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The Daily Commentary (sample)

Sample case reviewed on August 23, 2017.
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Block v. Tanenhaus No. 16-30966

Before SMITH, ELROD, and HAYNES, Circuit Judges.

REVERSED and REMANDED. (August 15, 2017).

Posted in Anti-SLAPPDefamation


Walter Block, an economics professor who holds the Harold E. Wirth Eminent Scholar Endowed Chair in Economics at Loyola University and is an Adjunct Scholar at the Mises Institute, alleged that, consistent with his published writings and his self-described libertarian views, he articulated the following position during an interview with the New York Times (NYT):

Free association is a very important aspect of liberty. It is crucial. Indeed, its lack was the major problem with slavery. The slaves could not quit. They were forced to "associate" with their masters when they would have vastly preferred not to do so. Otherwise, slavery wasn't so bad. You could pick cotton, sing songs, be fed nice gruel, etc. The only real problem was that this relationship was compulsory. It violated the law of free association, and that of the slaves' private property rights in their own persons. The Civil Rights Act of 1964, then, to a much smaller degree of course, made partial slaves of the owners of establishments like Woolworths.

Block further alleged that the NYT misrepresented his statements in an article that attributed racist views to libertarian scholars and discussed how ties with libertarian thinkers would impact Senator Rand Paul's potential presidential candidacy. The NYT article quoted Block twice, first as "[o]ne economist" and later by name as "Walter Block." The first quotation appeared in the immediate context of the statement that some Mises Institute scholars "have championed the Confederacy." It noted that "[o]ne economist, while faulting slavery because it was involuntary, suggested in an interview that the daily life of the enslaved was 'not so bad - you pick cotton and sing songs.'" Roughly eight pages or fifty-three paragraphs later, the article quoted Block by name. Block sued the NYT, and the NYT made a special motion to strike under Article 971, which is Louisiana's anti-SLAPP statute. The District Court granted the NYT's motion and dismissed the complaint. While Block's appeal was pending, the Fifth Circuit clarified that "Article 971's 'probability of success' standard does not permit courts to weigh evidence, assess credibility, or resolve disputed issues of material fact." Lozovyy v. Kurtz, 813 F.3d 576, 586 (5th Cir. 2015). Accordingly, the Fifth Circuit remanded the case to the District Court for application of the newly clarified Article 971 standard. Block v. Tanenhaus, 815 F.3d 218, 221 (5th Cir. 2016).

On remand, the District Court again granted the NYT's Article 971 motion, dismissing Block's claims on the ground that Block failed to create genuine issues of fact as to falsity, fault, and defamatory meaning, which were essential elements of his defamation and false light claims. In this appeal, Block's second, he argued that the District Court erred by applying Article 971 and, alternatively, that he created a fact issue as to each element of his claims. Block argued that Article 971 is not applicable in Federal Court because it is procedural and because, even if it is substantive, it is in direct collision with the Federal Rules of Civil Procedure. The Fifth Circuit acknowledged that the applicability of state anti-SLAPP statutes in Federal Court is an important and unresolved issue in this Circuit. But, the Court determined that his arguments against application of Article 971 had been forfeited. Each of them was either determined to be forfeited in his prior appeal or was currently forfeited because he failed to raise them in his prior appeal. See Block, 815 F.3d at 221 n.3 (holding that Block forfeited his arguments related to burden shifting, discovery, and attorney's fees).

However, the Fifth Circuit was convinced that Block was able to demonstrate that there was a genuine issue of material fact as to falsity, fault, and defamatory meaning, and that consequently, the District Court should not have granted the NYT's motion to dismiss under Article 971. Thus, the Court reversed the District Court's judgment of dismissal under Article 971. Block argued that, although he used the words attributed to him by the NYT, there was a genuine issue of material fact as to whether the NYT distorted the meaning of his statements by omitting crucial context. According to Block, the NYT communicated that he did not object to chattel slavery and implied that he was a racist when it stated, "Walter Block, an economics professor at Loyola University in New Orleans who described slavery as 'not so bad,' is also highly critical of the Civil Rights Act." Because the omission of context can distort the meaning of a direct quotation, the Court agreed that there was a genuine fact issue as to whether the article misrepresented Block's statements. The Court theorized: "If, as Block has pleaded, he stated during the interview that slavery was 'not so bad' except for its involuntariness, a reasonable jury could determine that the NYT's decontextualized quotation falsely portrayed him as communicating that chattel slavery itself was not problematic - exactly the opposite of the point that he says he was making." The NYT offered three arguments to the contrary, but none was sufficient to merit dismissal. First, the NYT argued that it was correct in stating that Block described chattel slavery as "not so bad." Second, the NYT argued that it communicated Block's objection to coercion by stating earlier in the article that an unnamed economist, "while faulting slavery because it was involuntary, suggested in an interview that the daily life of the enslaved was 'not so bad [].'" Third, the NYT argued that Block's pleaded truth would have had the same "effect on the mind of the reader" as the message that the article conveyed. The Court reasoned that NYT's first two arguments could not be resolved on an Article 971 motion to dismiss at this stage, and its final argument misstated the law. Accordingly, dismissal was not justified on the ground that Block failed to create a fact issue as to falsity.

Because Block is a public figure, the fault element of his claims requires proof of actual malice, which is defined as knowledge of falsity or reckless disregard for the truth. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). Block argued that there is a fact issue as to actual malice wherever a news source materially alters the meaning of a quotation. The NYT did not dispute this characterization of the law. Rather, it contended that it did not materially alter the meaning of the quotation. Similarly, the District Court based its determination that Block failed to create a fact issue as to actual malice on its view that the NYT did not change the meaning of the quotation but accurately communicated Block's views. However, because the Court found there to be a genuine issue of material fact as to whether the NYT altered the meaning of the quotation, it resolved that the District Court's determination and the NYT's argument depended on a factual premise that had not yet been established, and dismissal for failure to create a fact issue as to actual malice was premature.

Under Louisiana law, a statement is defamatory if it "tends to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Sassone v. Elder, 626 So. 2d 345, 352 (La. 1993). Block's argument was that the article was defamatory per se because communicating that someone views chattel slavery as "not so bad" has a natural tendency to harm that person's reputation. The NYT did not dispute that describing someone as believing that chattel slavery is "not so bad" has a natural tendency to harm that person's reputation, but instead argued that the article made no such accusation. The Fifth Circuit explained that the unattributed quotation did not eliminate the fact issue as to whether a reasonable reader would understand the article to describe Block as having accepted chattel slavery. It being undisputed that such a description of Block would be defamatory, dismissal for failure to create a genuine fact issue as to whether the article had a defamatory meaning was premature.

On Appeal from the United States District Court for the Eastern District of Louisiana (Ivan L. R. Lemelle).
Attorney for Appellant - Marc Joseph Mandich, Lafayette, LA
Attorney for Appellee - Loretta Gallaher Mince, New Orleans, LA


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