was involuntary if you consider contrary to that hypothetical voluntary slaves even that wasn't so bad because these conditions are forced on someone they freely choose when you don't have a problem that's that first issue was the involuntary nature to she to make a broader point about the importance of liberty a point is it's its essential tenet of his beliefs which is why i was going to begin as a libertarian a very devout one he singing songs and pick cotton really didn't mean what really happened i mean people were bound together in chains they were separated from their family members and children were taken from here it's that cetera i mean it's not simply that they were out there singing songs and not being paid for that that there was a very minor small part of the overall slater's of strangely music maybe there was the occasional slave who was not treated that way but there were many who work so isn't that really the larger picture here that he's kind of making frivolous by saying they sang songs and pick cotton but it was involuntary that's a problem when really there was so much physical and emotional and mental be people that would be ok as long as it was voluntary he didn't say that he said the singing songs and picking cotton which really demeans the experience of the average american slut well at least guess doesn't matter what i personally thing i'm not trying to express a personal view i'm saying this is what the new york times is argue so they're saying their overall portrayal of him is accurate he's treating slavery as somewhat of a for volatile and not the extremely onerous thing it wasn't simply that people didn't get paid is it your point of it all of that is related to the involuntary enos of slavery the fact that your chain together is the most involuntary of actions so so the items that were just being described are all related to the involuntary notice of slavery in the terrible terrible times has the right to the right and they can criticize the libertarian philosophy if they wish of course the argument is that they can't do so in a way that libels this professor or anybody else but if they think libertarian philosophy is ridiculous and i want to write an article about that they can do that sort of right certainly that's fair game that's part of the robust debate and even attacking rand paul is fair game because he's putting himself out there is a potential presidential candidate in when you do that people are that there should not be laws against other words whatever a person's if the war were the owner is a moral person he should open up his lunch counter but if he's not he should be required by law to open up his lunch counter isn't that his belief and when that be a belief that might lead people to think that he's in this group of people that the new york times is castigating and if his actual words were betrayed and reduced to that that's that's their you know that's fair game so you're saying that if t but the rule allowing for attorney's fees doesn't really conflict with anything there are principles of federal law that allowed tourney's fees and there's ones that don't so therefore we keep that is it all or nothing on nine seventy one or do we only first in the opening paragraphs of his complaint he alleged that the article at issue contained not one but two passages about him and those passages together and indeed quote the entire article would read as a whole  implication that the district court acknowledged the change in professor blocks focused over the course of the case and rejected it he found that three of the necessary elements of professor  lacking falsity defamatory meaning and actual malice or do you agree don't you get quoting out of context can constitute falsity yes i do agree with that i think if you look at professor blocks of arguments he tries to like in this case to an if then statement and he gives the analogy if speaking the truth is a crime i am a criminal and he quotes the churchill quote democracy is the worst form of government except for all the others and if you said i am a criminal instead of speaking the truth is a crime a criminal or you said democracy is the worst form of government then you have entirely changed the meaning in each of those examples one idea is being expressed in the first the ideas i speak the truth in the second the idea of democracy is the best thing we've got and so if you chop the sentences and happen only put half of them you've completely flip flop the meat here however professor bloch holds to view his first view of the slavery the only thing wrong with slavery is that it was involuntary and his second view is that every other aspect of slavery the picking cotton the simian songs to be cool was not so bad and so when you immoral but what he's talking about is legality and whether you can conscript yourself or something i'm trying to parse it myself and the best i can i think if you read all of his writings on this issue  he says things like quote the only thing for it about slavery is that it was voluntary he says otherwise it was quote innocuous he even says and a more recent publication i think after this case was decided was decided the first time he says let us now double down previously i wrote that slavery in the absence of violence and compulsion was not so bad that was an inaccurate understatement the truth of the matter is that under these conditions slavery would be a positive good there i said it i will say it again slavery would be a positive good make that of you will what you will new york times and other enemies of freedom and logic do you can see that the article would have defended tory meaning if it did indeed communicate that block even for slavery it is not so bad if the article communicated that he article would have defamatory meaning if it communicated to block you for slavery or just slavery that's not so bad so i think in that case there was a pretty good argument that you've established falsity but i also think a television reporter who quotes in a story that the lawyers don't have a working phone and then later in the fitzgerald case you have the director of the state agency that that supervises substance abuse counselor saying seventeen licenses issued to knew they had a working phone number can see it talked to them by the by phone in the fitzgerald case it was technically true that his fitzgerald's certificate had been revoked as improperly issued but it was immediately reissued and at the time the statements were made it had been reissued so in both of those cases we have a false statement outright false and then we have one that carries a false implication and in both cases the louisiana supreme court said they cannot recover because what they're complaining about is the defamatory implication that came from the statements and pass on the implication was that these lawyers or she lawyers in the fifth chair ok so the implication was that his fixed year old was acting as a counsellor without proper authority and here his complaint is that he is  the article portrayed him as a racist so by necessity it's a case for defamation by implication so in response to a question judge all right i think that was if you looked at the second passage alone and it said forced slavery was not so bad professor block is the one who has developed this construct about there are potentially being different kinds of slavery maybe he has all of these writings about how you might voluntarily become a slave because you get paid and you need the money to pay