Block v. New York Times Company et al
Filing
56
ORDER AND REASONS granting 35 Motion to Strike. Further Ordered that defendants have 30 days to submit their motion for attorneys' fees. Further Ordered that said motion for attorneys' fees be Referred to the Magistrate Judge as set forth in document. Signed by Judge Ivan L.R. Lemelle. (ijg)(NEF: MJ Roby)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WALTER BLOCK
CIVIL ACTION
VERSUS
NO. 14-2200
NEW YORK TIMES COMPANY, ET AL.
SECTION "B"(4)
ORDER AND REASONS
Before the Court is Defendants’ “Special Motion to Strike.”
Rec. Doc. 35. Plaintiff, Walter Block (hereinafter “Block” or
“Plaintiff”), filed a Memorandum in Opposition. Rec. Doc. 48. The
Court then granted leave for both Plaintiff and Defendants to file
supplemental memoranda. Rec. Doc. 53, 55. For the reasons outlined
below,
IT IS ORDERED that the Motion is GRANTED.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of an article entitled “Rand Paul’s Mixed
Inheritance,” written by Sam Tanenhaus and Jim Rutenberg and
published by The New York Times (collectively “Defendants” or “The
New York Times”). The article, published on January 25, 2014,
discusses the potential presidential candidacy of Rand Paul and
the ideology to which he subscribes—libertarianism. See Rec. Doc.
35-4.
In examining some of the views of “those in the libertarian
orbit,” the article twice quotes Plaintiff:
Some scholars affiliated with the Mises
Institute have combined dark biblical prophecy
with apocalyptic warnings that the nation is
plunging toward economic collapse and cultural
1
ruin. Others have championed the Confederacy.
One economist, while faulting slavery because
it was involuntary, suggested in an interview
that the daily life of the enslaved was “not
so bad — you pick cotton and sing songs.”
* * * *
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.”
Rec. Doc. 35-4 at 2, 9 (emphasis added). On September 23, 2014,
Plaintiff filed suit alleging defamation and false light invasion
of privacy based on the article’s portrayal of him. Rec. Doc. 1.
Defendants then moved for dismissal of the claims against them
under Louisiana Code of Civil Procedure article 971—Louisiana’s
anti-SLAPP statute,1 claiming that Plaintiff could not demonstrate
a probability of success on his claims. Rec. Doc. 10. This Court
granted that motion, finding that Block could not establish a
probability of success on the merits as required by article 971.
Rec. Doc. 23. More specifically, this Court found that Block could
not establish the element of falsity, which in turn precluded a
finding of actual malice. Rec. Doc. 23 at 9. We also determined
that the quotations were not defamatory per se and that they were
See Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 169 (5th Cir.
2009).
1
2
incapable of defamatory meaning. Id. at 9-11 Plaintiff appealed
that ruling.
The United States Court of Appeals for the Fifth Circuit
issued a mandate vacating the judgment and remanding in light of
its intervening decision in Lozovyy v. Kurtz, 813 F.3d 576 (5th
Cir. 2015). In Lozovyy, the court held that the “probability of
success” standard included in the anti-SLAPP statute “does not
permit courts to weigh evidence, assess credibility, or resolve
disputed
issue
of
material
fact.”
Thus,
the
standard
is
functionally equivalent to the summary judgment standard under
Federal Rule of Civil Procedure 56. Id. at 586. Because this Court
previously “analyzed whether Block established a ‘probability of
success’ on his claim and, in doing so, arguably resolved disputed
questions of fact,” the Fifth Circuit remanded the matter for
consideration of “whether Block has established a genuine dispute
of material fact on each element of his claims.” Defendants were
then ordered to reurge their Special Motion to Strike and to
address the issues raised in the Fifth Circuit’s mandate. Rec.
Doc. 34. That Motion is now before the Court.
II.
THE PARTIES’ CONTENTIONS
Defendants aver that Block’s complaint is subject to a motion
to strike pursuant to Louisiana Code of Civil Procedure article
971. Rec. Doc. 35 at 1. Defendants cite Fifth Circuit case law
deeming
the
article
only
nominally-procedural,
3
meaning
its
substantive provisions apply in this diversity action. Id. at 1-2
(citing Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164 (5th
Cir. 2009)). Defendants further claim that, under the requirements
of Lozovyy, Block cannot survive the motion to strike because he
cannot establish a genuine issue of fact as to each element of his
claims. Id. at 2. In particular, Defendants maintain that there
are no genuine issues of fact as to defamatory meaning, falsity,
or actual malice, with both falsity and actual malice being
essential elements of both claims. Rec. Doc. 35 at 2-3. Therefore,
Defendants contend that Plaintiff’s claims should be dismissed and
they should be awarded attorneys’ fees and costs. Id. at 3.
