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O'donnell v. Field Enterprises

OPINION FILED MARCH 26, 1986.

JAMES G. O'DONNELL, PLAINTIFF-APPELLANT,

v.

FIELD ENTERPRISES, INC., ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Alan E. Morrill, Judge, presiding.

PRESIDING JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:

This is an appeal from the dismissal of plaintiff James G. O'Donnell's libel action filed in 10 counts against defendants Field Enterprises, Inc., James Hoge, Ralph Otwell, Gregory E. Favre, Lois Wille, Jim Casey, Maurice Possley, Tom Page Seibel, Michelle Stevens, Pat Wingert, Jonathan Landman, Hanke Gratteau, Chicago Tribune Company, Stanton R. Cook, James D. Squires, Charles T. Brumback, William H. Jones, Lynn Emmerman, Thomas Powers, CBS Inc. and Walter Jacobson. The individually named defendants are or were officers, editors or reporters for the respective corporate defendants. We affirm.

During 1981, the Federal Drug Enforcement Administration (DEA) and the Organized Crime Division of the Chicago Police Department (OCD) conducted a joint investigation of unlawful drug activities in the city of Chicago. The joint investigation was given the code name Operation Top Brass.

As a result of Operation Top Brass, on October 13, 1981, the Federal government indicted plaintiff, a medical doctor, in six counts for unlawfully distributing a controlled substance, phendimetrazine. Another medical doctor was indicted in seven counts for unlawfully distributing phendimetrazine. A pharmacist was indicted in five counts for unlawful possession with intent to distribute Talwin tablets. Another pharmacist was charged in a 26-count criminal information with unlawful possession with intent to distribute Talwin tablets and glutethimide, a water insoluble powder used as a hypnotic and sedative. Talwin, when mixed with the blue colored amphetamine pyribenzamine, is known as "T's and Blues," a heroin substitute. On the same day, also as a result of Operation Top Brass, a Cook County grand jury returned indictments against 75 persons for unlawfully dealing in drugs. Many of the persons indicted were members of a Chicago street gang known as the El Rukns.

The United States Department of Justice, through the United States Attorney for the Northern District of Illinois, Dan K. Webb, made an official public announcement of the Federal indictments on October 13, 1981. At about the same time, the Chicago Police Department OCD made several arrests stemming from Operation Top Brass. Later in the day, an OCD police sergeant brought some of the people who were arrested to the narcotics section at police headquarters. The suspects were taken to a processing room where many news media reporters were gathered. There, the sergeant provided information concerning the arrests and Operation Top Brass to the news media reporters. Included in the information was the fact that plaintiff had been indicted as part of the joint Federal and local investigation.

Based upon the information that the news media reporters obtained from both the Federal and local governmental and public proceedings, on October 14 through October 16, 1981, the Chicago Tribune and the Chicago Sun-Times newspapers printed news headlines and articles regarding Operation Top Brass. The articles included the fact that plaintiff was indicted as part of the special drug investigation. On October 13 and October 14, Walter Jacobson, a newscaster for CBS affiliate WBBM-TV, also reported about the events of the Operation Top Brass investigation and the resulting indictments and arrests. The relevant newspaper articles are included as exhibits to plaintiff's amended complaint, and they are reproduced here as an appendix. However, the complaint does not allege or quote any specific statements that were made by Jacobson during his televised newscasts. In March 1982, plaintiff was tried on the six-count indictment in the Federal district court, and he was found not guilty on all counts. Thereafter, plaintiff filed this libel action.

We agree with plaintiff that his complaint sufficiently alleges that the statements about him in the newspaper articles are factually false and defamatory. However, we believe that what is at issue here is not whether the news media reports are factually false, but whether defendants are protected from a libel action by a privilege based upon the news media's first amendment right to report governmental and public proceedings that deal with matters of public concern. See Cox Broadcasting Corp. v. Cohn (1975), 420 U.S. 469, 495, 43 L.Ed.2d 328, 349-50, 95 S.Ct. 1029, 1046.

