Category Archives: Privacy

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.

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 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.

PETA “Shocking Statements” Found Non-Defamatory

In Moore et al v. People for the Ethical Treatment of Animals, the Illinois Appellate Court held that statements made by PETA about a dog trainer and her company were non-defamatory.  The statements described plaintiffs as training dogs by placing electronic collars on their genitals and included descriptions that “the Bichon was literally lifted into the air, that’s how strong the shock was.”  The court found that the statements were not actionable because there was “no positive factual statement of cruelty to animals.”  The court noted that plaintiffs’ own literature described that their training methodology included placing multiple electronic collars on dogs’ necks and “hindquarters.”   The court reasoned that if the plaintiffs own literature did not demonstrate “animal cruelty and in fact touts the uniqueness of her dog training” then the PETA statements did not either.  Further, the court found that the statements were substantially true because genitals “reside in the hindquarters of dogs.”  In addition, the court found that the statements could be innocently construed because they were mere reactions and descriptions by witnesses to the training and witnesses could be “disturbed by a wide range of behavior and, therefore, cannot be accused of defamation when that person is reacting to such behavior.”

It could be argued that the fact that the plaintiffs’ use of electronic collars on the dogs’ “hindquarters” is substantively different than an accusation that they placed electronic collars to deliver a shock to dogs’ genitals, and that the latter constitutes criminal animal cruelty and unethical treatment but the former does not.  The statements alleged to be defamatory also raised the number of times a dog was shocked in the course of training.  Thus, another court could have found that plaintiffs’ admissions to using the multiple collar technique did not, in and of itself, show that the defamatory sting was substantially true or demonstrate an innocent construction.

Illinois Court Rejects Heightened First Amendment Protections for Anonymous Internet Speech

On June 1, 2010, the Illinois Appellate Court in Maxon v. Ottawa Publishing Co.reversed a dismissal of a petition seeking the the identity of anonymous comment posters on a newspaper’s website.   The comments implied that the plaintiffs bribed officials to change a zoning ordinance.  The newspaper argued that the poster’s identity was constitutionally protected, but the court found that the First Amendment was not implicated.  Instead, the court ruled that Illinois Supreme Court Rule 224 permits petitioners to seek the identity of the anonymous poster prior to filing a Complaint for the purpose of identifying a potential defendant.  In a defamation action, Rule 224 requires that the potential plaintiff file a verified petition stating why the discovery is necessary and alleging facts with particularity that would establish a cause of action for defamation against the unnamed potential defendant.

Courts in other jurisdictions, such as New Jersey and Delaware, have held that there is a First Amendment right to speak anonymously and therefore require that a petition show: (1) that the poster has been notified of the potential claim so they have the opportunity to appear; (2) the exact statements purportedly made by the anonymous poster; (3) that the allegations meet a prima facie standard and can withstand a hypothetical motion for summary judgment.  This strict test protects the First Amendment right to speak anonymously from being chilled by meritless defamation claims.

However, the Maxon court rejected the argument “that anonymous internet speakers enjoy a higher degree of protection from claims of defamation than the private individual who has a cause of action against him for defamation.”  TheMaxon court found that the requirements of Rule 224 and that a plaintiff state a cause of action through factual allegations was sufficient to require disclosure of the identity of the anonymous poster and that  “once the petitioner has made out aprima facie case for defamation, the potential defendant has no First Amendment right to balance against the petitoner’s right to seek redress for damage to his reputation, as it is well settled that there is no First Amendment right to defame.”

One Justice dissented, reasoning that the greater requirement of demonstrating that the Complaint  would survive a motion for summary judgment “furthers the goal of compelling identification of anonymous internet speakers only as a means to redress legitimate misuses of speech rather than as a means to retaliate against or chill legitimate uses of speech.”

Maxon points to the divergent paths that courts are taking on the issue of anonymous internet posts.  Some courts have favored a First Amendment protection of anonymous speech, while Maxon favored potential plaintiffs seeking relief for defamatory speech.  These conflicting results will likely continue in the absence of additional state supreme court decisions.  Ultimately, the United States Supreme Court may have to address the speech rights of anonymous internet posters.