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Schivarelli v. CBS

August 16, 2002

PETER SCHIVARELLI AND H.D. STANDS, L.L.C., A/K/A DEMON DOGS, PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES,
v.
CBS, INC., WBBM TELEVISION, AND PAMELA ZEKMAN, DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Peter A. Flynn, Judge Presiding.

The opinion of the court was delivered by: Justice O'brien

UNPUBLISHED

Plaintiffs, Peter Schivarelli and H.D. Stands, L.L.C., also known as Demon Dogs, appeal the order of the circuit court dismissing their complaint against defendants, CBS Broadcasting, Inc. *fn1 , WBBM Television, and Pamela Zekman, for defamation, false light invasion of privacy, commercial misappropriation, and commercial disparagement. Plaintiffs also appeal the order of the circuit court denying the City of Chicago's motion to quash a subpoena directing its inspector general to produce an investigative report concerning Mr. Schivarelli.

Defendants cross-appeal the order of the circuit court requiring the redaction of all recommendations and conclusions from the inspector general's report prior to its production. We affirm the order dismissing plaintiffs' amended complaint; we dismiss the appeal and cross-appeal from the order requiring the production of the inspector general's report.

This case arises from a 30-second promotional announcement broadcast in 1999 on television station WBBM-TV, channel 2 in Chicago, which is owned and operated by CBS Broadcasting, Inc. The promotional announcement consists of nine segments. The first segment consists of music over an introductory on-screen graphic, "PAM ZEKMAN INVESTIGATES." The second segment shows Ms. Zekman, an investigative reporter for WBBM, seated in a studio, saying, "It's an outlet for people, we..." An accompanying on-screen graphic states, "INVESTIGATIONS that get results." The third segment shows Ms. Zekman interviewing an unidentified man. The interview is conducted at an unidentified, outdoor location in front of a white wall with blue paneling and a picnic table. The interview consists, in its entirety, of Ms. Zekman saying to the man, "Let's sum this up for a second, the evidence seems to indicate that you're cheating the city." The fourth segment shows Ms. Zekman seated in the studio, saying, "A force for people that have been frustrated by wrongdoing that they see." An accompanying on-screen graphic states, "uncovering CORRUPTION." The fifth segment shows Ms. Zekman in an office asking a woman, "Would you want to eat in that restaurant with food that has been out for five...." The sixth segment again shows Ms. Zekman seated in the studio, saying, "To get things corrected by the agencies that are supposed to correct them." An accompanying on-screen graphic states, "CHANGING the system." The seventh segment shows Ms. Zekman walking outdoors and asking another unidentified man, "You're not registered under the Act. Why haven't you registered?" The eighth segment shows Ms. Zekman in the studio, saying, "Investigative reporting is a positive thing." An accompanying on- screen graphic states, "exposing ABUSES." The ninth segment features a male voice stating, "Pam Zekman investigates. Only on News 2 Chicago. Take another look."

Mr. Schivarelli alleges that he is the man in the third segment and that he is the majority owner of H.D. Stands, which operates a Fullerton Avenue hot dog stand known as "Demon Dogs." This is uncontroverted.

Plaintiffs filed an amended complaint against defendants. Mr. Schivarelli alleged causes of action for defamation per se, false light invasion of privacy, and commercial misappropriation. H.D. Stands alleged causes of action for defamation per se, defamation per quod, false light invasion of privacy, and commercial disparagement. Defendants moved to dismiss the complaint pursuant to sections 2-615 and 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 1992)). The trial court granted defendants' motion and dismissed the amended complaint in its entirety pursuant to section 2-615. Plaintiffs filed this timely appeal.

First, we address the dismissal of Mr. Schivarelli's claim for defamation per se. Dismissal of a cause of action pursuant to section 2-615 is appropriate only when it clearly appears that no set of facts could ever be proved under the pleadings that would entitle the plaintiff to recover. Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 115 (1995). Whether a complaint states a valid cause of action is a question of law, and our review of a dismissal pursuant to a section 2-615 motion is de novo. Majumdar v. Lurie, 274 Ill. App. 3d 267, 268, (1995).

