WFAA-TV, Inc. v. McLemore

• Decision Date: 24 September 1998
• Docket Number: No. 97-0868,WFAA-T,INC,97-0868
• Parties: 26 Media L. Rep. 2385, 41 Tex. Sup. Ct. J. 1394 , Petitioner, v. John McLEMORE, Respondent.
• Court: Texas Supreme Court

Page 568

978 S.W.2d 568

26 Media L. Rep. 2385, 41 Tex. Sup. Ct. J. 1394

WFAA-TV, INC., Petitioner, v. John McLEMORE, Respondent.

No. 97-0868.

Supreme Court of Texas.

Argued April 1, 1998.

Decided Sept. 24, 1998.

Paul C. Walter, Rachel Elizabeth Boehm, Dallas, R. Matt Dawson, Corsicana, for petitioner.

Aubrey R. Williams, Greg White, John Alonzo Montez, Felipe Reyna, Waco, for respondent.

HANKINSON, Justice, delivered the opinion for a unanimous Court.

In this defamation suit arising out of the 1993 Bureau of Alcohol, Tobacco and Firearms (ATF) raid on the Branch Davidian compound at Mount Carmel, we decide whether a media plaintiff, one of only a few journalists to report live from the scene of the raid, whose reports were rebroadcast worldwide, and who willingly gave numerous interviews about his role in the failed raid, is a public figure. The plaintiff sued WFAA-TV Channel 8 in Dallas alleging that its news reports concerning his role in the failed raid damaged his reputation in the community. The trial court denied WFAA's motion for summary judgment, and the court of appeals affirmed. 979 S.W.2d 337. Because we conclude that the plaintiff in this case became a limited-purpose public figure after thrusting himself to the forefront of the controversy surrounding the failed ATF assault, we reverse the court of appeals' judgment and render judgment that the plaintiff take nothing.

On February 28, 1993, ATF agents approached the Mount Carmel compound occupied by the Branch Davidians, a small religious sect that had amassed an arsenal of illegal weaponry. Two local media outlets, KWTX-TV Channel 10 in Waco and the Waco Tribune-Herald, learned from various sources that a major law enforcement operation would proceed at Mount Carmel that morning. KWTX-TV dispatched reporter John McLemore and cameraman Dan Mullony to report on the event.

When the ATF agents attempted to enter one of the buildings on the compound, they became involved in a gunfight with the Davidians. During the battle, four ATF agents and three Davidians were killed, and twenty ATF agents were wounded. McLemore and Mullony, the only media representatives to follow the agents onto the compound, reported live from the midst of the firefight.

Two days after the gunfight, media reports began to focus on why the ATF raid had failed and what sparked the gunfight. On March 2, 1998, Kathy Fair, a Houston Chronicle reporter, appeared on Nightline, an ABC news show anchored by Ted Koppel. During the show, Koppel and Fair discussed the media's role in the botched ATF raid. Koppel asked what went wrong with the media's coverage, and Fair initially responded that it was too early to determine. She then suggested ATF agents believed they were set up:

I think many officers will tell you that they blame the media, particularly the local media, for the tragedy that occurred here. They think the fact that both the newspaper and the local television station, who were already at the compound, some of whom were reporters for, I believe, the TV station, allegedly were already hiding in the trees when federal agents arrived. And that was the first indication that many of them had that they had been set up, and that's a strong belief I think they have that they have not shared publicly yet, is that they think they were set up.

As soon as the Nightline broadcast ended, KWTX-TV began to receive calls critical of McLemore's role in the raid, even though Fair had not identified him by name.

WFAA picked up the story the next day and began to broadcast reports by Valerie Williams, a WFAA reporter, who repeated Fair's report that ATF agents saw local media hiding in trees at the compound before the attack began. WFAA then broadcast video footage of McLemore while apparently on the compound grounds. Williams then continued her report:

The only reporters at the scene Sunday morning were Steve [sic] McLemore and a television photographer from KWTX-TV in Waco and one or two reporters from the local newspaper. McLemore's news unit was used to transport some of the wounded agents. Currently his bosses are consulting with attorneys before issuing a statement.

