Block v. New York Times Company et al

Filing 23

ORDER AND REASONS granting 10 Motion to Strike. Signed by Judge Ivan L.R. Lemelle on 4/16/2015. (lag)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WALTER BLOCK

CIVIL ACTION

VERSUS

NO. 14-2200

THE NEW YORK TIMES COMPANY,
ET AL.

SECTION "B"(4)

ORDER AND REASONS

I.

NATURE OF THE MOTION AND RELIEF SOUGHT
Before

the

Court

is

a

“Special

Motion

to

Strike”

by

defendants, the New York Times Company, Sam Tanenhaus, and Jim
Rutenberg.1

Plaintiff

has

filed

a

response

in

opposition.2

Defendants have filed a reply.3 The motion, set for submission on
April 22, 2015 is before the Court, on the pleadings, without
oral

argument.

Accordingly,

and

for

the

reasons

enumerated

below,
IT IS ORDERED that the Special Motion to Strike is GRANTED.
IT IS FURTHER ORDERED that the defendants be awarded reasonable
attorney fees and costs, in accordance with Louisiana Code of
Civil Procedure Article 971(C). This issue will be referred to
the Magistrate Judge for resolution.

1

Rec. Doc. No. 10.
Rec. Doc. No. 17.
3
Rec. Doc. No. 20.
2

1

II.

BACKGROUND
On or about January 25, 2014, the New York Times Company

published an article entitled “Rand Paul’s Mixed Inheritance” in
the New York Times Newspaper.4 The article was co-authored by
defendants, Sam Tanenhaus and Jim Rutenberg.5 In this lawsuit,
the plaintiff, Walter Block (“plaintiff” or “Block”) contends
that the article defamed him and placed him in a false light.
The article provides an in-depth examination of the political
philosophy endorsed by U.S. Senator Rand Paul and contains a
paragraph which reads:
Walter Block, an economics professor at Loyola
University in New Orleans who described slavery as
“not so bad,” is also highly critical of the Civil
Rights Act. “Woolworth’s had lunchroom counters, and
no blacks were allowed,” he said in a telephone
interview. “Did they have a right to do that? Yes,
they did. No one is compelled to associate with people
against their will.6

The

article

contains

an

earlier

sentence

plaintiff

claims

references him, and which reads as follows:
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.”7

4

Rec. Doc. No. 1 at 3.
Rec. Doc. No. 1 at 3.
6
Rec. Doc. No. 1 at 3.
7
Rec. Doc. No. 1 at 3.
5

2

The plaintiff submits that the statements made and quoted
are untrue, defamatory and have caused him damages.8 Plaintiff
claims that the quotations are taken out of context to give the
impression that plaintiff is a racist, a supporter of slavery,
and/or against the Civil Rights Act of 1964 solely because of
racial prejudices.9 Plaintiff filed this diversity suit asserting
claims for defamation and false light invasion of privacy.
The defendants have filed a special motion to strike under
article 971 of the Louisiana Code of Civil Procedure. Defendants
argue that, pursuant to article 971, a defendant may move to
strike claims that arise from the exercise of First Amendment
rights.

Further,

plaintiff

cannot

prove

a

“probability

of

success” on his claims and overcome such a motion. Defendants
urge the dismissal of the complaint, and an award of attorney’s
fees and costs.
III.

LAW AND ANALYSYS

a. Standard of Law: Special Motion to Strike under La. Code
Civ. P. art. 971
In a diversity action such as this one, “Louisiana law,
including the nominally-procedural Article 971” governs. Brown
v. Wimberly, 477 F. App’x 214, 216 (5th Cir. 2012); Henry v.
Lake Charles Am. Press, LLC, 566 F.3d 164, 168-69 (5th Cir.
8
9

Rec. Doc. No. 1 at 3.
Rec. Doc. No. 1 at 4.

