Full opinion text
OPINION ON REHEARING DIXON W. HOLMAN, Justice. We grant Appellants’ motion for rehearing, withdraw our August 31, 2007 opinion and judgment, and substitute the following. Appellant FOX brings this interlocutory appeal of the trial court’s order denying its motion for traditional and no-evidence summary judgment. See Tex. Civ. Peac. & Rem.Code Ann. § 51.014(a)(6) (Vernon Supp.2006). We reverse and render. BACKGROUND Gamal Abdel-Hafiz (“Appellee”), born and educated in Egypt, came to the United States (“U.S.”) to work in 1984 and became a U.S. citizen in March 1990. He became a language specialist with the Federal Bureau of Investigations (“FBI”) in January 1994 and then a special agent in the Dallas FBI office. He was assigned to the Dallas FBI office’s international terrorism unit from 1996 to 2001 and served as assistant legal attache to the U.S. Embassy in Saudi Arabia from 2001 to 2003. He was recalled from Saudi Arabia by the FBI in February 2003 for an administrative inquiry into insurance fraud allegations made by his ex-wife. This investigation led to his termination; the FBI later reinstated him. The underlying suit is a defamation action. The alleged defamation involves statements initially made by FBI agents Robert (“Bob”) Wright and John Vincent, of the FBI’s terrorism unit in Chicago, assistant U.S. attorney Mark Flessner, also based in Chicago, and FBI agent Barry Carmody, of the FBI’s terrorism unit in Tampa, about Appellee with regard to FBI investigations in 1998 and 1999. Bill O’Reilly, host of THE O’REILLY FACTOR, a television program on the FOX television network, interviewed Flessner on March 4, 2003, and interviewed former FBI assistant director Bill Baker and former FBI agent Gary Aldrich about Fless-ner and Wright’s allegations against Ap-pellee, among other topics, on March 5, 2003. On March 6, 2003, O’Reilly also interviewed Vincent and David Schippers, Vincent and Wright’s attorney. Appellee sued Appellant for libel per se, slander per se, libel per quod, slander per quod, statutory libel, and libel and slander by innuendo and implication based on statements made in the three broadcasts and in the broadcast transcripts posted on FOX’s website (collectively, the “Broadcasts”). He further contended that the Broadcasts “omitted material facts and/or juxtaposed facts in a material way such that the gist of the publications ... was false,” and listed twelve statements made by O’Reilly as defamatory. Appellee sought $3.5 million in compensatory damages plus exemplary damages. We have reordered these statements chronologically: Statement Three: [March 4, 2003] In the “Impact” segment tonight, very disturbing story. Charges that an FBI agent named Gamal Abdel Hafiz (ph) refused to wear a recording device in terrorist investigations of accused money men, Yassin Al-Kadi[] and Sami Al-Arian. Statement Ten: [March 5, 2003] Should FBI Chief Robert Mueller be fired over the scandal of a Muslim agent who failed to aggressively investigate terrorism? Statement Eleven: [March 5, 2003] And THE FACTOR has two eyewitnesses who say Mr. Hafiz refused to wear a wire twice during terror investigations. Statement Four: [March 5, 2003] According to FBI agent Robert Wright and former federal prosecutor Mark Flessner, Hafiz declined to secretly tape a Saudi citizen named Yassin Kadi, who was suspected of financing Usama bin Laden.[] That incident happened in April of 1999, and it happened again during the investigation of Sami Al-Ari-an, according to the two men. Wright says Hafiz told people, quote, “a Muslim does not record another Muslim.” That is not true. Hundreds of Muslim American law enforcement agents have worn wires, according to FACTOR sources. Statement Five: [March 5, 2003] But THE FACTOR has learned that Hafiz is being investigated by the office of professional responsibility at the Justice Department. That’s serious. Statement Six: [March 5, 2003] In THE FACTOR “Follow-Up” segment tonight, as we told you in the “Talking Points” memo, an FBI agent named Gamal Ab-del-Hafiz has been put on administrative leave. He has been accused by another agent of refusing to record other Muslims who the FBI was investigating. One of the men, a Saudi named Yassin Kadi, is suspected of bankrolling Usama bin Laden. The other man was Sami Al-Arian[,] recently indicted for terrorist fund-raising. Statement Twelve [the same statement as Statement Two]: [March 5, 2003] How do you know that, because we’re being told by the Prosecutor in the case and Agent Wright that everybody wanted this to happen. The Tampa office in the Al-Arian case asked the man to wear a wire. He declined. Statement Two: [March 5, 2003] The Tampa office ... asked the man to wear a wire. He declined. Statement Seven: [March 5, 2003] I — I just want to — I want the audience to know, Mr. Baker, that what you say, although it might be true, is being vehemently disputed — vehemently disputed — by a number of FBI agents involved in these investigations. Statement Eight: [March 5, 2003] If you have one that says, I’m not going to record another fellow Muslim, you’ve got to fire him, don’t you? Statement Nine: [March 6, 2003] This is Hafiz (ph) who refused to record Sami Al-Arian (ph).... Listen, we know the truth. The truth is I believe your two agents here, the guy wouldn’t tape other Muslims. That’s the truth. And he wasn’t disciplined.... But he should have been disciplined, and he wasn’t. Statement One [the same statement as Statement Nine]: [March 6, 2003] Listen, we know the truth. The truth is, I believe your two agents here, the guy wouldn’t tape other Muslims. That’s the truth. And he wasn’t disciplined. As Statements One and Two duplicate portions of Statements Nine and Twelve, we will consider them subsumed within our discussion of Statements Nine and Twelve and we will not analyze them individually. It is undisputed that around April 1999, Wright, Vincent, and Flessner asked Ap-pellee to secretly record a Muslim suspect in an FBI investigation code-named “Vulgar Betrayal.” Vulgar Betrayal’s mission was “to identify and neutralize through criminal process the HAMAS terrorist support organization located within the United States.” SUMMARY JUDGMENT Standard of Review After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant’s claim or defense. Tex.R. Civ. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id.; Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002). When reviewing a no-evidence summary judgment, we examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the movant. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See Tex.R. Civ. P. 166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no evidence summary judgment is not proper. Moore v. K Mart Corp., 981 5.