrayal of Judge Huckabee was substantially
true. See McIlvain v. Jacobs, 794 S.W.2d 14, 16 (Tex. 1990).

Actual malice in a defamation case is a term of art. Unlike common-law malice, it does not
include ill-will, spite, or evil motive. Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). Rather,
to establish actual malice, a plaintiff must prove that the defendant made the statement ″with
knowledge that it was false or with reckless disregard of whether it was true or not.″ New York
Times, 376 U.S. at 279-80. Reckless disregard is also a term of art. To establish reckless
disregard, a public official or public figure must prove that the publisher ″entertained serious
 [**13] doubts as to the truth of his publication.″ St. Amant v. Thompson, 390 U.S. 727, 731,
20 L. Ed. 2d 262, 88 S. Ct. 1323 (1968). Finally, to prevail at trial, a plaintiff must establish
actual malice by clear and convincing evidence. See Bose Corp. v. Consumers Union, Inc., 466
U.S. 485, 511, 80 L. Ed. 2d 502, 104 S. Ct. 1949 (1984); Casso, 776 S.W.2d at 558.

In Texas, under our traditional summary judgment procedure, defendants can obtain summary
judgment only if they conclusively negate one of the elements of the plaintiff’s claim. TEX.
R. CIV. P. 166a(c); Phan Son Van v. Pena, 990 S.W.2d 751, 753 (Tex. 1999); Casso, 776
                                        19 S.W.3d 413, *420; 2000 Tex. LEXIS 43, **13


S.W.2d at 556. 1 A libel defendant can negate actual malice as a matter of law by presenting
evidence that he or she did not publish the statement with knowledge of its falsity or reckless
disregard for its truth. McLemore, 978 S.W.2d at 574; Casso, 776 S.W.2d at 559. Once the
defendant has produced evidence negating actual malice as a matter of law, the burden shifts
to the plaintiff to present controverting proof raising a genuine issue of material [**14] fact.
See TEX. R. CIV. P. 166a(c); Phan Son Van, 990 S.W.2d at 754; City of Houston v. Clear Creek
Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).
Respondents and various amici aligned with their position suggest that we abandon our
traditional summary judgment standard in public-figure defamation cases and adopt the federal
summary judgment standard established in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91
L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Under this standard, ″the appropriate summary
judgment question will be whether the evidence in the record could support a reasonable jury
finding that the plaintiff has shown actual malice by clear and convincing evidence or that the
plaintiff has not.″ Anderson, 477 U.S. at 255-56. [**15] Respondents and amici reason that
because a plaintiff must satisfy [*421] the clear-and-convincing standard to prevail at trial,
logic dictates that this standard should also apply at the summary judgment stage. Adopting the
clear-and-convincing standard at the summary judgment stage, they argue, would also align
Texas practice with most other states. 2 Finally, they contend that the heightened evidentiary
standard is needed at the summary judgment stage to protect media defendants from the costs
associated with defending groundless defamation actions. Failure to protect media organizations
against these costs, they assert, will lead to self-censorship, thereby compromising the First
Amendment’s guarantee of a free press.
    [**16] We decline to adopt the clear-and-convincing requirement at the summary judgment
stage. In Casso v. Brand, 776 S.W.2d 551 (Tex. 1989), we held that neither the United States
Constitution nor the Texas Constitution mandated a special summary judgment procedure in
public-figure defamation cases. Casso, 776 S.W.2d at 555-57. We concluded that the United
1
   HBO’s motion for summary judgment in this case was a traditional motion for summary judgment. See TEX. R. CIV. P. 166a(b).
Therefore, HBO bears the burden of negating actual malice as a matter of law. See Casso, 776 S.W.2d at 556.
2
    See Pemberton v. Birmingham News Co., 482 So. 2d 257, 260 (Ala. 1985); Read v. Phoenix Newspapers, Inc., 169 Ariz. 353, 819
P.2d 939, 942 (Ariz. 1991)(en banc); Southall v. Little Rock Newspapers, Inc., 332 Ark. 123, 964 S.W.2d 187, 193 (Ark. 1998); Reader’s
Digest Ass’n v. Superior Court, 37 Cal. 3d 244, 690 P.2d 610, 614, 208 Cal. Rptr. 137 (Cal. 1984)(en banc); DiLeo v. Koltnow, 200 Colo.
119, 613 P.2d 318, 323 (Colo. 1980)(en banc); Gardner v. Boatright, 216 Ga. App. 755, 455 S.E.2d 847, 848 (Ga. Ct. App. 1995); Jenkins
v. Liberty Newspapers Ltd. Partnership, 89 Haw. 254, 971 P.2d 1089, 1093 (Haw. 1999); Wiemer v. Rankin, 117 Idaho 566, 790 P.2d
347, 357 (Idaho 1990); Heeb v. Smith, 613 N.E.2d 416, 420 (Ind. Ct. App. 1993); Carr v. Bankers Trust Co., 546 N.W.2d 901, 904-05
(Iowa 1996); Knudsen v. Kansas Gas & Elec. Co., 248 Kan. 469, 807 P.2d 71, 81 (Kan. 1991); Sassone v. Elder, 626 So. 2d 345, 351
(La. 1993); Tucci v. Guy Gannett Publishing Co., 464 A.2d 161, 167 (Me. 1983); ELM Med. Laboratory, Inc. v. RKO General, Inc., 403
Mass. 779, 532 N.E.2d 675, 680 (Mass. 1989); Foley v. WCCO Television, Inc., 449 N.W.2d 497, 503 (Minn. Ct. App. 1989); Johnson
v. Delta-Democrat Publishing Co., 531 So. 2d 811, 815 (Miss. 1988); Scacchetti v. Gannett Co., 123 A.D.2d 497, 507 N.Y.S.2d 337, 339
(N.Y. App. Div. 1986); Proffitt v. Greensboro News & Record, Inc., 91 N.C. App. 218, 371 S.E.2d 292, 293-94 (N.C. Ct. App. 1988);
Perez v. Scripps-Howard Broadcasting Co., 35 Ohio St. 3d 215, 520 N.E.2d 198, 202 (Ohio 1988); Ertel v. Patriot-News Co., 544 Pa.
93, 674 A.2d 1038, 1040 (Pa. 1996); Krueger v. Austad, 1996 SD 26, 545 N.W.2d 205, 211 (S.D. 1996); Palmer v. Bennington Sch. Dist.,
Inc., 159 Vt. 31, 615 A.2d 498, 504 (Vt. 1992); Herron v. Tribune Publishing Co., 108 Wn.2d 162, 736 P.2d 249, 255 (Wash. 1987) (en
banc); Long v. Egnor, 176 W. Va. 628, 346 S.E.2d 778, 785-86 (W. Va. 1986); Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 563
N.W.2d 472, 480 (Wis. 1997); Oil, Chem. & Atomic Workers Int’l Union v. Sinclair Oil Corp., 748 P.2d 283, 289 (Wyo. 1987).
                            19 S.W.3d 413, *421; 2000 Tex. LEXIS 43, **16

States Supreme Court’s requirement that a plaintiff come forward with sufficient proof to allow
a jury finding of actual malice by clear-and-convincing evidence was based merely on federal
procedure. See Casso, 776 S.W.2d at 555-56. Although we recognized the importance of
″encouraging free and untrammeled expression on matters of public concern or interest,″ we
believed that the plaintiff’s heavy burden of proving actual malice at trial adequately protected
these important liberty interests. Id. at 557. To some extent, we based our holding in Casso on
the different role of summary judgment in the Texas and federal systems. See id. at 556. At that
time, our state’s summary judgment practice served only the limited purpose of ″eliminating
patently unmeritorious claims and untenable [**17] defenses,’″ id. (quoting Clear Creek Basin
Auth., 589 S.W.2d at 678 n.5), while in the federal system it played an ″integral part″ in
″securing the just, speedy and inexpensive determination of every action.’″ Id. (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting
FED. R. CIV. P. 1)). Although our recent adoption of the no-evidence summary judgment as
an alternate procedure in Texas obviated, to some extent, the differences in summary judgment
procedure between the two systems, our holding in Casso was also consistent with practical
considerations, which remain valid today.
One consideration is the difficulty in adapting review under a heightened evidentiary standard
to Texas summary judgment practice. Requiring the trial court to determine at the summary
judgment stage whether a reasonable juror could find the evidence to be clear and convincing
 [*422] suggests that the trial court must weigh the evidence. See Anderson, 477 U.S. at 266
(Brennan, J., dissenting); Moffatt v. Brown, 751 P.2d 939, 944 (Alaska 1988) (″The
clear-and-convincing test inevitably implicates [**18] a weighing of the evidence, an exercise
that intrudes into the province of the jury.’″ (quoting Dairy Stores, Inc. v. Sentinel Publishing
Co., 104 N.J. 125, 516 A.2d 220, 236 (N.J. 1986))). Texas law has always emphasized that trial
courts must not weigh the evidence at the summary judgment stage. See Gulbenkian v. Penn,
151 Tex. 412, 252 S.W.2d 929, 931 (Tex. 1952); 3 MCDONALD, TEXAS CIVIL PRACTICE
§ 18.26, at 499 (Allen et al., eds. 1992). Instead, a trial court’s only duty at the summary
judgment stage is to determine if a material question of fact exists. See Gulbenkian, 252
S.W.2d at 931. Unless constitutionally mandated, we see no reason to upset this traditional
demarcation between fact-finder and judge by requiring trial courts to weigh the evidence at
the summary judgment stage.

We are reminded that the majority in Anderson insisted that its standard did not require trial
courts to weigh evidence at the summary judgment stage. With all due respect, we agree with
Justice Brennan’s dissenting opinion on this point:
I simply cannot square the [majority’s] direction that the judge ″is not himself to weigh the
evidence″ [**19] with the direction that the judge also bear in mind the ″quantum″ of proof
required and consider whether the evidence is of sufficient ″caliber or quantity″ to meet that
″quantum.″ I would have thought that a determination of the ″caliber and quantity,″ i.e., the
importance and value, of the evidence in light of the ″quantum,″ i.e., the amount ″required,″
could only be performed by weighing the evidence.
                            19 S.W.3d 413, *422; 2000 Tex. LEXIS 43, **19

Anderson, 477 U.S. at 266 (Brennan, J., dissenting)(emphasis in original). Several commentators
have agreed that trial judges cannot determine the ″caliber and quantity″ of evidence without
performing some of the functions of a finder of fact. See Issacharoff & Loewenstein, Second
Thoughts About Summary Judgment, 100 YALE L.J. 73, 85 (1990); Mullenix, Summary
Judgment: Taming the Beast of Burdens, 10 AM. J. TRIAL ADVOC. 433, 462 (1987); (″So
replete is the decision with contradictory pronouncements that opposing counsel can in the
future legitimately cite Anderson’s dicta for completely repugnant propositions.″); Stempel, A
Distorted Mirror: The Supreme Court’s Shimmering View of Summary Judgment, Directed
Verdict, [**20] and the Adjudication Process, 49 OHIO ST. L.J. 95, 115-16 (1988).
Furthermore, the clear-and-convincing standard provides little guidance regarding what
evidence is sufficient for a plaintiff to avoid summary judgment. See Anderson, 477 U.S. at 270
(Rehnquist, J., dissenting). We have defined clear and convincing evidence as ″that measure or
degree of proof which will produce in the mind of the trier of fact a firm belief or conviction
as to the truth of the allegations sought to be established.’″ In re G.M., 596 S.W.2d 846, 847
(Tex. 1980)(quoting State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979)); see also TEX. CIV.
PRAC. & REM. CODE § 41.001(2). Clearly, this standard is vague. Accordingly, we have
been reluctant to require it except in those ″extraordinary circumstances″ when that degree of
proof is mandated by constitutional or statutory requirements. Ellis County State Bank v.
Keever, 888 S.W.2d 790, 792 (Tex. 1994)(clear and convincing proof not required for
malicious prosecution); accord Rhodes v. Cahill, 802 S.W.2d 643, 645 n.2 (Tex. 1990) [**21]
(adverse possession); Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 209 (Tex.
1950)(trespass to try title). On a cold summary judgment record, without having observed a
single witness, it would take keen insight to forecast accurately whether probative evidence
would or would not produce a ″firm belief or conviction″ in the mind of the trier of fact. The
distinction, in a paper record, [*423] between evidence that will merely raise a fact issue and
evidence that will be clear and convincing is generally subtle, if not wholly subjective.
Because of the difficulty faced by a trial judge in applying the clear-and-convincing standard
at the summary judgment stage, Justice Rehnquist predicted that Anderson would ″cause the
decisions of trial judges on summary judgment motions in libel cases to be more erratic and
inconsistent than before.″ Anderson, 477 U.S. at 272-73 (Rehnquist, J., dissenting); see also
Anderson, 477 U.S. at 258 (Brennan, J., dissenting)(″I am unable to divine from the Court’s
opinion how these evidentiary standards are to be considered, or what a trial judge is actually
to do in ruling on a motion for summary judgment.″ (emphasis [**22] in original)); Mullenix,
10 AM. J. TRIAL ADVOC. at 461; Stempel, 49 OHIO ST. L.J. at 180-81. Although we cannot
empirically determine whether this prediction has in fact come to pass, we see no reason to risk
such an outcome by departing from our traditional summary judgment standard, especially
when the heightened standard of proof adequately safeguards the First Amendment rights of
defamation defendants at the trial and appellate stages. After a record has been established at
trial, courts must independently review the record to determine if the jury’s finding of actual
malice was, as a matter of law, supported by clear and convincing evidence. See Doubleday &
Co. v. Rogers, 674 S.W.2d 751, 755 (Tex. 1984)(citing Bose Corp., 466 U.S. at 511). We
                             19 S.W.3d 413, *423; 2000 Tex. LEXIS 43, **22

believe it obvious that this determination may be more easily and accurately made after a trial
on the merits. Cf. Stempel, 49 OHIO ST. L.J. at 177 (″A judicial decision overturning a jury
verdict after trial and deliberation is based on a far more extensive data base than a grant of
summary judgment . . . .″).

We therefore believe that if a fact issue exists at the summary judgment stage, the evaluation
about whether a reasonable [**23] jury would find the plaintiff’s evidence to be clear and
convincing is best made after the facts are fully developed at trial. That most other jurisdictions
have accepted Anderson should not compel us to adopt a standard that is contrary to our
traditional jurisprudence and difficult to apply in practice. As Respondents and amici have
presented no authority that would constitutionally require it, we decline to adopt the
clear-and-convincing standard at the summary judgment stage of a public-figure defamation
case. To the extent that they hold or suggest to the contrary, we disapprove of the decisions in
Rogers v. Cassidy, 946 S.W.2d 439, 446 (Tex. App.--Corpus Christi 1997, no writ); Hill v.
Herald-Post Publishing Co., 877 S.W.2d 774, 781 (Tex. App.--El Paso), rev’d in part on other
grounds, 891 S.W.2d 638 (Tex. 1994); Schauer v. Memorial Care Sys., 856 S.W.2d 437, 446
(Tex. App.--Houston [1st Dist.] 1993, no writ).

III

HBO supported its motion for summary judgment with affidavits from Lee Grant, Sheila
Nevins, Cis Wilson, and Virginia Cotts. Grant’s affidavit stated that she neither believed the
film to have [**24] contained a false statement nor entertained any doubts about the truth of
any statement regarding Judge Huckabee. Her sources for the Sandra Hebert story included the
transcript of the March 1988 hearing, information from Sandra’s current and former lawyers,
and research by Virginia Cotts.

Sheila Nevins’s affidavit stated that as vice-president for documentaries and family programming
for HBO, she relied on the favorable reputations for accuracy and truthfulness of both Grant
and JFP and her own favorable personal experience with their earlier work. She was aware of
Grant and Cotts’s efforts to ensure the film’s accuracy, and she neither believed any statement
in the documentary to be untrue nor harbored any doubts about the film’s truthfulness. Cis
Wilson’s affidavit contained similar statements.

[*424] HBO presented two extensive affidavits from Virginia Cotts. In her first affidavit, Cotts
explained the steps she took in researching the stories presented in Women on Trial. To ensure
that the film’s account of the Hebert case was accurate, she (1) reviewed the transcript from
the March 1988 hearing, (2) interviewed Sandra and her attorneys, (3) viewed all three
videotapes of Wayne [**25] Hebert, (4) reviewed articles in the Houston press describing
problems in the family courts, and (5) read Dr. Harrison’s deposition in the Hebert case. In all,
Cotts reviewed over two thousand pages of documents in connection with the Texas cases.
From this extensive review, Cotts stated that she believed that the film’s depiction of the
Hebert case was accurate and that she had no doubts regarding this account.
                             19 S.W.3d 413, *424; 2000 Tex. LEXIS 43, **25

Cotts’s second affidavit detailed her reasons for doubting Dr. Harrison’s conclusion that
Wayne’s brother was the abuser, such as (1) her own viewing of the videotapes in which Wayne
identified his father as the abuser; (2) the improbability of Harrison’s theory that Wayne’s older
brother John had injured him using a favorite toy; (3) the fact that Wayne’s initial description
of events was similar to stories that John had told Cotts about abuse from his father; (4) Dr.
Harrison’s own statement in a scholarly paper that children often recant after disclosing sexual
abuse; and (5) the fact that Wayne had sustained a similar injury once before. Cotts buttressed
her conclusion by attaching her own notes from the Harrison interview, indicating that she did
not believe [**26] his explanation even as the interview was in progress.
Because these affidavits are from interested witnesses, they will negate actual malice as a
matter of law only if they are ″clear, positive, and direct, otherwise credible and free from
contradictions and inconsistencies, and [able to be] readily controverted.″ TEX. R. CIV. P.
166a(c); see also Casso, 776 S.W.2d at 558. In actual malice cases, such affidavits must
establish the defendant’s belief in the challenged statements’ truth and provide a plausible
basis for this belief. See McLemore, 978 S.W.2d at 574; Carr, 776 S.W.2d at 571. As all four
of HBO’s affidavits satisfied the Rule 166a(c) requirements, HBO negated actual malice as a
matter of law.
Thus, the burden shifted to Judge Huckabee to present evidence to raise a fact issue. He offered
six categories of allegedly controverting evidence: (1) HBO and JFP’s alleged desire to portray
him in an unflattering light; (2) editorial choices by HBO and JFP that left a false impression
of events; (3) the filmmakers’ disregard for Judge Huckabee’s and Dr. Harrison’s explanations
for Judge Huckabee’s order; (4) JFP’s and HBO’s [**27] alleged purposeful avoidance of the
truth; (5) HBO’s extensive legal review of the film, the film’s many rewrites, and the
indemnification agreement between HBO and JFP; and (6) HBO’s and JFP’s decision to air the
film despite the knowledge that it contained inaccurate statements. In determining whether the
evidence presents a fact issue, we assume that all facts favorable to the nonmovant are true and
indulge all reasonable inferences in that party’s favor. See Phan Son Van, 990 S.W.2d at 753.
Even under this lenient standard, we are persuaded that Judge Huckabee has not raised a
genuine issue of material fact on any of his categories.
1. HBO’s desire to portray Judge Huckabee in an unflattering light.
In claiming that JFP and HBO intended to portray him unfairly, Judge Huckabee first points
to Virginia Cotts’s three-page summary of the Hebert case describing him to HBO executives
Sheila Nevins and Cis Wilson as a ″corrupt judge.″ He also points to Cotts’s September 1991
status report regarding the disagreement between Grant and Nevins over the film’s artistic
direction. Neither of these documents, however, indicates actual malice. While Cotts’s original
memo [**28] might suggest personal ill-will toward [*425] Judge Huckabee, nothing in either
of these documents suggests that Cotts or Grant had any doubts about the truth of the
broadcast. See Carr, 776 S.W.2d at 571; Casso, 776 S.W.2d at 558.
Likewise, Nevins’s insistence that the filmmakers focus on divorce from the women’s
perspective is no evidence of actual malice. Without more, mere evidence of pressure to
                             19 S.W.3d 413, *425; 2000 Tex. LEXIS 43, **28

produce stories from a particular point of view, even when they are hard-hitting or
sensationalistic, is no evidence of actual malice. See Tavoulareas v. Piro, 260 U.S. App. D.C.
39, 817 F.2d 762, 796 (D.C. Cir. 1985)(en banc); Perez v. Scripps-Howard Broadcasting Co.,
35 Ohio St. 3d 215, 520 N.E.2d 198, 204 (Ohio 1988)(both holding that editorial pressure to
produce sensationalistic stories is not evidence of actual malice); see also Harte-Hanks
Communications, Inc. v. Connaughton, 491 U.S. 657, 667, 105 L. Ed. 2d 562, 109 S. Ct. 2678
(1989)(″Nor can the fact that the defendant published the defamatory material in order to
increase its profits suffice to prove actual malice.″). Although evidence that HBO directed
 [**29] Grant to produce a sensational story without regard for its truth would raise a fact
question, Judge Huckabee has not produced any such evidence. See Tavoulareas, 817 F.2d at
796.

2. Editorial choices.

Next, Judge Huckabee complains of HBO’s choice of material for the documentary. His
principal complaint is that Women on Trial did not discuss much of the evidence presented at
the 1988 Hebert hearing, including (1) Wayne’s initial treating physician’s testimony that
Wayne had denied that his father caused the injury; (2) Child Protective Services case worker
Wilma Smith’s testimony that in his videotaped interview Wayne said that his mother told him
to say that his father had abused him (although Wayne still maintained that such abuse
occurred); (3) Smith’s further testimony that in a subsequent interview with Wayne, he told her
that his father had not abused him during the Christmas holidays, but that his father had
touched his private area in July 1987; (4) Smith and social worker Cheryl Bennett’s testimony
that Wayne and his brother John often fought after Wayne returned from Michael; (5) Bennett’s
testimony that Sandra told her that she preferred that [**30] Michael not be allowed visitation
rights and had inquired about what was necessary to terminate them; and (6) Wayne’s
grandmother’s testimony that Michael had not bathed Wayne during their visit to her home. By
failing to include this evidence, Judge Huckabee claims that HBO intentionally made it look
like he was presented with an open-and-shut case against Michael Hebert, when in fact much
of the evidence justified his order.

Further, Judge Huckabee complains about the film’s failure to clarify two facts: first, that his
statements in the interview with Grant came in response to questions about a ″hypothetical″
case; and second, that Sandra did not move to modify the temporary order in the three years
after the court of appeals denied her petition for mandamus. Because of all these omissions,
Judge Huckabee claims that the viewers saw him falsely as a judge who flouted his legal duty
to render decisions in the best interests of children. See TEX. FAM. CODE § 153.002.

A broadcaster’s omission of facts may be actionable if it so distorts the viewers’ perception that
they receive a substantially false impression of the event. See Golden Bear Distrib. Sys. v.
Chase Revel, Inc., 708 F.2d 944, 949 (5th Cir. 1983) [**31] (applying Texas law); Express
Publishing Co. v. Gonzalez, 350 S.W.2d 589, 592 (Tex. Civ. App.--Eastland 1961, writ ref’d
n.r.e.); see also Toney v. WCCO Television Cable & Satellite, Inc., 85 F.3d 383, 395 (8th Cir.
                              19 S.W.3d 413, *425; 2000 Tex. LEXIS 43, **31

1996)(Byron White, J.)(applying Minnesota law); Memphis Publishing Co. v. Nichols, 569
S.W.2d 412, 419-20 (Tenn. 1975); KEETON ET AL., PROSSER & KEETON: LAW OF
TORTS, § 116, at 117 (5th ed. Supp. 1988). But see American Broad. Cos. v. Gill, 6 S.W.3d
19, 43 [*426] (Tex. App.--San Antonio 1999, pet. denied); Evans v. Dolcefino, 986 S.W.2d 69,
77 (Tex. App.--Houston [1st Dist.] 1999, no pet.); Hardwick v. Houston Lighting & Power, 943
S.W.2d 183, 185 (Tex. App.--Houston [1st Dist.] 1997, no writ)(all holding that there is no
claim for implied libel if all the facts in a story are literally true). As a public official, however,
Judge Huckabee may recover for such an omission only by making the familiar showing that
the publisher selected the material with actual malice, i.e., the awareness that the omission
could create a substantially false impression. See Perez v. Scripps-Howard Broadcasting Co.,
35 Ohio St. 3d 215, 520 N.E.2d 198, 204 (Ohio 1988); [**32] Dixon v. Ogden Newspapers,
Inc., 187 W. Va. 120, 416 S.E.2d 237, 244 (W. Va. 1992); see also Brasslett v. Cota, 761 F.2d
827, 843 (1st Cir. 1985); Pierce v. Capital Cities Communications, Inc., 427 F. Supp. 180, 186
(E.D. Pa. 1977), aff’d, 576 F.2d 495 (3d Cir. 1978); Diesen v. Hessburg, 455 N.W.2d 446,
453-54 (Minn. 1990)(dicta). This standard does not, therefore, prevent liability if a media
organization selectively omits facts from the record to portray falsely a judge’s opinion as
arbitrary and unreasonable. Even if a defamation defendant is not persuaded by the evidence
which supports a judge’s decision, he or she may not deliberately omit all reference to this
evidence in order to portray the decision as arbitrary, when in fact it was not. But in the absence
of evidence that the defendant selected the material to portray the judge’s record falsely, the
First Amendment protects the organization’s choice of which material to include in its
broadcast. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258, 41 L. Ed. 2d 730,
94 S. Ct. 2831 (1974)(striking down a law requiring [**33] newspapers to give political
candidates a right to reply to negative editorials); Levan v. Capital Cities/ABC, Inc., 190 F.3d
1230, 1243 (11th Cir. 1999).

In this case, there is no evidence that HBO chose its material for the broadcast with actual
malice. We recognize that an omission may be so glaring and may result in such a gross
distortion that by itself it constitutes some evidence of actual malice. For example, when an
article reported that an FBI memorandum mentioned plaintiff several times in connection with
Jimmy Hoffa’s disappearance, the newspaper’s decision not to report that the memorandum
also cleared plaintiff of wrongdoing was held to be evidence of actual malice. See Schiavone
Constr. Co. v. Time, Inc., 847 F.2d 1069, 1092 (3d Cir. 1987). In such a case, the omission so
changes the character of the story that one could infer that the defendant knew, or at least
suspected, that the omission would convey a false impression. Here, HBO’s omissions did not
change the character of the story to such an extent. Although the facts omitted might or might
not have led a reasonable viewer to suspend judgment or even to reach an opposite conclusion
 [**34] regarding Judge Huckabee’s order, their omission did not grossly distort the story. At
most, HBO’s failure to capture accurately all the story’s details suggests an error in judgment,
which is no evidence of actual malice. See Time, Inc. v. Pape, 401 U.S. 279, 290, 292, 28 L.
Ed. 2d 45, 91 S. Ct. 633 (1971)(magazine’s failure to convey all the subtleties of a long,
complicated government document was no evidence of actual malice); El Paso Times, Inc. v.
                                         19 S.W.3d 413, *426; 2000 Tex. LEXIS 43, **34

Trexler, 447 S.W.2d 403, 406 (Tex. 1969). Moreover, the broadcasters did acknowledge Judge
Huckabee’s explanation for his decision when they aired the portion of the interview
responding to questions about the ″hypothetical″ Hebert case. Although the documentary did
not convey Judge Huckabee’s position as strongly as it could have, the law did not require it
to do so. See Levan, 190 F.3d at 1243; Brown v. Herald Co., 698 F.2d 949, 951 (8th Cir.
1983)(per curiam).
Judge Huckabee also complains about HBO’s editing choices in the Raschke segment. There,
Grant interviewed Steve Raschke, Ivy Raschke’s husband, about Dr. Charles Martin, the
court-appointed psychologist [**35] in the Roberts/Raschke [*427] case. During the
discussion, Steve claimed that Dr. Martin had himself been accused of child abuse. 3 After this
discussion, the documentary cut immediately to Judge Huckabee’s photo, which led into a
segment of Grant’s interview with the judge. Judge Huckabee claims that this quick
juxtaposition reflected HBO’s attempt to paint him falsely as a child abuser. Despite the sudden
cut to Judge Huckabee’s photo, the documentary made it clear that the alleged abuser was Dr.
Martin, not the judge. On these facts, there is no evidence of actual malice.
3. Harrison and Huckabee interviews.
Next, Judge Huckabee argues that after Grant and Cotts interviewed [**36] him and Dr.
Harrison, they should have been put on notice that the documentary was false. That HBO
nevertheless persisted in broadcasting it, they contend, is evidence of actual malice.
That Judge Huckabee offered an explanation for his decision, however, is not evidence that the
filmmakers or HBO either believed it or had reason to doubt the truth of their broadcast.
Denials by public figures to media charges are part and parcel of free discussion about public
affairs. The mere fact that a defamation defendant knows that the public figure has denied
harmful allegations or offered an alternative explanation of events is not evidence that the
defendant doubted the allegations. As the United States Supreme Court has noted, ″such
denials are so commonplace in the world of polemical charge and countercharge that, in
themselves, they hardly alert the conscientious reporter to the likelihood of error.’″ Harte-Hanks,
491 U.S. at 692 n.37 (quoting Edwards v. National Audubon Soc’y, 556 F.2d 113, 121 (2d Cir.
1977)). Moreover, as we noted earlier, the filmmakers did not reject Judge Huckabee’s position
entirely, but broadcast a portion of the interview in [**37] which he explained the reasons for
denying parents access to their children.
Dr. Harrison’s opinion that Judge Huckabee’s order was justified also did not raise a fact issue
as to actual malice. Because Dr. Harrison was an expert in the field of child psychology, Judge
3
    The relevant part of the transcript reads as follows.
Steve Raschke: His own child was taken away. I believe the papers said that, that he’d beat him with a dog leash or something like that.
Grant: So he turned out to be an abuser?
Steve Raschke: He was really an abuser himself. Yes.
[Cut to photo of Judge Huckabee.]
                            19 S.W.3d 413, *427; 2000 Tex. LEXIS 43, **37

Huckabee argues that his report should have given the filmmakers doubts about the film’s
suggestion that Judge Huckabee’s decision to take Wayne away from Sandra was unjustified.
But the mere fact that an expert has a view on a dispute is not evidence that a defamation
defendant who offers a different view does so with actual malice, unless the record shows that
the expert’s reasoning caused the defendant to experience substantial doubts regarding the
story’s truthfulness. See Peter Scalamandre & Sons, Inc. v. Kaufman, 113 F.3d 556, 562 (5th
Cir. 1997)(fact that an expert holds a belief does not foreclose debate on that belief). Here,
Cotts’s second affidavit and her notes after interviewing Dr. Harrison make it clear that she had
credible reasons for rejecting Dr. Harrison’s view of the case. Nor did the filmmakers’ failure
to discuss Dr. Harrison’s theory that Wayne’s brother was the real abuser amount [**38] to a
false characterization of the evidence before Judge Huckabee. See supra Part III(2). To the
contrary, Dr. Harrison did not file the report containing this theory with the court until four
months after the initial hearing.
4. Purposeful avoidance.
Next, Judge Huckabee contends that the filmmakers purposefully avoided discovering the truth
about the Hebert case. Under Harte-Hanks, evidence [*428] showing that HBO purposefully
avoided the truth would be some evidence of actual malice. See 491 U.S. at 692. In
Harte-Hanks, a newspaper published a story claiming that Daniel Connaughton, a candidate
for municipal judge, had promised two sisters, Alice Thompson and Patsy Stephens, jobs and
vacations in return for making allegations of corruption against the incumbent judge’s court
administrator. Harte-Hanks, 491 U.S. at 660. The newspaper’s only source for this story was
Thompson. Before the newspaper published the story, Connaughton produced five witnesses
who were present when Thompson claimed that Connaughton offered her and Stephens the
gifts. All the witnesses denied Thompson’s story. Harte-Hanks, 491 U.S. at 691. Connaughton
also produced a tape recording [**39] of the conversation in which Thompson accused the
administrator of corruption. Harte-Hanks, 491 U.S. at 683. The newspaper failed to listen to
this recording even though it would have confirmed or denied many of Thompson’s claims,
such as her claims that Connaughton had selectively turned the recorder on and off during
various parts of the interview and that her allegations of corruption against Xthe court
administrator had come in response to leading questions from him. Id. More importantly, the
newspaper failed to interview Stephens, the one person not associated with Connaughton who
could have confirmed or denied Thompson’s allegations against Connaughton. Harte-Hanks,
491 U.S. at 691-92. According to the Court, the newspaper’s failure to consult the two sources
that could have objectively verified the story was evidence that the newspaper purposefully
avoided learning facts that would have shown the story to be false. Harte-Hanks, 491 U.S. at
692. Upholding a jury verdict against the newspaper, the Court held that this purposeful
avoidance of the truth was enough to suggest that the newspaper doubted the story’s accuracy,
and hence was evidence of actual malice. Id.
Judge [**40] Huckabee has not presented a purposeful avoidance case. Unlike Harte-Hanks,
in which the newspaper based its story on the testimony of a single unreliable source, here the
                                         19 S.W.3d 413, *428; 2000 Tex. LEXIS 43, **40

summary judgment evidence reveals that the filmmakers interviewed several people on both
sides of the story, including Judge Huckabee and Dr. Harrison. They also read, among other
documents, the transcript of the Hebert hearing. Such extensive research precludes a finding
of purposeful avoidance. See Levan, 190 F.3d at 1243; Perk v. Reader’s Digest Ass’n, 931 F.2d
408, 411-12 (6th Cir. 1991)(both distinguishing Harte-Hanks on the ground that the stories at
issue were supported by many sources). Although the filmmakers did not interview Michael
Hebert, Robert Roberts, or their lawyers, they were not required to continue their research until
they could find one more person who agreed with Judge Huckabee’s Hebert order. 4 See Levan,
190 F.3d at 1243 (failure to track down every possible source is not purposeful avoidance).
Further, unlike Harte-Hanks, no source could have easily proved or disproved the documentary’s
allegations. Thus, the purposeful [**41] avoidance theory does not apply. See Levan, 190 F.3d
at 1243; Perk, 931 F.2d at 412.