3

2009). The law is Louisiana’s anti-SLAPP procedure, enacted to
address a “strategic lawsuit against public participation.” See
Henry, 566 F.3d at 169. Article 971 instructs that a plaintiff
who files suit “against a person arising from any act of that
person in furtherance of the person’s right of petition or free
speech

under

the

United

States

or

Louisiana

Constitution

in

connection with a public issue” is subject to a special motion
to strike. La. Code Civ. Proc. art. 971. The purpose of the
special

motion

to

strike

“is

to

encourage

continued

participation in matters of public significance and to prevent
this

participation

from

being

chilled

through

an

abuse

of

judicial process.” Savoie v. Page, 23 So.3d 1013, 1016 (La.App.
3 Cir. 2009)(quoting Lamz v. Wells, 938 So.2d 792, 796 (La.App.
1 Cir. 2006)).
Article 971 creates a burden shifting test for weeding out
frivolous claims. First, the movant must make a
showing
suit,

that

article

specifically

971

that

covers
“the

the

matter

activity
arises

prima facie

underlying

from

an

act

the
in

furtherance of his or her right of free speech or the right of
petition and in relation to a public issue.” Then, if the movant
makes this showing, then the burden shifts to the plaintiff to
“demonstrate

a

probability

of

successes

on

his

or

her

own

claim.” See Henry, 566 F.3d at 181; Starr v. Boudreaux, 978

4

So.2d 384, 388-89 (La.App. 1

Cir. 2007). A party prevailing

under an article 971 motion to strike is entitled to reasonable
attorney’s fees and costs. See La. Code Civ. P. art. 971(b).
b. Relation to Public Issue
Defendants must first make a prima facie showing that the
matter arises from an act in furtherance of their right to free
speech or the right of petition and in relation to a public
issue. Darden v. Smith, 879 So.2d 390, 395 (La. App. 3 Cir.
6/30/04). The United States Supreme Court has defined matters of
“public concern” as speech “relating to any matter of political,
social or other concern to the community.” Connick v. Myers, 461
U.S. 138, 146 (1983).
It

is

publication

undisputed

that

Block’s

of

York

Times

a

New

claims

arise

article,

which

out

of

the

undoubtedly

constitutes an exercise of free speech. Defendants contend the
article

relates

to

a

public

issue

as

it

discusses

the

“intellectual forces shaping the political views of a United
States

Senator

and

potential

candidate

[Rand

Paul]

for

president,” and “asks whether that philosophy will impact Paul’s
viability as a presidential candidate.”10

10

Rec. Doc. No. 10-1 at 5.

5

The Court finds the article’s stated purpose presents an
issue of public concern. The article not only focuses on the
senator

and

presidential

candidate,

but

also

analyzes

the

background and status of libertarian political ideology in the
United States. The article details the ideology’s origins and
explores the various views of its adherents, past and present,
in

order

to

provide

points

of

reference

for

comparing

and

contrasting the presidential candidate.
Although Block is not expressly identified as an adherent
of the ideology within the article, Block has self-identified as
a

libertarian,

and

the

article

utilizes

his

statements

to

exemplify certain views and criticisms held by libertarians.11
Thus, the publication of the article, containing statements by
and references to Block, constitutes an act in furtherance of
the right of free speech under the United States or Louisiana
Constitution in connection with a public issue. The Article 971
special

motion

to

strike

is,

therefore,

available

to

the

defendants here.

11

“Compelling Woolworths to seat blacks is thus incompatible with libertarianism. It was a violation of their
private property rights over their establishment. Free association is a very important aspect of liberty...Otherwise
slavery wasn’t so bad. You could pick cotton, sing songs, be fed nice gruel, etc. The only real problem was that this
relationship was compulsory.” Rec. Doc. No. 10-7 at 1 (Exhibit B). Chris Selley is a Pussy Libertarian; I’m Not, Walter
E. Block. (February 25, 2013).

6

c. Probability of Success
1. Defamation Claim
The

next

issue

is

whether

Plaintiff

can

establish

a

probability of success on the defamation and false light claims.
Defamation

is

a

tort

involving

an

invasion

of

a

person’s

interest in his reputation and good name. Brungardt v. Summitt,
7

So.2d

879,

885

(La.

App.

4

Cir.

2009).

