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05/07/87 Reverend L. R. Davis, v. Keystone Printing Service

May 7, 1987

REVEREND L. R. DAVIS, PLAINTIFF-APPELLANT

v.

KEYSTONE PRINTING SERVICE, INC., D/B/A THE NEWS-SUN ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

507 N.E.2d 1358, 155 Ill. App. 3d 309, 108 Ill. Dec. 17 1987.IL.598

Appeal from the Circuit Court of Lake County; the Hon. William D. Block, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. LINDBERG, P.J., and HOPF, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Plaintiff, Rev. L. R. Davis, brought a libel action against Keystone Printing Service, Inc., publisher of the News-Sun, a Lake County newspaper, and Adrienne Drell, a reporter for the News-Sun, based on a series of articles published in defendants' newspaper. The trial court, on defendants' motion for summary judgment, found plaintiff to be a limited purpose public figure and that the subjects of the articles were matters of public concern, thereby requiring plaintiff to prove malice on the part of defendants. The trial court further found that there was no evidence from which a finding of malice could be made by a trier of fact and granted summary judgment for defendants. From that order plaintiff appeals. For the reasons set forth below, we reverse.

On February 19, 1980, the News-Sun published the first in a series of articles which plaintiff claims libeled him. The articles reported that plaintiff lured members of his religious organization into homosexual encounters, promoted illegal absences from the United States Navy, and encouraged large personal contributions ($100,000 from one family alone). The articles were based mainly on interviews conducted by Drell. Subsequent articles, eight in all, contained further details.

A full recital of the facts of this case, both disputed and undisputed, would be inordinately lengthy. Specific facts will only be set out as needed. More details appear in this court's opinion in Davis v. Keystone Printing Service, Inc. (1982), 111 Ill. App. 3d 427 (hereinafter Davis I).

This is the second time this matter has been before this court. Previously, the trial court dismissed the complaint based on its Conclusion that plaintiff was a public figure and that he had failed to allege actual malice on the part of defendants. This court held that it was error for the trial court to find plaintiff to be a public figure based only on the pleadings and the articles in question. (Davis v. Keystone Printing Service, Inc. (1982), 111 Ill. App. 3d 427.) We further held that plaintiff had sufficiently alleged malice to withstand a motion to dismiss. (111 Ill. App. 3d 427, 443.) The trial court's dismissal of plaintiff's complaint was thus reversed, and the cause was remanded for further proceedings.

On remand, defendants filed a motion for summary judgment and in support of their motion submitted affidavits and deposition transcripts from defendant Drell, editors of the News-Sun, and other persons familiar with plaintiff's activities, as well as past News-Sun articles in which plaintiff had been mentioned. Based on this additional information the trial court granted defendants' motion.

The first issue we must decide is whether plaintiff was properly required to prove that the articles in question were published with actual malice. In New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710, the United States Supreme Court first held that the constitutional freedoms of speech and press preclude a public official from recovering damages for defamation relating to his official conduct unless he can prove that the statement was made with actual malice. Malice was defined as publishing with knowledge that the statement was false or with reckless disregard of whether it was false or not. (376 U.S. 254, 280, 11 L. Ed. 2d 686, 706, 84 S. Ct. 710, 726.) The New York Times rule was subsequently extended to cover "public figures" as well as public officials in Curtis Publishing Co. v. Butts and Associated Press v. Walker (1967), 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975.

It was expected that the New York Times protection would be extended to statements regarding matters of public concern or interest. (See, e.g., W. Prosser, Torts sec. 118, at 823 (4th ed. 1971).) That expectation received considerable support from the decision in Rosenbloom v. Metromedia, Inc. (1971), 403 U.S. 29, 29 L. Ed. 2d 296, 91 S. Ct. 1811, where a plurality indicated that such an extension was warranted. That position was soon rejected, however, in Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997, where the court specifically refused to apply the New York Times privilege according to the subject matter of the statements. Instead, the Gertz court focused on the status of the defamed plaintiff and distinguished between public and private figures. The court held that at least where the substance of the defamatory statement makes substantial damage to reputation apparent, and so long as they do not impose liability without fault, the States may define the appropriate standard of liability for a publisher of defamatory falsehood injurious to a private individual. Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 347, 41 L. Ed. 2d 789, 809, 94 S. Ct. 2997, 3010.

Subsequent Illinois decisions have evinced some confusion over the standard of liability to impose where the plaintiff is a private figure. Illinois law will be discussed shortly, but an analysis of whether defendants should enjoy the New York Times constitutional protection is warranted first. If plaintiff is a public figure for New York Times purposes, the possibility of a less stringent standard under Illinois law would be foreclosed.

In Curtis Publishing Co. v. Butts, the Supreme Court equated a public figure with one who commands a substantial amount of public interest by his position alone or one who by his purposeful activity has thrust himself into the vortex of an important public controversy. (388 U.S. 130, 155, 18 L. Ed. 2d 1094, 1111, 87 S. Ct. 1975, 1991.) The extension of the New York Times privilege was justified since such public figures command sufficient continuing public interest and have sufficient access to means of counterargument to be able "to expose through Discussion the falsehood and fallacies" of the defamatory statements. (388 U.S. 130, 155, 18 L. Ed. 2d 1094, 1111, 87 S. Ct. 1975, 1991, quoting Whitney v. California (1927), 274 U.S. 357, 377, 71 L. Ed. 1095, 1106, 47 S. Ct. 641, 649 (Brandeis, J., Dissenting).) In Gertz, the court further noted that public figure status may rest on either of two alternative bases:

"In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions." Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 351, 41 L. Ed. 2d 789, 812, 94 S. Ct. 2997, 3013.

The court cautioned, however, that it would not lightly assume that one's participation in community affairs renders him a public figure for all purposes. The court preferred instead "to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation." 418 U.S. 323, 352, 41 L. Ed. 2d 789, 812, 94 S. Ct. 2997, 3013.

The trial court here found plaintiff to be a general purpose public figure when it first dismissed the complaint. In granting summary judgment for defendants, however, the trial court found that plaintiff is only a limited purpose public figure. Defendants do not contend on this appeal that plaintiff is a general purpose public figure, so we need only consider whether plaintiff is a limited purpose public figure for the issues which were the subjects of the articles.

Defendants argue that plaintiff injected himself into local public controversies in several ways: (1) by affecting the relationship between Waukegan, North Chicago, and the Great Lakes Naval Station; (2) by opening a storefront ministry; (3) by opposing drug and alcohol addiction; (4) by becoming involved in local politics and working with adults on probation from the Lake County courts; and (5) by making public speeches, television and radio appearances, and being involved in entertainment. This court rejected similar contentions in Davis I, noting: "This is not a case where there was in existence a public issue in which plaintiff became involved and attempted to ...


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