Brandon Darby v. the New York Times Company and James C. McKinley, Jr.

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
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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
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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