right but in the general understanding of the term isn't slavery itself involuntary and so until you don't need the word forced to you i mean i think the average person is going to assume that when you're talking was called something different is called indentured service and so that so we use slavery to mean that you're forced into it by definition no we yes we do and i would urge to the panel that you review clark's writings in the see that strikes me is jury it should mean i think your point is even if we did misrepresent this guy and anybody really looks at his writings going to think he's a little out there and so what's really no harm no foul kind of thing that strikes me as something a jury is supposed to do they may ultimately conclude that you all lied meant to lie you did so of malice but didn't actually harm his reputation because they concluded that his reputation wasn't that much to begin with that a jury could conclude  not agree with that i'm just saying a jury could conclude that but that isn't really the office of you know a pretrial sort of motion so it seems to me that all this stuff about his other writings can only help eliminate whether this statement is true not whether he has a reputation of being different in his viewpoints just put it that way agreed and i think that his writings do establish that the statements the two statements read together in  context of the entire article are not all and that isn't about any problem with this read together i'll tell you i read i read the new york times and when they have a long long article and they talked about somebody at the beginning and they later so they'll say three or four paragraph fifty two you forgot who this person is and so to me there's no way for the reader no one reads these articles that way the way where you would scrutinize it even this president of the university didn't figure out that the economist back on paragraph two or whatever is the same guy is blocked on paragraph fifty two you know i'm forgetting the exact numbers but it's quite a ways after and so it seems inconsistent i understand you're saying he put the two together but to me as a reader of long articles and in new york times and other papers i for i have to go back and go who's this guy again i must say remind me because people don't tend to remember names particularly his name wasn't even given in the first paragraph but this is a legal question and louisiana law is quite clear that when you're a theft and also people person as of a defamation claim you are required as a matter of law to read each statement together with the other statements in the piece and in the context of the article as a whole and so in the britain case for example the article said that reverend britain had been awarded a couple of six figure grams when in reality the grams had been awarded to an organisation over which he had operational control in the dire case the defendant said that mr dyer was an ignorant man who let the public think he is a lawyer when in fact he was a boy or and the cortez case the article said that mr cortez had raped a woman when in reality it was mr carpenter who had committed the crime and in each of those cases the courts and that while the single sentence by itself might not convey the whole story or might even be false the the claims nonetheless failed element of falsity as a matter of law because you are required to read the entire bit there's nothing that says that paragraph two is the same guy you have to imply that and so it seems to me if they had said walter block an economist says you know in the slavery wasn't so bad except that it's  involuntary they said that in paragraph two and then later on they used a shorthand a block economist who said not so bad blah blah blah i think that would be fair because it's referring me back i need to go back and look at what this guy said but here i have to infer that we're talking about the same guy and and you just finished in this whole article showing how there's a lot of people according the new york times in the libertarian party who hold views the new york times doesn't think are very good views so there's nothing this isn't a whole article about just one guy aggrieved although i would say that the describing slavery is not so bad as sufficiently strike you that a reader who encounters that in the first paragraph is going to realize that there was not two economists running around saying slavery there was it a university didn't get it well you can tell that from that letter that says this is contrary to the libertarian then the use it says everybody should have freedom honestly the president didn't think that that paragraph way back at the beginning was referring to professor blocker when a written well and we don't know what the wall's was thinking when he wrote that letter we don't even know if father wildes read the whole article we don't know whether someone told him about the article we haven't talked to him about that but if you read his letter what he says is he calls professor block out for saying something that is insensitive he says you're just making provocative statements in order to gain attention and he says where is your evidence by even  it by itself you see that the not so bad language is followed immediately by a description of professor blocks objection to the civil rights act on the basis that it violates the right of freedom of association so again even in that passage the article is reminding to the reader of the essential from of a professor blocked use which is that he views the right of freedom of association as the most important right it just seems though that saying libertarian philosophy that against the will means that it's not free of it so the fact that it's misunderstood is not a positive for you it's a negative but i think if you look at it and i don't disagree with with that point except that i would say if you keep looking in father wildes letter he also seems to misunderstand professor blocks views about the civil rights act because if you read what he says there he says well blacks weren't forced to go to lunch from counters you know that you're saying that to the civil rights act is wrong because it violates the freedom of association but blacks were forced to go to the lunch counters which shows the father was perhaps didn't read the article because that's not because of locks you on that point professor box you on that point is that woolwor the victim of the civil rights act because they were forced to put it best it's it's mixed the president's view is mixed and doesn't help advance your part of the case and again i say that we don't you know the father while he's not the average reader he's the president of the university who's responding to comments that appear in the new all reason why we would assume he did read the florida call before he would write a letter i mean before you're going to call out a professor at your school it would seem like at the very least you would just rely on what the twitter verse is saying about it that you would actually read the article so if we're going to say this person isn't an average reader i think that works against you because the average reader in good remember paragraph two by the time they get to paragraph fifty something but i certainly not the way you're asking them to remember and make the inference that we're talking about the same oh that not so that i heard that before that must be the same but also the guy the economist before must be walked a block in a in an article