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied). “Less than a scintilla” exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. King Ranch v. Chapman, 118 S.W.3d 742, 751 (Tex.2003), cert. denied, 541 U.S. 1030, 124 S.Ct. 2097, 158 L.Ed.2d 711 (2004). “More than a scintilla” exists if it would allow reasonable and fair-minded people to differ in their conclusions. Id. Texas Rule of Civil Procedure 166a does not prohibit a party from combining in a single motion a request for traditional summary judgment and a request for no-evidence summary judgment. See Tex.R. Civ. P. 166a(c), (i); Binur v. Jacobo, 135 S.W.3d 646, 650 (Tex.2004). When, as here, a party moves for summary judgment under both rules 166a(c) and 166a(i), we will first review the trial court’s judgment under the no-evidence standards of rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). If the non-movant failed to produce more than a scintilla of evidence under that burden, then there is no need to analyze whether the movant’s summary judgment proof satisfied the traditional summary judgment test of rule 166a(c). Id. On appeal from the denial of a summary judgment, we may reverse and render judgment if any of the grounds stated in the movant’s motion are meritorious. See HBO, A Div. of Time Warner Entm’t Co., L.P. v. Huckabee, 995 S.W.2d 152, 163 (Tex.App.-Houston [14th Dist.] 1998), aff'd, 19 S.W.3d 413 (Tex.2000). Defamation Appellee sued Appellant under various defamation theories. To maintain any of his defamation claims, Appellee had the burden to prove that Appellant: (1) published a statement; (2) that was defamatory concerning Appellee; (3) while acting with either actual malice, if Appellee was a public official or public figure, or negligence, if he was a private individual, regarding the statement’s truth. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998), cert. denied, 526 U.S. 1051, 119 S.Ct. 1358, 143 L.Ed.2d 519 (1999). Neither party disputes that Appellant published the statements at issue. Based on the parties’ summary judgment pleadings presented to the trial court, we confine our review here to the “actual malice” standard. Constitutional “Actual Malice” In issue four, Appellant asserts that there is no evidence that the challenged statements were published with constitutional “actual malice.” A no-evidence summary judgment would be improper only if we conclude, after examining the entire record, that Appellee has presented evidence creating more than a surmise or suspicion that Appellant published the statements with actual malice. See Sudan, 199 S.W.3d at 292; King Ranch, 118 S.W.3d at 751. “Actual malice” in the defamation sense does not include ill will, spite, or evil motive. Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989). Rather, to establish actual malice, the plaintiff must prove that the defendant published a defamatory falsehood “with knowledge that it was false or with reckless disregard of whether it was false or not.” WFAA-TV, 978 S.W.2d at 571 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964)). The actual malice standard’s purpose is to protect innocent but erroneous speech on public issues, while deterring “calculated falsehoods.” Turner, 38 S.W.3d at 120 (citing Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964)); see also New York Times, 376 U.S. at 270, 84 S.Ct. at 721 (stating that defamation cases must be considered “against the background of a 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”). To prevail at trial, a public figure plaintiff must establish actual malice by clear and convincing evidence, but the Texas Supreme Court has declined to adopt the clear-and-eonvincing standard at the summary judgment stage. Huckabee v. Time Warner Entm’t Co., 19 S.W.3d 413, 420-21 (Tex.2000). The meaning of terms such as “actual malice” — and, more particularly, “reckless disregard” — is not readily captured in one infallible definition. St. Amant v. Thompson, 390 U.S. 727, 730, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). And while knowledge of falsity is a relatively clear standard, reckless disregard is much less so. See, e.g., Bentley, 94 S.W.3d at 591 (reviewing U.S. Supreme Court cases on actual malice). Reckless disregard is a subjective standard that requires the plaintiff to bring forth evidence that the defendant entertained serious doubts as to the truth of the publication at the túne it was published. Hearst Corp. v. Skeen, 159 S.W.3d 633, 637 (Tex.2005); see also Harte-Hanks Commuc’ns, Inc. v. Connaughton, 491 U.S. 657, 688, 109 S.Ct. 2678, 2696, 105 L.Ed.2d 562 (1989) (stating that reckless disregard involves a “high degree of awareness of probable falsity”); St. Amant, 390 U.S. at 731, 88 S.Ct. at 1325 (stating that there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication). And a publisher’s presentation of facts may be misleading, even negligently so, but will not constitute a “calculated falsehood” unless the publisher knows or strongly suspects that it is misleading. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex.2000). Actual malice focuses on the defendant’s state of mind, particularly his attitude toward the truth of what he reported, which a plaintiff can prove through objective evidence about the publication’s circumstances and the defendant’s conduct at the time of publication. Id.; WFAA-TV, Inc., 978 S.W.2d at 573; see also Bentley, 94 S.W.3d at 591, 596 (stating that defendant’s lack of care and motive are factors to consider). When the defendant’s words lend themselves to more than one interpretation, the plaintiff must establish either that the defendant knew that the words would convey a defamatory message, or had reckless disregard for their effect. New Times, Inc. v. Isaacks, 146 S.W.3d 144, 162 (Tex.2004), cert. denied, 545 U.S. 1105, 125 S.Ct. 2557, 162 L.Ed.2d 276 (2005). Publications alleged to be defamatory must be viewed as a whole-including accompanying statements, headlines, pictures, and the general tenor and reputation of the source itself, and we consider the actual malice issue within this context. See City of Keller v. Wilson, 168 S.W.3d 802, 811 (Tex.2005) (citing New Times, Inc., 146 S.W.3d at 158-59 for the proposition, with regard to a no-evidence assertion, that legal sufficiency cannot disregard parts of a publication, considering only false statements to support a plaintiffs verdict or only true ones to support a defense verdict). THE BROADCASTS We have reviewed the Broadcasts in their entirety. Based on the three broadcasts, the format of O’Reilly’s show involved various segments, with transition blurbs about upcoming information in the broadcast between each segment. We have summarized the unrelated portions of the broadcasts for context, but we have included in their entirety the portions of the transcripts that include the alleged defamatory statements, bolding the contested statements within each. THE O’REILLY FACTOR, March 4, 2003 In the Introduction segment, O’Reilly gave his evening’s topics as “Trust the U.N.?” with regard to pre-war decision-making, “Muslim Agent Trouble,” stating that there were charges that an FBI agent of Arab descent refused to wear a wire while investigating Sami Al-Arian, and “Pro-Saddam Prof?” about a professor accused of funneling money to Saddam Hussein. In his Talking Points segment, O’Reilly talked about the need to take action on terrorism. In the Top Story segment, O’Reilly conducted an interview with the Washington editor of The Nation about al-Qaeda and Iraq. The transition blurb was “Pro Sami-Agent?” in which O’Reilly again mentioned the refusal of an FBI agent to wear a wire when investigating Sami Al-Arian. In the Factor FollowUp, O’Reilly discussed al-Qaeda with a FOX foreign affairs analyst. In the transition blurb, Sami Al-Arian was mentioned again. In the Impact segment, an interview lasting approximately five minutes, O’Reilly