Block asserts numerous arguments in opposition. First, he
claims that when one reads between the lines of the Fifth Circuit’s
mandate and looks at comments made by the panel during oral
argument, it becomes clear that the Fifth Circuit intended to say
that “had the proper standard been applied, this case would not
have been subject to pretrial dismissal.” Rec. Doc. 48 at 2-3.
Second, Block maintains that, under the “direct collision” test,
article 971 conflicts with Federal Rules of Civil Procedure 12 and
56,
meaning
it
should
not
be
applied
in
federal
court,
and
Defendant’s motion should be dismissed. Id. at 10-14. Plaintiff
also challenges Defendants’ substantive arguments. Block argues
that: (1) the quotations are false because the words used do not
accurately convey Block’s meaning and/or attitude; (2) there are
4
disputed issues of fact as to whether a reasonable reader could
conclude the statements are capable of defamatory meaning; and (3)
there are genuine issues of fact as to the malice element simply
by means of the existence of falsity. Id. at 8-9. Alternatively,
as to malice, Block contends that discovery is necessary to prove
this mens rea element. Id. at 9. Therefore, Block urges this Court
to deny the motion.
In reply, The New York Times initially argues that nothing in
the Fifth Circuit’s mandate presupposes a result as Block contends.
Rec. Doc. 53 at 3. Defendants also claim that Block fails to
establish a genuine issue of material fact as to falsity by
refusing to consider both quotations in the context of one another
and the article as a whole and by using an inapt analogy to a
single Ninth Circuit opinion. Id. at 2-5. The New York Times
further maintains that Block’s arguments regarding defamatory
meaning and actual malice are insufficient to raise a genuine issue
of material fact. Id. at 5-10. Finally, Defendants argue that Block
waived his arguments concerning the applicability of Article 971
in federal courts as well as any right he may have to pre-dismissal
discovery. Id. at 10-12.
In
his
sur-reply
memorandum,
Block
contests
Defendants’
arguments regarding waiver. First, he maintains that Defendants
are mistaken in their assertion that he waived his right to seek
discovery under article 971(D). Rec. Doc. 55 at 1-3. Additionally,
5
Block urges this Court to apply an exception to the waiver doctrine
with respect to his direct collision argument. He asserts that
“[i]t would be inequitable to dismiss [his] case under a statute
that the great weight of Circuit authority is currently concluding
cannot be applied in the first place.” Id. at 5 (emphasis in
original). Thus, he maintains that this Court should consider his
direct collision argument and find article 971 inapplicable in
federal court.
III. DISCUSSION
As an initial matter, this Court will address Block’s argument
that, under the “direct collision” test, this Court cannot properly
apply Article 971 because it conflicts with the Federal Rules of
Civil Procedure.
a. Whether Block May Now Challenge
Article 971 in Federal Court
the
Applicability
of
Though Block concedes that the Fifth Circuit deemed this
argument waived on appeal, he argues that this Court should apply
an exception to the waiver doctrine—at the very least so that he
may preserve the issue for any subsequent appeal. Rec. Doc. 55 at
3.
The Fifth Circuit’s mandate explicitly states that Block
waived this argument. Rec. Doc. 31 at 6. It further states that
this Court is to determine whether any genuine issues of material
fact exist. To consider an issue deemed waived by the court of
6
appeals and obviously antecedent to the mandated considerations
would require this Court to disregard the explicit commands of the
Fifth Circuit in violation of the mandate rule, which “provides
that a lower court on remand must implement both the letter and
the spirit of the appellate court’s mandate and may not disregard
the explicit directives of that court.” U.S. v. Matthews, 312 F.3d
652, 657 (5th Cir. 2002) (quoting U.S. V. Becerra, 155 F.3d 740,
753
(5th
Cir.
1998)).
