In Jacobson v CBS Broadcasting, Inc., the Illinois Appellate Court held that Amy Jacobson, a television news reporter for WMAQ, NBC-5, was a limited purpose public figure and granted summary judgment for defendant, CBS Broadcasting, Inc. The lawsuit arose from a report by a competing news station, which broadcast a video of Jacobson, clothed in a bikini and towel at the backyard pool of Craig Stebic. At the time, Stebic was a suspect in the disappearance of his wife. The Stebics were engaged in a contentious divorce proceeding and Mrs. Stebic’s disappearance received widespread media coverage. The CBS videotape, taken from a neighbor’s home, was edited. Jacobson claimed that the editing placed her in a false light and portrayed her as an adulteress and an unethical reporter. The broadcast described Jacobson as having gravely crossed an ethical line and operating under a conflict of interest. Jacobson brought claims for defamation per se, intrusion upon seclusion, false light, intentional infliction of emotional distress and tortious interference with a business relationship (Jacobson was fired after the broadcast).
In affirming the trial court’s grant of summary judgment, the Appellate Court rejected CBS’s contention that Jacobson was a general purpose public figure as a consequence of being a well-known television news reporter. The Court found that despite winning four Emmy awards, Jacobson had not achieved pervasive fame or br0ad societal influence commanded by general purpose public figures. Nonetheless, it found that Jacobson was a limited purpose public figure because she voluntarily interjected herself into the public controversy surrounding Lisa Stebic’s disappearance and was actively covering the story in the course of her news reports. Thus, the Court found that Jacobson must meet the actual malice standard of New York Times v. Sullivan to go prevail in her lawsuit. The Court found there was no evidence that CBS published the videotape and report with knowledge of its falsity or in reckless disregard of the truth. Further, although there was evidence that the videotape was edited, the Court found that there was no basis to conclude that it was edited to convey that Jacobson was engaged in a sexual relationship with Craig Stebic. The Court also found that there was no basis for an intrusion claim because the pool area was viewable from public property from which Jacobson had no reasonable expectation of privacy, notwithstanding that the video was taken with a zoom lens. The court further found that the video did not record any specific act that could be considered private. In addition, the Court applied Hustler v. Falwell and held that its findings on Jacobson’s claims for defamation and false light required that the derivative claims of intentional infliction of emotional distress and tortious interference with business expectations must also be dismissed.
Jacobson is an example of the burdens on public figures in proving actual malice with convincing clarity. However, it may be cited by plaintiffs in future cases in their rebuttal of arguments that they are general purpose public figures.
In Pippen v NBCUniversal Media, LLC, et al, the United States Court of Appeals for the Seventh Circuit affirmed the dismissal of former Chicago Bulls star Scottie Pippen’s defamation and false light invasion of privacy complaint with prejudice. Pippen alleged that various media reports on the internet defamed him because they falsely reported that he had filed for bankruptcy. Pippen contended that the statements constituted defamation per se because they imputed a lack of ability in his business dealings. He also attempted to state claims of defamation per quod and false light by alleging that he suffered special damages because his opportunities for endorsements were diminished as result of the publications.
In affirming the dismissal of Pippen’s claims, the court ruled that an accusation of bankruptcy did not fall into a per se category of defamation. The court found that Pippen’s allegation that he lost specific business opportunities as a consequence of the statements was weak but sufficient to state a claim for defamation per quod; however, it nonetheless dismissed that claim and the false light claim because Pippen could not show actual malice, i.e. that the defendants published the statements knowing the information was false or in reckless disregard of the truth. The court reiterated that a failure to investigate is insufficient to establish reckless disregard of the truth. Finally, the court found that the single publication rule was applicable to internet publications and that keeping an unaltered defamatory statement on the internet after a publisher learned of its falsity did not constitute an actionable republication.
Pippen demonstrates that courts will not strain to fit statements into narrowly limited per se categories that do not require proof of actual economic loss. The holding with respect to the single publication rule is significant because no Illinois decisions had previously addressed the issue with respect to internet publications.