showed FBI Chief Robert Mueller’s photo and then conducted a split screen interview between himself and Flessner. O’REILLY: In the “Impact” segment tonight, very disturbing story. Charges that an FBI agent named Amal Abdel Hafíz (ph) refused to wear a recording device in terrorist investigations of accused money men Yassin Al-Kadi and Sami Al-Arian. [Statement Three] Kadi was being investigated for activities surrounding the bombing of an American embassy in Africa. He lives in Saudi Arabia. Al-Arian, as you may know, has been charged with raising money for Palestinian Islamic Jihad. Last week the FBI put Hafiz on leave but denies he refused to wear the wire. Now we were supposed to have FBI counter-terrorism agent Robert Wright, who worked with Hafiz, as our guest this evening, but FBI chief Robert Mueller threatened to fire him if he appeared on THE FACTOR. That happened about an hour ago. As you may remember, we selected Mueller as one of our villains of the week for his dubious decisions, and once again, Mueller has lived down to our expectations. Joining us now from Chicago is former federal prosecutor Mark Fless-ner, who worked with Mr. Wright on the Kadi case. What’s FBI trying to hide here, counselor? FLESSNER: Well, I can’t tell that. I’m not privy to what the reason is that they have suspended Special Agent Al-Hafiz, but clearly, there’s something big going on, since they’re [sic] recalled him for re-op. O’REILLY: Do you believe that this agent did not wear the wire? FLESSNER: Do I believe that Special Agent Al-Hafiz did not wear the wire? O’REILLY: Yes. FLESSNER: Well, I was involved, of course, as you know that I was the prosecuting investigator, the attorney on the case during the investigation. The lead AUSA, assistant U.S. attorney. I was working with ... FBI Agent Robert Wright and about 13 other actual FBI agents. I was involved in the conversations and in the negotiations with Amal Ab-del Al-Hafiz during the time in which we requested him to wire up on the target or one of the targets of the investigation coming out of a company out of New Jersey. And if the question is do I believe it, I was there for it and there are some times when I think about that point in my life and can’t believe it actually happened. O’REILLY: So Hafiz, the FBI agent, all right? The FBI agent, Hafiz, flat out said I’m not wearing a wire. Now why did he say that? FLESSNER: Well, let me just give you a little background to the story. He had been approached by — a number of subpoenas had been issued, one to a company, BMI in New Jersey. And an employee of that company contacted Al-Hafiz and asked him what the nature of the investigation was. We were thrilled when Special Agent Hafiz contacted us and told us that he had been contacted with respect to the nature of the investigation, because we assumed that someone who wanted to know why he was to testify or what the nature of the investigation was is that he wanted to do something other than to tell the truth. We asked Al-Hafiz to wire up, to go to the meeting, and to record the conversations and find out what the guy wanted to know about the investigation. There was a number of phone calls, both with Special Agent Hafiz and with his supervisor, and there was a number of correspondences that went back between the special agents in charge in Chicago ... O’REILLY: Bottom line, though? FLESSNER: Bottom line is, he said, “I do not record another Muslim. That is against my religion.” O’REILLY: Really? And the same thing with Sami Al-Arian in Florida? FLESSNER: My understanding — I wasn’t involved ... O’REILLY: That’s what Wright said. That’s what Wright was going to tell us until he got pulled. Now, since you heard it — Since you heard it, you were there, are you surprised the FBI is denying it happened? FLESSNER: Well, I received a copy of that press release from the FBI last December.[] They allege that the reason that Special Agent Al-Hafiz refused to cooperate with the investigation — which by the way that’s the first time I have ever known an FBI agent to refuse to cooperate with an investigation — they said the reason he refused is because we had requested that he make the recording in a mosque, which was simply not true. O’REILLY: Yes, that’s not true. So, look, the FBI, according to your testimony and Wright’s testimony, is covering this up because this is an embarrassment to them. And Mueller, again, we don’t trust him. Flat out don’t trust him. And this is another embarrassment for the FBI. Now, Wright was told that they would fire him if he came on THE FACTOR, but they can’t fire him now, right? FLESSNER: Well, what they do with respect to this I don’t know. Just in defense of Director Mueller ... O’REILLY: I’m not going to let you defend him because I only have 30 seconds. He was not director then, but he is director now, Mr. Flessner. FLESSNER: That’s right. O’REILLY: And he said flat out to Wright one hour ago, you go on THE O’REILLY FACTOR, you’re toast. That’s a disgrace. We appreciate your testimony. Thanks very much. FLESSNER: Thank you. O’REILLY: Something very wrong at the FBI. Plenty more ahead as THE FACTOR moves along this evening. Another college professor accused of raising money for the wrong guy, Saddam. We’ll tell you what happened in a moment. In the next transition blurb, entitled “Killing the pledge?,” O’Reilly asked, ‘Will a liberal federal court succeed in killing the Pledge of Allegiance as we know it?” The Unresolved Problem segment followed, in which the attorney of a professor who had been terminated from his university position after he was charged with funneling money to Saddam Hussein discussed his client’s situation with O’Reilly. The next interview was with a Vanity Fair special correspondent about Michael Jackson’s charitable contributions or lack thereof and her allegations that he founded charities to get close to children. The Back of the Book segment addressed the pledge issue with regard to the Ninth Circuit’s controversial “under God” ruling. O’Reilly interviewed a reverend from the American Family Association about his petition to amend the U.S. Constitution to keep the words “under God” in the Pledge of Allegiance. He also interviewed a constitutional law expert about “activist judges.” Near the end of the show, O’Reilly responded to email from viewers. THE O’REILLY FACTOR, March 5, 2003 In the Introduction segment, O’Reilly stated: The O’REILLY FACTOR is on. Tonight, there’s growing hostility against the USA inside the United Nations. Will the Bush Administration walk away next week and take care of Iraq outside that body? The pope says a war against Iraq would be immoral. But does the pontiff still have the moral authority to make that call? Should FBI Chief Robert Mueller be fíred over the scandal of a Muslim agent who failed to aggressively investigate terrorism? [Statement Ten] Caution: you’re about to enter the no spin zone. THE FACTOR begins in 90 seconds. O’REILLY: Hi, I’m Bill O’Reilly. Thank you for watching us tonight. All hell is breaking loose inside the FBI. That’s the subject of this evening’s “Talking Points” memo. We sat on the story for quite awhile. But now FBI Agent Gamal Abdel-Hafíz has been put on administrative leave. And THE FACTOR has two eyewitnesses who say Mr. Hafiz refused to wear a wire twice during terror