CASE NO.

16-30966
____________________________________________
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

CERTIFICATE OF INTERESTED PERSONS

Pursuant to 5th Cir. R. 28.2.1, undersigned counsel certifies the following listed
persons/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 so 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

/S/ WARD F. LAFLEUR

WARD F. LAFLEUR
MARC J. MANDICH
COUNSEL FOR PLAINTIFF-APPELLANT,
WALTER BLOCK

ii

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 this case because it presents multiple unresolved and
intersecting issues of both Louisiana and Federal statutory, Constitutional and
jurisprudential law, which all potentially bear significant precedential value.

iii

TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS . . . . . . . . . . . . . . . . . . . . . . . . . . . i
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vi
STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
-

The District Court's Original Decision . . . . . . . . . . . . . . . . . . . . . . . . 7

The First Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

The District Court's Decision Post-Remand . . . . . . . . . . . . . . . . . . . 10

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
I.

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

II.

THE "SPECIAL MOTION" SHOULD NEVER HAVE

BEEN HEARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
A.

The Waiver Doctrine was erroneously applied . . . . . . . . . . . 16

1.

The issue is antecedent to and ultimately

dispositive of the dispute . . . . . . . . . . . . . . . . . . . . . . 19

iv

2.

B.
III.

Application of the doctrine was clearly erroneous

and will result in manifest injustice . . . . . . . . . . . . . 23

Article 971 directly collides with the Federal Rules . . . . . 23

THE COURT IMPROPERLY RESOLVED GENUINE

ISSUES OF FACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
A.

Defamatory Meaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

B.

Falsity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

C.

Malice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

TABLE OF AUTHORITIES
Cases:

Pages

Federal
3M Co. v. Boulter, 842 F. Supp. 2d 85 (D.D.C. 2012) . . . . . . . . . . . . . . . . . . 26, 27
Abbas v. Foreign Policy Grp., LLC,
783 F.3d 1328 (D.C. Cir. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 25, 26
Adelson v. Harris, 774 F.3d 803 (2d Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . 26, 27
All Plaintiffs v. All Defendants, 645 F.3d 329 (5th Cir. 2011) . . . . . . . . . . . . . . . 25
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) . . . . . . . . . . . . . . 21
Block v. Tanenhaus, 815 F.3d 218 (5th Cir. 2016) . . . . . . . . . . . . . . . . 9, 14, 17, 29
C&H Nationwide, Inc. v. Norwest Bank Texas NA,
208 F.3d 490 (5th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Certain Underwriters at Lloyds London v. Perraud,
623 F. App'x 628 (5th Cir. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Christianson v. Colt Indus. Operating Corp.,
486 U.S. 800, 108 S. Ct. 2166, 100 L. Ed. 2d 811 (1988) . . . . . . . . . . . . . 16
Christophersen v. Allied-Signal Corp., 939 F.2d 1106 (5th Cir. 1991)
abrogated by Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) . . . . . . . . . . . . . 30
Colorado Rep. Fed. Campaign Comm. v. Fed. Election Comm'n,
518 U.S. 604, 116 S. Ct. 2309, 135 L. Ed. 2d 795 (1996) . . . . . . . . . . . . . 17
Crocker v. Piedmont Aviation, Inc., 49 F.3d 735 (D.C. Cir. 1995) . . . . . . . . 20, 23
vi

Cuba v. Pylant, 814 F.3d 701 (5th Cir. 2016) . . . . . . . . . . . . . . . . . . . 24, 25, 26, 27
Empire Life Ins. Co. of Am. v. Valdak Corp.,
468 F.2d 330 (5th Cir. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Garza v. Webb Cty., Tex., 296 F.R.D. 511 (S.D. Tex. 2014) . . . . . . . . . . . . . . . . 26
GATX Aircraft Corp. v. M/V Courtney Leigh,
768 F.2d 711 (5th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 42
Godin v. Schencks, 629 F.3d 79 (1st Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Henry v. Lake Charles Am. Press, L.L.C.,
566 F.3d 164 (5th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 24, 25, 26
In re Baxter, No. 01-00026-M,
2001 WL 34806203 (W.D. La. Dec. 20, 2001) . . . . . . . . . . . . . . . . . . . . . 57
In re S. Louisiana Ethanol, LLC, No. 12-0854,
2014 WL 803704 (E.D. La. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20
Intercon Sols., Inc. v. Basel Action Network,
791 F.3d 729 (7th Cir. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27
Louisiana Crisis Assistance Ctr. v. Marzano-Lesnevich,
827 F. Supp. 2d 668 (E.D. La. 2011),
order vacated on reconsideration, 878 F. Supp. 2d 662 (2012) . . . . . . . . 15
Lozovyy v. Kurtz, 813 F.3d 576 (5th Cir. 2015) . . . . . . . . . . . . . . . . . . 9, 24, 27, 28
Makaeff v. Trump Univ., LLC,
715 F.3d 254 (9th Cir. Apr. 17, 2013) . . . . . . . . . . . . . . . . . . . . . . 21, 24, 26
Makaeff v. Trump Univ., LLC,
736 F.3d 1180 (9th Cir. Nov. 27, 2013) . . . . . . . . . . . . . . . . . . . . . . . . 26, 27
Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60 (1803) . . . . . . . . . . . . . . . . . . . . . . 18
vii

Marshall Investments Corp. v. R.P. Carbone Co., No. CIV.A. 05-6486,

2006 WL 2644959 (E.D. La. Sept. 13, 2006) . . . . . . . . . . . . . . . . . . . . . . . 30
Masson v. New Yorker Magazine, Inc.,
501 U.S. 496, 111 S. Ct. 2419, 115 L. Ed. 2d 447 (1991)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 39, 44, 45, 46, 47, 48, 49, 52, 55, 56
Med. Ctr. Pharmacy v. Holder, 634 F.3d 830 (5th Cir. 2011) . . . . . . . . . . . . 14, 18
Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832 (9th Cir. 2001) . . . . . . . . . . . 26, 27
New York Times Co. v. Sullivan,
376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964) . . . . . . . . . . . . . . . . 55
Price v. Stossel, 620 F.3d 992 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . 39, 41, 43, 46
Rosenblatt v. Baer,
383 U.S. 75, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966) . . . . . . . . . . . . . . . . . 23
Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co.,
559 U.S. 393, 130 S. Ct. 1431, 176 L. Ed. 2d 311 (2010) . . . . . . . . . . 16, 25
South Ottawa v. Perkins, 94 U.S. 260, 24 L. Ed. 154 (1876) . . . . . . . . . . . . . . . . 17
Unity Healthcare, Inc. v. Cty. of Hennepin,
308 F.R.D. 537 (D. Minn. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27
U.S. ex rel. Newsham v. Lockheed Missiles & Space Co.,
190 F.3d 963 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
U.S. v. Lee, 358 F.3d 315 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
U.S. v. Louisiana, No. 3:11-00470-JWD-RLB,
2016 WL 632492 (M.D. La. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
U.S. Natl Bank of Oregon v. Indep. Ins. Agents of Am., Inc.,
508 U.S. 439, 113 S. Ct. 2173, 124 L. Ed. 2d 402 (1993) . . . . . . . 17, 18, 20
viii

Walker v. Beaumont Indep. Sch. Dist., No. 1:15-CV-379,

2016 WL 1156852 (E.D. Tex. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Zobrest v. Catalina Foothills Sch. Dist.,
509 U.S. 1, 113 S. Ct. 2462, 125 L. Ed. 2d 1 (1993) . . . . . . . . . . . . . . . . . 17

State
Bell v. Rogers, 29,757 (La. App. 2 Cir. 8/20/97), 698 So. 2d 749 . . . . . . . . . . . . 37
Benson v. City of Marksville,
2001-1078 (La. App. 3 Cir. 2/6/02), 812 So. 2d 687,
writ denied, 2002-1066 (La. 6/14/02), 817 So. 2d 1158 . . . . . . . . . . . . . . 25
Britton v. Hustmyre, 2009-0847 (La. App. 1 Cir. 3/26/10),
2010 WL 1170222 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Costello v. Hardy, 2003-1146 (La. 1/21/04), 864 So. 2d 129 . . . . . . . . . . . . . . . 34
Darden v. Smith,
2003-1144 (La. App. 3 Cir. 6/30/04), 879 So. 2d 390,
writ denied, 2004-1955 (La. 11/15/04), 887 So. 2d 480 . . . . . . . . . . . 22, 27
Fitzgerald v. Tucker, 98-2313 (La. 6/29/99), 737 So. 2d 706 . . . . . . . . . 35, 37, 53
Guilbeaux v. Times of Acadiana, Inc.,
94-1270 (La. App. 3 Cir. 8/9/95), 661 So. 2d 1027,
writ denied, 95-2942 (La. 3/29/96), 670 So. 2d 1238 . . . . . . . . . . . . . 30, 37
Lee v. Pennington,
2002-0381 (La. App. 4 Cir. 10/16/02), 830 So. 2d 1037,
writ denied, 2002-2790 (La. 1/24/03), 836 So. 2d 52 . . . . . . . . . . . . . . . . 25
Sassone v. Elder, 626 So. 2d 345 (La. 1993)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31, 32, 33, 34, 37, 39, 40, 41, 48, 53, 55

ix

Schaefer v. Lynch, 406 So. 2d 185 (La. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Schroeder v. Bd. of Sup'rs of Louisiana State Univ.,
591 So. 2d 342 (La. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 42
Taylor v. Town of Arcadia, 519 So. 2d 303 (La. App. 2 Cir. 1988),
writ denied, 522 So. 2d 1097 (La. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Thomas v. Busby,
95-1147 (La. App. 3 Cir. 3/6/96), 670 So. 2d 603, writ granted,
judgment vacated, 96-0891 (La. 5/17/96), 673 So. 2d 601 . . . . . . . . . . . . 35
Yount v. Handshoe, 14-919 (La. App. 5 Cir. 5/28/15),
171 So. 3d 381, reh'g denied (June 16, 2015) . . . . . . . . . . . . . . . . . . . . . . 25

Statutes:
5th Cir. R. 32.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
28 U.S.C. 1332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Fed. R. App. P. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Fed. R. App. P. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Fed. R. App. P. 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 17
Fed. R. App. P. 28.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Fed. R. Civ. P. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Fed. R. Civ. P. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Fed. R. Civ. P. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 12, 16, 21, 22, 24, 25, 26, 28
x

Fed. R. Civ. P. 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Fed. R. Civ. P. 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Fed. R. Civ. P. 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Fed. R. Civ. P. 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Fed. R. Civ. P. 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 60
Fed. R. Civ. P. 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Fed. R. Civ. P. 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Fed. R. Civ. P. 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Fed. R. Civ. P. 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Fed. R. Civ. P. 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Fed. R. Civ. P. 56 . . . . . . . . . . . . . . . . . . . . . . . . . 21, 24, 25, 26, 27, 28, 30, 31, 51
La. Code Civ. P. art. 971
. . . . . . . . . . . . . 3, 8, 9, 10, 12, 14, 15, 16, 17, 21, 22, 24, 25, 26, 27, 28, 56, 57, 58

Secondary Sources:
10B Charles Alan Wright, Arthur R. Miller et al.,
Federal Practice & Procedure 2740 (3d ed. 2012) . . . . . . . . . . . . . . . . . 21
John H. Beisner, Discovering a Better Way: The Need for Effective
Civil Litigation Reform, 60 Duke L.J. 547 (2010) . . . . . . . . . . . . . . . . . . . 21

xi

STATEMENT OF JURISDICTION
Jurisdiction below was premised on 28 U.S.C. 1332 as complete diversity
exists and the amount in controversy exceeds $75,000.1 Jurisdiction over this appeal
exists pursuant to 28 U.S.C. 1291 and Fed. R. App. P. 3 as an appeal of the District
Courts August 2, 2016 decision.2 Notice of Appeal was timely filed (Fed. R. App.
P. 4) within 30 days of entry thereof on August 26, 2016.3

ROA.8-9.

