Bascom W. BENTLEY, III, Petitioner, v. Joe Ed BUNTON and Jackie Gates, Respondents, 94 S.W.3d 561

Justice HECHT delivered the opinion for the Court with respect to Parts I, III, TV, and V, in which Justice OWEN, Justice BAKER (except for

Part V-D), Justice JEFFERSON, and Justice RODRIGUEZ joined, with respect to

Part II, in which Chief Justice PHILLIPS, Justice ENOCH, Justice OWEN, Justice BAKER, Justice HANKINSON, Justice JEFFERSON, and Justice RODRIGUEZ joined, and with respect to

Part VII, in which Chief Justice PHILLIPS, Justice ENOCH, Justice OWEN, Justice HANKINSON, Justice JEFFERSON, and Justice RODRIGUEZ joined, and an opinion with respect to

Part VI, in which Justice OWEN, Justice JEFFERSON, and Justice RODRIGUEZ joined. For months, the host of a call-in talk show televised on a public-access channel in a small community repeatedly accused a local district judge of being corrupt. A co-host on some of the shows expressed agreement with the accusations but never himself used the word “corrupt”. The judge sued both of them for defamation.

Based on conclusive proof that the accusations were false and defamatory, and on jury findings that the defendants acted with actual malice as well as a specific intent to cause injury, the trial court rendered judgment awarding the plaintiff actual and punitive damages assessed by the jury against each defendant separately. Notwithstanding the jury’s finding that the defendants conspired together, the court refused to hold them jointly liable for the actual damages each caused. The plaintiff and both defendants appealed.

The court of appeals affirmed the judgment against the talk show host who made the repeated accusations and reversed the judgment against his co-host. The hable defendant and the plaintiff seek review here. The legal and evidentiary issues raised by the parties are too numerous and varied to summarize at this point, but principal among them are these: • Does

article I,

section 8 of the Texas Constitution restrict liability for defamation of a public official more than the First Amendment to the United States Constitution? • Under the circumstances presented here, are accusations that a public official is corrupt actionable statements of fact or protected expressions of opinion? • Can a person be liable for defamation if all he does is express agreement with another’s defamatory statements? • Were the accusations of corruption in this case false as a matter of law? • Can a person who falsely accuses a public official of being corrupt be proved by clear and convincing evidence to have acted with actual malice despite his assertions that he sincerely believed the accusations? • Under the circumstances, are awards of $7 million for mental anguish damages and $1 million punitive damages excessive as a matter of law either under Texas common law or the First Amendment?

We agree with the court of appeals that only the one defendant is liable for defamation, but we conclude that the jury’s finding of $7 million in mental anguish damages has no evidentiary support and is excessive as a matter of law by constitutional standards. We remand the case to the court of appeals for further proceedings. I “Q&A”, a five, ninety-minute, call-in television talk show, began broadcasting weekly in 1990 on a public-access channel available to cable subscribers in and between Palestine and nearby Elkhart, two towns in Anderson County in East Texas.

At that time, the population of Palestine, the county seat, was about 18,000, and the population of Elkhart was just over 1,100. All of the participants in “Q&A” — including the self-described hosts, producer, director, investigators, reporters, and cameraman — were unpaid volunteers. The privately produced programs generally consisted of one or two hosts talking about various subjects of local interest, either by themselves or with guests or callers. Programs were often rerun during the week. Program content ranged from informational to editorial. Defendant Joe Ed Bunton, a Palestine native, helped start “Q&A”.

Bunton had returned to Palestine several years earlier after college and fifteen years in the army, and had been elected to one term on the city council. He was defeated in his bid for re-election, as well as in three successive attempts to regain a seat on the council. After his first defeat, he became interested in public-access television as a means of increasing his involvement in grassroots politics. Bunton began hosting “Q&A” programs in 1994.

In his brief in this Court, Bunton describes “Q&A” as “a wide-open, sometimes caustic and/or an uncivilized public forum, which has become the electronic soapbox for Palestine, Texas.” In the spring of 1995, Bunton learned of a criminal case that had been pending for two years in the 369th District Court before Judge Bascom Bentley III, one of four judges whose districts included Anderson County. Bentley, himself a lifelong resident of the county, had been appointed to the district court in 1989, elected in 1990, and re-elected in 1994.

He had previously served as Palestine city attorney, county attorney, and judge of the county court at law. The defendant in the case, a young man named Curbo, had been charged with robbery (purse-snatching), and in March 1993, Judge Bentley had placed him on what the Texas Code of Criminal Procedure calls “community supervision” — a kind of probation — for five years with his adjudication of guilt deferred. Barely eight weeks later, Curbo had been arrested for credit card abuse.

Court records reflected that in June 1993 the district attorney filed a motion to adjudicate Curbo’s guilt on the robbery charge and that Judge Bentley released Curbo on his personal recognizance — that is, without a surety bond — without ruling on the motion.

From these records, Bunton surmised, without discussing the case with Curbo’s lawyer or the district attorney, that Bentley’s release of Curbo was improper, and furthermore, that Bentley had left the motion pending for criminal design: so that he could use the threat of further proceedings against Curbo to pressure Curbo’s father, then a mayoral candidate, into acting as directed in the event he became mayor. Bentley, Bunton supposed, could control Curbo’s father by threatening to adjudicate Curbo and sentence him to prison. Had Bentley been so motivated, his conduct would undisputedly have been criminal.

In fact, however, Curbo’s release without a surety bond had been requested by Curbo’s lawyer without objection from the district attorney and was clearly within Bentley’s discretion, and the case had remained pending because neither Curbo’s probation officer nor the district attorney believed that Curbo, who suffered from learning disabilities, should be incarcerated. Accordingly, neither Curbo’s lawyer nor the district attorney had ever requested a ruling on the motion to adjudicate. Moreover, Curbo’s father was not elected mayor.

Bunton also learned early in 1995 that Anderson County Sheriff Mickey Hubert had refused to arrest one of his own deputies, Danny Harding, on a warrant that an assistant district attorney had helped procure without the approval of the district attorney, who had determined that evidence concerning Harding should first be presented to the grand jury. After what Bunton called an “investigation” of the circumstances, he concluded that Hubert had violated

article 2.18 of the Texas Code of Criminal Procedure (“Custody of Prisoners”) and

section 39.02(a)(1) of the Texas Penal Code (“Abuse of Official Capacity”), even though the district attorney had had the warrant recalled. Bunton also concluded that Bentley, who had not issued the warrant and was in no way involved in the matter, was responsible for failing to convene a court of inquiry to determine whether Hubert had violated the law and to have him arrested. On the “Q&A” program broadcast on June 6, 1995, a videotape excerpt of which is in the record, Bunton announced that the topic for discussion would be “corruption at the courthouse”.

He charged that Bentley’s release of Curbo and the delay in resolving the case “makes the system look corrupt”. He asserted that his accusations against the judicial system in Anderson County were “true”. He admonished Bentley to “clear this case off your docket and quit hanging it over these people’s heads”. He also discussed the Harding matter and explained why he thought Bentley and Hubert had both acted illegally. Bunton claimed to have made lengthy investigations of both matters, reviewing records and interviewing employees at the courthouse.

He dared Bentley and Hubert to call in or come on the program and show that his allegations were untrue: Bascom, you and Mickey call in and say it ain’t true. Say, “Joe Ed, you’re lying. You’re telling untrue things about it.” I dare you. You’re welcome to come in here. You can come out here. You can call in here. The fact is, y’all are corrupt, y’all are the criminals, y’all are the ones that oughta be in jail. After the program, Bentley telephoned Bunton’s home and left word for him to call back. Bunton did not return the call.