5. Legal Review, Rewrites, and Indemnification

Next, we turn to the evidence that Judge Huckabee believes established ″institutional doubt″
on the part of HBO regarding the truth of Women on Trial. According to Judge Huckabee,
HBO’s extensive legal review of the film, the editorial rewrites that accompanied this review,
and the indemnification agreement between HBO and JFP all suggest that HBO entertained
serious doubts about the film’s content. We disagree.

    [*429] That the film underwent a lengthy legal review does not by itself provide evidence of
actual malice. HBO could have wished merely to confirm the film’s controversial and
potentially damaging allegations before its [**42] release. See McFarlane v. Sheridan Square
Press, Inc., 320 U.S. App. D.C. 40, 91 F.3d 1501, 1512 (D.C. Cir. 1996)(lawyers’ review was
not evidence of actual malice). This same conclusion also applies to the indemnification
agreement. Judge Huckabee can point to no evidence that JFP and HBO entered into the
agreement because they entertained serious doubts about the film’s truthfulness. Individuals
and business organizations enter into indemnification agreements for various reasons; doing
so, without more, simply presents no evidence of actual malice.

6. Knowing inaccuracies.

Finally, Judge Huckabee claims that inaccuracies in Women on Trial present evidence of actual
malice. First, Judge Huckabee points to this language in the film’s conclusion: ″If these rulings
can happen in one family courthouse in one county of one great state, what is happening in the
rest of this country?″ In fact, one of these cases occurred in Bee County, not Harris County.
As proof that HBO knew this statement was false, Judge Huckabee points to Cis Wilson’s
notes on a memo discussing HBO’s promotional strategy for the film, which stated that the
rulings in the film had occurred in a [**43] ″single family court.″ On her copy, Wilson circled
the ″single family court″ statement and wrote the words ″Daggatt″ [sic] and ″Huckaby″ [sic].
4
   In her deposition, Grant claims that she did attempt to schedule an interview with Michael Hebert, but that this interview fell through
because Hebert would not agree to be interviewed without his attorney present.
                                          19 S.W.3d 413, *429; 2000 Tex. LEXIS 43, **43

Wilson stated in her deposition that these notations indicated her knowledge that the memo’s
″single family court″ statement could be false.

Judge Huckabee claims that Wilson’s knowledge that the memo’s ″single family court″
statement could be false implies that she knew that the documentary’s ″one family courthouse″
statement could be false. 5 Regardless of the falsity of the statement, however, it was not
defamatory to Judge Huckabee. The documentary neither stated nor implied that Judge
Huckabee presided over all of these cases. In fact, the film as a whole made it clear that
different judges were responsible for the rulings portrayed therein. See Goodrich v. Reporter
Publishing Co., 199 S.W.2d 228, 229 (Tex. App.--El Paso 1946, writ ref’d)(to determine
whether a statement is defamatory, one must consider the publication as a whole). The
statement was thus a criticism of the family courts in general and not of Judge Huckabee in
particular and, as a result, was not defamatory. See Newspapers, Inc. v. Matthews, 161 Tex.
284, 339 S.W.2d 890, 893 (Tex. 1960) [**44] (to be defamatory, a statement must be directed
at the plaintiff). Because the statement was not defamatory, Wilson’s alleged knowledge of its
falsity was irrelevant. See Tavoulareas, 817 F.2d at 794 (actual malice must be in conjunction
with a defamatory statement).

A second knowing inaccuracy, Judge Huckabee claims, is the film’s statement that, in the
Houston family courts, ″women who charge their husbands with abuse are often viewed as
mentally unstable and routinely lose custody of their children.″ Judge Huckabee charges that
the filmmakers knew that [**45] this statement was false because he had told them that in only
four cases had he entered an order denying all access to one parent, only two of which were
against the mothers. Despite Judge Huckabee’s protests to the contrary, media accounts on
which the filmmakers had relied reported that such denials of custody were routine. 6 [**46]
The filmmakers’ interviews [*430] with Burton, Reynolds, and other advocates of
family-court reform confirmed these accounts. The filmmakers reasonably could have
concluded, therefore, that such denials of custody occurred routinely. As we have already
noted, Judge Huckabee’s denial of this allegation is no evidence that the filmmakers
experienced substantial doubts about the film’s truth. Because Judge Huckabee did not offer

5
    It is not entirely clear that the statement was false. The documentary stated that all the rulings it portrayed occurred in a single family
courthouse. The Nance segment arguably did not concern a ruling because that segment discussed the mother’s reaction to a jury verdict
awarding custody to the father, whom she believed to have been abusive. Nevertheless, for purposes of this opinion, we assume the
statement to have been false.
6
   For example, an article that Cotts relied upon stated that ″mothers who make claims of sexual abuse in divorce proceedings often
lose custody as a result . . . . The courts rule the mothers are the real abusers for making their children undergo physical and psychological
evaluation.″ Leslie Sowers, Courts, Investigators Make Uneasy Partners, HOUS. CHRON., Nov. 11, 1990, at 1G. Another article
reported that according to Randy Burton, charges of sexual abuse are ″presumed not true.″ Ruth Piller, Family Courts Pose Financial
Burden in Divorce Cases, HOUS. CHRON., Aug. 25, 1991, at 38A. The article went on to report that Marie Munier, the head of the
Harris County District Attorney’s family criminal law division, stated that she had ″spoken to several women who said their attorneys
advised them to keep allegations of child abuse out of court.″ Id. Several other media accounts which the filmmakers consulted made
similar charges.
                                        19 S.W.3d 413, *430; 2000 Tex. LEXIS 43, **46


any other evidence that the filmmakers seriously doubted this allegation, he failed to raise a
fact issue on actual malice. 7

***

Because HBO’s affidavits negated actual malice as a matter of law, and because none of Judge
Huckabee’s proffered evidence raised a fact issue regarding actual malice, we affirm the
judgment of the court of appeals.

Thomas R. Phillips

Chief Justice

Opinion delivered:

May 4, 2000

Dissent by: NATHAN [**47] L. HECHT

Dissent

JUSTICE HECHT, dissenting.

Since a public figure cannot recover damages for defamation without clear and convincing
evidence that the defendant acted with actual malice, 1 [**48] I would hold, like the United
States Supreme Court 2 and the courts of thirty-seven states, 3 that he likewise [*431] cannot
7
    Further, it is not clear that Judge Huckabee’s statement that he had only denied mothers access in two cases actually rebuts the
documentary’s charge that mothers who claim child abuse routinely lose custody of their children. Losing all access to one’s children
affects a parent’s rights to a much greater degree than merely losing primary custody. See TEX. FAM. CODE § 153.192 (establishing
the rights of a possessory conservator). Moreover, the documentary’s claim that these mothers routinely lose custody was directed at the
Harris County family courts in general and not only Judge Huckabee. Even if the filmmakers had believed Judge Huckabee, they still
may have believed that denials of custody routinely occurred in the family-court system.
1
   Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 659, 105 L. Ed. 2d 562, 109 S. Ct. 2678 (1989) (citing New York
Times Co. v. Sullivan, 376 U.S. 254, 279-280, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964)).
2
    Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
3
   Camp v. Yeager, 601 So. 2d 924, 927 (Ala. 1992); Read v. Phoenix Newspapers, Inc., 169 Ariz. 353, 819 P.2d 939, 942 (Ariz. 1991);
Southall v. Little Rock Newspapers, Inc., 332 Ark. 123, 964 S.W.2d 187, 193 (Ark. 1998); Reader’s Digest Ass’n, Inc. v. Superior Court,
37 Cal. 3d 244, 690 P.2d 610, 614, 208 Cal. Rptr. 137 (Cal. 1984) (predating Liberty Lobby); DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d
318, 323 (Colo. 1980) (predating Liberty Lobby); Jones v. New Haven Register, Inc., 2000 Conn. Super. LEXIS 220, No. 393657, 2000
WL 157704, at *8 (Conn. Super. Ct. Jan. 31, 2000); United Vanguard Fund, Inc. v. Takecare, Inc., 693 A.2d 1076, 1080 n. 15 (Del. 1997)
(applying substantive evidentiary burden at summary judgment stage in breach of contract suit, relying on Liberty Lobby); Cronley v.
Pensacola News-Journal, Inc., 561 So. 2d 402, 405 (Fla. Dist. Ct. App. 1990); Gardner v. Boatright, 216 Ga. App. 755, 455 S.E.2d 847,
848 (Ga. Ct. App. 1995); Jenkins v. Liberty Newspapers Ltd. Partnership, 89 Haw. 254, 971 P.2d 1089, 1093 (Haw. 1999); Wiemer v.
Rankin, 117 Idaho 566, 790 P.2d 347, 355-57 (Idaho 1990); Davis v. Keystone Printing Serv., Inc., 155 Ill. App. 3d 309, 507 N.E.2d 1358,
1367, 108 Ill. Dec. 17 (Ill. 1987); Carr v. Bankers Trust Co., 546 N.W.2d 901, 904 (Iowa 1996); Knudsen v. Kansas Gas & Elec. Co.,
248 Kan. 469, 807 P.2d 71, 81 (Kan. 1991); Warford v. Lexington Herald-Leader Co., 789 S.W.2d 758, 771 (Ky. 1990); Sassone v. Elder,
626 So. 2d 345, 352 (La. 1993); Tucci v. Guy Gannett Publishing Co., 464 A.2d 161, 166 (Me. 1983) (predating Liberty Lobby);
Chesapeake Publishing Corp. v. Williams, 339 Md. 285, 661 A.2d 1169, 1178 (Md. 1995); ELM Medical Lab., Inc. v. RKO Gen., Inc.,
                                        19 S.W.3d 413, *431; 2000 Tex. LEXIS 43, **48

defeat a motion for summary judgment without evidence of the same quality and quantity. This
does not mean that the plaintiff in such a case must prove actual malice in response to the
defendant’s motion for summary judgment. It means only that once the defendant has adduced
summary judgment evidence that it did not act with actual malice, the plaintiff, in order to raise
a genuine issue of material fact precluding summary judgment, must produce some evidence
that if believed, and without regard to the defendant’s evidence, would clearly and
convincingly show that the defendant did act with actual malice. It is not enough for the
plaintiff to produce merely some evidence -- more than a scintilla -- as it would be in other
contexts.
    [**49] This holding is, in my view, dictated by Rule 166a of the Texas Rules of Civil
Procedure, which requires evidence showing a genuine issue of material fact to defeat a motion
for summary judgment that should otherwise be granted. 4 Evidence at trial that is less than
clear and convincing does not raise an issue of actual malice for a fact finder to decide, and
the same evidence should have no greater effect in summary judgment proceedings. In keeping
with Rule 166a’s policy of conserving the resources of litigants and courts by sparing them a
trial when a party cannot show how he is going to raise an issue to be determined by a fact
finder, a public figure should not be able to avoid summary judgment in a defamation suit
without clear and convincing evidence of actual malice.
The Court’s answer to these arguments is that applying an elevated evidentiary standard in
summary judgment proceedings is too difficult for Texas trial judges to do. Yet the federal
courts and courts in [**50] thirty-seven of thirty-nine states in which the issue has been
decided are doing just that, and they seem to be managing. Only two states, Texas and Alaska,
refuse to assess summary judgment evidence by the clear-and-convincing standard. I do not see
why state trial judges in Texas cannot do what federal trial judges in Texas and state trial judges
across America are doing. I would abandon the position the Court maintains today and allow
Alaska the distinction of being the last adherent to a rule thoroughly repudiated by American
jurisprudence.
403 Mass. 779, 532 N.E.2d 675, 680 (Mass. 1989) (abrogated by statute on other grounds, see United Truck Leasing Corp. v. Geltman
406 Mass. 811, 551 N.E.2d 20 (Mass. 1990)); Ireland v. Edwards, 230 Mich. App. 607, 584 N.W.2d 632, 640 (Mich. Ct. App. 1998);
Foley v. WCCO Television, Inc., 449 N.W.2d 497, 504 (Minn. Ct. App. 1989); Johnson v. Delta-Democrat Publishing Co., 531 So. 2d
811, 815 (Miss. 1988); Lopez-Vizcaino v. Action Bail Bonds, Inc., 3 S.W.3d 891, 893 (Mo. Ct. App. 1999) (applying ″clear and
convincing″ standard to summary-judgment motion in a punitive damages case, relying on Liberty Lobby); Brill v. Guardian Life Ins.
Co. of America, 142 N.J. 520, 666 A.2d 146, 153 (N.J. 1995); Freeman v. Johnston, 84 N.Y.2d 52, 637 N.E.2d 268, 270, 614 N.Y.S.2d
377 (N.Y. 1994); Gaunt v. Pittaway, 135 N.C. App. 442, 520 S.E.2d 603, 608 (N.C. Ct. App. 1999); State Bank of Kenmare v. Lindberg,
471 N.W.2d 470, 475 (N.D. 1991) (applying ″clear and convincing″ standard to summary-judgment motion in a fraud case, relying on
Liberty Lobby); Perez v. Scripps-Howard Broadcasting Co., 35 Ohio St. 3d 215, 520 N.E.2d 198, 202 (Ohio 1988); Herbert v. Oklahoma
Christian Coalition, 1999 OK 90, 992 P.2d 322, 328 (Okla. 2000); Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038, 1042 (Pa. 1996);
Krueger v. Austad, 1996 SD 26, 545 N.W.2d 205, 211 (S.D. 1996); Stewart v. Peterson, 1988 Tenn. App. LEXIS 784, No. 1184, 1988
WL 130313, at *5 (Tenn. Ct. App. Dec. 7, 1988); Andalex Resources, Inc. v. Myers, 871 P.2d 1041, 1046 (Utah Ct. App. 1994) (applying
″clear and convincing″ standard to summary-judgment motion in a fraud case, relying on Liberty Lobby); Palmer v. Bennington Sch.
Dist., 159 Vt. 31, 615 A.2d 498, 504 (Vt. 1992); Herron v. Tribune Publishing Co., 108 Wn.2d 162, 736 P.2d 249, 255 (Wash. 1987);
Crain v. Lightner, 178 W. Va. 765, 364 S.E.2d 778, 782 n.1 (W. Va. 1987); Oil, Chem. & Atomic Workers Int’l Union v. Sinclair Oil Corp.,
748 P.2d 283, 288-89 (Wyo. 1987).
4
     TEX. R. CIV. P. 166a(c), (i).
                                         19 S.W.3d 413, *432; 2000 Tex. LEXIS 43, **50

    [*432] The Court’s extended analysis of the summary judgment record in this case shows, I
think, that the plaintiff produced some evidence that the defendant acted with actual malice. To
reach the contrary conclusion, the Court without admitting it applies a clear-and-convincing
standard which, I agree, plaintiff has not met. Because I would raise the standard, I would
remand the case to give the plaintiff a fair opportunity to produce clear and convincing
evidence of actual malice. Accordingly, I respectfully dissent.
I
The United States Supreme Court has held that the First Amendment does not permit ″[a]
public figure [to] recover [**51] damages for a defamatory falsehood without clear and
convincing proof that the false ’statement was made with ″actual malice″ -- that is, with
knowledge that it was false or with reckless disregard of whether it was false or not.’″ 5
Moreover, the Supreme Court has held, ″judges, as expositors of the Constitution, must
independently decide whether the evidence in the record is sufficient to cross the constitutional
threshold that bars the entry of any judgment that is not supported by clear and convincing
proof of ’actual malice.’″ 6 [**52] Thus, judges must apply the elevated evidentiary standard
in deciding motions for judgment as a matter of law (including motions for directed or
instructed verdict and for judgment notwithstanding the verdict) and on appeal. Because these
rules are entailed by the United States Constitution, they govern proceedings in state as well
as federal courts. 7
In Anderson v. Liberty Lobby, Inc., the Supreme Court held that Rule 56 of the Federal Rules
of Civil Procedure requires application of this same clear-and-convincing standard to motions
for summary judgment in defamation suits by public figures. 8 The Court explained:
Just as the ″convincing″ clarity requirement is relevant in ruling on a motion for directed
verdict, it is relevant in ruling on a motion for summary judgment. When determining if a
genuine factual issue as to actual malice exists in a libel suit brought by a public figure, a trial
judge must bear in mind the actual quantum and quality of proof necessary to support liability
under [New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 11 L. Ed. 2d 686, 84 S. Ct. 710
(1964)]. For example, [**53] there is no genuine issue [of material fact precluding summary
judgment] if the evidence presented in the opposing affidavits is of insufficient caliber or
quantity to allow a rational finder of fact to find actual malice by clear and convincing
evidence.
Thus, in ruling on a motion for summary judgment, the judge must view the evidence presented
through the prism of the substantive evidentiary burden. This conclusion is mandated by the
nature of this determination. The question here is whether a jury could reasonably find either
5
     Harte-Hanks, 491 U.S. at 659 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964)).
6
     Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 511, 80 L. Ed. 2d 502, 104 S. Ct. 1949 (1984).
7
     U.S. CONST. art. VI, P 2.
8
     Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
                                        19 S.W.3d 413, *432; 2000 Tex. LEXIS 43, **53

that the plaintiff proved his case by the quality and quantity of evidence required by the
governing law or that he did not. Whether a jury could reasonably find for either party,
however, cannot be defined except by the criteria governing what evidence would enable the
jury to find for either the plaintiff or the defendant: It makes no sense to say that a jury could
reasonably find for either party without some benchmark as to what standards govern its
deliberations and within what boundaries [*433] its ultimate decision must fall, and these
standards and boundaries are in fact provided by the applicable evidentiary standards. 9

    [**54] Because application of the clear-and-convincing standard of proof to summary
judgment proceedings in public-figure defamation cases is required only by federal procedural
rules and not by the First Amendment, state courts are free to apply a lesser standard in denying
a defendant summary judgment, even though they must apply the elevated standard in finally
awarding damages. But because the basic logic of Liberty Lobby is sound -- that a genuine
issue of fact cannot be raised without evidence tending to prove that fact, which for actual
malice is evidence that is clear and convincing -- courts in thirty-seven states 10 assess the
evidence in summary judgment proceedings by the same standard applicable at trial in libel
cases or other actions in which plaintiffs face an elevated standard of proof. Nine states have
not addressed the issue, 11 and the decisions in two others are inconclusive. 12 Only this Court,
and the courts of one other state, Alaska, 13 stubbornly adhere to the rule that a public-figure
plaintiff in a defamation case may defeat a defendant’s motion for summary judgment with
evidence of actual malice that is less than clear and convincing, even though a plaintiff [**55]
cannot prevail at trial with such evidence.

II

This Court first declined to follow Liberty Lobby eleven years ago in Casso [**56] v. Brand.
14
   [**57] Although the relevant language of the Texas summary judgment rule, Rule 166a, 15


9
     Anderson, 477 U.S. at 254-255.
10
     See supra note 3.
11
     The nine states that have not addressed the issue are Montana, Nebraska, Nevada, New Hampshire, New Mexico, Oregon, Rhode
Island, South Carolina and Virginia.
12
    See Kitco, Inc. v. Corporation for General Trade, 706 N.E.2d 581, 588 n.1 (Ind. Ct. App. 1999) (noting split between Heeb v. Smith,
613 N.E.2d 416, 420 (Ind. Ct. App. 1993) (following Liberty Lobby), and Chester v. Indianapolis Newspapers, Inc., 553 N.E.2d 137,
140-41 (Ind. Ct. App. 1990) (not following Liberty Lobby)); Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 563 N.W.2d 472, 480
(Wis. 1997) (assuming, as parties agreed, without deciding that the clear-and-convincing-evidence standard applied at summary
judgment).
13
     Moffatt v. Brown, 751 P.2d 939, 943 (Alaska 1988).
14
    776 S.W.2d 551 (Tex. 1989); cf. Channel 4, KGBT v. Briggs, 759 S.W.2d 939, 942 (Tex. 1988) (Gonzalez, J., concurring) (urging
application of the clear-and-convincing standard to summary judgment proceedings in defamation cases, although the Court found it
unnecessary to address the issue).
15
     TEX. R. CIV. P. 166a.
                                        19 S.W.3d 413, *433; 2000 Tex. LEXIS 43, **57

is identical to that of the federal summary judgment rule, Rule 56, 16 the federal rule had been
construed to shift the burden of producing evidence to the party responding to the motion if the
movant asserted that no evidence favorable to the respondent existed, 17 while the Texas rule
had not. 18 Thus, in Texas a plaintiff was never required to respond at all to a defendant’s
motion for summary judgment until the defendant conclusively established his position.
Because application of the Liberty Lobby rule to Texas procedure was therefore impossible in
many cases, the Court declined to follow Liberty Lobby. In 1997, however, the Court added
subsection (i) to Rule 166a to align Texas procedure with federal procedure, and now, as the
Court acknowledges, any relevant differences are all but ″obviated″. 19 Consequently, the basis
for the Court’s decision in Casso no longer exists.
     [*434]Nevertheless, the Court now says, ″Casso was also consistent with practical
considerations which remain valid today.″ 20 The Court cites two such considerations. The first
is that applying the clear-and-convincing-evidence standard necessarily involves a weighing of
evidence that judges cannot do in ruling on motions for summary judgment. This is simply
untrue. Application of a clear-and-convincing standard no more requires a weighing of
evidence than application of the usual scintilla standard. In cases in which there is no elevated
evidentiary standard, a trial judge in deciding a motion for summary judgment must decide
whether the respondent has adduced evidence that amounts to more than a surmise or
suspicion. When the evidentiary standard is elevated, trial judges must decide whether the
respondent’s evidence meets the higher standard. The [**58] issue is not, as the Court seems
to think, whether the respondent has proved his case or will prevail at trial; the issue is only
whether the respondent has adduced evidence in quantity and quality sufficient to satisfy the
elevated standard, assuming that the evidence is true, and disregarding the movant’s evidence.
This is the very same process that a trial judge uses in every summary judgment proceeding,
only the bar is raised from evidence that is more than a scintilla to evidence that is clear and
convincing.
For its assertion that application of the clear-and-convincing standard necessarily involves a
weighing of evidence, the Court cites two authorities. The first is Justice Brennan’s dissent in
Liberty Lobby. The Court completely ignores the majority opinion in Liberty Lobby, which
explained:
Our holding that the clear-and-convincing standard of proof should be taken into account in
ruling on summary judgment motions does not denigrate the role of the jury. It by no means
 [**59] authorizes trial on affidavits. Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions, not those of a judge,
16
      FED. R. CIV. P. 56.
17
      Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
18
      Casso, 776 S.W.2d at 556.
19
      Ante, 19 S.W.3d 413, 421, 2000 Tex. LEXIS 43, *17.
20
      Ante, 19 S.W.3d at 421, 2000 Tex. LEXIS 43, *17.
                                        19 S.W.3d 413, *434; 2000 Tex. LEXIS 43, **59

whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence
of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.
Neither do we suggest that the trial courts should act other than with caution in granting
summary judgment or that the trial court may not deny summary judgment in a case where
there is reason to believe that the better course would be to proceed to a full trial. 21

Justice Brennan’s dissent in Liberty Lobby is not the law; the majority opinion is. The Court’s
refusal to notice the majority opinion is inexplicable. The only other authority on which the
Court relies is a quote from an opinion of the Alaska Supreme Court, which in turn quoted an
opinion of [**60] the New Jersey Supreme Court. 22 But the New Jersey Supreme Court has
since taken the opposite view. 23 Thus, the Court’s conclusion that applying the
clear-and-convincing evidentiary standard in summary judgment proceedings requires a
weighing of evidence that is directly contradicted by the United States Supreme Court in
Liberty Lobby and has for its sole support a dissenting opinion in that case and a sentence from
an opinion of a court that has since changed its mind. This Court should follow the New Jersey
Supreme Court and recant.

Moreover, the Court’s conclusion is at odds with reality. The Court acknowledges that judges
must apply a clear-and-convincing standard in deciding [**61] a motion [*435] for judgment
notwithstanding the verdict, 24 and that appellate judges must apply the same standard on
appeal. 25 In neither situation is a judicial weighing of the evidence any more appropriate than
with motions for summary judgment. How is it that a judge can decide without weighing the
evidence whether it is clear and convincing to defeat a motion for instructed verdict, but cannot
decide without weighing the evidence whether it is clear and convincing to defeat a motion for
summary judgment? 26 And how have the federal courts and the courts of thirty-seven states
managed to apply the clear-and-convincing-evidence standard in deciding motions for
summary judgment? Can it really be that what is standard practice for trial judges in
thirty-eight American jurisdictions is impossible for trial judges in Texas and Alaska?

[**62] Second, the Court says that the clear-and-convincing-evidence standard is too ″vague″
                                                                         27
to be applied to motions for summary judgment.                                The standard has long been applied in
21
     Liberty Lobby, 477 U.S. at 255 (citations omitted).
22
    Ante, 19 S.W.3d at 421 (citing Moffatt v. Brown, 751 P.2d 939, 944 (Alaska 1988) (quoting Dairy Stores, Inc. v. Sentinel Publishing
Co., 104 N.J. 125, 516 A.2d 220, 235-236 (N.J. 1986))).
23
     Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 666 A.2d 146, 153 (N.J. 1995).
24
     Ante, 19 S.W.3d at 423.
25
     See Doubleday & Co. v. Rogers, 674 S.W.2d 751, 755 (Tex. 1984).
26
    See Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 563 N.W.2d 472, 478-80 (Wis. 1997) (suggesting that the problem of
judicial weighing of evidence on motions for summary judgment cannot be so great if the same process is required on appeal by judges
who also cannot weigh evidence).
27
     Ante, 19 S.W.3d at 422, 2000 Tex. LEXIS 43, *20.
                                         19 S.W.3d 413, *435; 2000 Tex. LEXIS 43, **62

contexts numerous and varied, 28 and today is the first time of which I am aware that it has
been criticized as ″vague″. The Court does not bother to explain why the standard is vague,
pronouncing only that its conclusion is clear. [**64] The use of the standard in so many
different contexts seems to me to indicate rather strongly that it is as understandable and
manageable as such things can be. But assuming the standard is vague, how does it suddenly
become more definite mid-trial, when the defendant moves for an instructed verdict, or after
trial, when the defendant moves for judgment notwithstanding the verdict, or on appeal? The
Court says that a judge who has witnessed the trial can apply the standard more easily, but
acknowledges in the same paragraph that appellate justices, who of course have not witnessed
the trial, must also apply the standard. 29 An appellate court, of course, has all the evidence
before it, but it cannot assess the credibility and demeanor of witnesses. How is an appellate
court’s review [**63] of a ″cold″ record so different from a trial judge’s review of summary
judgment evidence that one must apply an elevated evidentiary standard and the other cannot
do so? If there is an explanation, the Court does not attempt it.