the whole point of which is to show there's this soup of people that are members of these institutes and whatever that hold beliefs that the new york times thinks are strange we will use that characterization of what the new york times is true and therefore  who associates with these people is not a good candidate for president that's the of the import of the article it seems to me i disagree with you with that assessment of the article as a whole i think what the article after it looked at ran immersion in the libertarian movement and then after the broader question about whether that early exposure to libertarianism is perhaps made a rand paul tone deaf and whether he is going to be able to separate himself from some of the more extreme views of libertarians from those that i think enjoy a wider appeal i think that's the import of the our little the article that libertarians are racists is that the the i mean is that certainly not the theme of the economist walter blocked the flavor song because it's involuntary and otherwise it's not so bad you pick cotton things on and then they have that second passage that again that it's a block that that would at least inform the reader that we're talking about the same person and  even if i were to the fact that that premise from from your honor i would say that that brings to our actual mouse a point which is he's a public figure he's required to demonstrate actual malice which means he's required to demonstrate that we say that isn't really a standard where they say the name first and then later they'll do a shorthand like they'll give some long title joe blow president of the this that is so that then later they'll say joe blow the president or the executive ha executive or something like that they'll do a sure hand to remind you who this person is and here they didn't do that and so it does i mean the question is can that support a conclusion of malice in the in the context of this whole article i'm not sure that i can say is a matter of law doesn't that's the problem to me you're asking us to sort of assume the good motives of the paper and i don't know that we're required to assume that he has a burden a finding that the new york times intentionally made false statements about a professor walk in and i don't even think that's a close call i mean if you look at the timing the paper case in that case remember that there was this government study about police brutality in the early sixty's and and there was an article in time magazine that reports on the study and included in the study was a description of some out that had been made against the chicago police department one time rewrites writes the article they glided as if the government has made a finding that those allegations were true which they were just allegations in the civil suit and on that record the u s supreme court said there was no actual malice of it let me really quickly ask you the password what is your response to his argument that the that pasmore provides the intervening laws change that allows us to obey the law of the case kind of waiver argument it has more i don't think is an intervening chang controlling law because it addresses a different statute that has similar but distinct features to it but nonetheless we have two things going on here first we have a failure to raise an issue during the entire first part of this case in the  the court of appeals the issue of whether nine seventy one collides with fifty six was never raised until the twenty eight day letter after all the briefing was complete and in that twenty a j letter not only did he raise an issue for the first time he contradicted his prior position on that issue in the prior panel of this court held that he had waived that issue so we have two things going on we have the traditional way the rule which says you don't get to raise issues in appeal part two that you didn't raise an appeal one and then we have a law of the case issue which is a prior panel of this court has already made an affirmative finding the professor walked away and so even if past nor was an intervening change in the law on the first wave point it most certainly is not an intervening change of law that would upset this this court's prior panels holding on weight penalty have you made any argument that article nine seventy one is consistent with the federal rules with respect to burden shifting with the federal rules on all these aspects of my position is that we'll fifty six and twenty six and all of the federal rules that are implicated can peacefully co exist with article nine seventy one which is through the interpretation of the ninth circuit in the fourth circuit in the second have given that it's they're not identical but they can peacefully co exist as is evidenced by the fact in that we see in a state court louisiana has very similar rules to the d six and twenty six and we have those in our code of civil procedure and want you to summarize because at this stage of the seating what you have to show us is that there are a notice you didn't issues tiriel fact just give us thirty seconds to summarize how it is that you say on this record if there ever you know disputed issues material right with respect to falsity the article portrays professor blogs in the second half even read by itself articulate his view that he described defamation by implication i e the article implied that he supports labor unions or weights and with respect to actual malice i would submit that if you look at the first passage in the second passage together you will see that at most very baseline showing we did all we could without discovery to do shit in particular new york times i want you to say that there's no question no reasonable reader would think the professor was speaking in conditional times and no reason order to do the damage you have to imply something from that because slavery is illegal in the united states that we're not arguing the merits of slavery in another itself so her argument is it's the implication that somebody is racist or in some way bigoted or something along those lines that gives it the heft and she's saying that violates louisiana law because you can't have defamation by implication so that's the argument it's not that that people think that's a good idea to go around saying that but rather that you have to make an implication from that to get to the defamatory meeting so respond to that please correct her argument is that you don't call him a slave was an order they don't call statement that others find controversial or bad and that person then loses their job and we've had sort of this twitter shaming of people and i'm not saying it's good or bad or right or wrong but simply that this has occurred where somebody some newscaster somebody says something and a large number of people find this objectionable and the person is then fired or loses their position or reputation based on that one sense are you saying this falls in that category where the sentence kind of having made th regard to whether there's a racial component or anything else you're saying we don't need to make an implication if he makes that statement he's going to have a problem that's your argument slavery without his hyp reader might not have bothered to go back to paragraph to or whatever make the connection and all of that and it's kind of sloppy work on the part of the new york times it's inconsistent with malice because they do have it in there so maybe they're negligent maybe they're sloppy whatever but how is that