investigations. [Statement Eleven] According to FBI agent Robert Wright and former federal prosecutor Mark Flessner, Hafiz declined to secretly tape a Saudi citizen named Yassin Kadi, who was suspected of ñnancing Usama bin Laden. That incident happened in April of 1999, and it happened again during the investigation of Sami Al-Arian, according to the two men. Wright says Hafíz told people, quote, “A Muslim does not record another Muslim.” That is not true. Hundreds of Muslim American law enforcement agents have worn wires, according to FACTOR sources. [Statement Four] Agent Hafiz apparently denies any wrongdoing and has filed an equal opportunity complaint against Agent Wright. A short time later Hafiz was promoted to the FBI’s office in Saudi Arabia but again, he’s now been called back here and placed on forced leave. Why? The FBI will not say. But THE FACTOR has learned that Hafiz is being investigated by the office of professional responsibility at the Justice Department. That’s serious. [Statement Five] The simple question is this. Did Agent Hafiz refuse to secretly tape other Muslims involved in terror investigations, yes or no? Now, this is the third time that FBI chief Robert Mueller has been in the vicinity of a scandal. And enough might be enough. He was a federal prosecutor in Boston when the FBI allowed three innocent men to stay in prison to protect an informant who had committed murder. Mueller rewarded FBI Agent Spike Bowman with special praise after Mr. Bowman refused a request from the FBI’s Minneapolis office to search accused terrorist Zacarías Moussaoui’s computer in the months before 9-11. Moussaoui, of course, is now being charged with being in on the mass murder at the World Trade Center and Pentagon. FBI Agent Colleen Rowley was so outraged by that screw-up she put her career in jeopardy and made the situation public. But Rowley was not commended by Mueller; the guy who messed up, Bowman, was. And now we have Gamal Abdel-Hafiz. Unless director Mueller can fully explain this situation to the American people “Talking Points” believes he should be fired by President Bush. Americans are depending on the FBI to protect them and there is growing evidence that Mueller is a bureaucratic nightmare. The FBI, we believe, is now doing an excellent job in fighting terrorism, and most field agents are magnificent. But did you know that many of those agents refer to Mueller’s Washington group as “hindquarters” instead of “headquarters”? Americans have a right to know what’s happening when serious charges are leveled against a government agency. Agent Wright is writing a book, but was told he would be charged with insubordination if he appeared on THE FACTOR last night. That’s a very disturbing threat. Bottom line. We need to know if Agent Hafiz refused to wear a wire during a terrorism investigation and why he was subsequently promoted. If the government will not answer that simple question, we are all in big trouble. We’ll have more on this coming up. And that’s the memo. The Top Story segment addressed the Iraq situation. The transition blurbs were: “Credibility Problem” with regard to the Pope and “Peace Shirt Ban.” In the Unresolved Problems segment, O’Reilly talked about Pope John Paul II’s stance on an invasion of Iraq as immoral and interviewed a professor about the Catholic priest sex scandal and its impact on the Pope’s moral authority. The next transition blurb was “No Peace Shirts?” and another remark, in the form of a rhetorical question, about FBI embarrassment with regard to an agent who apparently refused to wear a wire when talking with suspected terrorists. The next segment was an interview with a man and his son who had been arrested for wearing peace shirts in a mall food court. The next transition blurbs were “Hillary on the War” and “Fire Mueller?” In the Personal Story segment, O’Reilly conducted an interview with a journalist about Hillary Clinton’s stance on potential war with Iraq. The transitional blurb was “Dismiss Mueller? Scandal involving Muslim agent.” In the Factor Follow-Up, O’Reilly showed a picture of the FBI seal first, then photos of Yassin Al-Kadi, Sami Al-Arian, and Mueller. O’REILLY: Thanks for staying with us. I’m Bill O’Reilly. In THE FACTOR “Follow-Up” Segment tonight, as we told you in the “Talking Points” memo, an FBI Agent named Gamal Abdel-Haftz has been put on admin istrative leave. He has been accused by another agent of refusing to record other Muslims who the FBI was investigating. One of the men, a Saudi named Yas-sin Kadi, is suspected of bankrolling Usama bin Laden. The other man was Sami Al-Arian recently indicted for terrorist fund-raising. [Statement Six] The question: Should FBI Chief Robert Mueller be fired since this is the third time he’s been around a scandal within the FBI. Joining us now from Los Angeles, Bill Baker, former FBI assistant director. And, in Washington, former FBI agent Gary Aldrich, author of “Unlimited Access: An FBI Agent Inside the Clinton White House.” Mr. Baker, let’s go with you. Am I being unfair here? BAKER: A little bit, Bill. Getting right to the specifics of our Muslim agent, the decision to wear a wire is not made by a field agent in a case. Otherwise, he’d have rogue cases which would be bothering you, rightfully. In this instance, the decision by regulation is to be made by the special agent in charge. In this case it was the Dallas office. So, regardless of what it was alleged the agent Gamal may have said, the decision for him to wire up or not wire up was made by the proper person, and that’s the agent in charge in Dallas. O’REILLY: How do you know that, because we’re being told by the prosecutor in the case and Agent Wright that everybody wanted this to happen. The Tampa office in the Al-Arian case asked the man to wear a wire. He declined. [Statement Twelve] I mean, you’re basically putting it back on the bureaucracy, and it — and maybe that’s true. I mean, maybe they didn’t give him a direct order, but, still, doesn’t it disturb you, Mr. Baker, if a Muslim FBI agent will not record another Muslim FBI agent to bring evidence about terrorism? Isn’t that disturbing to you? BAKER: If that’s the bottom line, it could be disturbing, Bill. But I’m told otherwise. O’REILLY: Well, of course, you’re told BAKER: I’m told that ... O’REILLY: You know, they’re — they’re denying it, but you would have to tell — you would have to call FBI Agent Wright a liar and the assistant — not the assistant but the prosecutor in the case a liar too. You’d have to call them both liars in order to make that case. BAKER: I’m not calling either a liar. I’m saying that the facts — and as these facts will spin out — and, believe me, Congress is going to take a look at this just as you are. And I’m here to tell you that, when these facts are laid out plain and simple, it’s going to be Gamal’s supervisor who claimed — and not a headquarters supervisor, not the hindquarters you refer to. It’s the field, and the field believed that this was not the proper occasion to wire someone up. O’REILLY: All right. Now ... BAKER: These are sensitive cases, and you sometimes put a wire on. O’REILLY: I — I just want to — I want the audience to know, Mr. Baker, that what you say, although it might be true, is being vehemently disputed — vehemently disputed — by a number of FBI agents