CASE NO. 15-30459____________________________________________IN THE UNITED STATES COURT OF APPEALSFOR 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 Courtfor the Eastern District of LouisianaCivil Action No. 2:14-CV-02200_____________________________________________ORIGINAL BRIEF OF PLAINTIFF-APPELLANT,WALTER BLOCK_____________________________________________WARD F. LAFLEUR - I.D. NO. 01770MARC J. MANDICH - I.D. NO. 35402Mahtook & Lafleur, LLC600 Jefferson Street, Suite 1000 (70501)Post Office Box 3089Lafayette, Louisiana 70502Telephone: 337-266-2189Facsimile: 337-266-2303Case: 15-30459Document: 00513124319 Page: 1 Date Filed: 07/21/2015CERTIFICATE OF INTERESTED PERSONSPursuant to 5Cir. R. 28.2.1, the undersigned counsel of record certifies thatththe following listed persons and entities as described in the fourth sentence of Rule28.2.1 have an interest in the outcome of this case. These representations are madeinorderthatthejudgesofthisCourtmayevaluatepossibledisqualificationorrecusal.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 Louisiana10. Honorable Karen Wells Roby, United States Magistrate Judge, United States District Court for the Eastern District of LouisianaiCase: 15-30459Document: 00513124319 Page: 2 Date Filed: 07/21/2015/S/ WARD F. LAFLEUR WARD F. LAFLEURMARC J. MANDICHCOUNSEL FOR PLAINTIFF-APPELLANT,WALTER BLOCKiiCase: 15-30459Document: 00513124319 Page: 3 Date Filed: 07/21/2015STATEMENT REGARDING ORAL ARGUMENTAppellant,WalterBlock(ProfessorBlock),respectfullyrequestsoralargument.ProfessorBlockbelievesoralargumentwillassisttheCourtinunderstanding and deciding the issues in this case because this case presents multipleunresolvedandintersectingissuesofbothLouisianaandFederalstatutory,Constitutional and jurisprudential law. Specifically, Appellant respectfully asks thisCourt to clarify and state the law on issues including but not limited to:1. The burden of proof imposed upon a plaintiff when opposing a SpecialMotion to Strike under Louisiana Code of Civil Procedure article971;2. Whether the burden of proof under Louisiana Code of Civil Procedurearticle 971, as interpreted by Louisiana courts, conflicts with the FederalRules of Civil Procedure whenarticle 971 is applied in federal courtand, consequently, renders article 971 inapplicable in federal court;3. Whether the District Courts interpretation of Louisiana jurisprudencedefiningandlimitingthetheoryofdefamationbyimplicationwasproperly applied in this case;4. Whether the District Courts application of the Louisiana jurisprudentialtheory of defamation by implication contravenes controlling precedentfromtheSupremeCourtoftheUnitedStatesontheelementsof iiiCase: 15-30459Document: 00513124319 Page: 4 Date Filed: 07/21/2015defamatory meaning and falsity(in a defamation action) when thedefamatory statement involves misquotation or quotation out of context;5. WhethertheDistrictCourtproperlyappliedthelegalstandardforactual malice as interpreted by the Supreme Court of Louisiana andthe Supreme Court of the United States.ivCase: 15-30459Document: 00513124319 Page: 5 Date Filed: 07/21/2015TABLE OF CONTENTSCERTIFICATE OF INTERESTED PERSONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . iSTATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . iiiTABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vTABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .viiSTATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1STATEMENT OF THE ISSUES PRESENTED FOR REVIEW. . . . . . . . . . . . . . . 2STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12I. Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12II. The District Court erred in applying article 971. . . . . . . . . . . . . . . . 14A. The article 971 burden is equivalent to the burden imposed on anon-movant opposing a motion for summary judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15B. Federal courts are not to apply state laws such as article 971 thatdirectly collide with the Federal Rules of Civil Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20III. The District Court erred as a matter of law when it concluded ProfessorBlock could not sustain his claims under Louisiana law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24vCase: 15-30459Document: 00513124319 Page: 6 Date Filed: 07/21/2015A. TheDistrictCourtcommittedlegalerrorwhenitheldthestatement Professor Block described slavery as not so bad isincapable ofdefamatorymeaningbecausequotingsomeoneassupporting slavery is defamatory per se and not mere defamationby implication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25B. TheDistrictCourtcommittedlegalerrorwhenitheldadirectquotation cannot falsify meaning and thus cannot form the basisof a defamation action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40C. TheDistrictCourtcommittedlegalerrorwhenitheldthedistorted quotations did not, on their face, present a triable issueof malice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63viCase: 15-30459Document: 00513124319 Page: 7 Date Filed: 07/21/2015TABLE OF AUTHORITIESCasesPages3M Co. v. Boulter, 842 F. Supp. 2d 85 (D.D.C. 2012). . . . . . . . . . . . . . . . . . . . . . 21 Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328 (D.C. Cir. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 21, 22, 23 Boley v. Atl. Monthly Grp., 950 F. Supp. 2d 249 (D.D.C. 2013). . . . . . . . . . . . .20Bosley Med. Inst., Inc. v. Kremer, 403 F.3d 672 (9Cir. 2004).. . . . . . . . . . . . . . 12thBritton v. Hustmyre, 2009-0847 (La. App. 1 Cir. 2010), 2010 WL 1170222). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 51Brown v. Wimberly, 477 F. Appx 214 (5Cir. 2012). . . . . . . . . . . . . . . . . . . . . . 14thCostello v. Hardy, 2003-1146 (La. 1/21/04), 864 So. 2d 129. . . . . . . . . . . . . 30, 55Culbertson v. Lykos, No. 13-20569, 2015 WL 3875815 (5th Cir. June 22, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23Darden v. Smith, 879 So. 2d 390 (La. App. 3 Cir. 2004). . . . . . . . . . . . . . . . . . . . 19Dileo v. Davis, No. CIV.A. 89-2485, 1995 WL 5908 (E.D. La. 1995). . . . . . . . . 60Estiverne v. Times Picayune, LLC, 2006-0571 (La. App. 4 Cir. 2006), 940 So. 2d 858. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Fein v. Kesterson, 476 F. App'x 673 (9th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . 13Fitzgerald v. Tucker, 737 So. 2d 706 (La. 1999). . . . . . . . . . . . . . . . . . . . . . . 32, 51GATX Aircraft Corp. v. M/V Courtney Leigh, 768 F.2d 711 (5th Cir. 1985). . . . 13Guilbeaux v. Times of Acadiana, Inc., 94-1270 (La. App. 3 Cir. 8/9/95), 661 So. 2d viiCase: 15-30459Document: 00513124319 Page: 8 Date Filed: 07/21/20151027 writ denied, 95-2942 (La. 3/29/96), 670 So. 2d 1238. . . . . . . . . . . . . 29Henry v. Lake Charles American Press, LLC, 566 F.3d 164 (5Cir. 2009)th. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14, 17In re Baxter, NO. 01-00026, 2001 WL 34806203 (W.D. La. 2001) . . . . . . . . . . . .58 Kennedy v. Sheriff of E. Baton Rouge, 2005-1418 (La. 7/10/06), 935 So. 2d 669. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45Louisiana Crisis Assistance Ctr. v. Marzano Lesvenich, 827 F. Supp. 2d 668 (E.D.La.2012)ordervacatedonothergrounds,878F.Supp.2d662(E.D.La.2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Lozovvy v. Kurtz, No. CIV.A. 13-424, 2015 WL 331804 (M.D. La. Jan. 26, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 17, 19, 55Manufactured Home Communities, Inc. v. Cnty. of San Diego, 655 F.3d 1171 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20Marshall Investments Corp. v. R.P. Carbone Co., No. CIV.A. 05-6486, 2006 WL2644959 (E.D. La. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 111 S.Ct. 2419, 115 L.Ed. 2d447 (1991). . . . . . . . . . . . . . . . . . . . . . . 11, 31, 41, 43, 44, 45, 46, 50, 56, 67Melius v. Keiffer, 980 So. 2d 167 (La. App. 4 Cir. 2008).. . . . . . . . . . . . . . . . . . . 16Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832 (9th Cir.2001). . . . . . . . . . . . . . . 20Mitchell v. Hood, No. 14-30537, 2015 WL 3505481 (5th Cir. June 4, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 23Piping Rock Partners, Inc. v. David Lerner Associates, Inc., 946 F. Supp. 2d 957(N.D. Cal. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Price v. Stossel, 620 F.3d 992 (9Cir. 2010). . . . . . . . . . . . . . 13, 20, 42, 43,44, 45thviiiCase: 15-30459Document: 00513124319 Page: 9 Date Filed: 07/21/2015Rogers v. Ash Grove Cement Co., 34,934 (La. App. 2 Cir. 2001), 799 So. 2d 841.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Sassone v. Elder, 626 So. 2d 345 (La. 1993). . . . . . . . . . . . . . . . . 11, 16, 33, 34, 35, 36, 37, 38, 44, 45, 46, 47, 51, 57, 58Schaefer v. Lynch, 406 So. 2d 185. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32Schroeder v. Bd. of Sup'rs of Louisiana State Univ., 591 So. 2d 342 (La. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393,130 S.Ct. 1431, 176 L.Ed.2d 311 (2010). . . . . . . . . . . . . . . . . . . . . . . . 13, 22Sibbach v. Wilson & Co., 312 U.S. 1, 61 S. Ct. 422, 85 L. Ed. 479 (1941). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Starr v. Boudreaux, 978 So. 2d 384 (La. App. 1 Cir. 2007).. . . . . . . . . . . . . . . . . 17Thomas v. Busby, 95-1147 (La. App. 3 Cir. 1996), 670 So. 2d 603.. . . . . . . . . . . 32Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000). . . . . . . . . . . . . 31, 32Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9Cir. 2003). . . . . . . . . . . . . . . 12thZamani v. Carnes, 491 F.3d 990 (9Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . 12thStatutes:28 U.S.C. 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 U.S.C. 1332. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Cal. Civ. Proc. Code 425.16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19D.C. Code 16-5502.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20Fed. R. App. Pro. 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Fed. R. Civ. Pro. 56. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,13, 14, 15, 17, 21, 22ixCase: 15-30459Document: 00513124319 Page: 10 Date Filed: 07/21/2015La. Code Civ. Pro. art. 966. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17La. Code Civ. Pro. art. 967. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18La. Code Civ. Pro. art. 971. . . . . 