Bentley also called “Q&A” and asked a volunteer there to tell Bunton to stop calling him corrupt. The volunteer acknowledged that Bunton was “going too far” but said that Bunton was “out of control” and there was nothing to be done. A videotape of the “Q&A” program two weeks later, on June 20, shows Bunton reporting that Bentley had threatened to sue for defamation based on the June 6 program. In fact, Bentley did not sue until almost eight months later.

On the program, Bunton asserted: “I stand by everything that I said that night and I’m gonna give you more tonight about this issue.” Bunton again challenged Bentley to come on the program and deny the allegations. Bunton repeatedly stated that Bentley was not doing his job or earning his salary. He asserted that his accusations were supported by records at the courthouse. Holding up copies of some records that he had obtained, Bunton said: “You can’t sue anybody for slander when they’re telling the truth, and this is the truth, and there is no libel or slander in this, not on our part.

If it is, it’s on the part of the records in the courthouse, and I don’t believe that’s the case.” Later in the program, Bunton referred to a “clique” of public officials and others in Palestine, Bentley included, who often lunched together.

Bunton finished by saying that “the five most corrupt political officials at the county level, in alphabetical order, would be Bentley, [District Judge Sam] Bournias, [District Judge Jerry] Calhoon, [District Attorney Jeffrey] Herrington, and [Sheriff Mickey] Hubert — top five, the most corrupt public officials.” The videotape of the June 27 “Q&A” program shows Bunton inviting viewers to call in and register their views on whether Bentley was corrupt.

At the bottom of the television screen was this legend: “Q&A POLL: IS JUDGE BENTLEY CORRUPT?” Bunton then told viewers he would again discuss Bentley’s “corruptness, my opinion, but you’ll have to make up your own opinion.” Bunton recounted his version of the Gurbo case as he had on the June 6 and June 20 broadcasts, based on what he again said was an “investigation” of the facts and records which he said could be obtained at the courthouse.

He reiterated that he had invited Bentley to be on the program to disprove the allegations of corruption but that Bentley had not accepted the invitation and had instead threatened suit. Bunton said he welcomed the suit because “the facts are with us and this is the truth, and therefore it is not slander.” He repeated that his assertions were based on public records and complained that although he had provided copies to the local newspaper, it had not written a story.

On the same program, Bunton again referred to “self-confessed clique-ers” who were Bentley’s “cronies” and continued: ‘You know, last week one of the things that we did, or I did, was that I came up with what I think are the five most corrupt elected officials in Anderson County, and in alphabetical order they are Judge Bentley, Judge Bournias, Judge Calhoon, District Attorney Jeff Herrington, and Sheriff Mickey Hubert.” In response to reports he had heard that Judge Bentley was, in Bunton’s words, “rather nervous and upset and just not himself’ because of the allegations on “Q&A”, Bunton stated: “Well, Judge, you can expect this kind of pressure to stay on you, the full-court ‘Q&A’ press is gonna stay onto you until you straighten up, or what really’d be better, Bascom, is just resign and get off the bench, would be the best thing you could do for Anderson County.” Again referring to public records, Bunton said Bentley “is corrupt, that’s my opinion.” When a person called in to say that he did not see why Bentley should be criticized for being lenient with a young offender like Curbo, Bunton responded: “This is my suspicion — there’s no way to prove this, but this is what my concern is.” Bunton then reiterated his allegation that Bentley had delayed resolution of the Cur-bo case to “use” Curbo’s father, who had been a candidate for mayor.

He hypothesized that [Curbo’s] father would be told, “We need you to vote for this this way,” and he says, “No, I don’t want to do that,” and they’ll say, “Look, your son is looking at forty years in the state pen, and I, we could have him sentenced, and he will not get out of prison while you’re alive, and you know what kind of ties we have within the Texas Department of Criminal Justice, and we can pick his roommate, and it will not be an enjoyable time in the Texas Department of Correction.” Importantly, Bunton added this: Judge Bentley has been one of the hardest people for ‘Q&A’ to finally get some things that we could really dig our teeth in and were confident to go on the air on and go after him on because he is very, very slick.

Okay? And we’ve known this, and we’ve known what he’s been doing for a long time, but it’s been difficult to pin down. However, Bunton claimed, court records showed that his allegations were factual. “The center of evil,” he said, “is in that courthouse.” Another caller, who described herself as “a good friend of Judge Bentley’s”, stated that the judge was “a wonderful man” and “a wonderful father”.

In response, Bun-ton asked: “All right, let me ask you this: Have you seen these records of what’s gone on in this case?” When the caller said she had not, Bunton offered to make the records he had available to her, saying: “I think when you see the facts, you will have only one opinion.” “The question is,” Bunton went on, “is Judge Bentley corrupt? And my opinion is, based on the facts, he is.” About the same time as these broadcasts, dining the summer of 1995, Bunton happened to meet a long-time friend going into a store.

At trial, the friend testified as follows: We — like I say, I’ve known [Bunton] for quite some time, and we spoke to each other as we came in [the store]. And as we began to talk, he began to speak more and more about the injustices in Palestine and Anderson County politics, and that there was some — a particular group of people referred to as “the clique” that were responsible for some of the shortcomings that we had in our government.

And he was — he was telling me that he was wanting to expose all of them, and he’d bring it all to the surface, and anything that was not right with the system, he wanted to bring it out_[H]e said that he had investigated and done a lot of research on all of the members — on a lot of the members he said were a part of this clique here in Palestine, and he was able to get quite a bit of information on quite a few of them that had done something that he felt like was wrong and needed to be aired.

He said that the one that he really couldn’t get anything on that bothered him was old Bascom Bentley.... [M]y response was that I told him I didn’t think he would ever find anything on him because I didn’t really think there was anything to find. But he said, “No, he’s — he’s in with that clique, and he has — he’s known to associate with them. He goes out to eat with them at lunch. He’s right in there with them, and he’s doing something. I just don’t know what it is.” Notably, Bunton did not deny this account of the conversation at trial.

Defendant Jackie Gates first appeared on “Q&A” on July 11 as a guest, discussing the local Crime Stoppers’ list of most wanted criminals. He soon joined the program as Bunton’s co-host. The two shared a military background, Gates having retired from the Air Force as a colonel with thirty-two years’ service. Gates had lived in Palestine since 1990. Like Bunton and the others involved in “Q&A”, Gates was an unpaid volunteer, acting from time to time as host, investigator, reporter, director, and cameraman.

Gates had never seen “Q&A” before July 11 because he was not a cable television subscriber, so he was not at first aware of the allegations Bunton had made in June that Bentley was corrupt and criminal. But he was soon made aware by Bentley himself. On October 2, Gates attended a hearing on a criminal case over which Judge Bentley was presiding. The defendant, Gerald Battles, was complaining of ineffective assistance of counsel in prior proceedings, and Gates, who was not an attorney, had been advising him.

When the hearing concluded, Bentley asked Gates to step into his chambers, where they engaged in what both later recalled was a “cordial” conversation. Bentley began by warning Gates that “it was a dangerous, dangerous game for him to get involved in giving advice to inmates”. Bentley then turned to “Q&A” and Bunton. He complained to Gates that Bunton’s accusations of corruption were “not right”. Gates agreed and told Bentley that Bunton was “a lot of times out of control” and that he, Gates, had joined the program to clean it up and stop the name-calling.

At trial, Gates testified consistently that he disagreed with Bunton’s accusations that Bentley was corrupt and criminal but that he could not control what Bunton said on television. Although Gates testified that he once told Bunton off the air not to call Bentley corrupt, in fact Gates appeared on many “Q&A” programs when Bunton repeated the accusation, and on the air Gates never protested. Gates was on “Q&A” on January 30, 1996, when Bunton repeatedly referred to Bentley as “the most corrupt”, “the number one corrupt”, and “the ultimate corrupt” elected official in Anderson County.

