Original Brief: Walter Block v. Sam Tanenhaus, Jim Rutenberg, New York Times Company

Case: 15-30459
Document: 00513124319
Page: 1
Date Filed: 07/21/2015
CASE NO. 15-30459

____________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________________________________
WALTER BLOCK,
Plaintiff-Appellant,
v.
SAM TANENHAUS; JIM RUTENBERG; NEW YORK TIMES COMPANY,
Defendants-Appellees
____________________________________________
On Appeal from the United States District Court
for the Eastern District of Louisiana
Civil Action No. 2:14-CV-02200
_____________________________________________
ORIGINAL BRIEF OF PLAINTIFF-APPELLANT,
WALTER BLOCK
_____________________________________________
WARD F. LAFLEUR - I.D. NO. 01770
MARC J. MANDICH - I.D. NO. 35402
Mahtook & Lafleur, LLC
600 Jefferson Street, Suite 1000 (70501)
Post Office Box 3089
Lafayette, Louisiana 70502
Telephone: 337-266-2189
Facsimile: 337-266-2303
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CERTIFICATE OF INTERESTED PERSONS

Pursuant to 5th Cir. R. 28.2.1, the undersigned counsel of record certifies that
the following listed persons and entities as described in the fourth sentence of Rule
28.2.1 have an interest in the outcome of this case. These representations are made
in order that the judges of this Court may evaluate possible disqualification or
recusal.
1.
Walter E. Block, Ph.D. (Plaintiff-Appellant)
2.
The New York Times Company (Defendant-Appellee)
3.
Sam Tanenhaus (Defendant-Appellee)
4.
Jim Rutenberg (Defendant-Appellee)
5.
Ward F. Lafleur, Mahtook & Lafleur, LLC (Counsel for Appellant)
6.
Marc J. Mandich, Mahtook & Lafleur, LLC (Counsel for Appellant)
7.
Loretta G. Mince, Fishman Haygood Phelps Walmsley Willis &

Swanson, LLP (Counsel for Appellees)
8.
Alysson L. Mills, Fishman Haygood Phelps Walmsley Willis &

Swanson, LLP (Counsel for Appellees)
9.
Honorable Ivan L.R. Lemelle, United States District Judge, United

States District Court for the Eastern District of Louisiana
10.
Honorable Karen Wells Roby, United States Magistrate Judge, United

States District Court for the Eastern District of Louisiana
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/S/ WARD F. LAFLEUR

WARD F. LAFLEUR
MARC J. MANDICH
COUNSEL FOR PLAINTIFF-APPELLANT,
WALTER BLOCK
ii
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STATEMENT REGARDING ORAL ARGUMENT

Appellant, Walter Block (Professor Block), respectfully requests oral
argument. Professor Block believes oral argument will assist the Court in
understanding and deciding the issues in this case because this case presents multiple
unresolved and intersecting issues of both Louisiana and Federal statutory,
Constitutional and jurisprudential law. Specifically, Appellant respectfully asks this
Court to clarify and state the law on issues including but not limited to:
1.
The burden of proof imposed upon a plaintiff when opposing a Special

Motion to Strike under Louisiana Code of Civil Procedure article 971;
2.
Whether the burden of proof under Louisiana Code of Civil Procedure

article 971, as interpreted by Louisiana courts, conflicts with the Federal
Rules of Civil Procedure when article 971 is applied in federal court
and, consequently, renders article 971 inapplicable in federal court;
3.
Whether the District Courts interpretation of Louisiana jurisprudence

defining and limiting the theory of defamation by implication was
properly applied in this case;
4.
Whether the District Courts application of the Louisiana jurisprudential

theory of defamation by implication contravenes controlling precedent
from the Supreme Court of the United States on the elements of
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defamatory meaning and falsity(in a defamation action) when the

defamatory statement involves misquotation or quotation out of context;
5.
Whether the District Court properly applied the legal standard for
actual malice as interpreted by the Supreme Court of Louisiana and
the Supreme Court of the United States.
iv
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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . i
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vii
STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW. . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
I.
Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
II.
The District Court erred in applying article 971. . . . . . . . . . . . . . . . 14
III.
A.
The article 971 burden is equivalent to the burden imposed on a

non-movant opposing a motion for summary judgment
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
B.
Federal courts are not to apply state laws such as article 971 that
directly collide with the Federal Rules of Civil Procedure
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
The District Court erred as a matter of law when it concluded Professor

Block could not sustain his claims under Louisiana law
.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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A.
The District Court committed legal error when it held the

statement Professor Block described slavery as not so bad is
incapable of defamatory meaning because quoting someone as
supporting slavery is defamatory per se and not mere defamation
by implication
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
B.
The District Court committed legal error when it held a direct

quotation cannot falsify meaning and thus cannot form the basis
of a defamation action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
C.
The District Court committed legal error when it held the

distorted quotations did not, on their face, present a triable issue
of malice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
vi
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TABLE OF AUTHORITIES
Cases
Pages
3M Co. v. Boulter, 842 F. Supp. 2d 85 (D.D.C. 2012). . . . . . . . . . . . . . . . . . . . . . 21

Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328 (D.C. Cir. 2015)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 21, 22, 23
Boley v. Atl. Monthly Grp., 950 F. Supp. 2d 249 (D.D.C. 2013). . . . . . . . . . . . . 20
Bosley Med. Inst., Inc. v. Kremer, 403 F.3d 672 (9th Cir. 2004).. . . . . . . . . . . . . . 12
Britton v. Hustmyre, 2009-0847 (La. App. 1 Cir. 2010), 2010 WL 1170222)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 51
Brown v. Wimberly, 477 F. Appx 214 (5th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . 14
Costello v. Hardy, 2003-1146 (La. 1/21/04), 864 So. 2d 129. . . . . . . . . . . . . 30, 55
Culbertson v. Lykos, No. 13-20569, 2015 WL 3875815 (5th Cir. June 22, 2015)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Darden v. Smith, 879 So. 2d 390 (La. App. 3 Cir. 2004). . . . . . . . . . . . . . . . . . . . 19
Dileo v. Davis, No. CIV.A. 89-2485, 1995 WL 5908 (E.D. La. 1995). . . . . . . . . 60
Estiverne v. Times Picayune, LLC, 2006-0571 (La. App. 4 Cir. 2006), 940
So. 2d 858. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Fein v. Kesterson, 476 F. App'x 673 (9th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . 13
Fitzgerald v. Tucker, 737 So. 2d 706 (La. 1999). . . . . . . . . . . . . . . . . . . . . . . 32, 51
GATX Aircraft Corp. v. M/V Courtney Leigh, 768 F.2d 711 (5th Cir. 1985). . . . 13
Guilbeaux v. Times of Acadiana, Inc., 94-1270 (La. App. 3 Cir. 8/9/95), 661 So. 2d
vii
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1027 writ denied, 95-2942 (La. 3/29/96), 670 So. 2d 1238. . . . . . . . . . . . . 29

Henry v. Lake Charles American Press, LLC, 566 F.3d 164 (5th Cir. 2009)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14, 17
In re Baxter, NO. 01-00026, 2001 WL 34806203 (W.D. La. 2001) . . . . . . . . . . . .58
Kennedy v. Sheriff of E. Baton Rouge, 2005-1418 (La. 7/10/06), 935
So. 2d 669. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Louisiana Crisis Assistance Ctr. v. Marzano Lesvenich, 827 F. Supp. 2d 668 (E.D.
La. 2012) order vacated on other grounds, 878 F. Supp. 2d 662 (E.D. La.
2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Lozovvy v. Kurtz, No. CIV.A. 13-424, 2015 WL 331804
(M.D. La. Jan. 26, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 17, 19, 55
Manufactured Home Communities, Inc. v. Cnty. of San Diego, 655 F.3d 1171
(9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Marshall Investments Corp. v. R.P. Carbone Co., No. CIV.A. 05-6486, 2006 WL
2644959 (E.D. La. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 111 S.Ct. 2419, 115 L.Ed. 2d
447 (1991). . . . . . . . . . . . . . . . . . . . . . . 11, 31, 41, 43, 44, 45, 46, 50, 56, 67
Melius v. Keiffer, 980 So. 2d 167 (La. App. 4 Cir. 2008).. . . . . . . . . . . . . . . . . . . 16
Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832 (9th Cir.2001). . . . . . . . . . . . . . . 20
Mitchell v. Hood, No. 14-30537, 2015 WL 3505481 (5th Cir. June 4, 2015)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 23
Piping Rock Partners, Inc. v. David Lerner Associates, Inc., 946 F. Supp. 2d 957
(N.D. Cal. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Price v. Stossel, 620 F.3d 992 (9th Cir. 2010). . . . . . . . . . . . . . 13, 20, 42, 43,44, 45
viii
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Rogers v. Ash Grove Cement Co., 34,934 (La. App. 2 Cir. 2001),
799 So. 2d 841.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Sassone v. Elder, 626 So. 2d 345 (La. 1993)
. . . . . . . . . . . . . . . . . 11, 16, 33, 34, 35, 36, 37, 38, 44, 45, 46, 47, 51, 57, 58
Schaefer v. Lynch, 406 So. 2d 185. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Schroeder v. Bd. of Sup'rs of Louisiana State Univ.,
591 So. 2d 342 (La. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393,
130 S.Ct. 1431, 176 L.Ed.2d 311 (2010). . . . . . . . . . . . . . . . . . . . . . . . 13, 22
Sibbach v. Wilson & Co., 312 U.S. 1, 61 S. Ct. 422,
85 L. Ed. 479 (1941). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Starr v. Boudreaux, 978 So. 2d 384 (La. App. 1 Cir. 2007).. . . . . . . . . . . . . . . . . 17
Thomas v. Busby, 95-1147 (La. App. 3 Cir. 1996), 670 So. 2d 603.. . . . . . . . . . . 32
Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000). . . . . . . . . . . . . 31, 32
Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003). . . . . . . . . . . . . . . 12
Zamani v. Carnes, 491 F.3d 990 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Statutes:
28 U.S.C. 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. 1332. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Cal. Civ. Proc. Code 425.16.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
D.C. Code 16-5502.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Fed. R. App. Pro. 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Fed. R. Civ. Pro. 56. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,13, 14, 15, 17, 21, 22
ix
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La. Code Civ. Pro. art. 966. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

La. Code Civ. Pro. art. 967. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
La. Code Civ. Pro. art. 971
. . . . . 2, 7, 8, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 55, 58, 59, 61
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STATEMENT OF JURISDICTION
The District Court properly exercised diversity jurisdiction over the
underlying action, No. 13-02200, pursuant to 28 U.S.C. 1332. Complete diversity
exists as Plaintiff-Appellant, Walter Block (Professor Block), is a domiciliary of
the State of Louisiana; Defendant-Appellee, The New York Times Company (the
N.Y. Times), is incorporated in and has its principle place of business in the State
of New York; and Defendants-Appellees, Sam Tanenhaus and Jim Rutenberg, are
domiciliaries of the State of New York. The amount in controversy exceeds $75,000
as pled by Professor Block in his Original Complaint.1
This Court has jurisdiction over this appeal pursuant to 28 U.S.C. 1291 and
Federal Rule of Appellate Procedure 3 as an appeal of a final decision of the District
Court, which entered Final Judgment in this matter on May 6, 2015 and Amended
Final Judgment on May 11, 2015.2 This appeal was timely pursuant to Federal Rule
of Appellate Procedure 4; Professor Block filed Notice of Appeal within 30 days of
entry of both judgments on May 19, 2015.3
ROA.5-6. Neither complete diversity nor the amount in controversy was contested.
ROA.414 & 415.
ROA.417-18.
1
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STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

