APPEAL from the Circuit Court of Cook County; the Hon.
NICHOLAS J. BUA, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
This appeal arises from a suit for alleged defamation based on certain statements made by the defendant, Woods, concerning the plaintiff, during the course of a television "talk show" broadcast on Station WBKBTV, a wholly owned subsidiary of the defendant, American Broadcasting Companies, Inc. (hereinafter referred as ABC). The trial court entered summary judgment on behalf of the defendants, and the plaintiff has brought this appeal. The plaintiff contends that the summary judgment was improperly entered and argues that (1) he has sufficiently pleaded actual malice as is required in New York Times Co. v. Sullivan (1964), 376 U.S. 254, (2) he is not required to plead and prove special damages in this action, and (3) there was a triable issue of fact in existence in the trial court. The defendants argue, in support of the summary judgment entered by the trial court, that the record discloses the allegedly defamatory statements were not made with actual malice, that the plaintiff must show special damages in order to recover, and that there is no triable issue of fact in this case. Defendant ABC further argues that regardless of the disposition of the case as to defendant Woods, summary judgment should have been granted in favor of ABC.
We affirm in part, reverse in part and remand.
The relevant facts are as follows: In October, 1966, the defendant Woods was a candidate for the office of sheriff of Cook County. In connection with that campaign, he appeared on a television "talk show" on October 16, 1966. During the course of the broadcast Woods, in response to a question regarding complaints about Chicago Police Department personnel that he had received while he was chief investigator for the Better Government Association, stated:
"During the traffic court scandal I'll tell you one exactly when we tailed Mr. Weber in the let's see, that was one of the cases Municipal Court Bailiff. His brother was in the records department of the police department. Allegedly he had never been arrested before the man we were tailing. No wonder, his brother was in there and had removed it and I got a letter from the police department that he had removed others, he flunked the lie detector test, and they had put him out to pasture."
Mr. Weber's brother, referred to in the above quotation, is the plaintiff in this action.
Subsequently, the plaintiff initiated a lawsuit alleging that Woods and ABC had maliciously published defamatory falsehoods, the commonly understood meaning of which was that the plaintiff had, by removing certain criminal records from the Chicago Police Department, committed two separate criminal offenses, that of tampering with public records (Ill. Rev. Stat. 1965, ch. 38, par. 32-8) and official misconduct (Ill. Rev. Stat. 1965, ch. 38, par. 33-3).
From the complaint and further pleading filed in response to the defendants' motion for summary judgment, the following facts were also before the trial judge when he entered judgment for the defendants. The plaintiff was a Chicago police officer assigned to the department's records and communications division from 1962 to 1964. On July 20, 1964, Woods, as chief investigator for the B.G.A., received an anonymous telephone call complaining the the plaintiff, and others, were destroying Chicago Police Department arrest records of Chicago hoodlums in exchange for money. Woods transmitted this information to Joseph Morris, deputy superintendent of the Police Department, by letter on the same day. In connection with their investigation of the complaint, the Police Department requested the plaintiff to take a polygraph test.
In his deposition submitted as part of the motion for summary judgment, Woods stated that he had a conversation with Morris in which Morris had told him that Weber had failed the polygraph examination, that certain arrest records had been removed from Police Department files, and that in Morris' opinion the records had been removed by Weber.
Subsequently, a summary of the Police Department investigation was sent to Woods and retained for the B.G.A. files. This report indicated that although Weber had denied removing, or having any part in the removal of Police Department files, in the opinion of the polygraph examiner, Weber had not been truthful in that denial. However, the report concluded that in the opinion of the investigating officer "the allegations are not sustained, in that there is not sufficient evidence to support them." The report was initialed by Woods with a filing notation "File as unit Chicago Police Dept.," and this was the end of the matter until Woods, in October, 1966, made the televised statement that is the basis of this suit.
The plaintiff argues that this report proves that the televised statement made by Woods was made with actual malice in that Woods knew the statement was false or had reckless disregard for the exculpatory material contained in the report from the Police Department. The award of summary judgment, based upon the above facts, presents the following issues for our review.
First, the plaintiff argues that, if he is required to do so, he has sustained the burden of pleading that the defendant's alleged defamation was made with actual malice. The defendants argue that the plaintiff, as a police officer, is required to show actual malice but that he has failed to do so. The issue, then, is whether the plaintiff is a "public official" within the meaning of that term as it is used in New York Times Co. v. Sullivan (1964), 376 U.S. 254, and its progeny, Rosenblatt v. Baer (1966), 383 U.S. 75; Time, Inc. v. Hill (1967), 385 U.S. 374; Rosenbloom v. Metromedia, Inc. (1971), 403 U.S. 29, and if so, whether he has sustained the burden placed upon him by those cases of showing that the alleged defamation was made with actual malice.
• 1 In Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill.2d 257, 239 N.E.2d 837, a patrolman on a municipal police force brought suit against a local newspaper alleging he had been defamed by the defendant. There the court held that a patrolman, although the lowest rank of police official, has duties which are peculiarly "governmental" in character and highly charged with the public interest and therefore belongs to that class of persons that was intended to be barred from maintaining an action for defamation, under the New York Times decision, unless he could satisfy constitutional standards by showing that the defendant's 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. 254, 279-80.) Clearly, the plaintiff in the instant case, a police officer in October, 1966, was a "public official" as that term is used in New York Times v. Sullivan.
• 2 The additional question then, is whether the plaintiff's complaint in this case sufficiently alleged the existence of actual malice, within Illinois pleading standards. The Illinois cases hold that the complaint must "set forth factual allegations from which actual malice may reasonably be said to exist as opposed to the bare assertion of actual malice." (Arlington Heights National Bank v. Arlington Heights Federal Savings & Loan Association (1967), 37 Ill.2d 546, 551, 229 N.E.2d 514.) In Coursey, a complaint alleging libel was held sufficient which averred that the defendant's "* * * `intending to injure the plaintiff's good name and to injure him in his livelihood, with knowledge that it was false and with ...