Christian Schinbeckler
Case Brief
Lott vs. Levitt
TCOM 384
Caristi
556 F.3d 564
United States Court of Appeals,
Seventh Circuit.
John R. LOTT, Jr., Plaintiff–Appellant,
v.
Steven D. LEVITT, Defendant–Appellee.
No. 07–3095.
Argued Oct. 21, 2008.Decided Feb. 11, 2009.Rehearing and Rehearing En Banc Denied
March 11, 2009.*
Lott (economist) vs. Levitt (author and publisher of “Freakonomics”)
Procedural History
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Economist sues publisher for defamation
Court dismisses claim of defamation
Economist makes a second defamation claim based on an email exchange
between publisher and other economist (unnamed in case)
Publisher aims to dismiss second defamation case
Court upholds that the allegations made in the email stated a claim for
defamation
Issue

Author and Publisher (Levitt) writes in his book “Freakonomics” that
economist (Lott) had been alleged to have invented some of the date that
supported his theory of more-guns/less-crime. Economist (Lott) sees those
sentences as an accusation amounting to the idea that he falsified his results
Facts
 Economist Lott argues that failure for others to replicate his data doesn’t
mean his falsified his results, claims the word “replicate” has a clear and
unambiguous meaning
 Publisher and Author Levitt argues that the statements are not defamatory
and were otherwise protected by the First Amendment
 Levitt attaches copy of book to their motions of dismissal, arguing the book is
central to Lott’s claims. This allows the paragraph written about Lott to be
put in context with the rest of the page and book instead of singling the
paragraph out
Legal Issues
 Matters of Substance (Sole reliance of Illinois to make determination of case)
 Nature and Elements of defamation in general
 Presumption as to damage; special damages (must show that the
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unprivileged communication of a false statement caused the economist
harm)
Words Tending to Injure in Profession or Business
Words Imputing Unfitness for or Misconduct or Criminal Acts in Office or
Employment
Actionable Words in General
Construction of language used (key in case as part of Lott’s argument
centered around the connotation of the word “replicate”)
Authors and newspapers (statement could have been read to mean that
other scholars tired to reach the same conclusion, but could not)
Presumption as to damage; special damages (economist was unable to prove
any special damages, required by Illinois law to assert a pro quod defamation
claim) (Fed.Rules Civ.Proc.Rule 9(g), 28 U.S.C.A.)
Court’s Decision
 Court dismissed economist defamation claim after concluding that the
statements could reasonably be read as a description of an academic
dispute regarding controversial theories, not an accusation of academic
dishonesty. Author and Publisher sought to dismiss the count of the email exchange, but the court concluded that those allegations stated a
claim for defamation (the remaining settlement between the economist
and the author/publisher was settled out of court)
Rationale
 The court argued that economist Lott was unable to prove the passage in
Levitt’s book caused him actual harm
 The court defined “replicate” as having a broader meaning stretching
beyond the realm of academia for the broadly appealing book
“Freakonomics”
 The court also concluded that words like “troubling” and the notion that
Levitt claims Lott’s theory is both “sensible” and “intriguing”, lead the
court to claim that Lott was more complaining about the attack on his
ideas than he was complaining about the attack on his character
Implications
 It often in writing that one professional questions either the method or
the facts obtained by other professionals. Any of this work could be
construed by the original creators of those methods to be defamation
simply because they don’t like what is being said about them. People such
as Lott are now being told that just because you don’t like what someone
says about your work or your results doesn’t mean they have brought
shame upon your character or damaged your reputation. Without any
provable harm, harsh words and criticism of another’s work will
continued to be viewed in the eyes of the court as fair play.