2, 7, 8, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 55, 58, 59, 61 xCase: 15-30459Document: 00513124319 Page: 11 Date Filed: 07/21/2015STATEMENT OF JURISDICTIONTheDistrictCourtproperlyexerciseddiversityjurisdictionovertheunderlying action, No. 13-02200, pursuant to 28 U.S.C. 1332. Complete diversityexists as Plaintiff-Appellant, Walter Block (Professor Block), is a domiciliary ofthe State of Louisiana; Defendant-Appellee, The New York Times Company (theN.Y. Times), is incorporated in and has its principle place of business in the Stateof New York; and Defendants-Appellees, Sam Tanenhaus and Jim Rutenberg, aredomiciliaries of the State of New York. The amount in controversy exceeds $75,000as pled by Professor Block in his Original Complaint.1This Court has jurisdiction over this appeal pursuant to 28 U.S.C. 1291 andFederal Rule of Appellate Procedure 3 as an appeal of a final decision of the DistrictCourt, which entered Final Judgment in this matter on May 6, 2015 and AmendedFinal Judgment on May 11, 2015.This appeal was timely pursuant to Federal Rule2of Appellate Procedure 4; Professor Block filed Notice of Appeal within 30 days ofentry of both judgments on May 19, 2015.3ROA.5-6. Neither complete diversity nor the amount in controversy was contested.1ROA.414 & 415.2ROA.417-18.31Case: 15-30459Document: 00513124319 Page: 12 Date Filed: 07/21/2015STATEMENT OF THE ISSUES PRESENTED FOR REVIEW1. Did the District Court apply the correct standard of review applicable underLouisiana Code of Civil Procedure article 971 or, in the alternative, did theDistrict Court err in applying article 971 in the first place? 2. Did the District Court commit legal error when it found Professor Block failedto prove defamatory meaning or, in the alternative, could show no more thandefamatory implication unactionable under the circumstances?3. DidtheDistrictCourtcommitlegalerrorwhenitdeterminedadirectquotation, despite the context in which it is used, cannot be false?4. Did the District Court commit legal error when it held Professor Block couldnot prove malice?2Case: 15-30459Document: 00513124319 Page: 13 Date Filed: 07/21/2015STATEMENT OF THE CASEOn January 25, 2014, the N. Y. Times newspaper published an article entitledRand Pauls Mixed Inheritance (the Article) and co-authored by Sam TanenhausandJimRutenburg. TheArticlepurportstoanalyzethenatureofRandPauls4libertarian supporters and the viability of his candidacy for president in light of hislibertarian views, or at least that is what is alleged by the N.Y. Times.One of thesupportersmentionedintheArticleisWalterBlock,aneconomicsprofessoratLoyolaUniversity-NewOrleans.TheArticlestatesthefollowingregardingProfessor Blocks views and beliefs:WalterBlock,aneconomicsprofessoratLoyolaUniversityinNewOrleans who described slavery as not so bad, is also highly criticalof the Civil Rights Act. Woolworths had lunchroom counters, and noblacks were allowed, he said in a telephone interview. Did they havea right to do that? Yes, they did. No one is compelled to associate withpeople against their will.5The statement in the Article about the views/beliefs of Block was certainly asurprise to him and those who have read his scholarly work, since Professor Blockhas devoted most of his academic career to promoting freedom - the antithesis ofROA.73-87 & 72 (Tanenhauss Affidavit acknowledging authorship and publication in4the N.Y. Times). Hereinafter, the defendants are collectively referred to as the N.Y.Times.ROA 81 & 52-55 (emphasis added).53Case: 15-30459Document: 00513124319 Page: 14 Date Filed: 07/21/2015slavery.In fact, much of the criticism thrown at Professor Block over the years hasbeen premised on the assertion that he is a dangerous proponent of too much freedom,hardly a view that would be consistent with the statement that slavery is not so bad. What makes it even more surprising is that Professor Block has previously authoredpeer-reviewedarticlesonvariousissuessurroundingthetopicofslavery,sohisbeliefs are in clear view of the public and would certainly have been accessible viaGoogle search to any reporter with a computer.More specifically and unsurprisingly since he is a libertarian, Professor Blockis and always has been a bitter opponent of slavery, having gone so far as to call forreparationstodescendantsofslavesfromthepropertyownerswhoreapedthebenefits of the slaves stolen labor.He has labeled slave owners as people guilty of6theft and kidnapping, among other heinous crimes. Indeed, Professor Block wrote,7[w]ere justice fully done in 1865 these people [i.e., slave owners] would have beenincarcerated,andthatpartofthevalueoftheirholdingsattributedtoslavelaborROA.290-325. See, particularly, Walter Block, On Reparations to Blacks for Slavery,6Human Rights Review, July-Sept. 2002, p.55); Spring 2001 issue of the Journal of Markets andMorality (pp. 83-93).Professor Block limits his call for reparations by stating that only directdescendants of slaves should receive reparations and only from descendants of slave owners.Hediffers from most of those calling for reparations in that he does not believe that the reparationsshould be at tax payer expense.Id.74Case: 15-30459Document: 00513124319 Page: 15 Date Filed: 07/21/2015would have been turned over to ex-slaves.8So, with Professor Blocks views so clearly articulated and so easily accessible,the question becomes how could the N.Y. Times possibly support the assertion thatProfessorBlockdescribedslaveryasnotsobad.Accordingtopleadingsfiledbelow, the N.Y. Times maintains that Blocks actual views are captured in a blog-postpre-dating the Article, in which he wrote:Freeassociationisaveryimportantaspectofliberty.Itiscrucial.Indeed, its lack was the major problem with slavery. The slaves couldnot quit. They were forced to associate with their masters when theywould have vastly preferred not to do so. Otherwise, slavery wasnt sobad. You could pick cotton, sing songs, be fed nice gruel, etc. The onlyreal problem was that this relationship was compulsory. It violated thelaw of free association, and that of the slaves private property rights intheir own persons. The Civil Rights Act of 1964, then, to a much smallerdegree of course, made partial slaves of the owners of establishmentslike Woolworths.9Of course, any rational person reading the above quotation would realize thestatementbeingmadeaboutslaverynotbeingsobadcontainsanindispensablequalifier-thatbeingthequalifieroffreeassociation.Asteachersoftendo,ProfessorBlockusedapedagogicaltooltocreateatheoreticalconstructwhereROA.291.8ROA.93-96 (the quote appears on ROA.94) (emphasis added) & 47-67 (N.Y. Times9Special Motion to Strike, in which the N.Y. Times repeatedly argues the Article accuratelycaptures Professor Blocks statements in interview with Tanenhaus and does not differentiateProfessor Blocks interview statements from those reflected in the above blog-post).5Case: 15-30459Document: 00513124319 Page: 16 Date Filed: 07/21/2015slavery can exist along with free association.In this theoretical construct, a slave isfree to leave, depart, and/or otherwise not take part in the attributes of a slave system. In such a theoretical construct, the slave does not have to pick cotton, sing songs, oreat gruel since the slave is free to disassociate himself/herself with the slave ownerat any time.Of course, this theoretical construct has no semblance to what actuallyexisted in the United States before the Civil War.But, the purpose of constructingthis theoretical concept was to drive home that the true evil of slavery was the lackof freedom and not necessarily the incidents associated with the institution, whichaligns perfectly with the views of perhaps the most well-noted Abolitionist of thattime, Frederick Douglass.10What the N.Y. Times actually published was something totally different fromwhat Professor Block espoused in the blog-post.What they published was that BlockSpeaking essentially as an expert since he did have first hand experience, Frederick10Douglass wrote of his own experience with slavery: My feelings were not the result of any marked cruelty in the treatment I received;they sprung from the consideration of my being a slave at all. It was slavery not itsmere incidents that I hated. . . . The feeding and clothing me well, could not atonefor taking my liberty from me. (see ROA.256)Thus,takingtheN.Y.TimesviewofProfessorBlockswordstoitslogicalconclusion,theynecessarily would be accusing Frederick Douglass of supporting slavery as well since ProfessorBlockswordsmerelychanneledDouglassself-sameviewpoint.Ofcourse, suchanaccusationagainst Douglass would be patently ridiculous. It is equally ridiculous when levied against ProfessorBlock since he has repeatedly vilified the institution of slavery in publicly available works and in nouncertain terms. ROA.290-325.6Case: 15-30459Document: 00513124319 Page: 17 Date Filed: 07/21/2015believed slavery was not so bad with no qualifier whatsoever, leaving the reader oftheArticletobelieveProfessorBlockwastalkingabouttheslaverysystemthatexistedintheUnitedStatesinthe19 century.Itwasomissionbydesign.Bythignoringtheindispensablequalifier(thepresenceoffreeassociation), theN.Y.11Times succeeded in portraying Professor Blocks views to the public in the exactopposite fashion of what he truly believed.It was cut-and-paste sleight of hand at itsfinest (or worst - depending on ones point of view).They hit him where it hurt themost.They took a person with a lifelong devotion to freedom and made him look likea hardcore racist.The N.Y. Times seized Professor Blocks words and used them asa weapon against him to convey a meaning entirely their own creation.When the N.Y. Times failed to publish a retraction, Professor Block filed hisOriginal Complaint on September 23, 2014, asserting claims for defamation and falselight invasion of privacy. On March 5, 2015, in lieu of an answer, the N.Y. Times12filed a Special Motion to Strike under Louisiana Code of Civil Procedure article971, asserting Professor Block could not sustain his burden of proving the statementsin the Article were defamatory, false or made with actual malice and thus seekingThe necessity of this qualifier to Professor Blocks meaning is evidenced by his use of11the word otherwise, which indisputably links the language that follows to the conditionalpremise he constructed.ROA.5-13.127Case: 15-30459Document: 00513124319 Page: 18 Date Filed: 07/21/2015dismissal thereof.13Inopposition,Blocksubmittedsubstantialevidencetoestablishthatthereading public (including the president of his own university and other professors atthe school) interpreted the Article in the exact way argued herein - that is, the readingpublic felt the Article portrayed Professor Block as a supporter of slavery as it existedin the United Statesprior to the Civil War. There were requests for reprimand,14firing,andeventhreatsofphysicalviolence. Inshort,thereadingpublicfelt15ProfessorBlockwasaracist.Also,ProfessorBlockprovidedtheCourtwithasubstantial body of law supporting his legal position. 