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P sued D for an article about American Indian activist Dennis Banks. The article, 'Dennis Bank's Last Stand,' gives a history of the relationship between Banks, who fled the state in the mid-1970's after his conviction on two felony counts, and P, who while Attorney General prosecuted Banks and later, as Governor, sought his extradition. P centers on one paragraph of the article, which referred to Banks's 1974 initiation of tribal charges of assault against P, in connection with an allegation (now acknowledged to be false) that P had raped a teenaged Indian girl five years before. The District Court granted summary judgment for D in that the article reported material facts and that any implication that revenge motivated P's prosecution of Banks was opinion and therefore nonactionable under the First Amendment. P appealed. This was the rehearing in banc after a panel overturned part of the District Court’s ruling.

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