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

• Court: Court of Appeals of Texas
• Decided: February 26, 2014
• Docket: 07-12-00193-CV
• Status: Published

Opinion

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

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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