16The District Court signed its Order and Reasons for Judgment granting theN.Y. Times Motion on April 16, 2015. In its Order and Reasons, the District Court17heldProfessorBlockfailedtosustainhisburdenofproofontheelementsofdefamatory meaning, falsity and malice, largely adopting the N.Y. Times argumentsROA.44-68.13See ROA.287-89, 326-27 & 330-31.14Id.15ROA.261-86 (Opposition); ROA. 287-351 (Attachments).16ROA.399-412.178Case: 15-30459Document: 00513124319 Page: 19 Date Filed: 07/21/2015without addressing or analyzing the responsive arguments made by Professor Block.18The Court concluded the N.Y. Times pre-contextual quotations (1) are incapable ofdefamatorymeaning,(2)areatruthfulrenditionofProfessorBlocksviews,andbecause the quotations contain no falsehood, (3) were not made with actual malice.19TheDistrictCourtalsoawardedtheN.Y.Timesreasonableattorneysfeesinconnection with the Motion. From that Judgment, Professor Block timely filed a20Notice of Appeal.21SUMMARY OF THE ARGUMENTSince the N.Y. Times admits the blog-post on page 6, supra, accurately reflectsProfessor Blocks interview statements to Tanenhaus, the facts of this case are largelynotindispute.Rather,thecentraldisputeiswhethertheArticleaccuratelycharacterizedtheviewscapturedintheblog-post.TheDistrict CourterroneouslyconcludedtheArticlesstatementscannotbeconsideredfalsebecauseProfessorBlock was quoted directly. The law does not support the District Court using anROA.319-412.18ROA.399-412.19Id. Should the District Courts decision be reversed, the award of attorneys fees must20be reversed as well. Also, should this Court determine article 971 should not have been applied,but the N.Y. Times is still entitled to dismissal of Professor Blocks claims under Rule 56, theaward of attorneys fees must still be set aside.ROA.417-18.219Case: 15-30459Document: 00513124319 Page: 20 Date Filed: 07/21/2015individuals exact words does not provide a shield to a defamation action when thewordsuseddonotaccuratelyconveythespeakersmeaning.TheUnitedStatesSupreme Court recognizes to hold otherwise would have devastating consequencesjournalists would be free to fabricate storylines, making people far more reluctant tocommunicate with the media. Indeed, the District Courts holding would allow mediadefendants to divorce the spoken word from context and, simply through the use ofquotation marks, escape liability even if the quoted words completely misrepresentthe speakers meaning. Not only should this precedent not stand, it actually flies inthe face of established law. Before the erroneous application of Louisiana and federal defamation law canbe addressed, however, this Court must first define the burden of proof applicable todefendants motion.Professor Block contends Louisiana courts apply a burden thatdoes not differ from the burden on a non-movant opposing a motion for summaryjudgment. Alternatively, Professor Block contends, if the article 971 standard is moreheightenedthanthesummaryjudgmentstandard,UnitedStatesSupremeCourtjurisprudence prohibits its application in federal court. The District Court held article971appliedbutfailedtoaddresstheburdenimposedandwhetherthatburdencontravenes federal law.22ROA.401-03.2210Case: 15-30459Document: 00513124319 Page: 21 Date Filed: 07/21/2015When viewed under the legal standard that must be applied herein, the DistrictCourts conclusions on the merits do not withstand legal scrutiny. That is, the lawrequired only that Professor Block establish, with the pleadings and evidence viewedin the light most favorable to him with all dispute resolved in his favor, a genuineissueofmaterialfactastothestatementsintentionallyfalseanddefamatorymeaning. As to defamatory meaning, the District Court erroneously blended its analysisof whether the statements about Professor Block were defamatory with its analysisof whether the statements were false. Relying on the fact that Professor Block wasquoted directly, the District Court determined the statements either (1) were incapableofdefamatorymeaningor,iftakenoutofcontext,(2)constituted,atmost,defamatoryimplicationwhichisnotactionableunderthecircumstances. The23notion that a direct quotation used out of context is incapable of defamatory meaningor, at most, constitutes mere defamatory implication is belied by both Louisiana andUnited States Supreme Court precedent.Further, the notion that quoting someone24as having described slavery as not so bad is not defamatory indeed, defamatoryROA.407-09.23Sassone v. Elder, 626 So. 2d 345, 354-55 (La. 1993); and Masson v. New Yorker24Magazine, Inc., 501 U.S. 496, 515, 111 S.Ct. 2419, 115 L.Ed. 2d 447 (1991). 11Case: 15-30459Document: 00513124319 Page: 22 Date Filed: 07/21/2015per se is legally unsupportable. Finally,astomalice,theDistrictCourtdetermineditcouldnotbeproven,essentially as an afterthought without any meaningful analysis.That is, the District25Court found Professor Blocks inability to establish falsity in turn precludes himfrom establishing malice.This conclusion also contravenes Louisiana and United26States Supreme Court precedent, which unequivocally stands for the proposition that,at the summary stage of litigation, showing a quotation was taken out of context tofalsify meaning is on its own sufficient to show a probability of proving malice. Theprobabilityofprovingmaliceisfurtherbolsteredwhenthepublicationitselfevidences underlying animus against the defamed individual.ARGUMENTI. Standard of ReviewThis Court, like Louisiana state courts,reviews de novo a district courts rulingon an article 971 motion.This Court has cited to precedent from the United States27ROA.410.25ROA.407.26Henry v. Lake Charles American Press, LLC, 566 F.3d 164, 169 (5Cir. 2009) (citing,27 thas persuasive authority, Zamani v. Carnes, 491 F.3d 990, 994 (9Cir. 2007); Bosley Med. Inst.,thInc. v. Kremer, 403 F.3d 672, 676 (9Cir. 2004); and Vess v. Ciba-Geigy Corp. USA, 317 F.3dth1097, 1102 (9Cir. 2003)).th12Case: 15-30459Document: 00513124319 Page: 23 Date Filed: 07/21/2015Court of Appeals for the Ninth Circuit as persuasive authority on this point; the NinthCircuit has repeatedly stated the granting of an anti-SLAPP motion is reviewed, in itsentirety,denovo. ItcannotbemeaningfullyarguedanyportionoftheDistrict28Courts opinion is subject to more heightened review. Block argues herein, however, that article 971 should not have been applied inthe District Court since it directly collides with Federal Rules of Civil Procedure56.So, in the event this Court decides article 971 should not have been applied, it29must be noted de novo review is nonetheless required.This Court must apply thesamelegalstandardapplicableinthedistrictcourt,viewingtherecordandinferencesfromthefactsinthelightmostfavorabletothenonmovant. Stated30differently, Professor Block must have his properly filed allegations taken as trueand must receive the benefit of the doubt when his assertions conflict with those ofthe movant.31Id.; see also Fein v. Kesterson, 476 F. App'x 673, 674 (9th Cir. 2012) (citing Price v.28Stossel, 620 F.3d 992, 999 (9th Cir.2010)).See, e.g., Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1337 (D.C. Cir. 2015)29(citing Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393,39899, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010); and Sibbach v. Wilson & Co., 312 U.S. 1, 14,61 S. Ct. 422, 426, 85 L. Ed. 479 (1941)).See GATX Aircraft Corp. v. M/V Courtney Leigh, 768 F.2d 711, 714 (5th Cir. 1985);30and Schroeder v. Bd. of Sup'rs of Louisiana State Univ., 591 So. 2d 342, 345 (La. 1991).Schroeder, 591 So. 2d at 345.3113Case: 15-30459Document: 00513124319 Page: 24 Date Filed: 07/21/2015Finally,thisCourthasalsohelddenovoreviewapplieswhenreviewingadistrict courts interpretation of the Federal Rules of Civil Procedure[.]So the32thresholdquestionofwhetherarticle971directlycollideswithRule56alsorequires de novo review. II. The District Court erred in applying article 971In accordance with previous decisions from this Court,the District Court held33article971appliesinthisdiversitycase. Upondecidingarticle971applied,the34District Court observed [t]he next issue is whether [Professor Block] can establisha probability of success on the defamation and false light claims[,]but failed to35address just what probability of success means, despite Professor Blocks well-supported arguments that the (proper) application of article 971 in both Louisiana andfederalcourtsisanythingbutclearlydefined. TheDistrictCourtsdecisionto36bypass this issue is problematic as it leaves litigants to guess whatis required byMitchell v. Hood, No. 14-30537, 2015 WL 3505481, at *2 (5th Cir. June 4, 2015).32566 F.3d at 169; and Brown v. Wimberly, 477 F. Appx 214, 216 (5Cir. 2012).33 thROA.401-04.34ROA.405.35ROA.265-67.3614Case: 15-30459Document: 00513124319 Page: 25 Date Filed: 07/21/2015article971apotentiallyoutcomedeterminativeissueinthiscase. Twodistrict37courts within this Circuit have observed this Court has not clearly defined the burdenimposed by article 971.38Professor Block contends article 971 can require no more than a showing of agenuine issue of fact as to the elements of his claims for two reasons. First, Louisianacourts do not resolve disputed issues of fact in this posture. Second, federal courts arenot at liberty to apply a more stringent standard than that required by Rule 56. A. Thearticle971burdenisequivalenttotheburdenimposedonanon-movant opposing a motion for summary judgmentIn Louisiana Crisis Assistance Center v. Marzano Lesvenich, the United StatesDistrictCourtfortheEasternDistrictofLouisianaobservedthisCourthasnotconclusively determined the critical issue impacting the application of article 971'sprobability of success standard i.e., whether it allows the courts to weigh evidenceor requires the courts to deny article 971 motions when there are genuine evidentiaryissues of fact requiring trial.The United States District Court for the Middle District39Lozovvy v. Kurtz, No. CIV.A. 13-424, 2015 WL 331804 * 10 (M.D. La. Jan. 26, 2015).37Louisiana Crisis Assistance Ctr. v. Marzano Lesvenich, 827 F. Supp. 2d 668 (E.D. La.382012) order vacated on other grounds, 878 F. Supp. 2d 662 (E.D. La. 2012); and Lozovvy, 2015WL 331804.827 F. Supp. 2d at 679.3915Case: 15-30459Document: 00513124319 Page: 26 Date Filed: 07/21/2015ofLouisianamadethissameobservationin Lozovvyv.Kurtz.Lefttotheirown40devices, the two courts came to opposite conclusions regarding the proper standard.The Lozovvy court found the Louisiana legislature did appear to want someweighing of the evidence when it passed article 971.In contrast, the Lesvenich41courtdeterminedarticle971doesnotallowweighingofevidenceithasbeeninterpreted to impose the same burden necessary for a plaintiff to withstand summaryjudgment.42The approach of the Lesvenich court is the proper approach as it adheres toLouisianadecisionallawinterpretingaLouisianastatute.TheLesvenichcourtstudiouslyreviewedLouisianacasesonthisissue,notingitfoundnoLouisianadecisions in which the court applying article 971 resolved disputed issues of materialfactinfavorofthemovant;rather,whenLouisianacourtshavefounddisputedissues