On that program, Bunton made four additional allegations against Bentley. One was that Bentley, along with the other district judges in Anderson County, had failed to supervise the county auditor and county commissioners court, who, Bunton said, should have discovered years earlier that the district attorney was not properly depositing money paid on “hot checks” and forfeited property funds in the county treasury.

Another allegation was that Bentley had failed to report two other district judges, Judge Bournias and Judge Calhoon, for judicial misconduct for dismissing petitions Bunton had filed to remove the district attorney. A third allegation was that Bentley had contributed to the election campaigns of candidates for county judge, an officer who presides over the county commissioners court and is thus subject to the general supervisory control of the district court.

Finally, Bunton alleged that Bentley had given a criminal defendant, Carroll Neal too light a sentence for cattle theft and then refused to recognize Neal’s “good time” credit given by the sheriff. Bentley, Bunton said, was “the most corrupt elected official, and if you don’t believe that, all you need to do is start digging around the courthouse”.

On the February 1 “Q&A” program, Bunton repeated, with Gates present, that Bentley had made contributions to candidates for county judge. “That really raises a question about his integrity,” Bunton stated. “It’s just more to prove that he deserves to be in the number one position of corrupt elected officials. We can talk about the Curbo deal, but it’s one thing on top of the other.

Judge Bascom Bentley III is the most corrupt elected official.” Two weeks later Gates co-hosted the show as Bunton announced a “Bentley Hot Line” — a telephone number viewers could call to report anything Bentley had done that was “outrageous that might put a bad light on his profession as a judge or his character”. Bunton coached callers on how to report on Bentley without revealing their identity.

Gates testified at trial that he remembered encouraging viewers at one point to call the “hot line” with both good and bad information about Bentley to give “the entire story,” but the videotapes in the record do not contain any such statement by Gates. Gates never himself used the word “corrupt” with reference to Bentley, but there is evidence that he nevertheless expressed agreement with Bunton’s accusations, despite having told Bentley during their meeting in Bentley’s chambers that he did not think Bentley was corrupt.

During the March 7 program, a videotape shows that Bunton looked directly at Gates, who was seated beside him, while he listed the top five corrupt officials in Anderson County, with Bentley being number one. Later in the program, when Bunton told a caller that district attorney Herrington was the number one corrupt official, she reminded him that he had earlier said Herrington was number two. “He is,” Bunton replied. When Gates attempted to correct him with, “Well, you said ...,” Bunton interrupted, “Bascom Bentley’s number one.” “Yeah,” Gates replied.

Asked at trial to explain what he had meant by saying “yeah”, Gates testified, “I think it was a spontaneous reaction more than anything, is all I can say.” As the program continued, Bunton again returned to the Curbo case.

Looking over at Gates, Bunton admonished an imaginary Bentley thus: “Now either you’re just grossly incompetent or you’re awful lazy, and we believe that it has to do with why you’re number one on our corrupt list — is because we believe that this is corruption and cronyism tied to the mayor’s race last year.” Told that Bentley’s sister had called in to complain that her brother was being slandered, Bunton replied: “I’m not slandering her brother because the fact of it is to be slander it has to not be true.... Unfortunately, your brother is corrupt.

He is the most corrupt elected official in Anderson County, in my opinion.” On one occasion, Gates seemed to join Bunton in his accusations against Bentley. The videotape of the December 26, 1996 “Q&A” program shows Bunton stating: There’s judges in this town that says their kids come home from school and say, “Daddy, the kids at school are saying you’re corrupted.” Well, I’m sorry that Judge Bentley’s children [he has four] say that to him. But you know what? He is corrupted, and it’s a shame that your parents disgrace you like that. And they can change. All they gotta do is do right.

But Judge Bentley’s been caught big-time.... Bunton and Gates, together, then listed occurrences that showed Bentley was corrupt: BUNTON: Bascom Bentley is exactly the same way. He is corrupt. The Curbo deal does it. The Neal deal does it. I mean it’s one thing after another:— GATES: Clarence George Gray [who had not previously been mentioned], Gerald Battles [the criminal defendant Gates had advised the day Gates met with Bentley in chambers]— BUNTON: —Clarence Gray, Gerald— GATES: —and there’s some others besides— BUNTON: —and there’s others. GATES: —Gerald Battles.

BUNTON: And it’s broken a lot of people’s belief that Bascom Bentley is a shining star of Anderson County. But let me tell you what: Bascom Bentley is the most corrupt elected official other than maybe [District Attorney] Jeff Herrington. On February 6, 1996, Bentley sued Bun-ton, Gates, and others associated with “Q&A”. The case came to trial a year later.

At trial, Gates admitted that he never had any knowledge that Bentley was corrupt or criminal, but Bunton continued to assert that Bentley was both corrupt— by which he testified he meant dishonest, unethical, shady, and unscrupulous, as the word is commonly defined — and criminal.

To prove that his accusations of corruption and criminal conduct were in fact true, Bunton testified to the six matters that had been discussed on various Q&A programs — the Curbo and Neal cases, the Harding warrant, the political contributions, and the several failures to oversee county officials and to report judicial misconduct — and to two other cases in which Bentley had revoked a criminal defendant’s probation — that of Rory Beavers in one and Nathan Meyer in the other — and another judge had granted a new trial.

Bentley testified at length, reviewing the details of these assertions and explaining how his conduct had been proper. Bentley also offered expert testimony by Cindy Garner, the district attorney in neighboring Houston County, and Sam Hicks, Cur-bo’s lawyer. The evidence regarding all eight matters asserted by Bunton to show that Bentley was corrupt may be fairly summarized as follows: • The Curbo case.

Although it is unusual for a court to release a defendant on personal recognizance pending a hearing on a motion to adjudicate guilt following a probation violation, it is clearly within a court’s discretion to do so. A hearing on the motion was postponed by agreement of the district attorney and Hicks to give the boy a chance to mend his ways before facing incarceration. The agreement was not in writing, and Bun-ton was not aware of it because he did not talk with the district attorney or Hicks, which he could have done.

Hicks testified that the pen-deney of the motion was to Curbo’s benefit and could not reasonably have been construed as an effort to coerce Curbo’s father in any way. • The Harding warrant. Bentley was not involved in any way in either the issuance or the recall of the warrant for Harding’s arrest, and he had no duty to have the sheriff arrested for not executing the warrant or to convene a court of inquiry. • The “hot check” and forfeited property funds.

Although for a time the district attorney did not deposit payments made by defendants on hot checks and forfeited property funds in the county treasury as required by law, the mistake was thoroughly investigated and no wrongdoing was found. Garner testified that Bentley had nothing to do with these funds and was not required by law to force the county auditor or the commissioners court to take remedial action sooner. • The petitions to remove the district attorney. Bunton filed two petitions to remove the district attorney.

After an investigation, both were dismissed, one by Judge Calhoon and the other by Judge Bournias. Bentley had nothing to do with either petition, and he was not required to report Judge Calhoon and Judge Bournias to the Judicial Conduct Commission for acting illegally. On the contrary, neither petition had merit; both were found to have been based on personal vendettas, unfounded rumors, and a lack of knowledge of the criminal justice system. • Bentley’s campaign contributions. After a runoff primary election for county judge, Bentley contributed $100 to both the winner and the loser.

The winner was not opposed in the general election. Bentley’s campaign treasurer received oral approval for such contributions from the Texas Ethics Commission. • The Neal, Meyer, and Beavers cases. In each of these criminal cases, Bentley’s rulings were set aside. In the Neal case, Bentley erroneously attempted to issue an order nunc pro tunc correcting a sentencing order that failed to recite the plea bargain that the defendant would not be given “good time” credit. Neal was ordered released.

In the Meyer case, the defendant’s lawyer misunderstood Bentley to say that he would not grant a motion to revoke probation and therefore did not offer evidence. When Bentley denied the motion, Meyer moved for a new trial, and Bentley recused. Judge Calhoon ordered that Meyer be given a new trial. In the Beavers case, after sentencing the defendant, Bentley recused, and another judge granted the defendant a new trial. None of the cases involved anything other than at most an error of law by Bentley.

