The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Libel by quotation out of context
An interesting opinion Tuesday, from a unanimous U.S. Court of Appeals for the 5th Circuit panel (Block v. Tanenhaus):
Walter Block is an economics professor … at Loyola University and is an Adjunct Scholar at the Mises Institute. He alleges that, consistent with his published writings and his self-described libertarian views, he articulated the following position during an interview with the New York Times (NYT):
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.
Block alleges that the NYT misrepresented his statements in an article that attributed racist views to libertarian scholars and discussed how ties with libertarian thinkers would impact Senator Rand Paul's potential presidential candidacy.
The NYT article quoted Block twice, first as "[o]ne economist" and later by name as "Walter Block." The first quotation appeared in the immediate context of the statement that some Mises Institute scholars "have championed the Confederacy." It noted that "[o]ne 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.'" Roughly eight pages or fifty-three paragraphs later, the article quoted Block by name in a paragraph that read as follows:
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."
This paragraph appeared in the context of a discussion about the links between the Paul family and the Mises Institute, which questioned Senator Rand Paul's ability to distance himself from unpopular positions taken by Mises Institute scholars. [Footnote: The immediate context of this paragraph associates Block with one scholar who opposed Brown v. Board of Education and with another scholar who applauded a KKK member's "right-wing populism."]
Block sued the NYT ….
A statement is actionably false if it "would have a different effect on the mind of the reader from that which the pleaded truth would have produced." Inaccuracy in a quotation is not actionable "unless the alteration results in a material change in the meaning conveyed by the statement." On the other hand, "an exact quotation out of context can distort meaning, although the speaker did use each reported word." Thus, falsity is determined not only by the words in a purported quotation, but also "by reference to the meaning a statement conveys to a reasonable reader." …
Block argues that, although he used the words attributed to him by the NYT, there is a genuine issue of material fact as to whether the NYT distorted the meaning of his statements by omitting crucial context. According to Block, the NYT communicated that he did not object to chattel slavery and implied that he was a racist when it stated, "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."
Block states that he used the words "not so bad" in a context that showed he was assessing the counterfactual and ahistorical scenario of slavery in the absence of any coercion rather than chattel slavery. He points out that the deprivation of personal autonomy is antithetical to the libertarian views he expressed. In sum, Block believes that his statements underscored the importance of free association and condemned chattel slavery precisely because it was involuntary, but that the NYT quoted him out of context to make it appear that he considered chattel slavery "not so bad."
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. [See, e.g.,] Price v. Stossel (9th Cir. 2010) (holding that there was a jury question as to falsity when a television broadcast used video clips of a pastor describing a wealthy man with a spiritually unfulfilled life because the original context of the pastor's statements indicated he was discussing a hypothetical individual but the context in the broadcast suggested he was discussing himself); Sassone v. Elder (La. 1993) (suggesting that there was a jury question as to falsity when a television broadcast used a district attorney's allegedly hypothetical statement in a context that suggested he was assessing the actual conduct of a specific criminal defendant, but ultimately deciding on other grounds). If, as Block has pleaded, he stated during the interview that slavery was "not so bad" except for its involuntariness, a reasonable jury could determine that the NYT's decontextualized quotation falsely portrayed him as communicating that chattel slavery itself was not problematic-exactly the opposite of the point that he says he was making.
The NYT offers three arguments to the contrary, but none are sufficient to merit dismissal at this stage in the litigation. First, the NYT argues that it was correct in stating that Block described chattel slavery as "not so bad." According to the NYT, his reference to picking cotton and singing songs "leaves no room for doubt" that he was describing chattel slavery.
However, stating that cotton-picking and song-singing are "not so bad" in themselves, if done without coercion, is not at all the same thing as saying that chattel slavery was "not so bad." Chattel slavery by definition involves coercion and being treated as the property of another, and Block alleges that the context of his original statement indicated his view that coercion is unacceptable and violates people's rights as belonging to themselves.
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. 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."
Second, the NYT argues that it communicated Block's objection to coercion by stating earlier in the article that an unnamed economist, "while faulting slavery because it was involuntary, suggested in an interview that the daily life of the enslaved was 'not so bad … .'" This statement could be relevant to the meaning that the article as a whole communicates to a reasonable reader about Block's views on slavery.
However, the statement does not mention Block by name and appears roughly eight pages before the paragraph of which Block complains. Thus, it could be that a reasonable reader would not associate the two passages and would not infer that Block, who "described slavery as 'not so bad,'" is the same person as the unnamed economist who "fault[ed] slavery because it was involuntary."
In fact, the president of the university at which Block teaches failed to draw this inference and wrote a public letter criticizing Block for "claim[ing] that chattel slavery 'was not so bad'" and stating that Block had contradicted his own libertarian principles by suggesting that "slavery enforced against someone's free will" was acceptable. The record also contains a police report indicating that, after the article's publication, two young men approached Block on the campus at which he teaches and told him, "You're the [expletive] who said slavery was okay. We're gonna getcha." We conclude there is a fact issue regarding the meaning that the article conveys to a reasonable reader.
Third, the NYT argues that Block's pleaded truth would have had the same "effect on the mind of the reader" as the message that the article conveyed. The district court itself stated that both the NYT's portrayal of Block and Block's own statements, accurately conveyed, would "ignite fury" in readers. However, the "effect on the mind of the reader" does not refer to the emotions that a statement incites. Rather, it refers to "the meaning a statement conveys to a reasonable reader." …
Because Block is a public figure, the fault element of his claims requires proof of actual malice, which is defined as knowledge of falsity or reckless disregard for the truth. Block argues that there is a fact issue as to actual malice wherever a news source materially alters the meaning of a quotation. See Masson v. New Yorker Magazine, Inc. (1991) (holding that there is a fact question as to actual malice where a news source alters a quote in a manner that changes its meaning).
The NYT does not dispute this characterization of the law. Rather, it contends that it did not materially alter the meaning of the quotation. Similarly, the district court based its determination that Block failed to create a fact issue as to actual malice on its view that the NYT did not change the meaning of the quotation but accurately communicated Block's views. As discussed above, there is a genuine issue of material fact as to whether the NYT altered the meaning of the quotation. Accordingly, the district court's determination and the NYT's argument depend on a factual premise that has not yet been established, and dismissal for failure to create a fact issue as to actual malice was premature.
Seems right to me: Courts should be hesitant to find that a factually accurate quote is libelous, but words only have meaning in context, and if a quote is taken far enough out of context, it may falsely convey the speaker's actual meaning even if the speaker literally said those words.