of material fact, they have found that a special motion to strike should not begranted.43Lozovvy at *10-12 (observing this Courts rulings on article 971conflict with one40another and sometime within the same opinion as to the proper standard). This case iscurrently pending on appeal to this Court.Id. at 12.41Lesvenich at 678.42Id. at 677-78 (citing Estiverne v. Times Picayune, LLC, 2006-0571 (La. App. 4 Cir.432006), 940 So. 2d 858, 860; Sassone v. Elder, 626 So. 2d 345, 350 (La. 1993); Melius v. Keiffer,16Case: 15-30459Document: 00513124319 Page: 27 Date Filed: 07/21/2015The Lozovvy court, instead of relying on Louisiana jurisprudence, attemptedto divine the intent of the Louisiana legislature in enacting article 971, stating theremust be a distinct purpose for an article 971 Motion to Strike; otherwise there wouldbe no point in enacting the statute because the Legislature could have merely reliedon the summary judgment article itself.With all due respect to the Lozovvy court,44itperhapsfailedtoconsiderthemany,substantialadvantagesconferredondefendants by article 971 that are not afforded in summary procedure. First,article971requiresadefendanttomakeabsolutelynoevidentiaryshowingofanykindtoshifttheburdenofprooftotheplaintiff;rather,allthedefendant must show is the cause of action arises from an act of that [defendant] infurtherance of the [defendants] right of petition or free speech . . . in connection withapublicissue[.] UnderbothLouisianaandfederalsummaryprocedure,the45defendants initial burden is far more substantial, requiring an evidentiary showingof a lack of prima facie proof for at least one element of the plaintiffs claim.Article46980 So. 2d 167 (La. App. 4 Cir. 2008); and Rogers v. Ash Grove Cement Co., 34,934 (La. App. 2Cir. 2001), 799 So. 2d 841, 849).Lozovvy at *12.44La. Code Civ. Pro. art. 971(A)(1); Henry, 566 F.3d at 181; Starr v. Boudreaux, 978 So.452d 384, 388-89 (La. App. 1 Cir. 2007).La. Code Civ. Pro. art. 966 & 967; and Fed. R. Civ. Pro. 56.4617Case: 15-30459Document: 00513124319 Page: 28 Date Filed: 07/21/2015971 completely relieves defendants of their initial burden on motion for summaryjudgment which is clearly a distinct purpose for its enactment.Second,unlesstheplaintiffshowsgoodcauseonnoticedmotion,alldiscovery is immediately stayed upon the filing of a notice of motion made pursuantto[article971] andthecourtmakesitsdeterminationconsideringonlythe47pleadings and supporting and opposing affidavits stating the facts upon which theliabilityordefenseisbased. Asifrelieffromanyevidentiaryburdenofproof48whatsoeverwasnotalreadysufficient,article971furtherentitlesadefendanttoprohibitdiscoveryofanykindwhileforcingtheplaintifftomakeaprimafacieshowing as to each and every element of his or her claim (including the difficult-to-proveelementofactualmalicethatrequiresproofofthedefendantsactualorconstructive knowledge). Again, this extraordinarily substantial benefit is a completestranger to normal summary procedure.Finally,inthenotunlikelyeventtheplaintiffisunabletorunthegauntletarticle971creates,the defendantshallbeawardedreasonable attorneyfeesandcostsregardlessofhowclosethedecisionmayhavebeenorhownarrowlyorLa. Code Civ. Pro. art. 971(D).47La. Code Civ. Pro. art. 971(A)(2).4818Case: 15-30459Document: 00513124319 Page: 29 Date Filed: 07/21/2015technically the defendant was able to escape liability.As the word shall indicates,49theawardisnotsubjecttothecourtsdiscretion. Thisbenefitalsodoesnot50accompany normal summary procedure. Thus, again meaning no disrespect to the Lozovvy court, the notion that article971 would have no distinct purpose if it did not impose a more heightened burdenthan normal summary procedure is simply wrong. And, as the Lesvenich court aptlyconcluded,Louisianajurisprudencedoesnotsupportthepropositionthatitdoesimpose a more heightened burden.In further support of the Lesvenich courts opinion, Professor Block brings thisCourts attention to jurisprudence from the United States Court of Appeals for theNinthCircuitinterpretingCaliforniasanti-SLAPPstatuteastatutevirtuallyindistinguishable fromarticle 971 insofar as it also requires the plaintiff to show aprobabilitythattheplaintiffwillprevailontheclaim(underthesameburden-shifting dynamic and with the same benefits to the defendant) in order for the claimtosurvive. ThisCourthasreliedonNinthCircuitjurisprudenceinthepastas51La. Code Civ. Pro. art. 971(B).49Darden v. Smith, 879 So. 2d 390, 400 (La. App. 3 Cir. 2004).50Cal. Civ. Proc. Code 425.16.5119Case: 15-30459Document: 00513124319 Page: 30 Date Filed: 07/21/2015persuasiveauthorityontheapplicationofarticle971. TheNinthCircuithas52repeatedly held, based on California jurisprudence not unlike the Louisiana casescited in Lesvinich, the standard is akin to the burden on a non-movant opposing amotion for summary judgment no weighing of evidence is allowed and disputedissues of fact must be resolved in favor of the plaintiff.The United States District53CourtfortheDistrictofColumbia,alsointerpretingananti-SLAPPstatutefunctionallyindistinguishablefromarticle971, reliedonNinthCircuit54jurisprudence in coming to the same conclusion.55B. Federal courts are not to apply state laws such as article 971 thatdirectly collide with the Federal Rules of Civil ProcedureShould this Court decide Louisiana state courts place a more heightened burdenon a plaintiff opposing an article 971 motion than that required to survive summaryjudgment, Professor Block contends such an interpretation would render article 971See fn. 27, supra.52See Manufactured Home Communities, Inc. v. Cnty. of San Diego, 655 F.3d 1171,531176 77 (9th Cir. 2011); Price v. Stossel, 620 F.3d 992, 1000 (9Cir. 2010); and MetabolifethInt'l, Inc. v. Wornick, 264 F.3d 832, 840 (9th Cir.2001); see also Piping Rock Partners, Inc. v.David Lerner Associates, Inc., 946 F. Supp. 2d 957, 970 (N.D. Cal. 2013) (So long as thepublication is reasonably susceptible of a defamatory meaning, a factual question for the juryexists).D.C. Code 16-5502.54Boley v. Atl. Monthly Grp., 950 F. Supp. 2d 249, 256-57 (D.D.C. 2013).5520Case: 15-30459Document: 00513124319 Page: 31 Date Filed: 07/21/2015inapplicable in federal court. In2012,theD.C.DistrictCourtanalyzedwhethertheheightenedstandardapplicable under D.C.s functionally-indistinguishable Anti-SLAPP statute can beapplied in federal courts sitting in diversity.The court concluded that federal courtscannot apply the statute because the bedrock principles of the Federal Rules of CivilProcedure mandate a federal court may not dismiss a case without a trial baseduponitsviewofthemeritsofthecaseafterconsideringmattersoutsideofthepleadings,exceptinthoseinstanceswheresummaryjudgmentunderRule56isappropriate.56For some time, this decision failed to garner support, buttheUnited StatesCourt of Appeals for the D.C. Circuit recently vindicated the D.C. District Courtsreasoning,takingupthequestionwhetherafederalcourtexercisingdiversityjurisdictionmayapplytheD.C.AntiSLAPPAct'sspecialmotiontodismissprovision and holding flatly, [t]he answer is no.The D.C. Circuit relied on clear57UnitedStatesSupremeCourtprecedent,underwhichfederalcourtssittingindiversity cannot apply a state rule if (1) a Federal Rule of Civil Procedure answer[s]the same question as the state law or rule and (2) the Federal Rule does not violate3M Co. v. Boulter, 842 F. Supp. 2d 85, 106 (D.D.C. 2012).56Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333 (D.C. Cir. 2015).5721Case: 15-30459Document: 00513124319 Page: 32 Date Filed: 07/21/2015the Rules Enabling Act.In short, Federal Rules 12 and 56 do answer the same58questionasanti-SLAPPstatutes,theydo notviolatetheRulesEnabling Act,and[t]hey do not require a plaintiff to show a likelihood of success on the merits.59Thus, the D.C. anti-SLAPP statute and its kin conflict[] with the Federal Rules bysetting up an additional hurdle a plaintiff must jump over to get to trial.60As stated in Lesvinich, this Court has never squarely addressed the above issuedecided by the D.C. Circuit and, therefore, the law on this issue is not settled.The61Lesvenich court went on to conclude article 971 does not directly collide with Rule56,butonlybecausethecourtheldthestandardimposedbyarticle971,asinterpreted by Louisiana courts, is equivalent to the standard imposed by Rule 56.62Consequently, a contrary ruling by this Court mandates a different result. As of June2015, this Court acknowledged its awareness of the disagreement among courts ofappeals as to whether state anti-SLAPP laws are applicable in federal court and thefactthatthisCourthasnotyetaddressedtheissueregardingeitherTexasorId. (citing Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S.58393, 39899, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010)).Id. at 1333-34 & 1336-37.59Id. at 1334.60Lesvinich at 676.61Id. at 676-78.6222Case: 15-30459Document: 00513124319 Page: 33 Date Filed: 07/21/2015Louisianas anti-SLAPP statute.Professor Block concedes article 971 would apply63to this case if it can be applied in federal court. Thus, Professor Block avers the issueis now squarely before this Court and must be addressed. ProfessorBlockurgesthisCourt,inkeepingwiththeD.C.Circuitswell-reasoned opinion in Abbas, to hold article 971 cannot be applied in this diversity case.ThisCourtisfacedwithaquestionmandatingoneoftworesults.EithertheLesvenich court was correct and Professor Block need only show a genuine issue ofmaterial fact to survive the N.Y. Times motion, or the article 971 standard is moreheightened and should not have been applied by the District Court at all. In eithercase, the burden upon Professor Block is the same and is a burden which he met intheDistrictCourt.Withallreasonabledoubtresolvedinhisfavorandhavingsupportedhisclaimswithsufficientevidence,hehascreatedagenuineissueofmaterial fact as to each element of his claims and is entitled to reversal of the DistrictCourts decision. The District Courts failure to address this issue was critical, as itled to erroneous application of a standard of proof Professor Block need not sustainto have his day in court. Moreover, as the analysis below will show, the District Courtimproperly decided issues solely within the jurys purview. Finally, should this CourtMitchell v. Hood, No. 14-30537, 2015 WL 3505481, at *2 (5th Cir. June 4, 2015); see63also Culbertson v. Lykos, No. 13-20569, 2015 WL 3875815, at *18 (5th Cir. June 22, 2015).23Case: 15-30459Document: 00513124319 Page: 34 Date Filed: 07/21/2015decide the District Court erroneously applied article 971, the District Courts awardof attorneys fees thereunder must be set aside regardless of this Courts ultimateholding on the merits.III. The District Court erred as a matter of law when it concluded ProfessorBlock could not sustain his claims under Louisiana lawThe District Court