Garner testified that it would not be reasonable for anyone to conclude that Bentley was corrupt on account of his handling of the Neal case, and Judge Calhoon testified to the same effect regarding the Meyer case. Bentley acknowledged at trial that he had not incurred any monetary loss as a result of Bunton’s and Gates’s conduct, but he offered evidence regarding the injury to his reputation and the mental stress he had suffered. Bunton and Gates, he testified, have taken time from me. They have ruined moments with my family, with my friends. They have — they have put a cloud over my home, my four children.

And Jackie Gates, yes, sir, Mr. Gates — • perhaps even more than Mr. Bunton' — ■ they have — I have — I have agonized because my name means something to me.... In a lot of ways, it’s all I’ve got, and I’ve — the day I became judge, I appreciated that I had a position of trust, and that of all people I needed to maintain my integrity and try to be a virtuous man. I’ve got four children that I don’t want embarrassed, and every time Mr. Gates or the rest of them opened their mouth, I know how it hurt them, how it hurt my sister, how it hurt my family.

Bentley testified that the accusation against him had been “the worst thing that’s happened to me in my life”, going “to the very heart of what my whole life is about.” Everywhere he went, he said, people would say that they had heard him called corrupt, although “most of them are well-meaning and a lot of them said it was joking”. Bentley testified that he spent time worrying at home about the accusations, and that he worried about the effect on his family and the treatment of his children by their peers at school.

Bentley’s wife testified that the entire episode had been a “tragedy” that had “ruined Bascom’s life and my children’s life”. Her husband, she said, had lost sleep, suffered stress, and would never be the same. A long-time friend of Bentley’s testified: Well, I think it’s impacted him a lot. I’ve known him, like I said, for fifteen or twenty years, and I think — I think he’s been downcast. I think he’s been depressed and he’s been sad. It’s unfortunate, but I’ve seen a major change in the demeanor of the judge.

I don’t know what else I can say, but it’s kinda sad the way it has affected him and his family as well. When Bentley rested his case-in-chief, the court directed a verdict for all of the defendants except Bunton and Gates. At the close of all of the evidence, the trial court granted Bentley’s motion for a partial directed verdict that Bunton’s accusations of corruption and criminality were defamatory per se.

The jury then found that: • Bunton published defamatory statements about Bentley with “actual malice” and with “malice”; • Gates agreed with Bunton’s defamatory statements and published his agreement with “actual malice” and with “malice”; • Bunton and Gates conspired to publish defamatory statements about Bentley; • Bunton’s conduct caused Bentley to suffer $150,000 damages in past and future loss of character and reputation, and $7 million in past mental anguish; • Gates’s conduct caused Bentley to suffer $25,000 damages in past loss of character and reputation and $70,000 in past mental anguish; and • punitive damages should be assessed, $1 million against Bunton and $50,000 against Gates.

Based on this verdict, the trial court rendered judgment awarding Bentley actual and punitive damages and prejudgment interest totaling $9,560,410.40 against Bun-ton and $163,739.72 against Gates. The trial court refused to hold the defendants jointly liable for all of the damages, despite the jury’s finding that they had conspired to defame Bentley. Bunton and Gates appealed from the judgment against them, and Bentley appealed from the denial of joint liability. The court of appeals affirmed the judgment against Bunton but reversed the judgment against Gates.

The court concluded that: • the jury’s finding that Bunton acted with actual malice was supported by clear and convincing evidence; • Bunton had the burden of proving that his statements were true, and failed to do so; • the jury’s findings of actual damages caused by Bunton were supported by legally and factually sufficient evidence; • there is no evidence that Gates defamed Bunton; and • Bunton and Gates were not jointly hable as co-conspirators because Bentley did not request a jury finding on what damages were caused by the conspiracy itself and the evidence did not conclusively establish that all of the damages Bunton caused were attributable to the conspiracy, such as damages resulting from statements made before the conspiracy was formed and never ratified by Gates.

Bentley and Bunton petitioned for review, and we granted both petitions. They, along with respondent Gates, have raised numerous issues. We begin (in

Part II) with the defendants’ threshold claim that the Texas Constitution affords them greater protection than the First Amendment. We then consider the issues related to liability: whether the defendants’ statements were capable of defamatory meaning (Part III), whether those statements were false (Part IV), and whether the defendants acted with actual malice (Part V). Next we turn to the issues related to damages (Part VI). Finally, we consider the appropriate action in light of our conclusions (Part VII). II Bunton and Gates claim the protections of

article I,

section 8 of the Texas Constitution, as well as those of the First Amendment to the United States Constitution.

Article I,

section 8 states: Freedom of speech and press; libel Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence.

And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases. Both defendants point out that this Court has sometimes called the state guarantee of free speech “broader”, but neither of them explains how differences in the two constitutional provisions affect this case. The mere assertion that the state provision is broader than the federal means nothing. As we said in Commission for Lawyer Discipline v.

Benton: This Court has recognized that “in some aspects our free speech provision is broader than the First Amendment.” However, to assume automatically “that the state constitutional provision must be more protective than its federal counterpart illegitimizes any effort to determine state constitutional standards.” If the Texas Constitution is more protective of a particular type of speech, “it must be because of the text, history, and purpose of the provision.” Bunton and Gates make no attempt to show how the text, history, or purpose of the state constitutional provision affords them greater protection than the First Amendment.

If anything, in the context of defamation, the First Amendment affords more protection. Recently, in Turner v. KTRK Television, Inc., we explained: Although we have recognized that the Texas Constitution’s free speech guarantee is in some cases broader than the federal guarantee, we have also recognized that “broader protection, if any, eannot come at the expense of a defamation claimant’s right to redress.” Unlike the United States Constitution, the Texas Constitution expressly guarantees the right to bring reputational torts.

The Texas Constitution’s free speech provision guarantees everyone the right to “speak, write or publish his opinions on any subject, being responsible for abuse of that privilege.” Likewise, the Texas Constitution’s open courts provision guarantees that “[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” While we have occasionally extended protections to defamation defendants greater than those offered by the United States Constitution, we have based these protections on the common law, not the Texas Constitution.

As Chief Justice Phillips correctly stated several years ago, after thoroughly reviewing the history of

article I,

section 8, “[Njothing in the language or purpose of the Texas Free Expression Clause authorizes us ... to afford greater weight in the balancing of interests to free expression than we wpuld under the First Amendment. .. ,” In some cases we have applied state constitutional provisions before considering similar provisions of the federal constitution, but in others we have not. No rigid order of analysis is necessary, despite occasional language to the contrary in some of our opinions.

Where, as here, the parties have not argued that differences in state and federal constitutional guarantees are material to the case, and none is apparent, we limit our analysis to the First Amendment and simply assume that its concerns are congruent with those of

article I,

section 8. Ill We now turn to Bunton’s and Gates’s arguments that their statements were expressions of opinion rather than statements of fact and were not capable of defamatory meaning. A It is well settled that “the meaning of a publication, and thus whether it is false and defamatory, depends on a reasonable person’s perception of the entirety of a publication and not merely on individual statements.” This is also true in determining whether a publication is an actionable statement of fact or a constitutionally protected expression of opinion.

To distinguish between fact and opinion, we are bound to use as our guide the United States Supreme Court’s latest word on the subject, Milkovich v. Lorain Journal Co. In that case a newspaper, the Lorain Journal, reported that a high school wrestling coach, Milkovich, had “lied” during a judicial proceeding which overturned a state athletic association’s sanction imposed on his team. The Court rejected the newspaper’s argument that its statements were constitutionally protected opinion.

