United States District Court, Central District of Illinois, Peoria Division
November 24, 1992
MARGARET R. GROSSMAN, C. KRISTINA GUNSALUS, AND DAVID R. PURNELL, PLAINTIFFS,
WINSTON I. SMART, DEFENDANT, COUNTER-PLAINTIFF, AND THIRD-PARTY PLAINTIFF. V. MARGARET R. GROSSMAN AND C. KRISTINA GUNSALUS, IN THEIR INDIVIDUAL CAPACITIES, JOINTLY AND SEVERALLY, COUNTER-DEFENDANTS, AND C. ALLEN BOCK, IN HIS INDIVIDUAL CAPACITY, THIRD-PARTY DEFENDANT.
The opinion of the court was delivered by: Mihm, Chief Judge.
This written opinion is entered nunc pro tunc to the
minute-entry dated October 21, 1992.
On September 25, 1992, Defendant Winston I. Smart filed a
Motion for Summary Judgment for Counts II through VIII of the
Plaintiffs' Complaint. On October 20, 1992, this Court heard
oral arguments on the Motion. At that hearing, the Motion was
granted in part and denied in part. On November 6, 1992, at the
Final Pretrial Conference, Plaintiff David L. Purnell submitted
a memorandum with respect to his status as a public figure in
this action. On November 17, 1992, Smart submitted a response
to Purnell's memorandum and a Motion for Reconsideration of
Summary Judgment on Plaintiff's Count VIII.
Counts II, IV, and VI allege defamation actions contending,
in relevant part, that Smart made false representations and
statements concerning the fitness and integrity of the
respective named Plaintiff in the performance of employment
duties. Counts III, V, and VII allege defamation actions
contending, in relevant part, that Smart made false statements
and publications with malice imputing unfitness and want of
integrity with respect to the employment duties of the
respective named Plaintiff. Count VIII alleges an invasion of
privacy action by Purnell against Smart.
In this written Order, the Court clarifies its oral holding
of October 20, 1992, reconsiders the public figure status of
Purnell, and reconsiders summary judgment as to Count VIII. The
Court GRANTS summary judgment in favor of Smart on Counts II
and IV, DENIES summary judgment in favor of the Plaintiffs on
Counts III, V, VI, VII, and VIII, and upon reconsideration,
finds that Purnell is not a Public Figure for purposes of this
action. The Court's reasoning and findings are set forth below.
Pursuant to Rule 56(c) summary judgment is proper only if it
is demonstrated "that there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law." McGraw-Edison Co. v. Walt Disney
Productions, 787 F.2d 1163, 1167 (7th Cir. 1986). The burden is
upon the moving party to establish that no material facts are
in genuine dispute, and any doubt as to the existence of a
genuine issue may be resolved against the moving party. Adickes
v. S. H. Kress & Co., 398 U.S. 144, 166, 90 S.Ct. 1598, 1610,
26 L.Ed.2d 142 (1970); Backes v. Valspar Corp., 783 F.2d 77, 79
(7th Cir. 1986). A fact is material if it is outcome
determinative under applicable law. Shlay v. Montgomery,
802 F.2d 918, 920 (7th Cir. 1986). Even if the facts are not in
dispute, summary judgment is inappropriate when the information
before the court reveals a good faith dispute as to inferences
to be drawn from those facts. Powers v. Dole, 782 F.2d 689, 694
(7th Cir. 1986). Finally, summary judgment generally is not an
appropriate means of resolving questions of motive and intent.
Bartman v. Allis — Chalmers Corp., 799 F.2d 311, 312 (7th Cir.
In deciding a motion for summary judgment the trial court
must determine whether the evidence presented by the party
opposing the summary judgment is such that a reasonable jury
might find in favor of that party after a trial.
The inquiry performed is the threshold inquiry of
determining whether there is the need for a
trial-whether, in other words, there are any
genuine factual issues that properly can be
resolved only by finder of fact because they may
reasonably be resolved in favor of either party.
[T]his standard mirrors the standard for a
directed verdict under Federal Rules of Civil
Procedure 50(a), which is that the trial judge
must direct a verdict if, under the governing law,
there can be but one reasonable conclusion as to
the verdict. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202
See also: Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106
S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Barker v. Henderson,
Franklin, Starnes & Holt, 797 F.2d 490, 496 (7th Cir. 1986).
