Author Archives: Pzisook

Illinois Appellate Court Holds That News Reporter Is Limited Purpose Public Figure and Enters Summary Judgment Against Her

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.

 

Seventh Circuit Rules Against Scottie Pippen

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.

Illinois Appellate Reaffirms That Only Meritless Lawsuits Can Be the Subject of SLAPP Motions

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.

Judge’s Defamation Lawsuit Found Not to Constitute a SLAPP

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.

Speech Law Blog contributors Phillip J. Zisook and Brian D. Saucier Defend Client Charged with Defamation by “16 and Pregnant” Participant

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, named as 2013 Super Lawyer in First Amendment and Media Law

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.