ROA.925-47.

ROA.949-50.
2

STATEMENT OF ISSUES PRESENTED

1.

Does La. Code Civ. P. art. 971 directly collide with Federal Rules 12/56?
Antecedent thereto, does the waiver doctrine prevent review of this issue?

2.

Was it error to hold the direct quotations were incapable of defamatory

meaning without resort to implication?

3.

Was it error to hold the meaning/attitude a reasonable reader could take from
the quotations does not materially differ from the pleaded truth?

4.

Was it error to hold a genuine issue of malice could not be proven?

STATEMENT OF THE CASE

On January 25, 2014, the NYTimes published the article, Rand Pauls Mixed
Inheritance (the Article).4 It purports to analyze the nature of Pauls libertarian
supporters and the viability of his presidential candidacy in light of his libertarian
views, or so the NYTimes alleged. One supporter mentioned is Professor Block:
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
This statement was certainly a surprise to him and those who have read his
scholarly work, since he has devoted his academic career to promoting freedomthe
antithesis of slavery. What makes it even more surprising, he has authored peerreviewed articles regarding slavery, so his beliefs were easily accessible via Google
search to any reporter with a computer.
Unsurprisingly, since he is libertarian, he has always been a bitter opponent of
slavery, even calling for reparations to descendants of slaves from the property
4

ROA.502-17.

ROA.511. 8-pages/53-paragraphs earlier, the NYTimes indirectly referred to Blocks

comments, though without identifying him by name: 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. ROA.504. The falsely misleading nature of this
quotation is also discussed.
4

owners who reaped the benefits of the slaves stolen labor.6 He has labeled slaveowners guilty of theft and kidnaping, among other heinous crimes.7 He wrote: [w]ere
justice fully done in 1865 these people would have been incarcerated, and that part
of the value of their holdings attributed to slave labor would have been turned over
to ex-slaves.8 So the question becomes: how could the NYTimes possibly support
the assertion he described slavery as not so bad? It concedes the following blogpost reflects his interview-statements to defendant-Tanenhaus:
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
Any rational person reading this would realize the statement about slavery not
being so bad contains an indispensable qualifierfree association. Block was creating

ROA.826-62.

Id.

ROA.827. He justifies the imposition of ex post facto law by likening slave-holders to

the Nazis during the Nuremberg trials.
9

ROA.524 (emphasis added) & 477-78.

5

a theoretical, teaching-tool construct where slavery and free association co-exist. In

it, the slave is free to depart and/or otherwise not take part in the attributes of a slave
system. Of course, this construct has no semblance to what actually existed in the
U.S. Its purpose was to drive home the true evil of slavery was the lack of freedom,
not necessarily the incidents associated with the institution, which aligns perfectly
with the views of Frederick Douglass.10
While the merit of his views is not on trial, it is critical to divining his true
meaning/attitude. He was trying to explain to the NYTimes exactly why slavery was
such an abomination. Was it because slaves picked cotton? No, lots of people pick
cotton voluntarily. This is not the essence of the vile outrage of slavery. Was it
because slaves sang songs? No, lots of people do so voluntarily. This is not the
essence of the vile outrage of slavery. Was it because slaves lived in shacks? No, lots
of people do so voluntarily. This is not the essence of the vile outrage of slavery. Was
it because slaves ate gruel? No, some people do so voluntarily. This is not the essence
of the vile outrage of slavery. Not even this is the essence of the vile outrage of
slavery. This logic follows for all incidents associated with slavery since the evil
10

Speaking essentially as an expert, Douglass wrote of his own experience:

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. (ROA.875)
6

of each stems from the fact that it was forced upon the enslaved individual. Why then
was slavery such an outrage in Professor Blocks, i.e., the libertarian, view? Solely
because it was involuntarybecause people were forced to suffer these conditions
against their will. Suppose they were not compelled to be slaves, but everything
elsecotton, gruel, etc.stayed the same. Then, and only then, said Professor
Block to the NYTimes, slavery is not so bad.
He constructed this hypothetical to emphasize the importance of free
association by showing its lack was the true evil of slavery, not to trivialize the
plight of American slaves, precisely the opposite. For this, the NYTimes quoted him
as saying actual (coercive/compulsory) slavery was not so bad. As Judge Costa
remarked during the prior appeal, Winston Churchills words ([d]emocracy is the
worst form of government... except for any other) could just as easily have been
selectively quoted to falsify Churchills meaning.11
The NYTimes use of his words was omission by design. By ignoring the
indispensable qualifier,12 it succeeded in framing his words to convey the exact
opposite of what he truly espoused, hitting the libertarian where it hurt the

11

ROA.814.

12

The necessity of this qualifier to Blocks meaning is evidenced by his use of the word
otherwise, which indisputably links the language that follows to the conditional premise he
constructed.
7

mosttaking a person with a lifelong devotion to freedom and making him look like
a hardcore racist.
When the NYTimes failed to publish a retraction, he filed the instant claims for
defamation and false-light-invasion-of-privacy.13 The NYTimes responded by filing
a Special Motion to Strike under Article 971, seeking dismissal by asserting he
could not prove the statements were defamatory, false or made with malice.14 He
opposed with evidence establishing the reading public (including the president of his
own university) interpreted the Article exactly as he argues: they believed he voiced
support for slavery as it existed in the U.S.; there were requests for reprimand, firing,
and even threats of physical violence.15 Simply, the reading public felt he was a racist.
He also provided a substantial body of law supporting his legal position.16
-

The District Courts Original Decision

The court granted the NYTimes Motion on April 16, 2015, concluding the pre-

contextual quotations (1) were incapable of defamatory meaning, (2) were a truthful
rendition of Blocks views, and because they contain no falsehood, (3) were not made

13

ROA.8-16.

14

ROA.47-74.

15

ROA.290-92; 329-34.

16

ROA.264-89.
8

with malice.17 Critically, though the court did not address what probability of
success under Article 971 means, the NYTimes argued from the outset the claims
should be dismissed regardless of whether a probability-of-success or genuine-issueof-fact standard applied.18
-

The First Appeal

This Court vacated the decision and remanded, reasoning:
Lacking the benefit of our recent guidance in Lozovyy, the district court
did not consider defendants [motion] under the proper standard: It did
not purport to address whether Block established a genuine dispute of
material fact. Instead, the district court analyzed whether Block
established a probability of success... and in doing so arguably
resolved disputed questions of fact.19

Most notable about this decision is what this Court did not do. It fully grasped:
Although Block does not dispute that he made [the] statements, he argues that the
article takes the statements so far out of context as to make them untrue and
defamatory.20 Yet, it did not affirm the quotations out-of-context could amount to
no more than unactionable defamation by implication. Nor did it affirm the
statements give only the impression Block supports free enterprise at all costs. Nor

17

ROA.402-15.

18

Id.; ROA.47-74 & 371-82.

19

Block v. Tanenhaus, 815 F.3d 218, 221-22 (5th Cir. 2016) (emphasis added).

20

Id. at 220.
9

did it affirm the statements substantially reflect his actual meaning/attitude. This
Court could have affirmed the decision on any one of these purely legal bases (if any
was correct) but did not do so, notwithstanding the NYTimes assertion the decision
must be affirmed on any one of them.21 Quite the opposite, implicitly rejecting any
purely legal basis for dismissal, it found [the court] arguably resolved disputed
questions of fact.
Judicial economy would have required the decision be affirmed if there was
any justifiable legal basisas to any one essential elementin the courts opinion, or
even the NYTimes briefing, for doing so.22 Hence, the panel was not-so-subtly
hinting: had the proper standard been applied, this case would not have been subject
to pretrial dismissal. I.e., if the decision could have been affirmed regardless of the

21

ROA.639-40:

THE COURT: ... its undisputed [the court] applied the 971 standard?
MS. MINCE: It is undisputed [the court] applied 971, but it applied 971 not by
weighing any evidence,... not by deciding any contested issues of fact. [It] made
no credibility determination; it made no factual determinations. It simply
looked to the uncontested facts: Here is what Professor Block says his views are,
here is what the [NYTimes] article said, and decided based on that undisputed record
it wasnt false, it wasnt capable of defamatory meaning, and there was no evidence
of actual malice. And those are determinations that courts make all the time on
motions for summary judgment where there is no disputed issue of fact.
22

Remanding a case that is legally foreclosed on the record is economically wasteful and
completely avoidable. See Abbas v. Foreign Policy Group, 783 F.3d 1328 (D.C.Cir. 2015)
(holding statute could not be applied, but dismissing on alternative purely legal finding).
10

standard applied, it would have made no sense to remand because the wrong
standard was applied. The factual burden is a complete non-issue if the case could
have been decided on purely legal grounds. Despite the NYTimes vigorous argument
the factual burden was moot as such, this Court was not convinced.
-

The District Courts Decision Post-Remand

Despite this Courts observation the court arguably resolved disputed

questions of fact[,] its decision post-remand reveals mostly superficial changesa

mere re-crafting of the opinion into genuine-issue rather than probability-of-success
terms.23 I.e., despite the same evidence a number of readers took from the Article
materially false and defamatory representations of Professor Blocks meaning, the
court maintained:
1.