 [*436] Again, the experience in three-fourths of American jurisdictions, and the necessity of
applying the clear-and-convincing-evidence standard in many contexts that do not permit a
weighing of evidence, come as close as possible to conclusively establishing that the Court’s
concerns are completely unfounded. One simply cannot maintain in the face of vast national
experience to the contrary that applying an elevated evidentiary standard for summary
judgment is unworkable. Why, then, does the Court persist in its refusal to apply the plaintiff’s
proof standard to motions for summary judgment? Only two explanations suggest themselves.
One is that the Court simply does not trust trial judges to apply the law. The other is that the
Court believes that it is appropriate to put defendants in defamation cases to the burden and
expense of trial even though the public-figure plaintiff cannot win. Neither of these
explanations can justify the Court’s decision.

III
After rejecting an elevated evidentiary standard for plaintiff’s response in this case to
defendants’ motion for summary [**65] judgment, the Court then assesses the evidence by
what can only be an elevated standard. Not without a lengthy explanation can the Court
28
     E.g., Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223 (Tex. 1988) (paternity of illegitimate person in a wrongful death case);
Doubleday & Co. v. Rogers, 674 S.W.2d 751, 755-756 (Tex. 1984) (actual malice in a defamation case involving public officials and
public figures); State v. Addington, 588 S.W.2d 569, 569-570 (Tex. 1979) (civil commitment proceedings); In re G.M., 596 S.W.2d 846,
846-847 (Tex. 1980) (involuntary termination of parental rights); TEX. FAM. CODE §§ 11.15, 15.024-.025 (same); id. § 5.02 (separate
property); id. §§ 12.02(b), 13.05 (paternity); id. § 21.32 (court-ordered child support); TEX. HEALTH & SAFETY CODE §§ 81.169,
.171-.173, .190 (court-ordered management of persons with communicable diseases); id. §§ 462.067-.069, .075 (court-ordered treatment
for chemically dependent persons); id. §§ 574.031, .033-.035, .069, .106 (court-ordered mental health services); TEX. PROP. CODE §§
92.0563, .058 (landlord/tenant statutory remedies); TEX. TAX CODE §§ 151.159, .307 (tax exemption for export goods); TEX. PROB.
CODE § 42 (paternity); id. § 145 (approval of independent estate administration); id. §§ 222, 761 (removal of personal representative,
guardian); id. §§ 236, 236A, 776-77 (use of estate/trust corpus); id. § 684 (appointment of guardian); id. § 438 (presumption of revocable
trust); TEX. R. DISCIPLINARY P. 9.04 (1992), reprinted in TEX. GOV’T CODE, tit. 2, subtit. G app. (Supp. 1999) (defense available
to attorneys to avoid reciprocal discipline).
29
      Ante, 19 S.W.3d at 421-422.
                            19 S.W.3d 413, *436; 2000 Tex. LEXIS 43, **65

conclude that the plaintiff failed to produce any evidence of actual malice. This was not
evidence, the Court says, and neither was this, or this, or this, or even this, and certainly not
this. Judge Huckabee’s position, quite simply, is that given the conflicting evidence before him
regarding the parents’ conduct, his decision was justified, and since the defendants knew what
that evidence was and acknowledged in their affidavits that it was important, they cannot have
disregarded it without actual malice. I do not think Judge Huckabee’s position is clear and
convincing, given the several other sources the defendants consulted before airing their
broadcast. But if every inference must be indulged in Judge Huckabee’s favor, as with any
other respondent to a motion for summary judgment, I do not see how the Court can conclude
that Judge Huckabee has failed to produce more than a scintilla of evidence that the defendant
acted with actual malice, thereby precluding summary judgment on that issue, as the trial court
concluded.
Conspicuously, the [**66] Court does not conclude that the defendants’ statements were
substantially true -- because, I think, the Court does not believe that. Rather, the Court
concludes, even if some of the defendants’ statements were not true and every inference is
indulged in Judge Huckabee’s favor, there is not a scintilla of evidence of actual malice. I do
not find Judge Huckabee’s evidence clear and convincing, but the Court’s assessment of the
record under an ordinary standard of proof is far from convincing.

*****
I would remand the case to the court of appeals to consider the respondent’s other arguments.
Should they fail to persuade, that court should remand the case to the trial court for further
proceedings.

Nathan L. Hecht

Justice
Opinion delivered: May 4, 2000
                           Masson v. New Yorker Magazine
                            Supreme Court of the United States
                     January 14, 1991, Argued ; June 20, 1991, Decided
                                        No. 89-1799

Reporter
501 U.S. 496; 111 S. Ct. 2419; 115 L. Ed. 2d 447; 1991 U.S. LEXIS 3630; 59 U.S.L.W. 4726; 18
Media L. Rep. 2241; 91 Cal. Daily Op. Service 4683; 91 Daily Journal DAR 7272

JEFFREY M. MASSON, PETITIONER v. NEW YORKER MAGAZINE, INC., ALFRED A.
KNOPF, INC. AND JANET MALCOLM

Prior History: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT.

Disposition: 895 F.2d 1535, reversed and remanded.

Syllabus
Petitioner Masson, a psychoanalyst, became disillusioned with Freudian psychology while
serving as projects director of the Sigmund Freud Archives, and was fired after advancing his
own theories. Thereafter, respondent Malcolm, an author and contributor to respondent New
Yorker Magazine, taped several interviews with Masson and wrote a lengthy article on his
relationship with the archives. One of Malcolm’s narrative devices consists of enclosing
lengthy passages attributed to Masson in quotation marks. Masson allegedly expressed alarm
about several errors in those passages before the article was published. After its publication,
and with knowledge of Masson’s allegations that it contained defamatory material, respondent
Alfred A. Knopf, Inc., published the work as a book, which portrayed Masson in a most
unflattering light. He brought an action for libel under California law in the Federal District
Court, concentrating on passages alleged to be defamatory, six of which are before this Court.
In each instance, the quoted statement does not appear in the taped interviews. The parties
dispute whether there were additional untaped interviews, the notes from which Malcolm
allegedly transcribed. The court granted respondents’ motion for summary judgment. It
concluded that the alleged inaccuracies were substantially true or were rational interpretations
of ambiguous conversations, and therefore did not raise a jury question of actual malice, which
is required when libel is alleged by a public figure. The Court of Appeals affirmed. The court
found, among other things, that one passage -- in which Masson was quoted as saying that
archives officials had considered him an ″intellectual gigolo″ while the tape showed that he
said he ″was much too junior within the hierarchy of analysis for these important . . . analysts
to be caught dead with [him]″ -- was not defamatory and would not be actionable under the
″incremental harm″ doctrine.
                   501 U.S. 496, *496; 111 S. Ct. 2419, **2419; 115 L. Ed. 2d 447, ***447


Held:

1. The evidence presents a jury question whether Malcolm acted with requisite knowledge of
falsity or reckless disregard as to the truth or falsity of five of the passages. Pp. 509-525.

(a) As relevant here, the First Amendment limits California’s libel law by requiring that a
public figure prove by clear and convincing evidence that the defendant published the
defamatory statement with actual malice. However, in place of the term actual malice, it is
better practice that jury instructions refer to publication of a statement with knowledge of
falsity or reckless disregard as to truth or falsity. Pp. 509-511.

(b) A trier of fact in this case could find that the reasonable reader would understand the
quotations attributed to Masson to be nearly verbatim reports of his statements. In general,
quotation marks indicate a verbatim reproduction, and quotations add authority to a statement
and credibility to an author’s work. A fabricated quotation may injure reputation by attributing
an untrue factual assertion to the speaker, or by indicating a negative personal trait or an
attitude the speaker does not hold. While some quotations do not convey that the speaker
actually said or wrote the quoted material, such is not the case here. Malcolm’s work gives the
reader no clue that the quotations are anything but the reproductions of actual conversations,
and the work was published in a magazine that enjoyed a reputation for scrupulous factual
inquiry. These factors could lead a reader to take the quotations at face value. Pp. 511-513.

(c) The common law of libel overlooks minor inaccuracies and concentrates upon substantial
truth. Thus, a deliberate alteration of a plaintiff’s words does not equate with knowledge of
falsity for purposes of New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 11 L. Ed. 2d
686, 84 S. Ct. 710, and Gertz v. Robert Welch, Inc., 418 U.S. 323, 341, 342, 41 L. Ed. 2d 789,
94 S. Ct. 2997, unless it results in a material change in the statement’s meaning. While the use
of quotations to attribute words not in fact spoken is important to that inquiry, the idea that any
alteration beyond correction of grammar or syntax by itself proves falsity is rejected. Even if
a statement has been recorded, the existence of both a speaker and a reporter, the translation
between two media, the addition of punctuation, and the practical necessity to edit and make
intelligible a speakers’ perhaps rambling comments, make it misleading to suggest that a
quotation will be reconstructed with complete accuracy. However, if alterations give a different
meaning to a speaker’s statements, bearing upon their defamatory character, then the device of
quotations might well be critical in finding the words actionable. Pp. 513-518.

(d) Although the Court of Appeals applied a test of substantial truth, it erred in going one step
further and concluding that an altered quotation is protected so long as it is a ″rational
interpretation″ of the actual statement. The protection for rational interpretation serves First
Amendment principle by allowing an author the interpretive license that is necessary when
relying upon ambiguous sources; but where a writer uses a quotation that a reasonable reader
would conclude purports to be a verbatim repetition of the speaker’s statement, the quotation
marks indicate that the author is not interpreting the speaker’s ambiguous statement, but is
                          501 U.S. 496, *496; 111 S. Ct. 2419, **2419; 115 L. Ed. 2d 447, ***447

attempting to convey what the speaker said. Time, Inc. v. Pape, 401 U.S. 279, 28 L. Ed. 2d 45,
91 S. Ct. 633; Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 80 L. Ed.
2d 502, 104 S. Ct. 1949, distinguished. Pp. 518-520.
(e) In determining whether Masson has shown sufficient falsification to survive summary
judgment, it must be assumed, except where otherwise evidenced by the tape recordings’
transcripts, that he is correct in denying that he made the statements Malcolm attributed to him,
and that Malcolm reported with knowledge or reckless disregard of the differences between
what he said and what was quoted. Malcolm’s typewritten notes should not be considered,
since Masson denied making the statements, and since the record contains substantial
additional evidence to support a jury determination under a clear and convincing evidence
standard that Malcolm deliberately or recklessly altered the quotations. While she contests
Masson’s allegations, only a trial on the merits will resolve the factual dispute. Pp. 520-521.
(f) Five of the six published passages differ materially in meaning from the tape-recorded
statements so as to create an issue of fact for a jury as to falsity. Whether the ″intellectual
gigolo″ passage is defamatory is a question of California law, and to the extent that the Court
of Appeals based its conclusion on the First Amendment, it was mistaken. Moreover, an
″incremental harm″ doctrine -- which measures the incremental reputational harm inflicted by
the challenged statements beyond the harm imposed by the nonactionable remainder of the
publication -- is not compelled as a matter of First Amendment protection for speech, since it
does not bear on whether a defendant has published a statement with knowledge of falsity or
reckless disregard of whether it was false or not. Pp. 521-525.
2. On remand, the Court of Appeals should consider Masson’s argument that the District Court
erred in granting summary judgment to the New Yorker Magazine, Inc., and Alfred A. Knopf,
Inc., on the basis of their respective relations with Malcolm or the lack of any independent
actual malice, since the court failed to reach his argument because of its disposition with
respect to Malcolm. P. 525.

Counsel: Charles O. Morgan, Jr., argued the cause for petitioner. With him on the briefs was
Paul Richard Kleven.

H. Bartow Farr III argued the cause for respondents. With him on the brief were Paul M. Smith,
Richard G. Taranto, Charles W. Kenady, and Karl Olson. *

Judges: KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and
MARSHALL, BLACKMUN, STEVENS, O’CONNOR, and SOUTER, JJ., joined, and in
*
   Briefs of amici curiae urging reversal were filed for Certain Journalists and Academics by Stewart Abercrombie Baker and Michael
P. McDonald; and for the Mountain States Legal Foundation by William Perry Pendley.
Briefs of amici curiae urging affirmance were filed for the Association of American Publishers, Inc., et al. by Robert G. Sugarman, R.
Bruce Rich, Slade R. Metcalf, and Laura R. Handman; for Home Box Office, Inc., et al. by P. Cameron DeVore, Daniel M. Waggoner,
and Ronald E. Guttman; for the Reporters Committee for Freedom of the Press et al. by Joseph R. Bankoff, James D. Miller, Jane E.
Kirtley, J. Laurent Scharff, W. Terry Maguire, Rene P. Milam, and Bruce W. Sanford; and for The Time Inc. Magazine Co. et al. by
Roslyn A. Mazer, Paul R. Taskier, Richard M. Schmidt, Jr., Charles S. Sims, Lee Levine, James E. Grossberg, and Mark Goodman.
                     501 U.S. 496, *496; 111 S. Ct. 2419, **2419; 115 L. Ed. 2d 447, ***447


Parts I, II-A, II-D, and III-A of which WHITE and SCALIA, JJ., joined. WHITE, J., filed an
opinion concurring in part and dissenting in part, in which SCALIA, J., joined, post, p. 525.

Opinion by: KENNEDY

Opinion

[*499]    [***461]     [**2424] JUSTICE KENNEDY delivered the opinion of the Court.

[1A] [2A] [3A] [4A] [5A] [6A]In this libel case, a public figure claims he was defamed by an
author who, with full knowledge of the inaccuracy, used quotation marks to attribute to him
comments he had not made. The First Amendment protects authors and journalists who write
about public figures by requiring a plaintiff to prove that the defamatory statements were made
with what we have called ″actual malice,″ a term of art denoting deliberate or reckless
falsification. We consider in this opinion whether the attributed quotations had the degree of
falsity required [***462] to prove this state of mind, so that the public figure can defeat a
motion for summary judgment and proceed to a trial on the merits of the defamation claim.
I
Petitioner Jeffrey Masson trained at Harvard University as a Sanskrit scholar, and in 1970
became a professor of Sanskrit & Indian Studies at the University of Toronto. He spent eight
years in psychoanalytic training, and qualified as [*500] an analyst in 1978. Through his
professional activities, he came to know Dr. Kurt Eissler, head of the Sigmund Freud Archives,
and Dr. Anna Freud, daughter of Sigmund Freud and a major psychoanalyst in her own right.
The Sigmund Freud Archives, located at Maresfield Gardens outside of London, serves as a
repository for materials about Freud, including his own writings, letters, and personal library.
The materials, and the right of access to them, are of immense value to those who study Freud
and his theories, life, and work.
In 1980, Eissler and Anna Freud hired petitioner as projects director of the archives. After
assuming his post, petitioner became disillusioned with Freudian psychology. In a 1981 lecture
before the Western New England Psychoanalytical Society in New Haven, Connecticut, he
advanced his theories of Freud. Soon after, the board of the archives terminated petitioner as
projects director.
Respondent Janet Malcolm is an author and a contributor to respondent The New Yorker, a
weekly magazine. She contacted petitioner in 1982 regarding the possibility of an article on his
relationship with the archives. He agreed, and the two met in person and spoke by telephone
in a series of interviews. Based on the interviews and other sources, Malcolm wrote a lengthy
article. One of Malcolm’s narrative devices consists of enclosing lengthy passages in quotation
marks, reporting statements of Masson, Eissler, and her other subjects.
During the editorial process, Nancy Franklin, a member of the fact-checking department at The
New Yorker, called petitioner to confirm some of the facts underlying the article. According to
                  501 U.S. 496, *500; 111 S. Ct. 2419, **2424; 115 L. Ed. 2d 447, ***462

petitioner, he expressed alarm at the number of errors in the few passages Franklin discussed
with him. Petitioner contends that he asked permission to review those portions of the article
which attributed quotations or information to him, but was brushed off with a never-fulfilled
 [**2425] promise [*501] to ″get back to [him].″ App. 67. Franklin disputes petitioner’s
version of their conversation. Id., at 246-247.
The New Yorker published Malcolm’s piece in December 1983, as a two-part series. In 1984,
with knowledge of at least petitioner’s general allegation that the article contained defamatory
material, respondent Alfred A. Knopf, Inc., published the entire work as a book, entitled In the
Freud Archives.

Malcolm’s work received complimentary reviews. But this gave little joy to Masson, for the
book portrays him in a most unflattering light. According to one reviewer:

   ″Masson the promising psychoanalytic scholar emerges gradually, as a grandiose egotist
   -- mean-spirited, self-serving, full of braggadocio, impossibly arrogant and, in the end,
   a self-destructive fool. But it [***463] is not Janet Malcolm who calls him such: his
   own words reveal this psychological profile -- a self-portrait offered to us through the
   efforts of an observer and listener who is, surely, as wise as any in the psychoanalytic
   profession.″ Coles, Freudianism Confronts Its Malcontents, Boston Globe, May 27,
   1984, pp. 58, 60.
Petitioner wrote a letter to the New York Times Book Review calling the book ″distorted.″ In
response, Malcolm stated:

   ″Many of [the] things Mr. Masson told me (on tape) were discreditable to him, and I felt
   it best not to include them. Everything I do quote Mr. Masson as saying was said by
   him, almost word for word. (The ’almost’ refers to changes made for the sake of correct
   syntax.) I would be glad to play the tapes of my conversation with Mr. Masson to the
   editors of The Book Review whenever they have 40 or 50 short hours to spare.″ App.
   222-223.

Petitioner brought an action for libel under California law in the United States District Court
for the Northern District of California. During extensive discovery and repeated [*502]
amendments to the complaint, petitioner concentrated on various passages alleged to be
defamatory, dropping some and adding others. The tape recordings of the interviews
demonstrated that petitioner had, in fact, made statements substantially identical to a number
of the passages, and those passages are no longer in the case. We discuss only the passages
relied on by petitioner in his briefs to this Court.

Each passage before us purports to quote a statement made by petitioner during the interviews.
Yet in each instance no identical statement appears in the more than 40 hours of taped
interviews. Petitioner complains that Malcolm fabricated all but one passage; with respect to
that passage, he claims Malcolm omitted a crucial portion, rendering the remainder misleading.
                   501 U.S. 496, *502; 111 S. Ct. 2419, **2425; 115 L. Ed. 2d 447, ***463

[1B](a) ″Intellectual Gigolo.″ Malcolm quoted a description by petitioner of his relationship
with Eissler and Anna Freud as follows:
   ″’Then I met a rather attractive older graduate student and I had an affair with her. One
   day, she took me to some art event, and she was sorry afterward. She said, ″Well, it is
   very nice sleeping with you in your room, but you’re the kind of person who should
   never leave the room -- you’re just a social embarrassment anywhere else, though you
   do fine in your own room.″ And you know, in their way, if not in so many words, Eissler
   and Anna Freud told me the same thing. They like me well enough ″in my own room.″
   They loved to hear from me what creeps and dolts analysts are. I was like an intellectual
   gigolo -- you get your pleasure from him, but you don’t take him out in public. . . .’″
   In the Freud Archives 38.

The tape recordings contain the substance of petitioner’s reference to his graduate student
friend, App. 95, but no suggestion that Eissler or Anna Freud considered him, or that [**2426]
he considered himself, an ″’intellectual gigolo.’″ Instead, petitioner said:

   [*503] ″They felt, in a sense, I was a private asset but a public liability. . . . They liked
   me when I was alone in their living room, and I [***464] could talk and chat and tell
   them the truth about things and they would tell me. But that I was, in a sense, much too
   junior within the hierarchy of analysis, for these important training analysts to be caught
   dead with me.″ Id., at 104.

[2B](b) ″Sex, Women, Fun.″ Malcolm quoted petitioner as describing his plans for Maresfield
Gardens, which he had hoped to occupy after Anna Freud’s death:
   ″’It was a beautiful house, but it was dark and sombre and dead. Nothing ever went on
   there. I was the only person who ever came. I would have renovated it, opened it up,
   brought it to life. Maresfield Gardens would have been a center of scholarship, but it
   would also have been a place of sex, women, fun. It would have been like the change
   in The Wizard of Oz, from black-and-white into color.’″ In the Freud Archives 33.

The tape recordings contain a similar statement, but in place of the references to ″sex, women,
fun″ and The Wizard of Oz, petitioner commented:
   ″It is an incredible storehouse. I mean, the library, Freud’s library alone is priceless in
   terms of what it contains: all his books with his annotations in them; the Schreber case
   annotated, that kind of thing. It’s fascinating.″ App. 127.

Petitioner did talk, earlier in the interview, of his meeting with a London analyst:
   ″I like him. So, and we got on very well. That was the first time we ever met and you
   know, it was buddy-buddy, and we were to stay with each other and [laughs] we were
   going to pass women on to each other, and we were going to have a great time together
   when I lived in the Freud house. We’d have great parties there and we were [laughs] --
                   501 U.S. 496, *503; 111 S. Ct. 2419, **2426; 115 L. Ed. 2d 447, ***464

   ....
    [*504] ″. . . going to really, we were going to live it up.″ Id., at 129.

[3B](c) ″It Sounded Better.″ Petitioner spoke with Malcolm about the history of his family,
including the reasons his grandfather changed the family name from Moussaieff to Masson,
and why petitioner adopted the abandoned family name as his middle name. The article
contains the passage:

   ″’My father is a gem merchant who doesn’t like to stay in any one place too long. His
   father was a gem merchant, too -- a Bessarabian gem merchant, named Moussaieff, who
   went to Paris in the twenties and adopted the name Masson. My parents named me
   Jeffrey Lloyd Masson, but in 1975 I decided to change my middle name to Moussaieff
   -- it sounded better.’″ In the Freud Archives 36.

In the most similar tape-recorded statement, Masson explained at considerable length that his
grandfather had changed the family name from Moussaieff to Masson when living in France,
″just to hide his Jewishness.″ Petitioner had changed his last name back to Moussaieff, but his
then-wife Terry objected that ″nobody could pronounce it and nobody knew how to spell it, and
it wasn’t the name that she knew me by.″ Petitioner had changed his name to Moussaieff
because he ″just liked it.″ ″It was sort of part of analysis: a return to the roots, and [***465]
your family tradition and so on.″ In the end, he had agreed with Terry that ″it wasn’t her name
after all,″ and used Moussaieff as a middle instead of a last name. App. 87-89.

[4B](d) ″I Don’t Know Why I Put It In.″ The article recounts part of a conversation between
Malcolm and petitioner about the paper petitioner presented at his 1981 New Haven lecture:

   ″[I] asked him what had happened between the time of the lecture and the present to
   change him from a Freudian [*505] psychoanalyst with somewhat outre views into the
   bitter and belligerent anti-Freudian he had become.
     [**2427]    ″Masson sidestepped my question. ’You’re right, there was nothing
   disrespectful of analysis in that paper,’ he said. ’That remark about the sterility of
   psychoanalysis was something I tacked on at the last minute, and it was totally
   gratuitous. I don’t know why I put it in.’″ In the Freud Archives 53.

The tape recordings instead contain the following discussion of the New Haven lecture:

   Masson: ″So they really couldn’t judge the material. And, in fact, until the last sentence
   I think they were quite fascinated. I think the last sentence was an in, [sic] possibly,
   gratuitously offensive way to end a paper to a group of analysts. Uh, --″
   Malcolm: ″What were the circumstances under which you put it [in]? . . .″
   Masson: ″That it was, was true.
   ....
                   501 U.S. 496, *505; 111 S. Ct. 2419, **2427; 115 L. Ed. 2d 447, ***465

   ″. . . I really believe it. I didn’t believe anybody would agree with me.
   ....
   ″. . . But I felt I should say something because the paper’s still well within the analytic
   tradition in a sense. . . .
   ....
   ″. . . It’s really not a deep criticism of Freud. It contains all the material that would allow
   one to criticize Freud but I didn’t really do it. And then I thought, I really must say one
   thing that I really believe, that’s not going to appeal to anybody and that was the very
   last sentence. Because I really do believe psychoanalysis is entirely sterile . . . .″ App.
   176.

[5B](e) ″Greatest Analyst Who Ever Lived.″ The article contains the following self-explanatory
passage:

    [*506] ″A few days after my return to New York, Masson, in a state of elation,
   telephoned me to say that Farrar, Straus & Giroux has taken The Assault on Truth
   [Masson’s book]. ’Wait till it reaches the best-seller list, and watch how the analysts will
   crawl,’ he crowed. ’They move whichever way the wind blows. They will want me
   back, they will say that Masson is a great scholar, a major analyst -- after Freud, he’s
   the greatest analyst who ever lived. Suddenly they’ll be calling, begging, cajoling:
   ″Please take back what you’ve said about our profession; our patients are quitting.″
   They’ll try a short smear campaign, then they’ll try to buy me, and ultimately they’ll
   have to shut up. Judgment will be passed by history. There is no possible refutation of
   this book. It’s going to [***466] cause a revolution in psycho-analysis. Analysis stands
   or falls with me now.’″ In the Freud Archives 162.

This material does not appear in the tape recordings. Petitioner did make the following
statements on related topics in one of the taped interviews with Malcolm:

   ″. . . I assure you when that book comes out, which I honestly believe is an honest book,
   there is nothing, you know, mean-minded about it. It’s the honest fruit of research and
   intellectual toil. And there is not an analyst in the country who will say a single word
   in favor of it.″ App. 136.
   ″Talk to enough analysts and get them right down to these concrete issues and you
   watch how different it is from my position. It’s utterly the opposite and that’s finally
   what I realized, that I hold a position that no other analyst holds, including, alas, Freud.
   At first I thought: Okay, it’s me and Freud against the rest of the analytic world, or me
   and Freud and Anna Freud and Kurt Eissler and Vic Calef and Brian Bird and Sam
    [*507] Lipton against the rest of the world. Not so, it’s me. it’s me alone.″ Id., at 139.

The tape of this interview also contains the following exchange between petitioner and
                   501 U.S. 496, *507; 111 S. Ct. 2419, **2427; 115 L. Ed. 2d 447, ***466


Malcolm:

   Masson: ″. . . analysis stands or falls with me now.″
   Malcolm: ″Well that’s a very grandiose thing to say.″
    [**2428] Masson: ″Yeah, but it’s got nothing to do with me. It’s got to do with the
   things I discovered.″ Id., at 137.

[6B](f) ″He Had The Wrong Man.″ In discussing the archives’ board meeting at which
petitioner’s employment was terminated, Malcolm quotes petitioner as giving the following
explanation of Eissler’s attempt to extract a promise of confidentiality:

   ″’[Eissler] was always putting moral pressure on me. ″Do you want to poison Anna
   Freud’s last days? Have you no heart? You’re going to kill the poor old woman.″ I said
   to him, ″What have I done? You’re doing it. You’re firing me. What am I supposed to
   do -- be grateful to you?″ ″You could be silent about it. You could swallow it. I know
   it is painful for you. But you could just live with it in silence.″ ″Why should I do that?″
   ″Because it is the honorable thing to do.″ Well, he had the wrong man.’″ In the Freud
   Archives 67.

From the tape recordings, on the other hand, it appears that Malcolm deleted part of petitioner’s
explanation (italicized below), and petitioner argues that the ″wrong man″ sentence relates to
something quite different from Eissler’s entreaty that silence was ″the honorable thing.″ In the
tape recording, petitioner states:

   ″But it was wrong of Eissler to do that, you know. He was constantly putting various
   kinds of moral pressure on me and, ’Do you want to poison Anna Freud’s last days?
   Have you no heart?’ He called me: ’Have you no heart? You’re going to kill the poor
   old woman. [*508] Have you no heart? Think of what she’s done for you and you are
   now willing to do this to her.’ I said, ’What have I, what have I done? You did it. You
   fired me. [***467] What am I supposed to do: thank you? be grateful to you?’ He said,
   ’Well you could never talk about it. You could be silent about it. You could swallow it.
   I know it’s painful for you but just live with it in silence.’ ’Fuck you,’ I said, ’Why
   should I do that? Why? You know, why should one do that?’ ’Because it’s the honorable
   thing to do and you will save face. And who knows? If you never speak about it and you
   quietly and humbly accept our judgment, who knows that in a few years if we don’t
   bring you back?’ Well, he had the wrong man. ″ App. 215-216.

Malcolm submitted to the District Court that not all of her discussions with petitioner were
recorded on tape, in particular conversations that occurred while the two of them walked
together or traveled by car, while petitioner stayed at Malcolm’s home in New York, or while
her tape recorder was inoperable. She claimed to have taken notes of these unrecorded
sessions, which she later typed, then discarding the handwritten originals. Petitioner denied
                   501 U.S. 496, *508; 111 S. Ct. 2419, **2428; 115 L. Ed. 2d 447, ***467

that any discussion relating to the substance of the article occurred during his stay at Malcolm’s
home in New York, that Malcolm took notes during any of their conversations, or that Malcolm
gave any indication that her tape recorder was broken.

Respondents moved for summary judgment. The parties agreed that petitioner was a public
figure and so could escape summary judgment only if the evidence in the record would permit
a reasonable finder of fact, by clear and convincing evidence, to conclude that respondents
published a defamatory statement with actual malice as defined by our cases. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255-256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The
District Court analyzed each of the passages and held that the alleged inaccuracies did not raise
a jury question. The court found that the allegedly fabricated quotations were either
substantially true, or were ″’one of a number of possible [*509] rational interpretations’ of a
conversation or event that ’bristled with ambiguities,’″ and thus were entitled to constitutional
protection. 686 F. Supp. 1396, 1399 (ND Cal. 1987) (quoting Bose Corp. v. Consumers Union
of United States, Inc., 466 U.S. 485, 512, 80 L. Ed. 2d 502, 104 S. Ct. 1949 (1984)). The court
also ruled [**2429] that the ″he had the wrong man″ passage involved an exercise of editorial
judgment upon which the courts could not intrude. 686 F. Supp. at 1403-1404.

The Court of Appeals affirmed, with one judge dissenting. 895 F.2d 1535 (CA9 1989). The
court assumed for much of its opinion that Malcolm had deliberately altered each quotation not
found on the tape recordings, but nevertheless held that petitioner failed to raise a jury question
of actual malice, in large part for the reasons stated by the District Court. In its examination
of the ″intellectual gigolo″ passage, the court agreed with the District Court that petitioner
could not demonstrate actual malice because Malcolm had not altered the substantive content
of petitioner’s self-description, but went on to note that it did not consider the ″intellectual
gigolo″ passage defamatory, as the quotation merely reported Kurt Eissler’s and Anna Freud’s
opinions about petitioner. In any event, concluded the court, the statement would not be
 [***468] actionable under the ″’incremental harm branch’ of the ’libel-proof’ doctrine,″ id.,
at 1541 (quoting Herbert v. Lando, 781 F.2d 298, 310-311 (CA2 1986)).