held Professor Block could not establish the following requisite elements for a defamation claim: falsity, defamatory, and actual malice[.]64The District Court furtherheld Professor Block could not establish falsity for thepurposeofhisfalselightinvasionofprivacyclaim,referringtoitsanalysisofBlocks defamation claim[.]The District Court thus implicitly concluded Professor65Block had sustained his burden with regard to proof of injury. The District Court alsoimplicitly acknowledgedproof sufficienttosustainProfessor Blocksdefamationclaim would necessarily sustain his false light invasion of privacy claim as, with theexception of malice (which the false light claim does not require), the two claimsrequired the same elements of proof.Thus, for the sake of brevity, Professor Block66will establish the District Court erred as a matter of law when it held he could notROA.410.64ROA.411.65Id.6624Case: 15-30459Document: 00513124319 Page: 35 Date Filed: 07/21/2015prove defamatory meaning, falsity and actual malice, presuming that proof of samewill suffice to sustain both of his claims. A. The District Court committed legal error when it held the statementProfessor Block described slavery as not so bad is incapable ofdefamatorymeaningbecausequotingsomeoneassupportingslaveryisdefamatoryperseandnotmeredefamationbyimplicationBefore entering into a detailed discussion of the Courts opinion, a review ofthe Article in its entirety is necessary to properly evaluate context.Despite the N.Y.TimesattempttocharacterizetheArticleasaninnocuousandobjectiveexamination of the intellectual underpinnings of the libertarian philosophy endorsedby Rand Paul,a full reading of the Article reveals a clear attempt to couch Paul as67a member of a fringe element (libertarianism) that espouses radical views including,inter alia, deep-seeded racial prejudices.Indeed, the N.Y. Times, itself, claims thepurposeoftheArticlewastoaskwhether[theviewsoflibertarianthinkersandacademics that have played influential roles in Pauls intellectual circle] will impactPaulsviabilityasaseriouspresidentialcandidate. TheArticleanswersthis68question, not so subtly, by painting the libertarian movement as politically extremeROA.47.67ROA.47.6825Case: 15-30459Document: 00513124319 Page: 36 Date Filed: 07/21/2015and clandestinely racist, with the obvious implication being that Paul will not be aserious candidate in the eyes of the N.Y. Times. Of course, Pauls candidacy is a matter ripe for public discourse and rightfullysubject to media scrutiny. It is fair game.But, the tenor of the Article and its clearpurpose to associate Paul with viewpoints expected to animate its readers againsthim is critical to placing the personal attack on Professor Block in context. Indeed,as the N.Y. Times pointed out, the law requires review of the Article as a whole toplacethestatementsregardingProfessorBlockincontext. Unlikerealpolitical69debate about a presidential candidates views on the issues, false quotations submittedasamatteroffactarenotprotectedby theFirstAmendmentor anyothermediaprivilege, no matter how much the publisher dresses up the Article in an attempt togive it a veneer of legitimate discourse.Defaming someone in a collateral attack isnot fair game.When read in context, Professor Block was one of the very individuals the N.Y.Times sought to comically caricature as a supporter of slavery, with the overarchingpurpose of associating Paul with the same obviously taboo viewpoint.In perhaps theirony of all ironies, the Article used Professor Block as exemplary support for theROA.62 (citing, inter alia, Britton v. Hustmyre, 2009-0847 (La. App. 1 Cir. 2010), 201069WL 1170222 *8).26Case: 15-30459Document: 00513124319 Page: 37 Date Filed: 07/21/2015assertionthatamovementwhich,atitsheart,championsindividualfreedom,particularly from governmental interference, actually supports a state institution thatwas the very antithesis of individual freedom.Apparently swayed by the Articles artful attempt to avoid making conclusionsthat can be considered defamatory, the District Court found the text of the Article,taken to its extreme, would merely support an accusation that Block supports freeenterprise at all costs[.]But, the District Courts conclusion ignores the law and70evidence.TheDistrictCourtsmandatewasnottoinsertitsownopinionoftheArticles representation of Professor Block, but to determine whether a reasonablereadercouldviewtheArticlesstatementsaboutProfessorBlockasfalselyandintentionallyconveyinghissupportforforcedslavery.Onthispointandinthisprocedural posture, there can be and has been no dispute. Professor Block submittedample evidence of the reputational injury and downright vitriol the Article has causedhim and the N.Y. Times has submitted no evidence to the contrary.Specifically, (1)71Professor Block has personally attested to the criticism he has faced as a result of theN.Y.Timesportrayalofhimasasupporterofslavery; (2)thePresidentofthe72ROA.409.70Of course, had the N.Y. Times submitted contrary evidence, the fact would still remain71competing views of the meaning intended by the Article constitutes a genuine issue of fact.ROA.287-89.7227Case: 15-30459Document: 00513124319 Page: 38 Date Filed: 07/21/2015university where Professor Block teaches and his peers on the faculty have lambastedhim for voicing support of forced slavery;(3) faculty and students have threatened73to shun and boycott Professor Block because of the views the Article attributes tohim; and(4)studentsoncampusthreatenedphysicalconfrontationbelieving74Professor Block to be the motherf...r who said slavery was ok.75In perhaps the single most legally insupportable portion of itsOpinion, theDistrict Court somehow concluded the statements concerning Professor Block wereincapable of defamatory meaning. The court wrote:[A]sBlockisquoteddirectly,hefailstodemonstratefactsandcircumstances defendants have failed to consider, such that they werenegligent, and the references could be considered defamatory per se.The publication of an article accusing Block of being racist could beviewed as defamatory per se. However, the article does not state thatProfessor Block is a racist, a supporter of slavery, or even that heopposes the [Civil Rights] Act on the basis of racial prejudice.What Plaintiff really takes issue with is the context in which hisquoteswereused.However,neitherofdefendantsstatementsiscapableofdefamatorymeaning.Toreiterate,thearticlequotesBlockdirectly.Thecontextitselfdoesnotrationallyleadtoanimpression that Professor Block is racist, or a supporter of slavery whoobjects to the [Civil Rights] Act on the basis of racial prejudice. Thefactthatsomemayinterpretthearticlethatwaydoesnotcontravenethispoint....Thetext,takentoitsextreme,wouldROA.287-89 & 326-27.73ROA.287-89.74ROA.330-31.7528Case: 15-30459Document: 00513124319 Page: 39 Date Filed: 07/21/2015merely support an accusation that Block supports free enterprise atall costs, which is not the defamation complained of here.76The court apparently took the view (1) a direct quote cannot carry defamatorymeaning; (2) the reasonable interpretation of the quote by the average reader has nobearing on its defamatory nature; and (3) the only way Professor Block could haveproven defamatory meaning is if the N.Y. Times outright stated Professor Block isa racist or supports slavery. On none of these points does the law agree with theDistrict Court. In an apparent alternative finding, the District Court appears to have held, atmost,thestatementscouldbeconsidereddefamatoryimplicationwhichisnotactionable since Professor Block is a public figure and the Article discusses a matterof public concern.Louisiana Supreme Court jurisprudence directly contravenes this77alternative conclusion.Adefamatorycommunicationisonewhichtendstoharmapersonsreputation so as to lower him in the estimation of the community or to deter thirdpersons from associating or dealing with him.The question of whether a statement78ROA.407-09 (emphasis added).76ROA.409.77Guilbeaux v. Times of Acadiana, Inc., 94-1270 (La. App. 3 Cir. 8/9/95), 661 So. 2d781027, 1031 writ denied, 95-2942 (La. 3/29/96), 670 So. 2d 1238.29Case: 15-30459Document: 00513124319 Page: 40 Date Filed: 07/21/2015is capable of defamatory meaning is answered by determining whether a listenercould have reasonably understood the communication, taken in context, to havebeenintendedinadefamatorysenseandbyconsider[ing]eachportionofthedefamatory statement separately... in the context of the entire article and the effectitwasreasonablyintendedtoproduceinthemind oftheaverage listener.79Contrary to the District Courts conclusion, these statements of law make clear themeaning a reasonable reader would take from the statements is part and parcel ofwhether they are defamatory.Words which convey an element of personal disgrace, dishonesty, or disreputearedefamatory;moreover,wordsaredefamatoryperseiftheyexpresslyorimplicitly...bytheirverynaturetendtoinjureonespersonalorprofessionalreputation,evenwithoutconsideringextrinsicfactsorsurroundingcircumstances. Asthesestatementsoflawsignify,thequestionofdefamatory80meaningisclearlydistinctfromthequestionofwhetherthedefamatorycommunicationisfalse.Thus,theDistrictCourtalsoerredasamatteroflawinblending its analysis of the two elements.Id. at 1031; and Marshall Investments Corp. v. R.P. Carbone Co., No. CIV.A. 05-6486,792006 WL 2644959 *4 (E.D. La. 2006).Costello v. Hardy, 2003-1146 (La. 1/21/04), 864 So. 2d 129, 140 (emphasis added).8030Case: 15-30459Document: 00513124319 Page: 41 Date Filed: 07/21/2015Apparently,theDistrictCourtbelievesthataquotationcannotconstitutedefamation (per se) and, rather, constitutes at most defamatory implication even iftaken out of context to convey a meaning the speaker did not intend. To the contrary,theUnitedStatesSupremeCourthasheldaquotationtakenoutofcontextcandistort meaning, although the speaker did use each reported word.Indeed, quite81contrary to the District Courts reasoning, the Supreme Court has stated:Deliberate or reckless falsification that comprises actual malice turnsuponwordsandpunctuationonlybecausewordsandpunctuationexpressmeaning.Meaningisthelifeoflanguage.And,forthereasons we have given, quotations may be a devastating instrumentfor conveying false meaning. . . . [I]f the alterations of petitionerswordsgaveadifferentmeaningtothestatements,bearingupontheir defamatory character, then the device of quotations might wellbe critical in finding the words actionable.82Basedonthislanguage,theTexasSupremeCourthasheldtheFirstAmendment allows a public figure to sue for defamation when a publication as awhole conveys a false and defamatory meaning either by omission or juxtaposition.83The District Court apparently believes Louisiana law takes a contrary position. I.e.,that a misquotation or quotation-out-of-context can