The statements were not objectively false;24

2.

They were incapable of defamatory meaning or, at most, could be

considered defamatory implication;25

3.

Malice could not be shown because falsity could not be shown;

alternatively, providing discovery on malice would be futile because
of 1-2 above;26 and

23

ROA.925-47.

24

ROA.940-42.

25

ROA.942-45.

26

ROA.945-46.
11

4.

The false-light-invasion-of-privacy claim must be dismissed for 1 & 3

aboveinability to show falsity/malice.27

It also declined to address the direct collision issue finding this Courts
mandate precluded same,28 and awarded the NYTimes attorneys fees/costs in an
amount to be determined through subsequent motion practice.29
SUMMARY OF ARGUMENT
(1)

Article 971 directly collides with Rules 12/56 because it utilizes a different

burden-shifting dynamic, prevents discovery, arguably mandates award of attorneys

fees/costs, and otherwise divests the court of discretion it would have under Rules
12/56. It was error to deem this issue waived because courts cannot abdicate the duty
to state what the applicable law is. Alternatively, this Court should reach this issue
under one or more discretionary waiver doctrine exceptions.
(2)

Holding the statements incapable of defamatory meaning or, at most,

unactionable defamatory implication was legal error. Evidence proved one or more
reasonable readers took defamatory meaning from the statementsto hold, despite
this evidence, no reasonable reader could view the statements as defamatory is plain

27

ROA.946.

28

ROA.930-33.

29

ROA.946. Should this Court determine Article 971 does not apply, but the NYTimes is
still entitled to dismissal under Rule 56, the attorney-fee award must be set aside.
12

legal error under Rule 56. Further, it defies common sense to assert quoting someone
as saying forced slavery was not so bad is not defamatory per se.
(3)

Holding Professor Block could not show a genuine issue of falsity was legal

error. Viewing the evidence in the light most favorable to him, it was error to
conclude the statements could not possibly have a different effect on the mind of the
reader from that which the pleaded truth would have produced because, again,
evidence proved reasonable readers did take false meaning therefrom.
(4)

Holding Professor Block failed to show a genuine issue of malice was legal

error because of the erroneous finding regarding falsity. Moreover, controlling

precedent establishes proving a genuine issue of falsity in the context of misquotation
is alone sufficient to show malice at this stage. Alternatively, should this Court agree
Block has made the necessary showing regarding falsity/defamatory-meaning, this
case must be remanded for discovery into malice. The court cannot dismiss for failure
of proof of malice while simultaneously prohibiting its being sought.
(5)

Survival of the false-light-invasion-of-privacy claim depends upon the same

proof (falsity/malice) as the defamation claim. Reversal on the defamation claim

necessarily requires reversal on this claim.

13

ARGUMENT
I.

STANDARD OF REVIEW
This Courts review is de novo.30 It must view[] the record and inferences

from the facts in the light most favorable to [Professor Block] who 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 [NYTimes].31 Reversal is required if the
evidence, viewed as such, at least arguably supports the statements, through the eyes
of a reasonable reader: (1) are capable of defamatory meaning; (2) are capable of
being viewed as falsely characterizing meaning or attitude; and (3) allow the
inference of knowledge-of-falsity or reckless-disregard-for-truth.
This Court also reviews de novo whether and how Article 971 applies,32
whether the waiver doctrine was properly applied and/or whether to exercise
discretion to re-open an issue deemed waived.33
II.

THE SPECIAL MOTION SHOULD NEVER HAVE BEEN HEARD

Professor Block concedes he did not originally raise the direct collision

30

Henry v. Lake Charles American Press, LLC, 566 F.3d 164, 169 (5th Cir. 2009).

31

GATX Aircraft Corp. v. M/V Courtney Leigh, 768 F.2d 711, 714 (5th Cir. 1985);
Schroeder v. Bd. of Sup'rs of LSU, 591 So. 2d 342, 345 (La. 1991).
32

Block, 815 F.3d at 220.

33

Med. Ctr. Pharmacy v. Holder, 634 F.3d 830, 834 (5th Cir. 2011).
14

theory in all its contours. But it was raised, as a basis for denying the Special Motion,
from the very beginning.34 Unfortunately, he was battling a changing jurisprudential
landscape;35 and was under a very heavy burden from the outset that, because of
briefing constraints the court refused to enlarge,36 required him to make complex
procedural and substantive arguments in relatively limited fashion.37 Even on remand,
presented with two legally-justified counter-motions, the court still limited him to
opposing the Special Motion in no more than 30 pages.38

34

ROA.156-60 & 268-70.

35

As Block noted prior to (ROA.268) and on the first appeal (2015 WL 4579343), this
minority view relied mainly on extra-Circuit district-level cases until after the first dismissal.
Even on appeal, he had to weigh how much briefing space to devote to the theory against the fact
that this Court had previously ruled 971 applies. Henry at 168-69. He reasonably believed the
theoryno matter how supportedhad very little chance of success. But one particular argument
burden of proofdid merit a few valuable pages because it had support within this Circuit (La.
Crisis Assist. Ctr. v. Marzano-Lesnevich, 827 F. Supp. 2d 668 (E.D. La. 2011)) and, without
discovery, the less-stringent standard likely represented his only hope of success.
36

ROA.263. This required some arguments be cut or relegated to footnotes (Cf. ROA.13997 to 264-89) leading to the courts ignoring many of them. ROA.402-15.
37

971 required a probability-of-success showing on every element under alternative

definitions of said standard. The court held this was insufficient basis for enlarging the 25-page
limit. ROA.263. Thus, minority-view direct-collision arguments had to be given the least
priority. U.S. v. Lee, 358 F.3d 315, 324 (5th Cir. 2004) ([waiver depends on] whether the party
had [sufficient] incentive to raise th[at] issue in the prior proceedings).
38

ROA.734-62 & 763-76. Block had prepared an opposition to what amounted to the
NYTimes own motion to strike these pleadings (ROA.728-32) (dubbed an opposition to Motion
for Expedited Consideration, but not addressing the request for expedited consideration in any
way). The NYTimes effectively submitted an unopposed motion to strike the counter-motions
through procedural maneuvering because the court rendered judgment thereupon before Block
had an opportunity to oppose. ROA.773; 777-78. It was both procedural and substantive error to
grant the NYTimes request for such relief unopposed. The would-be opposition established the
15

Professor Block had to assume the Special Motion would be heard on its
merits, so he had to devote the lion-share of his briefing to proving every element of
his claims lest he face immediate dismissal and liability for the NYTimes attorneys
fees/costs. Obviously, the cards have been heavily stacked against him at all stages
of this litigation thus far. That is by designArticle 971's very purpose is to place an
exceedingly difficult path in front of anyone suing a media defendant. This alone is
evident of its impropriety since Rule 56 is designed to allow dismissal of only those
cases completely incapable of proof even when viewed in the light most favorable to
and with all doubt resolved in favor of the non-movant.
Though the court chose to circumvent the direct-collision issue under this
Courts mandate, this Court has full discretion to consider it.39 For the equitable
reasons above and jurisprudential reasons below, Professor Block submits this Court
should do so and should join the chorus deeming Anti-SLAPP motions inapplicable
in federal court. Indeed, Article 971's application violates Supreme Court precedent,40
alone sufficient basis for addressing it. Professor Block first argues the waiver

pleadings were proper under Federal Rules 7 & 12(f) because they sought: (1) to have evidence
stricken from the NYTimes submission; (2) to strike the Article 971 affirmative defense.
39

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 81718 (1988)) (A court
has the power to revisit prior decisions of its own... in any circumstance...).
40

Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010).
16

doctrine was erroneously applied. Alternatively, he argues it should be ignored as a

discretionary matter based on equity and one or more recognized exceptions.
A.

The Waiver Doctrine was erroneously applied

The previous panel determined [Article 971] provides the same standard as
Rule 56; thus, there is no [direct collision] on that basis; it declined to address other
direct-collision arguments raised in a Rule 28(j) letter, deeming them waived by
Professor Blocks failure to brief them sufficiently.41
Respectfully, it was error to deem these other bases for reversal waived. Courts
must never abdicate the responsibility to determine the governing law regardless of
the arguments raised because parties cannot stipulate to same and any decision
founded upon inapplicable law is inherently erroneous.42 [T]here can be no
estoppel in the way of ascertaining the existence [or, necessarily, applicability]
of a law[.]43 The foregoing harkens to the oldest, most well-known dictate of
41

Block at 221 & n.3.

42

U.S. Natl Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 44647 (1993);
Certain Underwriters at Lloyds London v. Perraud, 623 F. App'x 628, 63536 (5th Cir. 2015).
43

U.S. Natl Bank at 447 (quoting South Ottawa v. Perkins, 94 U.S. 260, 267 (1877)); see
also Perraud at 635-36 ([parties] cannot, in essence, stipulate to the legal question... in an
attempt to prompt new law on an issue that may not be implicated...); Colorado Rep. Fed.
Campaign Comm. v. Fed. Elec. Comm'n, 518 U.S. 604, 622 (1996) (the proper understanding of
matters of law cannot be left merely to the stipulation of parties); Zobrest v. Catalina
Foothills Sch. Dist., 509 U.S. 1, 1617 (1993) (parties cannot extract an advisory opinion in this
way); Empire Life Ins. Co. of America v. Valdak Corp., 468 F.2d 330, 334 (5th Cir.1972) (Our
duty is to enunciate the law on the record facts. Neither the parties nor the trial judge, by
17

judicial theory in the U.S. since its very founding:

It is emphatically the province and duty of the judicial department to
say what the law is. Those who apply the rule to particular cases, must
of necessity expound and interpret that rule. If two laws conflict with
each other, the courts must decide on the operation of each.... This is
of the very essence of judicial duty.44
Moreover, the law does not require a party to raise all arguments supporting a
theory for the Court to consider them. That the theory was raised at all is sufficient
for the Court to consider all possible direct collisions whether detailed in brief or
not. The District Judge that decided this case observed as much in a prior case,
declining to apply the waiver doctrine:
ENGlobal did raise the validity issue [previously]...[they are] not
seeking to raise a [waived] issue, but rather they are making a
subsequent argument in regards to an issue that had been previously
raised [distinguishing Med. Ctr. Pharmacy].45
The Supreme Court has acknowledged this as well:
[W]hen an issue or claim is properly before the court, the court is not
limited to the particular legal theories advanced by the parties, but
rather retains the independent power to identify and apply the proper
construction of governing law,... even where the proper construction
is that a law does not govern....46

agreement or passivity, can force us to abdicate our appellate responsibility.).

