APPEAL from the Circuit Court of Cook County; the Hon. HENRY
W. DIERINGER, Judge, presiding.
MR. CHIEF JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
The principal issue in this case concerns the scope of the restrictions imposed by the first and fourteenth amendments of the Federal constitution upon the power of a State to afford tort remedies for harm caused by spoken or written words.
Plaintiff, Myrtle S. Farnsworth, an osteopathic physician holding a limited license issued by the State of Illinois, brought a libel action against the Tribune Company, publisher of the Chicago Tribune, and against Norma Lee Browning, a feature writer and reporter for the newspaper, based upon the publication of three articles on December 3, 4 and 7, 1961, which allegedly libelled and defamed her in her professional capacity. She claims that the articles, which, among other things, labelled her as a "quack", caused her practice to diminish and disappear, making it necessary for her to withdraw from the practice of her profession and that she was thereby damaged in the amount of $1,000,000. She also alleges that the allegations of the articles with respect to her were untrue and known by defendants to be false, alleges actual malice on the part of both defendants and seeks $1,000,000 exemplary and punitive damages.
Defendants admit the publication of the articles, but urge that plaintiff is not entitled to recover because the articles are a privileged and non-actionable exercise of the right to report and comment upon matters of public interest and concern, both at common law and under the free speech and press guarantees of the Federal constitution and section 4 of article I of the Illinois constitution. Additionally it is argued that the articles are a privileged and non-actionable exercise of the right to publish the truth both at common law and under the free speech and press guarantees of the constitutions.
The case was tried before a jury in April, 1968, and resulted in a not-guilty verdict upon which judgment was entered. A direct appeal was taken to this court on the ground that the trial court expressly refused to instruct the jury in accordance with the provisions of the Illinois constitution and defendants concede the presence of constitutional questions.
Plaintiff contends that the jury was improperly instructed as a result of the trial court's refusal to give an instruction based on section 4 of article II of the Illinois constitution that "Truth is a defense in a libel action only when published with good motives and for justifiable ends." Further, she contends the instructions which were given shifted the burden from defendants to prove that the articles were true and well motivated and forced the plaintiff to prove that the articles were false. The given instructions were based upon the trial court's understanding of the holdings in New York Times v. Sullivan (1964), 376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710, and its progeny.
Plaintiff argues that the court should have given her offered instruction, based upon the Illinois constitution, that truth is a defense in a libel action only when published with good motives and for justifiable ends.
Defendants reply that an instruction requiring them to prove the truth of the articles and that publication was for good motives and justifiable ends is constitutionally improper under the holdings of New York Times and later United States Supreme Court cases.
In New York Times the court held that "The constitutional guarantees [of freedom of speech and press] require * * * a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice' that is, with knowledge that it was false or with reckless disregard of whether it was false or not." (376 U.S. at 279-80, 11 L.Ed.2d at 706, 84 S.Ct. at 726.) The case overturned the Alabama law that in actions involving libel per se malice was implied and need not be proven.
In Garrison v. Louisiana (1964), 379 U.S. 64, 13 L.Ed.2d 125, 85 S.Ct. 209, the court held constitutionally invalid the Louisiana criminal libel statute insofar as it directed punishment for true statements regarding official conduct of public officials made with actual malice. The court stated: "Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned." 379 U.S. at 74, 13 L.Ed.2d at 125, 85 S.Ct. at 216.
In Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, 18 L.Ed.2d 1094, 87 S.Ct. 1975, the scope of the protection established in New York Times regarding defamation of public officials was extended to include "public figures" who are involved in issues in which the public has a justified and important interest.
It is therefore clear that the article II, section 4 provisions of the Illinois constitution that truth is a defense in a libel action only when published with good motives and for justifiable ends (Ogren v. Rockford Star Printing Co., 288 Ill. 405), when applied to defamation of "public officials" or "public figures", is incompatible with the Supreme Court's interpretation of the scope of the first amendment guarantees of the Federal constitution. Accordingly, if the plaintiff is a "public figure" or if, as hereinafter discussed, the articles contain matters of public interest and concern so that the Federal constitutional safeguards apply, the trial court was correct in refusing to give the plaintiff's instruction based upon section 4 of article II.
Plaintiff argues that none of the aforementioned cases would extend the constitutional protection to the articles in the present case, and claims that she is not a "public official" as that term has been defined in New York Times; Garrison; Rosenblatt v. Baer (1966), 383 U.S. 75, 15 L.Ed.2d 597, 86 S.Ct. 669, and St. Amant v. Thompson (1968), 390 U.S. 727, 20 L.Ed.2d 262, 88 S.Ct. 1323. With this much we agree. She distinguishes herself from the "public figures", Butts and Walker, because, unlike these plaintiffs, she was not known to the public prior to the articles, she did not invite the articles, and she had no recourse against the allegations of the articles other than this suit. However, this does not mean that the rationale of those and other cases is not applicable here.
In our judgment the scope of the "public figure" classification must be determined by an examination of the underlying rationale of the first amendment protection involved. The cases have seemed to establish that "the question is whether a public issue, not a public official [or public figure], is involved." (Rosenblatt v. Baer, 383 U.S. 75, 91, 15 L.Ed.2d 597, 609, 86 S.Ct. 669, 678 (concurring opinion).) In Butts, Justice Harlan expands the basic rationale. He states: "In Time, Inc. v. Hill, 385 U.S. 374, at 388, we held that `[t]he guarantees for speech and press are not the preserve of political expression or comment upon public affairs * * *' and affirmed that freedom of discussion `must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.' Thornhill v. State of Alabama, 310 U.S. 88, 102. This carries out the intent of the Founders who felt that a ...