1.
Did the District Court apply the correct standard of review applicable under
Louisiana Code of Civil Procedure article 971 or, in the alternative, did the
District Court err in applying article 971 in the first place?
2.
Did the District Court commit legal error when it found Professor Block failed
to prove defamatory meaning or, in the alternative, could show no more than
defamatory implication unactionable under the circumstances?
3.
Did the District Court commit legal error when it determined a direct
quotation, despite the context in which it is used, cannot be false?
4.
Did the District Court commit legal error when it held Professor Block could
not prove malice?
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STATEMENT OF THE CASE

On January 25, 2014, the N. Y. Times newspaper published an article entitled
Rand Pauls Mixed Inheritance (the Article) and co-authored by Sam Tanenhaus
and Jim Rutenburg.4 The Article purports to analyze the nature of Rand Pauls
libertarian supporters and the viability of his candidacy for president in light of his
libertarian views, or at least that is what is alleged by the N.Y. Times. One of the
supporters mentioned in the Article is Walter Block, an economics professor at
Loyola University - New Orleans. The Article states the following regarding
Professor Blocks views and beliefs:
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. Woolworths 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.5
The statement in the Article about the views/beliefs of Block was certainly a
surprise to him and those who have read his scholarly work, since Professor Block
has devoted most of his academic career to promoting freedom - the antithesis of
ROA.73-87 & 72 (Tanenhauss Affidavit acknowledging authorship and publication in

the N.Y. Times). Hereinafter, the defendants are collectively referred to as the N.Y.
Times.
5
ROA 81 & 52-55 (emphasis added).

3
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slavery. In fact, much of the criticism thrown at Professor Block over the years has
been premised on the assertion that he is a dangerous proponent of too much freedom,
hardly a view that would be consistent with the statement that slavery is not so bad.
What makes it even more surprising is that Professor Block has previously authored
peer-reviewed articles on various issues surrounding the topic of slavery, so his
beliefs are in clear view of the public and would certainly have been accessible via
Google search to any reporter with a computer.
More specifically and unsurprisingly since he is a libertarian, Professor Block
is and always has been a bitter opponent of slavery, having gone so far as to call for
reparations to descendants of slaves from the property owners who reaped the
benefits of the slaves stolen labor.6 He has labeled slave owners as people guilty of
theft and kidnapping, among other heinous crimes.7 Indeed, Professor Block wrote,
[w]ere justice fully done in 1865 these people [i.e., slave owners] would have been
incarcerated, and that part of the value of their holdings attributed to slave labor
ROA.290-325. See, particularly, Walter Block, On Reparations to Blacks for Slavery,

Human Rights Review, July-Sept. 2002, p.55); Spring 2001 issue of the Journal of Markets and
Morality (pp. 83-93). Professor Block limits his call for reparations by stating that only direct
descendants of slaves should receive reparations and only from descendants of slave owners. He
differs from most of those calling for reparations in that he does not believe that the reparations
should be at tax payer expense.
7
Id.
4
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would have been turned over to ex-slaves.8

So, with Professor Blocks views so clearly articulated and so easily accessible,
the question becomes how could the N.Y. Times possibly support the assertion that
Professor Block described slavery as not so bad. According to pleadings filed
below, the N.Y. Times maintains that Blocks actual views are captured in a blog-post
pre-dating the Article, in which he wrote:
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 wasnt 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.9
Of course, any rational person reading the above quotation would realize the
statement being made about slavery not being so bad contains an indispensable
qualifier - that being the qualifier of free association. As teachers often do,
Professor Block used a pedagogical tool to create a theoretical construct where
8
ROA.291.
ROA.93-96 (the quote appears on ROA.94) (emphasis added) & 47-67 (N.Y. Times
Special Motion to Strike, in which the N.Y. Times repeatedly argues the Article accurately
captures Professor Blocks statements in interview with Tanenhaus and does not differentiate
Professor Blocks interview statements from those reflected in the above blog-post).
5
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slavery can exist along with free association. In this theoretical construct, a slave is
free to leave, depart, and/or otherwise not take part in the attributes of a slave system.
In such a theoretical construct, the slave does not have to pick cotton, sing songs, or
eat gruel since the slave is free to disassociate himself/herself with the slave owner
at any time. Of course, this theoretical construct has no semblance to what actually
existed in the United States before the Civil War. But, the purpose of constructing
this theoretical concept was to drive home that the true evil of slavery was the lack
of freedom and not necessarily the incidents associated with the institution, which
aligns perfectly with the views of perhaps the most well-noted Abolitionist of that
time, Frederick Douglass.10
What the N.Y. Times actually published was something totally different from
what Professor Block espoused in the blog-post. What they published was that Block
10
Speaking essentially as an expert since he did have first hand experience, Frederick
Douglass wrote of his own experience with slavery:
My feelings were not the result of any marked cruelty in the treatment I received;
they sprung from the consideration of my being a slave at all. It was slavery not its
mere incidents that I hated. . . . The feeding and clothing me well, could not atone
for taking my liberty from me. (see ROA.256)
Thus, taking the N.Y. Times view of Professor Blocks words to its logical conclusion, they
necessarily would be accusing Frederick Douglass of supporting slavery as well since Professor
Blocks words merely channeled Douglass self-same viewpoint. Of course, such an accusation
against Douglass would be patently ridiculous. It is equally ridiculous when levied against Professor
Block since he has repeatedly vilified the institution of slavery in publicly available works and in no
uncertain terms. ROA.290-325.
6
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believed slavery was not so bad with no qualifier whatsoever, leaving the reader of
the Article to believe Professor Block was talking about the slavery system that
existed in the United States in the 19th century. It was omission by design. By
ignoring the indispensable qualifier (the presence of free association),11 the N.Y.
Times succeeded in portraying Professor Blocks views to the public in the exact
opposite fashion of what he truly believed. It was cut-and-paste sleight of hand at its
finest (or worst - depending on ones point of view). They hit him where it hurt the
most. They took a person with a lifelong devotion to freedom and made him look like
a hardcore racist. The N.Y. Times seized Professor Blocks words and used them as
a weapon against him to convey a meaning entirely their own creation.
When the N.Y. Times failed to publish a retraction, Professor Block filed his
Original Complaint on September 23, 2014, asserting claims for defamation and false
light invasion of privacy.12 On March 5, 2015, in lieu of an answer, the N.Y. Times
filed a Special Motion to Strike under Louisiana Code of Civil Procedure article
971, asserting Professor Block could not sustain his burden of proving the statements
in the Article were defamatory, false or made with actual malice and thus seeking
11
The necessity of this qualifier to Professor Blocks meaning is evidenced by his use of
the word otherwise, which indisputably links the language that follows to the conditional
premise he constructed.
12
ROA.5-13.
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dismissal thereof.13
In opposition, Block submitted substantial evidence to establish that the
reading public (including the president of his own university and other professors at
the school) interpreted the Article in the exact way argued herein - that is, the reading
public felt the Article portrayed Professor Block as a supporter of slavery as it existed
in the United States prior to the Civil War.14 There were requests for reprimand,
firing, and even threats of physical violence.15 In short, the reading public felt
Professor Block was a racist. Also, Professor Block provided the Court with a
substantial body of law supporting his legal position.16
The District Court signed its Order and Reasons for Judgment granting the
N.Y. Times Motion on April 16, 2015.17 In its Order and Reasons, the District Court
held Professor Block failed to sustain his burden of proof on the elements of
defamatory meaning, falsity and malice, largely adopting the N.Y. Times arguments
13
ROA.44-68.
14
See ROA.287-89, 326-27 & 330-31.
15
Id.
16
ROA.261-86 (Opposition); ROA. 287-351 (Attachments).
17
ROA.399-412.
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without addressing or analyzing the responsive arguments made by Professor Block.18

The Court concluded the N.Y. Times pre-contextual quotations (1) are incapable of
defamatory meaning, (2) are a truthful rendition of Professor Blocks views, and
because the quotations contain no falsehood, (3) were not made with actual malice.19
The District Court also awarded the N.Y. Times reasonable attorneys fees in
connection with the Motion.20 From that Judgment, Professor Block timely filed a
Notice of Appeal.21
SUMMARY OF THE ARGUMENT
Since the N.Y. Times admits the blog-post on page 6, supra, accurately reflects
Professor Blocks interview statements to Tanenhaus, the facts of this case are largely
not in dispute. Rather, the central dispute is whether the Article accurately
characterized the views captured in the blog-post. The District Court erroneously
concluded the Articles statements cannot be considered false because Professor
Block was quoted directly. The law does not support the District Court using an
18
ROA.319-412.
19
ROA.399-412.
20
Id. Should the District Courts decision be reversed, the award of attorneys fees must
be reversed as well. Also, should this Court determine article 971 should not have been applied,
but the N.Y. Times is still entitled to dismissal of Professor Blocks claims under Rule 56, the
award of attorneys fees must still be set aside.
21
ROA.417-18.
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individuals exact words does not provide a shield to a defamation action when the
words used do not accurately convey the speakers meaning. The United States
Supreme Court recognizes to hold otherwise would have devastating consequences
journalists would be free to fabricate storylines, making people far more reluctant to
communicate with the media. Indeed, the District Courts holding would allow media
defendants to divorce the spoken word from context and, simply through the use of
quotation marks, escape liability even if the quoted words completely misrepresent
the speakers meaning. Not only should this precedent not stand, it actually flies in
the face of established law.
Before the erroneous application of Louisiana and federal defamation law can
be addressed, however, this Court must first define the burden of proof applicable to
defendants motion. Professor Block contends Louisiana courts apply a burden that
does not differ from the burden on a non-movant opposing a motion for summary
judgment. Alternatively, Professor Block contends, if the article 971 standard is more
heightened than the summary judgment standard, United States Supreme Court
jurisprudence prohibits its application in federal court. The District Court held article
971 applied but failed to address the burden imposed and whether that burden
contravenes federal law.22
22
ROA.401-03.
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When viewed under the legal standard that must be applied herein, the District
Courts conclusions on the merits do not withstand legal scrutiny. That is, the law
required only that Professor Block establish, with the pleadings and evidence viewed
in the light most favorable to him with all dispute resolved in his favor, a genuine
issue of material fact as to the statements intentionally false and defamatory
meaning.
As to defamatory meaning, the District Court erroneously blended its analysis
of whether the statements about Professor Block were defamatory with its analysis
of whether the statements were false. Relying on the fact that Professor Block was
quoted directly, the District Court determined the statements either (1) were incapable
of defamatory meaning or, if taken out of context, (2) constituted, at most,
defamatory implication which is not actionable under the circumstances.23 The
notion that a direct quotation used out of context is incapable of defamatory meaning
or, at most, constitutes mere defamatory implication is belied by both Louisiana and
United States Supreme Court precedent.24 Further, the notion that quoting someone
as having described slavery as not so bad is not defamatory indeed, defamatory
23
ROA.407-09.
24
Sassone v. Elder, 626 So. 2d 345, 354-55 (La. 1993); and Masson v. New Yorker
Magazine, Inc., 501 U.S. 496, 515, 111 S.Ct. 2419, 115 L.Ed. 2d 447 (1991).
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per se is legally unsupportable.