44

Marbury v. Madison, 5 U.S. 137, 17778 (1803) (emphasis added).

45

In re S. Louisiana Ethanol, 2014 WL 803704 at *5 (E.D. La. 2014) (emphasis added).

46

U.S. Natl Bank at 44647 (emphasis added).

18

Based on either of the justifications above, it was error to apply the waiver
doctrine to discrete arguments in favor of the direct-collision theory. The theory was
raised and, regardless, what the law is in this case must be determined.
Alternatively, this Court has full discretion to re-open this issue and should do
so as a matter of law and equity. It is unfair to litigants to continue to leave open
whether this incredibly harsh state statute can even be applied. In this case, it has
resulted in over two years of litigation on one motion, including two appeals, with the
legal costs/expenses that entails. Yet no discovery has been had. It is as if this
litigation has sat idle for 2+ years and not even truly begun. The great weight of
authority now supports the view it cannot be applied. There is no just reason for
further delay in rendering a decision one way or the other. Further, a decision from
this Court will facilitate an ultimate Circuit consensus or, at least, a clear divide that
will accelerate controlling determination by the Supreme Court.
1.

The issue is antecedent to and ultimately dispositive of the

dispute

Moving on to discretionary exceptions, the appellate court... always possesses

discretion to reach an otherwise waived issue logically antecedent to and ultimately
dispositive of the dispute before it though it should normally [be] exercised only

19

in exceptional circumstances, [such as] where injustice might otherwise result.47

The District Court declined to apply this exception for two reasons: (1) it held it does
not apply in this Circuit; (2) even if it did, Block could not show exceptional
circumstances because even if this [c]ourt were to [uphold the] argument... the same
result would necessarily ensue on summary judgment.48
The first of these reasons is surprising since Judge Lemelle has applied this
exception before himself,49 as has this Court.50 Also quite notable, this Court applied
this exception in a case which similarly dealt with a question as to the law to be
applied, amply expounding upon the important precept that courts refus[e] to accept
what in effect [is] a stipulation on a question of law [by the parties][,] since to do so
would amount to rending an advisory opinion.51 The District Courts first stated
basis for failing to apply this exception has no merit.
The second reasonno injustice would occur because the same result would
necessarily ensue on summary judgmentis erroneous for a reason that strikes at the
47

Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739-40 (D.C. Cir. 1995) (quoting U.S.
Natl Bank at 447).
48

ROA.932.

49

S. Louisiana Ethanol at *4 (quoting Crocker).

50

Perraud at 63536.

51

Id. (quoting C & H Nationwide, Inc. v. Norwest Bank Texas NA, 208 F.3d 490, 493 (5th
Cir.2000) ([f]ederal courts are not in the business of rendering advisory opinions)).
20

heart of one of the primary direct-collision arguments raised. Article 971 allows
evidentiary summary dismissal while simultaneously mandating no discovery be
had.52 The very injustice implicit in the courts reasoning was most eloquently stated
by C.J. Kozinski of the Ninth Circuit:
The Federal Rules contemplate that the sufficiency of a plaintiff's case
will be tested prior to discovery only for legal sufficiency. [Rule 12]....
[they] provide for a period for discovery before defendant can test
plaintiff's case for factual sufficiency. [Rules 26, 2937, 56]; Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5...The Federal Rules don't
contemplate that a defendant may get a case dismissed for factual
insufficiency while concealing evidence that supports plaintiff's case.
See 10B Charles Alan Wright, Arthur R. Miller et al., Federal Practice
& Procedure 2740 (3d ed. 2012); see also [Rule 56(d)]....The Federal
Rules, after all, reflect a policy of forcing a defendant to disclose
adverse facts before he may challenge plaintiffs case for factual
sufficiency.... 60 Duke L.J. 547, 554-59 (2010).53
This procedural issue is dispositive of defendants Motion and logically
antecedent to the substantive arguments raised: if the law cannot be applied, the
substantive arguments are never reached. Further, the injustice of applying the waiver
doctrine is self-evident: Professor Blocks right to seek redress of grievances might
forever be foreclosed, without any opportunity to conduct discovery, through
application of a statute that should never have been applied. He would lose not just

52

La. Code Civ. P. art. 971(A)(2) & (D).

53

Makaeff v. Trump Univ., LLC, 715 F.3d 254, 274 (9th Cir. 2013) (joined by Paez, J.).
21

his day in court, but even the opportunity to reach the summary stage of litigation.
The NYTimes was allowed the luxury of submitting an evidentiary motion
without even having to file an answer and while preventing discovery necessary to
oppose. I.e., Article 971, unlike Rule 12, did not require the NYTimes to seek only
a judgment on the pleadings, but allowed it to place Professor Block on evidentiary
proof of his claims with both hands tied behind his back. Two years later and at
considerable expense, the Motion has resulted in his losing his Constitutionallyprotected day in court. It has also exposed him to liability for the NYTimes
attorneys fees/costs, which it seeks to the tune of roughly $80,000.54 And this harsh
punishment exacted against him is for nothing more than his good faith attempt to
protect his reputation. If either the loss of rights or the potential liability exposure is
not proof application of the waiver doctrine will result in clear injustice, Professor
Block is at a loss to imagine what would. Indeed, there is strong argument application
of Article 971's litigation-deterrent liability-exposure provision in any court, federal
or state, has a chilling effect on the right of individuals to access the courts.55
Per the Supreme Court, [s]ociety has a pervasive and strong interest in

54

ROA.952-67.

55

Darden v. Smith, 879 So. 2d 390, 40001 (La. App. 3 Cir. 2004) (Cooks, J. dissenting).
22

preventing and redressing attacks upon reputation.56 In the oft-cited words of Justice
Stewart: (1) [t]he right of a man to the protection of his own reputation... reflects no
more than our basic concept of the essential dignity and worth of every human
beinga concept at the root of any decent system of ordered liberty; and (2) [t]he
destruction that defamatory falsehood can bring is, to be sure, often beyond the
capacity of the law to redeem... imperfect though it is, an action for damages is the
only hope for vindication or redress the law gives to a man whose reputation has
been falsely dishonored.57 That it could be lost here under inapplicable law simply
for failure to detail all evolving arguments supporting the theory is manifest injustice.
2.

Application of the doctrine was clearly erroneous and will

result in manifest injustice

The analysis above supports another discretionary basis for deviating from the
waiver doctrine: the previous decision was clearly erroneous and would work a
manifest injustice[.]58
Again, this Courts previous decision to apply the waiver doctrine and the
District Courts subsequent decision to apply the mandate rule are clearly
erroneous. While, normally, arguments can be waived by a litigant who fails to brief
56

Rosenblatt v. Baer, 383 U.S. 75, 86 (1966).

57

Id. at 92-93 (emphasis added).

58

Crocker at 739-40.
23

them, this is not so with arguments as to either jurisdiction or the governing law. And,
for the above-stated reasons, the error will work manifest injustice.
It would be prejudicial in the extreme to foreclose Professor Blocks only
hope for vindication under a statute where the great weight of authority is currently
concluding its kin cannot be applied (and which this Court will likely determine in
a later case cannot be applied) simply because, though he raised the theory, he did not
brief every possible argument in support thereof at a time when these arguments were
still evolving and the theory as a whole had very little chance of success.
B.

Article 971 directly collides with the Federal Rules

Since there are numerous other ways Article 971 directly collides with Rules
12/56 besides its burden of proof, it cannot be applied.
Before addressing the collisions, Professor Block notes J. Graves has implicitly
repudiated Henrys holding on the antecedent Erie question in dissent in Cuba v.
Pylant: [Texas statute] is procedural and must be ignored.59 The Ninth Circuits
C.J. Kozinski and J. Paez agree.60 Henry should be overruled as not even Erie

59

814 F.3d 701, 719 (5th Cir. 2016). N.B., Texas statute is nearly identical to Article
971. See Walker v. Beaumont Indep. Sch. Dist., 2016 WL 1156852 at *1 (E.D. Tex. 2016).
60

Makaeff at 273-75. The procedural mechanisms of Californias statute are the exact
ones employed by Article 971, hence this Courts tendency to rely on Ninth Circuit jurisprudence
when interpreting it. Lozovyy v. Kurtz, 813 F.3d 576, 584 & fn. 5 (5th Cir. 2015).
24

principles support Article 971's application here.61

Since Henry can only be overturned by this Court en banc, Professor Block
turns to J. Graves alternate conclusion: anti-SLAPP statutes directly collide with
Rules 12/56. This finding does not contravene Henry and should be adopted. The
Circuits are aligning on this. Its time this Court join the chorus. Litigants must have
clear guidance on this procedural issue and the courts must be relieved of the copious,
avoidable and costly pre-trial litigation now straining resources.
That Article 971 is substantive under current law does not end the inquiry. The
direct-collision test must be applied.62 It provides the state law must not be applied
if a Federal Rule (1) answer[s] the same question; and (2) does not violate the
Rules Enabling Act.63 Rules 12/56 represent a valid exercise of Congress rulemaking authority.64 So Professor Block turns to whether Rules 12/56 control the
issue of pre-trial dismissal in federal court.
Rules 12/56 constitute an integrated program of pre-trial... procedures
61

Benson v. C. of Marksville, 812 So.2d 687, 691 (La.App.3 Cir.2002) (we agree with...
characterization of [971] as procedural legislation);Lee v. Pennington, 830 So.2d 1037, 104142 (La.App.4 Cir.2002) (971 was enacted... as a procedural device...);Yount v. Handshoe, 171
So.3d 381, 387 (La.App.5 Cir.2015) (This extraordinary procedural remedy...).
62

Cuba at 719 (quoting All Plaintiffs v. All Defendants, 645 F.3d 329, 333-36 (5th Cir.
2011) (citing Shady Grove).
63

Abbas at 1333 (quoting Shady Grove at 398).