involved in these investigations. [Statement Seven] How do you see it, Mr. Aldrich? ALDRICH: Well, when we worked on undercover agents, when I was an agent, the number one priority, the criteria, I should say, for choosing an undercover agent was his willingness or her willingness to go under cover; and, if you had somebody who didn’t want to go undercover and wear a wire, in this particular case we’re talking about, you’d be foolish to force that agent to follow through on an investigation they did not want to participate in. O’REILLY: OK, but let’s face it. We don’t have very many Muslim American agents who can infiltrate terrorist organizations. ALDRICH: Yes. Well ... O’REILLY: Ifgou have one that says, I’m not going to record another fellow Muslim, you’ve got to tire him, don’t you? [Statement Eight] ALDRICH: Well, I think it is a question of insubordination, if this is what, in fact, happened because you use the same fact situation if a Catholic, for example, refused to participate in an investigation of abortion clinic protesters. You’d have the same fact situation. O’REILLY: Yes, I mean, look — Mr. Baker might be right. Maybe the [sic] didn’t do — receive a direct order. I wasn’t there. But I’ll tell you the two men that we had on when Wright.... You know, doesn’t it disturb you, Mr. Baker, that, number one, the FBI [w]ill not clarify this case, because it’s a simple question: Did he or did he not refuse to wear a wire? Yes or no. They will not clarify it. And, number two, we were going to have Wright on last night, and they threatened to fire him for insubordination if he came on and told his story. Doesn’t that disturb you, sir? BAKER: No, I’m not necessarily disturbed by that, Bill. You’ve got facts right now, and the FBI has a mandate to follow its procedures. This is all going to be laid out. You’re ahead of the curve here, and you have an issue. But I’d like to tell Gary also that one of the best undercover agents the FBI had — and they made a movie out of it — Donny Brasco was his code name — was very hesitant to wear a wire. So I don’t want to debate ... O’REILLY: Yes, because he didn’t want to get ... BAKER: ... whether ... O’REILLY: He didn’t want to get killed. I understand that ... BAKER: Absolutely. O’REILLY: ... but that’s part of the job. Now, listen, Mr. Baker, one more and we’ll get back to Mr. Aldrich. Doesn’t it disturb you about Mueller that this guy gave this Bowman a commendation and gave Rowley a hard time in Minneapolis about the Moussaoui thing? BAKER: Last night, Bill, you mentioned that this is the worst of times. Even in the best of times, an FBI director has one of the most challenging positions in government. He’s looking over 75,000 cases and over 25,000 employees, and he’s responsible to the oversight committees and to the public. For Mueller to make up one problem in this case — I don’t have the facts on Bowman and why he was promoted. O’REILLY: A — but it’s — the facts are right there, Mr. Baker. How about you, Mr. Aldrich? That disturb you? ALDRICH: Actually, no, and as a matter of fact, I have to side with the director’s office on this one in not letting Agent Wright testify ... O’REILLY: No, no, no, no. I’m talking about the Zacarías Moussaoui thing. I’m talking about giving the guy, Bowman, who wouldn’t OK Rowley’s request for a wiretap on Moussaoui’s computer before 9/11 a commendation and then giving Rowley a hard time for complaining about it. ALDRICH: Well, as far as I know, Rowley never received any reprimand in her file or a letter of commendation or a letter of ... O’REILLY: Nothing. ALDRICH: ... or any of the things O’REILLY: Nothing. But Bowman got commended, and he’s the guy that screwed the case up. ALDRICH: Well — well, we don’t know that he’s the only person who screwed this case up. I think there are others involved in this. I’m not ... O’REILLY: All right. All right. ALDRICH: I’m not defending the ... O’REILLY: Yes, you are. You both are. ALDRICH: I’m just trying to be fair. O’REILLY: I mean, if this is what we’ve got — if this is what’s protecting us, a Mueller and an FBI who gives a guy a commendation who won’t tap Zacharias Moussaoui’s computer, and BAKER: Bill ... O’REILLY: I don’t know what to say. Go ahead, Mr. Baker, I’ll give you the last word. BAKER: Well, I worked very closely with Bob Mueller during the previous Gulf War, and we worked hand in glove. We prevented terrorist acts. He’s a solid, proven leader. He rearranged the San Francisco U.S. Attorney’s office. He’s a career prosecutor, who, after he was turned out when President Clinton took office — and, Gary, you know these details — afterwards, Mueller didn’t run to a large law firm to make triple figures. He elected to go back and prosecute homicides in the district. O’REILLY: All right. BAKER: This — this is a proven professional, Bill. I ... O’REILLY: And I respect your — I’m— I could be wrong, Mr. Baker. I respect your opinion, OK? I just want an answer. And I’m going to tell everybody watching tonight — we’ve got millions of people watching — if you want an answer about this wiretap, as I think we all do, Mr. Baker, Mr. Aldrich, and me, we have a link on billoreilly.com where you can get right into the White House and just say we’d like an answer on this question. BAKER: That’s fair. O’REILLY: Thank you very much. We appreciate both your points of view. Next up, an update on Amiri Baraka. Will the State of New Jersey finally get rid of this embarrassing poet laureate in a moment? The transition blurb was ‘Why the Delay?” with regard to removal of Baraka. O’Reilly then interviewed a New Jersey Assemblyman on Baraka’s 9/11 accusations. The Most Ridiculous Item of the Day was the fact that a translator doing a voice over had used a fake accent. Viewer e-mail included a response to the FBI story, to which O’Reilly retorted that the issue was that Appellee “allegedly wouldn’t investigate terrorism,” and O’Reilly told viewers that if they wanted an answer to whether Appellee would not wear a wire, to visit the billoreilly.com website for a link to the White House. THE O’REILLY FACTOR, March 6, 2003 In the Introduction, O’Reilly announced that there would be no Talking Points memo. The remainder of the Introduction segment addressed more controversy over the Muslim FBI agent “who apparently refused to wiretap a Muslim terror suspect.” The first four interviews took approximately thirty minutes, in which O’Reilly asked his guests why Europeans hate Americans and why other countries did not see the terrorism threat that the U.S. sees. In the first transition blurb, O’Reilly asked whether the FBI was covering up anything, and in the second, he stated, “More disturbing charges about Muslim FBI Agent....” During the Factor Follow-Up, O’Reilly showed the FBI seal, followed by Mueller’s photograph and a video clip of Sami Al-Arian being arrested. The Factor Follow-Up went as follows: O’REILLY: Thanks for staying with us. I’m Bih O’Reilly. In THE FACTOR follow-up segment tonight, we are still trying to get the FBI to answer a very simple question. Did Agent Gamal Abdel Hafiz (ph) refuse to tape fellow Muslims, including Sami al Ari-an (ph), who were being investigated for terrorist-related activities? So far, the Bureau has not clarified the situation, and we’ve called for Director Robert Mueller to do so. Mr. Mueller