United States District Court, Northern District of Illinois, E. D
November 18, 1969
ELMER GERTZ, PLAINTIFF,
ROBERT WELCH, INC., DEFENDANT.
The opinion of the court was delivered by: Decker, District Judge.
Plaintiff, a practicing attorney, brings this diversity
action for libel under Illinois law, claiming that defendant
published a magazine article, and reprints thereof,
designating plaintiff as a Communist or Communist sympathizer.
Defendant has moved to dismiss the complaint for failure to
state a claim upon which relief can be granted, or
alternatively, for failure to satisfy the requisite
Plaintiff's complaint alleges that he has been injured in
his professional reputation and practice by defendant's
publications. The alleged defamatory statements include
representations that plaintiff has been an "official of the
Marxist League for Industrial Democracy, originally known as
the Intercollegiate Socialist Society, which has advocated the
violent seizure of our government," that he is "preeminent" in
the "Communist National Lawyers Guild," and that he is a
"Leninist" and a "Communist-fronter."
The complaint generally seeks actual damages of $10,001 and
punitive damages of $500,000 in each of two counts. If the
libel is only a libel "per quod" rather than a libel "per se,"
the complaint would be defective because it fails to allege
special damages which are essential to the maintenance of a
per quod action. See, e. g., Whitby v. Associates Discount
Corp., 59 Ill.App.2d 337, 207 N.E.2d 482 (3d Dist. 1965);
Continental Nut Company v. Robert L. Berner Company,
393 F.2d 283 (7th Cir. 1968). The defendant contends that calling the
plaintiff a Communist amounts only to a libel per quod.
Prior cases have uniformly held that it is libel per se
under Illinois law to falsely label one a Communist. Dilling
v. Illinois Publishing and Printing Company, 340 Ill.App. 303,
91 N.E.2d 635 (1st Dist. 1950); Spanel v. Pegler,
160 F.2d 619, 171 A.L.R. 699 (7th Cir. 1947); cf. Ogren v. Rockford Star
Printing Company, 288 Ill. 405, 123 N.E. 587 (1919).
Recent Illinois Appellate Court cases in two districts have,
however, equated the standards for libel per se with those for
slander per se.*fn1 Assuming that the resultant narrowing of
the libel per se category is now the law of Illinois,
plaintiff's complaint nonetheless establishes a per se case of
defamation, for it meets the requirement that the challenged
statements "prejudic[e] a particular party in his profession
or trade." Whitby v. Associates Discount Corp.,
supra, 59 Ill.App.2d at 340, 207 N.E.2d at 484.
The publication which is here in dispute concerns
plaintiff's participation as counsel in certain law suits, and
therefore reflects primarily and directly upon his profession
and practice of law. As an attorney, plaintiff is an officer
of the court and has sworn to uphold the Constitution and laws
of the United States. Communist doctrine, teaching among other
things the propriety of violent overthrow of American
government, is of necessity inconsistent with this oath and
with the attorney's calling. An allegation of Communist
affiliations must necessarily cast grave doubts upon an
individual's qualification to uphold, apply and interpret our
system of laws, a system opposed by Communist theory.
Cf. Grant v. Reader's Digest Ass'n, 151 F.2d 733 (2d Cir.
1945). The instant charges "impute to him a want of the
requisite qualifications to practice law * * *" and are
therefore actionable per se. Colmar v. Greater Niles Township
Publishing Corp., 13 Ill.App.2d 267, 270, 141 N.E.2d 652, 654
(1st Dist. 1957).
Defendant relies primarily on Ward v. Forest Preserve
District, 13 Ill.App.2d 257, 141 N.E.2d 753 (2d Dist. 1957),
holding that calling one a Communist is not slander per se.
Although that opinion stated that the alleged defamation did
not injure plaintiff in his profession, it nowhere identified
what that profession was and is therefore not dispositive of
the instant case. More analogous is Remington v. Bentley,
88 F. Supp. 166, 171 (S.D.N.Y. 1949), holding that a charge of
Communism injured plaintiff in his profession as an economist.
"It is natural to presume that an economist who is a Communist
adheres to the economic theories of Communism, which are
repugnant to the theories historically accepted in this
Country." And see Maric v. Vukotish, 178 F. Supp. 727 (N.D.Ill.
1959), holding that labeling a person a Communist is slander
Because plaintiff's complaint sufficiently avers a libel per
se, actual and punitive damages may be recovered without
pleading special damages. Accordingly, defendant's challenge
to the jurisdictional amount must fail. See, e. g., Lorillard
v. Field Enterprises, 65 Ill.App.2d 65, 213 N.E.2d 1 (1965).
For the reasons heretofore assigned, an order has been
entered today denying the motion to dismiss.