Finally, as to malice, the District Court determined it could not be proven,
essentially as an afterthought without any meaningful analysis.25 That is, the District
Court found Professor Blocks inability to establish falsity in turn precludes him
from establishing malice.26 This conclusion also contravenes Louisiana and United
States Supreme Court precedent, which unequivocally stands for the proposition that,
at the summary stage of litigation, showing a quotation was taken out of context to
falsify meaning is on its own sufficient to show a probability of proving malice. The
probability of proving malice is further bolstered when the publication itself
evidences underlying animus against the defamed individual.
ARGUMENT
I.
Standard of Review
This Court, like Louisiana state courts,reviews de novo a district courts ruling
on an article 971 motion.27 This Court has cited to precedent from the United States
25
ROA.410.
26
ROA.407.
27
Henry v. Lake Charles American Press, LLC, 566 F.3d 164, 169 (5th Cir. 2009) (citing,
as persuasive authority, Zamani v. Carnes, 491 F.3d 990, 994 (9th Cir. 2007); Bosley Med. Inst.,
Inc. v. Kremer, 403 F.3d 672, 676 (9th Cir. 2004); and Vess v. Ciba-Geigy Corp. USA, 317 F.3d
1097, 1102 (9th Cir. 2003)).
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Court of Appeals for the Ninth Circuit as persuasive authority on this point; the Ninth
Circuit has repeatedly stated the granting of an anti-SLAPP motion is reviewed, in its
entirety, de novo.28 It cannot be meaningfully argued any portion of the District
Courts opinion is subject to more heightened review.
Block argues herein, however, that article 971 should not have been applied in
the District Court since it directly collides with Federal Rules of Civil Procedure
56.29 So, in the event this Court decides article 971 should not have been applied, it
must be noted de novo review is nonetheless required. This Court must apply the
same legal standard applicable in the district court, viewing the record and
inferences from the facts in the light most favorable to the nonmovant.30 Stated
differently, Professor Block must have his properly filed allegations taken as true
and must receive the benefit of the doubt when his assertions conflict with those of
the movant.31
28
Id.; see also Fein v. Kesterson, 476 F. App'x 673, 674 (9th Cir. 2012) (citing Price v.
Stossel, 620 F.3d 992, 999 (9th Cir.2010)).
29
See, e.g., Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1337 (D.C. Cir. 2015)
(citing Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393,
39899, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010); and Sibbach v. Wilson & Co., 312 U.S. 1, 14,
61 S. Ct. 422, 426, 85 L. Ed. 479 (1941)).
30
See GATX Aircraft Corp. v. M/V Courtney Leigh, 768 F.2d 711, 714 (5th Cir. 1985);
and Schroeder v. Bd. of Sup'rs of Louisiana State Univ., 591 So. 2d 342, 345 (La. 1991).
31
Schroeder, 591 So. 2d at 345.

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Finally, this Court has also held de novo review applies when reviewing a
district courts interpretation of the Federal Rules of Civil Procedure[.]32 So the
threshold question of whether article 971 directly collides with Rule 56 also
requires de novo review.
II.
The District Court erred in applying article 971

In accordance with previous decisions from this Court,33 the District Court held
article 971 applies in this diversity case.34 Upon deciding article 971 applied, the
District Court observed [t]he next issue is whether [Professor Block] can establish
a probability of success on the defamation and false light claims[,]35 but failed to
address just what probability of success means, despite Professor Blocks wellsupported arguments that the (proper) application of article 971 in both Louisiana and
federal courts is anything but clearly defined.36 The District Courts decision to
bypass this issue is problematic as it leaves litigants to guess what is required by
32
Mitchell v. Hood, No. 14-30537, 2015 WL 3505481, at *2 (5th Cir. June 4, 2015).
33
566 F.3d at 169; and Brown v. Wimberly, 477 F. Appx 214, 216 (5th Cir. 2012).
34
ROA.401-04.
35
ROA.405.
36
ROA.265-67.
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article 971 a potentially outcome determinative issue in this case.37 Two district
courts within this Circuit have observed this Court has not clearly defined the burden
imposed by article 971.38
Professor Block contends article 971 can require no more than a showing of a
genuine issue of fact as to the elements of his claims for two reasons. First, Louisiana
courts do not resolve disputed issues of fact in this posture. Second, federal courts are
not at liberty to apply a more stringent standard than that required by Rule 56.
A.
The article 971 burden is equivalent to the burden imposed on a

non-movant opposing a motion for summary judgment
In Louisiana Crisis Assistance Center v. Marzano Lesvenich, the United States

District Court for the Eastern District of Louisiana observed this Court has not
conclusively determined the critical issue impacting the application of article 971's
probability of success standard i.e., whether it allows the courts to weigh evidence
or requires the courts to deny article 971 motions when there are genuine evidentiary
issues of fact requiring trial.39 The United States District Court for the Middle District
37
Lozovvy v. Kurtz, No. CIV.A. 13-424, 2015 WL 331804 * 10 (M.D. La. Jan. 26, 2015).
38
Louisiana Crisis Assistance Ctr. v. Marzano Lesvenich, 827 F. Supp. 2d 668 (E.D. La.
2012) order vacated on other grounds, 878 F. Supp. 2d 662 (E.D. La. 2012); and Lozovvy, 2015
WL 331804.
39
827 F. Supp. 2d at 679.

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of Louisiana made this same observation in Lozovvy v. Kurtz.40 Left to their own
devices, the two courts came to opposite conclusions regarding the proper standard.
The Lozovvy court found the Louisiana legislature did appear to want some
weighing of the evidence when it passed article 971.41 In contrast, the Lesvenich
court determined article 971 does not allow weighing of evidence it has been
interpreted to impose the same burden necessary for a plaintiff to withstand summary
judgment.42
The approach of the Lesvenich court is the proper approach as it adheres to
Louisiana decisional law interpreting a Louisiana statute. The Lesvenich court
studiously reviewed Louisiana cases on this issue, noting it found no Louisiana
decisions in which the court applying article 971 resolved disputed issues of material
fact in favor of the movant; rather, when Louisiana courts have found disputed
issues of material fact, they have found that a special motion to strike should not be
granted.43
40
Lozovvy at *10-12 (observing this Courts rulings on article 971 conflict with one
another and sometime within the same opinion as to the proper standard). This case is
currently pending on appeal to this Court.
41
Id. at 12.
42
Lesvenich at 678.
43
Id. at 677-78 (citing Estiverne v. Times Picayune, LLC, 2006-0571 (La. App. 4 Cir.
2006), 940 So. 2d 858, 860; Sassone v. Elder, 626 So. 2d 345, 350 (La. 1993); Melius v. Keiffer,
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The Lozovvy court, instead of relying on Louisiana jurisprudence, attempted

to divine the intent of the Louisiana legislature in enacting article 971, stating there
must be a distinct purpose for an article 971 Motion to Strike; otherwise there would
be no point in enacting the statute because the Legislature could have merely relied
on the summary judgment article itself.44 With all due respect to the Lozovvy court,
it perhaps failed to consider the many, substantial advantages conferred on
defendants by article 971 that are not afforded in summary procedure.
First, article 971 requires a defendant to make absolutely no evidentiary
showing of any kind to shift the burden of proof to the plaintiff; rather, all the
defendant must show is the cause of action arises from an act of that [defendant] in
furtherance of the [defendants] right of petition or free speech . . . in connection with
a public issue[.]45 Under both Louisiana and federal summary procedure, the
defendants initial burden is far more substantial, requiring an evidentiary showing
of a lack of prima facie proof for at least one element of the plaintiffs claim.46 Article
980 So. 2d 167 (La. App. 4 Cir. 2008); and Rogers v. Ash Grove Cement Co., 34,934 (La. App. 2
Cir. 2001), 799 So. 2d 841, 849).
44
Lozovvy at *12.
45
La. Code Civ. Pro. art. 971(A)(1); Henry, 566 F.3d at 181; Starr v. Boudreaux, 978 So.
2d 384, 388-89 (La. App. 1 Cir. 2007).
46
La. Code Civ. Pro. art. 966 & 967; and Fed. R. Civ. Pro. 56.
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971 completely relieves defendants of their initial burden on motion for summary
judgment which is clearly a distinct purpose for its enactment.
Second, unless the plaintiff shows good cause on noticed motion, all
discovery is immediately stayed upon the filing of a notice of motion made pursuant
to [article 971]47 and the court makes its determination considering only the
pleadings and supporting and opposing affidavits stating the facts upon which the
liability or defense is based.48 As if relief from any evidentiary burden of proof
whatsoever was not already sufficient, article 971 further entitles a defendant to
prohibit discovery of any kind while forcing the plaintiff to make a prima facie
showing as to each and every element of his or her claim (including the difficult-toprove element of actual malice that requires proof of the defendants actual or
constructive knowledge). Again, this extraordinarily substantial benefit is a complete
stranger to normal summary procedure.
Finally, in the not unlikely event the plaintiff is unable to run the gauntlet
article 971 creates, the defendant shall be awarded reasonable attorney fees and
costs regardless of how close the decision may have been or how narrowly or
47
La. Code Civ. Pro. art. 971(D).
48
La. Code Civ. Pro. art. 971(A)(2).

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technically the defendant was able to escape liability.49 As the word shall indicates,
the award is not subject to the courts discretion.50 This benefit also does not
accompany normal summary procedure.
Thus, again meaning no disrespect to the Lozovvy court, the notion that article
971 would have no distinct purpose if it did not impose a more heightened burden
than normal summary procedure is simply wrong. And, as the Lesvenich court aptly
concluded, Louisiana jurisprudence does not support the proposition that it does
impose a more heightened burden.
In further support of the Lesvenich courts opinion, Professor Block brings this
Courts attention to jurisprudence from the United States Court of Appeals for the
Ninth Circuit interpreting Californias anti-SLAPP statute a statute virtually
indistinguishable from article 971 insofar as it also requires the plaintiff to show a
probability that the plaintiff will prevail on the claim (under the same burdenshifting dynamic and with the same benefits to the defendant) in order for the claim
to survive.51 This Court has relied on Ninth Circuit jurisprudence in the past as
49
La. Code Civ. Pro. art. 971(B).
50
Darden v. Smith, 879 So. 2d 390, 400 (La. App. 3 Cir. 2004).
51
Cal. Civ. Proc. Code 425.16.