To

succeed

on

a

defamation claim in Louisiana, the plaintiff must establish: (1)
a

false

and

defamatory

statement

concerning

another;

(2)

an

unprivileged publication to a third party; (3) malice (actual or
implied); (4) fault (negligence or greater on the part of the
publisher); and (5) resulting injury. Henry, 566 F.3d at 182
(quoting Kennedy v. Sherriff of East Baton Rouge, 935 So.2d 699,
674 (La. 2006)); Trentecosta v. Beck, So.2d 552 (La. 2007). If
one element of defamation is lacking, the claim cannot prevail.
A

statement

reputation

of

is

another

defamatory
so

as

if

to

it

tends

lower

the

to

harm

person

in

the
the

estimation of the community, deter others from associating or
dealing

with

contempt

or

particular

the

person,

ridicule.
statement

or

otherwise

Kennedy,
is

935

expose

So.2d

objectively

at

capable

the
675.
of

person

to

Whether

a

having

a

defamatory meaning is a legal issue to be decided by the court,
considering the statement as a whole, the context in which it
7

was made, and the effect it is reasonably intended to produce.
Lamz v. Wells, 938 So.2d 792, 798 (La.App. 1 Cir. 6/9/06).
A statement is defamatory per se if it accuses another of
criminal conduct or tends to injure one’s reputation without
considering extrinsic facts or circumstances. Id. When words are
defamatory per se, the falsity, malice and injury elements are
presumed, but may be rebutted. The negligence standard applies
as the measure of fault of the defendants. Kennedy, 935 So.2d at
681.

Thus,

plaintiff

must

show

that,

at

the

least,

the

defendants acted negligently in failing to ascertain the false
and

defamatory

nature

of

the

statements.

See

Restatement

2d

Torts § 580(B).
Block takes issue with the following:
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.”

Walter Block, an economics professor at Loyola University
in New Orleans who described slavery as “not so bad,” is
also highly critical of the Civil Rights Act. “Woolworth’s
had lunchroom counters, and no blacks were allowed,” he
said in a telephone interview. “Did they have a right to do
that? Yes, they did. No one is compelled to associate with
people against their will.”

Plaintiff

argues

that

the

statements

are

untrue,

defamatory, and taken out of context to give the impression that
8

he is a racist, a supporter of slavery, and/or against the Civil
Rights Act of 1964 (“Act”) solely because of racial prejudices.12
Plaintiff

claims

defamation

has

that

caused

in
him

addition
to

lose

to

other

esteem

with

injury,

the

students

and

colleagues at Loyola University, where he is employed.
Plaintiff

however,

does

not

deny

making

the

statements

attributed to him. In fact, the first quote, which can be found
in a blog post by Block, was made by him during a telephone
interview with defendants.13 The second text refers back to the
first quote and contains substantially similar quotes obtained
during

the

same

interview.14

Although

Block

claims

in

the

Original Complaint that the statements about him and quoted are
untrue,

he

acknowledges

having

made

them,

and

thus

cannot

establish the most important element, falsity, which in turn
precludes him from establishing malice. Similarly, as Block is
quoted

directly,

circumstances’
they

were

he

fails

defendants

negligent,

and

have
the

to

demonstrate

failed

to

references

‘facts

and

consider,

such

could

considered

be

that

defamatory per se. The publication of an article accusing Block
of being racist could be viewed as defamatory per se. However,
the article does not state that Professor Block is a racist, a
12

Rec. Doc. No. 1 at 3-4.
Supra note 10 and accompanying text.
14
Rec. Doc. No. 10-3 at 1, Declaration of Sam Tanenhaus. “As part of my research for the article, I interviewed
Professor Walter Block, the plaintiff in this lawsuit. The statements that the article attributes to Professor Block are
statements that Professor Block personally made to me during the interview.”
13

9

supporter of slavery, or even that he opposes the Act on the
basis of racial prejudice.
What Plaintiff really takes issue with is the context in
which

his

quotes

were

used.

However,

neither

of

defendants’

statements is capable of defamatory meaning. To reiterate, the
article

quotes

Block

directly.

The

context

itself

does

not

rationally lead to an impression that Professor Block is racist,
or a supporter of slavery who objects to the Act on the basis of
racial prejudice. The fact that some may interpret the article
that way does not contravene this point. The article makes clear
that Block: (1) objects to slavery on principle as involuntary,
and (2) objects to the Act on the basis of the constitutional
right to be free from association.15 While the article raises
certain provocative views, in the context of the article as a
whole, Block is portrayed as an economist who supports limited
government.16
In fact, the paragraph that directly follows the second
block

of

text

clarifies:

“Rand

Paul

has

offered

a

similar

critique [of the Act]. Such arguments derive from an economic
precept

embraced

by

many

libertarians:

Government

should

not

15

The separate statements operate together; Plaintiff cannot argue on the one hand that the second omits his
objection to slavery as forced labor, while arguing on the other, that each statement should be read within the
context of the entire article.
16
Perceptions about Block’s notions of race related issues were largely fueled by and published by Block himself. In
this regard, Block cannot complain about resulting perceptions of insensitivity and levity on serious issues like
slavery.