There
are,
however,
three
recognized
exceptions in this circuit to the law of the case doctrine and the
mandate
rule:
“(1)
The
evidence
at
a
subsequent
trial
is
substantially different; (2) there has been an intervening change
of law by a controlling authority; and (3) the earlier decision is
clearly erroneous and would work a manifest injustice.” Id. (citing
Becerra, 155 F.3d at 752-53).
While Block argues for the application of exceptions to the
waiver rule rather than the mandate rule, his arguments are, for
the most part, relevant in this context. First, he claims that
there is an intervening change in the law that “has occurred and/or
has been occurring throughout this litigation.” Rec. Doc. 55 at 5.
While Block concedes there is no controlling authority on the issue
at this time, he claims the great weight of circuit authority
justifies the application of an exception. Id. at 5. However, the
law in this circuit is clear that only an intervening change of
law
by
a
controlling
authority
7
is
sufficient
to
justify
disregarding an explicit command from the Fifth Circuit on remand.
Matthews, 312 F.3d at 657. Therefore, that argument lacks merit.
Block also claims that an otherwise waived issue should be
reconsidered when it is antecedent and ultimately dispositive of
the dispute before the court. Rec. Doc. 55 at 5 (citing Crocker
Piedmont Aviation, Inc., 49 F.3d 735, 739-40 (D.C. Cir. 1995)).
This argument also lacks merit for several reasons. First, as
Plaintiff is readily aware, the holdings of the D.C. Circuit are
not binding on this Court, and, under the Fifth Circuit’s stated
exceptions
to
the
mandate
rule,
the
cited
exception
is
not
applicable. Block also ignores the portion of Crocker stating that
the
exception
is
typically
exercised
only
in
“exceptional
circumstances, where injustice might otherwise result.” Crocker,
49 F.3d at 740 (quoting Eli Lilly & Co. v. Home Ins. Co., 794 F.2d
710, 717 (D.C. Cir. 1986)). Here, no such exceptional circumstances
exist because even if this Court were to consider the direct
collision argument, and presuming for the sake of argument that it
found Article 971 inapplicable, the same result would necessarily
ensue on summary judgment. Accordingly, there is no injustice
stemming from this Court’s decision to follow the Fifth Circuit’s
mandate. Finally, Block has not, and cannot, demonstrate that the
Fifth Circuit’s decision was clearly erroneous. See Matthews, 312
F.3d at 657. As no exception applies in this case, the Court must
8
implement the letter and spirit of the Fifth Circuit’s mandate.
See id.
b. Whether Block Can Establish a Probability of Success
Under
Louisiana
Code
of
Civil
Procedure
article
971,
a
defendant may seek dismissal of a cause of action through a special
motion to strike so long as the relevant claims arise from an act
of the defendant in furtherance of his or her right to free speech
in connection with a public issue. “Ruling on a special motion to
strike under Article 971 involves a ‘burden-shifting analysis for
weeding out frivolous claims.’” Lozovyy, 813 F.3d at 582 (quoting
Henry v. Lake Charles Am. Press, 566 F.3d 164, 170 (5th Cir.
2009)). Once the defendant makes a prima facie showing that Article
971 applies to the speech at issue, the burden shifts to the
plaintiff to establish a “probability of success” on his claims.
Id. In Lozovyy, the Fifth Circuit held for the first time that,
akin to the summary judgment standard, Article 971’s “probability
of success” standard does not permit courts to “weigh evidence,
assess credibility, or resolve disputed issues of material fact.”
813 F.3d at 586. Pursuant to the decision in Lozovyy, the court of
appeals
remanded
this
matter
to
“consider
whether
Block
has
established a genuine dispute of material fact on each element of
his claims.” Rec. Doc. 31 at 4.
9
1. The defamation claim
Under
Louisiana
law,
a
successful
defamation
claim
must
establish the following elements: “(1) a false and defamatory
statement concerning another; (2) an unprivileged publication to
a third party; (3) fault (negligence or greater) on the part of
the publisher; and (4) resulting injury.” Wood v. Del Giorno, 20061612, p. 4 (La. App. 4 Cir. 12/19/07); 974 So. 2d 95, 98 (citing
Trentecosta v. Beck, 96-2388, p. 10 (La. 10/21/97); 703 So. 2d
552, 559). The fault requirement turns upon the presence of malice,
actual or implied. Id.; Maggio v. Liztech Jewelry, 912 F. Supp.
216, 219 (E.D. La. 1996). However, a public figure “cannot recover
damages for a defamatory falsehood without clear and convincing
proof that the false statement was made with ‘actual malice.’”