did, however, threaten to discipline FBI Agent Robert Wright if he came on THE FACTOR and testified about the incident in front of you. Agent Wright was deeply involved in the case. But tonight, joining us from Chicago, is retired FBI Agent John Vincent, who was also an eyewitness to what happened. He is joined by attorney David Schippers, who is representing both Agent Vincent and Agent Wright. All right, Agent Vincent, what did you see? What happened? VINCENT: I was part of a conference telephone call between Chicago and Dallas. In attendance at this conference call w[ere] three U.S. attorneys, two agents, myself and agent Robert Wright. Also party to this conversation, of course, [wa]s Gamal Abdel Hafiz (ph) and his supervisor in Dallas. At that conference call, U.S. Attorney Mark Flessner asked Agent Gamal (ph) if he would use a wire to record the conversation that potentially was going to take place. At that time, Gamal (ph) refused. U.S. Attorney Mark Flessner pressed him and asked him why he wouldn’t. And Gamal (ph) said, you wouldn’t understand, it’s a cultural thing. At that time, Flessner pushed further, and finally Gamal (ph) said a Muslim does not record another Muslim. O’REILLY: He said that on the phone. You heard him say that? VINCENT: Yes he did. He said it on the phone. O’REILLY: And you wanted him to record a Saudi who was under suspicion of financing Osama bin Laden, correct? VINCENT: Well, indirectly, yes. Actually, it was an official in an East Coast company that was under investigation by Robert Wright’s case. O’REILLY: But it was a Muslim individual? VINCENT: Yes, it was a Muslim individual. O’REILLY: All right. So when Hafiz (ph) says on the phone, and six guys heard it, a Muslim doesn’t tape another Muslim, what was the reaction? What was the conversation then after that? VINCENT: Well, there wasn’t any conversation for a while. Everybody was stunned. Bob Wright and I looked at each other. We kind of knew what was coming. U.S. Attorney Flessner said, ‘What is the problem?” And Gamal (ph) said, “I fear for my life.” And at that time, Flessner said, ‘Well aren’t you sure that the FBI is going to protect you?” And Gamal (ph) said, “No, the FBI can’t protect me.” He said, “The FBI, I don’t trust them.” O’REILLY: Wow. Now why would the man fear for his life? Was the guy you were investigating that powerful? VINCENT: Not at all. It had to do with the Muslim community there in Dallas. Gamal (ph) felt that since he was so well known and that if it ever came out that he had done this that there would be some threats to his life. O’REILLY: OK. This was before 9/11, correct? VINCENT: It was before 9/11. O’REILLY: Did the case just die then or did you guys take it upstairs? Did the Dallas bureau chief for the FBI do anything? VINCENT: Bob immediately — Bob Wright immediately called headquarters and complained about it then. Later on, I went to our office security manager, and I asked that person to call headquarters (UNINTELLIGIBLE) what had to be done to file a dereliction of duty complaint against another agent. That security officer did, on at least two separate occasions, call FBI headquarters and never received a response. O’REILLY: OK. Now how important was the guy that you wanted him to wear the wire on, and was it an undercover wire? VINCENT: No, it wasn’t. When this whole program came out, the bureau came back and stated that we wanted him to record this conversation in a mosque. That never happened. Then after they decided that that wouldn’t work, then they said that they didn’t want him to record the conversation because he was represented by an attorney, but that doesn’t apply either. O’REILLY: But how important was the guy you were trying to get? VINCENT: Well, we don’t really know. We never did talk to the man. O’REILLY: But what did you think he was doing? What were you investigating him about? VINCENT: Well, he was part of a money-raising scheme that was funneling money over to the Middle East. O’REILLY: Was it al Qaeda? Was it— because we heard it was Osama bin Laden’s outfit. VINCENT: Well, this is Yassin Kadi (ph). He was involved in organizing or paying for this particular company that he was working for — this fellow was working for. O’REILLY: All right. So there was an al Qaeda or possible al Qaeda connection there? VINCENT: Yes. This individual was also involved in the Boston (UNINTELLIGIBLE) fiasco. O’REILLY: I go[t] it. Now, Mr. Sehip-pers, the FBI has recalled the Agent Hafiz (ph) from Saudi Arabia, where he was sent after this incident, and he is now, I understand, under investigation by the Justice Department’s internal affairs division. What is going on here? Do you know? SCHIPPERS: I’ll tell you, I will never be able to figure this one out, Bill. I cannot understand why the FBI is putting their integrity in question over a totally indefensible action by one of their agents. There is nobody who can tell me that if an FBI agent can refuse to wear a wire when someone reaches out to talk to him. It was the same with Sami al Arian (ph). That wasn’t even wearing a wire. Arian (ph) called him and asked to talk to him. All he had to do was put an overhear device on his telephone and nobody in the world would have known that he was ... O’REILLY: This is Hafíz (ph) who refused to record Sami Al-Arian (ph). [Part of Statement Nine] So that’s what the Tampa people say. SCHIPPERS: I’ll tell you, Bill, I’m getting sick to death — Bob Wright has now been totally gagged by the FBI. They go out and they call him a liar. They make statements about him. They tell people that he doesn’t know what he’s talking about. And then when he tries to defend himself, they say, sorry, pal, you can’t talk. That’s why.... O’REILLY: Well, they’re definitely trying to get Wright. I mean he was, as you know, an hour away from appearing with us and they gagged him. And said if you do, we will charge you with insubordination. But I don’t understand what — Mueller is embarrassed now. This is out, OK? And there’s still something floating around for the Justice Department to be investigating this Hafiz (ph). Mueller said it’s not on the same case. Do you have any clue what is going on? SCHIPPERS: Bill, it’s probably — you know it’s what I call the Clinton mode. It’s not on the same case. That’s right, it’s not on al Arian (ph) and maybe it’s not on the Kadi (ph) case in 1999. But they are investigating him. And what is so secret? What are they hiding? Something is being hidden here, and there’s a reason that they’re hiding it. And I will go to my grave trying to understand it. Aren’t they interested in finding the truth? O’REILLY: Listen, we know the truth. The truth is I believe your two agents here, the guy wouldn’t tape other Muslims. That’s the truth. And he wasn’t disciplined. [Part of Statement Nine] SCHIPPERS: I wonder why. O’REILLY: I don’t know that. But he should have been disciplined, and he wasn’t. [Part of Statement Nine] And now Mueller is trying to keep us from finding out what the big picture is. But we’re going to find it. Believe me, we will find it. Gentlemen, thanks very much. We appreciate it. When we come back, “The New York Times” is going to run a piece that may hurt actor Mel Gibson. We will analyze it up next. The Back of the Book segment was about an interview to be published in the New York Times with