United States: Defamation Claim Over "Slavery Wasn't So Bad" Comment Revived By Fifth Circuit

Last Updated: August 25 2017
Article by David A. Kluft

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.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
14 Dec 2017, Seminar, Boston, United States

The trustees of The Foley Hoag Foundation invite you to the upcoming Speaker Series event with David Friedman, Senior Vice President, Legal & Government Affairs of the Boston Red Sox.

15 Dec 2017, Seminar, Boston, United States

The New England Electricity Restructuring Roundtable has been meeting bimonthly since 1995 to discuss current topics related to important changes in the electric power industry in Massachusetts and throughout New England.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.