texas appeals court rejects brandon darby’s attempt to revive his defamation suit

by Tim Phillips

Austin activist-turned-informant Brandon Darby traveled with a small group of protesters to the 2008 Republican National Convention (RNC) in St. Paul, Minnesota. A February 23, 2011 New York Times article stated that Darby “had encouraged” a plot to make firebombs and hurl them at police cars during the RNC. (The plot didn’t come to fruition.)

Darby never contacted the New York Times to request a retraction or correction. Instead, he sued the newspaper and the author of the article, James McKinley, for defamation. According to a Nolo post by attorney Emily Doskow,

“Defamation” is a catch-all term for any statement that hurts someone’s reputation. … A defamatory statement must be false — otherwise it’s not considered damaging. … People who aren’t elected but who are still public figures because they are influential or famous … have to prove that defamatory statements were made with actual malice, in most cases.

McKinley said his statement about Darby was based on conversations with Scott Crow and Jeffrey DeGree, the attorney who represented RNC protester David McKay. Crow told McKinley that Darby encouraged McKay and another RNC protester, Bradley Crowder, to take actions beyond peaceful demonstrations during the RNC protests. DeGree also told McKinley that Darby encouraged McKay and Crowder, both of whom pled guilty to federal criminal charges related to Molotov cocktails and were sentenced to years in prison.

Darby’s defamation suit was dismissed. On Wednesday, a Texas appeals court upheld the dismissal, finding that McKinley’s statement was not made with actual malice. On March 16, 2011, the New York Times published a correction regarding the February 23, 2011 article.