Mel Gibson’s father. The Most Ridiculous Item of the Day was O’Reilly’s ranking in the “Most Popular TV People” survey. The viewer emails included response to the Pope article, comments on the peace shirt and Hillary Clinton pieces, and statements about war. Appellee’s Actual Malice Contentions Appellant contended in its summary judgment motion that there was no evidence of actual malice and states on appeal that Appellee cited no evidence with regard to O’Reilly’s state of mind when the challenged statements were published, and, particularly, that there is no evidence that O’Reilly knew any of the challenged statements were false when FOX broadcast them. Appellee contends that there is a genuine issue of material fact with regard to whether Appellant made each contested statement with knowledge of its falsity or reckless disregard to its truth. The record pertaining to Appellants’ state of mind consists of O’Reilly’s deposition, Kristin Lazure’s affidavit, deposition, and production notes (“notes”) prepared for the March 4, 5, and 6 broadcasts, and David Brown’s affidavit and deposition. Brown and Lazure were producers on THE O’REILLY FACTOR in 2003; La-zure performed the research for the Broadcasts. Appellee made the following specific contentions with regard to actual malice: (1) that Appellant purposefully avoided the truth; (2) that Appellant knew the statements were false or acted with reckless disregard to their truth or falsity; and (3) that Appellant selected its material with actual malice and made deliberate omissions. Purposeful Avoidance Appellee asserted that at the time the contested statements were made, Appellant “purposely avoided the truth by not consulting sources that could have objectively verified that [Appellee] never refused an order to wear a wire” and by not checking the accuracy of the Broadcasts with the FBI, available public records, or “with independent rehable and verifiable sources” prior to publication. Evidence showing that a defendant purposefully avoided the truth would be enough to suggest that he doubted a story’s accuracy and would thereby constitute some evidence of actual malice. Harte-Hanks, 491 U.S. at 689, 692, 109 S.Ct. at 2696, 2698. In Harte-Hanks, the U.S. Supreme Court stated that a newspaper’s failure to consult other sources that could have objectively verified a story brought by a single, unreliable source was evidence that the newspaper purposefully avoided learning facts that would have shown the story to be false and supported a finding of actual malice. Id. at 692, 109 S.Ct. at 2698; cf. Skeen, 159 S.W.3d at 638 (stating that purposeful avoidance theory was not supported when defendants conducted five months of research involving interviews with parties on both sides of the issue, including the defamation plaintiffs, reviewed the court records of the cases discussed in the article, and there were no existing sources to easily disprove the criticisms in the article); Huckabee, 19 S.W.3d at 427-28 (stating that where film makers interviewed several people on both sides of the story, performed extensive research, and no source could have easily proved or disproved the film’s allegations, finding of purposeful avoidance was precluded). However, the mere failure to investigate or to act reasonably before publishing a statement is distinct from actual malice, because “reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.” St. Amant, 390 U.S. at 731, 88 S.Ct. at 1325; see also New York Times, 376 U.S. at 287, 84 S.Ct. at 730 (stating that with respect to the newspaper’s failure to check advertisement’s factual accuracy, the record showed that it relied upon its knowledge of the good reputation of many of those whose names were listed as the advertisement’s sponsors and upon the letter from the advertisement’s sender, known to it as a responsible individual and certifying that the use of the names was authorized). To support his purposeful avoidance contention, Appellee presented evidence that Appellant never contacted Gossfeld, who had been the Supervisory Senior Resident Agent in the Chicago FBI office. Goss-feld testified that neither ABC, nor FOX, nor any other media attempted to contact his office and speak with him at any time with regard to Wright and Vincent’s allegations. Appellee also claims that Appellant failed to check the accuracy of the Broadcasts with the FBI or available public records. O’Reilly testified that he has been an anchor at FOX News for nine-and-a-half years, has master’s degrees in broadcast journalism and public administration, and began his career in the news business in 1976. He testified that Lazure had been the story coordinator responsible for gathering the information and that he did not remember “any of the minutia of how the story developed. I can only tell you that the story piqued my interest, I assigned it, it came back with three primary sources, once you have three primary sources on a story you go with it.” He listed the three primary sources as Flessner, Vincent, and Wright. He also testified that Lazure had been instructed to call Appel-lee, although he did not know whether she called him, and that his orders to his staff were to “get [Appellee’s] point of view, get him on the program.” Brown testified that he has a bachelor of arts degree in film and has been with FOX for ten years in various capacities. He described the research procedure, You’d look for stories, get them approved, find the appropriate guest, do a pre-interview, get pertinent background information, factual information. Prepare a packet of information for Bill O’Reilly and for the producer to go through. Find supporting tape, video, B-roll. Put together the complete package, have it wrapped up, neat in a bow for him to go on air that evening. He testified that part of Lazure’s job was to accurately get guests’ points of view. With regard to accuracy, Brown testified that it was “[bjetter to be accurate than first,” and that accuracy was paramount in reporting, so much so that “you get it right or you just don’t do it at all.” Lazure testified that she has a degree in journalism from Vanderbilt University. In her affidavit, she stated: I performed research for the March 4, 5, and 6, 2003 programs which are the subject of this suit.... I believe that all of the statements in those broadcasts were either literally or substantially true at the time of the broadcasts. I did not then and do not now entertain any doubt, serious or otherwise, about the truth of the statements in the March 4, 5, and 6, 2008 broadcasts. She testified that she prepared the information packets that O’Reilly used to prepare for the Broadcasts, describing the process as taking information from other reports and putting it at the top of the packet with attribution to the source material, then information about the guests, information about what the guests told her, and then information she received after speaking to an FBI representative. Lazure’s notes from March 4, 5, and 6, 2003 contain the following information: the subject, in capital letters, followed by background information on the subject, then information on each guest, the guest’s point of view, and other related facts and statistics. Lazure testified that she invited someone from the FBI to come on the show and that “it [was] standard