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Fogus v. Capital Cities Media

OPINION FILED DECEMBER 20, 1982.

THOMAS FOGUS, PLAINTIFF-APPELLANT,

v.

CAPITAL CITIES MEDIA, INC., ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of St. Clair County; the Hon. Thomas P. O'Donnell, Judge, presiding.

JUSTICE WELCH DELIVERED THE OPINION OF THE COURT: Rehearing denied January 18, 1983.

Plaintiff, a Belleville, Illinois, police officer, brought suit in the Circuit Court of St. Clair County to recover damages for the publication of an alleged libel. The defendants are Capital Cities Media, Inc., publisher of the Belleville News Democrat, and Joseph Weiler, an editor of that newspaper. The trial court sustained a motion to dismiss the complaint and entered judgment for the defendants. Plaintiff has appealed.

On August 20, 1979, a news story appeared in the Belleville News Democrat with the headline: "Youths arrested in raid say police abused them." The article is reprinted in full in Appendix A. According to the article, five unnamed youths, who had been among 25 persons arrested in a drug raid, told the newspaper in separate interviews that the plaintiff repeatedly threatened to "bust their * * * teeth out," that he hit at least one youth with a nightstick, and that he refused to allow them to use the bathroom after they arrived at the jail. The chief of police was quoted as denying the charges of physical abuse, saying "That's a goddam lie. No one was roughed up." In addition, three paragraphs were given to the plaintiff's explanation of what transpired:

"Fogus denied all the charges. `Don't ask the kids. Do you think we had 33 happy people back there? There was no police brutality. If they had any gripes they had the mayor and chief of police there to complain to.'

`You fellows always want to believe the kids. Ask the police, they were there.'

He said it was impossible to allow the youths to use bathroom facilities because of the number involved."

On April 29, 1981, the plaintiff filed his first amended complaint alleging that the charges of threats and physical abuse were false and that the defendants either knew they were false or printed the statements in reckless disregard of whether they were true or false.

The plaintiff's first amended complaint contained four counts. Count I charged that the defendant corporation printed false statements about the plaintiff deliberately or with reckless disregard of the truth. Count III made the same charge against editor Joseph Weiler. Counts II and IV stated that the defendants acted in retaliation for the previous arrest on drug charges of Larry Gauthier, defendants' former employee, and/or retaliation for the raid which was directed against drug traffic in Belleville.

The defendants filed a motion to dismiss plaintiff's first amended complaint on May 22, 1981. The defendants argued in their motion, inter alia, that the publication of the article was constitutionally privileged by the first and fourteenth amendments and that the plaintiff's first amended complaint failed to allege facts to support a claim for damages in light of the constitutional protections of the first and fourteenth amendments. In an order entered on July 24, the court granted the defendants' motion to dismiss, holding that the plaintiff's complaint failed to state a cause of action.

• 1 Plaintiff contends on appeal that the statements in the news story are libelous per se since the article falsely imputes the commission of a criminal offense. (Colson v. Stieg (1980), 86 Ill. App.3d 993, 408 N.E.2d 431, aff'd (1982), 89 Ill.2d 205, 433 N.E.2d 246.) To constitute libel per se an article need not state the commission of a crime in terms of art or with the particularity of an indictment. (Makis v. Area Publications Corp. (1979), 77 Ill. App.3d 452, 395 N.E.2d 1185.) In the case at bar, the news story stated that the plaintiff physically abused youths arrested by him during a drug raid. At the least, these statements suggest that the plaintiff committed battery, a crime under the Illinois Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 12-3). Moreover, the defendants suggest no plausible innocent construction of their statements (Chapski v. Copley Press (1982), 92 Ill.2d 344; Catalano v. Pechous (1980), 83 Ill.2d 146, 419 N.E.2d 350), and have not responded in their brief to the plaintiff's argument that allegations of criminal conduct are libel per se.

• 2 Instead, the defendants assert the libel action was properly dismissed for failure to state a cause of action because the news story was constitutionally protected by the doctrine of "neutral reportage." The doctrine of neutral reportage first arose in Edwards v. National Audubon Society, Inc. (2d Cir. 1977), 556 F.2d 113. (See Cianci v. New Times Publishing Co. (2d Cir. 1980), 639 F.2d 54, 67-71.) In Edwards, the New York Times reported that an official of the National Audubon Society had referred to five eminent scientists as "paid liars" because they had disputed the reported harmful effects of the chemical DDT on wildlife. Three of the scientists brought suit against the newspaper and the society, and following a jury trial, the district court rendered judgment for the plaintiffs.

The United States Court of Appeals for the Second Circuit held that the article was protected by the first amendment for two reasons. First, accurate and disinterested reporting of defamatory statements about a public figure by responsible and prominent organizations are protected regardless of the reporter's private views on the validity of the charges. In the alternative, the second circuit held that the plaintiffs had not shown either that the newspaper knew the statements were false or that it had entertained serious doubts about their truthfulness. The second circuit noted that there was not "a shred of evidence from which the jury might have found" that the defendants had entertained serious doubts about the charges, which turned out to be baseless. Edwards v. National Audubon Society, Inc. (2d Cir. 1977), 556 F.2d 113, 120.

