Times Article on Mansion Burning Wasn’t Libelous

(CN) - The New York Times did not defame an FBI informant in reporting on a conspiracy to disrupt the 2008 Republican National Convention, a Texas appeals court ruled.

Brandon Darby, a self-described community organizer and FBI informer, sued the Times and reporter James McKinley Jr. in March 2011 after the newspaper reported a purported link between the June 2008 firebombing of the Texas Governor's Mansion in Austin and a stymied plot to bomb the convention three months later.

Darby said his services to the FBI during the RNC led to the seizure of 34 riot shields made by protestors and eight Molotov cocktail bombs. He also claimed that his tips that the FBI helped stop the bomb plot and led to the arrest of those responsible.

The Times reported, however, that Darby had traveled to the convention with the protestors and, critically, "encouraged" two of them, David Guy McKay and Bradley Neal Crowder, to assemble the bombs and use them.

Darby said McKay had originally implicated him in the plot but recanted this assertion while pleading guilty.

He contended that due diligence from the Times and McKinley would have kept his name clean.

A judge in Hays County nevertheless granted the defendants summary judgment, and an appellate panel in Amarillo affirmed Wednesday.

McKinley had several sources who repeated the claim that Darby had encouraged the bomb plot, including McKay's defense attorney, Jeffrey DeGree, the court found.

"Knowing that DeGree represented McKay at the proceeding, McKinley had basis to believe that DeGree knew of what he said," Chief Justice Brain Quinn wrote for a three-judge panel. "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."

McKinley also interviewed Scot Crow, another Austin activist, who spoke of his own experiences with Darby and had also suggested Darby encouraged McKay and Crowder to pursue the bomb plot, according to the ruling.

Thus, "McKinley had at least two viable sources upon which to make the utterance," Quinn wrote.

McKinley and Times deputy national editor Charles Strum had also submitted affidavits illustrating "that neither the writer nor his employer's representative knew the utterance about Darby encouraging the plot was false."

"They illustrate that neither harbored serious doubt about the accuracy of the utterance at the time it was made," Quinn wrote. "They also illustrate the foundation underlying McKinley's utterance about Darby encouraging the plot."

These affidavits are "clear, positive, direct, and free from inconsistency," Quinn wrote. "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."

The panel concluded on Darby's attempt "to paint McKinley with the brush of malice by attempting to confuse the distinction between the words 'encourage' and 'entrap.'

Indeed what McKay specifically recanted was his initial assertion that Darby had entrapped him, according to the ruling.

"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," Quinn wrote. "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 offence and the second being the government's inducing the accused to engage in the crime. ...

"On the other hand, 'encourage' connotes to 'to inspire with courage, spirit, or hope,' 'to attempt to persuade,' and 'to give help.'"

The distinction between the two words is important in this case because "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 if entrapment," according to the ruling. "In short, potentially knowing that Darby did not entrap McKay does not mean he also had doubts about whether Darby encouraged him."

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