Lott v. Levitt

• Decision Date: 11 February 2009
• Docket Number: No. 07-3095.,07-3095.
• Citation: 556 F.3d 564
• Parties: John R. LOTT, Jr., Plaintiff-Appellant, v. Steven D. LEVITT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

556 F.3d 564

John R. LOTT, Jr., Plaintiff-Appellant, v. Steven D. LEVITT, Defendant-Appellee.

No. 07-3095.

United States Court of Appeals, Seventh Circuit.

Argued October 21, 2008.

Decided February 11, 2009.

Paul E. Freehling, Seyfarth Shaw, Chicago, IL, Jeffrey S. Parker (argued), George Mason University School of Law, Arlington, VA, for Plaintiff-Appellant.

Slade R. Metcalf (argued), Hogan & Hartson, New York, NY, for Defendant-Appellee.

Before RIPPLE, EVANS, and SYKES, Circuit Judges.

EVANS, Circuit Judge.

John Lott, an academic and economist, believes that his reputation was sullied by Freakonomics,¹ 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.

In Freakonomics, Levitt, a self-described rogue economist, seeks to explore "the hidden side of everything." Using an economist's analytical tools, Levitt (and his co-author, Dubner, who is not named in this suit) embarks on a "treasure-hunt" of "freakish curiosities," investigating, for example, the similarities between nylon stockings and crack cocaine, or the socio-economic forces at work when parents name their children. The book, which became a New York Times Bestseller, tackled one particular oddity that had left many commentators baffled—the drop in crime rates in the 1990s. Levitt devoted a chapter to this topic, debunking several different explanations for this phenomenon (including "gun buyback" programs) before attributing the decline, at least in part, to the legalization of abortion, which meant fewer children being born to mothers who didn't want them.

In this chapter, over the span of just one paragraph (pages 133-34), Levitt addressed Lott's work. Lott, author of the book More Guns, Less Crime: Understanding Crime and Gun Control Laws, contends that allowing law-abiding citizens to carry concealed weapons contributes to a drop in crime rates. As a champion of this politically charged idea, Levitt writes that Lott became a "lightning rod for gun controversy," a status he exacerbated by creating a pseudonym, "Mary Rosh," which he used to defend his theory in debates over the Internet (an embarrassing charge, but one that was apparently true as Lott takes no issue with it in this case). Levitt ends his discussion of Lott's work by writing:

Then there was the troubling allegation that Lott actually invented some of the survey data that support his more-guns/ less-crime theory. Regardless of whether the data were faked, Lott's admittedly intriguing hypothesis doesn't seem to be true. When other scholars have tried to replicate his results, they found that right-to-carry laws simply don't bring down crime.

To Lott, these sentences amounted to an accusation that he falsified his results.

Lott responded by filing a defamation suit against Levitt and HarperCollins before the district court, invoking diversity jurisdiction. In his complaint, Lott alleges that "replicate," within the "world of academic research and scholarship," has "a clear and unambiguous meaning." He reads the term to mean that other scholars performed the same analysis as Lott, using identical data and methodologies. According to Lott, if the others were unable to reach the same results as him, an assertion he claims is untrue, then the inescapable conclusion is that he fabricated his findings or was too incompetent to reach the right ones. Lott added a second defamation claim regarding an e-mail exchange Levitt had with another economist, in which Levitt accused Lott of buying support for his theory by paying for the publication of a journal filled only with non-peer refereed articles that bolstered his hypothesis.

Both Levitt and HarperCollins filed motions to dismiss the suit, arguing that the statements in Freakonomics were not defamatory and were otherwise protected by the First Amendment. The defendants attached a copy of the book to their motions, which the district court (Judge Ruben Castillo) considered part of the pleadings because the book was central to Lott's claim. See Cont'l Cas. Co. v. Am. Nat'l Ins. Co., 417 F.3d 727, 731 n. 3 (7th Cir. 2005). The court, applying Illinois law upon the parties' agreement, dismissed the 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. Levitt also sought dismissal of the count regarding the e-mail exchange, but the court concluded that those allegations stated a claim for defamation. HarperCollins, who was not involved in the remaining claim, was dismissed from the case.

Seven months after this decision, and shortly before discovery was set to end, a flurry of activity ensued. A settlement of the remaining claim was reached, and, at the same time, Lott (who hired new counsel) filed a motion to reconsider the district court's decision to dismiss the defamation claim based on Freakonomics. In that motion, Lott argued that Virginia law, and not Illinois law, should have applied, despite his prior counsel's acceptance and reliance on Illinois cases. The district court denied this motion, reasoning that Lott waived the choice-of-law argument. At this time, Lott also asked the court for leave to file an amended complaint, which reiterated his defamation claim based on Freakonomics, a request that was denied as untimely and futile. Today we resolve Lott's appeal from these decisions.

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. Whirlpool Fin. Corp. v. Sevaux, 96 F.3d 216, 221 (7th Cir.1996); ECHO, Inc. v. Whitson Co., 52 F.3d 702, 707 (7th Cir.1995). 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." Tuite v. Corbitt, 224 Ill.2d 490, 310 Ill.Dec. 303, 866 N.E.2d 114, 121 (2006). 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. Tuite, 310 Ill.Dec. 303, 866 N.E.2d at 121; Bryson v. News Am. Publ'ns, Inc., 174 Ill.2d 77, 220 Ill.Dec. 195, 672 N.E.2d 1207, 1215 (1996). 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." Tuite, 310 Ill.Dec. 303, 866 N.E.2d at 122. To discern the meaning, courts must draw from the context of the statement and give the words their "natural and obvious meaning." Id. (citing Chapski v. Copley Press, 92 Ill.2d 344, ...