Later that evening, WFAA broadcast a similar piece, again repeating excerpts from Nightline, followed by commentary from Williams:

[T]he only reporters at the scene Sunday morning were John McLemore and a photographer.... Wednesday night McLemore's station ... demanded a retraction from Nightline saying, "[T]he rumor that a Waco reporter had tipped the cult about the raid in exchange for permission to be on the compound grounds was completely false. No reporter or photographer from local media was on the compound grounds prior to the raid."

Soon after the reports aired, McLemore sued WFAA-TV, Valerie Williams, A.H. Belo Corporation, Belo Productions, Inc., the Houston Chronicle, and Kathy Fair for defamation, alleging that their news reports of his role in the failed raid damaged his reputation in the community. WFAA moved for summary judgment on six grounds: (1) no defamatory meaning; (2) fair report privilege; (3) fair comment privilege; (4) truth; (5) no actual malice; and (6) neutral reporting privilege. After McLemore nonsuited Williams and the two Belo corporations, the trial court granted summary judgment in favor of the Chronicle and Fair, but denied WFAA's motion for summary judgment.

Affirming the trial court's judgment, the court of appeals concluded that McLemore was a private individual, and as such, he had to prove negligence, not actual malice, in his defamation case. Because WFAA did not move for summary judgment on the grounds that it acted without negligence, the court of appeals determined that the issue was not before it and remanded the defamation action to the trial court for further proceedings consistent with its opinion. 979 S.W.2d at 343.

WFAA now appeals under section 22.225(d) of the Texas Government Code which provides this Court with jurisdiction to hear a petition for review from an interlocutory order denying a media party's motion for summary judgment in a defamation case. TEX. GOV'T CODE § 22.225(d); TEX. CIV. PRAC. & REM.CODE § 51.014(6). Specifically, WFAA argues that summary judgment is proper because McLemore is a public figure, and as a matter of law, it did not broadcast its reports with actual malice.

To maintain a defamation cause of action, the plaintiff must prove that the defendant: (1) published a statement; (2) that was defamatory concerning the plaintiff; (3) while acting with either 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. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989)(citing New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). To have prevailed on its motion for summary judgment, WFAA must have disproved at least one essential element of McLemore's defamation claim. See Doe v. Boys Clubs of Greater Dallas, 907 S.W.2d 472, 476-77 (Tex.1995).

Fault is a constitutional prerequisite for defamation liability. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Private plaintiffs must prove that the defendant was at least negligent. See Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809, 819 (Tex.1976) (holding that "a private individual may recover damages from a publisher or broadcaster of a defamatory falsehood as compensation for actual injury upon a showing that the publisher or broadcaster knew or should have known that the defamatory statement was false"); see also Gertz, 418 U.S. at 347, 94 S.Ct. 2997 (holding that states may define for themselves the appropriate standard of liability for a publisher of a defamatory falsehood injurious to a private individual "so long as they do not impose liability without fault"). Public officials and public figures must establish a higher degree of fault. They must prove that the defendant published a defamatory falsehood 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, 376 U.S. at 279-80, 84 S.Ct. 710 (defining the actual malice standard and applying it to public officials); see also Curtis Pub. Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (applying the New York Times actual malice standard to public figures).

Because a defamation plaintiff's status dictates the degree of fault he or she must prove to render the defendant liable, the principal issue in this case is whether McLemore is a public figure. The question of public-figure status is one of constitutional law for courts to decide. See Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966); Trotter v. Jack Anderson Enters., Inc., 818 F.2d 431, 433 (5th Cir.1987). Public figures fall into two categories: (1) all-purpose, or general-purpose, public figures, and (2) limited-purpose public figures. General-purpose public figures are those individuals who have achieved such pervasive fame or notoriety that they become public figures for all purposes and in all contexts. See Gertz, 418 U.S. at 351, 94 S.Ct. 2997. Limited-purpose public figures, on the other hand, are only public figures for a limited range of issues surrounding a particular public controversy. See id.

To determine whether an individual is a limited-purpose public figure, the Fifth Circuit has adopted a three-part test:

(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) 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.

Trotter, 818 F.2d at 433 (citing Tavoulareas v. Piro, 817...