Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, February 12, 2009

The Latest On Lott v. Levitt

The Seventh Circuit has affirmed a lower court ruling in Lott v. Levitt, the defamation case concerning the popular book Freakonomics.

John Lott, an academic and economist, believes that his reputation was sullied by Freakonomics, the popular and off-beat book written by Steven Levitt and Stephen Dubner. Lott's name was mentioned in one paragraph of the 200-page book, and he understood this passage to be an accusation of scholarly dishonesty. Offended, he filed suit against Levitt and HarperCollins, the publisher of the book, claiming that he had been defamed. The district court dismissed this claim after concluding that the passage could reasonably be read as a refutation of Lott's controversial theories and not a swipe at his integrity. Lott now appeals.


First things first-we must decide what law to apply. Lott contends that the district court erred by applying Illinois law and argues instead that Virginia law should apply. The defendants first addressed this issue in their motions to dismiss, in which they argued that Illinois substantive law should apply, raising and rejecting the possible application of Virginia law. In Lott's response, he stated that he “agree[d] with Defendants that Illinois law governs this dispute,” made no separate choice-of-law analysis, and cited no Virginia cases. Accordingly, the district court decided the motions based on Illinois law. Seven months later, Lott argued for the first time that Virginia law should have governed and asked the court to reconsider its ruling, contending, as he does here, that he only agreed that Illinois choice-of-law principles should apply, not that Illinois substantive law should govern. Under Illinois's choice-of-law rubric, Lott contends the law of his domicile, Virginia, should control this case.

This argument is disingenuous. To read Lott's agreement to the governance of Illinois law so narrowly robs it of both its obvious meaning and its context. Lott explicitly submitted to Illinois law and relied solely on it, and having done so, the district court was right to apply it to the dispute....The principle of waiver is designed to prohibit this very type of gamesmanship-Lott is not entitled to get a free peek at how his dispute will shake out under Illinois law and, when things don't go his way, ask for a mulligan under the laws of a different jurisdiction. In law (actually in love and most everything else in life), timing is often everything. The time for Lott to ask for the application of Virginia law had passed-the train had left the station.

On, then, to Illinois law. Defamation is the publication of a false statement that “tends to harm a person's reputation to the extent that it lowers that person in the eyes of the community or deters others from associating with that person.” ... To bring a successful claim, a plaintiff must normally show that the unprivileged communication of a false statement caused him harm. In Illinois this type of action is called per quod defamation. Some statements, however, are so obviously harmful that injury to the plaintiff's reputation can be presumed and are considered actionable per se.In Illinois there are five categories of per se defamation, two of which are pertinent in this case: (1) statements imputing an inability to perform or lack of integrity in one's duties of employment; and (2) statements that prejudice a party, or impute a lack of ability, in his profession. Id.

But not all statements that fall into one of these five categories are necessarily actionable per se-the statement's only reasonable readings must also be defamatory in nature. In other words, a statement that is reasonably capable of an innocent construction is not per se defamatory. ... The Illinois courts have emphasized that the meaning of a statement is not a fact for the jury to find, but a “question of law to be resolved by the court.” ... To discern the meaning, courts must draw from the context of the statement and give the words their “natural and obvious meaning.”  Id.... Courts need not weigh the relative value of competing constructions; instead, any reasonable, nondefamatory interpretation is the one that sticks....

Lott's first argument turns this substantiative law on its procedural head. Lott argues that the district court erred when it dismissed his defamation claim on the basis of this innocent construction rule. He notes that the district court was bound by federal, not Illinois, pleading standards, and argues that federal standards preclude a preference for an innocent interpretation over a defamatory one at the pleading stage. Instead, Lott argues that his claim should have survived the motions to dismiss because the passage in Freakonomics is reasonably susceptible to a defamatory interpretation, notwithstanding any equally reasonable innocent interpretations that may exist.

It is true that federal courts sitting in diversity are bound by federal procedural rules, but those rules impose no impediment for a judge to decide the natural and obvious meaning of an allegedly defamatory passage at the pleading stage. Courts, when reviewing a motion to dismiss, are indeed required to accept as true the facts alleged in the complaint, including the words used in the allegedly defamatory statement, and make all reasonable inferences in favor of the plaintiff. But that does not mean that the court must take the plaintiff's interpretation of the allegedly defamatory words at face value. Figuring out the meaning of a statement and whether it is reasonably susceptible to an innocent construction is a question of law for the courts to resolve. ...Our reliance on federal procedural rules does not allow us to ignore Illinois substantiative law, and shortly before the district court rendered its decision, the Illinois Supreme Court rejected the same argument Lott raises here. ... Instead, the high court reaffirmed that any reasonable, innocent interpretation sounds the death knell to a per se defamation claim. In doing so, the high court acknowledged that this rule puts a thumb on the scale for defendants but deemed this warranted in per se actions, where damages are presumed. ...It is not our place to water down the Illinois high court's policy decision.

