Newsweek magazine published an article about William Janklow, the governor and former attorney general of South Dakota, and Dennis Banks, a Native American activist. The article stated that Banks brought charges in tribal court against Janklow for the rape of a Native American girl, which were later acknowledged to be false, and that several months later Janklow, as attorney general of South Dakota, was prosecuting Banks for his role in a riot. Janklow (plaintiff) brought a defamation action against Newsweek (defendant), arguing that the article defamed him by implying that he prosecuted Banks out of revenge, when he had actually initiated proceedings against Banks while serving as special prosecutor, before Banks’ rape allegation. The District Court granted summary judgment in favor of Newsweek, holding that the implication that Janklow prosecuted Banks out of revenge was opinion, and therefore protected under the First Amendment. A divided panel of the U.S. Eighth Circuit Court of Appeals reversed, finding that the implication of revenge was factual. Newsweek petitioned for a rehearing en banc.