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Click here for the full text of this decision FACTS:The former sheriff of Cameron County, Conrado M. Cantu, brought suit against The Brownsville Herald and two former employees (collectively “the Herald”) alleging that two articles about a candidate debate shortly before the 2000 election were defamatory. The first article alleged that Cantu represented at the debate that no Anglo could be sheriff in Cameron County. After that article was published, Cantu came to the Herald offices and told Cox that he objected to the use of the word “Anglo” in the article. The next day, the Herald published a second article concerning the debate. The trial court denied the Herald’s motions for summary judgment and the court of appeals affirmed. HOLDING:The court reverses the court of appeals’ judgment and renders judgment that Cantu take nothing. To recover for defamation, a public official like Cantu must prove that the Herald published a false and defamatory statement with actual malice. Because the Herald produced some evidence (several affidavits) that it acted without malice, the burden shifted to Cantu to produce some contrary evidence to avoid summary judgment. The court of appeals held that Cantu had done so, pointing to circumstantial evidence suggesting actual malice. Cantu’s primary complaint is that he never used the words attributed to him by the Herald in its initial headline and first sentence. The Herald concedes this is true. The court of appeals concluded this was some evidence of malice. The court finds three “rather apparent” clues that would lead a reasonable reader to conclude the Herald was interpreting Cantu’s remarks rather than quoting them verbatim. First, such a reader would note that quotation marks were placed around eight of Cantu’s statements in the first article, but not the one at issue. Second, a reasonable reader could not miss the pattern of the articles, in which a summary of what each candidate said appears in one paragraph followed by one or two paragraphs of explicit quotations to support the summary. Finally, while both articles were allegedly defamatory, the Herald’s second article reported Cantu’s response that “I did not say that an Anglo could not be sheriff.” Cantu’s remarks at the debate also “bristled with ambiguities.” While Cantu never used the explicit words stated in the Herald’s initial article, the standard is whether that summary was a rational interpretation of what he said. Pleas for ethnic solidarity or racial prejudice are not always made in explicit terms. “[H]olding that headlines like the one here are actionable unless candidates make an explicit ethnic plea would reward candidates who make implicit ones by punishing the press for reporting on it.” Based on the entire context of the debate, the court holds that the Herald’s articles were a rational interpretation of Cantu’s remarks at the debate. Accordingly, the articles standing alone were not evidence of actual malice. The court of appeals listed four other items of circumstantial evidence that it believed created a fact issue as to actual malice. First, at his deposition Cantu detailed several out-of-court statements by Herald reporters to the effect that the officers of the paper “don’t like you” and “had it out” for him. Assuming the truth of this hearsay, it only establishes ill will, which is not proof of actual malice. Second, the court of appeals pointed to the second Herald article as proof that the paper changed nothing after learning of Cantu’s objections and receiving an audiotape of the debate. “The mere fact that a defamation defendant knows that the public figure has denied harmful allegations or offered an alternative explanation of events is not evidence that the defendant doubted the allegations.” Third, the court pointed to the questions Cox raised after reading the first article as some evidence that the newspaper entertained doubts about its veracity. But “the focus of the actual-malice inquiry is the defendant’s state of mind during the editorial process. Evidence concerning events after an article has been printed and distributed, has little, if any, bearing on that issue.” Finally, the court of appeals pointed to the opinions of an “expert journalist” criticizing the Herald’s handling of the story and finding a consistent pattern of biased reporting regarding Cantu. But actual malice inquires only into the mental state of the defendant, and the expert claimed no particular expertise in that field. The summary judgment record establishes as a matter of law that the Herald’s reporter thought he was reporting the gist of what Cantu said, the court holds. Any error in the Herald’s articles evidences at most negligence, not actual malice. OPINION:Brister, J. Johnson, J., did not participate in the decision.

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