The prima facie case for a claim of defamation is well
established and not disputed: (1) defamatory language on the
part of the defendant; (2) the defamatory language must be of
or concerning the plaintiff; (3) publication of the defamatory
language by the defendant to a third person; and (4) damage to
the reputation of the plaintiff. If the defamation refers to a
public official or public figure or involves a matter of public
concern, thus invoking First Amendment protection, two
additional elements must be proven as part of the prima facie
case. The plaintiff must prove (5) the falsity of the
defamatory language and (6) fault on the part of the defendant,
in addition to the four elements mentioned above.
At issue for purposes of this Motion is whether the various
Plaintiffs in this case are public officials, public figures,
or whether this is a matter of public concern, thus invoking
the two additional First Amendment protections.
In defining the term "public official," the Supreme Court has
held that in order to encourage criticism of government the
"public official" designation must apply "at the very least to
those among the hierarchy of government employees who have, or
appear to the public to have, substantial responsibility for or
control over the conduct of governmental affairs."
Rosenblatt v. Baer,
383 U.S. 75, 85, 86 S.Ct. 669, 676, 15 L.Ed.2d 597 (1966). In
Rosenblatt, the Court went on to explain that:
[w]here a position in government has such apparent
importance that the public has an independent
interest in the qualifications and performance of
the person who holds it, beyond the general public
interest in the qualifications and performance of
all government employees, . . . [then] the New York
Times malice standards apply.
Rosenblatt, 383 U.S. at 85, 86 S.Ct. at 676.
A public employee, therefore, may be a "public official" even
if the employee is not positioned at the top of the
bureaucratic hierarchy. Persons publicly employed at low level
technical positions might not be included in this category, but
any government employee, however, holding discretionary power
in matters of public interest qualifies as a public official.
4 Ronald D. Rotunda and John E. Nowak, Treatise on
Constitutional Law § 20.33 (2d ed. 1992).
Plaintiffs Grossman and Gunsalus hold the requisite
employment status to confer a designation of "public official"
in this case. Grossman is a professor of agricultural law and
served as Chairperson of the Search Committee that recommended
Purnell's appointment to the University of Illinois. Gunsalus
serves as the Vice Chancellor for Research and for Graduate
College and assistant to the Chancellor of the University.
Gunsalus also was the Hearing Officer in an administrative
grievance hearing held for Smart at the University. The
authority vested in these high level positions sufficiently
confer public official status.
Plaintiff Purnell, however, does not satisfy the requirements
for public official status. The University chose Purnell for
the assistant professor of law position giving rise to this
action. Prior to his appointment to that position, Purnell was
not employed by the University. The facts do not indicate that
Purnell had any decision-making responsibility either before or
after he was selected for employment.
Based on the finding that Plaintiffs Grossman and Gunsalus
are public officials, these Plaintiffs necessarily must
establish the two additional constitutional elements of falsity
and fault as part of their prima facie case. To establish
fault, the Plaintiffs, as public officials, must show that
Smart acted with actual malice — that is, with knowledge that
the defamatory publication was false or with reckless disregard
as to whether the publication was false. New York Times Co. v.
Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d
686 (1964). In the Complaint, Grossman and Gunsalus each plead
two counts of defamation. One count included the element of
fault and one count did not. This Court, therefore, grants
summary judgment on the counts not alleging fault, Counts II
and IV, in favor of Smart and against Plaintiffs Grossman and
The element of fault, by the termed definition, necessarily
includes a finding of intent or motive. Summary judgment under
these circumstances would be inappropriate as it would require
this Court to find as a matter of law that Smart lacked the
requisite mental state to sustain this defamation action. This
issue presents a question of fact. Therefore, this Court denies
summary judgment in favor of Grossman and Gunsalus and against
Smart as to Counts III and V.
Following Rosenblatt, the Supreme Court broadened the
constitutional First Amendment guarantees to include privacy
actions. Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17
L.Ed.2d 456 (1967). In Time, Inc., the Supreme Court
distinguished a private individual who was thrust into the
limelight for the purpose of one particular event. In that
case, the Hill family became the subject of national news
coverage when three escaped convicts held them hostage in their
home. The Supreme Court applied the New York Times standard of
"knowing and reckless falsity," to publications involving false
reports on matters of public interest. Time, Inc., 385 U.S. at
387-88, 87 S.Ct. at 542. While the Court applied the New York
to the Hills' privacy action, the Court left open the question
of whether the same standard of liability would be applicable
in a libel action to persons voluntarily or involuntarily
thrust into the public limelight. Time, Inc., 385 U.S. at
390-91, 87 S.Ct. at 543-44.