Tarpley v. Colfax Chronicle, 650 So. 2d 738, 740 (La. 1995). If
any single element is lacking, the cause of action fails. Wood,
974
So.
2d
at
98.
The
elements
at
issue
here
are
falsity,
defamatory statement, and actual malice.
A. Whether the statements attributed to Block are false
Block does not argue that he never said the words included
within The New York Times’s quotations. See Rec. Doc. 48. Instead,
he claims that the context in which the newspaper used his words
rendered the quotations false by implying he was a racist and a
supporter of slavery. Rec. Doc. 48 at 27.
complaint
is
that
the
second
quotation
10
Block’s principal
states
only
that
he
“described
slavery
as
not
so
bad”
without
referencing
the
conditional predicate—so long as it was voluntary. See id. at 2324.
More
specifically,
Block
maintains
that
he
“has
always
denounced actual slavery, openly and vociferously, because it was
implemented by force,” and that the language he used, which was
later quoted in the article, “serve[d] merely to amplify his point
that
slavery
was
evil
because
the
slaves
were
forced
into
conditions that, if voluntary, would otherwise be acceptable.” Id.
at 25. However, he submits that the way The New York Times quoted
him does not accurately reflect this view for several reasons.
Block first points out that the second quotation, placed
roughly eight pages and fifty-three paragraphs after the first,
does not include his conditional predicate but only says that he
described slavery as “not so bad.” He describes that quotation as
a “horribly inaccurate, unqualified statement” that makes him
appear to support slavery unconditionally. Id. at 25-26. Further,
Block avers that the initial quotation does not serve to cure or
remove the sting from the second quotation because it does not
mention him by name. Id. at 26. Finally, he claims that the first
quotation’s strategic positioning demonstrates Defendant’s intent
to make him appear to be a racist and a supporter of slavery. Id.
at 27.
In support of his contention that the context and placement
of a quotations can render it false, Block relies primarily on two
11
cases: Sassone v. Elder, 626 So. 2d 345 (La. 1993), and Masson v.
New Yorker Magazine, Inc., 501 U.S. 496 (1991).2 See Rec. Doc. 48
at 21-28. In Sassone, though, the Supreme Court of Louisiana does
not purport to address the issue of falsity. 626 So. 2d at 352
(“we do not reach the issues of whether the statements were false
or whether plaintiffs were required to prove actual malice.”). The
case does not discuss the proper analysis for determining whether
quotations have become so distorted as to be untrue. See id.
Sassone is therefore not instructive as to the falsity element.
With respect to Masson, Plaintiff points to a portion of the
opinion
discussing
falsity
in
the
context
of
fabricated
quotations. Rec. Doc. 48 at 22 n. 65. That portion of the opinion,
though, is not relevant here because we are not dealing with
fabricated
quotations.
The
New
York
Times
did
not
make
the
quotations up; Block admits that he used those words. The issue
here is one of alteration. In particular, the second passage’s use
of the “not so bad” quotation that does not include the conditional
The Court also notes that Block relies upon an analogy to the Ninth Circuit
case of Price v. Stossel, 620 F. 3d 992 (9th Cir. 2010). However, the Court
finds that analogy inapt and unpersuasive. In Price, the defendant used
quotations of the plaintiff’s actual words but, through context, changed the
subject of the plaintiff’s original sermon. “In the quote, as misrepresented by
the Clip, Price is speaking about himself, whereas in the context of the actual
sermon, Price is telling a story about someone entirely different.” Id. at 1003.
Here, however, the subject was the same in the quotation and in Block’s “true”
views expressed in his own words. In the quotation, Block was speaking about
aspects of actual slavery, such as picking cotton and eating gruel. Likewise,
in his own views expressed in his own words, he considers those same aspects of
actual slavery as not so bad. Consequently, Price is not persuasive authority,
let alone controlling.
2
12
predicate in the same sentence. With respect to such alteration,
Masson instructs that “[i]f an author alters a speaker’s 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 that is compensable as defamation.” Masson,
501 U.S. at 516. Accordingly, the issue before this Court is
whether the New York Times’s alterations of, and portrayal of,
Block’s actual statements rendered them false.
In Masson, the Supreme Court of the United States discussed
the proper falsity analysis with regard to altered quotations in
the context of determining falsity as a predicate to actual malice.
