History and Litigation
Paul Moreno, Hillsdale College

The Chronicle of Higher Education reports (link for subscribers only) that a federal judge has allowed Dr. Lott’s defamation suit against Dr. Levitt to proceed, based upon a private e-mail in which Dr. Levitt wrote that Dr. Lott had “bought” an issue of the Journal of Law and Economics to promote his argument that gun-possession deters crime.

My own suspicion is that Dr. Lott is correct, and that Dr. Levitt did defame him. Nevertheless, as the Chronicle puts it, the action “might make scholars a bit more wary of pressing the ‘send’ button,” let along publishing hard-hitting analyses of other scholars’ work.

Indeed, I’m not a little wary of posting this message.

I am far from taking an A.C.L.U. attitude about libel when it comes to private persons, but for scholars, the value of free speech and press is greater.

Court is a poor venue for establishing an interpretation about the historical past—as opposed to the immediate past of a traffic accident or breach of contract. Business historians have noted that courts’ entertainment of suits involving asbestos, tobacco, or slave-trading will cause businesses to destroy rather than preserve records. General William C. Westmoreland brought a libel suit against C.B.S.; it was a wasteful distraction from the ultimate vindication that history would bring him. It’s also almost always regrettable when historians enter court as advocates for some policy: against segregation or in favor of comparable worth or the decriminalization of homosexual sodomy. The eminent constitutional historian Alfred H. Kelly confessed, after preparing a brief for the N.A.A.C.P. in the Brown v. Board of Education case, that he had “manipulated history in the best tradition of American advocacy, carefully marshaling every scrap of evidence in favor of the desired interpretation and carefully doctoring all the evidence to the contrary, either by suppressing it when that seemed plausible, or by distorting it when suppression was not possible.” Good lawyer, bad historian.

Worst of all, professional journals and the “peer review” process, at issue in the Lott-Levitt suit, are too often exchanges of mutual congratulation among the ideologically like-minded. I have the highest regard for Dr. Lott’s effort to throw new light on the academy’s pro-gun-control orthodoxy (nowhere better displayed than in the Bellesiles scandal), but he more than anyone should recognize the importance of freedom of expression, and the (to quote the feminists) “chilling” effect of such lawsuits.
NAS10:13 AM