Caught in the crossfire

Denied his day in court, a former Waco TV reporter, falsely accused of setting up federal agents, becomes the last casualty of the Branch Davidian siege

Instead, he watched as at least 10 of his colleagues with less experience and fewer accomplishments moved on to bigger, better-paying jobs. "John had a promising career," says Mulloney. "But I believe he was blackballed in the industry. What happened to him wasn't right, and he had a chip on his shoulder because of it. It was like a cancer; it slowly ate him up."

With a baby on the way, McLemore couldn't afford to stay in his $20,000-a-year TV job in Waco, but he couldn't get hired anyplace else. With his career hopelessly stalled and with no way to clear his name, a depressed and defeated McLemore felt he had no choice but to commit the ultimate journalistic sin: Almost a year after the botched raid, he filed a libel suit against WFAA-TV and the Houston Chronicle. He asked for $15 million in damages.

McLemore knew that filing suit against the media would be the end of his career. He also knew he would be ridiculed and labeled a traitor.

Some people might think it hypocritical or ironic that a reporter who employed the First Amendment to do his job would take offense when the tables were turned. But McLemore doesn't see it that way. The First Amendment, he says, does not entitle reporters, in their pursuit of the public's right to know, to practice shoddy journalism.

"Kathy Fair went on Nightline with an unconfirmed rumor that basically said I had set up the ATF," he says. "She didn't check it out at all. She broke the very first rule of journalism. It would have been so easy to check out who I was and where I was. If she had done just that, mistakes would not have been made."

If Fair had checked out the rumor, she would have learned that McLemore was not on the compound grounds before the ATF arrived, thus the premise of the allegation--he tipped off the Davidians in exchange for access to their property before the agents arrived--was totally unfounded. And if she had done any real reporting, she also would have discovered that the accusation that TV journalists were hiding in the trees was absurd. There were no trees on the sprawling, barren compound. McLemore charges that Williams was equally irresponsible. Despite denials from McLemore's station that the accusations were not true and the refusal of federal officials to lay public blame, Williams proceeded to repeat Fair's unconfirmed rumor about a setup. Neither Williams nor Fair responded to the Dallas Observer's phone calls.

"Williams didn't check her sources, and at every juncture she was told the information was flat-out wrong," fumes Greg White, one of McLemore's attorneys. "You don't impugn someone's conduct or accuse them of illegal and unethical behavior unless you have someone telling you you're right."

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, last month, 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."

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