Just six months later, the Supreme Court extended the
application of the New York Times "actual malice" standard to
alleged defamations against people who did not fall within the
definition of "public official" but who were nonetheless
"public figures." Curtis Pub. Co. v. Butts, 388 U.S. 130, 87
S.Ct. 1975, 18 L.Ed.2d 1094 (1967). In Curtis, the Court
defined a "public figure" as those who are "intimately involved
in the resolution of important public questions or, by reason
of their fame, shape events in areas of concern to society at
large." Curtis, 388 U.S. at 164 87 S.Ct. at 1996 (Warren, C.J.
Later, in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct.
2997, 41 L.Ed.2d 789 (1974), the Supreme Court explained that
the term "public figure" included:
those who attain this status [by assuming] roles
of especial prominence in the affairs of society.
Some occupy positions of such persuasive power and
influence that they are deemed public figures for
all purposes. More commonly, those classified as
public figures have thrust themselves in the
forefront of particular public controversies in
order to influence the resolution of the issues
Gertz, 418 U.S. at 345, 94 S.Ct. at 3009. In Gertz, the Supreme
Court divided public figures into two categories: (1) general
purpose public figures; and (2) limited purpose public figures.
A general purpose public figure is one who has "assumed roles
of especial prominence in the affairs of society." Gertz, 418
U.S. at 345, 94 S.Ct. at 3009. The Gertz Court sub-categorized
limited purpose public figures, however, when the Court
distinguished voluntary from involuntary public figures. Gertz,
418 U.S. at 345, 94 S.Ct. at 3009. Voluntary public figures are
persons who have "thrust themselves to the forefront of
particular public controversies in order to influence the
resolution of the issues involved." Gertz, 418 U.S. at 345, 94
S.Ct. at 3009. Gertz also acknowledged that a limited purpose
public figure could include an involuntary public figure who
has been drawn into a public controversy through no voluntary
action of their own. Gertz, 418 U.S. at 345, 94 S.Ct. at 3009.
The Gertz Court stated that situations involving involuntary
public figures would be "exceedingly rare." Gertz, 418 U.S. at
345, 94 S.Ct. at 3009.
Smart argues that Purnell fits within the category of a
voluntary limited purpose public figure. Smart contends that
Purnell's voluntary acts preclude an involuntary public figure
analysis. The only undisputed voluntary act alleged by Smart,
however, was Purnell's application for employment with the
University. The other alleged voluntary acts raised by Smart
turn on disputed questions of fact. Smart likens Purnell to a
criminal charged with a crime and concludes that "[h]ad Purnell
not committed intentional dishonest acts, this controversy
would not have arisen." This Court cannot apply a "but for"
test to disputed facts and hold as a matter of law that Purnell
was a voluntary public figure in this case. Smart has not set
forth any facts on which to conclude that Purnell voluntarily
thrust himself into the forefront of this public controversy in
order to influence the resolution of the issues involved. Based
on the distinctions made by the Supreme Court and the facts of
this case, Purnell could possibly fit only within the
involuntary limited purpose public figure category.
The Supreme Court has pointedly stated that situations giving
rise to involuntary public figure status exist only in
exceedingly rare instances. Following Gertz, the Supreme Court
has held that a plaintiff should not be characterized as an
involuntary public figure merely because of an involvement in
litigation. See e.g., Wolston v. Reader's Digest Assoc.,
443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979) and Time, Inc.
v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154
(1976). For a person to rise to the level of an involuntary
limited purpose public figure, that person must have been
involved in a public controversy
prior to the defamatory statements. Hutchinson v. Proxmire,
443 U.S. 111, 134-35, 99 S.Ct. 2675, 2688, 61 L.Ed.2d 411 (1979).
The Hutchinson Court reasoned that persons charged with
defamation cannot create their own defense by making the
claimant a public figure. Hutchinson, 443 U.S. at 135, 99 S.Ct.
Smart argues that Purnell does qualify as an involuntary
public figure under the facts of this case. Smart supports his
argument with contentions that the public controversy involved
here existed prior to the alleged defamatory publications and
that Purnell actually participated in the controversy.
