Defamation Claim Over “Slavery Wasn’t So Bad” Comment Revived by Fifth Circuit

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition
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Foley Hoag LLP - Trademark, Copyright & Unfair Competition

What if people thought you said that “slavery wasn’t so bad?”  Would it harm your reputation?  Would it matter if the statement was contextualized with various caveats? According to the Fifth Circuit’s August 15, 2017 opinion in Block v. Tanenhaus, context is everything. The plaintiff, Walter Block, admits that he uttered the words: “slavery wasn’t so bad” while discussing the concept of “free association,” but argues that the New York Times took these words so badly out of context as to libel him. The Fifth Circuit ultimately agreed that Block had stated a viable claim for defamation.

“Rand Paul’s Mixed Inheritance”

On January 25, 2014, New York Times reporters Sam Tanenhaus and Jim Rutenberg published an article entitled “Rand Paul’s Mixed Inheritance,” which discussed the ideological roots of Kentucky Senator Rand Paul. In preparing the article, the reporters drew on an interview with Block, a libertarian economics professor who, according to the defendants, had a track record of intentionally courting controversy. What Block said, and what the New York Times printed about what he said, are set forth below side by side:

Block’s Statement   New York Times Article
Free association is a very important aspect of liberty. It is crucial. Indeed, its lack was the major problem with slavery. The slaves could not quit. They were forced to “associate” with their masters when they would have vastly preferred not to do so. Otherwise, slavery 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. It violated the law of free association, and that of the slaves’ private property rights in their own persons. The Civil Rights Act of 1964, then, to a much smaller degree of course, made partial slaves of the owners of establishments like Woolworths.  

[First Quotation:] Some scholars . . . 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.’

[Second Quotation, fifty-three paragraphs later]: 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.”

As you can see, the article quoted Block’s “not so bad” statement twice: the first time without naming him but with his caveat that only the “involuntary” parts of slavery were bad; the second time naming him but without the “involuntariness” caveat. Block filed a suit for defamation in the Eastern District of Louisiana against the reporters and the New York Times. Block alleged that the second passage, by omitting the “involuntariness” caveat, took his “slavery wasn’t so bad” quotation out of context and falsely implied that he supported slavery.

The District Court Dismissal

The defendants moved to strike the suit pursuant to Article 971, Louisiana’s anti-SLAPP statute, which allows for early dismissal of certain claims based on speech about issues of public concern. The District Court allowed the motion on the ground that Block had failed to demonstrate a likelihood of success on the merits. However, by the time Block’s appeal reached the Fifth Circuit, that Court had determined (in another case) that the proper analysis under Article 971 was whether there was a “genuine dispute of material fact,” akin to a summary judgment standard.  Consequently, the Fifth Circuit remanded the matter back to the Eastern District of Louisiana.

On remand, Judge Ivan L.R. Lemelle considered whether Block had raised a genuine dispute as to the element of falsity, that is, whether the “not so bad” quotation without the “involuntariness” caveat implied the false meaning that Block supported slavery. “In isolation,” Judge Lemelle wrote, one could construe this “as more than a mere minor inaccuracy.” However, Louisiana law requires that the Court consider the New York Times article as a whole. When Judge Lemelle considered it as a whole, he concluded that the second “not so bad” quote (attributed to Block) plainly references the first “not so bad” quote (which was qualified by the “involuntariness” caveat), and thus no reasonable fact finder could determine that anything in the article was false.

Judge Lemelle also found that Block had failed raise a genuine issue as to whether the article would have had a different effect on the reader if the “involuntariness” caveat had been repeated next to the second quotation.  Block presented evidence that the publication of the article caused much anger to be directed at him, including condemnation by colleagues and even threats of physical harm.  However, Judge Lemelle held that there was no evidence that those people wouldn’t have been just as angry with Block if the “involuntariness” caveat had been repeated.  The Court noted Block’s concession that “any use of the word slavery that does not condemn it as ‘pure evil’ would ‘ignite fury’ in readers.” “In essence then,” Judge Lemelle concluded, Block “effectively admits that his views, no matter their context, would have had the same controversial effect.” Put another way, the Court found that people were going to think Block was a big jerk regardless of the context.

The Fifth Circuit Reversal

The Fifth Circuit, however, disagreed. “The omission of context can distort the meaning of a direct quotation,” and therefore the Fifth Circuit held that “a reasonable jury could determine that the [New York Times’] decontextualized quotation falsely portrayed [Block] as communicating that chattel slavery itself was not problematic – exactly the opposite of the point he says he was making.”  The Court also held that, even though the “involuntariness” caveat did appear in the article, it was fifty-three paragraphs before Block’s name was first mentioned, so “it could be that a reasonable reader would not associate the two passages” and would not therefore infer that Block was the person referenced in both.

The Fifth Circuit also rejected the District Court’s holding that the controversial nature of the statement rendered the omission of the “involuntariness” caveat irrelevant. The Fifth Circuit pointed out that the issue in a defamation case was not the emotional response of the reader, but whether the meaning conveyed to the reader is false. Here, according to the Fifth Circuit, the omission of the “involuntariness” caveat may have changed the meaning conveyed from something accurate to something inaccurate, even if equally infuriating. As such, there was still a genuine issue as to falsity. The Fifth Circuit therefore remanded the matter to the District Court for further proceedings.

As a matter of intellectual honesty, one might note that Block recklessly decontextualized the suffering of millions to make an intentionally controversial academic point, so it is ironic that he is now suing over four words allegedly taken out of context by someone else. But as a matter of defamation law, at least according to the Fifth Circuit, he has a triable claim. The issues to be tried will include whether the allegedly decontextualized second quotation created a false implication and whether any such falsity caused harm to Block’s reputation. Because Block is a public figure, he will also have to show that the defendants acted with actual malice, in other words, that they knew they were printing something false or acted with reckless disregard as to its truth.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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