Statements Susceptible Of Innocent Construction, Given Natural Meaning of Words in Their Context, Are Not Actionable As Defamation Per Se
LOTT v. LEVITT (February 11, 2009)
Steven Levitt and Stephen Dubner authored the off-beat and best-selling Freakonomics. In it, the authors used economic theory to address many “freakish curiosities,’ such as the similarities between nylon stockings and crack cocaine. In one chapter, they addressed the drop in the crime rate in the 1990s. They rejected several theories before concluding that the legalization of abortion accounted for the drop. In one paragraph in that chapter, they commented on John Lott’s theory that allowing more guns into the hands of law-abiding citizens led to the reduction in crime. In addition to noting a “troubling allegation” that Lott fabricated survey data, the authors stated that other scholars tried to “replicate” his results without success. Lott brought a defamation action against Levitt, alleging that “replicate” has a specific meaning within the academic community. Applying that meaning, the statement really means Lott fabricated his results. Lott amended his complaint to add a count of defamation based on an e-mail sent by Levitt. The district court dismissed the count based on the book, holding that it could reasonably be read as not an accusation of dishonesty. Several months later, the parties settled the count based on the e-mail and Lott moved to reconsider the earlier dismissal, claiming that Virginia instead of Illinois law should have been applied. The district court concluded that Lott waived the choice-of-law argument. Lott appeals.
In their opinion, Judges Ripple, Evans and Sykes affirmed. The Court first addressed the choice-of-law issue and held that Lott waived it. The Court rejected Lott’s argument that he agreed only that Illinois’ choice-of-law principles, not substantive law, applied. Lott relied on Illinois law throughout the proceedings below – he doesn’t get a mulligan. Moving on to the substantive Illinois law of defamation, the Court noted that even statements that amount to per se defamation are not necessarily actionable. A statement is not actionable if, giving the words their natural meaning, it is reasonably capable of an innocent construction. The fact that a court must accept as true the facts alleged in plaintiff’s complaint does not alter the analysis. The determination of the meaning of a statement and whether it is susceptible of an innocent construction is a question of law. Here, although Lott makes out a case for a defamatory meaning by giving “replicate” an academic definition, the Court looked at the context of the statement and a natural definition of replicate in finding that an innocent construction was reasonable. Finally, the Court rejected Lott’s argument that he had a claim for per quod defamation, that is, defamation in which damages must be alleged and proved. Lott failed to allege special damages with enough specificity in either his original or amended complaint.