constitute, at most, defamationMasson, 501 U.S. at 515 (emphasis added).81Id. at 517 (emphasis added).82Turner v. KTRK Television, Inc., 38 S.W.3d 103, 116 (Tex. 2000).8331Case: 15-30459Document: 00513124319 Page: 42 Date Filed: 07/21/2015by implication, which is not actionable in Louisiana when the allegedly defamedindividualisapublicfigure.AclosereviewofLouisianaSupremeCourtjurisprudence negates the District Courts conclusion.First, the Louisiana defamation-by-implication rule does not hold implicationsare never actionable when the statement is about a public figure or public concern.Rather, the Louisiana Supreme Court has held a defamatory implication standingaloneisinsufficienttoproveanotherwisetruestatementaboutapublicofficial/concern is defamatory.In other words, the thrust of Louisianas defamation-84by-implication rule is, to receive protection against any false implication a reader mayascribe,thestatementmustfirstcontainnoactualfalsehoodinandofitself.85Louisiana law recognizes a distinct difference between defamation by implication anddefamation by imputing words or conduct to an individual the latter is actionable86even in the case of a public figure. To illustrate, if the N.Y. Times wrote, e.g., Professor Blocks classes are madeupof99%whitemales,assumingthestatisticistrue,hecouldnotmaintainaSchaefer v. Lynch, 406 So. 2d 185, 188; see also Turner, 38 S.W.3d at 11684(characterizing Schaefer as having held the First Amendment prevents a public figure fromclaiming defamation based on the whole of a communication [only] when all its individualstatements are literally or substantially true). Id.; and Fitzgerald v. Tucker, 737 So. 2d 706, 717 (La. 1999). 85Thomas v. Busby, 95-1147 (La. App. 3 Cir. 1996), 670 So. 2d 603, 608.8632Case: 15-30459Document: 00513124319 Page: 43 Date Filed: 07/21/2015defamation action because of the implication his classes are composed of a single-race/gender demographic perhaps by his own doing. The hypothetical statement doesnot allege Professor Block hand-selected his students on the basis of race/gender, nordoes it allege he had any part in selecting his students whatsoever. The situation hereis drastically different. The N.Y. Times quoted Professor Block as having describedslavery as not so bad thereby imputing to Professor Block, through the use of hisown words out of context, the view that slavery as it existed and as the term iscommonlyunderstoodisacceptableinhiseyes.LaterportionsofthisBriefwilladdress the lack of any truth to this assertion, but it is self-evident such a quotation,byitsverynature,tendstoinjureProfessorBlockspersonalandprofessionalreputation by casting him as a racist of the worst kind. 87TheLouisianaSupremeCourtcaseofSassonev.Elder discussesthe88defamation by implication issues applicable in Louisiana. In Sassone, the plaintiffswere lawyers suing for certain statements published by a newspaper.The court firstheld there was no viable action based on a reporters statement that he heard fromotherindividualsthattheplaintiffsdidnothaveworkingtelephonenumbers. It is bad enough to be a racist, but a supporter of slavery goes one step further. Such a87person believes it is permissible to commandeer anothers life and steal the fruits of anotherslabor based on pseudo-theories of racial supremacy.626 So. 2d 345 (La. 1993).8833Case: 15-30459Document: 00513124319 Page: 44 Date Filed: 07/21/2015According to the Court, the truthful reporting of the individuals statements could notbe defamatory without resort to the alleged implication created thereby (the plaintiffswere shady or dishonest lawyers).89In contrast, the N.Y. Times did not refer to statements of third parties that couldimply negative facts about Professor Block.The statements were the N.Y. Timesown.The outright statement is Professor Block, himself, described the institution ofslavery (as a reasonable and unsuspecting reader would understand that term) as notsobad.Ifthe Articlesaidnothingelse, thisfalse misrepresentationofProfessorBlocks views, by its very nature, constitutes defamation per se because it casts himasasupporterofslavery(aninstitutionwhosemodern-daysupportersareunequivocally and rightly should be held up to disdain in the eyes of the community).That branding someone a person who considers forced slavery not so bad tends toharm that persons personal/professional reputation without resort to extrinsic facts(i.e., is defamatory per se) is so self-evident it requires no further justification. Onewouldbehard-pressedtocomeupwithasinglelabel(besides,say,murderer,rapist, or child molester) that would lead more directly and inevitably to socialstigmatization.SincetheArticlecontainsthisexplicitlydefamatory(perse)statement,the surroundingimplicationcreatedby theArticle asawhole(i.e.,theId. at 353-54.8934Case: 15-30459Document: 00513124319 Page: 45 Date Filed: 07/21/2015principle inference a reasonable reader will draw as having been intended by the N.Y.Times) that Professor Block is an outspoken racist of the most deplorable kind isalso actionable. TheSassonecourtsdiscussionofanotherallegedlydefamatorystatementpresented in that case makes Professor Blocks reading of the law unassailable and,consequently, the District Courts reading patently erroneous. That is, the Sassonecourtconsideredwhetherthedefendant-reporterfalselymischaracterizedthecomments of a district attorney regarding a lawyer (Lloyd) who was not one of theplaintiffs in the case. In one instance, the reporter followed his lead-in statementDistrictAttorneyDougGreenburgbegandiggingintothematterwithaclipofGreenburg saying in an apparently positive declaration, Its an extortion. I think thatit smacks of fraud; Greenburg subsequently asserted he made the taped comment,not as his views on the proved criminality of Lloyds activities... but in response to[thereporters]hypotheticalquestionwhichassumedthetruthaboutLloydsactivitiesdescribedby[thereporter]. Inanother,thereporterledin...[]90Greenburg minced no words in describing the alleged actions of [Lloyd] followedby Greenburgs taped statement that [t]his person is a criminal charlatan of the worstorder; again, Greenburg asserted his interview statement was to the effect that ifSassone at 354-55 (emphasis added).9035Case: 15-30459Document: 00513124319 Page: 46 Date Filed: 07/21/2015the allegations about Lloyd were proved, this person was a criminal charlatan of theworst order.91ThecourtstatedthereportersuseofGreenburgsstatements,onitsface,arguably present[s] a jury question whether the statements were maliciously misusedand so distorted as to be untrue but the statements were not made about one of theplaintiffsinthecasesothequestionofwhetherthemisusedquotationwasdefamatorywasnotproperlybeforethecourt. Nevertheless,thethrustofthis92portion of the opinion is clear misuse and distortion of a persons statement bydivorcing it from context and depriving it of its intended meaning most certainly isoutright defamation, can show malice in and of itself, and the mere fact that contextisnecessarytoprovethestatementsfalsitydoesnotrenderitmeredefamatoryimplication. That is, the court endorsed the very same argument Professor Block ismaking here. Greenburg posited, hypothetically, if the allegations against Lloyd were true,then he would consider Lloyd a criminal of the worst order. The defamatory meaningarose only out of the manner in which the reporter presented the videotaped quotes.Id. at 355 (emphasis added).91Id. (emphasis added).Given the Courts dictum, it would certainly appear that if the92statements had been made about one of the plaintiffs, there would have been an actionable claim.36Case: 15-30459Document: 00513124319 Page: 47 Date Filed: 07/21/2015Here, Professor Block posited if the working conditions attendant to slavery werevoluntary, then such a hypothetical slavery is not so bad because the evil of slaveryis the very fact that it was compulsory a deprivation of freedom. Just like Greenburg,Professor Block was speaking in conditional terms, but the Article fails to portray thiscrucial fact whatsoever and instead places Professor Blockswords in an entirelyfabricatedcontext.Hespokeonlyaboutahypotheticalslaverystrippedoftheinvoluntaryaspectwithoutwhichslaveryisnotslaveryatall.Statedotherwise,ProfessorBlockwasnotdescribingslaveryatallsincevoluntaryslaveryisconsidered an oxymoron. When the N.Y. Times omitted this crucial fact, it assignednew meaning to Professor Blocks comments to the point the Articles assertion iscompletelyfalse.AstheSassonecourtindicated,suchamisrepresentationofapersons statement despite the fact that the person was quoted verbatim constitutesanexplicitlydefamatoryandatleastarguablymaliciousstatementonitsface.Certainly, imprudent journalists often play the gotcha game by taking statementsout of context, but when they do so in a way that completely distorts the meaningthereof, Louisiana law does not allow them to shield their actions behind the FirstAmendment.To emphasize, Professor Block has clearly and repeatedly stressed the pointthatslaverywasevilbecauseofitsdefiningcharacteristicgrossdeprivationof37Case: 15-30459Document: 00513124319 Page: 48 Date Filed: 07/21/2015individual freedom and only the hypothetical, oxymoronic situation of voluntaryslavery could otherwise be considered not so bad since it was slavery, and notits mere incidents, society must never tolerate.Indeed, if one freely chooses to eat93gruel and otherwise live in substandard conditions, whose place is it to curtail thatchoice? Would it not be an imposition on liberty, perhaps partial slavery itself, toforce that individual to live in circumstances not his choosing just because societydoes not approve? No, societys concern is only that one never be forced into suchconditions.ButwhetherProfessorBlockislogicallycorrectisnotatissuehere.Professor Block merely seeks to emphasize just how glaringly the Articles statementsdepartfromhisactualviewsviewstheN.Y.TimesconcedesProfessorBlockexpressed to Tanenhaus during interview.94Perhaps most importantly, the District Court injected its own subjective viewof the meaning conveyed by the Articles statements about Professor Block in placeof the view of a reasonable reader. This was patently improper and thus legal error,sincetheCourtcannotsitinplaceofthejuryandpassuponthemeritsinthisProfessor Block refers again to the views of Frederick Douglass quoted in fn. 10, supra.93See, generally, ROA.47-67. The N.Y. Times also did not contest Professor Blocks own94assertion that, during the course of interviews with Tanenhaus, I expressed my unequivocalbelief that slavery was wrong because it was compulsory and was given reason to believe thatTanenhaus understood the meaning I was conveying and the rhetorical, persuasive tools I wasusing to make my point that only the hypothetical situation of voluntary slavery could