10

impede the free flow of commerce or dictate the personal or
business

transactions

citizens.”17

of

The

text,

taken

to

its

extreme, would merely support an accusation that Block supports
free

enterprise

at

all

costs,

which

is

not

the

defamation

complained of here.
Moreover, to the extent Block objects to the article as a
whole for placing his statements out of context, “[t]ruthful
facts

which

carry

a

defamatory

implication

can

only

be

actionable if the statements regard a private individual and
private affairs.” Schaefer v. Lynch, 406 So.2d 185, 188 (La.
1981). An otherwise private individual, who voluntarily injects
himself into a matter of public concern, is a public figure for
the limited issues involved. Starr, 978 So.2d at 391. “Where
public [figures] and public affairs are concerned, there can be
no libel by innuendo.” Id. This is so, “[e]even though a false
implication may be drawn by the public.” Id. To prevail in an
action based on defamatory implications rather than defamatory
words, the plaintiff must prove that the alleged implication is
the principal inference a reasonable reader will draw from the
publication as having been intended by the publisher. Sasssone
v.

Elder,

626

So.2d

345

(La.

1993).

Again,

considering

the

article as a whole, the Court concludes that this is not the
case.
17

Rec. Doc. No. 10-4 at 9 (Exhibit A), Rand Paul’s Mixed Inheritance.

11

Lastly,

in

such

a

case

involving

a

matter

of

public

concern, a plaintiff must prove actual malice, as well as the
other elements of his defamation claim, in order to prevail.
Starr, 978 So.2d at 392. From a review of the record, the Court
finds no evidence to suggest that the defendants acted with
actual malice in publishing the article. Defendants contacted
Block for an interview and quoted him directly. In sum, the
Court concludes that plaintiff cannot establish the requisite
elements for a defamation claim: falsity, defamatory, and actual
malice, and thus cannot overcome the instant motion to strike.
2. False Light Claim
A

false

light

invasion

of

privacy

claim

“arises

from

publicity which unreasonably places the plaintiff in a false
light

before

the

public.”

Perere

v.

Louisiana

Television

Broadcasting Corp., 812 So.2d 673, 676 (La.App. 1 Cir. 9/28/01).
Block must prove that there existed a privacy interest, falsity
and unreasonable conduct or serious invasion of privacy. Stern
v.

Doe,

Perere,

806
812

So.2d
So.2d

98,
at

101

676).

(La.App.
While

the

4

Cir.

12/27/01)(citing

publicity

need

not

be

defamatory, it “must contain either falsity or fiction.” Id.
Block has failed to show a probability of success on his
defamation claim. Similarly, the claim for false light invasion
of privacy must fail because he cannot demonstrate a probability
12

of successfully showing that the publicity placed him in a false
light. Furthermore, it is not clear that plaintiff could show a
serious

invasion

of

his

privacy

because

he

interviewed

with

defendants for the purpose of discussing the subject matter of
the article.
Although it is not necessary that there be malicious intent
on the part of the defendant, the Court’s analysis of Block’s
defamation claim thoroughly discusses whether the allegations of
the Complaint satisfy the falsity element. Id. The Court has
concluded they do not. Therefore, Block likewise cannot carry
his burden to prove false light invasion of privacy because he
has not stated any facts to corroborate his claim.
IV.

CONCLUSION
The Court finds the New York Times article was about a

certain political ideology, libertarianism. The Court finds that
the

references

meaning,

nor

made
do

to

they

Block
place

are
him

not
in

a

capable
false

of

defamatory

light.

Nothing

suggests that permitting discovery would allow Professor Block
to establish anything that might help him successfully oppose
the defendant’s motion. Accordingly,
IT IS ORDERED that Defendant’s Special Motion to Strike is
GRANTED. IT IS FURTHER ORDERED that the Defendant be awarded

13

reasonable attorney fees and costs, in accordance with Louisiana
Code

of

Civil

Procedure

Article

971(C).

This

issue

will

be

referred to the Magistrate Judge for resolution.

New Orleans, Louisiana, this 16th day of April, 2015.

____________________________
UNITED STATES DISTRICT JUDGE

14