Yesterday, Levitt and HarperCollins both filed motions to dismiss. The only significant difference between the two motions is that Levitt’s must deal not only with the statement in Freakonomics, but also with the statement in the e-mail to John McCall about Lott’s arrangement with The Journal of Law & Economics. Levitt’s motion to dismiss can be found here.
The arguments for dismissing both counts are essentially the same, that the statements in the book and the e-mail are non-actionable statements of opinion protected by the First Amendment and that neither statement is capable of a defamatory per se meaning under Illinois or Virginia law.
The topic of primary interest around here, the meaning of replication in academic research, is not discussed in the motions to dismiss. However, its meaning is mentioned as a major factual issue in the Joint Initial Status Report filed yesterday, though the defendants dispute the legal materiality of the word’s meaning. The motions do say that the statement in Freakonomics “is capable of a reasonable, non-defamatory per se construction under Illinois law,” which would seem to make the meaning of replication material, but I will leave such things to the defamation experts.