Id. at 516-18. There, the Court declared:
Minor inaccuracies do not amount to falsity so
long as the substance, the gist, the sting of
the libelous charge be justified. Put another
way, 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.
501 U.S. 496, 517 (1991) (emphasis added and internal quotations
marks and citations omitted). Here, Block submits to the Court
that he denounces slavery “because it was implemented by force”
and that his point during the interview was that “slavery was evil
because the slaves were forced into conditions that, if voluntary,
would otherwise be acceptable.” Rec. Doc. 48 at 25. He maintains
that both of the relevant passages are false and defamatory in
their own right, so the Court will address each in turn.
13
The first quotation closely mirrors Block’s stated view:
“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.” Block complains
that the first passage is false because, when considered in the
context of the surrounding paragraphs, it tends to give readers
the false impression that Block and the “extremist-libertarians at
the Mises Institute are nothing more than latent racists and
supporters of slavery.” Rec. Doc. 48 at 27. However, Block does
not
articulate
any
meaningful
difference
between
the
view
expressed in the first passage and the view he actually holds. Any
unintended implication which arises is therefore not the result of
any alteration, but the result of the manner in which Block
expressed his views to The New York Times. Accordingly, the first
passage is not a false representation of Block’s views.
The
second
quotation
identifies
Block
as
an
economics
professor who “described slavery as not so bad.” In isolation, one
could construe that quotation as more than a mere minor inaccuracy.
However, under Louisiana law, an article must be read as a whole
and the challenged statements viewed in that context. See Collins
v. Clayton, No. 13-1840, p. 5 (La. App. 1 Cir. 05/07/2012); 2014
WL 2711805 (“After reading the article as a whole, and in context
as we must . . . .”). This, by definition, means that each passage
quoting Block must necessarily be considered in light of the other
14
passage. Viewing the second quotation in light of the remaining
article, particularly its clear reference to the first quotation,
any inaccuracy is minor. See Bressler v. Fortune Magazine, a Div.
of Time, Inc., 971 F.2d 1226 (6th Cir. 1992) (“the reviewing court
is
to
determine
whether
[the]
actual
statements
are
‘minor
inaccuracies’ within the context of the relevant portions of the
entire article such that they do not render the actual substance
of those portions of the article false.”).
The quotation states that Block described slavery as not so
bad, when in fact, Block described a number of facets of slavery
(in fact, all aspects of slavery other than its involuntary nature)
as not so bad—in particular, picking cotton, singing songs, and
eating gruel. See Rec. Doc. 48 at 25-26. The alteration with
respect to
the second quotation is minor because it clearly
references the first quotation, which also uses the “not so bad”
language,
where
conditional
Block’s
predicate.
stated
views
Moreover,
the
are
portrayed
sentences
with
the
immediately
following the second “not so bad” quotation discuss Block’s views
on free association with respect to the Civil Rights Act, which
again reminds the reader of the conditional predicate to his “not
so bad” comment. Block’s claim that the second passage is hidden
and
not
clarified
by
the
original
15
passage
is
unsupportable.
Furthermore, his claim that the
comments should not be read
together in any event is belied by his own contentions.3
To raise a genuine issue of fact as to falsity Block would
have to present evidence tending to show that the article as
written had a different effect on the mind of the reader from that
which the pleaded truth would have produced. See Masson, 501 U.S.
at 517 (“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.”).
Block’s
evidence
submitted here is only probative as to how a few individuals
perceived the article as written. Block submits an affidavit in
which he claims that, as a result of the article: (1) he has been
subjected to personal attacks on his professionalism, character,
and scholarship; (2) that his colleagues have called for his
condemnation; (3) that he has been threatened with physical harm;
and (4) that two young men on his campus threatened him for saying
“slavery was ok.” Rec. Doc. 48-2 at 3. Further, he submits a letter
sent by Kevin Wildes, President of Loyola University, to the school
newspaper chastising him for “claim[ing] that chattel slavery ‘was
If the passages are not to be read together, then the first passage could not
be defamatory as to Plaintiff because it does not reference him by name.
Nonetheless, Block’s brief argues that the strategic positioning of the first
quotation implies he is a racist and supporter of slavery based on the
surrounding sentences. Rec. Doc. 48 at 27. In making this claim, he is
necessarily reading the first passage in conjunction with the second—the only
portion of the entire article that references his name. Block cannot on one
hand argue that the second passage should not be read in the context of the
first, while on the other argue that that the first should be read in the
context of the second.
