Longform

In the Line of Fire

Page 5 of 6

But McLemore's lawsuit ultimately would not deal with the media's mistakes, because the courts found he had no right to be protected from them.

After McLemore sued for defamation, a trial court dismissed the suit against the Houston Chronicle, because Kathy Fair did not identify McLemore by name in her report. But it refused to dismiss the suit against WFAA-TV, a decision that was later affirmed by an appellate court.

Then, in September, the Texas Supreme Court dealt McLemore another blow. Initially, the court considered whether, under libel law, McLemore was a private citizen or a public figure. If just a private citizen, McLemore would only have to prove WFAA acted negligently toward him -- that it failed to exercise reasonable care in attempting to discover the truth or falsity of the story. If the court ruled he was a public figure, McLemore would have to prove that WFAA acted with malice (a reckless disregard for the truth or knowingly lying) in broadcasting its story -- a much higher standard that is applied to politicians, celebrities and other newsmakers. Oddly, the court held that McLemore had become a "limited purpose" public figure by thrusting himself to the forefront of the controversy surrounding the failed ATF raid. And absent malice, WFAA would not be held liable.

Williams had sworn in a trial court affidavit that she believed that her reports on McLemore were accurate broadcasts on a highly newsworthy matter. That was enough to convince the justices that she did not act with malice and to dismiss the case.

McLemore's attorneys concede that malice is almost impossible to prove, but they argue that they shouldn't have to because their client is not a public figure.

Exactly how a court decides who is and isn't a public figure is, as a jurist once put it, "like trying to nail a jellyfish to a wall." In McLemore's case, his lawyers claim, the high court overlooked and misinterpreted some crucial factors in deciding he was a public figure. They plan to appeal the case to the U.S. Supreme Court.

The court found that McLemore crossed the threshold of what constitutes a public figure by putting himself at the scene of a breaking news event and injecting himself into a public debate about it. And because he was the only journalist who ventured onto the scene and reported "live from the heart of the controversial raid," the justices wrote, "McLemore assumed a risk that his involvement in the event would be subject to public debate."

"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."

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Ann Zimmerman