Business Law 11th Edition by Kenneth Clarkson,Roger LeRoy Miller,Gaylord Jentz,Frank Cross

Exercise 2

Lott v. Levitt
United States District Court, Northern District of Illinois, Eastern Division, 2007. 469 F.Supp.2d 575.
RUBEN CASTILLO, United States District Court Judge.
In 2005, well-known economist Steven Levitt ("Levitt") and journalist Stephen J. Dubner ("Dubner") coauthored the best-selling book Freakonomics, which was published by * * * HarperCollins Publishers, Inc. ("HarperCollins"). This Court, like many other individuals, has completed a cover-to-cover reading of the book. In the book, Levitt and Dubner spend one paragraph discussing the theory for which fellow economist, * * * John R. Lott, Jr. ("Lott"), is known[:] * * * that laws permitting individuals to carry concealed weapons result in a statistically significant and provable reduction in serious crime rates. Lott filed the instant lawsuit against Levitt and [others] * * *. Lott claims [in part] that an email written by Levitt to another economist * * * constitutes defamation * * *. [Levitt filed a motion to dismiss this claim.]
* * * *
Lott is discussed in the following single paragraph in Chapter 4 of Freakonomics, entitled "Where Have All the Criminals Gone ":
* * * [T]here is an * * * argument-that we need more guns on the street, but in the hands of the right people * * *. The economist John R. Lott Jr. is the main champion of this idea. His calling card is the book More Guns, Less Crime, in which he argues that violent crime has decreased in areas where lawabiding citizens are allowed to carry concealed weapons. His theory might be surprising, but it is sensible. If a criminal thinks his potential victim may be armed, he may be deterred from committing the crime. Handgun opponents call Lott a pro-gun ideologue * * *. [T]here 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.
On May 24 or May 25, 2005, John McCall ("McCall"), described by Lott as an economist residing in Texas, sent Levitt an email regarding the above passage, stating:
I * * * found the following citations-have not read any of them yet, but it appears they all replicate Lott's research. [McCall referred to a "Special Issue" of The Journal of Law and Economics published in October 2001 that contained a collection of articles delivered at an academic conference co-sponsored by the Center for Law, Economics, and Public Policy at Yale Law School and the American Enterprise Institute, where Lott had recently been a resident scholar.] The Journal of Law and Economics is not chopped liver.* * *
That same day, Levitt responded:
It was not a peer refereed edition of the Journal. For $15,000 he was able to buy an issue and put in only work that supported him. My best friend was the editor and was outraged the press let Lott do this.* * *
* * * *
A statement is considered defamatory if it tends to cause such harm to the reputation of another that it lowers that person in the eyes of the community or deters third persons from associating with that person. * * * [Emphasis added.]
* * * *
* * * Lott contends that the statements about him in * * * the email * * * imply that his results were falsified or that his theories lack merit, and thus impute a lack of ability and integrity in his profession as an economist, academic, and researcher. Indeed, a claim that an academic or economist falsified his results and could only publish his theories by buying an issue of a journal and avoiding peer review would surely impute a lack of ability and prejudice that person in his profession.
* * * *
* * * [T]he First Amendment protects statements that cannot be reasonably interpreted as stating actual facts. * * * [Emphasis added.]
The test for whether a statement is a factual assertion is whether the statement is precise, readily understood, and susceptible of being verified as true or false. This test * * * is a reasonableness standard; whether a reasonable reader would understand the defendant to be informing him of a fact or opinion. Language that is loose, figurative, or hyperbolic negates the impression that a statement is asserting actual facts. Accordingly, vague, unprovable statements and statements of opinion do not give rise to a defamation claim. If it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable. [Emphasis added.]
In this case, however, Levitt's email sounds as if he was in possession of objectively verifiable facts. * * * First, it would be unreasonable to interpret Levitt's unqualified statement that the Journal edition was not "peer refereed" as Levitt [argues that he was] merely giving his opinion on the "peers" chosen to review, or referee, the Special Issue. Indeed, the editor of the Journal might be able to verify the truth of falsity of whether the Special Issue was reviewed by peers. Furthermore, while Levitt argues that one person's " 'peer'in the academic realm may be another person's 'hack'," this distinction is not reasonable when discussing the review process at a top university's academic journal. Second, a reasonable reader would not interpret Levitt's assertion that "For $15,000 [Lott] was able to buy an issue and put in only work that supported him" as simply a statement of Levitt's opinion. Levitt's email appears to state objectively verifiable facts: that Lott paid $15,000 to control the content of the Special Issue. The editor of the Journal again might be the source to verify the truth or falsity of this statement. Third, the same editor could verify whether he was "outraged" by the acts described in the foregoing statements. Therefore, the defamatory statements in Levitt's email to McCall are objectively verifiable * * *.
* * * *
* * * In his email to McCall, * * * Levitt made a string of defamatory assertions about Lott's involvement in the publication of the Special Issue of the Journal that-no matter how rash or short-sighted Levitt was when he made them-cannot be reasonably interpreted as innocent or mere opinion.
* * * Levitt's motion to dismiss [this part of Lott's] Complaint is denied.
1. Did the statements about Lott in Freakonomics constitute unprotected speech Explain.
2. Should the First Amendment protect all speech Discuss.