In Capeheart v. Terrell, the Illinois Appellate Court confirmed that only meritless cases can be the subject of a SLAPP motion to dismiss. In Capeheart, plaintiff, a university professor, alleged that statements made in the course of a university faculty council meeting charging that she was “stalking” a student who had filed a complaint against her were defamatory. Defendant filed a motion to dismiss based upon the Illinois Citizen Participation Act, claiming that the lawsuit was a SLAPP in retaliation for the exercise of First Amendment rights. In reversing the trial court’s grant of the motion to dismiss and award of attorney’s fees, the court found, “[w]hile Terrell’s statement was made during a meeting of a governmental entity, he is not necessarily immunized from liability simply because of the governmental setting.” It was uncontested that no stalking complaint had been filed against plaintiff. Further, the lawsuit was filed nearly one year after the statements and sought $500,000, “not millions as in the classic SLAPP scenario.” Accordingly, the court found that it could not find that the plaintiff’s suit was meritless, retaliatory or intended to prevent defendant from exercising his constitutional rights.
Similary, in Stein v Krislov, a former associate of a law firm and its principal filed a defamation action based upon statements made to a judge concerning plaintiff’s professional experience. Defendants moved to dismiss the defamation count claiming it was a SLAPP. In reversing the grant of the SLAPP motion, the court found, “we conclude that plaintiff’s libel claim was not meritless where defendants failed to satisfy their burden of demonstrating the truth of the contents of [defendant’s] letters.”
Capeheart and Krislov each demonstrate that to succeed on a SLAPP motion in Illinois, the defendant must demonstrate that the plaintiff’s lawsuit lacks merit. The mere fact that the lawsuit is in response to statements made in a public forum will not suffice.
In Ryan v. Fox Television Stations, Inc., the Illinois Appellate Court affirmed the denial of a SLAPP motion to dismiss. In Ryan, Fox’s Chicago station broadcast a series of investigative reports which focused on judges who purportedly left their courthouses early. In the broadcasts, Fox reported that its investigative team “caught” Judge James Ryan leaving his courthouse early three times and was home on one day by 1:18 p.m. The corresponding video showed a car parked in the driveway of a house. It was uncontested that the car and house depicted were not those of Judge Ryan. The following day, Fox broadcast that “While we saw the judge leave work early, we really don’t know where he went.” The judge filed his lawsuit two days after the first broadcast aired and sought $7 million in its prayer for relief., alleging that the broadcasts falsely stated that Judge Ryan was neglecting his duties and constituted defamation per se.
The defendants brought a SLAPP motion to dismiss pursuant to the Illinois Citizen Participation Act. In affirming the denial of the defendants’ SLAPP Motion, the Court noted that: (1) the proximity in time between the speech at issue and the filing of a Complaint; and (2) the extent to which the damages requested are reasonably related to the facts and constitute good-faith estimate of the extent of the injury sustained are factors to consider in determining whether a claim is in retaliation for the exercise of protected speech. However, the Court held that the Illinois Citizen Participation Act was only applicable to lawsuits which lacked any merit, explaining that “[d]efendants must show that there are undisputed facts that demonstrate plaintiff’s claim is meritless.” The court particularly noted that judges were not bound to stay in their courtrooms and the fact that a judge left a courthouse did not mean that he was not otherwise involved in the legal community or that he was neglecting his duties. Accordingly, the defendants did not show that the judge’s claims were meritless and the SLAPP motion was properly denied.
Ryan demonstrates that in Illinois, it is critical for a defendant urging dismissal on the basis of the Illinois SLAPP statute to affirmatively demonstrate that the Complaint lacks any plausible merit in order to succeed.