The dissent argued that any intentional or reckless alteration would prove actual malice, so
long as a passage within quotation marks purports to be a verbatim rendition of what was said,
contains material inaccuracies, and is defamatory. 895 F.2d at 1562-1570. We granted
certiorari, 498 U.S. 808 (1990), and now reverse.

II

A

[7]Under California law, ″libel is a false and unprivileged publication by writing . . . which
exposes any person to hatred, [*510] contempt, ridicule, or obloquy, or which causes him to
be shunned or avoided, or which has a tendency to injure him in his occupation.″ Cal. Civ.
Code Ann. § 45 (West 1982). False attribution of statements to a person may constitute libel,
                   501 U.S. 496, *510; 111 S. Ct. 2419, **2429; 115 L. Ed. 2d 447, ***468

if the falsity exposes that person to an injury comprehended by the statute. See Selleck v. Globe
International, Inc., 166 Cal. App. 3d 1123, 1132, 212 Cal. Rptr. 838, 844 (1985); Cameron v.
Wernick, 251 Cal. App. 2d 890, 60 Cal. Rptr. 102 (1967); Kerby v. Hal Roach Studios, Inc., 53
Cal. App. 2d 207, 213, 127 P.2d 577, 581 (1942); cf. Baker v. Los Angeles Herald Examiner,
42 Cal. 3d 254, 260-261, 721 P.2d 87, 90-91, 228 Cal. Rptr. 206 (1986). It matters not under
California law that petitioner alleges only part of the work at issue to be false. ″The test of libel
is not quantitative; a single sentence may be the basis for an action in libel even though buried
in a much longer text,″ though the California courts recognize that ″while a drop of poison may
be lethal, weaker poisons are sometimes diluted to the point of impotency.″ Washburn v.
Wright, 261 Cal. App. 2d 789, 795, 68 Cal. Rptr. 224, 228 (1968).

[8]The First Amendment limits California’s libel law in various respects. When, as here, the
plaintiff is a public figure, he cannot recover unless he proves by clear and convincing
evidence that the defendant published the defamatory statement with actual malice, i. e., with
″knowledge that it was false or with reckless disregard of whether it was false or not.″ New
York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964).
Mere negligence does not suffice. Rather, the plaintiff must demonstrate that the author ″in fact
entertained serious doubts as to the truth of his publication,″ St. Amant v. Thompson, 390 U.S.
727, 731, 20 L. Ed. 2d 262, 88 S. Ct. 1323 (1968), or acted with a ″high degree of awareness
of . . . probable falsity,″ Garrison v. Louisiana, 379 U.S. 64, 74, 13 L. Ed. 2d 125, 85 S. Ct.
209 (1964).

[9]Actual malice under the New York Times standard should not be confused with the concept
of malice as an evil intent or a motive arising from spite or ill will. See Greenbelt Cooperative
 [*511] Publishing Assn., Inc. v. Bresler, 398 U.S. 6, 26 [**2430] L. Ed. 2d 6, 90 S. Ct. 1537
(1970).We have used the term actual malice as a shorthand to describe the First Amendment
protections for speech injurious to reputation, and we continue to do so here. But the term can
confuse as well as enlighten. In this respect, the phrase may be an unfortunate one. See
Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666, n. 7, 105 L. Ed. 2d
562, 109 S. Ct. 2678 [***469] (1989). In place of the term actual malice, it is better practice
that jury instructions refer to publication of a statement with knowledge of falsity or reckless
disregard as to truth or falsity. This definitional principle must be remembered in the case
before us.
B
In general, quotation marks around a passage indicate to the reader that the passage reproduces
the speaker’s words verbatim. They inform the reader that he or she is reading the statement
of the speaker, not a paraphrase or other indirect interpretation by an author. By providing this
information, quotations add authority to the statement and credibility to the author’s work.
Quotations allow the reader to form his or her own conclusions and to assess the conclusions
of the author, instead of relying entirely upon the author’s characterization of her subject.
[10]A fabricated quotation may injure reputation in at least two senses, either giving rise to a
conceivable claim of defamation. First, the quotation might injure because it attributes an
                   501 U.S. 496, *511; 111 S. Ct. 2419, **2430; 115 L. Ed. 2d 447, ***469

untrue factual assertion to the speaker. An example would be a fabricated quotation of a public
official admitting he had been convicted of a serious crime when in fact he had not.

Second, regardless of the truth or falsity of the factual matters asserted within the quoted
statement, the attribution may result in injury to reputation because the manner of expression
or even the fact that the statement was made indicates a negative personal trait or an attitude
the speaker does not hold. John Lennon once was quoted as saying of [*512] the Beatles,
″We’re more popular than Jesus Christ now.″ Time, Aug. 12, 1966, p. 38. Supposing the
quotation had been a fabrication, it appears California law could permit recovery for
defamation because, even without regard to the truth of the underlying assertion, false
attribution of the statement could have injured his reputation. Here, in like manner, one need
not determine whether petitioner is or is not the greatest analyst who ever lived in order to
determine that it might have injured his reputation to be reported as having so proclaimed.

A self-condemnatory quotation may carry more force than criticism by another. It is against
self-interest to admit one’s own criminal liability, arrogance, or lack of integrity, and so all the
more easy to credit when it happens. This principle underlies the elemental rule of evidence
which permits the introduction of statements against interest, despite their hearsay character,
because we assume ″that persons do not make statements which are damaging to themselves
unless satisfied for good reason that they are true.″ Advisory Committee’s Notes on Fed. Rule
Evid. 804(b)(3), 28 U. S. C. App., p. 789 (citing Hileman v. Northwest Engineering Co., 346
F.2d 668 (CA6 1965)).

Of course, quotations do not always convey that the speaker actually said or wrote the quoted
material. ″Punctuation marks, like words, have many uses. Writers often use quotation marks,
yet no reasonable reader would assume that such punctuation automatically implies the truth
of the quoted material. [***470] ″ Baker v. Los Angeles Examiner, 42 Cal. 3d at 263, 721 P.2d
at 92. In Baker, a television reviewer printed a hypothetical conversation between a station vice
president and writer/producer, and the court found that no reasonable reader would conclude
the plaintiff in fact had made the statement attributed to him. Id., at 267, 721 P.2d at 95. Writers
often use quotations as in Baker, and a reader will not reasonably understand the quotations to
indicate reproduction of a conversation [**2431] that took place. In other [*513] instances,
an acknowledgment that the work is so-called docudrama or historical fiction, or that it
recreates conversations from memory, not from recordings, might indicate that the quotations
should not be interpreted as the actual statements of the speaker to whom they are attributed.

[11]The work at issue here, however, as with much journalistic writing, provides the reader no
clue that the quotations are being used as a rhetorical device or to paraphrase the speaker’s
actual statements. To the contrary, the work purports to be nonfiction, the result of numerous
interviews. At least a trier of fact could so conclude. The work contains lengthy quotations
attributed to petitioner, and neither Malcolm nor her publishers indicate to the reader that the
quotations are anything but the reproduction of actual conversations. Further, the work was
published in The New Yorker, a magazine which at the relevant time seemed to enjoy a
                   501 U.S. 496, *513; 111 S. Ct. 2419, **2431; 115 L. Ed. 2d 447, ***470

reputation for scrupulous factual accuracy. These factors would, or at least could, lead a reader
to take the quotations at face value. A defendant may be able to argue to the jury that quotations
should be viewed by the reader as nonliteral or reconstructions, but we conclude that a trier of
fact in this case could find that the reasonable reader would understand the quotations to be
nearly verbatim reports of statements made by the subject.

C

The constitutional question we must consider here is whether, in the framework of a summary
judgment motion, the evidence suffices to show that respondents acted with the requisite
knowledge of falsity or reckless disregard as to truth or falsity. This inquiry in turn requires us
to consider the concept of falsity; for we cannot discuss the standards for knowledge or
reckless disregard without some understanding of the acts required for liability. We must
consider whether the requisite falsity inheres in the attribution of words to the petitioner which
he did not speak.
[*514] [12]In some sense, any alteration of a verbatim quotation is false. But writers and
reporters by necessity alter what people say, at the very least to eliminate grammatical and
syntactical infelicities. If every alteration constituted the falsity required to prove actual
malice, the practice of journalism, which the First Amendment standard is designed to protect,
would require a radical change, one inconsistent with our precedents and First Amendment
principles. Petitioner concedes that this absolute definition of falsity in the quotation context
is too stringent, and acknowledges that ″minor changes to correct for grammar or syntax″ do
not amount to falsity for purposes of proving actual malice. Brief for Petitioner 18, 36-37. We
agree, and must determine what, in [***471] addition to this technical falsity, proves falsity
for purposes of the actual malice inquiry.

Petitioner argues that, excepting correction of grammar or syntax, publication of a quotation
with knowledge that it does not contain the words the public figure used demonstrates actual
malice. The author will have published the quotation with knowledge of falsity, and no more
need be shown. Petitioner suggests that by invoking more forgiving standards the Court of
Appeals would permit and encourage the publication of falsehoods. Petitioner believes that the
intentional manufacture of quotations does not ″represent the sort of inaccuracy that is
commonplace in the forum of robust debate to which the New York Times rule applies,″ Bose
Corp., 466 U.S. at 513, and that protection of deliberate falsehoods would hinder the First
Amendment values of robust and well-informed public debate by reducing the reliability of
information available to the public.

We reject the idea that any alteration beyond correction of grammar or syntax by itself proves
falsity in the sense relevant to determining actual malice under the First [**2432] Amendment.
An interviewer who writes from notes often will engage in the task of attempting a
reconstruction of the speaker’s statement. That author would, we may assume, [*515] act with
knowledge that at times she has attributed to her subject words other than those actually used.
                   501 U.S. 496, *515; 111 S. Ct. 2419, **2432; 115 L. Ed. 2d 447, ***471

Under petitioner’s proposed standard, an author in this situation would lack First Amendment
protection if she reported as quotations the substance of a subject’s derogatory statements
about himself.
Even if a journalist has tape-recorded the spoken statement of a public figure, the full and exact
statement will be reported in only rare circumstances. The existence of both a speaker and a
reporter; the translation between two media, speech and the printed word; the addition of
punctuation; and the practical necessity to edit and make intelligible a speaker’s perhaps
rambling comments, all make it misleading to suggest that a quotation will be reconstructed
with complete accuracy. The use or absence of punctuation may distort a speaker’s meaning,
for example, where that meaning turns upon a speaker’s emphasis of a particular word. In other
cases, if a speaker makes an obvious misstatement, for example by unconscious substitution of
one name for another, a journalist might alter the speaker’s words but preserve his intended
meaning. And conversely, an exact quotation out of context can distort meaning, although the
speaker did use each reported word.
In all events, technical distinctions between correcting grammar and syntax and some greater
level of alteration do not appear workable, for we can think of no method by which courts or
juries would draw the line between cleaning up and other changes, except by reference to the
meaning a statement conveys to a reasonable reader. To attempt narrow distinctions of this type
would be an unnecessary departure from First Amendment principles of general applicability,
and, just as important, a departure from the underlying purposes of the tort of libel as
understood since the latter half of the 16th century. From then until now, the tort action for
defamation has existed to redress injury to the [***472] plaintiff’s reputation by a statement
that is defamatory and false. See [*516] Milkovich v. Lorain Journal Co., 497 U.S. 1, 11, 111
L. Ed. 2d 1, 110 S. Ct. 2695 (1990). As we have recognized, ″the legitimate state interest
underlying the law of libel is the compensation of individuals for the harm inflicted on them
by defamatory falsehood.″ Gertz v. Robert Welch, Inc., 418 U.S. 323, 341, 41 L. Ed. 2d 789,
94 S. Ct. 2997 (1974). If an author alters a speaker’s words but effects no material change in
meaning, including any meaning conveyed by the manner or fact of expression, the speaker
suffers no injury to reputation that is compensable as a defamation.
These essential principles of defamation law accommodate the special case of inaccurate
quotations without the necessity for a discrete body of jurisprudence directed to this subject
alone. Last Term, in Milkovich v. Lorain Journal Co., we refused ″to create a wholesale
defamation exemption for anything that might be labeled ’opinion.’″ 497 U.S. at 18 (citation
omitted). We recognized that ″expressions of ’opinion’ may often imply an assertion of
objective fact.″ Ibid. We allowed the defamation action to go forward in that case, holding that
a reasonable trier of fact could find that the so-called expressions of opinion could be
interpreted as including false assertions as to factual matters. So too in the case before us, we
reject any special test of falsity for quotations, including one which would draw the line at
correction of grammar or syntax. We conclude, rather, that the exceptions suggested by
petitioner for grammatical or syntactical corrections serve to illuminate a broader principle.
                   501 U.S. 496, *516; 111 S. Ct. 2419, **2432; 115 L. Ed. 2d 447, ***472

[13] [14]The common law of libel takes but one approach to the question of falsity, regardless
of the form of the communication. See Restatement (Second) of Torts § 563, Comment c
(1977); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on [**2433] Law
of Torts 776 (5th ed. 1984). It overlooks minor inaccuracies and concentrates upon substantial
truth. As in other jurisdictions, California law permits the defense of substantial truth and
would absolve a defendant even if she cannot ″justify every word of the alleged defamatory
matter; it is sufficient if the substance of the [*517] charge be proved true, irrespective of
slight inaccuracy in the details.″ 5 B. Witkin, Summary of California Law § 495 (9th ed. 1988)
(citing cases). In this case, of course, the burden is upon petitioner to prove falsity. See
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775, 89 L. Ed. 2d 783, 106 S. Ct. 1558
(1986). The essence of that inquiry, however, remains the same whether the burden rests upon
plaintiff or defendant. Minor inaccuracies do not amount to falsity so long as ″the substance,
the gist, the sting, of the libelous charge be justified.″ Heuer v. Kee, 15 Cal. App. 2d 710, 714,
59 P.2d 1063, 1064 (1936); see also Alioto v. Cowles Communications, Inc., 623 F.2d 616, 619
(CA9 1980); Maheu v. Hughes Tool Co., 569 F.2d 459, 465-466 (CA9 1978). Put another way,
the statement is not considered false unless it ″would have a different effect on the mind of the
reader from that which the pleaded truth would have produced.″ R. Sack, Libel, Slander, and
Related Problems 138 (1980); see, e. g., Wehling v. Columbia Broadcasting System, 721 F.2d
506, 509 (CA5 1983); see generally R. Smolla, Law of Defamation § 5.08 (1991). Our
definition [***473] of actual malice relies upon this historical understanding.

[15]We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate
with knowledge of falsity for purposes of New York Times Co. v. Sullivan, 376 U.S. at 279-280,
and Gertz v. Robert Welch, Inc., supra, at 342, unless the alteration results in a material change
in the meaning conveyed by the statement. The use of quotations to attribute words not in fact
spoken bears in a most important way on that inquiry, but it is not dispositive in every case.
Deliberate or reckless falsification that comprises actual malice turns upon words and
punctuation only because words and punctuation express meaning. Meaning is the life of
language. And, for the reasons we have given, quotations may be a devastating instrument for
conveying false meaning. In the case under consideration, readers of In the Freud Archives
may have found Malcolm’s portrait of petitioner especially [*518] damning because so much
of it appeared to be a self-portrait, told by petitioner in his own words. And if the alterations
of petitioner’s words gave a different meaning to the statements, bearing upon their defamatory
character, then the device of quotations might well be critical in finding the words actionable.
D

[16]The Court of Appeals applied a test of substantial truth which, in exposition if not in
application, comports with much of the above discussion. The Court of Appeals, however, went
one step beyond protection of quotations that convey the meaning of a speaker’s statement with
substantial accuracy and concluded that an altered quotation is protected so long as it is a
″rational interpretation″ of an actual statement, drawing this standard from our decisions in
                   501 U.S. 496, *518; 111 S. Ct. 2419, **2433; 115 L. Ed. 2d 447, ***473

Time, Inc. v. Pape, 401 U.S. 279, 28 L. Ed. 2d 45, 91 S. Ct. 633 (1971), and Bose Corp. v.
Consumers Union of United States, Inc., 466 U.S. 485, 80 L. Ed. 2d 502, 104 S. Ct. 1949
(1984). Application of our protection for rational interpretation in this context finds no support
in general principles of defamation law or in our First Amendment jurisprudence. Neither
Time, Inc. v. Pape nor Bose Corp. involved the fabrication of quotations, or any analogous
claim, and because many of the quotations at issue might reasonably be construed to state or
imply factual assertions that are both false and defamatory, we cannot accept the reasoning of
the Court of Appeals on this point.

[**2434] In Time, Inc. v. Pape, we reversed a libel judgment which arose out of a magazine
article summarizing a report by the United States Commission on Civil Rights discussing
police civil rights abuses. The article quoted the Commission’s summary of the facts
surrounding an incident of police brutality, but failed to include the Commission’s qualification
that these were allegations taken from a civil complaint. The Court noted that ″the attitude of
the Commission toward the factual verity of the episodes recounted was anything but
straightforward,″ and distinguished between a ″direct account [*519] of events that speak for
themselves,″ 401 U.S. at 285, 286, and an article descriptive of what the Commission had
 [***474] reported. Time, Inc. v. Pape took into account the difficult choices that confront an
author who departs from direct quotation and offers his own interpretation of an ambiguous
source. A fair reading of our opinion is that the defendant did not publish a falsification
sufficient to sustain a finding of actual malice.
In Bose Corp., a Consumer Reports reviewer had attempted to describe in words the experience
of listening to music through a pair of loudspeakers, and we concluded that the result was not
an assessment of events that speak for themselves, but ″’one of a number of possible rational
interpretations’ of an event ’that bristled with ambiguities’ and descriptive challenges for the
writer.″ 466 U.S. at 512 (quoting Time, Inc. v. Pape, supra, at 290). We refused to permit
recovery for choice of language which, though perhaps reflecting a misconception, represented
″the sort of inaccuracy that is commonplace in the forum of robust debate to which the New
York Times rule applies.″ 466 U.S. at 513.

The protection for rational interpretation serves First Amendment principles by allowing an
author the interpretive license that is necessary when relying upon ambiguous sources. Where,
however, a writer uses a quotation, and where a reasonable reader would conclude that the
quotation purports to be a verbatim repetition of a statement by the speaker, the quotation
marks indicate that the author is not involved in an interpretation of the speaker’s ambiguous
statement, but attempting to convey what the speaker said. This orthodox use of a quotation is
the quintessential ″direct account of events that speak for themselves.″ Time, Inc. v. Pape,
supra, at 285. More accurately, the quotation allows the subject to speak for himself.

The significance of the quotations at issue, absent any qualification, is to inform us that we are
reading the statement [*520] of petitioner, not Malcolm’s rational interpretation of what
petitioner has said or thought. Were we to assess quotations under a rational interpretation
                   501 U.S. 496, *520; 111 S. Ct. 2419, **2434; 115 L. Ed. 2d 447, ***474


standard, we would give journalists the freedom to place statements in their subjects’ mouths
without fear of liability. By eliminating any method of distinguishing between the statements
of the subject and the interpretation of the author, we would diminish to a great degree the
trustworthiness of the printed word and eliminate the real meaning of quotations. Not only
public figures but the press doubtless would suffer under such a rule. Newsworthy figures
might become more wary of journalists, knowing that any comment could be transmuted and
attributed to the subject, so long as some bounds of rational interpretation were not exceeded.
We would ill serve the values of the First Amendment if we were to grant near absolute,
constitutional protection for such a practice. We doubt the suggestion that as a general rule
readers will assume that direct quotations are but a rational interpretation of the speaker’s
words, and we decline to adopt any such presumption in determining the permissible
interpretations of the quotations in question here.

III

A

[17]We apply these principles to [***475] the case before us. On summary judgment, we must
 [**2435] draw all justifiable inferences in favor of the nonmoving party, including questions
of credibility and of the weight to be accorded particular evidence. Anderson v. Liberty Lobby,
Inc., 477 U.S. at 255. So we must assume, except where otherwise evidenced by the transcripts
of the tape recordings, that petitioner is correct in denying that he made the statements
attributed to him by Malcolm, and that Malcolm reported with knowledge or reckless disregard
of the differences between what petitioner said and what was quoted.

 [*521] [18]Respondents argue that, in determining whether petitioner has shown sufficient
falsification to survive summary judgment, we should consider not only the tape-recorded
statements but also Malcolm’s typewritten notes. We must decline that suggestion. To begin
with, petitioner affirms in an affidavit that he did not make the complained of statements. The
record contains substantial additional evidence, moreover, evidence which, in a light most
favorable to petitioner, would support a jury determination under a clear and convincing
standard that Malcolm deliberately or recklessly altered the quotations.

First, many of the challenged passages resemble quotations that appear on the tapes, except for
the addition or alteration of certain phrases, giving rise to a reasonable inference that the
statements have been altered. Second, Malcolm had the tapes in her possession and was not
working under a tight deadline. Unlike a case involving hot news, Malcolm cannot complain
that she lacked the practical ability to compare the tapes with her work in progress. Third,
Malcolm represented to the editor in chief of The New Yorker that all the quotations were from
the tape recordings. Fourth, Malcolm’s explanations of the time and place of unrecorded
conversations during which petitioner allegedly made some of the quoted statements have not
been consistent in all respects. Fifth, petitioner suggests that the progression from typewritten
notes, to manuscript, then to galleys provides further evidence of intentional alteration.
                   501 U.S. 496, *521; 111 S. Ct. 2419, **2435; 115 L. Ed. 2d 447, ***475

Malcolm contests petitioner’s allegations, and only a trial on the merits will resolve the factual
dispute. But at this stage, the evidence creates a jury question whether Malcolm published the
statements with knowledge or reckless disregard of the alterations.

B

We must determine whether the published passages differ materially in meaning from the
tape-recorded statements so as to create an issue of fact for a jury as to falsity.

[*522] [1C](a) ″Intellectual Gigolo.″ We agree with the dissenting opinion in the Court of
Appeals that ″fairly read, intellectual gigolo suggests someone who forsakes intellectual
integrity in exchange for pecuniary or other gain.″ 895 F.2d at 1551. A reasonable jury could
find a material difference between the meaning of this passage and petitioner’s tape-recorded
statement that he was considered ″much too junior within the hierarchy of analysis, for these
important training analysts to be caught dead with [him].″

[19]The Court of Appeals majority found it difficult to perceive how the ″ [***476] intellectual
gigolo″ quotation was defamatory, a determination supported not by any citation to California
law, but only by the argument that the passage appears to be a report of Eissler’s and Anna
Freud’s opinions of petitioner. Id., at 1541.We agree with the Court of Appeals that the most
natural interpretation of this quotation is not an admission that petitioner considers himself an
intellectual gigolo but a statement that Eissler and Anna Freud considered him so. It does not
follow, though, that the statement is harmless. Petitioner is entitled to argue that the passage
should be analyzed as if Malcolm had reported falsely that Eissler had given this assessment
(with the added level of complexity that the quotation purports to represent petitioner’s
understanding of Eissler’s view). An admission that two well-respected senior colleagues
 [**2436] considered one an ″intellectual gigolo″ could be as, or more, damaging than a similar
self-appraisal. In all events, whether the ″intellectual gigolo″ quotation is defamatory is a
question of California law. To the extent that the Court of Appeals based its conclusion in the
First Amendment, it was mistaken.

[20][21]The Court of Appeals relied upon the ″incremental harm″ doctrine as an alternative
basis for its decision. As the court explained it: ″This doctrine measures the incremental
reputational harm inflicted by the challenged statements beyond the harm imposed by the
nonactionable remainder of the publication.″ Ibid.; see generally Note, 98 Harv. L. [*523] Rev.
1909 (1985); R. Smolla, Law of Defamation § 9.10[4]d (1991). The court ruled, as a matter of
law, that ″given the . . . many provocative, bombastic statements indisputably made by Masson
and quoted by Malcolm, the additional harm caused by the ’intellectual gigolo’ quote was
nominal or nonexistent, rendering the defamation claim as to this quote nonactionable.″ 895
F.2d at 1541.

This reasoning requires a court to conclude that, in fact, a plaintiff made the other quoted
statements, cf. Liberty Lobby, Inc. v. Anderson, 241 U.S. App. D.C. 246, 251, 746 F.2d 1563,
                   501 U.S. 496, *523; 111 S. Ct. 2419, **2436; 115 L. Ed. 2d 447, ***476

1568 (1984), vacated and remanded on other grounds, 477 U.S. 242, 106 S. Ct. 2505, 91 L.
Ed. 2d 202 (1986), and then to undertake a factual inquiry into the reputational damage caused
by the remainder of the publication. As noted by the dissent in the Court of Appeals, the most
″provocative, bombastic statements″ quoted by Malcolm are those complained of by petitioner,
and so this would not seem an appropriate application of the incremental harm doctrine. 895
F.2d at 1566.

Furthermore, the Court of Appeals provided no indication whether it considered the
incremental harm doctrine to be grounded in California law or the First Amendment. Here, we
reject any suggestion that the incremental harm doctrine is compelled as a matter of First
Amendment protection for speech. The question of incremental harm does not bear upon
whether a defendant has published a statement with knowledge of falsity or reckless disregard
of whether it was false or not. As a question of state law, on the other hand, we are given no
indication that California accepts this doctrine, though it remains free to do so. Of course, state
tort law doctrines of injury, causation, and damages calculation might allow a defendant to
press the argument [***477] that the statements did not result in any incremental harm to a
plaintiff’s reputation.

[2C](b) ″Sex, Women, Fun.″ This passage presents a closer question. The ″sex, women, fun″
quotation offers a very different picture of petitioner’s plans for Maresfield Gardens [*524]
than his remark that ″Freud’s library alone is priceless.″ See supra, at 503. Petitioner’s other
tape-recorded remarks did indicate that he and another analyst planned to have great parties at
the Freud house and, in a context that may not even refer to Freud house activities, to ″pass
women on to each other.″ We cannot conclude as a matter of law that these remarks bear the
same substantial meaning as the quoted passage’s suggestion that petitioner would make the
Freud house a place of ″sex, women, fun.″

[3C](c) ″It Sounded Better.″ We agree with the District Court and the Court of Appeals that any
difference between petitioner’s tape-recorded statement that he ″just liked″ the name
Moussaieff, and the quotation that ″it sounded better″ is, in context, immaterial. Although
Malcolm did not include all of petitioner’s lengthy explanation of his name change, she did
convey the gist of that explanation: Petitioner took his abandoned family name as his middle
name. We agree with the Court of Appeals that the words attributed to petitioner did not
materially alter the meaning of his statement.

[**2437] [4C](d) ″I Don’t Know Why I Put It In.″ Malcolm quotes petitioner as saying that
he ″tacked on at the last minute″ a ″totally gratuitous″ remark about the ″sterility of
psychoanalysis″ in an academic paper, and that he did so for no particular reason. In the tape
recordings, petitioner does admit that the remark was ″possibly [a] gratuitously offensive way
to end a paper to a group of analysts,″ but when asked why he included the remark, he
answered ″[because] it was true . . . I really believe it.″ Malcolm’s version contains material
differences from petitioner’s statement, and it is conceivable that the alteration results in a
statement that could injure a scholar’s reputation.
                    501 U.S. 496, *524; 111 S. Ct. 2419, **2437; 115 L. Ed. 2d 447, ***477

[5C](e) ″Greatest Analyst Who Ever Lived.″ While petitioner did, on numerous occasions,
predict that his theories would do irreparable damage to the practice of psychoanalysis, and did
suggest that no other analyst shared his views, no tape-recorded statement appears to contain
the substance or the [*525] arrogant and unprofessional tone apparent in this quotation. A
material difference exists between the quotation and the tape-recorded statements, and a jury
could find that the difference exposed petitioner to contempt, ridicule, or obloquy.
[6C](f) ″He Had The Wrong Man.″ The quoted version makes it appear as if petitioner rejected
a plea to remain in stoic silence and do ″the honorable thing.″ The tape-recorded version
indicates that petitioner rejected a plea supported by far more varied motives: Eissler told
petitioner that not only would silence be ″the honorable thing,″ but petitioner would ″save
face,″ and might be rewarded for that silence with eventual reinstatement. Petitioner described
himself as willing to undergo a scandal in order to shine the light of publicity upon the actions
of the Freud Archives, while Malcolm would have petitioner describe himself [***478] as a
person who was ″the wrong man″ to do ″the honorable thing.″ This difference is material, a
jury might find it defamatory, and, for the reasons we have given, there is evidence to support
a finding of deliberate or reckless falsification.

C

[22]Because of the Court of Appeals’ disposition with respect to Malcolm, it did not have
occasion to address petitioner’s argument that the District Court erred in granting summary
judgment to The New Yorker Magazine, Inc., and Alfred A. Knopf, Inc., on the basis of their
respective relations with Malcolm or the lack of any independent actual malice. These
questions are best addressed in the first instance on remand.

The judgment of the Court of Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion.

It is so ordered.

Concur by: WHITE (In Part)

Dissent by: WHITE (In Part)

Dissent

JUSTICE WHITE, with whom JUSTICE SCALIA joins, concurring in part and dissenting in
part.

I join Parts I, II-A, II-D, and III-A, but cannot wholly agree with the remainder of the opinion.
My principal disagreement [*526] is with the holding, ante, at 517, that ″a deliberate alteration
of the words uttered by a plaintiff does not equate with knowledge of falsity . . . unless the
alteration results in a material change in the meaning conveyed by the statement.″
                          501 U.S. 496, *526; 111 S. Ct. 2419, **2437; 115 L. Ed. 2d 447, ***478

Under New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964),
″malice″ means deliberate falsehood or reckless disregard for whether the fact asserted is true
or false. Id., at 279-280. As the Court recognizes, the use of quotation marks in reporting what
a person said asserts that the person spoke the words as quoted. As this case comes to us, it is
to be judged on the basis that in the instances identified by the Court, the reporter, Malcolm,
wrote that Masson said certain things that she knew Masson did not say. By any definition of
the term, this was ″ [**2438] knowing falsehood″: Malcolm asserts that Masson said these very
words, knowing that he did not. The issue, as the Court recognizes, is whether Masson spoke
the words attributed to him, not whether the fact, if any, asserted by the attributed words is true
or false. In my view, we need to go no further to conclude that the defendants in this case were
not entitled to summary judgment on the issue of malice with respect to any of the six
erroneous quotations.

