Appeal from the Circuit Court of Vermilion County; the Hon.
Carl A. Lund, Judge, presiding.
JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:
The plaintiff, Michael Reed, brought this action for libel against the Northwestern Publishing Company, publisher of The Commercial News, a newspaper in Danville, and against two of its reporters, Bob Wilson and Carl Young. Wilson and Young are the authors of allegedly defamatory articles concerning the plaintiff which appeared in The Commercial News. The trial court granted the defendants' motion for summary judgment and later denied the plaintiff's motion to vacate that order. This appeal followed.
The newspaper articles at issue stemmed from a grand jury investigation of burglaries and thefts allegedly committed by several members of the Danville police department during 1970 and 1971. Testimony on this subject was presented to grand juries in several sessions in 1977 and 1978, and a seven-page report summarizing the testimony and the current grand jury's findings was released to the public on December 20, 1978. The next day, The Commercial News published two articles about the investigation and the grand jury report, and other articles on the subject appeared later.
The grand jury report referred to the plaintiff by name twice; he had been a member of the Danville police department during the period under investigation, and he was a member again at the time the articles were published. The dispute here arises from the interpretation that the grand jury report received in the pages of The Commercial News. The plaintiff contends that the report referred to him in a neutral manner but that the newspaper articles portrayed him instead as a participant in the misconduct. In ruling on the defendants' motion for summary judgment the trial court held that the plaintiff, as a police officer, was a public official for purposes of defamation law. Therefore, the court applied to this action the constitutional rule announced in New York Times Co. v. Sullivan (1964), 376 U.S. 254, 279-80, 11 L.Ed.2d 686, 706, 84 S.Ct. 710, 726, which "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." The principal question raised in this appeal is whether summary judgment was properly granted on the issue of actual malice.
According to the grand jury report, 34 unsolved burglaries were committed in Danville in 1970 and 1971; evidence was presented connecting about half the burglaries to members of the police department. The burglaries occurred at night, and the targets were commercial establishments; money, liquor, and other items of merchandise were taken. Former and current members of the Danville police department were among the witnesses who testified before the grand juries. Two former officers, Richard Massey and Jack Roland, who were granted immunity from prosecution in exchange for their testimony, admitted that they had taken part in a number of the burglaries. They described several of the occurrences and named other officers who had participated.
The plaintiff's name was mentioned in the grand jury report twice. The first reference came in the summary of Officer Joseph Miller's testimony; Miller, at the time of his appearance before the grand jury, was a member of the department, as he had been during 1970 and 1971. At some point during those years Miller began to suspect that police misconduct was occurring, and he and several other officers eventually took part in an internal investigation of the problem. Officer Miller described a police burglary of the local American Legion hall, an occurrence in which Massey and Roland admitted their involvement. The grand jury report said:
"Officer Miller described the Legion burglary of December 21, 1970 and how Massey had fortuitously discovered an open window, failed to call it in, met with Officer Hill and returned to the Legion, leaving Miller posted outside. Miller testified that Massey had previously questioned him concerning whether upon finding a place broken into, would he accept something taken by Officers[.] Massey also asked him what his favorite liquor was; to which Miller replied, `Scotch'. After all Officers who initially responded; including: Calvin Norman, Jerry Hill, Jack Roland and Michael Reed, had left, the owner was called to check out the premises. When they left the scene, Officer Miller found a bottle of Scotch under his side of the seat in their squad car."
The other reference to the plaintiff in the grand jury report came in the summary of the testimony of Lieutenant Edwin McGee, who like Miller had taken part in the police department's internal investigation. The grand jury report said:
"Lt. Edwin McGee testified as to his responding to the August 25, 1971 burglary at Harding's Pharmacy where he found Officers Hill and Reed at the scene with Roland and Massey showing up later. His investigation of the scene, specifically including the watch case and shaver display showed nothing to be missing or disturbed, however, when he read the report submitted the next day by Hill, it showed watches, shavers and radios to have been taken along with a large amount of cash."
On December 21, 1978, the day after the grand jury report was made public, The Commercial News published photographs and two articles relating to the investigation and report. The caption "Current Officers Implicated in Report" appeared under photographs of the plaintiff and of two other members of the Danville police department, Robert Testa and Arnold Yanders, and of a county deputy sheriff, Kenneth Cox. A caption appearing below that said, "Four current law officers Arnold Yanders, Robert Testa, Michael Reed and Kenneth Cox were named by grand jury witnesses as joining in at least one or a few of the reported break-ins by policemen." In an article bearing the headline "Grand Jury Describes Police Burglary Setup," defendant Bob Wilson referred to the involvement of Roland and Massey in several burglaries and then wrote:
"Massey, Roland and several other witnesses at the grand jury sessions identified other officers involved, too.
They included former policemen Jerry Hill and Richard Moody and current officers Sgt. Robert Testa, patrolman Arnold Yanders, patrolman Mike Reed, and former patrolman Kenneth Cox, who is now a county deputy."
The article went on to say, "Lt. Edwin McGee also testified about the Harding Pharmacy burglary, saying he came on the scene and found Hill, Roland, Massey and Officer Mike Reed inside but without their flashlights turned on." An article accompanying this one bore the headline "3 Deny Roles in Burglaries." It quoted the plaintiff as saying, "I didn't know a thing about [the police burglaries] and I can't say anything about it." This article also said, "Grand jury ...