This Court cannot agree as a matter of law that the
controversy involved in this case existed prior to the alleged
defamatory publications. Smart states that on January 4, 1991,
he filed a formal grievance with the University giving rise to
this public controversy. The University provided Smart with the
forum to redress his grievances even though Smart was not
employed with the University. Yet Smart contends in his brief
that the University attempted to cover up a public controversy
by denying him access and a fair hearing. On the other hand,
Smart points to this same administrative process in an attempt
to convince the Court that the filing date of his grievance
actually gave rise to this public controversy. Smart's argument
is a non sequitur and unconvincing.
The issue here is at what point did an identifiable
particular public controversy originate. On this issue in
Hutchinson, the Supreme Court tried to balance the competing
interests of "assur[ing] the vigorous debate on public issues
that the First Amendment was designed to protect while at the
same time affording protection to the reputations of
individuals." Hutchinson, 443 U.S. at 134, 99 S.Ct at 2687. In
Hutchinson, the plaintiff received federal funding for
scientific studies, was made reference to in local newspapers,
and made statements in other forms of media. Senator Proxmire
awarded Hutchinson the Golden Fleece Award to publicize
wasteful governmental spending. The Court held that Hutchinson
was not a public figure prior to the controversy engendered by
the Golden Fleece Award. Hutchinson, 443 U.S. at 135, 99 S.Ct.
at 2688. The Court reasoned that Hutchinson's access to
publicity came after the alleged libel. Hutchinson, 443 U.S. at
135, 99 S.Ct. at 2688.
In the instant case, Smart has not identified a particular
public controversy involving Purnell prior to the alleged
defamatory publications. If this Court was to hold that the
mere filing of a grievance against an institution constituted
a particular public controversy as to everyone attenuated from
that grievance, this Court would render meaningless the Supreme
Court's concerns raised in Hutchinson. The facts show in this
case that Smart made Purnell a public figure by allegedly
publicizing his name and academic transcript. Prior to that,
Purnell received no public recognition. Purnell's application
for the assistant professorship position hardly brings Purnell
into publicity or controversy. Smart confuses the distinction
between an identifiable particular public controversy with a
matter of public concern. Every matter of public concern does
not spontaneously create nor necessarily involve a particular
public controversy. This Court, therefore, holds that the facts
of this case do not support a finding that the "exceedingly
rare" circumstances have been met making Purnell involuntary
limited purpose public figure. See also Blue Ridge Bank v.
Veribanc, Inc., 866 F.2d 681 (4th Cir. 1989) and Bruno &
Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st Cir.
A few years later, in Dun & Bradstreet, Inc. v. Greenmoss
Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593
(1985), in a plurality opinion, the Supreme Court held that the
constitutional limits also apply to state liable laws involving
expressions "on a matter of public concern," or "public
speech." Dun & Bradstreet, 472 U.S. at 755-60, 105 S.Ct. at
2943-46. In Dun & Bradstreet, the plurality of the Court
concluded that the recovery of punitive and presumed damages in
defamation cases without any showing of actual malice did not
violate the First Amendment if the alleged defamation did
not involve a matter of public concern. Dun & Bradstreet, 472
U.S. at 761, 105 S.Ct. at 2946. The Court in Dun & Bradstreet,
however, did not elaborate as to what constituted a matter of
public concern. The Court determined only that a credit
agency's erroneous report of the plaintiff's bankruptcy,
distributed to five subscribers, was "speech solely in the
individual interest of the speaker and its specific business
audience." Dun & Bradstreet, 472 U.S. at 762, 105 S.Ct. at
In Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106
S.Ct. 1558, 89 L.Ed.2d 783 (1986), Justice O'Connor, for the
majority, placed some light on the meaning of a "matter of
public concern." In Hepps, a series of newspaper articles
contained the general theme that the appellees had links to
organized crime and that those links were used to influence the
State's governmental processes. Without elaboration, the Court
held that speech concerning the political process is of public
concern. Philadelphia Newspapers, 475 U.S. at 778, 106 S.Ct. at
As these cases indicate, defining what constitutes a matter
of public concern proves problematic for courts. In Connick v.
Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the
Supreme Court stated that the context, form, and context of the
publication must be considered in making determinations of what
is a public concern. Further research, by this Court, for a
more tangible test on this issue proved futile. The Court must,
therefore, examine the contents of the publication and then
apply a subjective analysis. See 4 Ronald D. Rotunda and John
E. Nowak, Treatise on Constitutional Law § 20.35 (2d ed. 1992).
As the claims raised by Grossman and Gunsalus have already
been determined to require the constitutional guarantees, this
analysis pertains only to the claims raised by Purnell.