That there was at least an issue for the jury to decide on the question of deliberate or reckless
falsehood does not mean that plaintiffs were necessarily entitled to go to trial. If, as a matter
of law, reasonable jurors could not conclude that attributing to Masson certain words that he
did not say amounted to libel under California law, i. e., ″exposed [Masson] to hatred,
contempt, ridicule, or obloquy, or which caused him to be shunned or avoided, or which had
a tendency to injure him in his occupation,″ Cal. Civ. Code Ann. § 45 (West 1982), a motion
for summary judgment on [***479] this ground would be justified. * I would suppose, for
example, [*527] that if Malcolm wrote that Masson said that he wore contact lenses, when he
said nothing about his eyes or his vision, the trial judge would grant summary judgment for the
defendants and dismiss the case. The same would be true if Masson had said ″I was spoiled
as a child by my Mother,″ whereas, Malcolm reports that he said ″I was spoiled as a child by
my parents.″ But if reasonable jurors could conclude that the deliberate misquotation was
libelous, the case should go to the jury.

This seems to me to be the straightforward, traditional approach to deal with this case. Instead,
the Court states that deliberate misquotation does not amount to New York Times malice unless
it results in a material change in the meaning conveyed by the statement. This ignores the fact
that, under New York Times, reporting a known falsehood -- here the knowingly false
attribution -- is sufficient proof of malice. The falsehood, apparently, must be substantial; the
reporter may lie a little, but not too much.

This standard is not only a less manageable one than the traditional approach, but it also
assigns to the courts issues that are for the jury to decide. For a court to ask whether a
misquotation substantially alters the meaning of spoken words in a defamatory manner is a far
different inquiry from whether reasonable jurors could find that the misquotation was different
enough to be libelous. In the one case, the court is measuring the difference from its own point
of view; in the other it is asking how the jury would or could view the erroneous attribution.
*
    In dealing with the ″intellectual gigolo″ passage, the Court of Appeals ruled that there was no malice but in the alternative went on
to say that as a matter of law the erroneous attribution was not actionable defamation. 895 F.2d 1535, 1540-1541 (CA9 1989).
                   501 U.S. 496, *527; 111 S. Ct. 2419, **2438; 115 L. Ed. 2d 447, ***479


The Court attempts to justify its holding in several ways, none of which is persuasive. First,
it observes that an interviewer who takes notes of any interview will attempt to reconstruct
what the speaker said and will often knowingly attribute to the subject words that were not used
by the speaker. Ante, at 514-515. But this is nothing more than an assertion that authors may
misrepresent because they cannot remember what the speaker actually said. This [*528]
should be no dilemma for such authors, for they could report their story without purporting to
quote when they are not sure, thereby leaving the reader to trust or doubt the author rather than
believing that the subject actually said what he is claimed to have said. Moreover, this basis
for the Court’s rule has no application where there is a tape of the interview and the author is
in no way at a loss to know what the speaker actually said. Second, the Court speculates that
even with the benefit of a recording, the author will find it necessary at times to reconstruct,
ante, at 515, but again, in those cases why should the author be free to put his or her
reconstruction in quotation marks, rather than report without them? Third, the Court [**2439]
suggests that misquotations that do not materially alter the meaning inflict no injury to
reputation that is compensable as defamation. Ante, at 517. This may be true, but this is a
question of defamation or [***480] not, and has nothing to do with whether the author
deliberately put within quotation marks and attributed to the speaker words that the author
knew the speaker did not utter.
As I see it, the defendants’ motion for summary judgment based on lack of malice should not
have been granted on any of the six quotations considered by the Court in Part III-B of its
opinion. I therefore dissent from the result reached with respect to the ″It Sounded Better″
quotation dealt with in paragraph (c) of Part III-B, but agree with the Court’s judgment on the
other five misquotations.

References

16 Am Jur 2d, Constitutional Law 506; 50 Am Jur 2d, Libel and Slander 173-175, 297, 30116A
Am Jur Pl & Pr Forms (Rev), Libel and Slander, Forms 31, 204, 39414 Am Jur Proof of Facts
2d 49, Defamation With Actual Malice17 Am Jur Trials 223, Libel Actions by Public Officials;
19 Am Jur Trials 499, DefamationUSCS, Constitution, Amendment 1L Ed Digest, Constitutional
Law 948; Summary Judgment and Judgment on Pleadings 5L Ed Index, Freedom of Speech
and Press; Libel and Slander; New York Times RuleIndex to Annotations, Freedom of Speech
and Press; Libel and Slander; Newspapers and Periodicals; New York Times Rule; Writers and
Editors          Annotation References: Progeny of New York Times v Sullivan in the Supreme
Court. 61 L Ed 2d 975.Constitutional aspects of libel and slander-- Supreme Court cases. 28
L Ed 2d 885.Libel and slander: Who is ″public figure″ in the light of Gertz v Robert Welch,
Inc. (1974) 418 US 323, 41 L Ed 2d 789, 94 S Ct 2997. 75 ALR3d 616.Libel and slander: what
constitutes actual malice, within federal constitutional rule requiring public officials and public
figures to show actual malice. 20 ALR3d 988.Constitutional aspects of libel or slander of
public officials. 95 ALR2d 1450.Necessity and sufficiency of plaintiff’s allegations as to falsity
in defamation action. 85 ALR2d 460.Sufficiency of plaintiff’s allegations in defamation action
as to defendant’s malice. 76 ALR2d 696.
                                                     Neely v. Wilson
                                                 Supreme Court of Texas
                    September 13, 2012, Argued; June 28, 2013, Opinion Delivered
                                                          No. 11-0228

Reporter
418 S.W.3d 52; 2013 Tex. LEXIS 1082; 57 Tex. Sup. J. 224

BYRON D. NEELY, INDIVIDUALLY, AND BYRON D. NEELY, M.D., P.A., PETITIONERS,
v. NANCI WILSON, CBS STATIONS GROUP OF TEXAS, L.P., D/B/A KEYE-TV, AND
VIACOM, INC., RESPONDENTS

Subsequent History: [**1] Note: Opinion corrected when rehearing was denied, 01/31/2014.

Prior History: ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE
THIRD DISTRICT OF TEXAS.
Neely v. Wilson, 2013 Tex. LEXIS 511 (Tex., 2013)

Judges: JUSTICE GUZMAN delivered the opinion of the Court, in which JUSTICE
JOHNSON, JUSTICE WILLETT, JUSTICE BOYD, and JUSTICE DEVINE joined. CHIEF
JUSTICE JEFFERSON filed a dissenting opinion, in which JUSTICE GREEN and JUSTICE
LEHRMANN joined. JUSTICE HECHT did not participate in the decision. CHIEF JUSTICE
JEFFERSON, joined by JUSTICE GREEN and JUSTICE LEHRMANN, dissenting.

Opinion by: Eva M. Guzman

Opinion

    [*56] This is an appeal of a summary judgment granted to media defendants in a suit
stemming from their investigative broadcast involving a physician. This suit, like all
defamation suits, implicates the competing constitutional rights to seek redress for reputational
torts and the constitutional rights to free speech and press. But we have long held that despite
these concerns, we adhere to our well-settled summary judgment standards.1 Thus, we decide
here whether the physician raised a genuine issue of material fact to defeat summary judgment
and proceed to trial on his defamation claim.

Truth is a defense to all defamation suits. Additionally, the Legislature has provided other
specific defenses for media defendants, such as the official/judicial proceedings privilege, the
1
   Casso v. Brand, 776 S.W.2d 551, 555 n.3 (Tex. 1989) [**2] (noting that constitutional implications in defamation claims do not alter
our summary judgment standards).
                                          418 S.W.3d 52, *57; 2013 Tex. LEXIS 1082, **3


fair comment privilege, and the due care provision. Here, the media defendants raised various
defenses in their summary judgment motion but focused primarily on the truth defense: there
is no defamation liability if the gist of the broadcast is substantially true. In the court of
appeals, the media defendants mainly argued that we created a rule in McIlvain v. Jacobs2 that
a media defendant’s reporting of third-party allegations is substantially true if it accurately
reports the allegations—even if the allegations themselves are false. We created no such rule
in McIlvain, and the facts of this case likewise do not require us to create such a rule. While
it is possible for the gist of a broadcast to be mere allegation reporting (such that the truth of
such a broadcast might be measured by its accuracy), a person of ordinary intelligence could
conclude that the gist of the broadcast at issue [**3] was that the physician was disciplined for
operating on patients while taking dangerous [*57] drugs or controlled substances. We hold
the physician raised a genuine issue of material fact as to the truth or falsity of that gist with
evidence that he was not disciplined for taking dangerous drugs or controlled substances and
had never performed surgery while taking them.3

As to the remaining defenses, the media defendants did not raise the due care provision in their
summary judgment motion and have not conclusively proven the application of another
defense or privilege. At trial, the media defendants may well prevail on the truth defense or on
one or more of these other defenses and privileges, but they have not conclusively done so
here. We therefore reverse the judgment of the court of appeals and remand the case to the trial
court for further proceedings.

I. Factual Background

Dr. Byron Neely is a neurosurgeon who practiced in Austin. In 1999, he installed a shunt to
drain fluid from a tumor in Paul Jetton’s brain. An enterobacterial infection set in, leaving Paul
in a debilitated state even after [**5] 12 subsequent brain surgeries. Paul and his wife, Sheila,
sued Neely and others, and Neely settled. In 2002, the Jettons filed a complaint with the Texas
Medical Board (Board), and the Board investigation found no wrongdoing by Neely.

Neely also performed surgery on Wei Wu in 1999. After removing a brain tumor, Neely
reported seeing small deposits of metastatic melanoma on the surface of Wu’s brain during
2
    794 S.W.2d 14 (Tex. 1990).
3
    On rehearing, no party challenges our holding that we have not yet recognized a rule establishing accuracy as the test for the
substantial truth of a broadcast that repeats third-party allegations. Briefing submitted in support of rehearing construes our opinion as
foreclosing such a rule and as affirmatively requiring the underlying allegation be proven substantially true to prevail on the truth defense.
That interpretation, however, misconstrues our holding. We conclude there is a fact issue as to the truth or falsity of the gist of the media
defendants’ broadcast indicating the physician was disciplined for operating on patients while taking dangerous drugs or controlled
substances. Importantly, this fact issue as to truth is likewise a fact issue as to accuracy. Though the media defendants [**4] advocate
for accuracy as the test for truthfulness of the gist, given our holding concerning the gist, such a rule would not shield the media
defendants here. We thus, as we must, leave open the question of whether a broadcast whose gist is merely that allegations were made
is substantially true if the allegations were accurately repeated. See Heckman v. Williamson Cnty., 369 S.W.3d 137, 147 (Tex. 2012)
(discussing prohibition on rendering advisory opinions).
                                        418 S.W.3d 52, *57; 2013 Tex. LEXIS 1082, **7

surgery.4 Soon after Wu recovered from the operation and learned of the melanoma deposits
from his oncologist, he committed suicide. The autopsy report indicated ″no residual metastatic
melanoma on gross inspection,″ which the coroner later clarified to mean that he believed Wu
no longer had any melanoma after the operation. Wu’s ex-wife sued Neely on behalf of her
minor son, but the suit was dismissed on procedural grounds.5
In 2003, after a separate investigation by the Board, Neely entered into an Agreed Order
(Order). In the Order, the Board found that Neely had self-prescribed medications between
1999 and 2002 and had a prior history of hand tremors. Further, the Board found that he was
subject to disciplinary action due to his ″inability to practice medicine with reasonable [*58]
skill and safety to patients, due to mental or physical condition″ and his self-prescription of
medications. The Order suspended Neely’s license, but stayed the suspension, placed him on
probation for three years, ordered physical and psychiatric evaluations, and prohibited Neely
from prescribing medications to himself or his family.
In January 2004, KEYE-TV in Austin ran a 7-minute investigative report by Nanci Wilson
(collectively ″KEYE″) regarding Neely. The transcript of the entire broadcast is attached as
Appendix A. The broadcast began with anchor Fred Cantu asking:

     If [**7] you needed surgery would you want to know if your surgeon had been
     disciplined for prescribing himself and taking dangerous drugs, had a history of hand
     tremors and had been sued several times for malpractice in the last few years?

Co-anchor Judy Maggio continued:
     A central Texas couple says they didn’t learn about this until it was too late. They’re
     outraged the [Board] is allowing Dr. Byron Neely to continue to practice. KEYE news
     investigative reporter Nanci Wilson tells us if you go to St. David’s Hospital with a head
     injury you could be Dr. Neely’s next patient.

Wilson then interviewed Paul Jetton, who related that Neely recommended surgery after an
MRI indicated he had a brain tumor. Wilson stated that the hospital discharged Jetton despite
the fact that a bacterial infection set in at the surgical site. Wilson continued:
     The result: numerous surgeries and a life of disability. Paul’s wife, Sheila, says what
     they learned from other doctors was the final blow.

Sheila Jetton then stated:
     Every neurosurgeon that’s looked at Paul’s MRIs from before Neely operated on him
     have [sic] said they would have never done surgery. They would have watched him with
     MRIs over years.
4
    ″Metastatic cancer is cancer that has spread from the place where it first started to another place in the body.″ Metastatic Cancer,
National Cancer Institute (Mar. 28, 2013), http://www.cancer.gov/cancertopics/factsheet/Sites-Types/metastatic (on file with Clerk’s
office).
5
    The Board also investigated the Wu case and found no wrongdoing, but that order issued [**6] after the broadcast in question.
                            418 S.W.3d 52, *58; 2013 Tex. LEXIS 1082, **7

Wilson segued to [**8] discuss the Wu case, relating that Neely discovered and removed
malignant melanoma from Wu’s brain during surgery and that Wu committed suicide after
learning of the diagnosis. Wilson then stated that when

   the Travis County Medical Examiner’s office, analyz[ed] Wu’s brain[], examiners noted
   no residual metastatic melanoma. Meaning Wei Wu did not have brain cancer.

Wilson continued:

   The [Board] investigated Dr. Neely. The board found Neely had a history of hand
   tremors and that between 1999 and 2002, Dr. Neely was writing prescriptions, not only
   for his patients but for himself as well. Narcotics, muscle relaxers and pain killers.
   Something former patient Paul Jetton finds shocking.

Paul Jetton commented:

   Narcotics, opiates, I mean it’s just things that, I mean things that they don’t even let
   people operate machinery or drive cars when they’re, when they’re taking them and this
   guy’s doing brain surgery on people. I mean it’s just, even now I’m just, it’s just
   incredulous, you just can’t even believe that it even happened.

Wilson then related that the Order placed Neely on probation, required him to see a
psychiatrist, and prohibited him from prescribing to himself or his family. Wilson interviewed
 [**9] a Board representative and asked:

   But how would they know if he is using? He can get somebody else to prescribe him.
   I mean he could say, ″I’ve followed [*59] the order.″ . . . . How do we, how do we know
   that he’s, that we’re not putting somebody right back out there to do the same thing he
   was doing before?

The Board representative responded:

   That’s a very good question and why this order doesn’t include drug testing, I, I
   honestly don’t know the answer to that.

The broadcast then included a statement from Paul Jetton:

   I think it’s just deplorable, I mean if, if it was another profession, uh, the guy would be
   in jail.

Wilson related a comment from Neely’s attorney that

   two highly qualified neurosurgeons who reviewed the case agree with the medical
   decisions made by Dr. Neely. In addition, the [Board] investigated the Jetton case and
   found no wrong doing.
                                       418 S.W.3d 52, *59; 2013 Tex. LEXIS 1082, **9

Wilson noted that Neely’s hospital had a pending investigation regarding whether to continue
Neely’s privileges. The broadcast ended by noting that the Jettons settled their suit with Neely,
Wu’s suit was dismissed, the other suits remained pending, and the Board posts final decisions
on its website.
After the report aired, Neely claims his practice [**10] collapsed. His referrals from other
physicians dwindled, existing appointments cancelled (citing the broadcast as the reason for
the cancellation), his income diminished, and his home went into foreclosure. He and his
professional association (collectively ″Neely″) sued KEYE6 for libel. KEYE moved for
summary judgment, which the trial court granted without specifying the grounds. Neely raised
seven issues in the court of appeals, three of which are relevant here: (1) the trial court erred
generally by granting summary judgment; (2) the trial court erred because Neely had probative
evidence on each element of his defamation claim; and (3) there is no rule in Texas shielding
media defendants from liability simply because they accurately report defamatory statements
made by a third party. 331 S.W.3d 900, 914. The court of appeals held that under McIlvain v.
Jacobs, 794 S.W.2d 14 (Tex. 1990), none of the statements were actionable as a matter of law
because KEYE accurately reported third-party allegations. 331 S.W.3d at 922, 926-28. The
court of appeals affirmed the trial court’s grant of summary judgment.7 Id. at 928.

II. Standard of Review

We review a trial court’s grant of summary judgment de novo. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The party moving for summary judgment bears the
burden of proof. Roskey v. Tex. Health Facilities Comm’n, 639 S.W.2d 302, 303 (Tex. 1982).
Though these burdens vary for traditional and no-evidence motions, the summary judgment
motion here was a hybrid motion and both parties brought forth summary judgment evidence;
therefore, the differing burdens are immaterial and the ultimate issue is whether a fact issue
exists. Buck v. Palmer, 381 S.W.3d 525, 527 & n.2 (Tex. 2012). A fact issue exists if there is
more than a scintilla of probative evidence. See id. at 527; TEX. R. CIV. P. 166a(c),(i). We must
review the summary judgment record ″in [*60] the light most favorable to the nonmovant,
indulging every reasonable inference and resolving [**12] any doubts against the motion.″ City
of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). ″In reviewing a summary judgment, we
consider all grounds presented to the trial court and preserved on appeal in the interest of
judicial economy.″ Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005).
We have held that the constitutional concerns over defamation, discussed below, do not affect
these summary judgment standards of review. Casso v. Brand, 776 S.W.2d 551, 555 n.3 (Tex.
1989).

III. Discussion
6
   Neely also sued Viacom, Inc., but the court of appeals held that Neely [**11] waived any challenge as to summary judgment
dismissal of the claims against Viacom. 331 S.W.3d 900, 914. Neely does not contest that ruling here.
7
   The court of appeals also affirmed the trial court’s exclusion of some of Neely’s summary judgment evidence. 331 S.W.3d at 928-29.
Neely does not challenge that ruling here.
                             418 S.W.3d 52, *60; 2013 Tex. LEXIS 1082, **12

A. Competing Constitutional Concerns

The common law has long allowed a person to recover for damage to her reputation occasioned
by the publication of false and defamatory statements. Milkovich v. Lorain Journal Co., 497
U.S. 1, 11, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990). Chief Justice Rehnquist noted that
Shakespeare penned the rationale for the cause of action in Othello:

   Good name in man and woman, dear my lord,
   Is the immediate jewel of their souls.
   Who steals my purse steals trash;
   ’Tis something, nothing;
   ’Twas mine, ’tis his, and has been slave to thousands;
   But he that filches from me my good name
   Robs me of that which not enriches him,
   And makes me poor indeed.

WILLIAM SHAKESPEARE, [**13] OTHELLO, act 3 sc. 3, quoted in Milkovich, 497 U.S. at 12. Unlike
the federal Constitution, the Texas Constitution twice expressly guarantees the right to bring
suit for reputational torts. See TEX. CONST. art. I, §§ 8 (″Every person shall be at liberty to speak,
write or publish his opinions on any subject, being responsible for the abuse of that privilege.″),
13 (″All courts shall be open, and every person for an injury done him, in his lands, goods,
person or reputation, shall have remedy by due course of law.″ (emphasis added)).

The right to recover for defamation, however, is not the only constitutional concern at stake.
Of significant import are the constitutional rights to free speech and a free press. See Cain v.
Hearst Corp., 878 S.W.2d 577, 582 (Tex. 1994). As the United States Supreme Court has
articulated, ″[w]hatever is added to the field of libel is taken from the field of free debate.″ New
York Times Co. v. Sullivan, 376 U.S. 254, 272, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). To
balance these competing interests, the United States Supreme Court through federal
constitutional law, this Court through the common law, and the Legislature through statutes,
have undertaken to [**14] tailor the tort of defamation so as to preserve the right to recover
for reputational damages while minimally impinging on the rights to free speech and a free
press. Cain, 878 S.W.2d at 582.

B. Elements of Defamation

The tort of defamation includes libel and slander. Libel occurs when the defamatory statements
are in writing. TEX. CIV. PRAC. & REM. CODE § 73.001. Slander occurs when the statements are
spoken. Milkovich, 497 U.S. at 17. The broadcast of defamatory statements read from a script
is libel, not slander. Christy v. Stauffer Publ’ns, Inc., 437 S.W.2d 814, 815 (Tex. 1969). Libel
                                        418 S.W.3d 52, *60; 2013 Tex. LEXIS 1082, **14


″tends to injure a living person’s reputation and thereby expose the person to public hatred,
contempt or ridicule, or financial injury or to impeach any person’s honesty, integrity, virtue,
or reputation . . . .″ TEX. CIV. PRAC. & REM. CODE § 73.001.
[*61] We have revised the elements of the defamation cause of action in response to the United
States Supreme Court’s application of constitutional principles to defamation claims. Before
Sullivan, 376 U.S. at 254, the defamation plaintiff generally prevailed by proving the defendant
published a statement that defamed her unless the defendant proved the truth [**15] of the
statement. Pierre N. Leval, The No-Money, No-Fault Libel Suit: Keeping Sullivan in Its Proper
Place, 101 HARV. L. REV. 1287, 1287 (1988). But the Supreme Court held in Sullivan that
freedom of expression requires ″breathing space,″ and that if the plaintiff is a public official,
she must prove the defendant had actual malice. 376 U.S. at 272, 279-80. The Court later held
that public figures and limited purpose public figures must also prove actual malice, and that
states may set their own level of fault for private plaintiffs.8 Gertz v. Robert Welch, Inc., 418
U.S. 323, 345, 347, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). The Court left the precise standard
of fault to the states, and we have chosen a negligence standard for a private figure seeking
defamation damages from a media defendant.9 WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568,
571 (Tex. 1998); see also Gertz, 418 U.S. at 353 (Blackmun, J., concurring) (″[T]he Court now
conditions a libel action by a private person upon a showing of negligence, as contrasted with
a showing of willful or reckless disregard.″); RESTATEMENT (SECOND) OF TORTS § 580B (1977).
In light of these holdings, to recover defamation damages in Texas, [**16] a plaintiff must
prove the media defendant: (1) published a statement; (2) that defamed the plaintiff; (3) while
either acting with actual malice (if the plaintiff was a public official or public figure) or
negligence (if the plaintiff was a private individual) regarding the truth of the statement.
McLemore, 978 S.W.2d at 571.
KEYE frames a central issue in this proceeding as the liability of a media defendant for
republishing a third party’s allegedly defamatory statements. We first observe that it is a
well-settled legal principle that one is liable for republishing the defamatory statement of
another. [**17] See Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S.
376, 386, 93 S. Ct. 2553, 37 L. Ed. 2d 669 (1973) (noting that a ″newspaper may not defend
a libel suit on the ground that the falsely defamatory statements are not its own″).10 The rule’s
broad application has thus brought about efforts to soften its impact, such as the Sullivan and
8
   The Court also determined actual malice requires proof by clear and convincing evidence. Gertz v. Robert Welch, Inc., 418 U.S. 323,
342, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974).
9
   The majority of states have adopted a negligence standard for private figures, while Alaska, Colorado, Indiana, and New Jersey have
adopted the actual malice standard for private figures. 1 RODNEY A. SMOLLA, LAW OF DEFAMATION § 3:31 (2d ed. 1991), cited in Kaitlin M.
Gurney, Myspace, Your Reputation: A Call to Change Libel Laws for Juveniles Using Social Networking Sites, 82 TEMP. L. REV. 241, 251
& n.97 (2009).
10
     See also RESTATEMENT (SECOND) OF TORTS § 578 (1977) (″[O]ne who repeats or otherwise republishes defamatory material is subject
to liability as if he had originally published it.″);1 ROBERT D. SACK, SACK ON DEFAMATION § 2.7.1 (3d ed. 2009) (″’The common law of libel
has long held that one who republishes a defamatory statement adopts it as his own and is liable [for false, defamatory statements] in
equal measure to the original defamer.’″ (quoting Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1298, 267 U.S. App. D.C.
337 (D.C. Cir. 1988)) (alteration in original)).
                                       418 S.W.3d 52, *61; 2013 Tex. LEXIS 1082, **17

Gertz decisions requiring a showing of fault as well as the privileges and defenses described
[*62] below. 1 ROBERT D. SACK, SACK ON DEFAMATION § 2.7.1 (3d ed. 2009).

C. Privileges and Defenses
The common law and statutes provide certain defenses and privileges to defamation
 [**18] claims. These include the defense of truth, TEX. CIV. PRAC. & REM. CODE § 73.005, which
we have interpreted to require defendants to prove the publication was substantially true,
Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000). Moreover, statements that
are not verifiable as false cannot form the basis of a defamation claim. Milkovich, 497 U.S. at
21-22. Further, the common law has recognized a judicial proceedings privilege since at least
1772 for parties, witnesses, lawyers, judges, and jurors.11 Additionally, one cannot recover
mental anguish damages for defamation of a deceased individual. Renfro Drug Co. v. Lawson,
138 Tex. 434, 160 S.W.2d 246, 250 (Tex. 1942); see also RESTATEMENT (SECOND) OF TORTS § 560
(1977). And a qualified privilege exists under the common law when a statement is made in
good faith and the author, recipient, a third person, or one of their family members has an
interest that is sufficiently affected by the statement. Diamond Shamrock Ref. & Mktg. Co. v.
Mendez, 844 S.W.2d 198, 210 (Tex. 1992) (Hightower, J., concurring).
The United States Supreme Court, this Court, and the Legislature have afforded additional
protections to media defendants. The United States Supreme Court and this Court long ago
shifted the burden of proving the truth defense to require the plaintiff to prove the defamatory
statements were false when the statements were made by a media defendant over a public
concern. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777, 106 S. Ct. 1558, 89 L.
Ed. 2d 783 (1986); McIlvain, 794 S.W.2d at 15.12 This distinction is less material at the
summary judgment stage where, as here, the media defendant is the movant. See Casso, 776
S.W.2d at 555 n.3.
Additionally, the Legislature has crafted the official/judicial proceedings privilege, which
shields periodical publications from republication [**20] liability for fair, true, and impartial
accounts of judicial, executive, legislative, and other official proceedings.13 TEX. CIV. PRAC. &
REM. CODE § 73.002(b)(1). And the Legislature has also adopted the fair comment privilege,
shielding periodical publications from republication liability for reasonable and fair comment
on or criticism of official acts of public officials or other public concerns. Id. § 73.002(b)(2).
11
    SACK, supra note 10, § 8.2.1 (citing King v. Skinner, 1 Lofft 55, 56, 98 Eng. Rep. 529, 530 (K.B. 1772), quoted in Burns v. Reed,
500 U.S. 478, 490, 111 S. Ct. 1934, 114 L. Ed. 2d 547 (1991)). [**19] We have long recognized this privilege in Texas. Reagan v.
Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909, 912 (Tex. 1942).
12
    Neely admitted in his deposition that the public has a right to know about the Board’s findings. The parties do not dispute that the
defendants are members of the media. Thus, we hold that Neely must prove the falsity of the broadcast to recover damages. Hepps, 475
U.S. at 777.
13
    We previously noted that ″we are reluctant to afford greater constitutional protection to members of the print and broadcast media
than to ordinary citizens″ because the ″First Amendment affords equal dignity to freedom of speech and freedom of the press.″ Casso,
776 S.W.2d at 554. But this understanding of the constitution is no impediment to the Legislature crafting additional protections for
media defendants, which it has done in Chapter 73 of the Civil Practice and Remedies Code.
                                        418 S.W.3d 52, *63; 2013 Tex. LEXIS 1082, **20

 [*63]   Notably, the Legislature has also added the due care provision for broadcasters,
shielding them from liability unless the plaintiff proves the broadcaster failed to exercise due
care to prevent publication of a defamatory statement. Id. § 73.004. The provision requires that:

     A broadcaster [**21] is not liable in damages for a defamatory statement published or
     uttered in or as a part of a radio or television broadcast by one other than the broadcaster
     unless the complaining party proves that the broadcaster failed to exercise due care to
     prevent the publication or utterance of the statement in the broadcast.

Id. We have previously commented that, under the due care provision, ″[b]roadcasters are
generally not liable in defamation for broadcasts made by third parties.″ Cain, 878 S.W.2d at
582. A number of other jurisdictions have enacted a due care provision, although some states
require the defendant broadcaster to prove it used due care (as opposed to our statute, which
requires the plaintiff to prove the defendant broadcaster did not use due care).14 KEYE did not
raise the due care provision at the summary judgment stage, and thus it is not at issue in this
proceeding.
Moreover, [**22] we note that this past regular session, the Legislature passed the Defamation
Mitigation Act, which requires defamation plaintiffs to request a correction, clarification, or
retraction from the publisher of a defamatory statement within the limitations period for the
defamation claim. TEX. CIV. PRAC.&REM. CODE §§ 73.051, .054-.055 (added by H.B. 1759, 83d
Leg., R.S., § 2). Under this provision, a defamation plaintiff may only recover exemplary
damages if she serves the request for a correction, clarification, or retraction within 90 days of
receiving knowledge of the publication.15 Id. § 73.055(c).

D. Substantial Truth

Whether Neely raised a fact issue regarding the truth or falsity of the underlying statements is
the primary issue in this appeal. We have developed the substantial truth doctrine to determine
the truth or falsity of a broadcast: if a broadcast taken as a whole is more damaging to the
plaintiff’s reputation than a truthful broadcast would have been, the broadcast is not
substantially true and is actionable. Turner, 38 S.W.3d at 115 [**23] (″the meaning of a
publication, and thus whether it is false and defamatory, depends on a reasonable person’s
perception of the entirety of a publication and not merely on individual statements″); McIlvain,
794 S.W.2d at 16 (″The test used in deciding whether the broadcast is substantially true
involves consideration of whether the alleged defamatory statement was more damaging to
[the plaintiff’s] reputation, in the mind of the average listener, than a truthful statement would
have been. This evaluation involves looking to the ’gist’ of the broadcast.″ (citations omitted));
14
    See, e.g., CAL.CIV.CODE § 48.5(1); COLO.REV.STAT. § 13-21-106; FLA.STAT. § 770.04; GA. CODE ANN. § 51-5-10(a); IOWA CODE § 659.5;
KY. REV. STAT. ANN. § 411.062; NEB. REV. STAT. § 25-840.02(1); OR. REV. STAT. § 31.200(1); S.D. CODIFIED LAWS § 20-11-6; UTAH CODE ANN.
§ 45-2-7; VA. CODE ANN. § 8.01-49; WYO. STAT. ANN. § 1-29-101.
15
    The Defamation Mitigation Act only affects publications published after its effective date and does not apply to this proceeding. H.B.
1759, 83d Leg., R.S., § 3.
                                       418 S.W.3d 52, *63; 2013 Tex. LEXIS 1082, **23

see also Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516-17, 111 S. Ct. 2419, 115 L.
Ed. 2d 447 (1991) (applying substantial truth defense under California law).

