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"I didn't volunteer; I was assigned to the story," says McLemore. "Being on the grounds was good journalism. And I didn't interject myself into a debate of any sort. I reported the events as they were unfolding."
By coming to the aid of the wounded officers and talking to the media about it afterward, the judges claim, McLemore brought on public attention. They also believed his media interviews showed he had access to the press in order to respond to criticism. That access is frequently what has been used in prior case law to define a public figure. But the court totally ignored that McLemore's employer strictly prohibited him from talking to the press about the accusations leveled against him -- and threatened to fire him if he did.
Being an eyewitness to a controversial event and reporting what you see does not transform you into a public figure, argues Greg White, McLemore's appellate lawyer. "You must invite public attention for the purpose of influencing others, or to influence the outcome of a controversy -- factors the judges inexplicably ignored. On the controversy in this case -- why the raid failed -- McLemore didn't utter a word."
As White sees it, the way the court wrote its opinion, every reporter is a public figure -- as is every person who answers a question posed by the media. Aubrey Wilson, a Waco lawyer who represented McLemore at the trial level, says that the higher court's decision is not a victory for the First Amendment -- it's just the opposite.
"What this opinion means is, shut up. There is no incentive to talk to the media, because if you do, you run the risk of having your reputation ruined, and the courts will protect the media.
"John McLemore went through pure hell, the worst nightmare you can think of," Wilson adds. "He did nothing wrong. In fact he did everything right. The media destroys him, then hides behind the First Amendment and a wall of actual malice. It goes to show you that no good deed goes unpunished."
It's been five years since the deadly ambush at Waco -- and the destructive ambush on John McLemore's career. The sting of disappointment and betrayal has lessened for him over the years, but he still has hard feelings over the way he was treated by the media -- and now by the courts.
Mostly what he feels is a sense of loss. He misses chasing stories, getting scoops, getting at the truth. "Journalism is all I ever wanted to do," he says wistfully. "It's what I went to school for and worked so hard for."
For a while he thought about teaching journalism. He was accepted in a Ph.D. program, but when a teaching assistant position didn't come through, he couldn't afford the out-of-state tuition.
For the last three years he has served as corporate communications director for a Waco insurance company that deals in the controversial area of viatical settlements -- buying insurance policies from people with terminal illnesses.
Instead of covering the news, he now helps feed it. He interacts with the press frequently because of the newsworthy nature of his company's enterprise and because his boss, Brian Pardo, attracts a lot of media attention. In recent years, Pardo has funded several investigations into high-profile capital murder cases. McLemore gets to do some of the research on these cases, and when he does, it feels like the old days. But now when he's done, he has to hand his work over to a reporter.
What frustrates him most about the recent court decision is that through all this arcane legal wordplay and hairsplitting, the real issue has gotten lost.
"What hasn't been addressed is that what the media said about me was wrong, and it was harmful," he says. "When a person is alleged to have caused the deaths of four ATF agents, how much more harmful can you get? I was screwed by the media and now by the courts. All I want is a jury of my peers to clear my name.