3
16
not so bad.’” Rec. Doc. 48-2 at 40-41.
This evidence goes to show
the effect that the article as written had on a handful of
individuals. Finding that this evidence demonstrates a genuine
issue of fact as to falsity would require this Court to rely on
the unsubstantiated presumption that Plaintiff’s views as stated
in his own words would not have the same effect on readers.
Even viewing the evidence in the light most favorable to
Plaintiff, no rational jury could find that it establishes that
his pleaded truth would produce a different effect on the minds of
the readers. He has no evidence of that. In fact, Block concedes
that any use of the word slavery that does not condemn it as “pure
evil” would “ignite fury” in readers. Rec. Doc. 48 at 26-27.
Nevertheless, he chose to use the word slavery in just that way—
without stating that it was pure evil. He claims that his point
was that slavery was evil, but he does not claim to have used that
word, and was thus apparently aware of the reaction his words would
trigger.4 In essence then, he effectively admits that his views,
Furthermore, in a blog post that Defendants allege Block posted after the
article’s publication (which he does not contest), Block relays his views in
his own words without describing slavery as pure evil:
4
I published these exact words on 2/25/13 long before
being interviewed for your story . . . : “Free
Association is an important aspect of liberty. It is
crucial. Indeed, its lack was the major problem with
slavery. The slaves could not quit. They were forced to
‘associate’ with their masters when they would have
vastly preferred not to do so. Otherwise, slavery
wasn’t so bad. You could pick cotton, sing songs, be
fed nice gruel, etc. The only real problem was that
this relationship was compulsory.”
17
no matter their context, would have had the same controversial
effect on readers. Id. Consequently, he cannot show that the
responses he received are different from that which he would have
received had The New York Times not made the structural choices of
which Block complains.5 He therefore has failed to establish a
genuine issue of material fact as to falsity under Masson.
B. Whether the statements are defamatory
In Louisiana, a statement can either qualify as defamatory
per se or as susceptible of defamatory meaning when taken in
context.
Wood,
974
So.
2d
at
99.
“Words
which
expressly
or
implicitly accuse another of criminal conduct, or which by their
very
nature
reputation,
tend
to
injure
even
without
one’s
personal
considering
or
extrinsic
professional
facts
or
surrounding circumstances, are considered defamatory per se.” Id.
Further, it is well-established that “[t]he question of whether a
communication is capable of a particular meaning and whether that
meaning is defamatory is ultimately a legal question for the
court.” Costello v. Hardy, 2003-1146, p. 13 (La. 1/21/04); 864 So.
2d 129, 140 (citing Sassone, 626 So. 2d at 352). “It is for the
court in the first instance to determine whether the words are
reasonably capable of a particular interpretation, or whether they
are necessarily so; it is then for the jury to say whether they
The only relevant evidence on this matter is that presented by Defendants:
that Block has made similar statements in the past and that he is known for
taking stances viewed by others as controversial. Rec. Doc. 35-1 at 4-9.
5
18
were in fact so understood.” WILLIAM L. PROSSER, LAW
OF
TORTS 647-48
(4th ed. 1971).
While acknowledging some of these principles of law, Block
maintains that genuine issues of fact preclude this Court from
finding, as it did originally, that the statements were not
defamatory per se. Rec. Doc. 48 at 19-20. Furthermore, Block argues
that Sassone directly contravenes this Court’s prior conclusion
that the passages are not defamatory per se. Rec. Doc. 48 at 17.
He argues that Sassone demonstrates that pre-contextual quotation
is defamatory per se. He also claims that Sassone’s discussion of
quotations make his “reading of the law unassailable.” Rec. Doc.
48 at 18. However, in making these claims, Block fails to cite to
any particular portion of Sassone. Id. at 17-18. In fact, he
provides no citations whatsoever to support these claims. Id. More
importantly, Sassone does not, nor does it purport to, address
defamation per se or statements that are defamatory on their face.
See Sassone, 626 So. 2d at 353 (noting that the plaintiffs “in
effect claim defamation by innuendo” and stating that “Unless
implications
are
considered,
the
critic’s
statement
is
not
defamatory.”). By its own admission, the Sassone court discussed
the quotations there in the context of defamation by implication.