The districts of the Illinois Appellate Court are split concerning the constitutional validity of the neutral reportage doctrine. The first district has consistently rejected the doctrine (Tunney v. American Broadcasting Co. (1982), 109 Ill. App.3d 769, 441 N.E.2d 86; Newell v. Field Enterprises, Inc. (1980), 91 Ill. App.3d 735, 415 N.E.2d 434; See also Makis v. Area Publications Corp. (1979), 77 Ill. App.3d 452, 395 N.E.2d 1185 (Romiti, J., dissenting)), while the fourth district has approved of the doctrine (Krauss v. Champaign News Gazette, Inc. (1978), 59 Ill. App.3d 745, 375 N.E.2d 1362). The Illinois Supreme Court has expressly refused to address the issue. Catalano v. Pechous (1980), 83 Ill.2d 146, 170, 419 N.E.2d 350, 362.

In the instant case, we need not rule on the constitutional validity of the neutral reportage doctrine. If the neutral reportage doctrine does survive as a constitutional privilege, or more likely, as a special common law privilege, it would be narrowly limited to a factual situation which is presented when a responsible prominent person or organization makes serious charges against a public figure and those charges are reported in an accurate and disinterested manner. (Comment, Edwards v. National Audubon Society, Inc.: The Right to Print Known Falsehoods, (1979 U. Ill. L.F. 943.) In those cases which have recognized the doctrine, it has been because it applied in this limited manner. In Edwards, the allegations in question were made by an official of the National Audubon Society, "a responsible prominent organization." (Edwards v. National Audubon Society, Inc. (2d Cir. 1977), 556 F.2d 113, 120.) Likewise, in Krauss, the accusations were made by an assistant State's Attorney, a locally prominent figure. (Krauss v. Champaign News Gazette, Inc.) In the instant case, on the other hand, the allegations of police misconduct were made by unnamed youths who had been arrested by police. The doctrine of neutral reportage does not aid the defendants under these facts. Defendants further contend that counts II and IV of plaintiff's complaint should be dismissed because motive is irrelevant under the neutral reportage doctrine, and those counts contain allegations which are relevant only to defendants' motives in publishing the article in question. However, as we have determined that no neutral reportage privilege could exist here, we must also reject this argument.

• 3 Finally, since the plaintiff acknowledges and the case law shows that a police officer is a public official for purposes of first amendment analysis (Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill.2d 257, 239 N.E.2d 837; Angelo v. Brenner (1980), 84 Ill. App.3d 594, 406 N.E.2d 38), we must determine whether the complaint sufficiently alleges actual malice. As a public official, the plaintiff must establish with clear and convincing evidence that the defendants made the allegedly libelous statements with actual malice. (New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710.) Actual malice is defined to mean publication of false statements with actual knowledge that they are false or with reckless disregard for whether or not they are false. (New York Times Co. v. Sullivan.) The concept of recklessness requires a showing by plaintiff that the defendant in fact entertained serious doubts as to the truth of the publication. St. Amant v. Thompson (1968), 390 U.S. 727, 20 L.Ed.2d 262, 88 S.Ct. 1323.

In this regard, bias, ill will, or even hatred of a public official is irrelevant, and only knowing or reckless disregard for the truth is actionable under the New York Times Co. test. (New York Times Co. v. Sullivan.) A mere grudge against a police officer is not sufficient to establish a deliberate or reckless effort to harm the officer with false statements. (Beckley Newspapers Corp. v. Hanks (1967), 389 U.S. 81, 19 L.Ed.2d 248, 88 S.Ct. 197. See also Lancaster v. Daily Banner-News Publishing Co. (1981), 274 Ark. 145, 622 S.W.2d 671 (newspaper executive's grudge against a police officer who had repeatedly arrested his son on drug charges was found insufficient on motion for summary judgment to establish actual malice in connection with the newspaper's editorial allegations of police brutality).) We must emphasize that under some facts, the difference between a mere grudge and an effort to act maliciously might involve a subtle nuance in the evidence. To that end, both the United States and Illinois Supreme Courts> have recently pointed out that proving actual subjective malice is a complicated task. Hutchinson v. Proxmire (1979), 443 U.S. 111, 120 n. 9, 61 L.Ed.2d 411, 422 n. 9; 99 S.Ct. 2675, 2680 n. 9; Catalano v. Pechous (1980), 83 Ill.2d 146, 181, 419 N.E.2d 350, 367 (Clark, J., concurring in part, dissenting in part).

• 4 In the instant case we need only decide the threshold issue of whether the allegations are sufficient to state a cause of action. We must determine whether the complaint sets forth factual allegations from which actual malice may reasonably be said to exist. The bare assertion of actual malice is not enough. (Colson v. Stieg (1982), 89 Ill.2d 205, 433 N.E.2d 246; Arlington Heights National Bank v. Arlington Heights Federal Savings & Loan Association (1967), 37 Ill.2d 546, 229 N.E.2d 514; Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill.2d 257, 239 N.E.2d 837.) In Coursey, a complaint which alleged that the defendants

"`intending to injure the plaintiff's good name and to injure him in his livelihood, with knowledge that [defendant's statement] was false and with reckless disregard to whether it was false or not, maliciously * * * published * * * an article containing false, scandalous and malicious libels concerning the [p]laintiff'"

was held to state a cause of action for libel. Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill.2d ...


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