WFAA-TV, Inc. v. McLemore

• Decision Date: 25 June 1998
• Docket Number: INC,No. 10-96-033-CV,WFAA-T,10-96-033-CV
• Citation: 979 S.W.2d 337
• Parties: , Appellant, v. John McLEMORE, Appellee.
• Court: Texas Court of Appeals

Page 337

979 S.W.2d 337

WFAA-TV, INC., Appellant, v. John McLEMORE, Appellee.

No. 10-96-033-CV

Court of Appeals of Texas,

Waco.

June 25, 1998.

Ordered Published Nov. 12, 1998.

R. Matt Dawson, Dawson, Sodd, Moe, Jacobson & Beard, P.C., Corsicana, James E. Wren, Haley & Davis, P.C., Waco, Paul C. Watler, Jenkins & Gilcrist, P.C., Dallas, for appellant.

Felipe Reyna, Reyna, Hinds & Crandall, John A. Montez & Aubrey R. Williams, Cherry, Davis, Harrison, Montez, Williams & Baird, P.C., Waco, for appellee.

Before Chief Justice DAVIS, Justice CUMMINGS, and Justice VANCE.

OPINION

REX D. DAVIS, Chief Justice.

This is a defamation suit arising out of the 1993 raid by agents of the Bureau of Alcohol, Tobacco and Firearms (ATF) on the Branch Davidian compound at Mount Carmel outside of Waco. John McLemore, a reporter for KWTX-TV Channel 10 in Waco, sued (1) WFAA-TV Channel 8 in Dallas, (2) Valeri Williams, a WFAA reporter, (3) A.H. Belo Corporation, (4) Belo Productions, Inc., (5) the Houston Chronicle, and (6) Kathy Fair, a Chronicle reporter, alleging that their news reports regarding his role in the events surrounding the raid damaged his reputation in the community. After McLemore non-suited Williams and both Belo corporations, the trial court granted summary judgment in favor of the Chronicle and Fair but denied WFAA's motion. WFAA appeals claiming that the court erred when it rejected its motion. We will affirm.

BACKGROUND FACTS

On February 28, 1993, ATF agents sought to search the Mount Carmel compound occupied by the Branch Davidians, a small religious group. Through information gained from various sources, two local media outlets, KWTX-TV and the Waco Tribune-Herald, suspected that a major law enforcement operation was to occur at Mount Carmel that morning. KWTX dispatched McLemore and Dan Mullony, a cameraman, in one truck and John Peeler, another cameraman, in a second truck to report on the raid. The Tribune-Herald sent three vehicles containing seven reporters to Mount Carmel to cover the events.

When the ATF agents attempted to enter the building, they became involved in a gunfight with the Davidians. Four ATF agents and three Davidians were killed, and twenty ATF agents were wounded during the shooting. McLemore and Mullony had followed the ATF agents onto the compound grounds and were the only media representatives actually in the midst of the firefight. Mullony filmed the events and McLemore reported live from the scene of the gun battle.

On March 2, Kathy Fair appeared on Nightline, a late night news show anchored by Ted Koppel and broadcast nationally by ABC. During the show, Koppel and Fair discussed the media's role in the failure of the ATF raid:

KOPPEL: It's also fair to say that there are times when law enforcement loves [media attention], loves having those cameras there, loves having reporters along. What happened this time? Were we pushing too hard? Did they want the publicity? Is it too early to tell yet what went wrong?

FAIR: Well, I think it's too early to tell what went wrong inside the compound, and it may be too early to answer the question just what role the media may have played in the tragedy, whether the media bears any responsibility for the deaths of anyone. That's a question that has been asked at every press conference I've attended. It's a question that's been asked at every impromptu gathering between reporters and news sources in there. And the question has always been answered the same officially, and that is that they're not going to answer that question right now. But unofficially, and off the record, 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.

KOPPEL: Set up by whom?

FAIR: My sources have told me they think they were set up by at least one reporter and perhaps one local law enforcement official.

KOPPEL: Now, when they say "set up," Kathy, what do they mean by set up in this instance?

FAIR: That they were aware of the raid that had been planned by the federal agents, and that they had tipped off the sect about it, and that that is how they got permission to be on the grounds before the federal agents arrived.

