Tag Archives: Defamation

Illinois Broadens Scope of Publication Liability in Defamation Cases to Include Reasonably Forseeable Unauthorized Repetitions

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.

High School Basketball Coach Loses Defamation SLAPP Suit

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.

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.

Phil Zisook on CBS News – Chicago

Speech Law Blog contributor Phil Zisook was interviewed by CBS News-Chicago for his impressions on a new lawsuit filed by a business owner against a reviewer who gave his services an “F” on angieslist.com.  Read the story here and see the video here.

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.

Illinois Supreme Court Approves Significant Reduction of Punitive Damages in Defamation Case

In Slovinski v. Elliot, a default judgment was entered in favor of the plaintiff in his defamation action.  The case proceeded to a jury trial on damages.  The jury returned an award for the plaintiff of $81,600 for emotional distress, no damages for reputational injury and $2 million in punitive damages.  The trial court reduced punitive damages to $1 million.  On appeal, the court affirmed the default judgment and the emotional distress award.  Significantly, the appellate court further reduced the punitive damage award to $81,600.  The statements at issue were made to one of the defendant’s suppliers that financial statements were not available because plaintiff had not completed them, that plaintiff was not doing his job, was coming in late and leaving early, that plaintiff snuck off for workouts and “spent his time chasing pussy all day.”

On appeal to the Illinois Supreme Court, the plaintiff argued that the initial reduction was inappropriate since the trial court did not provide specific reasons for reducing the award.  On April 15, 2010, the Supreme Court found that the question is whether there is a basis in the record to support the order, not whether specific grounds for reduction are articulated.  In this regard, the Court found that contrary to the plaintiff’s argument, there was no evidence supporting the theory of a premeditated scheme to defame.  Rather, at most, there was a reckless disregard for the plaintiff’s rights, which the Supreme Court found was “on the low end of the scale for punitive damages, far below those cases involving a defendant’s deliberate attempt to harm another person.”  In addition, the Supreme Court found that the statements were not repeated, but stated merely once in a meeting to a limited number of persons.  Further, the Supreme Court emphasized that the jury returned no award for reputational injury.  Thus, the Supreme Court found that even the trial court’s remittitur to $1 million constituted an abuse of discretion and there was no basis in the record to support such an award and affirmed the appellate court’s reduction of punitive damages to $81,600.

Slovinski is probably limited to its particular facts. In a case with a significant reputational injury and more widespread publication, the defendants would likely have a more difficult time justifying such a drastic reduction of the damages found to be appropriate by a jury.

Illinois Appellate Court Adopts Fiduciary Shield Doctrine in Defamation Case

In Femal v Square D Company, the Illinois Appellate Court applied the fiduciary shield doctrine to determine whether the trial court had personal jurisdiction over the defendant.  In Femal, the attorney for Rockwell International, a Wisconsin corporation, traveled to Illinois to explore the possibility of a settlement between Rockwell and another corporation in a patent infringement case.  In the course of that meeting, the attorney purportedly made statements accusing Femal, an employee of the other corporation, with certain ethical violations which Femal claimed led to his termination.  Femal sued the attorney for defamation.  The attorney claimed that the court lacked personal jurisdiction since he did not reside or do business in Illinois and only traveled to Illinois for the settlement conference on behalf of his Wisconsin employer.  The court, citing the Illinois Supreme Court’s decision in Rollins v. Ellwood, a kidnapping case, found that the fiduciary shield doctrine prevents courts from asserting jurisdiction over a person on the basis of acts by that person not on his own behalf, but on behalf of his employer.  The court found that it would be unfair and unreasonable under Illinois’ due process clause to assert jurisdiction over an individual whose sole contacts with the state were a consequence of his acting on behalf of his employer.  Ultimately, the court found that there were questions of fact as to whether the defendant acted out of personal interests or solely in the interests of his employer and ordered an evidentiary hearing on the issue.  Femal provides an important defense for individual defamation defendants whose statements were made in the course of their employment.  There is contrary Illinois authority which could support arguments that jurisdiction existed since the defendant’s tortious conduct occurred in Illinois and the plaintiff’s injury occurred in Illinois.  Also, there is authority from the Illinois Supreme Court’s decision in Van Horne v. Muller, that whoever participates in the publication of a defamatory statement is liable for defamation.  However, Femal provides an important defense to out of state defendants who can show that their statements were made in the course of their employment duties.

