An appeals court in Texas ruled 2-1 to deny an attempt by Breitbart News’ Brandon Darby to overturn a lower court decision that tossed his defamation case against the New York Times. The three-judge panel, however, was unanimous in agreeing that the Times had not proven that Darby had “encouraged” a left-wing terrorist plot. They split on the issue of whether, as a public figure, Da
rby could show that the Times had acted with “malice”–a very high standard, albeit one that the dissenting judge felt Darby should have the chance to prove.
The three judges agreed that journalist James C. McKinley, Jr.’s statement did not qualify as constitutionally-protected opinion. Two judges agreed–one judge, who concurred in the decision, did not–that the accusation against Darby could have been libelous per se because it implied the commission of a c
rime. And they agreed that the Times had failed to show truth would be a defense, since “the record also contains evidence absolving Darby of any supposed encouragement and placing into question whether McKinley’s utterance was accurate.”
The core area of disagreement was on the question of “actual malice,” which is a question about what McKinley knew to be true at the time he published the article. The majority found that McKinley and his editor had both attested to the lower court that they believed the statement about Darby to be true a
t the time, and that they had no ill will towards him. Even though their story about Darby relied “on a single source of information which source reflects only one side of the story,” that did not rise to the standard of “actual malice” against Darby.
Not even the possibility that the Times had neglected to research the issue thoroughly would matter, the two-judge majority said.
The dissenting judge, however, disagreed with the way the majority applied the actual malice standard, saying they had improperly shifted the burden of proof to Darby at the summary judgment stage, and that the Times had not actually disproved that it had acted with actual malice.
One of Darby’s attorneys on this matter, Robert Kleinman, said, “The Court of Appeals held that the ‘facts’ printed by the New York Times about Brandon Darby were not facts at all.”
Darby said, “I have no comment on the joy and vindication I now feel.”_