Block v. Tanenhaus, 16-30966

• Citation: 867 F.3d 585
• Decision Date: 15 August 2017
• Docket Number: No. 16-30966,16-30966
• Parties: Walter BLOCK, Plaintiff–Appellant, v. Sam TANENHAUS; Jim Rutenberg; New York Times Company, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

867 F.3d 585

Walter BLOCK, Plaintiff–Appellant,

v.Sam TANENHAUS; Jim Rutenberg; New York Times Company, Defendants–Appellees.

No. 16-30966

United States Court of Appeals, Fifth Circuit.

FILED August 15, 2017

Ward F. Lafleur, Marc Joseph Mandich, Mahtook & Lafleur, L.L.C., Lafayette, LA, for Plaintiff–Appellant.

Loretta Gallaher Mince, Esq., Alysson Leigh Mills, Esq., Fishman Haygood, L.L.P., New Orleans, LA, for Defendants–Appellees.

Before SMITH, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:

Plaintiff-appellant Walter Block appeals the dismissal of his defamation and false light claims against the New York Times and two of its authors. The district court dismissed his claims under Louisiana's anti-SLAPP statute, Article 971, finding that Block failed to create a genuine issue of fact as to falsity, fault, and defamatory meaning, which are essential elements of his claims. Block appeals, arguing that the district court erred by applying Article 971 and by determining under Article 971 that he failed to create a fact issue as to each of the elements of his claims. Because Block has created a fact issue, we REVERSE the dismissal of his claims and REMAND for further proceedings consistent with this opinion.

I.

Block is 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. He alleges 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 alleges 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 in a paragraph that read as follows:

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. "Woolworth's had lunchroom counters, and no blacks were allowed," he said in a telephone interview. "Did they have a right to do that? Yes, they did. No one is compelled to associate with people against their will."

This paragraph appeared in the context of a discussion about the links between the Paul family and the Mises Institute, which questioned Senator Rand Paul's ability to distance himself from unpopular positions taken by Mises Institute scholars.¹

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 argues that the district court erred by applying Article 971 and, alternatively, that he created a fact issue as to each element of his claims.

II.

The applicability of Article 971 is a question of law subject to de novo review. Id. at 220. "Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law." Gasperini v. Ctr. for Humanities, Inc. , 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). If there is a "direct collision" between a state substantive law and a federal procedural rule that is within Congress's rulemaking authority, federal courts apply the federal rule and do not apply the substantive state law. All Plaintiffs v. All Defendants , 645 F.3d 329, 333 (5th Cir. 2011).

Block argues 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 applicability of state anti-SLAPP statutes in federal court is an important and unresolved issue in this circuit.² Unfortunately for Block, his arguments against application of Article 971 have been forfeited. Each of them was either determined to be forfeited in his prior appeal or is now 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); Lindquist v. City of Pasadena , 669 F.3d 225, 239 (5th Cir. 2012) (holding that "an issue that could have been but was not raised on appeal is forfeited" and may not be revisited on remand by the district court or in a subsequent appeal). Accordingly, as in the prior appeal of this case and as in Lozovyy , we assume without deciding that Article 971 applies. See Block , 815 F.3d at 221 ; Lozovyy , 813 F.3d at 582–83.

III.

Our review of a dismissal under Article 971 is de novo .

Henry , 566 F.3d at 169. "[A] non-movant's burden in opposing an Article 971 motion to strike is the same as that of a non-movant opposing summary judgment under Rule 56." Block , 815 F.3d at 221. Thus, Block must demonstrate that there is a genuine issue of material fact as to falsity, fault, and defamatory meaning in order to show that the district court should not have granted the NYT's motion to dismiss under Article 971. See id. at 221–22.

A.

A statement is actionably false if it "would have a different effect on the mind of the reader from that which the pleaded truth would have produced." Masson v. New Yorker Magazine, Inc. , 501 U.S. 496, 517, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991). Inaccuracy in a quotation is not actionable "unless the alteration results in a material change in the meaning conveyed by the statement." Id. On the other hand, "an exact quotation out of context can distort meaning, although the speaker did use each reported word." Id. at 515, 111 S.Ct. 2419. Thus, falsity is determined not only by the words in a purported quotation, but also "by reference to the meaning a statement conveys to a reasonable reader." Id. Under Louisiana law, a court "must consider the entirety of a statement in determining whether the statement is actionable." Sassone v. Elder , 626 So.2d 345, 352 (La. 1993).

Block argues that, although he used the words attributed to him by the NYT, there is 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." Block states that he used the words "not so bad" in a context that showed he was assessing the counterfactual and ahistorical scenario of slavery in the absence of any coercion rather than chattel slavery. He points out that the deprivation of personal autonomy is antithetical to the libertarian views he expressed. In sum, Block believes that his statements underscored the importance of free association and condemned chattel slavery precisely because it was involuntary, but that the NYT quoted him out of context to make it appear that he considered chattel slavery "not so bad."

Because the omission of context can distort the meaning of a direct quotation, there is a genuine fact issue as to whether the article misrepresented Block's statements. See Masson , 501 U.S. at 515, 111 S.Ct. 2419 ; see also Price v. Stossel , 620 F.3d 992, 998, 1003 (9th Cir. 2010) (holding that there was a jury question as to falsity when a television broadcast used video clips of a pastor describing a wealthy man with a spiritually unfulfilled life because the original context of the pastor's statements indicated he was discussing a hypothetical individual but the context in the broadcast suggested he was discussing himself); Sassone , 626 So.2d at 355 (suggesting that there was a jury question as to falsity when a television broadcast used a district attorney's allegedly hypothetical statement in a context that suggested he was assessing the actual conduct of a specific criminal defendant, but ultimately deciding on other grounds). If, as Block has pleaded, he stated during the interview...