Illinois Appellate Court Finds that First Amendment Bars Priest’s Defamation Case

In Stepek v. Doe, the Illinois Appellate Court found that the First Amendment’s free exercise of religion clause barred the defamation claim of a Catholic priest against two brothers who charged that he abused them 25 years earlier.  The court adopted the rationale of the Massachusetts Supreme Court in Hiles v. Episcopal Diocese of Massachusetts, where the court found that “The First Amendment’s protection of internal religious disciplinary proceedings would be meaningless if a parishioner’s accusation that was used to initiate those proceedings could be tested in a civil court.”  Because the brothers’ accusations arose in the course of a church disciplinary decision, the court found that exercising subject matter jurisdiction would “require the secular court to involve itself in the regulation of ecclesiastical activity.”  Accordingly, the court held that the First Amendment barred the trial court from exercising jurisdiction.

Stepek presents a departure from prior Illinois law where the First Amendment inquiry focused upon whether a controversy involving a church could be determined without reference to ecclesiastical doctrine or church law.  Prior cases involving alleged improper sexual activity by clergy were held not to implicate the First Amendment because the matters were determined by application of neutral principles of law.  Biven v. Wright (allegations of improper sexual conduct in the course of religious counseling).  Moreover, unlike the Hiles case relied upon by the court, Stepek involved allegations of criminal conduct, over which secular courts unquestionably have an interest.  In addition, in Stepek, the Church’s own written procedures and policies required the reporting of accusations of the abuse of minors by clergy to secular prosecuting and investigative authorities.  Thus, in Stepek, it was argued that determination of the defamation claim would not involve interpretation of church doctrine or review of church discipline.  The court’s focus upon the forum in which the statements were made rather than whether the truth or falsity of the statements at issue can be determined without interpreting religious criteria will make it harder for defamation plaintiffs to proceed where their claims are based, in part, on statements made in a religious forum.

Former Virgin Islands Judge Wins Defamation Case Against Newspaper and Reporters

On March 16, 2010, a jury in the Superior Court of the U.S. Virgin Islands in St. Thomas returned a verdict in favor of retired U.S. Virgin Islands Superior Court Judge, Leon Kendall, finding that Judge Kendall was defamed in articles published by the V.I. Daily News.  The jury returned a verdict in the amount of $240,000, finding that the articles were published with actual malice.  The 16 articles in question reported on Judge Kendall’s bail decisions involving criminal defendants and charged, in substance, that Judge Kendall released violent criminals out on bond and gave them the opportunity to commit further violent crimes, including, in one case, the murder of a 12 year old girl.  As a consequence of the newspaper’s allegations, a vigorous campaign was initiated in the community calling for Judge Kendall’s resignation.  However, the evidence showed that no history of violent conduct or propensity to engage in violent conduct had been presented to Judge Kendall at the time of the bail hearings.  In addition, despite Judge Kendall’s presiding over more than 600 bail decisions, none was ever appealed by prosecutors. Moreover, 98% of the defendants who were let out on bond fully complied with the conditions and terms of the bail orders.  The jury agreed with the plaintiff that defendants published false and defamatory statements with actual malice.  The newspaper has stated that it intends to appeal the judgment.

The case is the second in recent years where a judge has prevailed in a defamation lawsuit based upon media statements critical of  judicial conduct and overcoming the actual malice standard applicable to public officials.  In 2007, Justice Robert R. Thomas, of the Illinois Supreme Court, was awarded a $7 million dollar jury verdict (subsequently reduced), arising from critical statements appearing in a local newspaper.

Illinois Reaffirms that Statements Made to Law Enforcement Personnel Are Protected by an Absolute Privilege

In Morris v. Harvey Cycle and Camper, Inc., the court reaffirmed that Illinois absolutely protects statements made to law enforcement officials from claims of defamation.  The court noted that the majority of states afforded at most a qualified or conditional privilege to such statements  and that many jurisdictions had abandoned absolute privilege in favor of a conditional privilege, which would be lost in the event of a direct intent to injure or constitutional malice.   The court noted that most of the prior Illinois decisions affording an absolute privilege to statements made to police personnel were analogous to absolutely privileged statements made in the course of or preliminary to judicial proceedings.  In Morris, the facts suggested that the statements were made not to commence legal proceedings, but to use strong arm tactics by car dealer personnel to recover a car without refunding the plaintiff’s down payment.

The motivation for the making of the statement, however,  is irrelevant when an absolute privilege applies.  Therefore, the statements made to law enforcement could not form the basis of a defamation action and the claim was dismissed.