The Court began its analysis by explaining that early common law did not distinguish between factual statements and opinions in imposing liability for defamation, but due to concerns that unduly burdensome defamation laws could stifle valuable public debate, the privilege of “fair comment” was incorporated into the common law as an affirmative defense to an action for defamation. “The principle of ‘fair comment’ afforded legal immunity for the honest expression of opinion on matters of legitimate public interest when based upon a true or privileged statement of fact.” After surveying the constitutional limitations on defamation liability in its own opinions, the Court concluded that it was unnecessary to create a separate privilege for “opinion” defined by some multi-factor test, as some courts had done. “[W]e think the ‘ “ ‘breathing space’ ” ’ which ‘ “ ‘[freedoms of expression require in order to survive,’ ” ’ ” the Court said, “is adequately secured by existing constitutional doctrine without the creation of an artificial dichotomy between ‘opinion’ and fact.” Included in that doctrine, the Court explained, are the following principles: • “a statement on matters of public concern must be provable as false before there can be liability under state defamation law, at least in situations, like the present, where a media defendant is involved” and “where public-official or public-figure plaintiffs [are] involved;” • the Constitution protects “statements that cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual” made in debate over public matters in order to “provide! ] assurance that public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation;” • “where a statement of ‘opinion’ on a matter of public concern reasonably implies false and defamatory facts regarding public figures or officials, those individuals must show that such statements were made with knowledge of their false implications or with reckless disregard of their truth”, and “where such a statement involves a private figure on a matter of public concern, a plaintiff must show that the false connotations were made with some level of fault”; and • “the enhanced appellate review required by Bose Corp. [v.

Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)] provides assurance that the foregoing determinations will be made in a manner so as not to ‘constitute a forbidden intrusion of the field of free expression.’ ” How these principles apply in a given case are, of course, questions of law. The analysis prescribed by Milkovich supplants various proposed dichotomies between fact and opinion. For example, more than a decade before Milkovich,

section 566 of the Restatement (Second) of Torts set out a rule making a statement of opinion actionable “only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.” Six years before Milkovich, Prosser and Keeton on Torts proposed a three-part classification of opinions as either deductive, evaluative, or informational. About the same time, the United States Court of Appeals for the District of Columbia Circuit in Oilman v. Evans designed a four-part test for distinguishing between fact and opinion.

In lieu of such distinctions, Milkovich focuses the analysis on a statement’s verifiability and the entire context in which it was made. With this direction, we examine the evidence in this case. B Bunton referred to Bentley’s actions as “criminal” only once, which was during the June 6 “Q&A” broadcast.

After describing the Curbo case, in which he faulted Bentley for having released the defendant on a personal bond and delayed final adjudication, Bunton suddenly exclaimed: “y’all” — referring to Bentley and Sheriff Hubert — “are corrupt, y’all are the criminals, y’all are the ones that oughta be in jail.” Nothing that preceded this statement would have led a reasonable person to think that Bunton was asserting that Bentley had actually committed a crime.

Bunton barely alluded to the theory he later espoused that Bentley had handled the case in a way to pressure the defendant’s father, which, if true (it was not), would undoubtedly have been criminal. All Bunton said on this subject during the June 6 program was that Bentley should “quit hanging [the case] over these people’s heads”.

By itself, Bunton’s single, excited reference to Bentley as a “criminal” might be taken to be rhetorical hyperbole, although hardly of any sort that, in the words of Milkovich, “has traditionally added much to the discourse of our Nation.” In context, however, Bunton’s characterization of Bentley’s conduct as criminal is only part of Bunton’s efforts over many months to prove Bentley corrupt. By calling Bentley “corrupt”, Bun-ton testified that he intended the word’s ordinary meaning- — dishonest, unethical, shady, and unscrupulous — and we think that is what any reasonable viewer would have understood.

While the word may be merely epithetic in the context of amorphous criticism, it may also be used as a statement of fact that can be proved true or false, just like the word “liar” applied to Coach Milkovich. Examples abound. When the Athenian court accused Socrates of corrupting the minds of the young, it intended to indict, not merely insult. Corrupt conduct, determined as a matter of fact, may be punished under Texas law in numerous situations. Accusing a public official of corruption is ordinarily defamatory per se.

As Prosser and Keeton on the Law of Tort states: “it is actionable without proof of damage to say of a ... public officer that he has ... used his office for corrupt purposes ... since these things obviously discredit [one] in his chosen calling.” Consistent with this rule, we held in A.H. Belo & Co. v. Looney that detailed accusations of corruption against a public official are not protected opinion, explaining: “There is a broad distinction between fair and legitimate discussion in regard to the conduct of a public man, and the imputation of corrupt motives, by which that conduct may be supposed to be governed.

And if one goes out of his way to asperse the ... character of a public man, and to ascribe to him base and corrupt motives, he must do so at his peril; and must either prove the truth of what he says, or answer in damages to the party injured.” Although Looney’s allocation of the burden of proof is no longer correct, in other respects the opinion appears to express the sentiment of most courts.

The Maryland Supreme Court has observed: The greater number of Courts have held that the imputation of a corrupt or dishonorable motive in connection with established facts is itself to be classified as a statement of fact and as such not to be within the defense of fair comment. Whether Bunion’s repeated accusations that Bentley was corrupt were statements of fact or expressions of opinion depends, according to Milkovich, on their verifiability and the context in which they were made.

As the court in Oilman stated: “It is one thing to be assailed as a corrupt public official by a soapbox orator and quite another to be labelled corrupt in a research monograph detailing the causes and cures of corruption in public service.” But much ground lies between these two extremes. While “Q&A” certainly never delivered anything approaching a research monograph on Bentley’s conduct in office, and Bunton’s ravings were often classic soapbox oratory, Bunton plainly and repeatedly stated that his accusations of corruption were based on actual fact.

He cited specific cases and occurrences and pointed to court records and public documents. He claimed to have made lengthy investigations and interviewed courthouse employees and others. It had been hard, he told a friend and one viewer who called in to the program, to find a basis for accusing Bentley. He claimed to have looked into the law pertaining to personal bonds, case disposition guidelines, judicial ethics, the sheriffs responsibilities, and the district court’s supervisory responsibility over the county auditor and county commissioners court.

When challenged by viewers who called in, Bunton refused to argue about whether Bentley was a good or bad judge or person; on the contrary, he told one caller that Bentley’s personal character was irrelevant. Bunton constantly insisted that his charges were borne out by objective, provable facts. Indeed, he invited Bentley to appear on the show, not to debate the issues, but to answer the factual allegations and disprove that he was corrupt. It is tine that Bunton often also said that it was his opinion that Bentley was corrupt.

But as the Supreme Court explained in Milkovich: If a speaker says, “In my opinion John Jones is a liar,” he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact.

Simply couching such statements in terms of opinion does not dispel these implications; and the statement, “In my opinion Jones is a liar,” can cause as much damage to reputation as the statement, “Jones is a liar.” As Judge Friendly aptly stated: “[It] would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words T think.’ ” See Cianci [v. New Times Publishing Co., 639 F.2d 54, 64 (2d Cir., 1980) ].

It is worthy of note that at common law, even the privilege of fair comment did not extend to “a false statement of fact, whether it was expressly stated or implied from an expression of opinion.” Restatement (Second) of Torts, § 566, Comment a (1977). Furthermore, Bunton repeatedly insisted that evidence he had seen but had not disclosed supported his assertions. He had reviewed many public records, he said, and talked with courthouse employees. Much other information was publicly available, he continually assured viewers, to substantiate Bentley’s corruption in office.

He encouraged callers to investigate this information for themselves and to report other misconduct that he strongly suggested could be found for the looking. Even under the common law rule stated in

section 566 of the Restatement (Second) of Torts (to which Milkovich referred) that requires an implication of undisclosed facts for an opinion to be actionable, Bunton’s statements were defamatory. Throughout the trial, Bunton insisted that his statements that Bentley was corrupt were verifiably true and could be proved. Bunton’s attorney told the jury in his opening statement: We’re going to prove the truth of each and every statement, or we’re going to prove that there was an investigation in an attempt to learn the truth, the truth was concealed. There was no disregard for the truth.