64

Cuba at 720 (Graves, J. dissenting) (citing Shady Grove at 404; Abbas at 1337).
25

designed to ensure the just, speedy, and inexpensive determination of every action
and proceeding.65 They do not allow for application of exotic state procedures like
Article 971.66 Importantly, the Ninth Circuit case on which all contrary holdings have
rested (U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th
Cir.1999)) has been harshly criticized by no less than four members of that bench.67
Needless to say the contrary viewpoint is barely hanging on by a thread. It is clear
Rules 12/56 answer the same question as Article 971: using what procedures can

65

Id. (quoting Makaeff at 274); see also U.S. v. Louisiana, 2016 WL 632492, *1 (M.D.
La. 2016) (citing Makaeff; quoting Garza v. Webb Cnty., 296 F.R.D. 511, 512 (S.D. Tex. 2014)
([T]he federal rules should be viewed... as an integrated whole...)).
66

Abbas at 1334 (citing Makaeff at 274; quoting Makaeff, 736 F.3d 1180, 1188 (9th
Cir.2013) (Watford, J., dissenting, Kozinski, C.J., Paez and Bea, J.J.) (Rules 12 and 56
establish the exclusive criteria for testing the legal and factual sufficiency of a claim in federal
court); 3M Co. v. Boulter, 842 F.Supp. 2d 85, 96 & 102 (D.D.C. 2012) (same); Intercon Sol. v.
Basel Action Network, 791 F.3d 729, 732 (7th Cir. 2015) (same); Unity Healthcare, Inc. v. Cty of
Hennepin, 308 F.R.D. 537, 541 (D. Minn. 2015) (same); Adelson v. Harris, 774 F.3d 803, 809
(2d Cir. 2014) (the discovery-limiting provision of Nevadas statute directly collides with Rule
56, with the implication Rule 56 controls); Metabolife Intl, Inc. v. Wornick, 264 F.3d 832, 84545 (9th Cir. 2001) (same as Adelson); and Cuba at 719-21.
67

Makaeff at 274-75 (Newshaw was wrong even on its own terms; it vastly understates
the disruption when federal courts apply the [statute] because [t]he Federal Rules aren't just a
series of disconnected procedural devices; it cuts an ugly gash through [their] orderly process;
not relenting, C.J. Kozinski frankly wrote, Newsham was a big mistake. Two other circuits
have foolishly followed it. [Godin v. Schencks, 629 F.3d 79, 81, 8591 (1st Cir.2010); Henry,
566 F.3d at 16869]. I've read their opinions and find them no more persuasive than Newsham
itself. It's time we led the way back out of the wilderness. Federal courts have no business
applying exotic state procedural rules which, of necessity, disrupt the comprehensive scheme
embodied in the Federal Rules, our jurisdictional statutes and Supreme Court interpretations
thereof.); Makaeff at 1188 (Watford, J., dissenting, Kozinski, C.J., Paez and Bea, J.J.).
26

a claim be dismissed prior to trial?68 The only question then is whether any part of it
besides its burden of proof directly conflicts. The answer is yes. Its provisions are oil
to the water of Rule 56's more permissive standard[s]69 to wit:
(1)

Article 971 requires no showing on the merits to shift the burden to the
nonmovant.70 Judge Graves and two federal courts have concluded this
dynamic contravenes the Federal Rules.71

(2)

Unless the nonmovant shows good cause on noticed motion, discovery is

stayed.72 All decisions that have analyzed the discovery-limiting aspects of
such statutes have found they directly collide.73

(3)

The successful movant shall be awarded attorneys fees/costs (Article

971(B)); arguably, the court has no discretion on this.74 Provisions that attempt
to supercede discretion otherwise vested in the federal courts directly collide.75
68

Lozovyy at 582 (it provides burden-shifting analysis for weeding out frivolous claims).

69

Unity Healthcare at 541.

70

La. Code Civ. P. art. 971(A)(1).

71

Boulter at 102 (D.C.s statute directly collides by [inter alia] altering the procedures...
for determining a challenge to the merits of a plaintiffs claim); Unity Healthcare at 541
(Minnesotas statute directly collides because the nonmoving party bears the [initial] burden
of production, proof and persuasion); Cuba at 719-21.
72

La. Code Civ. P. art. 971(A)(2) & (D).

73

Metabolife at 845 (9th Cir.); Adelson at 809 (2d Cir.); Boulter at 102 (D.D.C.); and Unity
Healthcare at 541 (D.Minn.).
74

Darden at 400.

75

Boulter at 104 ([a]nother reason [the D.C.Act directly collides] is that it wholly strips a
federal court of the discretion it otherwise has...); Unity Healthcare at 548 & fn. 6; see also
Makaeff at 274 (direct collision because the statute authorizes attorneys' fees... by a standard far
different from... [F.R.C.P.] 11); Intercon Solutions at 732 (7th Cir.) (none of statutes provisions
could be applied: ... not its fee-shifting requirement, not its penalty, and not its special motion
27

(4)

Article 971 mandates this Court consider extra-pleading submissions.76 Under

Rules 12/56, federal courts can either (1) consider an evidentiary motion
submitted prior to discovery under Rule 12; or (2) treat it as a Rule 56 motion
and consider evidence. Hence, another direct collision: 971 strips the federal
court of the discretion it has to exclude extra-pleadings submissions77
Virtually every procedural mechanism of Article 971directly collides with

Rules 12/56. Following Lozovyy, it has been harmonized with Rule 56 in only one
waythe nonmovants burden is the same under both rules. Based on each of the
foregoing standing alone, the Special Motion must be dismissed.
III.

THE COURT IMPROPERLY RESOLVED GENUINE ISSUES OF FACT

It is evident on the face of the filings below the Article was published to third

parties and Professor Block suffered injury to his reputation, so these elements are not
discussed.78 Further, since the parties, the District Court and the law agree proof
sufficient to sustain the defamation claim also creates a jury question as to the falselight-invasion-of-privacy claim, he addresses the elements but once, trusting this
Court will apply the analysis to both claims.

to strike). It should be noted fee-shifting under the Federal Rules is not a matter of unfettered
discretion, but requires, essentially, bad faith. Fed. R. Civ. P. 11 & 56(h).
76

La. Code Civ. P. art. 971(A)(2) (the court shall consider... affidavits).

77

Fn. 75, supra.

78

That said, evidence (ROA.826-67) establishes a genuine issue of reputational injury.

28

A.

Defamatory Meaning

Despite the prior panels finding the District Courts original opinion arguably
resolved disputed questions of fact[,] the court maintained its finding regarding
defamatory meaning did not require resolution of disputed fact.79 The prior panel was
presumably alluding to the evidence reasonable readers took meaning materially
different from Professor Blocks own from the statements.80 The court, in its second
decision, stated: This Court accepts as credible Blocks evidence that some readers
derived other meaning from the article, but that goes to whether the article had a
defamatory implication, not whether it was defamatory on its face.81 This was an
attempt to fashion its original reasoning regarding this evidence ([t]he fact that some
may interpret the article that way does not contravene [the courts] point [that the
statements were incapable of defamatory meaning])82 as a legal rather than factual
conclusion. But the new phraseology suffers from the same legal error.
In this posture, the legal question of defamatory meaningnot defamatory
implicationis answered by determining whether a listener could have

79

Block at 221; ROA.942-45.

80

ROA.826-67.

81

ROA.944.

82

ROA.411.
29

reasonably understood the communication, taken in context, to have been intended

in a defamatory sense; the effect it was reasonably intended to produce in the
mind of the average listener is the linchpin of the defamatory-meaning question.83
Necessarily, then, the courts accept[ing] as credible Blocks evidence that some
readers derived other [defamatory] meaning directly contradicts its holding.84 Also
of note, the same evidence was before the prior panel, yet it did not affirm the
statements amounted to only defamatory implication, a legal basis for dismissal.
The court also opined Professor Block was incorrect in his assertion Sassone
v. Elder supports the statements were facially defamatory because Sassone does not,
nor does it purport to, address defamation per se or statements that are defamatory on
their face.85 Admittedly, Professor Blocks position regarding Sassone relies upon
the courts dicta, but since it is a Louisiana Supreme Court decision, its dicta should
not be so easily cast aside. The Sassone court analyzed, separately, multiple allegedly

83

Guilbeaux v. Times of Acadiana, Inc., 661 So. 2d 1027, 1031 (La. App. 3 Cir. 8/9/95);
and Marshall Investments Corp. v. R.P. Carbone Co., 2006 WL 2644959 *4 (E.D. La. 2006).
84

While the courts legal conclusion is reviewed de novo, its decision to accept evidence
as credible arguably must be affirmed as not manifestly erroneous. Christophersen v. AlliedSignal Corp., 939 F.2d 1106, 1109 (5th Cir. 1991) ([a]lthough we review grants of summary
judgment de novo... in Rule 56 proceedings we still apply the manifest-error standard... [to]
evidentiary rulings).
85

ROA.943 (citing 626 So.2d 345, 353 (La. 1993)).

30

defamatory statements in a news-piece.86

It first found statements such as the defendant-reporters comment that other
individuals told him the plaintiff-lawyers did not have working telephone numbers
could not be considered defamatory without resort to alleged implication created
thereby (the plaintiffs were shady lawyers).87 In sharp contrast, the court next
considered whether the defendant-reporter falsely mischaracterized the comments of
a district attorney (Greenburg) regarding a lawyer (Lloyd) who was not one of
the plaintiffs.88 In preface to Sassones discussion of the latter misleading quotations,
Professor Block notes Sassone did not, at any point, intimate the misuse of
Greenburgs quoted words, like the other statements, could amount to no more than
defamatory implication.
In one instance, the defendant-reporter followed his lead-in statement [DA]
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

86

Sassone at 352 ([W]e consider separately the five portions... plaintiffs point to as
defamatory. Of course, each portion will be considered in the context of the entire report.)
87

Sassone at 353-54.

88

This fact rendered this portion dicta. The opinion is clear, however, if the quotes had
concerned one of the plaintiffs, they would have been actionable (not defamatory implication).
31

the proved criminality of Lloyds activities... but in response to [the reporters]

hypothetical question which assumed the truth about Lloyds activities...89 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 the allegations about Lloyd were proved,
this person was a criminal charlatan of the worst order.90
The court stated the reporters use of Greenburgs statements, on its face,
arguably present[ed] a jury question whether the statements were maliciously
misused and so distorted as to be untruenoticeably absent is any indication resort
to implication would be required to find the use of the direct quotes defamatory.91
The thrust of this reasoning is clear: distortion of a statement by divorcing it from
context and depriving it of its intended meaning most certainly can be outright
defamation, shows malice in and of itself, and the fact that context is necessary to
prove falsity does not render it mere defamatory implication.
Greenburg posited, hypothetically, if the allegations were true, he would

89

Sassone at 354-55.

90

Id. at 355.

91

Id. (emphasis added).