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persuasive authority on the application of article 971.52 The Ninth Circuit has
repeatedly held, based on California jurisprudence not unlike the Louisiana cases
cited in Lesvinich, the standard is akin to the burden on a non-movant opposing a
motion for summary judgment no weighing of evidence is allowed and disputed
issues of fact must be resolved in favor of the plaintiff.53 The United States District
Court for the District of Columbia, also interpreting an anti-SLAPP statute
functionally indistinguishable from article 971,54 relied on Ninth Circuit
jurisprudence in coming to the same conclusion.55
B.
Federal courts are not to apply state laws such as article 971 that
directly collide with the Federal Rules of Civil Procedure
Should this Court decide Louisiana state courts place a more heightened burden
on a plaintiff opposing an article 971 motion than that required to survive summary
judgment, Professor Block contends such an interpretation would render article 971
52
See fn. 27, supra.
53
See Manufactured Home Communities, Inc. v. Cnty. of San Diego, 655 F.3d 1171,
1176 77 (9th Cir. 2011); Price v. Stossel, 620 F.3d 992, 1000 (9th Cir. 2010); and Metabolife
Int'l, Inc. v. Wornick, 264 F.3d 832, 840 (9th Cir.2001); see also Piping Rock Partners, Inc. v.
David Lerner Associates, Inc., 946 F. Supp. 2d 957, 970 (N.D. Cal. 2013) (So long as the
publication is reasonably susceptible of a defamatory meaning, a factual question for the jury
exists).
54
D.C. Code 16-5502.
55
Boley v. Atl. Monthly Grp., 950 F. Supp. 2d 249, 256-57 (D.D.C. 2013).
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inapplicable in federal court.

In 2012, the D.C. District Court analyzed whether the heightened standard
applicable under D.C.s functionally-indistinguishable Anti-SLAPP statute can be
applied in federal courts sitting in diversity. The court concluded that federal courts
cannot apply the statute because the bedrock principles of the Federal Rules of Civil
Procedure mandate a federal court may not dismiss a case without a trial based
upon its view of the merits of the case after considering matters outside of the
pleadings, except in those instances where summary judgment under Rule 56 is
appropriate.56
For some time, this decision failed to garner support, but the United States
Court of Appeals for the D.C. Circuit recently vindicated the D.C. District Courts
reasoning, taking up the question whether a federal court exercising diversity
jurisdiction may apply the D.C. AntiSLAPP Act's special motion to dismiss
provision and holding flatly, [t]he answer is no.57 The D.C. Circuit relied on clear
United States Supreme Court precedent, under which federal courts sitting in
diversity cannot apply a state rule if (1) a Federal Rule of Civil Procedure answer[s]
the same question as the state law or rule and (2) the Federal Rule does not violate
56
3M Co. v. Boulter, 842 F. Supp. 2d 85, 106 (D.D.C. 2012).
57
Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333 (D.C. Cir. 2015).
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the Rules Enabling Act.58 In short, Federal Rules 12 and 56 do answer the same
question as anti-SLAPP statutes, they do not violate the Rules Enabling Act, and
[t]hey do not require a plaintiff to show a likelihood of success on the merits.59
Thus, the D.C. anti-SLAPP statute and its kin conflict[] with the Federal Rules by
setting up an additional hurdle a plaintiff must jump over to get to trial.60
As stated in Lesvinich, this Court has never squarely addressed the above issue
decided by the D.C. Circuit and, therefore, the law on this issue is not settled.61 The
Lesvenich court went on to conclude article 971 does not directly collide with Rule
56, but only because the court held the standard imposed by article 971, as
interpreted by Louisiana courts, is equivalent to the standard imposed by Rule 56.62
Consequently, a contrary ruling by this Court mandates a different result. As of June
2015, this Court acknowledged its awareness of the disagreement among courts of
appeals as to whether state anti-SLAPP laws are applicable in federal court and the
fact that this Court has not yet addressed the issue regarding either Texas or
58
Id. (citing Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S.
393, 39899, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010)).
59
Id. at 1333-34 & 1336-37.
60
Id. at 1334.
61
Lesvinich at 676.
62
Id. at 676-78.
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Louisianas anti-SLAPP statute.63 Professor Block concedes article 971 would apply
to this case if it can be applied in federal court. Thus, Professor Block avers the issue
is now squarely before this Court and must be addressed.
Professor Block urges this Court, in keeping with the D.C. Circuits wellreasoned opinion in Abbas, to hold article 971 cannot be applied in this diversity case.
This Court is faced with a question mandating one of two results. Either the
Lesvenich court was correct and Professor Block need only show a genuine issue of
material fact to survive the N.Y. Times motion, or the article 971 standard is more
heightened and should not have been applied by the District Court at all. In either
case, the burden upon Professor Block is the same and is a burden which he met in
the District Court. With all reasonable doubt resolved in his favor and having
supported his claims with sufficient evidence, he has created a genuine issue of
material fact as to each element of his claims and is entitled to reversal of the District
Courts decision. The District Courts failure to address this issue was critical, as it
led to erroneous application of a standard of proof Professor Block need not sustain
to have his day in court. Moreover, as the analysis below will show, the District Court
improperly decided issues solely within the jurys purview. Finally, should this Court
63
Mitchell v. Hood, No. 14-30537, 2015 WL 3505481, at *2 (5th Cir. June 4, 2015); see
also Culbertson v. Lykos, No. 13-20569, 2015 WL 3875815, at *18 (5th Cir. June 22, 2015).
23
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decide the District Court erroneously applied article 971, the District Courts award
of attorneys fees thereunder must be set aside regardless of this Courts ultimate
holding on the merits.
III.
The District Court erred as a matter of law when it concluded Professor

Block could not sustain his claims under Louisiana law
The District Court held Professor Block could not establish the following
requisite elements for a defamation claim: falsity, defamatory, and actual malice[.]64
The District Court further held Professor Block could not establish falsity for the
purpose of his false light invasion of privacy claim, referring to its analysis of
Blocks defamation claim[.]65 The District Court thus implicitly concluded Professor
Block had sustained his burden with regard to proof of injury. The District Court also
implicitly acknowledged proof sufficient to sustain Professor Blocks defamation
claim would necessarily sustain his false light invasion of privacy claim as, with the
exception of malice (which the false light claim does not require), the two claims
required the same elements of proof.66 Thus, for the sake of brevity, Professor Block
will establish the District Court erred as a matter of law when it held he could not
64
ROA.410.
65
ROA.411.
66
Id.
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prove defamatory meaning, falsity and actual malice, presuming that proof of same
will suffice to sustain both of his claims.
A.
The District Court committed legal error when it held the statement
Professor Block described slavery as not so bad is incapable of
defamatory meaning because quoting someone as supporting
slavery is defamatory per se and not mere defamation by
implication
Before entering into a detailed discussion of the Courts opinion, a review of

the Article in its entirety is necessary to properly evaluate context. Despite the N.Y.
Times attempt to characterize the Article as an innocuous and objective
examination of the intellectual underpinnings of the libertarian philosophy endorsed
by Rand Paul,67 a full reading of the Article reveals a clear attempt to couch Paul as
a member of a fringe element (libertarianism) that espouses radical views including,
inter alia, deep-seeded racial prejudices. Indeed, the N.Y. Times, itself, claims the
purpose of the Article was to ask whether [the views of libertarian thinkers and
academics that have played influential roles in Pauls intellectual circle] will impact
Pauls viability as a serious presidential candidate.68 The Article answers this
question, not so subtly, by painting the libertarian movement as politically extreme
67
ROA.47.
68
ROA.47.
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and clandestinely racist, with the obvious implication being that Paul will not be a
serious candidate in the eyes of the N.Y. Times.
Of course, Pauls candidacy is a matter ripe for public discourse and rightfully
subject to media scrutiny. It is fair game. But, the tenor of the Article and its clear
purpose to associate Paul with viewpoints expected to animate its readers against
him is critical to placing the personal attack on Professor Block in context. Indeed,
as the N.Y. Times pointed out, the law requires review of the Article as a whole to
place the statements regarding Professor Block in context.69 Unlike real political
debate about a presidential candidates views on the issues, false quotations submitted
as a matter of fact are not protected by the First Amendment or any other media
privilege, no matter how much the publisher dresses up the Article in an attempt to
give it a veneer of legitimate discourse. Defaming someone in a collateral attack is
not fair game.
When read in context, Professor Block was one of the very individuals the N.Y.
Times sought to comically caricature as a supporter of slavery, with the overarching
purpose of associating Paul with the same obviously taboo viewpoint. In perhaps the
irony of all ironies, the Article used Professor Block as exemplary support for the
69
ROA.62 (citing, inter alia, Britton v. Hustmyre, 2009-0847 (La. App. 1 Cir. 2010), 2010
WL 1170222 *8).
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assertion that a movement which, at its heart, champions individual freedom,

particularly from governmental interference, actually supports a state institution that
was the very antithesis of individual freedom.
Apparently swayed by the Articles artful attempt to avoid making conclusions
that can be considered defamatory, the District Court found the text of the Article,
taken to its extreme, would merely support an accusation that Block supports free
enterprise at all costs[.]70 But, the District Courts conclusion ignores the law and
evidence. The District Courts mandate was not to insert its own opinion of the
Articles representation of Professor Block, but to determine whether a reasonable
reader could view the Articles statements about Professor Block as falsely and
intentionally conveying his support for forced slavery. On this point and in this
procedural posture, there can be and has been no dispute. Professor Block submitted
ample evidence of the reputational injury and downright vitriol the Article has caused
him and the N.Y. Times has submitted no evidence to the contrary.71 Specifically, (1)
Professor Block has personally attested to the criticism he has faced as a result of the
N.Y. Times portrayal of him as a supporter of slavery;72 (2) the President of the
70
ROA.409.
71
Of course, had the N.Y. Times submitted contrary evidence, the fact would still remain
competing views of the meaning intended by the Article constitutes a genuine issue of fact.
72
ROA.287-89.
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university where Professor Block teaches and his peers on the faculty have lambasted
him for voicing support of forced slavery;73 (3) faculty and students have threatened
to shun and boycott Professor Block because of the views the Article attributes to
him;74 and (4) students on campus threatened physical confrontation believing
Professor Block to be the motherf...r who said slavery was ok.75
In perhaps the single most legally insupportable portion of its Opinion, the
District Court somehow concluded the statements concerning Professor Block were
incapable of defamatory meaning. The court wrote:
[A]s Block is quoted directly, he fails to demonstrate facts and
circumstances defendants have failed to consider, such that they were
negligent, and the references could be considered defamatory per se.
The publication of an article accusing Block of being racist could be
viewed as defamatory per se. However, the article does not state that
Professor Block is a racist, a supporter of slavery, or even that he
opposes the [Civil Rights] Act on the basis of racial prejudice.
What Plaintiff really takes issue with is the context in which his
quotes were used. However, neither of defendants statements is
capable of defamatory meaning. To reiterate, the article quotes
Block directly. The context itself does not rationally lead to an
impression that Professor Block is racist, or a supporter of slavery who
objects to the [Civil Rights] Act on the basis of racial prejudice. The
fact that some may interpret the article that way does not
contravene this point. . . . The text, taken to its extreme, would
73
ROA.287-89 & 326-27.
74
ROA.287-89.
75
ROA.330-31.
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merely support an accusation that Block supports free enterprise at