Assessing a broadcast’s gist is crucial. A broadcast with specific statements that err in the
details but that [*64] correctly convey the gist of a story is substantially true. Turner, 38
S.W.3d at 115. On the other hand, a broadcast ″can convey a false and defamatory meaning by
omitting or juxtaposing facts, even though all the story’s individual statements considered in
isolation were literally true or non-defamatory.″ Id. at 114. We determine a broadcast’s
 [**24] gist or meaning by examining how a person of ordinary intelligence would view it.16
Id. at 114-15. ″If the evidence is disputed, falsity must be determined by the finder of fact.″
Bentley v. Bunton, 94 S.W.3d 561, 587 (Tex. 2002).

KEYE contends the trial court properly granted summary judgment because: (1) KEYE
accurately reported third-party allegations, which satisfies our test for substantial truth; (2) the
broadcast is privileged under the fair comment and official proceeding privileges; (3) Neely is
a limited purpose public figure and there is no evidence of actual malice; (4) there is no
evidence of negligence; and (5) Neely’s professional association cannot maintain a defamation
action. We address each argument in turn.

1. McIlvain

To address KEYE’s first issue, we analyze our holding in McIlvain. KEYE contends that in
McIlvain, we transformed the substantial truth doctrine to shield media defendants from
defamation liability for publishing third-party allegations if the defendants show that the
underlying allegations (1) were made, and (2) were accurately reported.

McIlvain concerned [**25] a broadcast about an investigation by the City of Houston into
alleged misconduct by employees in its water maintenance division. 794 S.W.2d at 15. The
broadcast indicated that the public integrity section was investigating allegations that: (1)
employees cared for the elderly father of a manager on city time; (2) employees were putting
in for overtime to complete their city duties later; (3) authorities were looking for a gun at a
water treatment facility; and (4) employees had been drinking on the job. Id. Two of the
employees sued the broadcasters for defamation. Id. The city’s investigation later found all the
allegations to be true. Id. at 16. The trial court granted summary judgment in favor of the media
defendants. Id. at 15. We affirmed the trial court’s ruling because the ″broadcast statements are
factually consistent with [the government’s] investigation and its findings″ and were thus
″substantially correct, accurate, and not misleading.″ Id. at 16 (emphasis added).

Since McIlvain, several courts of appeals and the Fifth Circuit have interpreted it to mean that
media reporting of third-party allegations under investigation is substantially true if the media

16
     We have also described this standard as the ″average listener″ standard. McIlvain, 794 S.W.2d at 16.
                                       418 S.W.3d 52, *64; 2013 Tex. LEXIS 1082, **25

accurately reports [**26] the allegations and the existence of any investigation.17 KEYE
similarly asserts that our holding in McIlvain created a substantial truth defense for accurately
reporting third-party allegations. But the [*65] parties do not assert and we cannot locate such
a rule in any other jurisdiction. See, e.g., RESTATEMENT (SECOND) OF TORTS § 581A, cmt. e (1977).
We did not establish a third-party allegation rule in McIlvain. Rather, we measured the truth
of the allegations in McIlvain against the government investigation that found them to be true.
Id. In other words, a government investigation that finds allegations to be true is one of many
methods of proving substantial truth. But we do not foreclose the possibility that the gist of
some broadcasts may merely be allegation reporting, such that one measure for the truth of the
broadcast could be whether it accurately relayed the allegations of a third party. See, e.g.,
Global Relief Found., Inc. v. New York Times Co., 390 F.3d 973, 986 (7th Cir. 2004) (broadcast
that government was investigating a nonprofit organization’s alleged funding of terrorism was
substantially true based upon government affidavits indicating it was investigating the reported
 [**27] allegations). As addressed below, even if we adopted such a rule today, it could not
enable KEYE to prevail here because there is a genuine issue of material fact as to whether
Neely was disciplined for the conduct the broadcast suggests.18

2. Gist of the Broadcast

The broadcast at issue began by asking listeners if they would want to know ″if your surgeon
had been disciplined for prescribing himself and taking dangerous drugs.″19 The broadcast
discusses the Jetton and Wu cases and then states that the Board ″did discipline Neely.″ After
discussing the Order, the broadcast contains the following statement by Paul Jetton:

     Narcotics, opiates, I mean it’s just things that, I mean things that they don’t even let
     people operate machinery or drive cars when they’re, when they’re taking them and this
     guy’s doing brain surgery on people. I mean it’s just, even now I’m just, it’s just
     incredulous, you just can’t even believe that it even happened.

Wilson then asked a Board representative how the Board would know Neely was not using the
medications again: ″But how would they know if he is using? He can get somebody else to
prescribe him. I mean he [**29] could say, ’I’ve followed the order.’″
17
    See Green v. CBS, Inc., 286 F.3d 281, 284 (5th Cir. 2002); 331 S.W.3d at 922; Grotti v. Belo Corp., 188 S.W.3d 768, 775 (Tex.
App.—Fort Worth 2006, pet. denied); Associated Press v. Boyd, No. 05-04-01172-CV, 2005 Tex. App. LEXIS 3715, 2005 WL 1140369,
at *3 (Tex. App.—Dallas May 16, 2005, no pet.); UTV of San Antonio, Inc. v. Ardmore, Inc., 82 S.W.3d 609, 612 (Tex. App.—San
Antonio 2002, no pet.); Dolcefino v. Randolph, 19 S.W.3d 906, 918 (Tex. App.—Houston [14th Dist] 2000, pet. denied); Am. Broad.
Cos., Inc. v. Gill, 6 S.W.3d 19, 33 (Tex. App.—San Antonio 1999, pet. denied); KTRK Television v. Felder, 950 S.W.2d 100, 106 (Tex.
App.—Houston [14th Dist.] 1997, no writ).
18
     As amicus The Dallas Morning News observes, our ruling that McIlvain did not create a third-party allegation rule does not
necessarily mean the previous cases misinterpreting McIlvain reached incorrect results. Specifically, The Dallas Morning News observes
that the following cases [**28] nonetheless properly held that the gist of the statements were substantially true: Green, 286 F.3d at
284-85; Boyd, 2005 Tex. App. LEXIS 3715, 2005 WL 1140369, at *3; Ardmore, Inc., 82 S.W.3d at 612; Randolph, 19 S.W.3d at 921.
Amicus Br. of The Dallas Morning News on Rehearing, at 8-11.
19
     We have previously stated that an introduction can be especially misleading. See Turner, 38 S.W.3d at 118.
                                        418 S.W.3d 52, *65; 2013 Tex. LEXIS 1082, **29

We determine the gist through the lens of a person of ordinary intelligence. Turner, 38 S.W.3d
at 114-15. Neely asserts that a person of ordinary intelligence could conclude that the gist of
the broadcast, based on the content and placement of these statements, was that Neely was
disciplined for operating on patients while using dangerous drugs or controlled substances.20
KEYE maintains that the gist [*66] of the broadcast ″concerned controversies and allegations
surrounding Neely’s care of Jetton and Wu, the malpractice lawsuits filed by Jetton and Wu’s
ex-wife, an autopsy report by the Travis County [Medical Examiner], a public disciplinary
action by the Medical Board, and Neely’s responses to the allegations.″ We agree with Neely
that a person of ordinary intelligence could conclude the gist of the broadcast was that Neely
was disciplined for operating on patients while using dangerous drugs or controlled substances.

3. Substantial Truth of the Broadcast’s Gist

To prevail at summary judgment on the truth defense, KEYE must conclusively prove that this
gist is substantially true.21 Turner, 38 S.W.3d at 114-15. As we explained in Turner, although
the specific statements in a broadcast may be substantially true when viewed in isolation, the
gist can be false by omitting or juxtaposing facts. Id. We examine whether the gist was more
damaging to the plaintiff’s reputation, in the mind of a person of ordinary intelligence, than a
truthful statement would have been. Id.

A reasonable view of the gist of the broadcast is that Neely was disciplined for operating on
patients while using dangerous drugs or controlled substances. Unlike in McIlvain, the
government investigation (here from the Board Order) does not indicate that this allegedly
defamatory statement was correct. The Order disciplined Neely for prescribing himself
dangerous drugs or controlled substances. It did not discipline Neely for taking or using
dangerous drugs or controlled substances. The Board found that Neely’s medications were
″legitimately and appropriately prescribed″ by treating physicians but that Neely ″began to
refill the medications himself in lieu of scheduled visits.″ Further, section 164.051(a)(4) of the
Occupations Code allows the Board to suspend a license if the physician is unable to practice
medicine with reasonable skill and safety to patients because of ″excessive use of drugs″ or
″mental or physical condition.″ TEX. OCC. CODE § 164.051(a)(4)(C)-(D). When citing to section
164.051(a)(4), the Order only noted Neely’s ″mental or physical condition″ as grounds for
discipline, not [**32] any excessive use of drugs. And rather than concluding that Neely’s
self-prescribing affected his ability to practice medicine (as it apparently did with his mental
or physical condition), the Board concluded that Neely’s self-prescribing instead violated a
20
    Neely also asserts the broadcast includes gists that he was performing unnecessary surgeries and was unsafely operating on patients
 [**30] while experiencing hand tremors. We need not assess the substantial truth of the gist that Neely was performing unnecessary
surgery because these statements are protected by the official/judicial proceedings privilege. See infra Part III.E. And we need not assess
the gist regarding Neely’s hand tremors in light of our disposition regarding the gist that he was disciplined for operating on patients
while using dangerous drugs and controlled substances. See infra Part III.D.3-III.F.
21
     When a private figure sues a media defendant over defamatory statements that are of public concern, the plaintiff has the burden
of proving falsity. Hepps, 475 U.S. at 777. [**31] But this distinction is less material at summary judgment. Casso, 776 S.W.2d at 555
n.3.
                                         418 S.W.3d 52, *66; 2013 Tex. LEXIS 1082, **34

then newly-created rule that self-prescribing dangerous drugs or controlled substances in
certain situations is not ″an acceptable professional manner consistent with public health and
welfare.″ 22 TEX. ADMIN. CODE § 190.8(1)(M) (Tex. State Bd. of Med. Examiners, Disciplinary
Guidelines) (added by 28 Tex. Reg. 10496 (2003)). Thus, the Order reflects that Neely was
disciplined for self-prescribing dangerous drugs or controlled substances, not for taking them.

In addition, Neely brought forth evidence that he was not operating on patients while taking
or using dangerous drugs or controlled substances:

[*67] • Neely swore in an affidavit that he had ″never abused drugs or been addicted to drugs,
prescription or otherwise″ and had ″never performed surgeries while impaired by drugs.″22

• Wilson reported not finding any independent evidence that Neely performed surgery while
impaired.

• Neely retained Dr. Edgar Nace—a former vice president of the Board who was board certified
in clinical, addiction, and forensic psychiatry—to conduct a psychiatric and substance abuse
evaluation of Neely during the Board investigation. Among other things, Nace reviewed
Neely’s pharmacy records and performed a drug test. Nace determined that Neely ″has not
been and is not currently diagnosable with a substance use disorder—neither abuse nor
dependence.″ Nace noted that Neely’s dosage of hydrocodone was lower than with emerging
patterns of abuse or addiction and Neely’s use of only one pharmacy was inconsistent with a
pattern of abuse or addiction. Nace concluded [**34] that Neely’s ″prescriptions and
subsequent refills have been appropriate to his documented diagnosis″ for a torn rotator cuff,
diverticulitis, and asthma.

• Neely used hydrocodone primarily in 2000 and part of 2001 to treat a torn rotator cuff. He
ceased using hydrocodone in April 2003.

• Neely ceased using steroids, prescribed for asthma, in 2000, when he began using an inhaler.

• As of October 2003, Neely was using medications for asthma (Advair, Ventolin), allergies
(Actifed, Benadryl, Flonase), high blood pressure (Cardura), and colon issues (Lomotil), none
of which are controlled substances.
Based on Neely’s responsive evidence,23 we hold that a there is a fact issue regarding the truth
or falsity of the gist that Neely was disciplined for operating on patients while taking or using
22
     Uncontroverted summary judgment evidence from an interested witness is only sufficient to raise a fact issue, unless the evidence
is clear, direct, positive, [**33] can be readily controverted, and there are no circumstances tending to impeach or discredit the testimony.
See TEX. R. CIV. P. 166a(c); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). Because
Neely’s evidence is only used to raise a fact issue here, we need not assess whether his testimony is clear, direct, positive, can be readily
controverted, or could be impeached or discredited.
23
    Neely also offered other evidence the trial court excluded, which Neely does not challenge on appeal. This evidence included: (1)
the Board orders finding no wrongdoing with Neely’s treatment in the Jetton and Wu cases; (2) Neely’s statement that he only took
narcotic medications at night; (3) the psychiatric evaluation conducted pursuant to the Board Order that concluded that Neely’s ″use of
                                      418 S.W.3d 52, *67; 2013 Tex. LEXIS 1082, **34

dangerous drugs or controlled substances. Turner, 38 S.W.3d at 117-18 (holding that,
especially in light of a broadcast’s introduction, a viewer could believe in a gist of the
broadcast that was not substantially true); McIlvain, 794 S.W.2d at 16. As in Turner, we note
that even an accurate account of Neely that did not create a false impression ″may have raised
troubling questions.″ 38 S.W.3d at 118. [**35] But because the factfinder may conclude that
the gist was more damaging to Neely’s reputation than a truthful and accurate broadcast would
have been, the substantial truth defense [*68] cannot support the trial court’s summary
judgment.

E. Official/Judicial Proceedings Privilege

KEYE next asserts that the trial court’s grant of summary judgment was proper because the
broadcast was protected by the official/judicial proceedings privilege. The United States
Supreme Court has long recognized a common law judicial privilege. See Cox Broad. Corp.
v. Cohn, 420 U.S. 469, 492, 95 S. Ct. 1029, 43 L. Ed. 2d 328 (1975). [**36] Underpinning the
judicial privilege is the notion that a ″trial is a public event. What transpires in the court room
is public property. If a transcript of the court proceedings had been published, we suppose none
would claim that the judge could punish the publisher for contempt.″ Craig v. Harney, 331 U.S.
367, 374, 67 S. Ct. 1249, 91 L. Ed. 1546 (1947). In Texas, the Legislature codified the judicial
proceedings privilege and expanded it to other official proceedings. Section 73.002 of the Civil
Practice and Remedies Code provides that publications are privileged if they are ″a fair, true,
and impartial account of″ judicial or other proceedings to administer the law. TEX. CIV. PRAC.
& REM. CODE § 73.002(b)(1).

The official/judicial proceedings privilege assesses whether the reporter’s account of the
proceedings (not the underlying allegations made in those proceedings) was fair, true, and
impartial. Denton Publ’g Co. v. Boyd, 460 S.W.2d 881, 883 (Tex. 1971). When construing a
substantially similar prior version of the official/judicial proceedings privilege, we held that
″[t]he publication would be within the privilege provided by statute as long as it purported to
be, and was, only [**37] a fair, true and impartial report of what was stated at the meeting,
regardless of whether the facts under discussion at such meeting were in fact true . . . .″ Id. at
882; see also Herald-Post Publ’g Co. v. Hill, 891 S.W.2d 638, 639 (Tex. 1994) (comparing
allegedly defamatory article to trial testimony to determine that judicial proceeding privilege
applied).

But the privilege only extends to statements that: (1) are substantially true and impartial reports
of the proceedings, and (2) are identifiable by the ordinary reader as statements that were made
in the proceeding. Boyd, 460 S.W.2d at 884. In Boyd, there was a factual dispute as to whether
a false statement that a contractor was bankrupt was made at a city council meeting. Id. at
884-85. When remanding to resolve the factual dispute, we concluded the privilege would
the self-prescribed opiates does not suggest that he ever had a problem with abuse or dependence;″ and (4) the fact that the Board
terminated its Order early, less than half way through the three-year probationary period.
                                      418 S.W.3d 52, *68; 2013 Tex. LEXIS 1082, **39

apply if: (1) the statement was made at the city council meeting, and (2) an ordinary reader of
the defendant’s article would understand the statement was made at the meeting.24 Id. at 885.

1. Unnecessary Surgery

One gist of the KEYE broadcast we have not previously addressed is that Neely was
performing unnecessary surgeries.25 This gist results from the inclusion of the statement by
Sheila that ″[e]very neurosurgeon that’s looked at Paul’s MRIs from before Neely operated on
him have [sic] said they would have never done surgery. They would have watched him with
MRIs over years.″ The placement of this statement within the broadcast was in the discussion
of Neely’s treatment of Paul and the resulting lawsuit. The allegation [*69] that Neely
performed unnecessary surgery was one basis for the lawsuit, in which the Jettons alleged that,
″[a]t the time [Neely and a fellow doctor] performed such procedure, they ostensibly did so to
treat symptomatic hydrocephalus in Paul Jetton. However, Paul Jetton did not have symptomatic
hydrocephalus.″ We hold that an ordinary viewer could conclude that Sheila’s allegation
regarding unnecessary surgery in the broadcast was made in the Jetton lawsuit. Id. at 884.
Thus, KEYE met its initial burden of proving this statement is protected by the conditional
judicial proceedings privilege. [**39] See id. (holding that the defendant has the initial burden
of proving a publication is privileged).

But Neely can rebut the privilege by proving it is inapplicable. Id. The judicial/official
proceedings privilege ″does not extend to the republication of a matter if it is proved that the
matter was republished with actual malice after it had ceased to be of public concern.″ TEX.CIV.
PRAC.& REM.CODE § 73.002(a). Actual malice means the defendant made the statement ″’with
knowledge that it was false or with reckless disregard of whether it was true or not;’″ and
reckless disregard means ″’the defendant in fact entertained serious doubts as to the truth of his
publication.’″ New Times, Inc. v. Isaacks, 146 S.W.3d 144, 162 (Tex. 2004) (quoting Huckabee
v. Time Warner Entm’t Co., 19 S.W.3d 413, 420 (Tex. 2000) and Bentley, 94 S.W.3d at 591);
see also Hearst Corp. v. Skeen, 159 S.W.3d 633, 637 (Tex. 2005). Sheila’s statement that every
neurosurgeon would have not performed surgery was controverted by the two neurosurgeons
who agreed with Neely’s treatment of Paul and the Board order finding no wrongdoing in
Neely’s treatment of Paul. KEYE’s inclusion of this disclaiming [**40] information negates
any allegation that KEYE acted with actual malice as to the gist of the broadcast that Neely
was performing unnecessary surgery and the record contains no other evidence that creates a
fact issue on this point. Accordingly, the official/judicial proceedings privilege shields this
portion of the broadcast. TEX. CIV. PRAC. & REM. CODE § 73.002(a); Boyd, 460 S.W.2d at 884.

2. Disciplined for Operating on Patients While Taking Dangerous Drugs or Controlled
Substances
24
    We see no substantive difference from our ordinary reader standard for the judicial proceedings privilege in Boyd, 460 S.W.2d at
884-85, and our person of ordinary intelligence [**38] standard for substantial truth in Turner, 38 S.W.3d at 114-15.
25
     See supra note 20.
                                      418 S.W.3d 52, *69; 2013 Tex. LEXIS 1082, **40

We next analyze whether the gist of the broadcast that Neely was disciplined for operating on
patients while taking dangerous drugs or controlled substances is protected by the
official/judicial proceedings privilege. This gist is explained in part by the anchor’s
introduction to the broadcast, which asked:
     If you needed surgery would you want to know if your surgeon had been disciplined for
     prescribing himself and taking dangerous drugs . . . ?

As previously addressed, the evidence creates a fact issue as to whether the assertion that Neely
had been disciplined for ″taking dangerous drugs″ is a fair, true, and impartial account of the
Board Order. The Board found Neely’s self-prescribing [**41] to be inappropriate—not his
taking or using the medications. The Board found that the medications were ″legitimately and
appropriately prescribed″ but that Neely ″began to refill the medications himself in lieu of
scheduled visits.″ Accordingly, a jury may conclude that the Order disciplined Neely for his
″inappropriate prescription of dangerous drugs or controlled substances to oneself.″ Thus, we
cannot say that—as a matter of law—the statement that Neely was disciplined for taking or
using dangerous drugs or controlled substances was a fair, true, and impartial account of an
official or judicial proceeding. Boyd, 460 S.W.2d at 883.

 [*70] F. Fair Comment Privilege
KEYE also maintains that the fair comment privilege applies to the broadcast. Section
73.002(b)(2) provides that a broadcast is privileged if it is a ″reasonable and fair comment on
or criticism of an official act of a public official or other matter of public concern published
for general information.″ TEX.CIV.PRAC.&REM.CODE § 73.002(b)(2). Comments based on
substantially true facts are privileged if fair; comments that assert or affirm false statements of
fact are not privileged. We long ago stated that it ″is the settled law [**42] of Texas, that a false
statement of fact concerning a public officer, even if made in a discussion of matters of public
concern, is not privileged as fair comment.″ Bell Publ’g Co. v. Garrett Eng’g Co., 141 Tex. 51,
170 S.W.2d 197, 204 (Tex. 1943); see also Barbouti v. Hearst Corp., 927 S.W.2d 37, 62 (Tex.
App.—Houston [1st] 1996, writ. denied) (false statements not privileged as fair comments).
The Legislature has extended the fair comment privilege to matters of public concern,26
TEX.CIV.PRAC.&REM.CODE § 73.002(b)(2), and we have come to interpret the truth defense as
requiring only substantial truth, Turner, 38 S.W.3d at 115. Substantial truth assesses whether
the gist of the broadcast is substantially true, and a broadcast can convey a substantially false
meaning by juxtaposing facts that, viewed in isolation, are true. Id. Joining these principles, we
conclude that a comment based on a substantially true statement of fact can qualify as a fair
comment. TEX. CIV. PRAC.&REM. CODE § 73.002(b)(2). But if a comment is based upon a
substantially false statement of fact the defendant asserts or conveys as true, the comment is
not protected by the fair comment privilege. Bell, 170 S.W.2d at 204.
KEYE’s broadcast opened by asking viewers if they would want to know if their doctor ″had
been disciplined for prescribing himself and taking dangerous drugs . . . .″ Wilson’s
26
     As [**43] we noted above, this broadcast addressed a matter of public concern. See supra note 12.
                           418 S.W.3d 52, *70; 2013 Tex. LEXIS 1082, **43

questioning of whether the Order would prevent Neely from using the drugs was predicated on
the statement that Neely had been disciplined for taking or using dangerous drugs or controlled
substances—which the broadcast affirmed to be true. Because a fact issue exists on whether the
statement was true, KEYE is not entitled to summary judgment based on the fair comment
privilege. Bell, 170 S.W.2d at 204.

G. Limited Purpose Public Figure

KEYE also asserts that Neely was a limited purpose public figure who therefore had to prove
malice. We disagree.
Public figure status is a question of law for the court. McLemore, 978 S.W.2d at 571. We use
a three-part test to assess whether an individual is a limited purpose public figure:

   (1) the controversy at issue must be public both in the sense that people are discussing
   it and people other than the immediate participants in the controversy are likely to feel
   the impact of its resolution;
   (2) [**44] the plaintiff must have more than a trivial or tangential role in the
   controversy; and
   (3) the alleged defamation must be germane to the plaintiff’s participation in the
   controversy.

Id. In McLemore, we expressly reserved the question of whether an individual may [*71] meet
the public controversy requirement against her will. Id. at 571-72.

The distinction between public and private figures matters chiefly because public and limited
purpose public figures must prove a defamation defendant acted with actual malice. Gertz, 418
U.S. at 342. The United States Supreme Court addressed this distinction in Gertz:

   [p]ublic officials and public figures usually enjoy significantly greater access to the
   channels of effective communication and hence have a more realistic opportunity to
   counteract false statements than private individuals normally enjoy. Private individuals
   are therefore more vulnerable to injury, and the state interest in protecting them is
   correspondingly greater.
   More important than the likelihood that private individuals will lack effective
   opportunities for rebuttal, there is a compelling normative consideration underlying the
   distinction between public and private defamation plaintiffs. [**45] An individual who
   decides to seek governmental office must accept certain necessary consequences of that
   involvement in public affairs. He runs the risk of closer public scrutiny than might
   otherwise be the case. . . .
   Those classed as public figures stand in a similar position. Hypothetically, it may be
   possible for someone to become a public figure through no purposeful action of his
                            418 S.W.3d 52, *71; 2013 Tex. LEXIS 1082, **45


   own, but the instances of truly involuntary public figures must be exceedingly rare. For
   the most part those who attain this status have assumed roles of especial prominence in
   the affairs of society. Some occupy positions of such persuasive power and influence
   that they are deemed public figures for all purposes. More commonly, those classed as
   public figures have thrust themselves to the forefront of particular public controversies
   in order to influence the resolution of the issues involved. In either event, they invite
   attention and comment.

Id. at 344-45. Thus, the Court was concerned with both access to communication to rebut a
defamatory statement and the normative considerations of public figures typically having
″thrust themselves to the forefront of particular public controversies.″ Id. at 345. [**46] The
Court later stated that ″those charged with defamation cannot, by their own conduct, create
their own defense by making the claimant a public figure.″ Hutchinson v. Proxmire, 443 U.S.
111, 135, 99 S. Ct. 2675, 61 L. Ed. 2d 411 (1979). In other words, the allegedly defamatory
statement cannot be what brought the plaintiff into the public sphere; otherwise, there would
be no private figures defamed by media defendants.
The Court’s forecast that it would be ″exceedingly rare″ for a person to become a public figure
involuntarily has proven true: neither the United States Supreme Court nor this Court has
found circumstances in which a person involuntarily became a limited-purpose public figure.
See, e.g., Wolston v. Reader’s Digest Ass’n, 443 U.S. 157, 166, 99 S. Ct. 2701, 61 L. Ed. 2d
450 (1979) (holding an individual to not be a limited-purpose public figure who was ″dragged
unwillingly into the controversy″); Time, Inc. v. Firestone, 424 U.S. 448, 454-55, 96 S. Ct. 958,
47 L. Ed. 2d 154 (1976) (holding an individual to not be a public figure, in part, because she
had done nothing voluntary to assume special prominence).

On these facts, we cannot say this is the exceedingly rare case [**47] in which a person has
become a limited-purpose public figure against his will. Before the broadcast in question,
Neely was mentioned in a 1996 newspaper article about [*72] settling a malpractice lawsuit
and a December 2003 newspaper statement that Neely was placed on probation for
self-prescribing medications. Neely was not quoted in either article. Neely also refrained from
talking to Wilson regarding the broadcast at issue. Because Neely is not a limited-purpose
public figure, he need not prove actual malice, and this ground cannot support the trial court’s
summary judgment.

H. Evidence of Negligence
KEYE next argues that the trial court properly granted summary judgment because there was
no evidence of negligence. For the purposes of defamation liability, a broadcaster is negligent
if she knew or should have known a defamatory statement was false. Foster v. Laredo
Newspapers, Inc., 541 S.W.2d 809, 820 (Tex. 1976). But that liability may not be predicated
on ″a factual misstatement whose content [would] not warn a reasonable prudent editor or
broadcaster of its defamatory potential.’″ Id. (quoting Gertz, 418 U.S. at 348) (alteration in
original).
                                         418 S.W.3d 52, *72; 2013 Tex. LEXIS 1082, **47

The broadcast opened by asking viewers if [**48] they would want to know if their doctor ″had
been disciplined for prescribing himself and taking dangerous drugs . . . .″ Neely raised a fact
issue as to the truth or falsity of the gist that he was disciplined for taking medications. See
supra Parts III.D.3 and III.E. This creates a fact issue regarding whether the statement in the
broadcast that Neely had been disciplined for taking medication would warn a reasonably
prudent broadcaster of its defamatory potential. Foster, 541 S.W.2d at 820.

I. Professional Association

Finally, KEYE argues that professional associations cannot maintain defamation claims and
thus the claim by Neely’s professional association must be dismissed. We disagree.

Our precedent makes clear that corporations may sue to recover damages resulting from
defamation. Gen. Motors Acceptance Corp. v. Howard, 487 S.W.2d 708, 712 (Tex. 1972);
Newspapers, Inc. v. Matthews, 161 Tex. 284, 339 S.W.2d 890, 893 (Tex. 1960). In Howard,
Howard Motor Company, Inc. and its owner, Hugh Howard, both sued General Motors
Acceptance Corporation (GMAC), alleging it had libeled them in a letter to Howard’s bank.
487 S.W.2d at 709-10. GMAC argued that our holding in Matthews precludes corporations
 [**49] from maintaining causes of action for libel. Id. at 712. We rejected that assertion,
pointing out that Matthews specifically recognized that a corporation may be libeled. Id.
Accordingly, we permitted Howard Motor Company, Inc., a corporate entity, to maintain a libel
suit against GMAC. See id.