32

consider Lloyd a criminal. Defamatory meaning arose out of the manner in which the
reporter presented exact quotes. Professor Block posited if the conditions attendant
to slavery were voluntary, such hypothetical voluntary slavery is not so bad because
the evil of slavery is that it was compulsory. Just like Greenburg, he spoke only in
hypothetical/conditional terms. He clearly and repeatedly stressed slavery was wrong,
not merely fault-worthy, because of its defining characteristicgross deprivation of
freedomand only the hypothetical, oxymoronic situation of voluntary slavery
could otherwise be considered not so bad. When the NYTimes omitted this
crucial fact, it assigned false meaning to his comments. As Sassone indicates, such
an egregious misrepresentationnotwithstanding

the

person

was

quoted

verbatimconstitutes an explicitly defamatory and at least arguably malicious

statement on its face. Pseudo-journalists often play the gotcha game by taking
statements out of context, but when they do so in a way that completely distorts
meaning, neither Louisiana law nor the First Amendment shields their actions from
liability.
This Sassone discussion is and always has been submitted to show a precontextual quotation is judged for defamatory meaning based on the context given to
it by the reporter. It is not, as the NYTimes asserts, immune from anything other than
defamatory implication simply because the speakers exact words were used. I.e.,
33

Professor Block was simply showing Louisiana law is in accord with the Supreme
Courts observations an exact quotation out of context can distort meaning, although
the speaker did use each reported word, and if the alterations... 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.92 To the extent
the District Court read Blocks argument differently, he must not have been clear.
Of course, that alone does not establish defamatory meaning here since, in
Sassone, defamatory meaning was obviousthe way the quotes were used, they
branded Lloyd a criminal. Professor Block simply argues the case is no different
when a reporter conveys someone described forced slavery as not so bad by resort
to the other category of defamatory-per-se statements: [those which] expressly or
implicitly... by their very nature tend to injure ones personal or professional
reputation, even without considering extrinsic facts or surrounding circumstances.93
It is indisputable some readers took from the statements Professor Block voiced
support for forced (chattel) slavery as it existed in the U.S.94 That is no less
defamatory per se than conveying criminal guilt because modern society does not
92

Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 515 & 517 (1991).

93

Costello v. Hardy, 864 So.2d 129, 140 (La. 2004).

94

As Judge Clement noted, Fr. Wildes publicly opinedbased upon his reading of the
ArticleProfessor Block believes chattel slavery is not so bad. ROA.820.
34

tolerate such views, no just society would, and judicial notice could be taken of that
fact. That is precisely why monikers like racist, pro-Confederacy, anti-Abolitionist,
as referenced in this Article,95 are so haphazardly used by reporters to describe
people/viewpoints with which they disagree. One would be hard-pressed to come up
with an accusation (besides, say, murder/rape/child-molestation is not so bad) that
would lead more directly and inevitably to social stigmatization. Since the Article
contains this explicitly defamatory statement, the implication created by the Article
as a wholethat Professor Block is an outspoken racist of the most deplorable kindis
also actionable.96
To reach its finding the statements, objectively, did not carry faciallyor even
per sedefamatory meaning Block supports or is at least sympathetic to forced
slavery, the court purported to read the two passages concerning him together:

95

See, e.g., ROA.504 (the comments surrounding the indirect reference to Block).

96

Louisianas defamation-by-implication holds only implication standing alone is

insufficient to prove an otherwise true statement about a public official/concern is defamatory.
Schaefer v. Lynch, 406 So.2d 185, 188 (La. 1981). To be protected, the statement must first
contain no actual falsehood itself. Id.; Fitzgerald v. Tucker, 737 So.2d 706, 717 (La. 1999).
Louisiana also differentiates between defamation-by-implication and defamation by imputing
words/conduct to an individual. Thomas v. Busby, 670 So.2d 603, 608 (La.App. 3 Cir. 1996). To
illustrate, if defendants wrote, Blocks classes are made up of 99% white males, assuming
truth, he could not maintain an action on the implication this class composition occurred perhaps
by his own doing. The statement does not allege he had any part in selecting his students. This
situation is drastically different. Defendants quoted him as having described slavery as not so
bad thereby imputing to him, through use of his words out-of-context, the view forced slavery
is acceptable. It is self-evident such a quotation, by its very nature, tends to injure reputation.
35

[T]he article, on its face, does not brand Block as someone who
considers slavery not so bad. Instead, from an objective standpoint and
considered as a whole... it identifies Block as an economics professor
who faults slavery for being involuntary but has described the other
aspects of slavery as not so bad. Block is incorrect that such a finding
necessarily requires this Court to resolve disputed issues of material
fact. This Court accepts as credible Blocks evidence that some readers
derived other meaning from the article, but that goes to whether the
article had a defamatory implication, not whether it was defamatory on
its face. The article is not defamatory per se.
Blocks argument, while claiming not to do so, rests entirely on
the premise [the NYTimes] article implies he is a racist and supporter
of slavery. [Concluding implication is not actionable here.]97
However, as the court readily acknowledged, some readers derived other
meaning from the article98the false/defamatory meaning Professor Block asserts:
he unqualifiedly described the institution of forced slavery as not so bad. Given this
uncontested evidence of reasonable readers interpretations of the statements, to
subjectively surmise the Article is incapable of defamatory meaning is plain legal
error. Rather, it must be determined, based on Fr. Wildes' Op-Ed alone, the statements
at least arguably could convey the outright defamatory meaning Block views actual,
forced slavery as not so bad.
Under Louisiana law, if the statements could convey this meaning, summary
judgment must be denied. To hold, essentially, these readers were not reasonable is

97

ROA.944-45.

98

ROA.944.
36

impermissible in this posture because the evidence must be credited and viewed in
the light most favorable to Professor Block. It is true whether the statements are
capable of defamatory meaning is for the court; but whether they were so understood
is for the jury.99 That begs the question: How can the court determine no
reasonable reader could view the statements as conveying defamatory meaning
in the face of clear evidence that is exactly what a number of readers did? The
answer is the court had to conclude these readers were not reasonablea credibility
determination inappropriate in this posture.
Moreover, the court erred in reading the two statements together, essentially
pulling some language from one passage, some from the other, divining what they
mean when read together and then declaring, objectively, no reasonable reader
would fail to complete this game of connect-the-dots. Putting aside the clear proof
readers did fail to follow this logic, Louisiana law requires each statement be
analyzed separately, then in context of the entire piecenot together or as one
statement.100 They do not give each other context, nor are they to be considered one
99

Sassone at n.9.

100

See Sassone at 352 (we consider separately the five portions of the [report] which
plaintiffs point to as defamatory); Britton v. Hustmyre, 2010 WL 1170222 *6-11 (La. App. 1
Cir. 2010) (same); Taylor v. Town of Arcadia, 519 So. 2d 303, 304-06 (La. App. 2 Cir. 1988)
(same); Bell v. Rogers, 698 So.2d 749, 755-57 (La. App. 2 Cir. 1997) (same); Fitzgerald at 717
(same); Guilbeaux at 1031 (the court must consider each portion of the defamatory
statement separately and then... in the context of the entire article).
37

statement. The whole Article gives each statement context. Louisiana law does not
allow journalists to spread misleading snippets throughout a fourteen-page article
and then hide behind: if you pull this language from page 2, that language from page
9, and read it all as if appearing in the same sentence, the amalgam is substantially
true. The strategy may have been to mislead as much as possible but maintain
plausible deniability, but the law is keen to such subtle trickery.
But, again, the real question is how a reasonable reader could view the piece
as a whole. Some readers unquestionably did not put the pieces together to uncover
Professor Blocks true meaning. Judge Lemelle apparently would have. That does not
contravene the point. In fact, it underscores the presence of a jury question: some
view the statements one way, another views them differently, so Professor Block is
entitled to jury determination of which is more probable than not.
Finally, since the statements must be viewed in context of the entire Article,
Professor Block also asks this Court to read it in its entirety and answer for itself
whether it reasonably gives the impression Rand Pauls libertarian faithful are no
more than latent racists and slavery apologists who hide their deep-seeded prejudices
behind their orthodoxy. In his view, this is self-evident. In an effort to discredit Paul
as a presidential candidate, the Article painted the movement as politically extreme
and clandestinely racist. While the movement and Pauls candidacy are fair game,
38

false, pre-contextual quotations submitted as fact are not protected by the First
Amendment, no matter how much the publisher dresses up the Article to give it a
veneer of legitimate discourse. Defaming someone in a collateral attack is not fair
game. The NYTimes sought to comically caricature Professor Block as a slavery
supporter/sympathizer for the overarching purpose of associating Paul with this
obviously taboo viewpoint.
This is the context in which the statements at issue must be viewed. They are
parsed out fully below to show both references to Professor Blocks comments were
materially false in a manner bearing on their defamatory character.
B.

Falsity

Though the District Court attempted to distinguish cases Professor Block relied
upon for this element, it did abandon its previous position direct quotes are legally
incapable of falsity without resort to unactionable implication. Instead, the court
posited, as a factual matter, the quotes at issue do not even arguably work a material
change in the meaning conveyed.101 But since the court did purport to qualify the
import of Sassone, Masson and Price v. Stossel, analysis is in order.
The court opined Sassone is not instructive as to the falsity element because
it does not purport to address the issue of falsity and does not discuss the proper
101

ROA.934-42.
39

analysis for determining whether quotations have become so distorted as to be

untrue.102 Albeit briefly and in dicta, Sassone did indeed discuss both falsity and
malice with respect to the defendant-reporters use of quotations out-of-contextthose
of DA-Greenburg concerning Lloyd. Whats more, the brief discussion focused quite
intently on how the quotations were used/presented and how that alone did, at least
arguably (i.e., sufficiently to defeat summary judgment), render them false. Sassones
very salient factual similarity further bolsters the importance of its dicta. It found:
Elder's use of Greenburg's statements arguably present[s] a jury
question whether the statements were maliciously misused and so
distorted as to be untrue. But malice and falsity do not become
pertinent until it is determined... the communications were defamatory
to these plaintiffs [the court found they were not].103
The languageuse, misuse, distortedused to reason direct, word-for-word
quotations were at least arguably false as presented is certainly instructive on how
to judge truth/falsity of a quotation, considering the subtle change in meaning the
presentation conveyed is very similar to what the NYTimes did here.
Sassone determined a genuine issue of falsity/malice was demonstrated based
on nothing more than Greenburgs sworn testimony the reporter presented his exact

102

ROA.936.