all costs, which is not the defamation complained of here.76
The court apparently took the view (1) a direct quote cannot carry defamatory
meaning; (2) the reasonable interpretation of the quote by the average reader has no
bearing on its defamatory nature; and (3) the only way Professor Block could have
proven defamatory meaning is if the N.Y. Times outright stated Professor Block is
a racist or supports slavery. On none of these points does the law agree with the
District Court.
In an apparent alternative finding, the District Court appears to have held, at
most, the statements could be considered defamatory implication which is not
actionable since Professor Block is a public figure and the Article discusses a matter
of public concern.77 Louisiana Supreme Court jurisprudence directly contravenes this
alternative conclusion.
A defamatory communication is one which tends to harm a persons
reputation so as to lower him in the estimation of the community or to deter third
persons from associating or dealing with him.78 The question of whether a statement
76
ROA.407-09 (emphasis added).
77
ROA.409.
78
Guilbeaux v. Times of Acadiana, Inc., 94-1270 (La. App. 3 Cir. 8/9/95), 661 So. 2d
1027, 1031 writ denied, 95-2942 (La. 3/29/96), 670 So. 2d 1238.
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is capable of defamatory meaning is answered by determining whether a listener

could have reasonably understood the communication, taken in context, to have
been intended in a defamatory sense and by consider[ing] each portion of the
defamatory statement separately... in the context of the entire article and the effect
it was reasonably intended to produce in the mind of the average listener.79
Contrary to the District Courts conclusion, these statements of law make clear the
meaning a reasonable reader would take from the statements is part and parcel of
whether they are defamatory.
Words which convey an element of personal disgrace, dishonesty, or disrepute
are defamatory; moreover, words are defamatory per se if they expressly or
implicitly . . . by their very nature tend to injure ones personal or professional
reputation,
even
without
considering
extrinsic
facts
or
surrounding
circumstances.80 As these statements of law signify, the question of defamatory

meaning is clearly distinct from the question of whether the defamatory
communication is false. Thus, the District Court also erred as a matter of law in
blending its analysis of the two elements.
79
Id. at 1031; and Marshall Investments Corp. v. R.P. Carbone Co., No. CIV.A. 05-6486,
2006 WL 2644959 *4 (E.D. La. 2006).
80
Costello v. Hardy, 2003-1146 (La. 1/21/04), 864 So. 2d 129, 140 (emphasis added).
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Apparently, the District Court believes that a quotation cannot constitute

defamation (per se) and, rather, constitutes at most defamatory implication even if
taken out of context to convey a meaning the speaker did not intend. To the contrary,
the United States Supreme Court has held a quotation taken out of context can
distort meaning, although the speaker did use each reported word.81 Indeed, quite
contrary to the District Courts reasoning, the Supreme Court has stated:
Deliberate or reckless falsification that comprises actual malice turns
upon words and punctuation only because words and punctuation
express meaning. Meaning is the life of language. And, for the
reasons we have given, quotations may be a devastating instrument
for conveying false meaning. . . . [I]f the alterations of petitioners
words gave a different meaning to the statements, bearing upon
their defamatory character, then the device of quotations might well
be critical in finding the words actionable.82
Based on this language, the Texas Supreme Court has held the First
Amendment allows a public figure to sue for defamation when a publication as a
whole conveys a false and defamatory meaning either by omission or juxtaposition.83
The District Court apparently believes Louisiana law takes a contrary position. I.e.,
that a misquotation or quotation-out-of-context can constitute, at most, defamation
81
Masson, 501 U.S. at 515 (emphasis added).
82
Id. at 517 (emphasis added).
83
Turner v. KTRK Television, Inc., 38 S.W.3d 103, 116 (Tex. 2000).

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by implication, which is not actionable in Louisiana when the allegedly defamed

individual is a public figure.
A close review of Louisiana Supreme Court
jurisprudence negates the District Courts conclusion.

First, the Louisiana defamation-by-implication rule does not hold implications
are never actionable when the statement is about a public figure or public concern.
Rather, the Louisiana Supreme Court has held a defamatory implication standing
alone is insufficient to prove an otherwise true statement about a public
official/concern is defamatory.84 In other words, the thrust of Louisianas defamationby-implication rule is, to receive protection against any false implication a reader may
ascribe, the statement must first contain no actual falsehood in and of itself.85
Louisiana law recognizes a distinct difference between defamation by implication and
defamation by imputing words or conduct to an individual86 the latter is actionable
even in the case of a public figure.
To illustrate, if the N.Y. Times wrote, e.g., Professor Blocks classes are made
up of 99% white males, assuming the statistic is true, he could not maintain a
84
Schaefer v. Lynch, 406 So. 2d 185, 188; see also Turner, 38 S.W.3d at 116
(characterizing Schaefer as having held the First Amendment prevents a public figure from
claiming defamation based on the whole of a communication [only] when all its individual
statements are literally or substantially true).
85
Id.; and Fitzgerald v. Tucker, 737 So. 2d 706, 717 (La. 1999).
86
Thomas v. Busby, 95-1147 (La. App. 3 Cir. 1996), 670 So. 2d 603, 608.
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defamation action because of the implication his classes are composed of a singlerace/gender demographic perhaps by his own doing. The hypothetical statement does
not allege Professor Block hand-selected his students on the basis of race/gender, nor
does it allege he had any part in selecting his students whatsoever. The situation here
is drastically different. The N.Y. Times quoted Professor Block as having described
slavery as not so bad thereby imputing to Professor Block, through the use of his
own words out of context, the view that slavery as it existed and as the term is
commonly understood is acceptable in his eyes. Later portions of this Brief will
address the lack of any truth to this assertion, but it is self-evident such a quotation,
by its very nature, tends to injure Professor Blocks personal and professional
reputation by casting him as a racist of the worst kind.87
The Louisiana Supreme Court case of Sassone v. Elder88 discusses the
defamation by implication issues applicable in Louisiana. In Sassone, the plaintiffs
were lawyers suing for certain statements published by a newspaper. The court first
held there was no viable action based on a reporters statement that he heard from
other individuals that the plaintiffs did not have working telephone numbers.
87
It is bad enough to be a racist, but a supporter of slavery goes one step further. Such a
person believes it is permissible to commandeer anothers life and steal the fruits of anothers
labor based on pseudo-theories of racial supremacy.
88
626 So. 2d 345 (La. 1993).

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According to the Court, the truthful reporting of the individuals statements could not
be defamatory without resort to the alleged implication created thereby (the plaintiffs
were shady or dishonest lawyers).89
In contrast, the N.Y. Times did not refer to statements of third parties that could
imply negative facts about Professor Block. The statements were the N.Y. Times
own. The outright statement is Professor Block, himself, described the institution of
slavery (as a reasonable and unsuspecting reader would understand that term) as not
so bad. If the Article said nothing else, this false misrepresentation of Professor
Blocks views, by its very nature, constitutes defamation per se because it casts him
as a supporter of slavery (an institution whose modern-day supporters are
unequivocally and rightly should be held up to disdain in the eyes of the community).
That branding someone a person who considers forced slavery not so bad tends to
harm that persons personal/professional reputation without resort to extrinsic facts
(i.e., is defamatory per se) is so self-evident it requires no further justification. One
would be hard-pressed to come up with a single label (besides, say, murderer,
rapist, or child molester) that would lead more directly and inevitably to social
stigmatization. Since the Article contains this explicitly defamatory (per se)
statement, the surrounding implication created by the Article as a whole (i.e., the
89
Id. at 353-54.
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principle inference a reasonable reader will draw as having been intended by the N.Y.
Times) that Professor Block is an outspoken racist of the most deplorable kind is
also actionable.
The Sassone courts discussion of another allegedly defamatory statement
presented in that case makes Professor Blocks reading of the law unassailable and,
consequently, the District Courts reading patently erroneous. That is, the Sassone
court considered whether the defendant-reporter falsely mischaracterized the
comments of a district attorney regarding a lawyer (Lloyd) who was not one of the
plaintiffs in the case. In one instance, the reporter followed his lead-in statement
District Attorney Doug Greenburg began digging into the matter with a clip of
Greenburg saying in an apparently positive declaration, Its an extortion. I think that
it smacks of fraud; Greenburg subsequently asserted he made the taped comment,
not as his views on the proved criminality of Lloyds activities... but in response to
[the reporters] hypothetical question which assumed the truth about Lloyds
activities described by [the reporter].90 In another, the reporter led in... []
Greenburg minced no words in describing the alleged actions of [Lloyd] followed
by Greenburgs taped statement that [t]his person is a criminal charlatan of the worst
order; again, Greenburg asserted his interview statement was to the effect that if
90
Sassone at 354-55 (emphasis added).

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the allegations about Lloyd were proved, this person was a criminal charlatan of the
worst order.91
The court stated the reporters use of Greenburgs statements, on its face,
arguably present[s] a jury question whether the statements were maliciously misused
and so distorted as to be untrue but the statements were not made about one of the
plaintiffs in the case so the question of whether the misused quotation was
defamatory was not properly before the court.92 Nevertheless, the thrust of this
portion of the opinion is clear misuse and distortion of a persons statement by
divorcing it from context and depriving it of its intended meaning most certainly is
outright defamation, can show malice in and of itself, and the mere fact that context
is necessary to prove the statements falsity does not render it mere defamatory
implication. That is, the court endorsed the very same argument Professor Block is
making here.
Greenburg posited, hypothetically, if the allegations against Lloyd were true,
then he would consider Lloyd a criminal of the worst order. The defamatory meaning
arose only out of the manner in which the reporter presented the videotaped quotes.
91
Id. at 355 (emphasis added).
92
Id. (emphasis added). Given the Courts dictum, it would certainly appear that if the
statements had been made about one of the plaintiffs, there would have been an actionable claim.
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Here, Professor Block posited if the working conditions attendant to slavery were
voluntary, then such a hypothetical slavery is not so bad because the evil of slavery
is the very fact that it was compulsory a deprivation of freedom. Just like Greenburg,
Professor Block was speaking in conditional terms, but the Article fails to portray this
crucial fact whatsoever and instead places Professor Blocks words in an entirely
fabricated context. He spoke only about a hypothetical slavery stripped of the
involuntary aspect without which slavery is not slavery at all. Stated otherwise,
Professor Block was not describing slavery at all since voluntary slavery is
considered an oxymoron. When the N.Y. Times omitted this crucial fact, it assigned
new meaning to Professor Blocks comments to the point the Articles assertion is
completely false. As the Sassone court indicated, such a misrepresentation of a
persons statement despite the fact that the person was quoted verbatim constitutes
an explicitly defamatory and at least arguably malicious statement on its face.
Certainly, imprudent journalists often play the gotcha game by taking statements
out of context, but when they do so in a way that completely distorts the meaning
thereof, Louisiana law does not allow them to shield their actions behind the First
Amendment.
To emphasize, Professor Block has clearly and repeatedly stressed the point
that slavery was evil because of its defining characteristic gross deprivation of
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individual freedom and only the hypothetical, oxymoronic situation of voluntary