There was an attempt to get it. During the presentation of the evidence, Bunton identified eight discrete instances that he said showed Bentley’s corrupt conduct in office. He cited to details himself, and attempted to elicit factual and expert testimony from other witnesses, not merely to substantiate his personal opinions, but to prove his statements true. In his summation, Bunton’s attorney went over each instance on which Bunton had based his charges of corruption and attempted to show how they had been proved true.

Bunton’s consistent position at trial that his accusations of corruption were true is a compelling indication that he himself regarded his statements as factual and not mere opinion, right up until the jury returned its verdict. An important part of the context of the defendants’ statements here is that they were made on public access television. Federal law permits local authorities to require cable television operators to provide public access channels. Commenting on that law, a committee of the U.S.

House of Representatives observed: Public access channels are often the video equivalent of the speaker’s soap box or the electronic parallel to the printed leaflet. They provide groups and individuals who generally have not had access to the electronic media with the opportunity to become sources of information in the electronic marketplace of ideas. [Public, educational, and governmental] channels also contribute to an informed citizenry by bringing local schools into the home, and by showing the public local government at work. Public access programming is not network news.

Usually, it is informal and is not professionally scripted or produced. It often does not project the credibility that other television broadcasts have. “Q&A” was in this mold — in Bunton’s words, “a wide-open, sometimes caustic and/or an uncivilized public forum”. Bunton’s accusations on “Q&A” must be considered in that context. By the same token, however, statements are not incapable of defamation or absolutely protected from liability merely because they are made on public access television. A soap box, electronic or wooden, does not lift a speaker above the law of liability for defamation.

Besides, as the congressional committee noted, public access television is not only a “soap box” forum but also provides educational and governmental information. The clear import of Bunton’s statements on “Q&A” was that Bentley was corrupt as a matter of verifiable fact, as Bunton continued to assert at trial. Accordingly, we reject Bunton’s argument on appeal that his accusations of corruption were constitutionally protected opinion. C Gates also argues that his own comments on two “Q&A” programs were opinion and in any event were not capable of defamatory meaning.

The videotapes of “Q&A” program excerpts played at trial showed Gates and Bunton sitting side by side numerous times while Bunton asserted that Bentley was corrupt. For the most part, Gates exhibited no reaction to Bunton’s statements, but on two programs Gates seemed to express his agreement with Bunton’s statements that Bentley was corrupt. On one occasion, Gates attempted to correct Bunton’s misstatement to a caller that district attorney Herrington was the most corrupt official in Anderson County.

Bun-ton interrupted that Bentley was “number one”, and Gates replied, “Yeah.” On the other occasion, Bunton stated that “one thing after another” showed that Bentley was corrupt, citing two situations he had previously described. Gates then named two other situations, adding “and there’s some others besides.” At trial, Gates explained that he did not intend to express agreement with Bunton on either occasion. The first time, Gates said, his “yeah” was merely an acknowledgment that Bunton had corrected himself.

In Gates’s words: “I think it was a spontaneous reaction more than anything, is all I can say.” The second time, Gates explained, he was merely helping Bunton list the examples Bunton had cited without meaning to endorse any of them himself. The jury did not believe Gates; rather, they found that “Jackie Gates agreed with Joe Ed Bunton’s defamatory statements concerning Bascom Bentley being corrupt”. The jury saw Gates on the videotaped programs and on the witness stand, and they were entitled to judge his credibility by his demeanor and testimony.

Even if we assume that Gates’s “yeah” on the one occasion was ambiguous, the jury could reasonably conclude that on the second occasion when Gates not only appeared to concur in Bunton’s assertions but listed examples of his own, examples which Bunton had not mentioned but immediately endorsed, Gates was expressing his agreement with Bunton’s defamatory statements. The jury was not, of course, entitled to base their conclusion simply on Gates’s and Bunton’s joint appearances on “Q&A” programs.

We do not suggest for a moment that a talk show host is liable for a guest’s statements to which the host does not voice objection. The mere fact that people appear together is no evidence that they agree; on the contrary, television interviews more often than not indicate nothing about the host’s views, much less the broadcaster’s. But the jury had much more than mere joint appearances to support their finding.

The jury could reasonably have determined that Gates was not being truthful in discounting his statement since he had been present on many “Q&A” programs when Bunton accused Bentley of corruption and had never protested, even though he testified that he told Bentley that he was joining “Q&A” to discourage Bunton from continuing to make the accusations. The evidence permitted the jury to find that Gates did not merely hold Bunton’s coat at the stoning of Bentley, but threw rocks himself.

Judging Gates’s words from the perspective of a reasonable listener, as we must, we conclude that they could easily have been considered defamatory as the jury found. IV Next, we consider Bunton’s and Gates’s arguments that their statements were not false. A Bunton and Gates contend that Bentley has the burden of proving that they made false statements about him because he is a public official and also because they are media defendants. We agree that to recover for defamation, a public official like Bentley must prove that defamatory statements made about him were false.

Accordingly, we need not consider whether Bunton and Gates’s use of public access television casts them as “media defendants” or whether, if it did, a plaintiff against them who was not a public figure would also be required to prove falsity. The court of appeals erred in holding that the defendants were required to prove as an affirmative defense that their statements were true. We have not required proof of falsity to be by more than a preponderance of the evidence, and neither has the United States Supreme Court. If the evidence is disputed, falsity must be determined by the finder of fact.

In this case, the trial court refused Gates’s request to inquire of the jury whether statements about Bentley were false. The court appears to have been of the view that the issue was subsumed in Bentley’s motion for a partial directed verdict that Bunton’s statements were defamatory per se, even though the falsity of those statements was not mentioned in the argument or ruling on the motion. That a statement is defamatory — that is, injurious to reputation — does not mean that it is false, and vice versa.

After the verdict was returned, the defendants argued that the issue of falsity had not been raised by Bentley’s motion. The court disagreed, reciting in its judgment that by granting Bentley’s motion it had “ruled as a matter of law that [Bunton] had published false and defamatory statements about [Bentley] by accusing him of being corrupt and a criminal.” The defendants argue that because the trial court denied them a jury finding on falsity and the evidence on that issue was disputed, they are entitled to a new trial.

Bentley argues that no finding was necessary because the evidence conclusively established that the statements about him were false, as the trial court determined by granting his motion for partial directed verdict. Alternatively, Bentley argues that by finding that Bunton and Gates acted with actual malice — that is, knowledge of, or reckless disregard for, the falsity of their statements — the jury implicitly found that their statements were false, and that implicit finding is supported by at least some evidence.

Strictly as a matter of logic, the jury’s finding that Bunton and Gates acted with actual malice does not necessarily imply that the statements made were false, inasmuch as the jury could have believed, as they were instructed, that Bunton and Gates acted “with reckless disregard as to [the] truth or falsity” of the statements. As a practical matter, however, it is highly unlikely that the jury would have found that Bunton and Gates made true statements with actual malice — that is, with reckless disregard for whether the statements were true. Bentley’s implied finding argument is therefore not without force.

But we need not determine whether a finding of falsity can be implied from the verdict in this case because, as we explain below, Bentley proved conclusively that the statements that he was corrupt and criminal were false. Accordingly, we accept the trial court’s statement in its judgment that it determined the issue as a matter of law. B Bunton based his statements that Bentley was corrupt — by which Bunton meant dishonest, unethical, shady, and unscrupulous — on the eight situations we have already described in detail, and nothing else.

Accordingly, the issue before us is whether Bentley proved without contradiction that none of those situations showed that he was criminal or corrupt in any way.

