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10/18/96 DOUGLAS GIST v. MACON COUNTY SHERIFF'S

October 18, 1996

DOUGLAS GIST, PLAINTIFF-APPELLANT,
v.
MACON COUNTY SHERIFF'S DEPARTMENT, DEFENDANT, AND DECATUR HERALD AND REVIEW, A DIVISION OF LEE ENTERPRISES, INC. AND TCI CABLEVISION OF DECATUR, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Macon County. No. 95L165. Honorable John K. Greanias, Judge Presiding.

Released for Publication November 20, 1996. As Corrected January 3, 1997.

Honorable Robert J. Steigmann, J., Honorable Robert W. Cook, P.j. - Concur, Honorable James A. Knecht, J. - Concur. Justice Steigmann delivered the opinion of the court.

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In March 1995, plaintiff, Douglas Gist, sued defendants, the Decatur Herald and Review (Decatur Herald), TCI Cablevision of Decatur (TCI), and the Macon County Sheriff's Department, for defamation. Plaintiff based his suit on a Crime Stoppers' "Most Wanted Fugitives" flyer which the sheriff's department compiled and the Decatur Herald distributed. TCI produced a television segment based upon this flyer. In August 1995, the trial court granted motions to dismiss filed by the Decatur Herald and the sheriff's department. In November 1995, the court granted TCI's motion to dismiss. Plaintiff appeals, arguing that the trial court erred by granting Decatur Herald's and TCI's motions to dismiss. We affirm.

I. BACKGROUND

Plaintiff's complaint--which the trial court dismissed--alleged essentially the following. On August 1, 1994, the Macon County State's Attorney filed a complaint charging plaintiff with burglary to a motor vehicle. On that same day, the trial court issued a warrant for plaintiff's arrest. However, the warrant was never served on plaintiff. On October 26, 1994, plaintiff spoke with someone from the sheriff's department about the outstanding warrant, and a "no-charge" was issued. (Plaintiff's counsel was unable to explain to this court what a "no-charge" is, and we have no independent knowledge of such a creature in the law.)

On October 31, 1994, the Decatur Herald circulated a Crime Stoppers' flyer as an insert in its daily paper. The flyer (appended to this opinion), captioned "Most Wanted Fugitives," featured plaintiff's name, picture, and the charge for which he was wanted, along with similar information concerning others wanted on outstanding warrants. Textual information appears to the right of the pictures, including (1) the prefatory statement "Fugitives featured in this publication are wanted as of October 6, 1994. Warrants must be verified before arrest"; (2) a warning ("IMPORTANT: These fugitives should be considered dangerous and might possibly be armed"); and (3) the credited source of the information ("This is an official quarterly publication compiled by the Macon County Sheriff's Warrants and Extradition Division with aid from local and state police agencies"). While the parties at oral argument were unable to explain who actually formatted and published the flyer, plaintiff's complaint alleged only that "the Macon County Sheriff's Department printed and distributed over 50,000 copies of the flyer" to be added as an insert in the Decatur Herald. TCI made and aired a television segment based on the flyer.

II. ANALYSIS

The material in this section is not to be published pursuant to Supreme Court Rule 23. Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23, eff. July 1, 1994.

[The following material is not to be published pursuant to Supreme Court Rule 23.]

[The preceding material is not to be published pursuant to Supreme Court Rule 23.]

Although it is somewhat unclear from his brief, plaintiff appears to challenge three separate defamatory statements in the flyer. First, plaintiff asserts as defamatory the statement that, as of October 6, 1994, a warrant existed for his arrest in connection with a charge of burglary to a motor vehicle. Second, he asserts as defamatory the heading of the flyer, "Most Wanted Fugitives." Third, he seems to allege that the warning inside the box on the right side of the flyer, stating "these fugitives should be considered dangerous and might possibly be armed," defames him. We consider all three statements in reviewing the trial court's decision.

A. Truth and Protected Opinion as a Defense

The material in this section is not to be published pursuant to Supreme Court Rule 23.

[The following material is not to be published pursuant to Supreme Court Rule 23.]

[The preceding material is not to be published pursuant to Supreme Court Rule 23.]

B. Defense of Substantial Truth

Defendants contend that the trial court's decision was proper because the flyer's statements were substantially true. We agree.

In Illinois, an allegedly defamatory statement is not actionable if it is substantially true, even though it is not technically accurate in every detail. Farnsworth v. Tribune Co., 43 Ill. 2d 286, 293, 253 N.E.2d 408, 412 (1969); Lemons v. Chronicle Publishing Co., 253 Ill. App. 3d 888, 890, 625 N.E.2d 789, 791, 192 Ill. Dec. 634 (1993). While this rule is rooted in the United States Constitution (see New York Times Co. v. Sullivan, 376 U.S. 254, 289, 11 L. Ed. 2d 686, 712, 84 S. Ct. 710, 731 (1964) (suggesting that state law requiring literal and complete truth as a defense might violate the first amendment); Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 115 L. Ed. 2d 447, 111 S. Ct. 2419 (1991) (only substantial truth, not literal truth, is required in defense of a defamation action)), it is also logically driven, as "falsehoods which do no incremental damage to the plaintiff's reputation do not injure the only interest that the law of defamation protects." (Emphasis in original.) Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1228 (7th Cir. 1993). Moreover, "[a] fussy insistence upon literal accuracy 'would condemn the press to an arid, dessicated [sic] recital of bare facts.'" Loeb v. Globe Newspaper Co., 489 F. Supp. 481, 486 (D. Mass. 1980), quoting Time, Inc. v. Johnston, 448 F.2d 378, 384 (4th Cir. 1971).

A defendant bears the burden of establishing the "substantial truth" of his assertions, which he can demonstrate by showing that the "gist" or "sting" of the defamatory material is true. Lemons, 253 Ill. App. 3d at 890, 625 N.E.2d at 791. When determining the "gist" or "sting" of allegedly defamatory material, a trial court must "look at the highlight of the article, the pertinent angle of it, and not to items of secondary importance which are inoffensive details, immaterial to the truth of the defamatory statement." Vachet v. Central Newspapers, Inc., 816 F.2d 313, 316 (7th Cir. 1987). While substantial truth is normally a question for the jury, where no ...


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