Now, on to the alleged defamation. Lott contends that Levitt's refutation of his more-guns/less-crime hypothesis can be read only as a smear of his professional reputation and is therefore defamatory per se.Using an academic definition of “replicate,” Lott maintains that the passage means that others repeated, to a tee, his technical analysis but were unable to duplicate his results, suggesting that he either faked his data or performed his analysis incompetently.

But this technical reading is not the only reasonable interpretation of the passage. After all, Freakonomics didn't become a bestseller by targeting just academics. The book takes into account the lay reader, breaking down technical terms into easily understandable, if imprecise, ideas. For example, the technicalities of regression analysis are explained by an analogy to a golfer's handicap, since both even the playing field so that variables (or golfers) can be compared on all fours. The book relies on anecdotal evidence and describes with only the broadest strokes the statistical methodologies used. In this context, it is reasonable to read “replicate” in more generic terms. That is, the sentence could mean that scholars tried to reach the same conclusion as Lott, using different models, data, and assumptions, but could not do so. This reading does not imply that Lott falsified his results or was incompetent; instead, it suggests only that scholars have disagreed with Lott's findings about the controversial relationship between guns and crime. By concluding that this more generic definition of “replicate” is reasonable, we are not assuming that the reader is a simpleton. After all, econometrics is far from conventional wisdom. We are, however, taking into account the context of the statement and acknowledging that the natural and obvious meaning of “replicate” can lie outside the realm of academia for this broadly appealing book.

A closer look at the paragraph where the contested sentence is found supports this innocent reading. The paragraph describes and critiques Lott's  “idea,” “theory,” and “hypothesis,” but makes no mention of his methodology or what data set he used. In this context, it is natural to read Levitt's statement as a critique on his theory, rather than an accusation of falsifying data. In fact, instead of weighing in on the rumor that Lott faked some of his results, Levitt distanced himself from it. Levitt mentioned the “troubling allegation,” but noted that “[r]egardless of whether the data were faked, Lott's admittedly intriguing hypothesis doesn't seem to be true.”Far from assailing Lott's competence, he acknowledged that Lott's theory is “sensible” and “intriguing.” To the extent that Lott is complaining about an attack on his ideas, and not his character, he is barking up the wrong tree. The remedy for this kind of academic dispute is the publication of a rebuttal, not an award of damages. ...

Finally, Lott also contends, couched in two distinct procedural arguments, that he had a viable claim for pro quod defamation-that is a defamation claim where damages cannot be presumed. He first argues that the district court missed the pro quod claim in his original complaint and therefore erred by failing to address it. Alternatively, Lott argues that the district court should have allowed him to file an amended complaint that explicitly added a pro quod claim, instead of refusing to do so on the grounds that the proposed complaint was untimely and futile.

Both these arguments fail for the same reason-Lott neglected to allege any special damages in both his original complaint and his proposed amended complaint. In Illinois courts and federal courts sitting in diversity, special damages must be specifically stated in a pro quod claim. ...In his original complaint, which made no explicit pro quod claim, Lott alleged only “substantial reputational and monetary damages,” without a specific accounting of those damages or an explanation of how the purported defamation caused them. While the proposed amended complaint explicitly tacked on a claim for pro quod defamation, its allegations of damages are equally vague. Lott added allegations that he encountered people in job interviews and at academic seminars who understood the passage to be a swipe at his professional reputation but does not describe what pecuniary losses he suffered as a result. Lott doesn't even say what came of the job interviews where the book was mentioned. Such general allegations, which make no effort to explain how any reputational damage translated into actual harm, are not enough....Thus, we see no error in the district court's dismissal of the defamation claim or its refusal to accept the futile amended complaint. ...

Accordingly, the judgment of the district court is AFFIRMED.

The case is Lott v. Levitt, --- F.3d ----, 2009 WL 322148 (C.A.7 (Ill.))

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