protocol to always invite them.” Her notes reflect that she did contact the FBI but that she did not receive an official statement. The unofficial FBI statement covering March 4 and 5 merely indicates that the FBI agent with whom Lazure spoke informed her that he had “personally ... never been able to substantiate” the claim that Appellee refused to wear a wire, that Appellee denied it, and that the suggestion that Appellee refused to wear a wire was “ridiculous.” The unofficial statement in Lazure’s March 6 notes states that the FBI’s position “is that one agent alone doesn’t decide whether or not to wear a wire” and that the FBI agent with whom Lazure spoke could only speculate why the other FBI agents and U.S. attorneys claimed they witnessed Ap-pellee state that “[a] Muslim does not record another Muslim.” O’Reilly testified that he did not receive an official statement from the FBI about the issue, that he had no documentation from the FBI, that the FBI would not appear on camera, that the FBI did not give clarification to Lazure in an official capacity, and that was all that they would use. He stated that because the information received by Lazure from the FBI was not an “official statement,” that is, either on camera or on FBI stationery, it was “background” and “hearsay,” and they did not use it because “we do not use hearsay or he said she said.” O’Reilly testified that, with regard to Ed Cogswell and John Ianarelli, two FBI representatives with whom Lazure had contact, “they were not in on the investigation as the other three individuals that we put on, two on camera and one for background, were.” Cogs-well’s and Ianarelli’s comments were in Lazure’s March 6 notes. Appellant attached Wright’s sworn EEOC statement to its summary judgment motion, giving his version of the 1999 incident, including Appellee’s statement during the conference call that he would only record the individual if he told him he was wearing a wire, that he feared for his safety and did not trust the FBI to protect him, and that “[a] Muslim does not record another Muslim.” Lazure’s notes indicate that Appellant was aware of the EEOC filing, and Wright’s EEOC statement is listed as a source in the Wall Street Journal article that O’Reilly testified triggered his interest in the story. O’Reilly testified that he was not aware of any credibility issues with regard to Wright prior to the broadcast. Lazure’s notes for all three Broadcasts state that Wright was “a controversial agent (represented by both Judicial Watch and House impeachment counsel David Schippers) who has gone public several times in the last year with charges that the FBI has thwarted his counterterrorism investigations,” but there is nothing in her notes to indicate that Wright was not credible. O’Reilly testified that he had always found Schippers “a very credible guest for us” and that Schippers had “always been accurate.” See New York Times, 376 U.S. at 287, 84 S.Ct. at 730 (stating that showing that the newspaper relied upon its knowledge of the good repute of the listed sponsors and sender did not support actual malice claim). Although Appellant did not contact Gossfeld, it did consult more than one source in preparation for its story, per its described research protocol of obtaining three primary sources, and there is no evidence, based upon the sworn statements of the individuals Appellant did contact and its position on “unofficial statements,” that Appellant knew that its sources were unreliable or had serious doubts about their reliability. Cf. Harte-Hanks, 491 U.S. at 692, 109 S.Ct. at 2698. Because the record indicates that Lazure did check with the FBI, albeit unofficially, and that neither O’Reilly nor Lazure doubted the credibility of the statements made by their three primary sources at the time that the Broadcasts were made, there is no evidence that Appellant purposefully avoided the truth, and, therefore, Appellee’s actual malice argument on this point fails. Cf. id. (holding that reliance on single, unreliable source supported finding of purposeful avoidance). Statements Appellee claimed that the challenged statements were made with actual malice. Appellee’s issues with regard to the challenged statements pertain to: (1) refusal to obey orders; (2) Yassin Kadi; (3) Sami Al-Arian; and (4) O’Reilly’s assertion of “the truth.” We will also address the remaining portions of the challenged statements within this section. (1) Refusal To Obey Orders Appellee’s general contention is that he was not ordered, and so did not refuse, to secretly record other Muslims. He asserts that Appellant knew that Ap-pellee had expressed procedural misgivings with regard to wearing a concealed recording device, that he never refused any order to wear one or to record telephone conversations, and that he never “cited any religious reasons for not wanting to surreptitiously record other Muslims.” He also claims that Appellant knew that he was expressly ordered not to wear a wire by his Dallas FBI superiors and that, although Appellant knew all of this information at the time of the Broadcasts, “they disregarded it, at the expense of the veracity of the information they conveyed.” In his response to Appellant’s summary judgment motion, Appellee contended that Appellant stated that he refused “to obey orders to surreptitiously record fellow Muslims with respect to ongoing terrorism investigations” and that the refusal-to-wear-a-wire statements were made with actual malice because Appellant was “aware that the FBI had a hierarchy in how it conducted investigations.” Refusal Statements During the three Broadcasts, O’Reilly indicated that, with regard to FBI terrorism investigations, there were charges that Appellee “refused to wear a recording device” [Part of Statement Three], that there were eyewitnesses who said Appellee “refused to wear a wire” [Part of Statement Eleven], that Wright and Flessner said Appellee “declined to secretly tape ...” [Part of Statement Four], and that another agent had accused Appellee “of refusing to record other Muslims who the FBI was investigating” [Part of Statement Six]. O’Reilly made the statement, “The Tampa office in the Al-Arian case asked [Ap-pellee] to wear a wire. He declined.” [Part of Statement Twelve]. He reiterated, “This is [Appellee] who refused to record Sami Al-Arian (ph). So that’s what the Tampa people say,” [Part of Statement Nine] and, at the conclusion of the third broadcast, stated, “The truth is, I believe your two agents here, the guy wouldn’t tape other Muslims. That’s the truth. And he wasn’t disciplined” [Part of Statement Nine] and opined that Appellee should have been disciplined. Procedural Misgivings O’Reilly’s deposition and Lazure’s affidavit, deposition, and notes reveal nothing about any pre-Broadcast knowledge of Ap-pellee’s asserted procedural misgivings. In the March 6 broadcast, Vincent indicated that one of Appellee’s stated reasons for refusing was that he was afraid that threats would be made on his life if he did it and that the FBI could not protect him. There is no evidence in the record to show that O’Reilly was aware of this misgiving, or any other, prior to the Broadcasts. FBI Decision-Making Hierarchy And Orders Appellee claims that O’Reilly understood that the FBI worked within a hierarchy. As evidence that O’Reilly’