beconsidered not so bad. ROA.287-88.38Case: 15-30459Document: 00513124319 Page: 49 Date Filed: 07/21/2015procedural posture. Rather, the court was required to decide whether the statementscreate, at the very least and in the light most favorable to Professor Block, a genuineissue as to whether a reasonable reader would conclude the statements were intendedtoportrayProfessorBlockasunperturbedbyslaveryand/oralatentracist.Defamatory meaning must be determined through the eyes of a reasonable reader, notthe District Court deciding the legal sufficiency of Professor Blocks allegations. TheDistrictCourtwasnotconfinedtospeculationonthispointasProfessorBlockintroduced uncontested evidence that at least two reasonable readers of the Articletook from it exactly the meaning he alleges the N.Y. Times intended to convey.First,Fr.KevinWildes,thepresidentofLoyolaUniversityNewOrleans,publicly opined based upon his reading of the Article Professor Block believesinvoluntarychattelslaveryisnotsobad. Second,subsequenttotheArticles95publication, Professor Block was accosted by two individuals on Loyolas campuswho threatened him with physical harm because of their belief Professor Block saidslavery was ok.Given this uncontested evidence not only of injury to Professor96Blocks reputation, but of the reasonable readers interpretation of the statements,the District Court was not at liberty to surmise for itself the Article conveys only theROA.326-27.95ROA.330-31.9639Case: 15-30459Document: 00513124319 Page: 50 Date Filed: 07/21/2015accusation that Block supports free enterprise at all costs[.]Rather, the District97Court was required to and failed to construe all reasonable doubt in favor of ProfessorBlock that the statements at least arguably convey the outright defamatory meaninghe views actual, forced slavery (as the term is commonly understood) as not so bad.Professor Blocks uncontroverted evidence of the reasonable readers takeawayfromtheArticlemakestheDistrictCourtsconclusionastothestatementsdefamatory meaning plain legal error.B. TheDistrictCourtcommittedlegalerrorwhenitheldadirectquotation cannot falsify meaning and thus cannot form the basis ofa defamation actionThe District Court, siding with the N.Y. Times, erroneously concluded:Plaintiff however, does not deny making the statements attributedto him. In fact, the first quote, whichcanbefound in a blog post byBlock, was made by him during a telephone interview with defendants.The second text refers back to the first quote and contains substantiallysimilarquotesobtainedduringthesameinterview.AlthoughBlockclaims in the Original Complaint that the statements about him andquoted are untrue, he acknowledges having made them, and thuscannot establish the most important element, falsity, which in turnprecludes him from establishing malice. . . .What Plaintiff really takes issue with is the context in which hisquotes were used. However, neither of defendants statements is capableofdefamatorymeaning.Toreiterate,thearticlequotesBlockROA.409.9740Case: 15-30459Document: 00513124319 Page: 51 Date Filed: 07/21/2015directly.98Simplyput,theDistrictCourtsconclusionadirectquotecannotsustainadefamationactionregardlessofcontextfindszerosupportinlaw.Moreover,itwould give free reign to media defendants to cut and paste quotations however theysee fit without fear of reprisal.The United States Supreme Court, the Louisiana Supreme Court and the NinthCircuit all support Blocks position. In Masson, the United States Supreme Courtconclusively stated a quotation taken out of context can distort meaning, althoughthespeakerdiduseeachreportedword. TheCourtmadethisstatementin99determining that summary judgment on the issue of actual malice is inappropriateunder circumstances where a media-defendant misquoted a public figure to conveymeaning the speaker did not intend.In no uncertain terms, the Court reasoned:100Afabricatedquotationmayinjurereputationinatleasttwosenses,eithergivingrisetoaconceivableclaimofdefamation.First,thequotation might injure because it attributes an untrue factual assertionto the speaker. . . . Second, regardless of the truth or falsity of thefactual matters asserted within the quoted statement, the attributionmay result in injury to reputation because the manner of expressionor even the fact that the statement was made indicates a negativeROA.407-08.98Masson at 515.99Id. at 511-20.10041Case: 15-30459Document: 00513124319 Page: 52 Date Filed: 07/21/2015personal trait or an attitude the speaker does not hold. . . .A self-condemnatory quotation may carry more force than criticismby another. It is against self-interest to admit ones own . . . arrogance,or lack of integrity, and so all the more easy to credit when it happens.101Clearly, the Supreme Court places heightened scrutiny on the use of quotationsto convey false meaning as they carry a dangerously increased imprimatur of truth.Indeed,theCourtprovidesabsolutelynoshieldtoliability,undertheFirstAmendment or otherwise, for the use of quotations out of context as same can beexplicitly defamatory in a far more damaging way than false statements about onesviews. As a matter of policy, the Court recognized to hold otherwise would jeopardizetruth-in-journalism and hinder the flow of information to the public by discouragingcommunication with the media a result that would ill serve the values of the FirstAmendment[.]102TheNinthCircuitcametothesameconclusioninPricev.Stossel. Inan103effort to bolster the thesis of a news segment exposing some Christian ministers fortaking advantage of parishioners for personal gain, ABC used the following quoteId. at 511-12.101Id. at 519-20.102620 F.3d 992.10342Case: 15-30459Document: 00513124319 Page: 53 Date Filed: 07/21/2015from a sermon of Dr. Frederick Price: I live in a 25-room mansion. I have my own$6 million yacht. I have my own private jet, and I have my own helicopter, and I havesevenluxuryautomobiles. ABCarguedtheuseofDr.Priceswordswas104substantiallytrueasthequotemore-or-lessreflectedhispersonalfinancesandpossessions indeed, the Ninth Circuit noted Dr. Price is a man of substantial wealthwith assets very similar to what the quote indicates.The trouble for ABC was the105quote was taken out of the hypothetical context in which it was made Dr. Price wastellingaparableofunhappinessbroughtaboutbyalackoffaith,andhewasspeaking from the perspective of a hypothetical man.106The Ninth Circuit reversed the grant of ABCs anti-SLAPP motion finding,under Masson, it was not to compare the substance of the quote to Dr. Prices actualwealth as [e]ven if a fabricated quotation asserts something that is true as a factualmatter, the fabrication may nonetheless result in injury to reputation becausethemanner of expression or even the fact that the statement was made indicates . . . anattitude the speaker does not hold; rather, the proper comparison is between themeaningofthequotationaspublishedandthemeaningofthewordsasId. at 995.104Id. at 996.105Id. at 998.10643Case: 15-30459Document: 00513124319 Page: 54 Date Filed: 07/21/2015uttered[.]Since ABC clearly portrayed Dr. Prices words as a positive, haughty107assertionofhisown wealthwhenhewasdescribingahypotheticalsituation,theNinth Circuit held it was legal error to find Dr. Price did not establish a genuine issueas to the statements falsity, and ipso facto a probability of prevailing on the elementof malice, for purposes of defeating ABCs anti-SLAPP motion.Stated otherwise,108theNinthCircuitheldDr.Priceshowedasubstantiallikelihoodofprovingthedirect use of his own words constituted an explicitly false and maliciously defamatorystatement.Though the Louisiana Supreme Court has not yet applied Masson in a caseinvolving misquotation, the Sassone case appears to have been ahead of its time whenitdiscussedthefalseanddefamatoryuseofGreenburgsquotedwordsindicta.RecalltheSassonecourtexplicitlystatedtheuseofGreenburgshypotheticalstatements out of context (i.e., without acknowledging the condition on which theywerebased)arguablypresent[s]ajuryquestionwhetherthestatementsweremaliciouslymisusedandsodistortedastobeuntrueandonlybecausethestatements did not concern one of the plaintiffs in the case did the court not allow theId. at 1002-03 (emphasis added).107Id. at 1003.10844Case: 15-30459Document: 00513124319 Page: 55 Date Filed: 07/21/2015action to go forward.It is clear Louisiana law agrees with Masson. But to the extent109of any discord between Louisiana law and Masson, Massons reasoning must governthis Courts decision as United States Supreme Court precedent trumps Louisiana lawincaseswherelocaldefamationlawisdirectlyimpactedbyFirstAmendmentconcerns.110As the Ninth Circuit noted, under Masson, [w]here the published quotationcontains a material alteration of the meaning conveyed by the speaker, the publishedquotation is false.Stated otherwise, Masson rests on the concept of substantial111truth i.e., the statement is false if it would have a different effect on the mind ofthe reader from that which the pleaded truth would have produced. Professor112Block has amply pleaded and evidenced the effect the N.Y. Times rendition of hiswords had on the average reader and has further demonstrated, at the very least, a juryquestion as to whether the pleaded truth would have had a different effect on saidaverage reader.113Sassone at 355 (emphasis added).109Kennedy v. Sheriff of E. Baton Rouge, 2005-1418 (La. 7/10/06), 935 So. 2d 669, 677110(Supreme Court First Amendment law supercedes common-law defamation principles).Price at 995 (citing Masson at 517).111Masson at 517 (emphasis added).112ROA.5-12 ( 9, 10, 17 & 18), 287-89 & 326-31.11345Case: 15-30459Document: 00513124319 Page: 56 Date Filed: 07/21/2015TheN.Y.TimesadmittedProfessorBlocksactualviewasstatedduringinterview is slavery was wrong because it was enforced against the slaves free will(i.e., violation of the Non-Aggression Principle).But, the Articles statements fail114to convey this central premise of Professor Blocks comments. They glaringly omittheseminalfactthatProfessorBlock,inotherwritingsandininterviewwithTanenhaus, repeatedly denounced slavery as it existed in the United States as beingabhorrent.Only a hypothetical voluntary slavery is not so bad.Under Masson115and Sassone, the N.Y. Times was charged with accurately conveying this meaningandwasnotfreetoplaceProfessorBlockswordsinacontextwhichconveyedexactly the opposite. In logic, a conditional statement is a compound statement of fact formed bylinkingtwoclausestogetherwiththewordsif...then(orotherwise,lest,unless,etc.).Thesecondclause(thethenorotherwiseclause)canonlybeaccurately attributed to the person making it if the conditional premise (the if) isattached and satisfied. It is intellectually dishonest more importantly, intellectuallyfalse for a journalist to totally ignore the if clause, quote the then clause