In Head v. Chicory Media, LLC et al., Christina Head a/k/a Christina Robinson, a participant in the MTV reality show “16 and Pregnant”, sued multiple media entities, including Chicory Media LLC, which operates the popular internet celebrity news website Starcasm.net. Head claimed that she was defamed because Starcasm published excerpts from her deceased fiance’s Facebook page, which contained postings by his mother. Those postings expressed his mother’s doubts that the fiance’s drowning death was an accident. Head claimed that Starcasm’s article falsely accused her of participating in her fiance’s murder. The fiance’s drowning death was highlighted in both the promotions for “16 and Pregnant”and in the episode of the show featuring Head. Prior to Starcasm’s article, numerous media publications reported on Head’s tragic story in “16 and Pregnant” and the drowning death of her fiance while the season was being filmed. On July 12, 2013, the district court for the 71st Judicial District of Harrison County, Texas granted Chicory Media’s Motion to Dismiss, finding that Head’s Complaint constituted an impermissible strategic lawsuit against public participation (a “SLAPP”). Chicory Media’s argued that Head, as a reality TV participant, was a limited purpose public figure who interjected her fiance’s drowning death as a focal point of her story and MTV’s promotion of the show, and that Chicory Media’s publication was a matter of public concern. On September 25, 2013, the court also granted Chicory Media’s Motion for Sanctions and awarded Chicory Media its attorneys’ fees pursuant to the Texas Citizen Participation Act. Co-defendants American Media, Inc. and Perez Hilton also prevailed in their respective motions to dismiss and fee requests.
The decision in Head demonstrates the continued viability of some states’ anti-SLAPP statutes notwithstanding a trend in some jurisdictions to narrow the scope of these statutes.
Speech Law Blog contributor, Phillip J. Zisook was named as a 2013 Illiniois Super Lawyer in the practice areas of First Amendment/Media/Advertising Law. Illinois Super Lawyers are recognized as the top five percent of the lawyers in Illinois in specific fields of law based upon peer review survey data and research conducted by Law & Politics.
In Brown v County of Cook, the Seventh Circuit affirmed the grant of summary judgment for the defendants on Plaintiff’s claim that he was passed over for a promotion as a Cook County Sheriff because he was a Republican and did not contribute to a Democratic sheriff’s campaign fund. Brown claimed that he was discriminated against as a consequence of his First Amendment political speech. In rejecting Brown’s claim, the court applied Mt Healthy City School District Board of Education v. Doyle. The court found that pursuant to Mt. Healthy, if Brown presented evidence that his political affiliation was a motivating factor in his being passed over, the burden would shift to the Defendant to show that Brown’s political affiliation was not the cause of his not being promoted. For example, if the Defendants could show that no openings were available, Brown could not prevail, even if he would not have been promoted as a consequence of his failure to contribute, had an opening existed. The evidence submitted to the court showed that whether one contributed to the campaign was not a factor in who got promoted and who did not.
Brown demonstrates that a negative impact alone is not enough to prevail in civil rights claims based upon the exercise of First Amendment Speech. A successful litigant must show that he would not have sustained the employment consequence but for his speech.
On February 10, 2012 the Illinois Appellate Court broadened the scope of publication for which a defendant may be liable in defamation cases. In Tunca v Painter, the Court held that a defendant is not only liable for statements he made, but also for those repetitions of his statements by third parties which are reasonably foreseeable, or the natural and probable consequence of the defendant’s original statement. Thus, in Tunca, the Court extended defamation liability for statements made by third parties who then spread the defamatory statements to additional people. This enhanced scope is consistent with Restatement (Second) of Torts as well as the majority of other jurisdictions. New York and Missouri still adhere to the rule that there is no liability for unauthorized republications. A prior Illinois decision from 1882, Clifford v Cochrane, held that the publication at issue must have been made by the defendant or by a third party with the defendant’s authorization.
Tunca brings Illinois in line with the majority of jurisdictions which extend defamation liability for the repetition of defamatory statements by third persons which are reasonably forseeable. This development is consistent with the body of recent tort law in general through which a plaintiff may recover damages which are the reasonably forseeable consequence of the defendant’s conduct.