The Legislature has endowed professional associations with many of the same privileges that
corporations enjoy. Indeed, the Business Organizations Code specifies that, ″[e]xcept as
provided by Title 7, a professional association has the same powers, privileges, duties,
restrictions, and liabilities as a for-profit corporation.″ TEX. BUS. ORGS. CODE § 2.108. Nothing
in Title 7 of the Business Organizations Code precludes professional associations from
bringing defamation suits. See id. chs. 301-02. Because professional associations share the
same rights as for-profit corporations as to maintaining defamation claims, Texas law does not
preclude the professional association, Byron D. Neely, M.D., P.A., from maintaining a libel
suit.27

 [*73] IV. Response to the Dissent

The dissent would hold that the broadcast was substantially true as a matter of law because
there was circumstantial evidence that Neely could have been under the influence of dangerous
drugs and controlled substances while operating on patients, and that the Board, though not
expressly disciplining Neely for taking medications, implicitly did so. S.W.3d , (Jefferson,
27
     While professional associations may maintain defamation claims, recovery by the association and its members for the same
particular injury is a precluded double recovery. [**50] See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 303 (Tex. 2006) (″There
can be but one recovery for one injury, and the fact that . . . there may be more than one theory of liability[] does not modify this rule.″
(quoting Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 8 (Tex. 1991)) (alterations in original)). Instead, it is for the trier of fact to
simply determine what portion, if any, of the total damages inflicted were incurred by each entity.
                                         418 S.W.3d 52, *73; 2013 Tex. LEXIS 1082, **50


C.J., dissenting). But at summary judgment, ″[w]e must review the record ’in the light most
favorable to the nonmovant, indulging every reasonable inference and resolving any doubts
against the motion.’″ Buck, 381 S.W.3d at 527 (quoting City of Keller, 168 S.W.3d at 824)
(emphasis added). The dissent disregards these principles [**51] in two ways. First, the dissent
ignores Neely’s evidence, which includes the Board Order indicating its discipline of him was
not for his use of medications, evidence that Neely never performed surgery while impaired,
that his evaluation prior to the Board Order indicated he never had a drug abuse or dependence
problem, and that Wilson never found any independent evidence that Neely performed surgery
while impaired.28
Second, the dissent inverts our time-honored summary judgment [**52] standard by indulging
every reasonable inference and resolving every doubt against Neely. Its foremost implicit
finding against Neely is that the Board disciplined him for taking medications. S.W.3d at
    (Jefferson, C.J., dissenting). The dissent indicates that it ″is not hard to understand the
Board’s concerns″ regarding Neely’s use of medications. Id. But the Board Order did not
discipline Neely for taking medications, it disciplined him for self-prescribing them. The Order
states, in relevant part:

     FINDINGS OF FACT

     ...
     6. [Neely] suffered various injuries and ailments, which required a variety of
     medications. [Neely’s] treating physician legitimately and appropriately prescribed a
     number of medications to treat these conditions. However, between 1999, and 2002,
     [Neely] began to refill the medications himself in lieu of scheduled visits.
     7. Upon review of statements of [Neely] and the September 27, 2000 medical records
     of [Neely] obtained from his treating physician, the Panel concluded that [Neely] had
     a prior history of tremors.
     ...

      [*74] CONCLUSIONS OF LAW
     ...
     2. [Neely] is subject to action by the Board under Sections 164.051(a)(4) and 164.056
     of the Act due to [Neely’s] inability [**53] to practice medicine with reasonable skill
     and safety to patients, due to mental or physical condition.
28
     The dissent believes this evidence that Neely was not operating while impaired is immaterial to the gist of whether he was disciplined
for operating on patients while taking dangerous drugs. S.W.3d at (Jefferson, C.J., dissenting). This is precisely why we first examined
the Board Order itself to determine whether it disciplined Neely for the conduct the gist of the broadcast indicates. See supra Part III.D.3.
Neely’s additional evidence supports why the Order did not discipline him for operating on patients while taking dangerous drugs. And
if evidence of Neely’s use of medication is truly as irrelevant as the dissent suggests, one wonders why the dissent only finds support
in this very type of evidence.
                                        418 S.W.3d 52, *74; 2013 Tex. LEXIS 1082, **53

     3. [Neely] is subject to disciplinary action pursuant to Section 164.051(a)(3) of the Act
     by committing a direct or indirect violation of a rule adopted under this Act, either as
     a principal, accessory, or accomplice, to wit, Board Rule 190.8(1)(M)—inappropriate
     prescription of dangerous drugs or controlled substances to oneself, family members,
     or others in which there is a close personal relationship.

(Emphases added.) The first conclusion of law above references section 164.051(a)(4) of the
Occupations Code, which allows the Board to discipline a person for illness, drunkenness,
″excessive use of drugs, narcotics, chemicals, or another substance,″ or ″a mental or physical
condition.″ TEX.OCC.CODE § 164.051(a)(4). The Order states that it was disciplining Neely ″due
to mental or physical condition″—not excessive drug use as the dissent reads between the lines
to infer.29 At a minimum, the Order at least creates a fact issue in Neely’s favor as to whether
he was disciplined for taking medications. If one does endeavor to draw inferences and resolve
doubts, they must be drawn and resolved [**54] in favor of Neely at this summary judgment
stage.30 Buck, 381 S.W.3d at 527.
In addition, the dissent further draws inferences against Neely by assuming that the Board’s
order for Neely to undergo a psychiatric evaluation indicates the Board must have been
concerned about Neely’s use of medications. On the contrary, the Board Order notes that Neely
retained a doctor to perform a physical examination who detected no medically significant
tremor but ″felt unqualified to determine [Neely’s] ability to perform surgery, and recommended
a disability [**56] assessment or a Neuro-psyche evaluation.″ Neely then retained Dr. Nace to
perform the psychiatric evaluation the physical examination recommended. The Board then
followed the [*75] same model, ″requesting independent physical and psychiatric evaluations
to determine [Neely’s] capacity to practice medicine in general, and specifically, to perform
surgery.″ Far from disciplining Neely for operating on patients while taking medications, the
Order simply confirmed a psychiatric evaluation was needed because a physical evaluation
alone might not fully assess the impact of Neely’s hand tremor on his ability to perform
surgery. Constitution’s free speech clause guarantees the right to bring reputational torts:
″Every person shall be at liberty to speak, write or publish his opinions on any subject, being
29
     The dissent relies on a statement by a Board investigator in its ″summary of allegations″ that Neely could be subject to disciplinary
action under section 164.051(a)(4) for ″[i]nability to practice medicine with reasonable skill and safety because of illness or substance
abuse″(emphasis added), and a statement on the Board’s website that its investigation of Neely ″was based on allegations that Dr. Neely
had self-prescribed medications with the potential to interfere with his ability to perform surgery.″      S.W.3d at     (Jefferson, C.J.,
dissenting) (emphases added). The Board Order ultimately did not discipline Neely under section 164.051(a)(4) for substance abuse but
only for a ″mental or physical condition,″ which was his hand tremor. Though the Board did not discipline Neely for taking medications,
a reasonable view of the gist of the broadcast was that Neely had been so disciplined.
30
     Moreover, by inverting the standard of review for summary judgments, the dissent prematurely cuts off Neely’s right to a trial on
this reputational tort. Our constitution assures that the ″right of trial by jury shall [**55] remain inviolate.″ TEX.CONST. art. I, § 15.
Additionally, the Texas

In its effort to indulge reasonable inferences against Neely, the dissent also relies on an Austin American Statesman article that indicates
Neely was one of six Austin doctors the Board had recently disciplined for ″violations involving either drug or alcohol abuse.″ S.W.3d
at     (Jefferson, C.J., dissenting). But the specific reference to Neely was that he was disciplined ″for self-prescribing medications,
according to board records.″ We find nothing questionable about this specific reference to Neely. Nor does the gist of the article appear
to be that Neely was disciplined for operating on patients while using dangerous drugs and controlled substances.
                                        418 S.W.3d 52, *75; 2013 Tex. LEXIS 1082, **56


responsible for the abuse of that privilege . . . .″ TEX. CONST. art. I, § 8 (emphasis added).
Likewise, the open courts provision guarantees the right to bring reputational torts: ″All courts
shall be open, and every person for an injury done him, in his lands, goods, person or
reputation, shall have remedy by due course of law.″ TEX. CONST. art. I, § 13 (emphasis added).
As we observed in Casso,

     While [**57] we have recently recognized the possibility that our state free speech
     guarantee may be broader than the corresponding federal guarantee, that broader
     protection, if any, cannot come at the expense of a defamation claimant’s right to
     redress. Unlike the United States Constitution, which contains no explicit guarantee of
     the right to sue for defamation, the Texas Constitution expressly protects the bringing
     of reputational torts.

776 S.W.2d at 556 (emphasis added) (citation omitted). In short, the dissent’s upending of our
time-honored summary judgment principles infringes upon Neely’s constitutional right to
bring suit for reputational torts and to have a jury trial.

The dissent also attempts to use a discrete portion of the broadcast that, standing alone, could
appear to be substantially true to vindicate the remainder of the broadcast. The dissent focuses
on the portion of the broadcast addressing Neely’s hand tremors as justification for the
broadcast being substantially true as a matter of law. But the broadcast references Neely’s hand
tremors twice in the seven-minute segment. Drugs or medications are expressly referenced
eight times and discussed without naming those precise terms [**58] a number of other times.
The dissent’s analysis falls short of respect for our precedent dictating the manner in which we
review substantial truth. Turner, 38 S.W.3d at 115 (″[T]he meaning of a publication, and thus
whether it is false and defamatory, depends on a reasonable person’s perception of the entirety
of a publication and not merely on individual statements.″).

Additionally, the dissent contends that a report about a government investigation is always
substantially true. S.W.3d at (Jefferson, C.J., dissenting). In Texas, the Legislature long ago
protected reports about government investigations under the official/judicial proceedings
privilege. TEX. CIV. PRAC.&REM. CODE § 73.002(b)(1). But as explained above, the privilege
only protects such reports if they are fair, true, and impartial accounts of such proceedings. Id.
There is at least a fact issue on whether the broadcast was a fair, true, and impartial account
of the Board Order because the gist of the broadcast to a person of ordinary intelligence could
be that Neely was disciplined for taking dangerous [*76] drugs and controlled substances
when the Order indicates he was not so disciplined.31 See Part III.E, supra.
31
     The [**59] dissent’s reliance on Global Relief Foundation, 390 F.3d at 973, only furthers our conclusion. There, the New York
Times prevailed on the truth defense because it was substantially true that the government was suspicious about Global Relief funding
terrorism. Id. at 986. Global Relief’s affidavits indicating it did not fund terrorism did not render false the media statements about the
government’s suspicions. Id. at 983. The present case would be more akin to the New York Times reporting that Global Relief had been
convicted of something it had not been convicted of. See id. at 987 (″none of the articles concluded that [Global Relief] was actually
guilty of the conduct for which it was being investigated″).
                            418 S.W.3d 52, *76; 2013 Tex. LEXIS 1082, **59

Finally, the dissent perceives that our holding ″collides violently with the First Amendment.″
   S.W.3d at      (Jefferson, C.J., dissenting). But the United States Supreme Court has only
discussed the truth defense as a creature of state common law and not the First Amendment.
Masson, 501 U.S. at 516 (″The common law of libel . . . overlooks minor inaccuracies and
concentrates upon substantial truth.″). Accordingly, the only collision is between the dissent’s
implicit findings [**60] and our six-decade-old standard for reviewing summary judgments.
See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (Tex. 1952) (requiring a trial court
at summary judgment to give the nonmovant ″the benefit of every reasonable inference which
properly can be drawn in favor of his position″ and that if ″a mere ground of inference″
supports the motion, it will not be granted).

V. Conclusion
The key question in this appeal is whether Neely raised a fact issue as to the truth or falsity
of the broadcast at issue in his defamation suit. We examine substantial truth based on what a
person of ordinary intelligence would understand the gist or meaning of the broadcast to be.
Here, a person of ordinary intelligence could conclude that the gist of the broadcast was that
Neely was disciplined for operating on patients while using dangerous drugs and controlled
substances. Neely raised a genuine issue of material fact as to the truth or falsity of that gist
with evidence that he was not disciplined for taking dangerous drugs or controlled substances
and he never performed surgery while using dangerous drugs or controlled substances. We
further conclude: (1) there are fact issues on whether [**61] part of the broadcast is protected
by the judicial/official proceedings or fair comment privileges; (2) Neely was not a limited
purpose public figure; (3) Neely raised a fact issue as to KEYE’s negligence; and (4) Neely’s
professional association may maintain a cause of action for defamation. We reverse the
judgment of the court of appeals and remand the case to trial court for further proceedings
consistent with this opinion.
Eva M. Guzman
Justice

OPINION DELIVERED: June 28, 2013
[*88contd]
[EDITOR’S NOTE: The page numbers of this document may appear to be out of sequence;
however, this pagination accurately reflects the pagination of the original published document.]

Appendix A

KEYE January 19, 2004 Broadcast

Fred Cantu (Anchor): If you needed surgery would you want to know if your surgeon had
been disciplined for prescribing himself and taking dangerous drugs, had a history of hand
tremors and had been sued several times for malpractice in the last few years?
                          418 S.W.3d 52, *88contd; 2013 Tex. LEXIS 1082, **61

Judy Maggio (Anchor): A central Texas couple says they didn’t learn about this until it was
too late. They’re outraged the [Texas Medical Board] is allowing Dr. Byron Neely to continue
to practice. KEYE news investigative reporter Nanci Wilson [*77] tells us if you go to St.
David’s Hospital with a head injury you could be Dr. Neely’s next patient.
Paul Jetton: I’ve been in, in and out of the hospital, you know, for the last [**62] four years.
Uh, I had twelve, I believe, I’ve even lost count, I believe twelve brain surgeries, one spinal
surgery.
Wilson: This is Paul Jetton’s life.
Paul Jetton: I can’t walk. You know, I still, I can walk with a walker, but I still can’t walk on
my own.
Wilson: Each step is a struggle, but it wasn’t always this way. In 1982 Paul Jetton was a
linebacker for the University of Texas. He was so good he went on to play in the pros. His first
year with the Cincinnati Bengals the team went to the Super Bowl. But in 1999 . . .
Paul Jetton: I just wasn’t feeling well. When I went, you know, for I just wanted to get a
physical.

Wilson: Something unusual showed up on the MRI scan of his brain.
Paul Jetton: He told me that I had this, this tumor in my brain and, and that I had to, had to
have it operated on.
Wilson: His doctor, Austin neurosurgeon Byron Neely, who has been in practice since 1977,
said an operation would help.
Paul Jetton: You know it would only be a two hour surgery and that I’d be in, I’d only be in
the hospital for two or three days and I’d go on with the rest of my life.

Wilson: The two hour surgery stretched into almost eight hours and Paul was in the hospital
for six weeks. While [**63] in the hospital Paul developed an infection in his brain. However,
he was discharged from the hospital anyway. The result: numerous surgeries and a life of
disability. Paul’s wife, Sheila, says what they learned from other doctors was the final blow.
Sheila Jetton: Every neurosurgeon that’s looked at Paul’s MRIs from before Neely operated
on him have [sic] said they would have never done surgery. They would have watched him
with MRIs over years.
Wilson: The Jettons aren’t the only patients to raise questions about Dr. Neely. Wei Wu, a
software engineer with two PhDs was referred to Dr. Neely. Neely explains the case in this
deposition from 2002.
Dr. Neely: [From the video of his deposition] He came in very confused one day, uh, was found
to have a uh, very major brain tumor thought to be a meningioma at the time because it, of the
                            418 S.W.3d 52, *77; 2013 Tex. LEXIS 1082, **63

location in the brain. Uh, the patient was taken to the OR thereafter and found to malignant
melanoma [sic].
Wilson: Peter Gao was a friend of Wei Wu’s. Gao says Wu struggled with the diagnosis that
Wu had only a few months to live.
Peter Gao: The doctor is more like persuasive say, well the doctor have seen when he open,
when he opened your skull, seen everywhere. [**64] So, all we need to do right now I guess,
is face, kind of like to face the music.

Wilson: It may have been too much for Wei Wu to handle. A few days later Gao found Wu’s
abandoned car near the 183 overpass at Mopac. Then discovered Wu had jumped off the
overpass taking his own life. But when his body was sent to the Travis County Medical
Examiner’s office, analyzing Wu’s brains, examiners noted no residual metastatic melanoma.
Meaning Wei Wu did not have brain cancer. Both the Jetton and the Wu cases happened in
1999. Two other patients also filed suit against the doctor. The [Texas Medical Board]
investigated Dr. Neely. The Board found Neely had a history of hand tremors and that between
1999 and [*78] 2002, Dr. Neely was writing prescriptions, not only for his patients but for
himself as well. Narcotics, muscle relaxers and pain killers. Something former patient Paul
Jetton finds shocking.

Paul Jetton: Narcotics, opiates, I mean it’s just things that, I mean things that they don’t even
let people operate machinery or drive cars when they’re, when they’re taking them and this
guy’s doing brain surgery on people. I mean it’s just, even now I’m just, it’s just incredulous,
you just can’t even [**65] believe that it even happened.
Wilson: The [Texas Medical Board] did discipline Dr. Neely. This past December, they
suspended his license but gave it right back by staying the suspension. Now he’s on probation
for three years. The only requirements are that he see a psychiatrist and not write prescriptions
for himself or his family. A decision the Board defends.

Jill Wiggins [caption identifies her as a Board representative]: We have compliance officers
and the compliance officers will definitely follow to make sure that he’s doing the things that
his order requires him to do.
Wilson: But how would they know if he is using? He can get somebody else to prescribe him.
I mean he could say, ″I’ve followed the order.″

Wiggins: Right.
Wilson: I didn’t prescribe myself.

Wiggins: Right, right.
Wilson: How do we, how do we know that he’s, that we’re not putting somebody right back
out there to do the same thing he was doing before?
                            418 S.W.3d 52, *78; 2013 Tex. LEXIS 1082, **65

Wiggins: That’s a very good question and why this order doesn’t include drug testing, I, I
honestly don’t know the answer to that.

Paul Jetton: I think it’s just deplorable, I mean if, if it was another profession, uh, the guy
would be in jail.

Wilson: We contacted Dr. Neely [**66] for his side to the story. He declined to participate, but
his attorney told us that two highly qualified neurosurgeons who reviewed the case agree with
the medical decisions made by Dr. Neely. In addition, the [Texas Medical Board] investigated
the Jetton case and found no wrong doing. We also contacted St. David’s Medical Center, its
chief medical officer believes they have a strong peer review process. That’s where individual
doctors review each other’s work and decide who should have privileges.
Steve Berkowitz, M.D.: In this particular case the investigation is incomplete and when we
actually find the, get the findings we will then be able to make a determination uh, as to
whether the privileges should be continued or not. We strongly value quality of course, we
value the due process and most importantly we value patient safety.

Wilson: Nanci Wilson, KEYE News investigates.
[The camera then returns to the anchors, Cantu and Maggio.]
Maggio: The Jettons settled their suit against Dr. Neely. The suit filed on behalf of Wu’s son
was dismissed because it was not filed by an attorney. The other suits are pending.
Cantu: The Texas Board of Medical Examiners does post final actions taken [**67] against
doctors on its web site, but all other information about complaints is kept secret.

APPENDIX
LICENSE NO. D9588
IN THE MATTER OF THE COMPLAINT AGAINST BYRON DAVIS NEELY, M.D.
BEFORE THE TEXAS STATE BOARD OF MEDICAL EXAMINERS

AGREED ORDER
On the 12 day of December, 2003, came on to be heard before the Texas State Board of
Medical Examiners (″the Board″ or ″the Texas Board″), duly in session, the matter of the
license of BYRON DAVIS NEELY, M.D. (″Respondent″).
On August 22, 2003, Respondent appeared in person and with counsels, Dan Ballard and
Stacey J. Simmons, at an Informal Show Compliance Proceeding and Settlement Conference
in response to a letter of invitation from the staff of the Board. Walter Mosher represented
Board Staff. The Board’s Representatives were David E. Garza, D.O., a member of the Board,
and Kevin R. Smith, M.D., a member of fee District Review Committee.
                           418 S.W.3d 52, *78; 2013 Tex. LEXIS 1082, **67


Upon the recommendation of the Board’s Representatives and with the consent of Respondent,
the Board makes the following Findings of Fact and Conclusions of Law and enters this Agreed
Order.

FINDINGS OF FACTS

The Board finds that:

1. Respondent received all notice required by law. All jurisdictional requirements have
 [**68] been satisfied. Respondent waives any defect in notice and any further right to notice
or hearing under TEX. OCC. CODE ANN. Title 3, Subtitle B (Vernon’s 2002) (the ″Act″) or the
Rales of the Board.

2. Respondent currently holds Texas Medical License No. D9588. Respondeat was originally
issued this license to practice medicine in Texas on August 21, 1972, Respondent is also
licensed to practice in Colorado.

3. Respondeat is primarily engaged in the practice of Neurological Surgery. Respondent is
Board Certified by the American Board of Neurological Surgery.

4. Respondent is 57 years of age.

5. Respondent has not previously been the subject of disciplinary potion by the Board.

6. Respondent suffered various injuries and ailments, which required a variety of medications.
Respondent’s treating physician legitimately and appropriately prescribed a number of
medications to treat [*89] these conditions. However, between 1999 and 2002, Respondent
began to refill the medications himself in lieu of scheduled visits. The list of medications
Respondent has self-prescribed include Hydrocodone, Soma, Darvocet, Paregoric,
Propoxyphene, Carisoprodol, Medrol, Phenergan, Azmacort, Cardura, Prilosec, Lomotil,
 [**69] Ventolin, Norco, and Flonase.

7. Upon review of statements of Respondent and the September 27, 2000 medical had a prior
history of tremors.

8. The Panel took notice of the fact that the Board’s investigator claims to have witnessed a
tremor daring the 2002 interview. Respondent asserted the tremor was the result of nervousness
about the interview.

9. Respondent presented evidence he has undergone a full physical examination by R. Russell
Thomas, D.O., Board certified Family Practitioner. Dr. Thomas found Respondent to be in
relatively good health, with no need of chronic medications. Dr. Thomas did not detect a
medically significant tremor, however, felt unqualified to determine Respondent’s ability to
perform surgery, and recommended a disability assessment or a Neuro-psyche evaluation.
Additionally, Respondent presented evidence of a psychiatric evaluation by Edgar Nance,
                            418 S.W.3d 52, *89; 2013 Tex. LEXIS 1082, **69

M.D., Board certified Psychiatrist and Addictionologist to determine the possibility of
substance abuse or addiction. Dr. Nance found no underlying psychiatric condition that would
inhibit Respondent’s ability to practice medicine. The Board is requesting independent
physical and psychiatric evaluations to determine [**70] Respondent’s capacity to practice
medicine in general, and specifically, to perform surgery.

10 Respondent has cooperated in the investigation of the allegations related to this Agreed
Order. Respondent’s cooperation, through consent to this Agreed Order, pursuant to the
provisions of Section 164.002 of the Act, will save money and resources for the State of Texas.
To avoid farther investigation, hearings, and the expense and inconvenience of litigation,
Respondent agrees to the entry of this Agreed Oder and to comply with its terms and
conditions.

CONCLUSIONS OF LAW

Based on the above Findings of Fact, the Board concludes that:

1. The Board has jurisdiction over the subject matter and Respondent pursuant to the Act.

2. Respondent is subject to action by the Board under Sections 164.051(a)(4) and 164.056 of
the Act due to Respondent’s inability to practice medicine with reasonable skill and safety to
patients, due to mental or physical condition.

3. Respondent is subject to disciplinary action pursuant to Section 164.051(a)(3) of the Act by
committing a direct or indirect violation of a rule adopted under this Act, either as a principal,
accessory, or accomplice, to wit, Board Rule 190.1(c)(1)(M) [**71] - inappropriate prescription
of dangerous drugs or controlled substances to oneself family members, or others in which
there is a dose personal relationship.

4. Section 164.001 of the Act authorizes the Board to impose a range of disciplinary actions
against a person for violation of the Act or a Board rule. Such sanctions include: revocation,
suspension, probation, public reprimand, limitation or restriction on practice, counseling or
treatment, required educational or counseling programs, monitored practice, public service,
and an administrative penalty.

[*90] 5. Section 164.002(a) of the Act authorizes the Board to resolve and make a disposition
of this matter through an Agreed Order.

6. Section 164.002(d) of the Act provides that this Agreed Older is a settlement agreement
under the Texas Rules of Evidence for purposes of civil litigation.

ORDER

Based on the above Findings of Fact and Conclusions of Law, the Board ORDERS that:
                            418 S.W.3d 52, *90; 2013 Tex. LEXIS 1082, **71

1. Based on the above Findings of Fact and Conclusions of Law, the Board ORDERS that
Respondent’s Texas license is hereby SUSPENDED; however, the suspension is STAYED and
Respondent is placed on PROBATION under the following terms and conditions for 3 years
from the [**72] date of the signing of this Order by the presiding officer of the Board:

2. Except as otherwise provided for by the leans of this Order, Respondent shall not treat or
otherwise serve as a physician for Respondent’s immediate family, and Respondeat shall not
prescribe, dispense, administer or authorize controlled substances or dangerous drugs with
addictive potential or potential for abuse to Respondent or Respondent’s immediate family.
Respondent may self-administer or administer to Respondent’s immediate family only such
drugs as prescribed by another physician for a legitimate medical purpose and in compliance
with the orders and directions of such physician.

3. A psychiatrist board certified in forensic or addiction psychiatry shall be appointed by the
Executive Director to serve as the evaluating psychiatrist Within thirty (30) days of notification
by the Director of Compliance of appointed evaluating psychiatrist, Respondent shall submit
to and obtain a complete forensic evaluation from the approved evaluating psychiatrist.

The psychiatric evaluation will include at a minimum: social history and background
information, history of present illness, mental status exam, review of records [**73] and other
pertinent collateral information, DSM IV multiaxial diagnosis, and treatment recommendations.
The Board and Respondent shall furnish a copy of this Order to the approved evaluating
psychiatrist as authorization to make a full report to the Board regarding Respondent’s
evaluation and any subsequent reports regarding Respondent’s compliance with this Order.
Respondent shall follow all recommendations made by the evaluating psychiatrist regarding
continued care and treatment.

If the evaluating psychiatrist recommends continued psychiatric care and treatment, within
thirty (30) days of that recommendation, Respondent shall submit in writing to the Director of
Compliance of fee Board, for approval by fee Executive Director, the names of three (3)
psychiatrists board certified in psychiatry to serve as the treating psychiatrist Respondent may
submit the name of his current treating psychiatrist Respondent shall begin the recommended
care and treatment with the approved treating psychiatrist within thirty (30) days of notification
of approval by fee Director of Compliance. The Board and Respondent shall furnish a copy of
this Order to the approved treating psychiatrist as authorization [**74] for the treating
psychiatrist to make reports to fee evaluating psychiatrist regarding Respondent’s compliance
wife the terms of this Order. Respondent shall follow all recommendations made by the
treating psychiatrist regarding continued care and treatment.

During any continued care and treatment, Respondent shall be monitored for purposes of
compliance wife this Order. The evaluating forensic psychiatrist will [*91] monitor
Respondent’s treatment and rehabilitation, and provide progress reports to fee Board every six
(6) months. The reports are doe on March IS and September 15. The monitoring reports shall
                            418 S.W.3d 52, *91; 2013 Tex. LEXIS 1082, **74

include current mental states examinations; pertinent history and social background information;
progress with treatment and rehabilitation; and updated recommendation for Respondent’s
care. Respondent shall authorize fee evaluating and treating psychiatrists to obtain any
collateral information necessary for preparation of the monitoring reports from any third party,
including the treating psychiatrist. The collateral information obtained shall be strictly limited
to the minimum information necessary to ensure adequate assessment of Respondent’s
rehabilitation and compliance wife fee [**75] terms of this Order.

Board staff may furnish to each approved psychiatrist any Board information that it determines
in its discretion may be helpful or required for fee evaluation and treatment of Respondent.

Respondent’s failure to cooperate wife either approved psychiatrist or failure to follow the
recommendations of either approved psychiatrist shall constitute a violation of this Order.

4. Within thirty (30) days of the signing of this Order by the presiding officer of the Board,
Respondent shall undergo a complete examination by a physician approved in advance in
writing by the Executive Director of the Board, and Respondent shall undergo continuing care
and treatment by the approved physician for the treatment of any condition which, without
adequate treatment, could adversely affect Respondent’s ability to sa&ly practice medicine.

Respondent shall authorize and request in writing that the approved physician provide written
periodic reports no less than once each quarter during Respondent’s treatment which reflect the
states of Respondent’s physical and mental condition, as well as Respondent’s efforts at
cooperation with treatment. Respondent shall authorize and request in writing [**76] that the
approved physician provide such other written or oral reports as Board representatives and staff
may request regarding Respondent’s care and treatment within seven (7) days of the request.
Respondent shall follow all recommendations of the approved physician to the extent that the
recommendations are consistent with the terms of this Order as determined by the Board.
Respondent shall not unilaterally withdraw from treatment, and shall request and authorize in
writing that the approved physician report to the Board within forty-eight (48) hours any
unilateral withdrawal from treatment by Respondent. Respondent shall provide a copy of this
Order to the approved physician as a reference devaluation and treatment, and as authorization
for the physician to provide to the Board any and all records and reports related to the
evaluation and treatment conducted pursuant to this paragraph. Upon request, Respondent shall
execute any and all releases for medical records necessary to effectuate the provisions of this
paragraph and this Order.

5. The time period of this Order shall be tolled if (a) Respondent subsequently resides or
practices outside the State of Texas, (b) Respondent subsequently [**77] is in official retired
status with the Board, (c) Respondent’s license is subsequently cancelled for nonpayment of
licensure fees, or (d) this Order is stayed or enjoined by Court Order. If Respondent leaves
Texas to live or practice elsewhere, Respondent shall immediately notify the Board in writing
of the dates of Respondent’s departure from and subsequent return to Texas. [*92] When the
                            418 S.W.3d 52, *92; 2013 Tex. LEXIS 1082, **77

period of tolling ends, Respondent shall be required to comply with the teams of this Order for
the period of time remaining on the Order. Respondent shall pay all foes for reinstatement or
renewal of a license covering the period of tolling.

6. Respondent shall comply with all the provisions of the Act and other statutes regulating the
Respondent’s practice.

7. Respondent shall fully cooperate with the Board and the Board staff, including Board
attorneys, investigators, compliance officers, consultants, and other employees or agents of the
Board in any way involved in investigation, review, or monitoring associated with Respondent’s
compliance with this Oder. Failure to fully cooperate shall constitute a violation of this order
and a basis for disciplinary action against Respondent pursuant to the Act.
8. [**78] Respondent shall inform the Board in writing of any change of Respondent’s mailing
or practice address within ten days of the address change. This information shall be submitted
to the Permits Department and the Director of Compliance for the Board, failure to provide
such information in a timely manner shall constitute a basis for disciplinary action by the Board
against Respondent pursuant to the Act.

9. Any violation of the terms, conditions, or requirements of this Order by Respondent shall
constitute unprofessional conduct likely to deceive or defraud the public, end to injure the
public, and shall constitute a basis for disciplinary action by the Board against Respondent
pursuant to the Act.

10. Respondent is permitted to supervise physician assistants, advanced nurse practitioners,
and surgical assistance.

11. The above-referenced conditions shall continue in full force and effect without opportunity
for amendment, except for clear error in drafting, for 12 months following entry of this Order.
If, after the passage of the 12-month period, Respondent wishes to seek amendment or
termination of these conditions, Respondent may petition the Board in writing. The Board may
inquire [**79] into the request, and may, in its sole discretion, grant or deny the petition
without farther appeal or review. Petitions for modifying or terminating may be filed only once
a year thereafter.