slavery could otherwise be considered not so bad since it was slavery, and not
its mere incidents, society must never tolerate.93 Indeed, if one freely chooses to eat
gruel and otherwise live in substandard conditions, whose place is it to curtail that
choice? Would it not be an imposition on liberty, perhaps partial slavery itself, to
force that individual to live in circumstances not his choosing just because society
does not approve? No, societys concern is only that one never be forced into such
conditions. But whether Professor Block is logically correct is not at issue here.
Professor Block merely seeks to emphasize just how glaringly the Articles statements
depart from his actual views views the N.Y. Times concedes Professor Block
expressed to Tanenhaus during interview.94
Perhaps most importantly, the District Court injected its own subjective view
of the meaning conveyed by the Articles statements about Professor Block in place
of the view of a reasonable reader. This was patently improper and thus legal error,
since the Court cannot sit in place of the jury and pass upon the merits in this
93
Professor Block refers again to the views of Frederick Douglass quoted in fn. 10, supra.
94
See, generally, ROA.47-67. The N.Y. Times also did not contest Professor Blocks own
assertion that, during the course of interviews with Tanenhaus, I expressed my unequivocal
belief that slavery was wrong because it was compulsory and was given reason to believe that
Tanenhaus understood the meaning I was conveying and the rhetorical, persuasive tools I was
using to make my point that only the hypothetical situation of voluntary slavery could be
considered not so bad. ROA.287-88.
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procedural posture. Rather, the court was required to decide whether the statements
create, at the very least and in the light most favorable to Professor Block, a genuine
issue as to whether a reasonable reader would conclude the statements were intended
to portray Professor Block as unperturbed by slavery and/or a latent racist.
Defamatory meaning must be determined through the eyes of a reasonable reader, not
the District Court deciding the legal sufficiency of Professor Blocks allegations. The
District Court was not confined to speculation on this point as Professor Block
introduced uncontested evidence that at least two reasonable readers of the Article
took from it exactly the meaning he alleges the N.Y. Times intended to convey.
First, Fr. Kevin Wildes, the president of Loyola University New Orleans,
publicly opined based upon his reading of the Article Professor Block believes
involuntary chattel slavery is not so bad.95 Second, subsequent to the Articles
publication, Professor Block was accosted by two individuals on Loyolas campus
who threatened him with physical harm because of their belief Professor Block said
slavery was ok.96 Given this uncontested evidence not only of injury to Professor
Blocks reputation, but of the reasonable readers interpretation of the statements,
the District Court was not at liberty to surmise for itself the Article conveys only the
95
ROA.326-27.
96
ROA.330-31.
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accusation that Block supports free enterprise at all costs[.]97 Rather, the District
Court was required to and failed to construe all reasonable doubt in favor of Professor
Block that the statements at least arguably convey the outright defamatory meaning
he views actual, forced slavery (as the term is commonly understood) as not so bad.
Professor Blocks uncontroverted evidence of the reasonable readers takeaway
from the Article makes the District Courts conclusion as to the statements
defamatory meaning plain legal error.
B.
The District Court committed legal error when it held a direct

quotation cannot falsify meaning and thus cannot form the basis of
a defamation action
The District Court, siding with the N.Y. Times, erroneously concluded:
Plaintiff however, does not deny making the statements attributed
to him. In fact, the first quote, which can be found in a blog post by
Block, was made by him during a telephone interview with defendants.
The second text refers back to the first quote and contains substantially
similar quotes obtained during the same interview. Although Block
claims in the Original Complaint that the statements about him and
quoted are untrue, he acknowledges having made them, and thus
cannot establish the most important element, falsity, which in turn
precludes him from establishing malice. . . .
What Plaintiff really takes issue with is the context in which his
quotes were used. However, neither of defendants statements is capable
of defamatory meaning. To reiterate, the article quotes Block
97
ROA.409.
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directly.98
Simply put, the District Courts conclusion a direct quote cannot sustain a
defamation action regardless of context finds zero support in law. Moreover, it
would give free reign to media defendants to cut and paste quotations however they
see fit without fear of reprisal.
The United States Supreme Court, the Louisiana Supreme Court and the Ninth
Circuit all support Blocks position. In Masson, the United States Supreme Court
conclusively stated a quotation taken out of context can distort meaning, although
the speaker did use each reported word.99 The Court made this statement in
determining that summary judgment on the issue of actual malice is inappropriate
under circumstances where a media-defendant misquoted a public figure to convey
meaning the speaker did not intend.100 In no uncertain terms, the Court reasoned:
A fabricated quotation may injure reputation in at least two senses,
either giving rise to a conceivable claim of defamation. First, the
quotation might injure because it attributes an untrue factual assertion
to the speaker. . . . Second, regardless of the truth or falsity of the
factual matters asserted within the quoted statement, the attribution
may result in injury to reputation because the manner of expression
or even the fact that the statement was made indicates a negative
98
ROA.407-08.
99
Masson at 515.
100
Id. at 511-20.
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personal trait or an attitude the speaker does not hold. . . .

A self-condemnatory quotation may carry more force than criticism
by another. It is against self-interest to admit ones own . . . arrogance,
or lack of integrity, and so all the more easy to credit when it happens.101
Clearly, the Supreme Court places heightened scrutiny on the use of quotations
to convey false meaning as they carry a dangerously increased imprimatur of truth.
Indeed, the Court provides absolutely no shield to liability, under the First
Amendment or otherwise, for the use of quotations out of context as same can be
explicitly defamatory in a far more damaging way than false statements about ones
views. As a matter of policy, the Court recognized to hold otherwise would jeopardize
truth-in-journalism and hinder the flow of information to the public by discouraging
communication with the media a result that would ill serve the values of the First
Amendment[.]102
The Ninth Circuit came to the same conclusion in Price v. Stossel.103 In an
effort to bolster the thesis of a news segment exposing some Christian ministers for
taking advantage of parishioners for personal gain, ABC used the following quote
101
Id. at 511-12.
102
Id. at 519-20.
103
620 F.3d 992.

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from a sermon of Dr. Frederick Price: I live in a 25-room mansion. I have my own
$6 million yacht. I have my own private jet, and I have my own helicopter, and I have
seven luxury automobiles.104 ABC argued the use of Dr. Prices words was
substantially true as the quote more-or-less reflected his personal finances and
possessions indeed, the Ninth Circuit noted Dr. Price is a man of substantial wealth
with assets very similar to what the quote indicates.105 The trouble for ABC was the
quote was taken out of the hypothetical context in which it was made Dr. Price was
telling a parable of unhappiness brought about by a lack of faith, and he was
speaking from the perspective of a hypothetical man.106
The Ninth Circuit reversed the grant of ABCs anti-SLAPP motion finding,
under Masson, it was not to compare the substance of the quote to Dr. Prices actual
wealth as [e]ven if a fabricated quotation asserts something that is true as a factual
matter, the fabrication may nonetheless result in injury to reputation because the
manner of expression or even the fact that the statement was made indicates . . . an
attitude the speaker does not hold; rather, the proper comparison is between the
meaning of the quotation as published and the meaning of the words as
104
Id. at 995.
105
Id. at 996.
106
Id. at 998.
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uttered[.]107 Since ABC clearly portrayed Dr. Prices words as a positive, haughty
assertion of his own wealth when he was describing a hypothetical situation, the
Ninth Circuit held it was legal error to find Dr. Price did not establish a genuine issue
as to the statements falsity, and ipso facto a probability of prevailing on the element
of malice, for purposes of defeating ABCs anti-SLAPP motion.108 Stated otherwise,
the Ninth Circuit held Dr. Price showed a substantial likelihood of proving the
direct use of his own words constituted an explicitly false and maliciously defamatory
statement.
Though the Louisiana Supreme Court has not yet applied Masson in a case
involving misquotation, the Sassone case appears to have been ahead of its time when
it discussed the false and defamatory use of Greenburgs quoted words in dicta.
Recall the Sassone court explicitly stated the use of Greenburgs hypothetical
statements out of context (i.e., without acknowledging the condition on which they
were based) arguably present[s] a jury question whether the statements were
maliciously misused and so distorted as to be untrue and only because the
statements did not concern one of the plaintiffs in the case did the court not allow the
107
Id. at 1002-03 (emphasis added).
108
Id. at 1003.
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action to go forward.109 It is clear Louisiana law agrees with Masson. But to the extent
of any discord between Louisiana law and Masson, Massons reasoning must govern
this Courts decision as United States Supreme Court precedent trumps Louisiana law
in cases where local defamation law is directly impacted by First Amendment
concerns.110
As the Ninth Circuit noted, under Masson, [w]here the published quotation
contains a material alteration of the meaning conveyed by the speaker, the published
quotation is false.111 Stated otherwise, Masson rests on the concept of substantial
truth i.e., the statement is false if it would have a different effect on the mind of
the reader from that which the pleaded truth would have produced.112 Professor
Block has amply pleaded and evidenced the effect the N.Y. Times rendition of his
words had on the average reader and has further demonstrated, at the very least, a jury
question as to whether the pleaded truth would have had a different effect on said
average reader.113
109
Sassone at 355 (emphasis added).
110
Kennedy v. Sheriff of E. Baton Rouge, 2005-1418 (La. 7/10/06), 935 So. 2d 669, 677
(Supreme Court First Amendment law supercedes common-law defamation principles).
111
Price at 995 (citing Masson at 517).
112
Masson at 517 (emphasis added).
113
ROA.5-12 ( 9, 10, 17 & 18), 287-89 & 326-31.

