Texas Court of Appeal, November 15, 2007
On a motion for rehearing, the Texas Court of Appeal reversed the order of a lower court denying Fox’s “no-evidence” motion for summary judgment and held that a series of broadcasts of The O’Reilly Factor containing allegations that a Muslim FBI agent refused to wear a wiretap when investigating a Muslim suspect did not rise to the level of actual malice.
The plaintiff sued Fox Entertainment Group, Fox Broadcasting Company, Fox News and Bill O’Reilly for libel and slander based on allegedly defamatory statements in connection with interviews O’Reilly conducted over three days with various FBI agents and federal prosecutors that repeated allegations about appellee refusing to wear a wiretap. The appellee identified twelve statements that were allegedly defamatory including
- “In the Impact segment tonight, very disturbing story. Charges that an FBI agent named Gamal Abdel Hafiz refused to wear a re-cording device in terrorist investigations of accused money men, Yassin Al-Kadi and Sami Al-Arian.”
- “Should FBI Chief Robert Mueller be fired over the scandal of a Muslim agent who failed to aggressively investigate terrorism?”
- “And THE FACTOR has two eyewitnesses who say Mr. Hafiz refused to wear a wire twice during terror investigations.”
- “According to FBI agent Robert Wright and former federal prosecutor Mark Flesser, Hafiz declined to secretly ape a Saudi citizen named Yassin Kadi, who was suspected of financing Usama bin Laden.... Wright says Hafiz told people, quote, ‘a Muslim does not record another Muslim.’ That is not true. Hundreds of Muslim American law enforcement agents have worn wires, according to FACTOR sources.”
- “But THE FACTOR has learned that Hafiz is being investigated by the office of professional responsibility at the Justice Department. That's serious.”
The appellee claimed that he never refused an order to wear a wiretap and that the FBI hierarchy dictates that decisions regarding an investigation are made by FBI management, not individual agents, but The O’Reilly Factor did not contact his superior at the Dallas FBI office to confirm that fact. Specifically, the appellee argued with respect to actual malice that Bill O’Reilly and The O’Reilly Factor “purposefully avoided” the truth, knew the statements were false or acted with reckless disregard to their truth or falsity, and selected its material with actual malice and made deliberate omissions.
Under Texas law, “actual malice focuses on the defendant's state of mind, particularly his attitude toward the truth of what he reported, which a plaintiff can prove through objective evidence about the publication's circumstances and the defendant's conduct at the time of publication.”
The appeals court conducted an exhaustive analysis of The O’Reilly Factor transcripts, research notes and testimony by O’Reilly and two of his producers and concluded that the appellee, who did not challenge the assertion that he was a public figure, failed to show that O’Reilly made the statements with actual malice or that he omitted important material from the broadcasts with actual malice. Even though The O’Reilly Factor did not contact appellee’s superior, it did consult several sources in preparation for the story, some of whom the defendant believed from previous interviews to be credible. The court also found that even though O’Reilly made a mistake in two of the statements at issue, he did not know he was mistaken and he did not strongly suspect that he was mistaken at the time he made the statements. In reaching this holding, the court of appeal noted that the presentation of facts that may be misleading, even negligently so, do not rise to the level of a “‘calculated falsehood’ unless the publisher knows or strongly suspects that it is misleading.” Moreover, evidence that a piece was written from a particular point of view even when it is “hard-hitting or sensationalistic, is no evidence of actual malice.”
Based on these findings, the court of appeal rendered judgment that appellee take nothing.