Appeals Court Revives Defamation Lawsuit Against New York Times Over Slavery Quote

New York Times building - Getty - H - 2016
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In a week when tensions are running high in the country after a march by white supremacists in Charlottesville and President Donald Trump's much-criticized response, The New York Times received unwelcome news on Tuesday when the 5th Circuit Court of Appeals revived an economics professor's defamation lawsuit over his quoted attitude toward slavery.

The newspaper, in a 2014 story about Ron Paul's brand of libertarianism, quoted Walter Block as describing slavery as "not so bad" and being critical of the Civil Rights Act because it compelled commercial vendors "to associate with people against their will."

Block alleges the Times took his position out of context.

"Free association is a very important aspect of liberty," Block says he told the reporter. "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."

A district court threw out the lawsuit under Louisiana's anti-SLAPP statute, which is meant to deter frivolous litigation aimed at curtailing First Amendment activity.

In Tuesday's per curiam decision (read here), the 5th Circuit bypasses an important procedural question as to how state SLAPP statutes function within federal courts. That's a topic that's gathered attention from the Motion Picture Association of America and is currently before the 11th Circuit Court of Appeals in a defamation suit involving CNN. Indeed, just last week, 25 media organizations including ABC, Bloomberg, Comcast, Fox and The New York Times, plus the MPAA's Ben Sheffner, filed an amicus brief in a bid to ensure that federal judges weigh the likelihood of a lawsuit's success before moving speech-impacting litigation forward. (Here's the amicus brief.)

In Block's case against The New York Times, the three-judge panel at the 5th Circuit reverses the district court by deciding more fact-finding must occur.

"Because the omission of context can distort the meaning of a direct quotation, there is a genuine fact issue as to whether the article misrepresented Block’s statements," states the opinion.

The New York Times argued that it correctly attributed Block as describing slavery as "not so bad," but seeing the full quote that Block put forward, the federal appellate circuit rejects the contention.

"If the context of his statement is what he alleges, Block’s statement made clear that he would only describe slavery as 'not so bad' to the extent that, unlike chattel slavery, it was voluntary," continues the opinion. "Accordingly, we reject the argument that Block’s references to cotton and songs conclusively demonstrate that the NYT was correct in stating that Block considered chattel slavery to be 'not so bad.'"

Two other arguments from the paper were also rejected. The New York Times pointed out that elsewhere in the same story it communicated Block's objection to coercion. However, in that section of the story, Block's name wasn't used, and the appellate judges say a reasonable reader might not associate an unnamed economist with Block's allegedly more nuanced view. The paper also fails in convincing the judges that even if what Block says is true, it would have the same "effect on the mind of the reader" by igniting fury.

"However, the 'effect on the mind of the reader' does not refer to the emotions that a statement incites," responds the 5th Circuit. "Rather, it refers to 'the meaning a statement conveys to a reasonable reader.'"

The case is remanded back to the district court where the Times will presumably continue its defense that it accurately conveyed Block's thoughts on slavery, and if there were any errors, it came without actual malice. The decision comes just as the paper will appear in a New York court today to fight a defamation lawsuit from Sarah Palin.