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Colson v. Stieg





Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of De Kalb County, the Hon. Carl A. Swanson, Judge, presiding.


Rehearing denied March 25, 1982.

John Calvin Colson filed suit in the circuit court of De Kalb County charging that the defendant, Lewis Stieg, had published certain defamatory remarks about the plaintiff's performance of his duties as an assistant professor in the Department of Library Science at Northern Illinois University. Lewis Stieg was chairman of the department. The plaintiff was first employed by Northern Illinois University in 1975 and had served in the capacity of assistant professor since that time. He had moved from Denver, Colorado, to accept a position at Northern with the expectation that he would be granted tenure; however, his request for promotion and tenure status was denied.

The complaint alleged that the defendant made two defamatory statements attacking the plaintiff in his profession, which, it is alleged, were therefore slanderous per se. (See Whitby v. Associates Discount Corp. (1965), 59 Ill. App.2d 337, 340; Prosser, Torts § 112, at 754-60 (4th ed. 1971).) The first statement allegedly made by the defendant was:

"I have information I cannot divulge which reflects adversely on John's performance as a teacher."

The second statement allegedly made by the defendant was:

"I have counseled John many times about his teaching and the documents which would prove the counseling are missing from the department files under suspicious circumstances."

In response to a demand for a bill of particulars, the plaintiff stated that the first words complained of were spoken on October 3, 1977, at a meeting of the Department of Library Science Personnel Committee assembled for the purpose of evaluating John Colson's performance as an assistant professor and for recommendations regarding his application for tenure and promotion. The second statement was made on April 4, 1978, before the University Council Personnel Committee assembled to consider plaintiff's appeal from the Department's recommendation that tenure and promotion be denied.

The trial court granted the defendant's motion to dismiss the plaintiff's first amended complaint for failure to state a cause of action. On appeal, the appellate court held that the first statement complained of was slanderous per se, incapable of an innocent construction, and actionable despite a qualified privilege because the plaintiff had properly alleged malice. The appellate court held that the second statement was reasonably capable of conveying an innocent meaning and therefore was not actionable. Since the amended complaint had stated a cause of action for defamation based upon the first statement, the trial court's order was reversed in part and the cause remanded for further proceedings. (86 Ill. App.3d 993.) We granted leave to appeal. 73 Ill.2d R. 315(a).

The correctness of the appellate court's holding as to the second statement has not been raised in this court. We are therefore concerned on this appeal only with defendant's first statement. The defendant contends the statement was absolutely privileged or, alternatively, that it is capable of being innocently construed as one of opinion. The plaintiff insists that the statement was made only under a qualified privilege, that it was a factual assertion, maliciously made, and that it constituted slander per se in that it damaged plaintiff in his profession.

The circumstances surrounding the making of the statements in question are not such as to require the protection of an absolute privilege, but instead, come within the accepted areas to which a qualified privilege has been extended. (See Prosser, Torts § 115, at 785 (4th ed. 1971).) However, the classification of the privilege is of little help in determining whether or not the defendant's statement is actionable or whether the allegations of the complaint state a cause of action.

Since the 1964 Supreme Court decision in New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710, a large area of the law concerning privileges has been taken over and altered by first amendment constitutional considerations. (See generally Schaefer, Defamation and the First Amendment, 52 Colo. L. Rev. 1 (1980).) As a result, the scope of the privileges in the law of defamation has been broadened beyond that within which they had previously been recognized. (Prosser, Torts § 118, at 819 (4th ed. 1971).) The New York Times holding has essentially replaced the common law qualified privilege which was stated in the terms of "fair comment" upon public figures and public employees. The "fair comment" common law privilege was not limited to public discussion of public officials or figures, but also extended to the discussion of matters of public concern. Professor Prosser has stated that there is no reason the constitutional privilege of New York Times should not be extended to all matters of public concern. (Prosser, Torts § 118, at 823 (4th ed. 1971).) This court has, to a degree, extended the holding of New York Times in that direction.

In Farnsworth v. Tribune Co. (1969), 43 Ill.2d 286, a newspaper article had referred to an osteopathic physician as a "quack." This court acknowledged that the plaintiff was not a public official or a public figure, but held that the controlling question is whether a public issue, not a public official or public figure, is involved. After considering several Supreme Court cases, this court stated that the factor triggering ...

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