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The N.Y. Times admitted Professor Blocks actual view as stated during
interview is slavery was wrong because it was enforced against the slaves free will
(i.e., violation of the Non-Aggression Principle).114 But, the Articles statements fail
to convey this central premise of Professor Blocks comments. They glaringly omit
the seminal fact that Professor Block, in other writings and in interview with
Tanenhaus, repeatedly denounced slavery as it existed in the United States as being
abhorrent. Only a hypothetical voluntary slavery is not so bad.115 Under Masson
and Sassone, the N.Y. Times was charged with accurately conveying this meaning
and was not free to place Professor Blocks words in a context which conveyed
exactly the opposite.
In logic, a conditional statement is a compound statement of fact formed by
linking two clauses together with the words if . . . then (or otherwise, lest,
unless, etc.). The second clause (the then or otherwise clause) can only be
accurately attributed to the person making it if the conditional premise (the if) is
attached and satisfied. It is intellectually dishonest more importantly, intellectually
false for a journalist to totally ignore the if clause, quote the then clause and
claim it accurately reflects the persons views. Perhaps an even more convincing
114
ROA.63.
115
ROA.287-325.
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example would be to see the effect the N.Y. Times distortion would have if used on
the words of one of Americas most famous Abolitionists.
William Lloyd Garrison, in perhaps one of the most scathing rebukes of slavery
ever spoken, lambasted the institution as oppressive and immoral before stating, for
rhetorical and persuasive purposes:
If the slaves are not men . . . then, undeniably, I am mad, and can no
longer discriminate between a man and a beast. But, in that case . . . [l]et
them be no more included in our religious sympathies or denominational
statistics than are the dogs in our streets, the swine in our pens, or the
utensils in our dwellings. It is right to own, to buy, to sell, to inherit,
to breed, and to control them, in the most absolute sense. All
constitutions and laws which forbid their possession ought to be so
far modified or repealed as to concede the right.116
An imprudent journalist could isolate the final two sentences from Garrisons speech
and proclaim Garrison stated it is right to own slaves and down with any law
prohibiting that right. He did state those exact words. But that journalists doing so
would make the indication those sentences accurately reflect the meaning of
Garrisons words no less false than the N.Y. Times assertion it accurately reported
Professor Blocks meaning by writing he described slavery as not so bad. In both
instances, the important presumption (the if clause) is purposefully omitted so the
imprudent journalist could attach false meaning to the speakers words.
116
ROA.344.
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It is apparent to any reasonable person reading the statement Professor Block

described slavery as not so bad the N.Y. Times operative assertion is Professor
Block approved of slavery as that word is commonly understood. That the N.Y.
Times intended to depict Professor Block as a racist and/or supporter of slavery is
bolstered by the juxtaposition of the misleading quotation with the following
statement that he is critical of the Civil Rights Act without any further explanation
of the completely non-racial reasons Professor Block has criticized said Act.117
Again, the N.Y. Times now argues in legal pleadings that the Article does
reflect Professor Block only described slavery as not so bad if, hypothetically, it
had been voluntary. That is certainly not what the Article conveyed in the newspaper.
Admittedly, there is an earlier statement in the Article that attempts to recount
Professor Blocks comments and comes closer to doing so, but very artfully and
strategically: (1) does not mention Professor Block by name; (2) is contained in the
beginning of the Article roughly eight whole pages away from the above
misquotation; and (3) hides the fact that Professor Block denounced forced slavery
through language use and juxtaposition. The earlier statement, in its immediate
context, reads as follows:
117
ROA.81.
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Some scholars affiliated with the Mises Institute... have

championed the Confederacy. One 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.
Mr. Paul says he abhors racism, has never visited the institute and
should not have to answer for the more extreme views of all of those in
the libertarian orbit.118
The N.Y. Times and the District Court point to the above-emphasized sentence
as curative of any inaccuracy in the (eight-page) later statement Professor Block
described slavery as not so bad i.e., they posit Professor Blocks conditional
premise of voluntariness is reflected in this sentence. But the operative question
here is how a reasonable reader would interpret each statement in isolation as well as
in context of the Article as a whole.119
First, Professor Block did not merely fault slavery as involuntary i.e., he did
not merely indicate slavery had a defect or imperfection. As his published writings
reflect, he has always denounced actual slavery, openly and vociferously, because
it was implemented by force and has stated without equivocation this horrendous
118
ROA.74 (emphasis added).
119
Recall Fr. Wildes and two unknown students (reasonable readers) completely failed to
glean from the Article that Professor Block denounced slavery because it was compulsory this
fact alone creates a jury question as to whether the statements were false and defamatory.
ROA.326-27 &330-31.
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injustice calls for reparations to this day.120 The tongue-in-cheek way he described the
daily life of the enslaved serves merely to amplify his point that slavery was evil
because the slaves were forced into work that, if voluntary, would otherwise be
acceptable. As Masson holds, a material question of falsity can stem from the use of
the words to convey an attitude [Professor Block] does not hold even when the
words are accurately quoted.121 That is exactly the case here the N.Y. Times played
dumb to the rhetorical, sarcastic nature of Professor Blocks comments about the
daily life of the enslaved, instead attempting to use them as proof Professor Block
believes the plight of American slaves in the 19th century was somehow acceptable.
It is disingenuous in the extreme for the N.Y. Times is no spring chicken it is
insulting to this Courts intelligence for the N.Y. Times to pretend it did not catch the
facetiousness in pick cotton, sing songs, be fed nice gruel, etc.122 Insulting where
injuring, the statements align Professor Block with a position diametrically opposed
to the seminal libertarian principle he has always championed freedom from
oppression. His published works, amply supporting this position, were available to
120
ROA.287-325.
121
Masson at 511-12.
122
ROA.94 (emphasis added). It is quite telling the N.Y. Times only included pick
cotton and sing songs in the statement since quoting be fed nice gruel would have
signified to the wary and intelligent reader, perhaps, the N.Y. Times is taking this mans
words out of context.
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the N.Y. Times when it chose to distort his beliefs.123

Second, the N.Y. Times consciously made the editorial decisions to not
attribute this first quotation to Professor Block by name and place it roughly eight
pages before the horribly inaccurate and unqualified statement he described slavery
as not so bad. Even if this Court believes this earlier quotation reflects Professor
Blocks views just closely enough to escape defamatory meaning on its own, the N.Y.
Times obviously intended to disassociate it from the later quotation so the average
reader would not make the connection. Louisiana jurisprudence requires a statement
to identify the plaintiff with some degree of certainty to the average reader in order
to be actionable.124 Logically, the converse should also be true an 8-page earlier
statement that does not even identify Professor Block should not be allowed to cure
a subsequent statement that does identify him of defamatory meaning. Moreover, it
must not be forgotten whether the defamatory statements are false must be determined
on the basis of the effect it is reasonably [objectively] intended to produce in the
mind of the average listener.125 As repeatedly emphasized, Professor Block has
123
ROA.290-325.
124
See Fitzgerald, 737 So. 2d at 719 (although it is within the realm of possibility that
someone may have [associated the plaintiff with the defamatory statement], it is not an
inference which a reasonable person would readily ascertain with some degree of
certainty) (emphasis added); and Sassone, 626 So. 2d at 354-55.
125
Britton, 2010 WL 1170222 *8.

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presented uncontested evidence that multiple readers have taken from the statements
the meaning he believes forced slavery was not so bad.
Third, the earlier statements strategic position within the Article proves the
effect it was reasonably intended to have on readers the false impression Professor
Block and the extremist-libertarians at the Mises Institute are nothing more than
racists and supporters of slavery. The statement is wedged between one sentence
claiming scholars at the Mises Institute have championed the Confederacy and
another indicating Rand Pauls position that he abhors racism and should not have
to answer for the more extreme views of all of those in the libertarian orbit. I.e., the
passage makes broad generalizations about the views of libertarian scholars (without
naming them) right before implying those views are based on racist sentiments for
which Rand Paul, who abhors racism, feels he should not have to answer. Thus,
this earlier statement quite purposefully gives the false and defamatory impression
Professor Block, like the rest of the hard right libertarians at the Mises Institute,
supports slavery and other racist sentiments through misleading juxtaposition.
Any one of these three bases alone presents a jury question as to whether this
earlier statement was a conscious attempt to conceal the meaning of Professor Blocks
words. Taking all three together, it is incontestable the N.Y. Times made every
calculated effort possible to distort his views, while attempting to maintain plausible
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deniability. The District Court erred in removing from the jurys purview the question
of how a reasonable reader would interpret the meaning and intent of both of the N.Y.
Times statements concerning Professor Block.
It bears repeating the key piece of evidence the N.Y. Times used to support its
assertion the Article accurately portrays Professor Blocks comments (the blog-post
quoted on page 6, supra) itself creates a jury question as to whether the Article
materially misrepresented his views as it carries a vastly different meaning and tenor
than the N.Y. Times tortuous rendition in the Article. It makes clear Professor Block
denounced slavery as wrong because it was compulsory, a complete violation of the
concepts of liberty and free association126 the very thesis and meaning behind
the otherwise i.e., only absent the deprivation of freedom, slavery wasnt so bad.
Without the otherwise, the reasonable reader is forced to conclude Professor Block
really had no problem with forced slave labor. This is a complete farce as Professor
Block, one of the most outspoken champions of individual liberty one can find, is also
an exceptionally brazen and outspoken critic of American slavery.127
126
ROA.94.
127
ROA.290-325 (wherein Professor Block decries slavery as morally reprehensible,

unjust deprivation of liberty, violation of libertarian principles, theft, kidnapping, and thus just
cause for reparations to the descendants of slaves from those who have inherited the ill-gotten
gains earned on the backs of slaves).
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Professor Blocks after-the-fact comments about how the Article falsely

portrayed his views further proves his case, despite the District Courts finding
Professor Block admitted the words were his own. As argued ad nauseam, the District
Court committed legal error in holding the direct quotations are insusceptible of false
and defamatory meaning whether the quotations accurately convey Professor
Blocks meaning is a question for the jury in light of the evidence submitted.
Professor Blocks expressed outrage in his post-hoc comments regarding the gross
distortion of his views and his personal explanation of same is perhaps the best
evidence available of just how egregious and purposeful was the gotcha journalism
employed to label him a supporter of slavery, both outright and by implication.128
C.
The District Court committed legal error when it held the distorted
quotations did not, on their face, present a triable issue of malice
The District Court did not meaningfully analyze the element of malice, having
found no falsity in the N.Y. Times quotations of Professor Blocks words.129 Thus,
should this Court determine Professor Block has established a genuine issue as to the
statements objective falsity, it must remand the case for a determination on the merits
as to whether they were made with actual malice. Alternatively, the evidence
128
ROA.98-122.
129
ROA.407 & 410.