• 1 Plainly, the news media's constitutional right to report governmental and public proceedings is rendered ineffectual unless the right is expansive enough to enable the news media to report news from the proceedings untrammeled by the specter of a libel action. Thus, there is a special privilege that protects the news media from libel actions when it publishes information obtained from governmental and public proceedings that deal with matters of public concern. Restatement (Second) of Torts sec. 611 (1977); *fn1 see Cox Broadcasting Corp. v. Cohn (1975), 420 U.S. 469, 495-96, 43 L.Ed.2d 328, 349-50, 95 S.Ct. 1029, 1046-47.

While the privilege is not absolute, it is broader in scope than the qualified or conditional privileges that are a part of the law of libel. *fn2 Thus, the privilege exists even though the publisher does not believe that the defamatory statements from the proceedings are true and even though the publisher knows that they are false. (Restatement (Second) of Torts sec. 611, comment a; see W. Keeton, Prosser & Keeton on Torts sec. 115 (5th ed. 1984).) If reports in governmental and public proceedings dealing with matters of public concern are false, the news media must nevertheless be able to report to the people what it sees and hears — the news media's belief or knowledge as to the truth notwithstanding. If the news media cannot report what it sees and hears at governmental and public proceedings merely because it believes or knows that the information is false, then self-censorship by the news media would result. (Compare Cox Broadcasting Corp. v. Cohn (1975), 420 U.S. 469, 496, 43 L.Ed.2d 328, 350, 95 S.Ct. 1029, 1046-47.) The first amendment cannot tolerate a tenet which engenders self-censorship by the news media. Rosenbloom v. Metromedia, Inc. (1971), 403 U.S. 29, 50, 29 L.Ed.2d 296, 315, 91 S.Ct. 1811, 1823.

• 2 If a news media account is not a complete report of the proceedings, it nevertheless remains under the aegis of the privilege so long as it is a fair abridgment of the proceedings. However, when a news media account is neither complete nor a fair abridgment of the proceedings, then the privilege is lost. (See Catalano v. Pechous (1980), 83 Ill.2d 146, 168, 419 N.E.2d 350, 360, quoting Restatement (Second) of Torts sec. 611 (1977).) Here, it is admitted that the news media accounts are not complete reports of the governmental and public proceedings. Therefore, the critical issue is whether the news media accounts are a fair abridgment of the proceedings and thus protected by the privilege. On defendants' motions to dismiss, we must determine whether there is a genuine and material question of fact on the issue. Compare Meyer v. Murray (1979), 70 Ill. App.3d 106, 114, 387 N.E.2d 878, 884.

• 3 Plaintiff argues that the newspaper articles are not a fair abridgment of the proceedings because they falsely connect him to the Illicit drug activities of the El Rukn street gang, falsely link him with the unlawful distribution of Talwin, and falsely charge that he was one of the initial sources of such drugs in the distribution chain. Specifically, plaintiff states: "Any and all references to Dr. O'Donnell and his alleged connection with the El Rukn street gang are wholly false. That lack of connection between Dr. O'Donnell and the El Rukn street gang formed the basis for plaintiff's defamation complaint."

To determine whether the newspaper articles are a fair abridgment of the proceedings, the Federal and local governmental and public proceedings must be viewed together. The U.S. Department of Justice Information Release of October 13, 1981, which included the announcement of plaintiff's indictment, the indictments of another doctor and a pharmacist, and the criminal information of another pharmacist, states:

"Mr. Webb stated that these Federal Charges are the result of a lengthy coordinated investigation by federal and local law enforcement authorities aimed at the illegal distribution of Talwin (a heroin substitute) and other abused controlled substances. Mr. Webb indicated that these types of controlled prescription drugs are sold by `pill pushers' in Chicago's neighborhoods, and his office is going to vigorously prosecute the medical providers, such as pharmacies and doctors, who are the initial sources of such drugs in the distribution chain.

These indictments resulted from an investigation conducted by the Chicago Office of the Drug Enforcement Administration and the Illinois Department of Law Enforcement."

The affidavit of the Chicago Police Department OCD sergeant states that on October 13, 1981, he gave the news ...


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