103

Sassone at 355.
40

words sans their hypothetical context.104 Like Greenburg, Block claims defendants
altered his meaning by presenting his words without conveying the conditional
premise that gave them their very meaning.105 Respectfully, he does not see how one
could surmise this portion of Sassone is not instructive [on falsity]. Quite the
contrary, it very persuasively supports a jury question whether [his exact words]
were maliciously misused and so distorted as to be untrue has been demonstrated.
The court next opined Blocks analogy to... Price v Stossel106... is inapt and
unpersuasive because, in Price, the defendant-reporter through context, changed
the subject of the plaintiffs original sermon from a hypothetical man to Price
himself, while here, the subject of the NYTimes statements was the same as Blocks:
actual slavery.107 Like the Article, the court ignored Professor Blocks conditional
premise, the otherwise.108 Otherwise, like if, lest or unless, inherently
signals what follows is only true if the premise is attached and satisfied.
Even if the courts view of his meaning (he described actual [forced] slavery

104

Id. (pleaded truth: if the allegations... were proved, this person was a criminal...).

105

ROA.823-24 (pleaded truth: only the hypothetical situation of voluntary slavery'

could be considered not so badas conditions associated therewith are not evil if freely chosen).
106

620 F.3d 992 (9th Cir. 2010).

107

ROA.936, n.2.

108

See blog-post, p.5, supra.

41

as not so bad) is one reasonable interpretation, its opinion ignores its mandate to
view[] the record and inferences from the facts in the light most favorable to
[Block] who 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 NYTimes].109
The court and the NYTimes infer he was not setting up a hypothetical reliant on the
theoretical concept, voluntary slavery, hence his comments refer to actual [forced]
slavery. He, to the contrary, testified and the blog-post at least arguably supports
(based upon use of the word otherwise):
[D]uring [interview], 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.110
Bolstering his point the NYTimes purposefully attempted to make him appear
a horrible racist, it actually quoted in brief the portion of his companion statements
about the Civil Rights Act omitted from the Article: It is immoral and indecent
and improper [to] refuse to serve people due to color of skin, but should it be
against the law?Block asked. Nobody should be forced to associate... against their

109

GATX at 714; Schroeder at 345.

110

ROA.823-24 (emphasis added).

42

will.111 Of course, his belief in the amorality of such practice was not conducive to
the attempt to paint him/libertarians as clandestinely racist so the NYTimes
juxtaposed piecemeal quotation of his views on slavery with piecemeal quotation of
his views on the Civil Rights Act, such that his denunciation of forced slavery and
racial discrimination is whitewashed from the record.
Even if he were to concede the courts view of the evidence and inference
therefrom was a reasonable one, it would have to be the only reasonable one for its
finding regarding falsity to be correct. It is not since use of the word otherwise, at
least arguable if not conclusively, supports he was creating a hypothetical. Hence,
Price is instructive here. Price set up a hypothetical man scenario to tell[] a
parable of unhappiness brought about by a lack of faith but the defendant-reporter
used his words to make it appear he was bragging about his own wealth.112 Professor
Block, in the light most favorable to him and resolving all doubt in his favor, set up
a hypothetical situation of voluntary slavery to drive home the true evil of slavery
was its compulsory nature, not the incidents commonly associated with it. Both he
and Price used rhetorical teaching tools, but the journalists doctored the comments
to fit their narrative, rather than vice versa.

111

ROA.481 (emphasis added).

112

Price at 998.
43

As Masson noted, [q]uotations allow the reader to form his or her own
conclusions and to assess the conclusions of the author, instead of relying entirely
upon the author's characterization of her subject.113 They carry an imprimatur of
facial truthfulness for this very reasonpeople presume they are not getting the
authors spin, but the individuals actual views. Scoffing at the concept of truth-injournalism, what the NYTimes did to Professor Blocks words is a sharp smack-tothe-face of Massons careful instruction quotations should not be abused in this
manner because quotations add authority to the statement and credibility to the
author's work.114 The abuse gave the Article a false veneer of credibility/authority,
exactly what the Supreme Court cautioned against.115 Indeed, if one read the Article
online, one would likely assume it was an Op-Ed, when it actually appeared on the
front page of the Politics section masquerading as fact-based reporting.116
The courts inappropriate summary conclusion that Blocks words absolutely

113

Masson at 511.

114

Id.

115

Id. at 517 ( Meaning is the life of language. And, for the reasons we have given,
quotations may be a devastating instrument for conveying false meaning.) & 520 (We would ill
serve the values of the First Amendment if we were to grant near absolute, constitutional
protection for such a practice [eliminating any method of distinguishing between the subjects
statement and the authors interpretation] because [such practice] diminish[es]... the
trustworthiness of the printed word and eliminate[s] the real meaning of quotations.).
116

ROA.503.
44

could not be viewed by any reasonable reader in the hypothetical context he asserts
also undercuts its attempt to distinguish Masson.117
The court first opined the following rule from Masson applies only to
fabricated quotations as opposed to exact quotations out-of-context, which the
court distinguishes as altered quotations:
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
personal trait or an attitude the speaker does not hold.118
Respectfully, this is the District Courts gloss. A full reading of Masson does not
support the Supreme Court intended to say a fabricated quotation can be false if the
manner of presentation indicates an attitude the speaker does not hold, but a precontextual (altered) quotation cannot.
The sections of the opinion read fluidly togetherthere is no indication the
Supreme Court intended for some of the rules handed down to apply only to
fabricated quotations, others only to altered quotations. Indeed, since only

117

ROA.937-42.

118

Masson at 511-12 (emphasis added).

45

fabricated quotations were at issue, that it even felt the need to address altered
quotationsopining an exact quotation... can distort meaning...actually supports
its entire analysis was meant to apply to all the different ways it noted quotations can
be falsified.119 Moreover, the Ninth Circuit applied the above rule in the context of
what the District Court distinguishes as altered quotation, further supporting the
distinction should not be followed.120 Finally, the rule from Masson the court did
apply was: [i]f an author alters a speakers words but effects no material change in
meaning, including any meaning conveyed by the manner or fact of expression, the
speaker suffers no injury to reputation... compensable as defamation.121 This rule
uses the same language as the earlier rule the District Court ignored (manner or fact
of expression) which clearly indicates the Supreme Court was importing its earlier
rule into this later portion of the opinion. Hence, the attitude the statements
conveyProfessor Block flippantly discounted the evil of forced slavery, when he has
actually condemned the institution as a crime so heinous it justifies ex-post-facto

119

In Masson, the reporter put into quotations statements he admitted the plaintiff did not
make. As such, it was unnecessary to discuss the potential falsity of true quotations removedfrom-context. But the Supreme Court chose to address the latter as well.
120

Price at 1002-03 (quoting the exact same language from Masson: [t]hese observations
are particularly relevant here because Price's quotation was published using a medium in
which the viewer actually sees and hears the plaintiff utter the words.).
121

ROA.937 (quoting Masson at 516) (emphasis added).

46

retributionalso makes them actionable.

Also contrary to the courts opinion, the statements did convey to reasonable
readers Block views forced slavery as not so bad though he actually described a
hypothetical slavery completely removed of coercion. Per Masson, as the District
Court noted, the statement is not considered false unless it would have a different
effect on the mind of the reader from that which the pleaded truth would have
produced.122 Again, though the court claims to have taken from Professor Blocks
pleaded truth (the blog-post/his affidavit) his comments were in fact about actual
slavery (despite his assertions to the contrary), its mandate was to determine whether
it was at least arguably possible a reasonable reader would glean his attempt to create
a hypothetical situation of voluntary slavery and to do so viewing the evidence and
inferences therefrom in the light most favorable to him. What the court actually did
was resolve all doubt in favor of the NYTimes. Is it possible some readers would fail
to consider the important distinction and thus still take issue with his views? Of
course. But it is no less possible others would find a very material difference between
what the NYTimes wrote and what he said. This is the very essence of a jury
question. That in mind, he turns to the arguments he has pressed throughout this
litigation regarding falsity.
122

Id. (quoting Masson at 517) (emphasis added).

47

The NYTimes now concedes his actual view stated during interview is slavery
was wrong because it was enforced against free will (violation of the NonAggression Principle).123 But its Article does not convey this. It glaringly omits he,
in other writings and interview, denounced slavery as it existed as abhorrent.124 Under
Masson/Sassone, the NYTimes was charged with accurately conveying this meaning
and attitude and was not free to editorialize his words to convey exactly the opposite.
The quotation that does identify Block by name indisputably conveys only he
described slavery as not so bad without his critical condition: if it is voluntary.125
He has raised a number of examples showing how such a practice inherently renders
the quotation false because the activating condition is what gives the words that
follow their meaning. The most salient examples are the words of William Lloyd

123

ROA.479-80. The court semantically focused on counsels assertion in brief any

description of slavery that did not condemn it as pure evil would ignite fury in readers,
stating, thus, Block conceded his actual views would not have a materially different effect since
he did not use the exact words pure evil. ROA.941-42. To the extent counsels word choice
could be taken as some sort of admission against interest, counsel humbly asks this Court to not
foreclose Professor Blocks only hope for redress because of his counsels turn-of-phrase. That
said, he has vehemently argued and supported with evidence (ROA.823-61) he most certainly
does, and did in interview, condemn the institution of forced slavery as a heinous evil, wrong
or crime (however worded). Hence, there is certainly a genuine issue here as to whether the
pleaded truth would have had a different effect on readers than what the NYTimes wrote since it
did not convey he views forced slavery as wrong, criminal or evil (again however worded).
124

ROA.823-61.