A statement is defamatory if it impeaches a person's reputation and thereby lowers that person in the estimation of the community or deters third parties from associating with that person. Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 10 (1992). Defamatory statements may be actionable per se or actionable per quod. Kolegas, 154 Ill. 2d at 10. A statement is defamatory per se if it is so obviously and naturally harmful to the person to whom it refers that injury to his reputation may be presumed. Kolegas, 154 Ill. 2d at 10. Illinois law recognizes five categories of statements that are considered defamatory per se: (1) those imputing the commission of a criminal offense; (2) those imputing infection with a loathsome communicable disease; (3) those imputing an inability to perform or want of integrity in the discharge of duties of office or employment; (4) those that prejudice a party, or impute lack of ability, in his or her trade, profession or business; and (5) those imputing adultery or fornication. Van Horne v. Muller, 185 Ill. 2d 299, 307 (1998).

Statements are defamatory per quod under two circumstances: (1) where the defamatory character of the statement is not apparent on its face and resort to extrinsic circumstances is necessary to demonstrate its injurious meaning; and (2) where the statement is defamatory on its face, but does not fall within one of the limited categories of statements that are actionable per se. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 103 (1996). Unlike a defamation per se action, plaintiff must plead and prove special damages to recover for defamation per quod. Bryson, 174 Ill. 2d at 103.

Mr. Schivarelli argued that Ms. Zekman's statement to him, "Let's sum this up for a second, the evidence seems to indicate that you're cheating the city," constituted defamation per se, as it imputed: (1) the commission of a criminal offense; (2) a want of integrity in the discharge of duties of office or employment; and (3) a lack of ability in his profession or business. Mr. Schivarelli also argued that Ms. Zekman's statement must be considered in the context of the entire 30- second promotional announcement, which trumpets Ms. Zekman's ability to dig up hidden corruption, abuse and unethical or illegal conduct. The trial court dismissed Mr. Schivarelli's claim of defamation per se, ruling that Ms. Zekman's statement constituted a constitutionally protected opinion.

Prior to 1990, the Illinois Supreme Court perceived a fundamental distinction between statements of fact and statements of opinion for first amendment purposes. The court held that statements of opinion were protected by the first amendment and not actionable in a defamation action. Owen v. Carr, 113 Ill. 2d 273 (1986); Mittelman v. Witous, 135 Ill. 2d 220 (1989). The court's holding was grounded primarily on dictum contained in Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 41 L. Ed. 2d 789, 805, 94 S. Ct. 2997, 3006-07 (1974): "Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas."

However, in Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, 111 L. Ed. 2d 1, 18, 110 S. Ct. 2695, 2706 (1990), the United States Supreme Court reexamined the law of defamation within the context of the first amendment and held that a false assertion of fact can be libelous even though couched in terms of an opinion. Milkovich, 497 U.S. at 18-19, 111 L. Ed. 2d at 17-18, 110 S. Ct. at 2705-06 (simply couching the statement "Jones is a liar" in terms of opinion--"In my opinion Jones is a liar"--does not dispel the factual implications contained in the statement). Under Milkovich, a statement of opinion is constitutionally protected under the first amendment only if it cannot be reasonably interpreted as stating actual facts. Milkovich, 497 U.S. at 20, 111 L. Ed. 2d at 19, 110 S. Ct. at 2706. Whether a statement qualifies as constitutionally protected speech under the first amendment is a matter of law for the court to decide. Dubinsky v. United Airlines Master Executive Council, 303 Ill. App. 3d 317, 324 (1999).

The Illinois Supreme Court has adopted the Milkovich test. See, e.g., Kolegas, 154 Ill. 2d 1; Bryson, 174 Ill. 2d 77. The emphasis in the Milkovich test is on whether the allegedly defamatory statement contains an objectively verifiable ...


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