Besides, this Court already has held, and the Seventh Circuit
affirms, that racial discrimination involves a matter of public
concern. Purnell v. Smart, 976 F.2d 735 (7th Cir. 1992). As
public officials for a public university alleged to have
discriminated in employment, the matters involving Grossman and
Gunsalus are of public concern.
The issue now before the Court is whether the publication of
Purnell's law school transcript involved a matter of public
concern. This is a difficult and close question for the Court.
Smart mailed over 1500 letters to various people, institutions,
and offices expressing his dissatisfaction with the University
of Illinois' employment practices. Smart allegedly included a
copy of Purnell's law school transcript with those 1500 letters
indicating that Purnell failed two law school courses. The fact
that the transcripts were sent as an attachment to other
materials alleging racial discrimination serves as a nexus to
the context of the University's hiring procedures. This nexus
between the alleged discrimination and the transcripts
sufficiently warrants a finding by the Court that the
transcripts involved a matter of public concern.
When the defamatory publication involves a matter of public
concern, Gertz holds that there can be no liability without
fault and that recovery may include presumed and punitive
damages. Gertz, 418 U.S. at 346, 94 S.Ct. at 3010. The Court
stopped short of defining what level of fault was necessary. In
Gertz, the Court left it to the states to define the
appropriate standard of liability. Gertz, 418 U.S. at 347, 94
S.Ct. at 3010. The parties to this action have not briefed the
issue of fault as required by Illinois law in this context. The
Court, therefore, denies summary judgment in favor of Purnell
and against Smart as to Counts VI and VII.
RIGHT TO PRIVACY
In Count VIII, Purnell plead sufficient facts supporting a
right to privacy cause of action in two contexts, false light
publicity and public disclosure of private facts.
In Illinois, the tort of False Light publicity has three
elements: (1) that the plaintiff is placed in a false light
before the public as a result of the defendant's actions, (2)
that the false light in which the plaintiff is portrayed is
highly offensive to a reasonable person, and (3) that in cases
involving public figures or matters of public interest, the
person giving the publicity acted with knowledge or reckless
disregard of the falsity of the publicized information and the
light in which the plaintiff would be portrayed. Lovgren v.
Citizens First National Bank, 126 Ill.2d 411, 534 N.E.2d 987,
990-91, 128 Ill.Dec. 542, 545-46 (1989).
In viewing the facts in the light most favorable to the party
opposing summary judgment, this Court cannot find as a matter
of law that Purnell has failed to establish a prima facie case
for false light publicity. Purnell has plead sufficient facts
to satisfy the requirements of the first two elements of the
prima facie case. As for element three, for the same reasons
stated earlier with regards to Counts III and V, this Court
cannot find as a matter of law that Smart lacked the requisite
mental state to sustain this privacy action. Purnell plead that
Smart acted with malice and wanton disregard. Summary judgment
is not an appropriate means of resolving questions of motive
and intent. Questions going to Smart's mental state are
questions of fact. Therefore, the Court denies summary against
Smart and in favor of Purnell as to Count VIII.
In Illinois, the tort of "public disclosure of private facts"
has four elements: the plaintiff must show that (1) public
disclosure was made, (2) of private facts, (3) that the public
disclosure represents an intrusion on privacy which would be
objectionable or highly offensive to a reasonable person, and
(4) that the matter disclosed was not of legitimate concern to
the public. Miller v. Motorola, Inc., 202 Ill. App.3d 976,
560 N.E.2d 900, 902, 148 Ill.Dec. 303, 305 (1st Dist 1990). Unlike
false light publicity, the issue of legitimate public concern
is an element of this type of right to privacy action. Because
this Court has already held that this is a matter of public
concern, Purnell cannot satisfy the prima facie requirements to
defeat summary judgment in a public disclosure of private facts
tort action. This does not, however, preclude Purnell from
maintaining an action under the false light theory. Summary
judgment is still denied for Count VIII.
This Court holds that Plaintiffs Grossman and Gunsalus are
public officials, Purnell is not a public figure, and that the
matters involving Purnell are of legitimate public concern.
Therefore, the Court Orders, for the reasons set forth above,
that summary judgment is GRANTED on Counts II and IV and DENIED
on Counts III, V, VI, VII, and VIII.
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