125

ROA.511.
48

Garrison,126 and of Winston Churchill, as Judge Costa astutely pointed out during the
prior appeal.127 Judge Costa also later alluded, a la Masson, a quotation that fails to
convey the speakers true attitude (e.g., by conveying sarcastic comments as serious
statements) is also, at least arguably, false as a matter of law.128
The earlier quotation artfully/strategically: (1) does not mention Professor
Block by name, (2) is roughly 8-pages/53-paragraphs away from the horribly
inaccurate, unqualified assertion he described slavery as not so bad, and nonetheless,
(3) hides the fact that he denounced forced slavery through language use and
juxtaposition.129 Not only is it false in and of itself, it certainly does not cure the later,

126

See ROA.801, n.72 (If the slaves are not men... It is right to own, to buy, to sell, to
inherit, to breed, and to control them, in the most absolute sense.).
127

ROA.801-02 (quoting ROA.814) ([T]heres a famous Churchill quote where he says:

Democracy is the worst form of government... except for any other. And so what hes really
saying is democracy has got its problems, but its the best. Now if the [NYTimes] ran a headline
that says Churchill says democracy is the worst form of government ever and thats it, would
there be a claim of falsity? He said it, exact words he said.).
128

ROA.821-22, wherein J. Costa keenly pointed out defendants submitted no declaration

of the author that he believed Block was being entirely serious and not making a tongue-in-cheek
example to dramatize his critical point: slavery was wrong because it was involuntary. Thus, as
it stands, Blocks unsworn declaration, wherein he states he made clear to Tanenhaus the
rhetorical nature of the comments about the daily life of the enslaved, is undisputed evidence
such that pretrial dismissal on falsity is inappropriate for this alternative reason as well.
129

The court surmised Block contradicts his own argument the statements should not be
read together by referencing the first quotation. ROA.940 & n.3. But it is axiomatic plaintiffs can
make alternative arguments, even ones that contradict, and that is exactly what Professor Block
was doing. He anticipated the NYTimes would assert the first quotation cures any inaccuracy in
the later quotation, so he argued both points alternatively: (1) the first passage cannot cure the
second because it does not refer to him by name, but even if it is read as sufficiently identifying
49

more inaccurate portrayal of Professor Blocks views. The earlier statement, in its
immediate context, reads:
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 badyou 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.130
Though the NYTimes hangs its hat on this quote as curative of the inaccuracy
in the later quote, the operative assertion is how a reasonable reader would interpret
each statement in isolation and in context. Again, there can be no dispute at least one
reasonable reader, Fr. Wildes, failed to elicit from the Article Professor Block
denounced forced (chattel) slavery and described only hypothetical voluntary
slavery as not so bad and this alone, as Judge Clement alluded, presents a jury
question of falsity.131 The court attempted to get around this evidence by reasoning
[it] goes to show the effect that the article as written had on a handful of individuals
but [f]inding that this evidence demonstrates a genuine issue of [falsity] would

him, (2) it is still materially false both standing alone and when read in context. Under either
view, a genuine issue of falsity has been proven. It is for the jury to determine whether the first
statement should be ignored, whether it is itself false and defamatory, or whether it doesas the
NYTimes and the court suggestcure any inaccuracy in the later statement.
130

ROA.504 (emphasis added).

131

ROA.815-21 & 862-63.

50

require this [c]ourt to rely on the unsubstantiated presumption that Plaintiffs views
as stated in his own words would not have the same effect on readers.132
Respectfully, the court was wrong since (1) the presumption was not
unsubstantiatedthe blog-post at least arguably if not conclusively shows a material
difference between Professor Blocks actual words and the quoted statements; and (2)
the law, not Professor Block, is what require[s] [the court] to rely on [it]. Rule 56
mandates the court resolve all doubt as well as potential inferences from the evidence
in Professor Blocks favor. Clearly, the court did the opposite, giving every benefit
of the doubt to the NYTimes. Indeed, the courts tortuous reasoning required it to pull
two statements 53 paragraphs away from each other, combine them, and then deduce
what they mean when read together for itself, bearing in mind the court had, at the
time, the blog-post and the parties briefing before it to aid in making such deductions
and inferences by comparing the two in light of the detailed arguments on both sides.
Based on that, this Court is to conclude it is totally impossible, not just improbable,
any reasonable reader would fail to do the same? Simple common sense, not to
mention Rule 56's mandate, belies any such contention.
That said, it is also indisputably reasonable to find a genuine issue of falsity on
the face of the earlier statement, in context, itself, even without resort to the evidence
132

ROA.941.
51

presented by Professor Block in this case.133

First, he did not merely fault slavery as involuntaryi.e., he did not merely
indicate slavery had a minor defect or imperfection. He has always denounced actual
slavery, openly and vociferously, because it was implemented by force, and has stated
without equivocation this horrendous injustice calls for reparations to this day. The
rhetorical way he referenced the commonly-known trappings of slavery serves merely
to amplify his point slavery was evil because the slaves were forced into conditions
that, if voluntary, would otherwise be not so bad. Masson holds a material question
of falsity can stem from use of the words to convey an attitude the speaker does not
hold even when the words are accurately quoted.134 The NYTimes played dumb to
the rhetorical nature of Professor Blocks comments about the daily life of the
enslaved, instead attempting to use them to convey, falsely, an attitude the plight of
American slaves was somehow acceptable. This is disingenuous in the extreme. It is
insulting to this Courts intelligence for the NYTimes to pretend it did not catch the
facetiousness in pick cotton, sing songs, be fed nice gruel, etc.135 Insulting where

133

ROA.823 &862-67.

134

Masson at 511-12.

135

It is quite telling the NYTimes only included pick cotton and sing songs in the quote
since quoting be fed nice gruel would have signified to the wary, intelligent reader, perhaps,
the NYTimes is taking this mans words out of context.
52

injuring, the statements align him with a position diametrically opposed to his central
libertarian principlesfreedom from oppression. Fr. Wildes actually pointed this out,
further proving a genuine issue of falsity cannot be disputed: [I]t is [] conceptually
contradictory to his position as a libertarian that people could be treated as property
against their will. So, by even hinting to endorse slavery enforced against
someones free will, Dr. Block seems to contradict his basic libertarian principles.136
Again, the entire thesis of Professor Blocks statements (see blog-post) was slavery
was wrong precisely because it was enforced against free will.
Second, the NYTimes made the conscious editorial decision to (1) not attribute
this first quotation to Block by name and (2) place it roughly 8-pages/53-paragraphs
before the other quotation. Even if this Court believes this earlier quotation reflects
his views just closely enough to escape defamatory meaning on its own, the NYTimes
obviously intended to disassociate it from the later quotation so the average reader
might not make the connection.137 Moreover, at the risk of sounding repetitive, it

136

ROA.862 (emphasis added).

137

On this point, see Fitzgerald 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); and Sassone
at 354-55. Louisiana jurisprudence requires a statement to identify the plaintiff with some
degree of certainty to be actionable. Logically, the converse should also be truean 8-page
earlier statement that does not identify Block should not be allowed to cure a subsequent
statement that does identify him of defamatory meaning.
53

cannot be forgotten falsity must be determined based on the effect the statement
reasonably may have on the mind of the average listener. Admittedly, some readers
would likely never pay any mind to the important distinction (slavery removed of
coercion), but it incontestible (based on Blocks evidence) some at least arguably
would. This is the definition of a jury question.
Finally, the earlier statements strategic position within the Article proves the
impression it was reasonably intended to give readersthe false impression
Professor Block and the extremist-libertarians at the Mises Institute are nothing more
than latent racists and slavery-apologists. It is wedged between one sentence claiming
scholars at the Mises Institute have championed the Confederacy and another
indicating Rand Pauls position 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 unnamed libertarians right before
implying those views are based on racist sentiments for which Paul, who abhors
[this] racism, feels he should not have to answer. Thus, this earlier statement quite
purposefully gives the false, 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
54

earlier statement was a conscious attempt to conceal Professor Blocks meaning.

Taking all three together, it is incontestible the NYTimes made every calculated effort
possible to distort his views, while attempting to maintain plausible deniability.
C.

Malice

This element has not been meaningfully analyzed at any point in this litigation.
The District Court maintained, as in its first opinion, a genuine issue of malice
(knowledge of falsity or reckless disregard for truth) could not be shown simply
because Professor Block failed to prove a genuine issue of falsity.138 The court also
implicitly denied his effective motion for discovery into malice for the same reason:
[it] would be futile due to Plaintiffs failure to raise fact issues as to falsity and
defamatory meaning.139 Because malice is pure jurisprudential creation read into
the First Amendment by the Supreme Court,140 Masson is controlling on this point:141
Deliberate or reckless falsification that comprises actual malice turns
upon word and punctuation only because words and punctuation express
meaning. Meaning is the life of language. And, for the reasons we have

138

ROA.945 (quoting Masson at 517) (deliberate alteration of the words uttered... does
not equate with knowledge of falsity... unless the alteration results in a material change in the
meaning conveyed...).
139

ROA.945-45.

140

N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279 (1964).

141

That said, Sassone implicitly agreed with Masson on this element. Sassone at 354-55
(pre-contextual direct quotation, on its face, created genuine issue it was maliciously misused).
55

given, quotations may be a devastating instrument for conveying false

meaning... [I]f the alteration 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.142
Stated otherwise, in the framework of a summary judgment motion, if the
quotation raises a genuine issue of falsity, that alone creates a genuine issue of
malice.143 Necessarily, then, reversal of the courts decision regarding falsity (i.e.,
finding the statements at least arguably distorted Professor Blocks meaning or
attitude) requires reversal of its decision regarding malice. But to be sure, the
NYTimes has also implicitly admitted knowledge-of-falsity/reckless-disregard-fortruth by its concession the blog-post (p.5, supra) reflects what Professor Block
actually stated to Tanenhaus in interview.144 I.e., since the quotations materially differ
from the blog-post, the NYTimes admitted it mischaracterized what it knew to be his
actual views.
Alternatively, jurisprudence supports a tone of an article demonstrating an
underlying animus (i.e., purpose of placing the speaker in a negative light) is also
sufficient to defeat an Article 971 motion because any additional evidence as to

142

Masson at 517 (emphasis added).

143

Id. at 513-20.

144

ROA.477-78.
56

malice must come from further development of [the] case in the form of discovery
and trial testimony and, importantly, the testimony of the authors[.]145 As amply
demonstrated, 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. Requirement of any further proof of malice
at this stage (when discovery is not permitted) would represent an insurmountable bar
to vindication of the harm suffered.146
That very same reasoning also supports Professor Blocks further alternative
argument: dismissal on failure of proof of malice would be premature since he has
sought and is entitled to discovery into malice pursuant to Article 971(D).147 Again,
the courts only basis for denying the sought-after discovery was it would be futile
since falsity/defamatory-meaning could not be shown.148 Thus, if genuine issues as
to those elements are found, Professor Block must at the very least be given leave to
obtain evidence necessary to prove malice and the case must be remanded for that

145

In re Baxter, 2001 WL 34806203 *16 (W.D. La. 2001).

146

Id.

147

See ROA.806, n.82.

148

ROA.945-46.
57

purpose.149
CONCLUSION
For the foregoing reasons, Professor Block respectfully requests this Court
reverse the granting of the NYTimes Special Motion and hold he has established
genuine factual issues regarding all elements of his defamation and false-light claims.
Alternatively, he prays this Court find genuine issues have been proven regarding all
elements except malice and remand with direction the District Court allow discovery
into malice before considering any further pre-trial motion.
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

149

In accordance with 971(D), he specifically requested leave to obtain certain discovery

reasonably and narrowly tailored to uncover evidence pertaining to malice. He also demonstrated
the requisite good cause. ROA.787 & n.23.
58

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 31st day of October, 2016.
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

59

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 14,000 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 proportionally-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 Plaintiff-Appellant,
Walter Block
Dated:

60

October 31st, 2016