As soon as the Nightline broadcast concluded, KWTX began to receive calls critical of McLemore's role in the raid. Even though Fair did not identify him by name, many callers immediately believed that she was referring to him and that he was responsible for the disastrous results of the ATF raid. WFAA picked up the story and broadcast reports by Williams the next day during both its 6:00 p.m. and 10:00 p.m. news shows. At 6:00, the station showed the following report: ¹

[ANCHORS]: (Glor) As the standoff moves into its fourth day, one very troubling scenario is brought up again and again. ATF officials resolutely say the agents in Sunday's raid were set up. (John) What is alleged is that an hour before the raid, someone called the cult compound. The question is who was that person? And perhaps more troubling, could it have been a reporter from the Waco media. Or are federal officials trying to shift the blame for what some call a poorly planned operation. Channel 8's Valeri Williams has more.

[Video: Excerpt from a news conference by representatives of the ATF and the FBI was played showing the following exchange:

Reporter: Do you know who the phone call was from?

ATF spokesman: No, we don't.

Reporter: There has been a report that this may have come from the media. Do you suspect it was a media tipoff?

ATF spokesman: We don't have any information on that.]

[WILLIAMS]: At a morning news conference in Waco federal officials were unwilling to place any public blame. But what has these journalists concerned is this Nightline interview with Houston Chronicle reporter Kathy Fair.

[Video: Excerpt from the portion of Nightline quoted above, where Koppel asks Fair "what do they mean by set up" and Fair replies "That they were aware of the raid that had been planned by the federal agents, and that they had tipped off the sect about it, ..."]

[WILLIAMS]: Fair goes on to say that her ATF sources saw reporters hiding in trees at the compound before the attack was to begin.

[Video: Footage of McLemore, apparently on the compound grounds, saying "and then the next thing you know.. there's bullets coming out of the house...."]

[WILLIAMS]: 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. But the editor-in-chief of the Waco Tribune Herald issued this statement: "I do not know what local reporter that was being referred to, but it sounds absolutely ridiculous to me. Our reporters would not do such a thing."

[Video: Excerpt from a Cable Network News broadcast, in which David Koresh, the leader of the Branch Davidians, states "I knew they were coming. I knew they were coming before they knew they were coming."]

[WILLIAMS]: Another scenario is that perhaps one of ATF's own informants accidentally tipped David Koresh off. Federal authorities acknowledge that they had infiltrated the cult. And that shortly before the ill-fated raid began their own man slipped out. Koresh says the agent's name was Richard Robert Gonzales.

[Video: Second excerpt from CNN, in which Koresh states "So what happened was Robert came in and sat down course I look him in the eyes and I say, 'Robert, you know I love you and I've shown you truth. It's right here out of your Bible. Now you have to deal with what I showed you.' "]

[WILLIAMS]: Now perhaps all of the warning signs were there that this raid was a set up. If it's true that reporters were spotted hanging from trees why didn't authorities stop the raid before agents ever went through the front door? On the other hand, if reporters covertly tipped the cult off to gain a story not only have they broken every journalistic ethic but they could be found guilty of obstruction of justice.

Valeri Williams, Channel 8 News.

At 10:00 p.m., WFAA broadcast a similar piece:

[ANCHOR]: ATF officials have insisted the raid went awry because they lost the element of surprise. They say the cult was tipped off by a phone call one hour before their strike. The question has been who would have made that call? Last night on ABC's Nightline accusations were made against the local media in Waco. More on the story from Channel 8's Valeri Williams.

[Video: Excerpt from the Nightline broadcast featuring Fair's statement "My sources have told me they think they were set up by at least one reporter and perhaps one local law enforcement official."]

[WILLIAMS]: It is this interview with Houston Chronicle reporter Kathy Fair that has stirred a storm of controversy. Fair told Nightline's Ted Koppel when ATF sources arrived at the compound they saw Waco television reporters "hiding in the trees". Fair then makes this revelation:

[Video: Second Nightline excerpt showing Fair stating "they were aware of the raid that had been planned by the federal agents, and that they had tipped off the sect about it, and that that is how they got permission to be on the grounds before the federal agents arrived." Apparently, a video showing McLemore at the scene of the gunfight played during Williams' comments that follow.] [WILLIAMS]: Now the only reporters at the scene Sunday morning were ...