In Goldberg v. Brooks, the Illinois Appellate Court held that a teacher’s assistant, school principal and school district had immunity from claims of defamation relating to statements they made concerning the plaintiff’s performance as a school bus driver. The assistant had reported to the school principal that the plaintiff drove her against her will outside the school district before beginning his route. The principal reported that statement and others to the driver’s employer. Those statements included that Plaintiff had attempted or threatened to run over two children crossing in front of his bus and that the Plaintiff was not a suitable person to work with children.
In finding the statements protected and privileged, the Court first found that the Defendants were each entitled to tort immunity. Specifically, the Illinois Tort Immunity Act expressly protects public entities for injuries caused by any action of its employees that is defamatory. It also protects public employees from liability for acts in the scope of employment caused by negligent misrepresentation or the providing of information. The Court also found that the statements of the assistant and principal were protected by a common law absolute privilege since the individual defendants, as public employees, had a duty to report misconduct.
Goldberg demonstrates the difficulty a plaintiff faces in successfully stating a cause of action against public officials for statements made in the course of their official duties.
On October 18, 2010, the Illinois Appellate Court affirmed the dismissal of a high school basketball coach’s lawsuit for defamation, false light invasion of privacy and tortious interference with prospective economic advantage. The defendants had urged that plaintiff be removed from his positions as athletic director and coach in petitions to the school board, on the internet and in radio broadcasts. The court found that the lawsuit violated the Illinois Citizen Participation Act (“CPA”) (735 ILCS 110/1 et seq.) and constituted a strategic lawsuit against public participation (“SLAPP”). Sandholm v Kuecker, et al. The statements at issue referred to Sandholm as “excessively abusive” and that he routinely bullied, humiliated and badgered players. The statements emanated from the defendants as the “Save Dixon Sports Committee.” One posting described plaintiff as a “psyco [sic]nut [who]talks in circles and is only coaching for his glory.” The post continued: “It is his twisted pshyco [sic] babble and his abuse of power that we have had enough of.”
In finding that the CPA barred plaintiff’s lawsuit, the court applied a two-part analysis emanating from City of Columbia v. Omni Outdoor Advertising, Inc., to determine whether the defendants’ acts were “genuinely aimed at procuring favorable government action.” First, whether objective persons could have reasonably expected to procure a favorable government outcome through the campaign at issue. If so, the court does not consider defendants’ subjective intent. If, however, the objective inquiry is answered in the negative, the court considers whether defendants’ subjective intent was not to achieve a government outcome, but to interfere with plaintiff by using the governmental process itself.
The court found that the record demonstrated defendants’ repeated efforts to lobby the school board to remove plaintiff as athletic director and coach, even after the board initially denied their petition (the board ultimately reconsidered its ruling and removed plaintiff based upon the campaign). The court referred to defendants’ internet postings and radio presentations as “part of the process of influencing the government to make a decision in petitioner’s favor” and described the campaign to remove plaintiff as “classic political speech.” Therefore, the court found that plaintiff did not disprove that objective persons in defendants’ position could reasonably believe that they could succeed in achieving their desired government outcome and it was unnecessary to consider the defendants’ subjective intent: “As the Act states, defendants are immune from liability, regardless of intent or purpose, except when not genuinely aimed at procurring favorable government action.” 735 ILCS 110/15. Significantly, the court found, that to constitute citizen participation protected by the CPA, the statements “did not need to be made within a petition or during a hearing, but needed only to be made within defendants’ participation in the government process, which includes acts of gaining public support to influence favorable government action.” Thus, the court affirmed the trial court’s dismissal of plaintiff’s lawsuit and award of attorneys’ fees to the defendants.
Sandholm demonstrates that the Illinois Citizen Participation Act continues to be applied broadly to encompass not only direct requests for governmental action, but also statements directed to the public at large which may influence government action. The scope of the Act continues to develop on a case-by-case basis.