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submitted in this case permits this Court to find, as a matter of law, Professor Block
has established a genuine issue as to the N.Y. Times malice.130
Under both United States and Louisiana Supreme Court precedent, proving the
statements falsely distorted Professor Blocks meaning is sufficient, on its own, to
create a genuine issue as to actual malice.
Actual malice occurs when the statement was made with knowledge of falsity
or reckless disregard for truth.131 It is an admittedly high burden since it requires
proof of the defendants mental state, but jurisprudence establishes the burden at this
stage requires no more than evidence upon which a jury could infer the N.Y. Times
should have discovered or, more likely than not, knew the false and defamatory
nature of its assertions.132 In fact, the United States Supreme Court observed the
question of malice is inherently tied to the question of falsity in the framework of a
summary judgment motion and the Courts reasoning further establishes malice can
be inferred from the mere presentation of a quotation in a misleading way in this
130
Because the N.Y. Times has argued malice cannot be shown simply because the
statements are not false, the evidence from which malice can be inferred has not been contested.
ROA.63-64.
131
Costello at 140-41.
132
Lozovvy at *12 (an article 971 determination is not a full trial on the merits; the issue
is not whether the defendant actually committed the relevant tort).
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procedural context.133 That is, malice can be shown at this stage on the face of the
very statement giving rise to the action when the statement presents the plaintiffs
own words in a distorted way.
Recall Masson also held distorted meaning can result not just from the
attribut[ion of] an untrue factual assertion to the speaker[,] but also through the
manner of expression or even the fact that the statement was made when it conveys
an attitude the speaker does not hold (regardless of the truth or falsity of the
factual matters asserted within the quoted statement).134 This is exactly the claim
being made here the N.Y. Times used Professor Blocks words to convey not just
false meaning, but also an attitude [he] does not hold, he has proven he does not
hold, and the N.Y. Times knew or should have known he does not hold. The N.Y.
Times actions should be subjected to Massons heightened scrutiny because [a] selfcondemnatory quotation may carry more force than criticism by another135 and,
indeed, the distorted portrayal of Professor Blocks words had the very result the
Court sought to prevent its readers took as proven fact Professor Block views forced
133
Masson at 513-520.
134
Id. at 511.
135
Id. at 512.
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slavery as more-or-less acceptable.136

In Massons words, [d]eliberate or reckless falsification that comprises
actual malice turns upon words and punctuation only because words and punctuation
express meaning; thus, if the alterations . . . gave a different meaning to the
statements, bearing upon their defamatory character, then the [very] device of
quotations might well be critical in finding proof of actual malice sufficient to defeat
summary judgment.137 Because the Article materially distorted Professor Blocks
meaning, facial maliciousness is presumed and Masson mandates malice can only be
disproven through a jurys determination the N.Y. Times did not actually intend to
convey such false meaning nor did it recklessly disregard Professor Blocks meaning.
These are legitimate factual issues that must be placed before a jury since Professor
Block has amply demonstrated the N.Y. Times distorted his views for the sole
purpose of labeling him, and libertarianism in general, as racist and pro-slavery.
Again, libertarians like Professor Block hold individual liberty as their core principle.
To recast them as supportive of a categorically government-sanctioned deprivation
of liberty constitutes a deliberate attempt to defame on its face.
Louisiana jurisprudence is in complete accord. In Sassone, the Louisiana
136
ROA.287-89 & 326-31.
137
Masson at 517.
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Supreme Court explicitly stated a reporters use and juxtaposition of Greenburgs

videotaped quotes alone arguably present[s] a jury question whether the statements
were maliciously misused and so distorted as to be untrue.138 It is worth reemphasizing the factual similarity between the situation in Sassone and the one at
bar Greenburgs testimony that he was responding to a hypothetical, coupled with
the fact that the reporters use of his words hid their hypothetical meaning, would be
sufficient alone to show a genuine issue as to whether the reporter intentionally
misrepresented his words to convey a view they did not express. This is exactly the
claim Professor Block asserts here.
Further, though the element of malice is concerned only with intent or
recklessness, the United States District Court for the Western District of Louisiana
has held the tone of an article which demonstrates an underlying animus can be
sufficient to withstand the article 971 burden as any additional evidence as to malice
must come from further development of [the] case in the form of discovery and trial
testimony and, importantly, the testimony of the authors[.]139 The court wisely
acknowledged it is impossible at this point in the proceeding to predict the
138
Sassone at 355.
139
In re Baxter, NO. 01-00026, 2001 WL 34806203 *16 (W.D. La. 2001) (emphasis
added).
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probability that plaintiff will succeed in proving actual malice. That a reasonable
possibility of success exists, however, is clear.140 If one were required to prove actual
malice at the article 971 stage (when discovery is not permitted), this element would
present an insurmountable burden to the vindication of the harm suffered by Professor
Block. Thus, all the law requires is that Professor Block demonstrate falsity or, at
most, falsity plus indication the falsity was propagated in a manner that shows
animus a purpose of placing Professor Block in a negative light.
The Article itself, in its tone and thesis, shows significant animus against
libertarianism, in general, and libertarian scholars in particular, including Professor
Block, for the overarching purpose of associating Rand Paul with a viewpoint
unpalatable to readers/voters. It is unreasonable to suggest post-hoc, as the N.Y.
Times did below, that an average reader would see the Article as anything less than
an attempt to associate libertarianism and its proponents with hardcore racist
sentiments. Thus, Professor Block submits, even if more is required than mere proof
of the falsity of the statements, the Article itself shows the animus necessary for a
reasonable jury to infer the N.Y. Times acted with the purpose of conveying false
meaning.
140
Id.
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Finally, at least one case suggests evidence imputing a journalists failure to

properly investigate the truth of his assertions is sufficient to show reckless disregard
for truth.141 Professor Block, without the aid of discovery, could not possibly have
shown more than that resources were readily available to the N.Y. Times that would
have contradicted its characterization of his views and, in the course of due diligence
during the editorial process, it should have discovered these resources. Professor
Block submits he has done so by introducing evidence of his published works on the
evils of slavery alone.142 Moreover, the N.Y. Times actually admitted awareness of
Professor Blocks views on the subject,143 yet chose to distort them nonetheless.
Under any one of the above-three standards, Professor Block has met his
minimal burden on this element of his claim at this stage of the proceedings. In any
event, again, this issue was not properly addressed by the District Court as the court
never actually reached the element of malice. It held only falsity had not been shown,
ipso facto malice could not be shown. Thus, because the District erred on the element
of falsity, its holding on the issue of malice must fall with it.
141
Dileo v. Davis, No. CIV.A. 89-2485, 1995 WL 5908 *5-6 (E.D. La. 1995).
142
ROA.290-325.
143
ROA.47-67 & 94.

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CONCLUSION
For the foregoing reasons, Professor Block respectfully requests this Court
reverse the District Courts grant of the N.Y. Times article 971 motion and award of
attorneys fees, and hold Professor Block has established a genuine issue of material
fact as to all elements of his defamation and false light claims and is entitled to trial
on the merits.144
Respectfully submitted
MAHTOOK & LAFLEUR, LLC
S/ WARD F. LAFLEUR
WARD F. LAFLEUR (#01770)
MARC J. MANDICH (#35402)
600 Jefferson Street, Ste. 1000 (70502)
P.O. Box. 3089
Lafayette, Louisiana 70501
Telephone: (337) 266-2189
Facsimile: (337) 266-2303
COUNSEL FOR PLAINTIFFAPPELLANT, WALTER BLOCK
144
Professor Block argued below, should the District Court require further proof of
malice, good cause existed for the court to permit limited discovery under article 971(D).
ROA.284. If this Court determines article 971 applies and the only element not sufficiently
proven is malice, Professor Block submits, alternatively, the cause should be remanded with
direction the District Court allow discovery on the issue of malice before reconsidering the N.Y.
Times Motion.
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing Original Brief of
Plaintiff-Appellant Walter Block has been served upon opposing counsel by way
of this Courts CM/ECF electronic filing system to the email address identified below
on the 21st day of July, 2015.
Ms. Loretta G. Mince
Fishman Haygood Phelps Walmsley Willis &
Swanson, LLP
201 St. Charles Avenue, 46th Floor
New Orleans, LA 70170-4600
Email: lmince@fishmanhaygood.com
S/ WARD F. LAFLEUR
WARD F. LAFLEUR
MARC J. MANDICH
62
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CERTIFICATE OF COMPLIANCE
Pursuant to 5th Cir. R. 32.3 and Fed. R. App. P. 32(a)(7)(c ), undersigned
counsel certifies as follows:
1. This brief complies with the type-volume limitation of Fed. R. App. P.
28.1(e)(2)(B)(I) because it contains 13,912 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because it was
printed in a proportion\ally-spaced typeface, using Corel WordPerfect X5 in Times
New Roman 14-point font in text and Times New Roman 12-point font in footnotes.
S/ WARD F. LAFLEUR
WARD F. LAFLEUR
MARC J. MANDICH
Counsel for
Walter Block
Dated:
63
Plaintiff-Appellant,
July 21, 2015

Original Brief: Walter Block v. Sam Tanenhaus, Jim Rutenberg, New York Times Company

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Case: 15-30459

Date Filed: 07/21/2015

CASE NO. 15-30459

Date Filed: 07/21/2015

CERTIFICATE OF INTERESTED PERSONS

Walter E. Block, Ph.D. (Plaintiff-Appellant)

The New York Times Company (Defendant-Appellee)

Sam Tanenhaus (Defendant-Appellee)

Jim Rutenberg (Defendant-Appellee)

Ward F. Lafleur, Mahtook & Lafleur, LLC (Counsel for Appellant)

Marc J. Mandich, Mahtook & Lafleur, LLC (Counsel for Appellant)

Loretta G. Mince, Fishman Haygood Phelps Walmsley Willis &

Alysson L. Mills, Fishman Haygood Phelps Walmsley Willis &

Honorable Ivan L.R. Lemelle, United States District Judge, United

Honorable Karen Wells Roby, United States Magistrate Judge, United

Date Filed: 07/21/2015

/S/ WARD F. LAFLEUR

Date Filed: 07/21/2015

STATEMENT REGARDING ORAL ARGUMENT

The burden of proof imposed upon a plaintiff when opposing a Special

Whether the burden of proof under Louisiana Code of Civil Procedure

Whether the District Courts interpretation of Louisiana jurisprudence

Whether the District Courts application of the Louisiana jurisprudential

Date Filed: 07/21/2015

defamatory meaning and falsity(in a defamation action) when the

Date Filed: 07/21/2015

The District Court erred in applying article 971. . . . . . . . . . . . . . . . 14

The article 971 burden is equivalent to the burden imposed on a

The District Court erred as a matter of law when it concluded Professor

Date Filed: 07/21/2015

The District Court committed legal error when it held the

The District Court committed legal error when it held a direct

The District Court committed legal error when it held the

Date Filed: 07/21/2015

3M Co. v. Boulter, 842 F. Supp. 2d 85 (D.D.C. 2012). . . . . . . . . . . . . . . . . . . . . . 21

Date Filed: 07/21/2015

1027 writ denied, 95-2942 (La. 3/29/96), 670 So. 2d 1238. . . . . . . . . . . . . 29

Date Filed: 07/21/2015

Date Filed: 07/21/2015

La. Code Civ. Pro. art. 966. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Date Filed: 07/21/2015

ROA.414 & 415.

Date Filed: 07/21/2015

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

Date Filed: 07/21/2015

STATEMENT OF THE CASE

ROA.73-87 & 72 (Tanenhauss Affidavit acknowledging authorship and publication in

ROA 81 & 52-55 (emphasis added).

Date Filed: 07/21/2015

ROA.290-325. See, particularly, Walter Block, On Reparations to Blacks for Slavery,

Date Filed: 07/21/2015

would have been turned over to ex-slaves.8

Date Filed: 07/21/2015

Date Filed: 07/21/2015

Date Filed: 07/21/2015

See ROA.287-89, 326-27 & 330-31.

ROA.261-86 (Opposition); ROA. 287-351 (Attachments).

Date Filed: 07/21/2015

without addressing or analyzing the responsive arguments made by Professor Block.18

Date Filed: 07/21/2015

Date Filed: 07/21/2015

Date Filed: 07/21/2015

per se is legally unsupportable.

Date Filed: 07/21/2015