Id. Block thus repeatedly references a cases that does not lend
support to his position. Again, this Court makes the legal finding,
19
which does not rest upon any disputed issues of material fact,
that the passages at issue here are not defamatory per se.
The statements in question do not expressly or implicitly
accuse Block of criminal conduct, nor does Block claim as much.
See Wood, 974 So. 2d at 99. Moreover, even if the passages had the
effect of injuring Plaintiff’s professional standing, the very
nature of the words do not attack Block’s personal or professional
reputation. According to Block, “[t]hat branding someone a person
who considers forced slavery ‘not so bad’ tends to harm that
person’s reputation without resort to extrinsic facts (i.e., is
defamatory per se) is so self-evident it requires no further
justification.” Rec. Doc. 48 at 20. However, the article, on its
face, does not brand Block as someone who considers slavery not so
bad. Instead, from an objective standpoint and considered as whole,
see Collins, 2014 WL 2711805 at *5, 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 Block’s 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.
20
Block’s argument, while claiming not to do so, rests entirely
on the premise that The New York Times’s article implies he is a
racist and supporter of slavery. This Court need not decide whether
that is so because it is undisputed in this case that the article
concerns both public figures and public affairs. See Rec. Doc. 48.
And “[w]here public [figures] and public affairs are concerned,
there can be no libel by innuendo.” Schaefer v. Lynch, 406 So. 2d
185. Accordingly, the article is not defamatory.
C. Whether Defendants demonstrated actual malice
In cases such as this that involve statements about a public
figure
where
constitutional
limitations
are
implicated,
“a
plaintiff must prove actual malice, i.e., that the defendant either
knew the statement was false or acted with reckless disregard for
the truth.” Costello v. Hardy, 2003-1145, p.14 (La. 1/21/04); 864
So. 2d 129, 140-41. In Masson, the Supreme Court also concluded
that “a deliberate alteration of the words uttered by a plaintiff
does not equate with knowledge of falsity
. . . unless the
alteration results in a material change in the meaning conveyed by
the statement.” 501 U.S. at 517. This Court has already found that
the alterations did not result in a material change in meaning.
Thus, there can be no knowledge of falsity. The Court also finds
that
there
was
no
reckless
disregard
for
the
truth
because
Defendants accurately reproduced Block’s views. Plaintiff has no
evidence to the contrary and providing discovery for that purpose
21
would be futile due to Plaintiff’s failure to raise fact issues as
to falsity and defamatory meaning.
Because this Court finds that
Plaintiff has failed to raise a fact issue as to the falsity,
defamatory statement, and malice elements, the defamation claim
must be dismissed.
2. The false light claim
The
three
elements
necessary
for
proving
a
false
light
invasion of privacy claim are a privacy interest, falsity, and
unreasonable conduct. Simpson v. Perry, 2013-0116, p. 3-4 (La.
App. 1 Cir. 7/14/04); 887 So. 2d 14, 17 (citing Perere v. La.
Television Broad. Corp., 2000-1656, p. 3 (La. App. 1 Cir. 9/28/01);
812 So. 2d 673, 676). As this Court finds there is no genuine issue
of fact as to falsity or actual malice (an analog to unreasonable
conduct), the false light claim must also be dismissed.
c. Defendants’ request for Attorneys’ Fees
The New York Times claims that, because Block cannot carry
his burden, it is entitled to attorneys’ fees and costs, reserving
its right to seek attorneys’ fees and costs incurred both pre- and
post-appeal. As before, this Court will refer the forthcoming
motion for attorneys’ fees to the Magistrate Judge.
IV.
CONCLUSION
Without
weighing
evidence,
assessing
credibility,
or
resolving disputed issues of fact, this Court concludes there is
no genuine dispute as to falsity, defamatory statement, or actual
22
malice, meaning Block cannot demonstrate a probability of success
on the merits on any of his claims. Accordingly,
IT IS ORDERED that the motion is GRANTED.
IT IS FURTHER ORDERED that Defendants have thirty (30) days
from the date of this Order and Reasons to submit their motion for
attorneys’ fees.
IT IS FURTHER ORDERED that said motion for attorneys’ fees be
REFERRED to the Magistrate Judge. The Magistrate Judge will conduct
a hearing on the motion, including an evidentiary one if necessary.
Thereafter, a Report and Recommendation will be filed into the
record.
New Orleans, Louisiana, this 2nd day of August, 2016.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
23
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