Appeal from the Circuit Court of Cook County; the Hon.
Nicholas J. Bua, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 22, 1976.
The plaintiff, Mary Troman, filed this action in the circuit court of Cook County to recover actual damages from Kingsley Wood, a reporter for the Chicago Sun-Times, and Field Enterprises, Inc., the publisher of that newspaper. The complaint alleged that the plaintiff suffered injury to her reputation caused by the publication of an article in the Chicago Sun-Times on August 26, 1973. Although the article appeared over the by-line of Wood, he was dismissed from the case pursuant to a stipulation between the other parties, and the sole defendant is Field Enterprises, Inc.
The defendant's motion to dismiss the complaint was granted, and we have transferred the plaintiff's appeal to this court under Rule 302(b).
The newspaper article related to a series of burglaries and other criminal activites by a gang of youths operating in an area on the northwest side of Chicago, and to actions taken by a local community group to counteract the gang's activities by encouraging witnesses and victims of crimes to sign complaints and to attend the ensuing court proceedings.
In the course of the article one local resident was quoted as stating to the reporter, "Ten years ago, I became very friendly with the family that moved into what became the gang headquarters." A second resident was quoted as stating, "The gang stole us blind. One time after my husband had paid them for painting and stripping his basement, he returned home to find one TV set gone. You know where it was? It was in the basement of the gang house."
Although it had not appeared in earlier editions of the paper, in one edition the article carried a photograph of a house which bore the following caption: "Home of Mrs. Mary Troman at 5832 N. Wayne. Thomas Troman testified that he is a member of the gang." The article did not specify the relationship of Thomas Troman to the plaintiff, nor did either the article or the caption expressly identify plaintiff's home as the location of gang headquarters. The complaint alleged, however, that the article and the picture, taken together, were understood by readers as meaning that the plaintiff's home served as headquarters for the gang, and that the plaintiff was in some manner associated with the gang.
The central issue on this appeal concerns the standard of liability which should be imposed for libel in the light of the recent decision of the Supreme Court of the United States in Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 41 L.Ed.2d 789, 94 S.Ct. 2997. Before taking up that issue, however, we consider the claim, advanced as one ground of defendant's motion to dismiss, that the article was not "of and concerning" the plaintiff.
In our opinion the reference to the plaintiff by name and the photograph of a house identified as her residence compel the rejection of defendant's contention. Unlike John v. Tribune Co. (1962), 24 Ill.2d 437, no question arises here as to the identity of the person referred to by the article. Whether the article was in fact understood by readers to refer to the plaintiff might ultimately be a question for the jury, should there be controversy on that matter. But the preliminary determination whether the article is capable of being so understood is a question of law which must, upon the motion to dismiss in this case, be resolved in favor of the plaintiff. (Cf. Ogren v. Rockford Star Printing Co. (1919), 288 Ill. 405, 413-414; Restatement of Torts, Second, Tentative Draft No. 21, April 5, 1975, sec. 613(1)(c), Comment d.) We reach the same conclusion with respect to defendant's claim that the article is not defamatory of the plaintiff. If the article were read as meaning that the plaintiff allowed her house to be used as a headquarters for persons engaging in criminal acts or for storage of stolen goods, it can hardly be doubted that her reputation would be injured. Whether the article was in fact so understood is a question which must await the presentation of evidence.
We reach, then, the question whether the complaint states a cause of action for defamation in the light of the applicable constitutional limitations laid down by the Supreme Court. Prior to New York Times Co. v. Sullivan, 376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710, decided in 1964, a defamatory publication concerning another rendered its publisher liable, under common law principles, on a basis of strict liability. Neither lack of malicious intent nor the absence of negligence on defendant's part constituted a defense. See Restatement of Torts (1938), sec. 580; Prosser, Law of Torts, sec. 113 (4th ed. 1971).
In the New York Times case, however, the Supreme Court held that the freedom of the press guaranteed by the first amendment to the Federal Constitution "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 279-280, 11 L.Ed.2d at 706, 84 S.Ct. at 726.
Later decisions extended this requirement of proof of actual malice to suits for defamation brought by persons who were candidates for public office and to statements which might not relate to official conduct but did relate to fitness for office (St. Amant v. Thompson (1968), 390 U.S. 727, 20 L.Ed.2d 262, 88 S.Ct. 1323; Monitor Patriot Co. v. Roy (1971), 401 U.S. 265, 28 L.Ed.2d 35, 91 S.Ct. 621; Ocala Star-Banner Co. v. Damron (1971), 401 U.S. 295, 28 L.Ed.2d 57, 91 S.Ct. 628), and to suits by persons, who, although neither officials nor candidates, were in some sense "public figures." (Curtis Publishing Co. v. Butts and Associated Press v. Walker (1967), 388 U.S. 130, 18 L.Ed.2d 1094, 87 S.Ct. 1975.) Finally, in Rosenbloom v. Metromedia, Inc. (1971), 403 U.S. 29, 29 L.Ed.2d 296, 91 S.Ct. 1811, a three-man plurality of the Supreme Court took the further step of applying the New York Times standard to suits brought by private persons who were neither public officials nor public figures, so long as the defamatory statement was made in the course of a report about matters of general or public interest in which the plaintiff had become involved.
New York Times Co. v. Sullivan, Curtis Publishing Co. v. Butts, and other decisions of the court also made it clear that the "reckless disregard" variant of actual malice meant more than a failure to investigate, and required "sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." (See St. Amant v. Thompson (1968), 390 U.S. 727, 731, 20 L.Ed.2d 262, 267, 88 S.Ct. 1323.) In the course of its decisions, moreover, the court has described the burden on the plaintiff of proving actual malice in very stringent terms, stating that proof of actual malice must be made "with convincing clarity" (Rosenbloom v. Metromedia, Inc. (1971), 403 U.S. 29, 55, 29 L.Ed.2d 296, 318, 91 S.Ct. 1811), a standard which ...