Without repeating unnecessarily the evidence we have already set out, we examine each of the eight bases Bunton has claimed for his accusations: The Curbo case: First, Bunton suggested on the June 6, 1995 “Q&A” program that Bentley acted improperly in releasing Curbo without a surety bond, although Bunton now tells us in his brief that he “never made the allegation that the bond matter made Bentley corrupt.” Bentley’s action was authorized by statute, and Curbo’s attorney, Hicks, testified that there was nothing unusual about Curbo’s release without bond.

Next, Bunton asserted on various programs that Bentley delayed a final adjudication in the case to pressure Curbo’s father in the event he was elected mayor. Bentley testified that he had no such motive, Hicks testified that the charge was “a load of bull”, and in any event, Curbo’s father was not elected may- or. Further, Bunton argues that the case should not have been delayed so long or at the request of the district attorney. Bentley and Hicks testified that the delay was proper and benefitted Curbo by giving him one last chance to correct his ways.

Their testimony was supported by letters in the court file from Curbo’s probation officer. There was no evidence that delay was improper. Finally, Bunton makes two arguments he did not raise at trial: that Bentley had improper ex parte discussions with Curbo’s probation officer, and that it was illegal for the district attorney and Curbo’s attorney to revise the terms of Curbo’s probation.

There is no evidence to support either argument; on the contrary, Hicks testified that Bentley did “absolutely nothing” improper in handling the Curbo case, and that the charge that Bentley’s conduct in the case was corrupt was “a lie.” The Harding warrant: Bunton asserts that Bentley had a legal duty to require the sheriff to execute an arrest warrant that Bentley did not issue and that the district attorney caused to be withdrawn.

Bentley testified that he was not connected with the incident in any way, and as a matter of law, he had no legal duty to require the sheriff to execute a warrant that had been withdrawn. The “hot check” and confiscated property funds: Bunton contends that if Bentley had properly supervised the county auditor and the county commissioners court, they would have discovered sooner that the district attorney was not properly depositing the money that defendants paid on “hot checks” and the money obtained from property forfeitures in the county treasury as the law required, but was administering those funds himself.

While district courts have general supervisory control over county commissioners courts, there is no suggestion or claim that this jurisdiction was invoked, much less that any district court exercised it improperly. And while district courts in most counties, including Anderson County, have the power to appoint and remove a county auditor, under certain circumstances, there is no evidence that Bentley or the other district judges in Anderson County exercised their authority improperly.

On the contrary, Houston County District Attorney Garner, who investigated the handling of the funds, testified that Bentley had “nothing to do” with them, that there was “no possibility” that he could have been corrupt on account of the way they were handled, and that in fact there was no wrongdoing at all in connection with the funds, either on the part of Anderson County District Attorney Herrington or anyone else. No evidence contradicts Garner’s testimony.

The petitions to remove the district attorney: Bunton complains that Bentley should have reported two of his colleagues, Judge Bournias and Judge Calhoon, for judicial misconduct in denying petitions Bunton filed to remove the district attorney. Bentley testified that he had nothing to do with either petition. Garner, who investigated the petitions, reported that there was no basis for them, and that they had been motivated entirely by personal vendettas, unfounded rumors, and a lack of knowledge of the criminal justice system.

There is no evidence or authority that the rulings were incorrect, or that Bentley would have had a duty to report the judges even if they had ruled in error. Bentley’s campaign contributions: Bentley contributed to both the winner and loser of the runoff election in the Democratic primary for county judge of Anderson County, after that election was over. Bunton argues that the contributions were improper because the district judges supervise the county judge. Bentley testified that his contributions were meant to help each candidate defray fingering expenses and were proper.

Bentley volunteered that he would not have contributed to any opposed candidate. Bunton testified that even though the winning primary candidate had no announced opposition in the general election, the possibility of a write-in campaign remained. No such campaign occurred, and there is no evidence that it was ever more than an abstract possibility. There is no evidence or legal basis for thinking that Bentley’s contributions were corrupt, even if they had been made to opposed candidates.

Moreover, Bentley’s campaign treasurer testified that he received oral approval for the contributions from the Texas Ethics Commission. As a matter of law, Bentley’s contributions were not improper, let alone corrupt. The Neal, Meyer, and Beavers cases: Bentley’s rulings in each of these three cases was determined to have been erroneous. In the Neal case, he improperly attempted to issue a nunc pro tunc sentencing order. District Attorney Garner testified that it was “totally unreasonable” to think that Bentley’s conduct in the case was criminal or corrupt.

In the Meyer case, Judge Calhoon ordered a new trial after Bentley revoked Meyer’s probation, based upon counsel’s asserted misunderstanding of Bentley’s rulings. Judge Cal-hoon testified at trial that it “makes no sense” that anyone, even a layman, would “interpret[ ]”, “interpolate! ]”, or “pull[ ] out” of his decision that Bentley was corrupt or criminal. In the Beavers case, Bentley testified that he had only made an error in judgment, and there was no other evidence regarding the case.

As to all three cases, there was evidence that Bentley’s actions were not criminal or corrupt, and no evidence that his rulings were dishonest or unethical. In each case, all that can be said is that Bentley was found, on ordinary review, to have committed an error in judgment. As one court has noted: ‘Where an official having discretion in a certain matter acts upon his judgment in good faith, although erroneously, such act is not corrupt”. Bunton also contends that his statements about Bentley were taken out of context.

The trial court admitted into evidence two videotapes containing about sixty minutes of “Q&A” broadcasts excerpted from twelve ninety-minute programs. One of the excerpts received in evidence was twenty-one minutes long, one was eleven minutes long, and three others were more than five minutes long. Bun-ton argues that the excerpts misleadingly lifted his statements out of context, but he does not explain how his assertions that Bentley was corrupt could have appeared less offensive if viewed as part of a longer broadcast.

His only specific complaint is that Bentley did not offer in evidence the results of the “Q&A” viewer polls on whether he was corrupt. That omission does not make the videotapes misleading. Nothing about the excerpts themselves, which we have reviewed, indicates that they are misleading in any way. Moreover, Bunton did not offer into evidence tapes or transcripts of the entire programs that were excerpted or of other programs not shown at all that would cast his comments in a different light. Gates offered a videotape of one program that was excluded because it had not been timely produced during discovery.

That tape is not in our record, and there is no indication that it would have shed a different light on the others. Bunton’s argument that the broadcast excerpts were misleading simply has no support in the record, and therefore we reject it. In sum, the evidence not only supports but conclusively establishes that Bunton’s charges that Bentley was corrupt were utterly and demonstrably false as a matter of law. As Garner testified, in twelve years of practice she had never known Bentley to engage in any conduct that could remotely be called criminal or corrupt.

At trial, Gates did not disagree, and Bunton offered no evidence whatever to the contrary. Y Next, we consider Bunton’s and Gates’s arguments that they did not act with actual malice. A In the seminal case of New York Times Co. v.

Sullivan, the United States Supreme Court held that to protect our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials,” the First Amendment precludes a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice.

Since then, the Supreme Court has explained that “[t]he phrase ‘actual malice’ is unfortunately confusing in that it has nothing to do with bad motive or ill win” — common connotations of the word “malice” but rather is “a shorthand to describe the First Amendment protections for speech injurious to reputation”. Those protections for speech about a public official turn on the speaker’s degree of awareness that the statements made are false.

In the Supreme Court’s words: Calculated falsehood falls into that class of utterances which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection. Thus, actual malice means knowledge of, or reckless disregard for, the falsity of a statement.

Knowledge of falsehood is a relatively clear standard; reckless disregard is much less so. Reckless disregard, according to the Supreme Court, is a subjective standard that “focus[es] on the conduct and state of mind of the defendant.” It requires more than “a departure from reasonably prudent conduct.” Mere negligence is not enough. There must be evidence “ ‘that the defendant in fact entertained serious doubts as to the truth of his publication,’ ” evidence “that the defendant actually had a ‘high degree of awareness of ... [the] probable falsity’ ” of his statements.

