     Case: 15-30459        Document: 00513409144        Page: 1     Date Filed: 03/07/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals

                                       No. 15-30459
                                                                                    Fifth Circuit

                                                                                  FILED
                                                                              March 7, 2016

WALTER BLOCK,                                                                Lyle W. Cayce
                                                                                  Clerk
                Plaintiff - Appellant

v.

SAM TANENHAUS; JIM RUTENBERG; NEW YORK TIMES COMPANY,

                Defendants - Appellees




                    Appeal from the United States District Court
                        for the Eastern District of Louisiana


Before CLEMENT, GRAVES,* and COSTA, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      In 2014, the New York Times published an article by Sam Tanenhaus
and Jim Rutenberg titled “Rand Paul’s Mixed Inheritance.” That article
examines at length U.S. Senator Rand Paul, focusing on his political
philosophy, libertarianism. This case arose because the article briefly quotes
Walter Block, an economics professor at Loyola University New Orleans, at
two points. The first quotation appears in the following sentence:




      *   Graves, Circuit Judge, concurring only in the judgment.
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                                     No. 15-30459


      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.”
      The second quotation appears in the following paragraph:
      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.”
      After the New York Times published the article and refused to publish a
retraction at Block’s request, Block filed this diversity suit against the New
York Times Company and the article’s authors, asserting claims for
defamation and false light invasion of privacy. Although Block does not dispute
that he made those statements, he argues that the article takes the statements
so far out of context as to make them untrue and defamatory.
      Defendants filed a special motion to strike Block’s complaint under
Louisiana Code of Civil Procedure article 971 (“Article 971”), Louisiana’s anti-
SLAPP law. 1 The district court found that Block could not establish a
probability of success on either his defamation claim or his false light claim.
As a result, the district court granted the special motion to strike, dismissed
Block’s complaint, and awarded defendants attorney’s fees.
      On appeal, Block argues that the district court should not have applied
Article 971, that the district court applied Article 971 incorrectly, and that the
district court erroneously concluded that Block did not establish a probability
of success on his defamation and false light claims.




      1 A SLAPP is a strategic lawsuit against public participation, or a suit intended to
burden critical speech with the cost of a legal defense.
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                                             I.
       We review questions of law, such as whether and how Article 971 applies,
de novo. Sampson v. ASC Indus., 780 F.3d 679, 681 (5th Cir. 2015). We
“revie[w] de novo a district court’s ruling on an article 971 motion.” Henry v.
Lake Charles Am. Press, LLC, 566 F.3d 164, 169 (5th Cir. 2009).
                                            II.
       Block argues that Article 971 does not apply in federal court if it requires
the non-movant to meet a stricter burden than that imposed by Federal Rule
of Civil Procedure 56. 2 We reject this argument because this court recently
held, in an opinion designated for publication, that a non-movant’s burden
under Article 971 is functionally equivalent to that under Rule 56. In Lozovyy
v. Kurtz, we interpreted Louisiana law and concluded that “the Louisiana
Supreme Court would recognize that Article 971’s ‘probability of success’
standard does not permit courts to weigh evidence, assess credibility, or resolve
disputed issues of material fact.” No. 15-30086, 2015 WL 9487734, at *8 (5th
Cir. Dec. 29, 2015). In other words, a non-movant’s burden in opposing an
Article 971 motion to strike is the same as that of a non-movant opposing
summary judgment under Rule 56. We are bound by the Lozovyy panel’s
interpretation of Louisiana law. See FDIC v. Abraham, 137 F.3d 264, 268 (5th
Cir. 1998) (explaining rule of orderliness). Thus, to avoid dismissal on an
Article 971 motion to strike, Block need only establish a genuine dispute of
material fact.
       As in Lozovyy, however, our holding is limited: We do not conclusively
resolve today whether Article 971 applies in diversity cases. 2015 WL 9487734,



       2We have, moreover, previously applied Article 971 in a diversity case. Henry v. Lake
Charles Am. Press, LLC, 566 F.3d 164, 168-69 (5th Cir. 2009).
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at *5. Instead, we assume that it does apply, see id., and reject Block’s
argument that, because it provides a stricter standard than Rule 56, it does
not apply in federal court. See Lozovyy, 2015 WL 9487734, at *5. It provides
the same standard as Rule 56; thus, there is no conflict on that basis. 3
                                             III.
       Lacking the benefit of our recent guidance in Lozovyy, the district court
did not consider defendants’ Article 971 motion under the proper standard: It
did not purport to address whether Block established a genuine dispute of
material fact. Instead, the district court analyzed whether Block established a
“probability of success” on his claims, and in doing so arguably resolved
disputed questions of fact.
       Accordingly, we VACATE and REMAND for the district court to apply
the standard set out in Lozovyy to defendants’ motion to strike. 2015 WL
9487734, at *8. On remand, the district court should consider whether Block
has established a genuine dispute of material fact on each element of his
claims.



       3  After Lozovyy was decided, Block filed a Rule 28(j) letter arguing that, despite
Lozovyy, we should decide whether Article 971 conflicts with Rule 56 in other ways. He also
argued as much at oral argument. We decline to address this issue because Block waived it
by failing to brief it.
        Block did not argue in his briefs that any feature other than a burden greater than
that imposed by Rule 56 would cause Article 971 to conflict. In other words, he did not argue
in his briefs that Article 971’s burden-shifting dynamic, discovery prevention, and mandatory
attorney’s fees cause Article 971 to conflict with Rule 56. In Block’s opening brief, he argued
only that if the court views Article 971 as applying a heavier burden than Rule 56, then it
conflicts with Rule 56. He mentions Article 971’s other features—the burden-shifting
dynamic, discovery prevention, mandatory attorney’s fees—in only two contexts: his
argument that Article 971 imposes the same burden as Rule 56 and his argument that if
Article 971 and Rule 56 conflict, Article 971’s other features should not apply. In neither
context does he argue that Article 971’s other features cause it to conflict with Rule 56,
despite his assertion in his 28(j) letter. Thus, he has waived the issue. See Zastrow v. Hous.
Auto Imports Greenway Ltd., 789 F.3d 553, 562 n.8 (5th Cir. 2015).
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