RESPONDENT WAIVES ANY FURTHER HEARINGS OR APPEALS TO THE BOARD OR
TO ANY COURT IN REGARD TO ALL TERMS AND CONDITIONS OF THIS AGREED
ORDBR, RESPONDENT AGREES THAT THIS IS A FINAL ORDER.

THIS ORDER IS A PUBLIC RECORD.

I, BYRON DAVIS NEELY, M.D., HAVE READ AND UNDERSTAND THE FOREGOING
AGREED ORDER. I UNDERSTAND THAT BY SIGNING, I WAIVE CERTAIN RIGHTS.
I SIGN IT VOLUNTARILY. I UNDERSTAND THIS AGREED ORDER CONTAINS THE
                             418 S.W.3d 52, *92; 2013 Tex. LEXIS 1082, **79

ENTIRE AGREEMENT AND THERE IS NO OTHER AGREEMENT OF ANY KIND,
VERBAL, WRITTEN OR OTHERWISE.

DATED: 12/4, 2003.

/s/ Byron Davis Neely

BYRON DAVIS NEELY, M.D.

RESPONDENT

STATE OF TEXAS

COUNTY OF TRAVIS

SWORN TO AND ACKNOWLEDGED BEFORE ME, the undersigned Notary Public, on this
4th day of December, 2003.

/s/ Hopie Tello

Signature of Notary Public

/s/ Hopie Tello

Printed or typed name of Notary Public

My commission expires:

[*93] 6/10/2004

SIGNED AND ENTERED by the presiding officer of the Texas State Board of Medical
Examiners on this 12 day of December, 2003.

/s/ Lee S. Anderson

Lee S. Anderson, M.D., President

TEXAS [**80] STATE BOARD     OF   MEDICAL EXAMINERS

Dissent by: Wallace B. Jefferson

Dissent

[*79] The Court holds that the broadcast presented a false impression, an untenable ″gist,″ that
the doctor was disciplined for operating on patients while taking dangerous drugs. But that gist
is reasonably derived from the medical board’s findings, the doctor’s testimony, and witness
observations. If the news report is damning, it is because it conveys substantial truth. The
doctor performed brain surgeries during a time he was ingesting seven narcotics, eight other
                             418 S.W.3d 52, *79; 2013 Tex. LEXIS 1082, **80

medications, and alcohol. He suffered hand tremors during the period he operated on patients’
brains. The medical board investigator concluded that the doctor was subject to discipline
based on his ″[i]nability to practice medicine with reasonable skill and safety because of illness
or substance abuse.″ The board not only suspended his medical license, but also ordered a
psychiatric evaluation focused on addictive disorders. It required the doctor to undergo a
physical examination to confirm whether he was, or was not, physically capable of operating
safely.
The doctor denies he was an addict or that his drug use impaired his surgical skills. That is
enough, the Court says, [**81] to raise a genuine issue on the broadcast’s substantial truth. But
that evidence is immaterial to the gist the Court has identified: that the Board disciplined the
doctor for taking dangerous drugs during a time he performed sensitive surgeries. Because ″the
underlying facts as to the gist of [that] charge are undisputed, . . . we can disregard any variance
with respect to items of secondary importance and determine substantial truth as a matter of
law.″ McIlvain v. Jacobs, 794 S.W.2d 14, 16 (Tex. 1990).
We must decide whether the broadcast was more damaging to the doctor’s reputation, in the
mind of an average viewer, than a truthful statement would have been. Id. Here, the literal truth
is as caustic as the gist, and the gist reasonably depicts literal truth. Whether it rejected the
doctor’s gist contention, or found that the broadcast was substantially true, the trial court
properly granted summary judgment. The court of appeals properly affirmed that judgment. I
would also affirm. The Court’s conclusion to the contrary sanctions constitutionally protected
speech. For these and other reasons, I respectfully dissent.

I. The broadcast was substantially true.

″The common law of libel [**82] . . . . overlooks minor inaccuracies and concentrates upon
substantial truth.″ Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516, 111 S. Ct. 2419,
115 L. Ed. 2d 447 (1991) (internal citations omitted). Small discrepancies ″do not amount to
falsity so long as ’the substance, the gist, the sting, of the libelous charge be justified.’″ Id. at
517; see also Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000) (holding that
substantial truth doctrine ″precludes liability for a publication that correctly conveys a story’s
’gist’ or ’sting’ although erring in the details″). ″Put another way, the statement is not
considered false unless it ’would have a different effect on the mind of the reader from that
which the pleaded truth would have produced.’″ Masson, 501 U.S. at 517 (quoting R. SACK,
LIBEL, SLANDER, AND RELATED PROBLEMS 138 (1980)).
[*80] We must view the communication as a whole in light of the surrounding circumstances
based upon how a person of ordinary intelligence would perceive it. Turner, 38 S.W.3d at 114.
We determine falsity based on ″the meaning a reasonable person would attribute to a
publication, and not to a technical analysis of each statement.″ New Times, Inc. v. Isaacks, 146
S.W.3d 144, 154 (Tex. 2004) [**83] (emphasis added). Rather than consider the broadcast as
a whole, the Court parses it into several different gists, and then addresses only two of them,
ironically presenting a certain juxtaposition that the Court itself decries.
                                       418 S.W.3d 52, *80; 2013 Tex. LEXIS 1082, **83

The Court states that the broadcast incorrectly characterized Neely’s sanction as based on the
Board’s conclusion that Neely operated on patients while using dangerous drugs. S.W.3d at
 . Because the Board’s action was based only on self-prescribing, the Court holds that this gist
was not substantially true.

We require substantial, not perfect, truth. With respect to substantiality, Neely admits he was
using every one of the fifteen drugs identified in the Board order, plus a few more1:

     Q. And—and these are actually drugs that you were, I assume, taking. Correct?
     A. Yes, sir.
     Q. I mean, you weren’t prescribing them to yourself to throw away, correct?
     A. No.2

Seven of these drugs are narcotics. Paregoric, a narcotic [**84] also known as camphorated
tincture of opium,3 contains morphine and is a controlled substance. The average adult dose is
5-10 milliliters one to four times per day; Neely concedes he was taking up to 70 milliliters
daily. During 1999-2000 (the time of the Jetton and Wu surgeries), he took it regularly, at
bedtime and again upon waking. He believes the effects wore off after two or three hours, and
he believes he could perform surgery within three or four hours of taking morphine.

Neely tore his rotator cuff in 1999, and he admits during that time to taking ″quite a bit″ of
Vicodin, also a narcotic and a controlled substance. He prescribed himself Darvocet, a pain
medication, narcotic, and controlled substance; Darvon, Propoxyphene, and Norco, also
narcotic pain relievers; Lomotil, another narcotic; Phenergan, an anti-nausea drug that can
cause considerable drowsiness; Ventolin, a bronchodilator; Medrol and Azmacort, steroid
treatments [**85] he used for asthma; Prilosec for acid indigestion; and Flonase. He was also
taking Paxil, which his doctor had prescribed for acute depression.

Neely’s self-refills were not isolated occurrences. Between August and October 1999—the
time he was treating Paul Jetton—Neely self-refilled his Paregoric prescription twelve times.

During the same time, Neely drank alcohol every night that he was not on call. He admits to
two drinks per night during 1999-2001, although he would sometimes have four or five at a
time and would [*81] occasionally ″overindulge.″ Neely admits that almost all of the drugs
he was using, including alcohol, can cause withdrawal symptoms, although he denies any such
symptoms, except with regard to Medrol. Neely also acknowledges that the dings he was using
can cause dizziness, visual disturbances, mental cloudiness, euphoria, sedation, and nervousness.
1
    Neely also admits taking Paxil, Flovent, and Singulair.
2
  Unless otherwise indicated, all of this information comes from the Board’s investigation, the Board’s order, or Neely’s testimony. The
Board’s order is attached as an Appendix to this opinion.
3
   See, e.g., Henley v. State, 387 S.W.2d 877, 878 (Tex. Crim. App. 1965) (holding that paregoric ″is, in fact, a narcotic drug known
under the official drug name of ’camphorated tinture [sic] of opium’ and that it contains morphine, which comes from opium″).
                            418 S.W.3d 52, *81; 2013 Tex. LEXIS 1082, **85

Neely admits he was hypomanic, which he defines as ″hyperactive,″ while on steroids, as he
was in 1999. When the broadcast aired, Neely had been involved in seven malpractice cases,
at least two of which alleged that he was addicted to prescription drugs and that he abused
alcohol.

The Court emphasizes that the Board found that [**86] most of Neely’s drugs were
″legitimately and appropriately prescribed.″   S.W.3d at     . In fact, the Board found that
Neely’s treating physician appropriately prescribed the medications initially, but it did not
conclude that Neely’s extensive (and unmonitored) refills were part of a legitimate treatment
plan:

   Respondent’s treating physician legitimately and appropriately prescribed a number of
   medications to treat these conditions. However, between 1999 and 2002, Respondent
   began to refill the medications himself in lieu of scheduled visits.

Agreed Order, Finding of Fact 6 (emphasis added). The Board’s investigator concluded that
Neely should be disciplined for ″[i]nability to practice medicine with reasonable skill and
safety because of illness or substance abuse.″ The Board ordered Neely not to prescribe or
″administer . . . controlled substances or dangerous drugs with addictive potential or potential
for abuse″ to himself. (Emphasis added.) The Board required Neely to undergo an examination
by a psychiatrist who was board-certified in forensic or addiction psychiatry. That directive
cannot seriously be thought to relate to mental health issues unconnected to drug use. See TEX.
OCC. CODE § 164.056(d) [**87] (″The board may not require a physician . . . to submit to an
examination by a physician having a specialty specified by the board unless medically
indicated.″). It can only relate to a determination that the doctor was actually taking these drugs
and could be addicted to them. It is not hard to understand the Board’s concerns: patient safety
may be negatively impacted by a doctor performing surgeries while under the influence of, or
experiencing withdrawal from, narcotics. The Board’s requirement that Neely undergo a
physical examination could only relate to the Board’s fear that Neely had a condition that may
adversely affect his ability to safely practice medicine.
The Court concludes that the Board’s reference to Neely’s ″inability to practice medicine with
reasonable skill and safety to patients, due to mental or physical condition″ related only to
Neely’s hand tremors, and not his drag use. S.W.3d at (″The Board Order ultimately did
not discipline Neely under section 164.051(a)(4) for substance abuse but only for a ’mental or
physical condition,’ which was his hand tremor.″). But there is nothing in the Board’s order
reflecting such a determination. To the contrary, the [**88] Order states that ″the Board is
requesting independent physical and psychiatric evaluations to determine [Neely’s] capacity
to practice medicine in general, and specifically, to perform surgery.″ (Emphasis added.)
Although the physical examination would address the Board’s concerns about the hand
tremors, the psychiatric evaluation, by a board-certified addiction specialist, could only have
been intended to address the Board’s concerns about Neely’s possible substance abuse. We are
supposed to view the communication as a whole in light of the surrounding circumstances
                                       418 S.W.3d 52, *82; 2013 Tex. LEXIS 1082, **88

[*82] based upon how a person of ordinary intelligence would perceive it. Turner, 38 S.W.3d
at 114. No reasonable person would interpret the Board’s order the way the Court has.

After Neely and the Board signed the Agreed Order, the Board posted the following on its
website:

     ON 12-12-03 THE BOARD AND DR. NEELY ENTERED INTO AN AGREED
     ORDER SUSPENDING THE PHYSICIAN’S LICENSE; STAYING THE
     SUSPENSION, AND PLACING THE PHYSICIAN ON PROBATION FOR THREE
     YEARS. THIS ACTION WAS BASED ON ALLEGATIONS THAT DR. NEELY HAD
     SELF-PRESCRIBED MEDICATIONS WITH THE POTENTIAL TO INTERFERE
     WITH HIS ABILITY TO PERFORM SURGERY. THE TERMS OF THE ORDER
      [**89] FORBID DR. NEELY FROM SELF-PRESCRIBING MEDICATIONS, AND
     REQUIRE CONTINUING PHYSICAL AND PSYCHIATRIC EVALUATIONS TO
     VERIFY HIS FITNESS TO PERFORM SURGERY.

Shortly thereafter, and a month before the KEYE-TV broadcast, the Austin American
Statesman reported on the Board’s actions, noting that Neely was one of six physicians
disciplined for ″violations involving either ding or alcohol abuse.″4 See Mary Ann Roser, 6
physicians disciplined for substance abuse, AUSTIN AMERICAN STATESMAN, Dec. 20, 2003.

The court of appeals accurately assessed the substantial truth of the ″taking dangerous drugs″
gist:

     Neely’s use of self-prescribed medications was plainly a focus of the Board’s order. The
     order prohibited Neely from prescribing, dispensing, or administering ″controlled
     substances or dangerous drugs with addictive potential or potential for abuse″ to
     himself. Furthermore, the order was consistent with a concern of the Board that Neely
     might have become addicted to medications he was self-administering. The order
     required him to be evaluated by a Board-appointed psychiatrist [**90] who was
     board-certified in forensic or addictive psychology. These evaluations had not yet been
     performed, or the underlying issues resolved, at the time of the broadcast. In short, even
     if it was not literally true that Neely had been ″disciplined for . . . taking dangerous
     drugs″ in terms of the precise legal bases of the Board’s order, that assertion would at
     least be substantially true because it would be no more damaging to Neely’s reputation
     in the eyes of the ordinary viewer than a literally true recitation of the Board’s order
     would have been.

331 S.W.3d at 924.

The Court reaches the opposite conclusion, isolating three portions of the broadcast: anchor
Fred Cantu’s introductory statement that Neely was disciplined for taking dangerous drugs and
4
    The Board suspension also led Blue Cross Blue Shield to deny Neely’s request to participate in their PPO, POF, and HMO networks.
                                      418 S.W.3d 52, *82; 2013 Tex. LEXIS 1082, **90

controlled substances, Paul Jetton’s statement that one cannot take the medications Neely was
taking and drive a vehicle, and Wilson’s questioning of the Texas Medical Board representative
regarding whether the order would prevent Neely from using dangerous drugs and controlled
substances and thereby ″do the same thing he was doing before.″ S.W.3d .
But the Court’s focus on a small portion of Cantu’s introductory statement5 is
[**91] misplaced— [*83] even Neely admits that it was substantially true:

    Q. We’ll call this paragraph one. You can read it to yourself.
    A. Yes.
    Q. Is there anything in there that—that’s false about you in there?
    A. That’s—that’s fairly true.
The Court then turns to Paul Jetton’s statement and concludes that ″Paul’s statement that one
cannot take the medications Neely was ’taking’ and drive a vehicle″ contributed to the false
gist. S.W.3d at . But this conflicts with the Court’s later holding that some of Sheila Jetton’s
statements were protected by the judicial proceedings privilege. Specifically, the Court
identifies a second gist involving Sheila Jetton’s statements that Neely performed unnecessary
surgery. The Court decides that those statements were protected because ″an ordinary viewer
could conclude that Sheila’s allegation regarding unnecessary surgery was made in the Jetton
lawsuit.″ S.W.3d at . I do not understand why this holding would [**92] not also apply
to Paul Jetton’s statements about Neely’s drug use, which formed the basis of the same lawsuit.
His petition, filed nine months before the broadcast, alleged:
    At all time [sic] material hereto, Byron Neely, M.D. was impaired from making good
    medical decisions and from performing neurosurgery because he was dependent on
    steroids and opiates and that he abused alcohol. Byron Neely, M.D. knew that he was
    not competent to perform neurosurgery because he had tremors in his hands as a result
    of the drugs that he was taking. By providing medical treatment to Paul Jetton and
    surgery on Paul Jetton in an impaired state, Byron Neely, M.D. acted negligently and
    such negligence was a proximate cause of the complained of damages. Such impairment
    adversely affected Byron Neely, M.D.’s communication skills and attentiveness to Paul
    Jetton’s infected shunt.

(Emphasis added.)
But even if Paul’s statement were not privileged, Neely acknowledges its factual truth: you
should not drive a car after you’ve taken Vicodin, Darvocet, Paregoric, Phenergan, or Norco.
Neely agrees that these drugs impact physical and mental abilities, and that a surgeon should
not perform surgery after taking these [**93] drugs. He also confirms that he was taking all
of them, although he denies that he operated while impaired.
5
   Fred Cantu: If you needed surgery would you want to know if your surgeon had been disciplined for prescribing himself and taking
dangerous drugs, had a history of hand tremors and had been sued several times for malpractice in the last few years?
                            418 S.W.3d 52, *83; 2013 Tex. LEXIS 1082, **93

Finally, Neely admits that Jetton’s statement was his opinion, and nothing more:

   Q. Now, this is Mr. Jetton’s statement, right?
   A. That is correct.
   Q. And these are his views or opinions about some of the drugs that you were
   self-prescribing, right?
   ...
   A. That’s his opinion.

See, e.g., Greenbelt Coop. Publ’g Ass’n, Inc. v. Bresler, 398 U.S. 6, 14, 90 S. Ct. 1537, 26 L.
Ed. 2d 6 (1970) (holding that article reporting that people had characterized a real estate
developer’s position as ″blackmail″ was protected expression; ″even the most careless reader
must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet
used by those who considered [the developer’s] [*84] negotiating position extremely
unreasonable″); see also ROBERT D. SACK, SACK ON DEFAMATION: LIBEL, SLANDER, AND RELATED
PROBLEMS § 4:2.4[A] (4th ed. 2012) (noting that the Supreme Court has held that speech is not
defamatory even if ″literally containing assertions of fact [but] is intended to express only
points of view″).

The Court concludes that Wilson’s questioning of the Board representative also
[**94] contributed to the false perception that Neely was disciplined for operating on patients
while using dangerous drugs. The disputed excerpt provides:

Wilson: The [Board] did discipline Dr. Neely. This past December, they suspended his license
but gave it right back by staying the suspension. Now he’s on probation for three years. The
only requirements are that he see a psychiatrist and not write prescriptions for himself or his
family. A decision the Board defends.

Board representative: We have compliance officers and the compliance officers will definitely
follow to make sure that he’s doing the things that his order requires him to do.

Wilson: But how would they know if he’s using? He can get somebody else to prescribe him.
I mean, he could say, ″I’ve followed the order.″

Board representative: Right.

Wilson I didn’t prescribe myself.

Board representative: Right, Right.

Wilson: How do we, how do we know that he’s, that we’re not putting somebody right back
out there to do the same thing he was doing before?
                                        418 S.W.3d 52, *84; 2013 Tex. LEXIS 1082, **94

Board representative: That’s a very good question, and why this order doesn’t include drug
testing, I, I honestly don’t know the answer to that.

Wilson is not suggesting that the Board disciplined [**95] Neely for taking dangerous drugs,
but rather that the Board did not do enough—that in the face of knowledge that a surgeon had
hand tremors and had repeatedly self-prescribed numerous narcotics and controlled substances,
the Board let Neely operate without requiring him to undergo drug testing. When asked
whether Wilson’s final question was true, Neely’s response was not that her inquiries created
the false impression that the Board had sanctioned him for using drugs, but that the Board
would be able to obtain his medical and drug records to determine whether his confessed usage
had ceased.

     Q. And then Nanci Wilson’s asking about: ″How would they know if he was using? He
     can get somebody else to prescribe for him. He could say I followed the order, and I
     didn’t prescribe myself. How do you know that we are not putting somebody right back
     out there to do the same thing that he was doing before?″ Do you see that?
     A. I see that, yes.
     Q. Is there anything false in there about you, in there?
     ...
     A. You know, how would he know? They have the—the—they have the medical records
     and the drug records from, henceforth.
     Q. And so you think that they would know from the drug records?
     A. Absolutely.
Finally, [**96] the Court concludes that it need not address the third gist it identifies: that
Neely was operating on patients while experiencing hand tremors. S.W.3d at . But we must
evaluate the substantial truth of the broadcast as a whole,6 and the [*85] hand tremors are an
inseparable part. That portion of the broadcast is also undeniably true.

Neely has tremors, although he denies that they impact his surgical skills. He has variously
ascribed the tremors to (1) tapering off of Medrol (which occurred when he treated Jetton and
Wu, and he admitted some of those tremors were ″major″); (2) the Ventolin he was taking; (3)
nervousness while meeting with a Board investigator; and (4) being ″badgered″ by the attorney
deposing him. The Board’s investigator witnessed [**97] the tremors, as did Sheila Jetton
when Neely was injecting anesthetic into her husband’s head.7 The Board’s order concluded
6
    See City of Keller v. Wilson, 168 S.W.3d 802, 811 (Tex. 2005) (″[P]ublications alleged to be defamatory must be viewed as a whole
including accompanying statements, headlines, pictures, and the general tenor and reputation of the source itself. A court reviewing legal
sufficiency cannot disregard parts of a publication, considering only false statements to support a plaintiff’s verdict or only true ones to
support a defense verdict.″).
7
    The Jettons fired Neely the next day.
                             418 S.W.3d 52, *85; 2013 Tex. LEXIS 1082, **97

that Neely had a history of tremors, and Neely’s personal physician noted it in his medical
records. The Board was concerned enough about the tremors that it ordered Neely to undergo
a complete examination by a physician ″to determine [Neely’s] capacity to practice medicine
in general, and specifically, to perform surgery.″

The tremors, whether related to Neely’s drug use or not, raise separate questions about Neely’s
fitness to perform surgeries. They formed part of the basis for the Board complaint and
subsequent order, as well as the Jettons’ lawsuit. We cannot consider the broadcast as a whole
without including this portion of it.

The Court concludes that Neely has raised a fact issue on falsity because he denies operating
while impaired and because the physician he hired after the Board instituted proceedings
against him found that Neely did not have a substance abuse disorder. But Neely’s
controverting evidence goes to whether he was impaired or an addict, not to whether the Board
disciplined him for taking dangerous drugs [**98] during a time he was performing brain
surgeries.
A case from the United States Court of Appeals for the Seventh Circuit is instructive. See
Global Relief Found., Inc. v. New York Times Co., 390 F.3d 973 (7th Cir. 2004). Global Relief
Foundation, Inc., an Illinois charity, sued several media defendants, alleging that news reports
after the September 11, 2001 terror attacks falsely suggested that Global Relief had funded
terrorism. Id. at 974-75. Global Relief complained that donations to the organization
evaporated following these reports. Id. at 980-81. The media defendants moved for summary
judgment, arguing that their reports were substantially true recitations of the government’s
suspicions about and actions against Global Relief. Id.

Global Relief opposed the motion and provided two affidavits, one from its executive director
and another from its lead lawyer. Id. at 982-83. The executive director’s affidavit denied that
Global Relief engaged in violence or supported violence, terrorism, or military operations; he
also denied that Global Relief ever provided weapons or military items to anyone or that it had
provided humanitarian aid to the families of suicide bombers. Id. at 983. [**99] Global Relief
argued that this affidavit raised a fact issue, making summary judgment improper. Id.

Even in light of this evidence, the Seventh Circuit held that summary judgment was
appropriate because the news reports were substantially true. Id. at 990. Although [*86] the
executive director’s affidavit ″demonstrates a genuine issue on whether [Global Relief] has
ever funded terrorist activity[, t]hat genuine issue . . . may not be material or relevant if the true
gist or sting of the publications was not that [Global Relief] funded terrorism but that the
government was investigating [Global Relief] forties to terrorism and was considering
blocking the group’s assets.″ Id. at 983. The court ultimately concluded that Global Relief’s
evidence did not raise a fact issue on the substantial truth of the story’s gist, which was the
latter, and it affirmed summary judgment in the defendants’ favor. Id. at 990. The court rejected
Global Relief’s ″argument that these media defendants must be able to prove the truth of the
                                         418 S.W.3d 52, *86; 2013 Tex. LEXIS 1082, **99

government’s charges before reporting on the investigation itself.″ Id. at 987. The court
concluded that ″[t]he fact of the investigation was true whether or not it was publicly
 [**100] known. That is all the defendants need to show for the defense of substantial truth.
This they have done.″ Id. at 989.
The same applies to Neely’s controverting evidence. Taking all of it as true, it demonstrates
only a genuine issue on whether he was in fact impaired. That is immaterial to the story’s gist:
that the Board disciplined Neely for operating on patients while taking dangerous drugs. That
gist was substantially true as a matter of law.
We come, then, to the literal truth. Even without reference to ″gist,″ we know that the Board
disciplined Neely for prescribing dangerous dings to himself, drugs he admits taking. We know
that the Board ordered that Neely be supervised as a result. We know that Neely had hand
tremors during a period of time in which he performed sensitive surgeries. The Board ordered
psychiatric and physical evaluations that could only be tied to a concern for the safety of
patients under Neely’s care. We know that several of those patients experienced bad outcomes
after Neely operated on them. We know that he had been involved in seven malpractice cases,
at least two of which alleged that he was dependent on alcohol and drugs. These facts are not
gist, only [**101] truth. Because the broadcast did not create a different effect on the average
viewer’s mind than the truth would have, I would hold that it is substantially true. Masson, 501
U.S. at 516; Turner, 38 S.W.3d at 114-15. I would go further. The ″gist″ that bothers the Court
is actually an inference reasonably drawn from uncontested facts. The broadcast neither
presents an inaccurate gist nor distorts the substantial truth,

II. Because the broadcast was substantially true, we need not revisit McIlvain.

The Court suggests that McIlvain stands only for the proposition that a broadcast’s report of
allegations are protected if those allegations are later proved to be true. S.W.3d at . The
Court rejects several Texas appellate courts’ and the United States Court of Appeals for the
Fifth Circuit’s interpretation of McIlvain—that when a report is merely that allegations were
made and were under investigation, proof that allegations were in fact made and under
investigation establishes the report’s substantial truth.8 I disagree with the Court’s restrictive
view [*87] of McIlvain. But even if that case’s precise limits are unclear, the speech here
would be protected under the general rules protecting [**102] reports of investigations, such
as Texas’ fair report privilege. See TEX. CIV. PRAC. & REM. CODE § 73.002(b)(1).9 As a leading
treatise notes,
8
    See. e.g.. Green v. CBS Inc., 286 F.3d 281, 284 (5th Cir. 2002); Cox Tex. Newspapers, L.P. v. Penick, 219 S.W.3d 425, 443 (Tex. App.
Austin 2007, pet. denied); Grotti v. Belo Corp., 188 S.W.3d 768, 771 (Tex. App. Fort Worth 2006, pet. denied); Associated Press v. Boyd,
No. 05-04-01172-CV, 2005 Tex. App. LEXIS 3715, 2005 WL 1140369, at *3 (Tex. App.—Dallas May 16, 2005, no pet.); [**105] UTV
of San Antonio, Inc. v. Ardmore, Inc., 82 S.W.3d 609, 611-12 (Tex. App.—San Antonio 2002, no pet.); KTRK Television v. Felder, 950
S.W.2d 100, 105 (Tex. App. Houston [14th Dist.] 1997, no writ).
9
   See also RESTATEMENT (SECOND) OF TORTS § 611 (1977) (noting that ″[t]he publication of defamatory matter concerning another in a
report of an official action or proceeding . . . is privileged if the report is accurate and complete or a fair abridgement of the occurrence
reported″).
                           418 S.W.3d 52, *87; 2013 Tex. LEXIS 1082, **102

   News reports that an investigation is underway by the police, by prosecutors, by other
   law enforcement agencies, or by other officials are common. Publication of the details
   of such inquiries is similarly common. Arguably such a report is, in substance, an
   implied allegation of the wrongdoing being leveled against the subject of the
   investigation. Readers or hearers may certainly interpret it as such; if there were no such
   allegation, presumably there would be no such investigation. The issue then arises as to
   whether the republisher of the charges is responsible for the truth thereof, that is, if the
   person is not guilty of the charges being investigated, does he or she have a defamation
   action against the republisher? . . .
   The law treats these accounts as reports of events, not as republications of allegations
   of wrongdoing, so that as a general matter, if there is in fact an investigation, the report
   of its existence is ″true.″ Investigations are often important governmental occurrences.
   Permitting lawsuits for accurate reports of such events [**103] would threaten to black
   out significant news. ″Doubtlessly, it is painful to be cast before the public as the target
   of an investigation where later events point to baseless or vexatious charges. The greater
   wrong, however, would be to shroud in secrecy, for want of publication, the
   government’s scrutiny of its citizens.″

ROBERT D. SACK, SACK ON DEFAMATION: LIBEL, SLANDER, AND RELATED PROBLEMS § 7.3.5[C] (4th ed.
2012) (emphasis added) (quoting Sibley v. Holyoke Transcript-Telegram Publ’g Co., 391 Mass.
468, 461 N.E.2d 823, 826 (Mass. 1984)). The report here presented a ″fair abridgement″ of the
Medical Board proceedings and the Jetton and Wu lawsuits, and I would conclude that it was
privileged. See RESTATEMENT (SECOND) OF TORTS § 611 (1977). Apart from the constitutional
considerations raised by restricting such speech, these are matters of public concern. See N.Y.
Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964) (noting our
″profound national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open″). Imposing liability for reporting on such issues will shield
the truth, not expose it. As the Felder court [**104] noted:

   [T]he media would be subject to potential liability everytime [sic] it reported an
   investigation of alleged misconduct or wrongdoing by a private person, public official,
   or public figure. Such allegations would never be reported by the media for fear an
   investigation or other proceeding might later prove the allegations untrue, thereby
   subjecting the media to suit for defamation. Furthermore, when would an allegation be
   proven true or untrue for purposes of defamation? After an investigation? After a court
   trial? After an appeal? Undoubtedly, the volume of litigation [*88] and concomitant
   chilling effect on the media under such circumstances would be incalculable. First
   Amendment considerations aside, common sense does not dictate any conclusion other
   than the one we reach today.

KTRK Television v. Felder, 950 S.W.2d 100, 106 (Tex. App.—Houston [14th Dist.] 1997, no
writ).
                           418 S.W.3d 52, *88; 2013 Tex. LEXIS 1082, **104


III. Conclusion

The broadcast is damning because it raises questions about Neely’s fitness as a surgeon. But
it is also substantially true. The Court’s holding abridges the freedom to report on a matter of
public concern. In that respect, it collides violently with the First Amendment. See Haynes v.
Alfred A. Knopf, Inc., 8 F.3d 1222 (7th Cir. 1993) (″The rule making substantial truth a
complete defense and the constitutional limitations on defamation suits coincide.″). I would
answer anchor Fred Cantu’s initial question in the broadcast ″Yes.″ See supra, note 5. I
respectfully dissent.
Wallace B. Jefferson
Chief Justice

OPINION DELIVERED: June 28, 2013