andclaimitaccuratelyreflectsthepersonsviews.PerhapsanevenmoreconvincingROA.63.114ROA.287-325.11546Case: 15-30459Document: 00513124319 Page: 57 Date Filed: 07/21/2015example would be to see the effect the N.Y. Times distortion would have if used onthe words of one of Americas most famous Abolitionists.William Lloyd Garrison, in perhaps one of the most scathing rebukes of slaveryever spoken, lambasted the institution as oppressive and immoral before stating, forrhetorical and persuasive purposes:If the slaves are not men . . . then, undeniably, I am mad, and can nolonger discriminate between a man and a beast. But, in that case . . . [l]etthem be no more included in our religious sympathies or denominationalstatistics than are the dogs in our streets, the swine in our pens, or theutensils in our dwellings. It is right to own, to buy, to sell, to inherit,tobreed,andtocontrolthem,inthemostabsolutesense.Allconstitutions and laws which forbid their possession ought to be sofar modified or repealed as to concede the right.116An imprudent journalist could isolate the final two sentences from Garrisons speechandproclaimGarrisonstateditisrighttoownslavesanddownwithanylawprohibiting that right. He did state those exact words. But that journalists doing sowouldmaketheindicationthosesentencesaccuratelyreflectthemeaningofGarrisons words no less false than the N.Y. Times assertion it accurately reportedProfessor Blocks meaning by writing he described slavery as not so bad. In bothinstances, the important presumption (the if clause) is purposefully omitted so theimprudent journalist could attach false meaning to the speakers words. ROA.344.11647Case: 15-30459Document: 00513124319 Page: 58 Date Filed: 07/21/2015It is apparent to any reasonable person reading the statement Professor Blockdescribed slavery as not so bad the N.Y. Times operative assertion is ProfessorBlockapprovedofslaveryasthatwordiscommonlyunderstood.ThattheN.Y.Times intended to depict Professor Block as a racist and/or supporter of slavery isbolsteredbythejuxtapositionofthemisleadingquotationwiththefollowingstatement that he is critical of the Civil Rights Act without any further explanationof the completely non-racial reasons Professor Block has criticized said Act.117Again,theN.Y.TimesnowarguesinlegalpleadingsthattheArticledoesreflect Professor Block only described slavery as not so bad if, hypothetically, ithad been voluntary. That is certainly not what the Article conveyed in the newspaper.Admittedly,thereisanearlierstatementintheArticlethatattemptstorecountProfessorBlockscommentsandcomesclosertodoingso,butveryartfullyandstrategically: (1) does not mention Professor Block by name; (2) is contained in thebeginningoftheArticleroughlyeightwholepagesawayfromtheabovemisquotation; and (3) hides the fact that Professor Block denounced forced slaverythroughlanguageuseandjuxtaposition.Theearlierstatement,initsimmediatecontext, reads as follows:ROA.81.11748Case: 15-30459Document: 00513124319 Page: 59 Date Filed: 07/21/2015SomescholarsaffiliatedwiththeMisesInstitute...havechampioned the Confederacy. One economist, while faulting slaverybecause it was involuntary, suggested in an interview that the dailylifeoftheenslavedwasnotsobadyoupickcottonandsingsongs.Mr. Paul says he abhors racism, has never visited the institute andshould not have to answer for the more extreme views of all of those inthe libertarian orbit.118The N.Y. Times and the District Court point to the above-emphasized sentenceascurativeofanyinaccuracyinthe(eight-page)laterstatementProfessorBlockdescribed slavery as not so bad i.e., they posit Professor Blocks conditionalpremise of voluntariness is reflected in this sentence. But the operative questionhere is how a reasonable reader would interpret each statement in isolation as well asin context of the Article as a whole.119First, Professor Block did not merely fault slavery as involuntary i.e., he didnot merely indicate slavery had a defect or imperfection. As his published writingsreflect, he has always denounced actual slavery, openly and vociferously, becauseit was implemented by force and has stated without equivocation this horrendousROA.74 (emphasis added).118Recall Fr. Wildes and two unknown students (reasonable readers) completely failed to119glean from the Article that Professor Block denounced slavery because it was compulsory thisfact alone creates a jury question as to whether the statements were false and defamatory.ROA.326-27 &330-31.49Case: 15-30459Document: 00513124319 Page: 60 Date Filed: 07/21/2015injustice calls for reparations to this day.The tongue-in-cheek way he described the120daily life of the enslaved serves merely to amplify his point that slavery was evilbecausetheslaveswereforcedintoworkthat,ifvoluntary,wouldotherwisebeacceptable. As Masson holds, a material question of falsity can stem from the use ofthe words to convey an attitude [Professor Block] does not hold even when thewords are accurately quoted.That is exactly the case here the N.Y. Times played121dumb totherhetorical,sarcasticnatureofProfessor Blockscommentsaboutthedaily life of the enslaved, instead attempting to use them as proof Professor Blockbelieves the plight of American slaves in the 19century was somehow acceptable.thItisdisingenuousintheextremefortheN.Y.Timesisnospringchickenitisinsulting to this Courts intelligence for the N.Y. Times to pretend it did not catch thefacetiousness in pick cotton, sing songs, be fed nice gruel, etc.Insulting where122injuring, the statements align Professor Block with a position diametrically opposedtotheseminallibertarianprinciplehehasalwayschampionedfreedomfromoppression. His published works, amply supporting this position, were available toROA.287-325.120Masson at 511-12.121ROA.94 (emphasis added). It is quite telling the N.Y. Times only included pick122cotton and sing songs in the statement since quoting be fed nice gruel would havesignified to the wary and intelligent reader, perhaps, the N.Y. Times is taking this manswords out of context.50Case: 15-30459Document: 00513124319 Page: 61 Date Filed: 07/21/2015the N.Y. Times when it chose to distort his beliefs.123Second,theN.Y.Timesconsciouslymadetheeditorialdecisionstonotattribute this first quotation to Professor Block by name and place it roughly eightpages before the horribly inaccurate and unqualified statement he described slaveryas not so bad. Even if this Court believes this earlier quotation reflects ProfessorBlocks views just closely enough to escape defamatory meaning on its own, the N.Y.Times obviously intended to disassociate it from the later quotation so the averagereader would not make the connection. Louisiana jurisprudence requires a statementto identify the plaintiff with some degree of certainty to the average reader in ordertobe actionable.Logically, the converse should also be true an 8-page earlier124statement that does not even identify Professor Block should not be allowed to curea subsequent statement that does identify him of defamatory meaning. Moreover, itmust not be forgotten whether the defamatory statements are false must be determinedon the basis of the effect it is reasonably [objectively] intended to produce in themindoftheaveragelistener. Asrepeatedlyemphasized,ProfessorBlockhas125ROA.290-325.123See Fitzgerald, 737 So. 2d at 719 (although it is within the realm of possibility that124someone may have [associated the plaintiff with the defamatory statement], it is not aninference which a reasonable person would readily ascertain with some degree ofcertainty) (emphasis added); and Sassone, 626 So. 2d at 354-55.Britton, 2010 WL 1170222 *8.12551Case: 15-30459Document: 00513124319 Page: 62 Date Filed: 07/21/2015presented uncontested evidence that multiple readers have taken from the statementsthe meaning he believes forced slavery was not so bad.Third, the earlier statements strategic position within the Article proves theeffect it was reasonably intended to have on readers the false impression ProfessorBlockandtheextremist-libertariansattheMisesInstitutearenothingmorethanracistsandsupportersofslavery.ThestatementiswedgedbetweenonesentenceclaimingscholarsattheMisesInstitutehavechampionedtheConfederacyandanother indicating Rand Pauls position that he abhors racism and should not haveto answer for the more extreme views of all of those in the libertarian orbit. I.e., thepassage makes broad generalizations about the views of libertarian scholars (withoutnaming them) right before implying those views are based on racist sentiments forwhich Rand Paul, who abhors racism, feels he should not have to answer. Thus,this earlier statement quite purposefully gives the false and defamatory impressionProfessor 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 thisearlier statement was a conscious attempt to conceal the meaning of Professor Blockswords.Takingallthreetogether,itisincontestabletheN.Y.Timesmadeeverycalculated effort possible to distort his views, while attempting to maintain plausible52Case: 15-30459Document: 00513124319 Page: 63 Date Filed: 07/21/2015deniability. The District Court erred in removing from the jurys purview the questionof how a reasonable reader would interpret the meaning and intent of both of the N.Y.Times statements concerning Professor Block.It bears repeating the key piece of evidence the N.Y. Times used to support itsassertion the Article accurately portrays Professor Blocks comments (the blog-postquotedonpage6,supra)itselfcreatesajuryquestionastowhethertheArticlematerially misrepresented his views as it carries a vastly different meaning and tenorthan the N.Y. Times tortuous rendition in the Article. It makes clear Professor Blockdenounced slavery as wrong because it was compulsory, a complete violation of theconcepts of liberty and free association the very thesis and meaning behind126the otherwise i.e., only absent the deprivation of freedom, slavery wasnt so bad.Without the otherwise, the reasonable reader is forced to conclude Professor Blockreally had no problem with forced slave labor. This is a complete farce as ProfessorBlock, one of the most outspoken champions of individual liberty one can find, is also an exceptionally brazen and outspoken critic of American slavery. 127ROA.94.126ROA.290-325 (wherein Professor Block decries slavery as morally reprehensible,127unjust deprivation of liberty, violation of libertarian principles, theft, kidnapping, and thus justcause for reparations to the descendants of slaves from those who have inherited the ill-gottengains earned on the backs of slaves). 53Case: 15-30459Document: 00513124319 Page: 64 Date Filed: 07/21/2015ProfessorBlocksafter-the-factcommentsabouthowtheArticlefalselyportrayedhisviewsfurtherproveshiscase,despitetheDistrictCourtsfindingProfessor Block admitted the words were his own. As