Thus, for example, the failure to investigate the facts before speaking as a reasonably prudent person would do is not, standing alone, evidence of a reckless disregard for the truth, but evidence that a failure to investigate was contrary to a speaker’s usual practice and motivated by a desire to avoid the truth may demonstrate the reckless disregard required for actual malice.

As the Supreme Court has observed, “Although courts must be careful not to place too much reliance on such factors [i.e., motive and care], a plaintiff is entitled to prove the defendant’s state of mind through circumstantial evidence, and it cannot be said that evidence concerning motive or care never bears any relation to the actual malice inquiry.” “In determining whether the constitutional standard has been satisfied, the reviewing court must consider the factual record in full.” While these concepts assist in understanding and applying the “reckless disregard” standard, the Supreme Court has cautioned that the phrase “cannot be fully encompassed in one infallible definition.” “The mental element of ‘knowing or reckless disregard’ required under the New York Times test ... is not always easy of ascertainment.” “Inevitably its outer limits will be marked out through case-by-case adjudication, as is true with so many legal standards for judging concrete cases”.

This does not mean that courts must “scrutinize carefully every jury verdict in every libel case, in order to ascertain whether the final judgment leaves fully protected whatever First Amendment values transcend the legitimate state interest in protecting the particular plaintiff who prevailed.” [T]his approach would lead to unpredictable results and uncertain expectations....

The import of the Supreme Court’s admonitions is that the boundaries of actual malice, and particularly reckless disregard, cannot be fixed by the defining words alone but must be determined by the applications of those words to particular circumstances. Actual malice is defined in important part by example. Necessarily, then, to more fully understand “reckless disregard”, we must survey the Supreme Court’s application of the standard in concrete cases. The Supreme Court’s most recent application of the “reckless disregard” standard was in Harte-Hanks Communications, Inc. v. Connaughton.

Connaughton, a candidate for judicial office, had persuaded a certain Stephens a few weeks before the election to give him a recorded statement regarding instances in which she had bribed an employee in the incumbent judge’s office. Stephens’s sister, Thompson, was present along with a number of other people when Stephens gave Con-naughton her statement. A few days before the election Thompson told the local newspaper that Connaughton had used “dirty tricks” to get Stephens’s statement, intending to present it to the incumbent judge privately and force the judge’s resignation before the election.

The newspaper published Thompson’s account of the events as true. Connaughton sued, and a jury found that the newspaper had acted with actual malice. The jury awarded Connaughton $5,000 in compensatory damages and $195,000 in punitive damages, the trial court rendered judgment on the verdict, and the court of appeals affirmed.

The Supreme Court held that while “[tjhere is little doubt that ‘public discussion of the qualifications of a candidate for elective office presents what is probably the strongest possible case for application of the [actual malice standard],’ ” the newspaper acted with actual malice because: it ignored the fact that all of the persons present when Stephens gave her statement denied that Connaughton had acted improperly; it declined to listen to the Stephens tape itself and did not interview Stephens; Thompson’s story was highly improbable given that Connaughton had not misused the tape but had simply turned it over to law enforcement authorities; and Thompson’s hesitating demeanor at the newspaper offices reflected in her taped interview suggested a lack of veracity as compared with Connaughton.

The Supreme Court in Harte-Hanks noted how similar the facts in that case were to those in Curtis Publishing Co. v. Butts. In Curtis Publishing, the Saturday Evening Post published an

article accusing Wally Butts, the athletic director of the University of Georgia, of having fixed a football game with Paul “Bear” Bryant, football coach at the University of Alabama. The story was based on an affidavit by an insurance salesman who claimed to have overheard a telephone conversation a week before the game in which Butts described for Bryant his plays and game plan. Butts had retired before the story ran. The

article concluded: The chances are that Wally Butts will never help any football team again.... The investigation by university and Southeastern Conference officials is continuing; motion pictures of other games are being scrutinized; where it will end no one so far can say. But careers will be ruined, that is sure. Butts sued.

To prove that the magazine had acted with actual malice, Butts offered evidence at trial that although the editors recognized the seriousness of the charges being made and the importance of a full investigation, they ignored elementary precautions; that they ignored the fact that their informant was on probation for bad check charges and sought no independent corroboration, even though another person also claimed to have overheard the conversation; that the reporter did not view films of the game or consult with football experts to determine whether the game appeared to have been fixed the way it was played; and that “the Saturday Evening Post was anxious to change its image by instituting a policy of ‘sophisticated muckraking,’ and the pressure to produce a successful expose might have induced a stretching of standards.” The jury awarded Butts $60,000 in actual damages and $3 million in punitive damages, but the trial court reduced the total to $460,000 by remittitur.

The court of appeals affirmed. The Supreme Court also affirmed, concluding that the evidence clearly showed that the magazine had acted with actual malice in publishing the

article after a “grossly inadequate” investigation, despite Butts’s denial of the allegations, and “with full knowledge of the harm that would likely result from publication of the article.” By contrast, the Supreme Court just as readily concluded that actual malice had not been proved in a companion case to Curtis Publishing, Associated Press v. Walker. There, a reporter had provided an eyewitness account of the violence that occurred when federal marshalls attempted to enforce a federal court decree that James Meredith be permitted to enroll at the University of Mississippi.

The reporter stated that Walker, a private citizen and retired army veteran, had led a riot against the marshalls. Walker claimed that this was false and that in fact, while he was present at the time, he had counseled restraint. A jury found that Walker had been defamed, had suffered $500,000 in actual damages, and should have been awarded $300,000 in punitive damages. The trial court rendered judgment for the actual damages but not the punitive damages, concluding that there was no evidence of malice to support such an award.

The Supreme Court determined that Walker was a public figure subject to the actual malice standard because he had purposefully thrust himself “into the ‘vortex’ of an important public controversy;” that discrepancies in the published account were insignificant; that the reporter was experienced and reliable; and that the evidence supported the trial court’s determination that there was no evidence of ill will, a complete lack of care, or conscious indifference of Walker’s rights. In Time, Inc. v. Pape, Time Magazine reported on a federal commission’s study of police brutality.

The study stated in essence that allegations in specific cases demonstrated a problem that demanded discussion, thus encouraging the reader to believe that the allegations were probably true while stressing that they were only allegations — a statement the Supreme Court said could “fairly be characterized as extravagantly ambiguous.” In its story, Time set out some of the circumstances described in the study but did not state that they were merely allegations. One officer mentioned in the story sued. The trial court directed a verdict for the defendant, but the court of appeals reversed.

The Supreme Court upheld the trial court, concluding: Time’s, omission of the word “alleged” amounted to the adoption of one of a number of possible rational

interpretations of a document that bristled with ambiguities. The deliberate choice of such an

interpretation, though arguably reflecting a misconception, was not enough to create a jury issue of “malice” under New York Times. In a very different context, the Supreme Court reiterated its view that actual malice cannot be based on a misinterpretation of ambiguous facts that is not unreasonably erroneous. In Bose Corp. v. Consumers Union of United States, Inc., a writer for Consumer Reports described a Bose sound system as making instruments sound as if they were “wander[ing] about the room.” Bose sued for product disparagement.

At trial, the writer testified that the system actually made instruments sound as if they were moving along the wall, which he said meant the same thing as what he had published. The trial court found that the two descriptions were plainly at odds, that the published comment was false, that the defendant’s efforts at trial to explain away the error showed actual malice, and that Bose should recover about $125,000 in actual damages.

The Supreme Court agreed with the court of appeals’ reversal of the judgment, concluding that the writer’s adoption of a new description of the system at trial proved only that he had “a capacity for rationalization”, not that

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