Appeal from the Circuit Court of Cook County. No. 01 L 4849 Honorable Philip L. Bronstein, Judge Presiding.
The opinion of the court was delivered by: Justice Smith
In May 2000, the Chicago Sun-Times newspaper published an article reporting a federal court ruling in a case that was decided under international child abduction law. In that case, the court ordered that a minor child who was taken from her home in Italy to Chicago by her mother, plaintiff Deirdre Harrison (Harrison or plaintiff), be returned to Italy. Harrison filed a complaint alleging that defendant Chicago Sun-Times, Inc., d/b/a The Chicago Sun-Times (Sun-Times or defendant) defamed her and placed her in a false light by its statement that she kidnapped her daughter Beatrice. The Sun-Times filed a motion to dismiss the defamation action, which was denied in part and granted in part, then filed a motion to certify three questions for immediate appeal pursuant to Illinois Supreme Court Rule 308. 155 Ill. 2d R. 308. This court is asked to decide: whether the complained-of statement is substantially true; whether the statement, contained in a front-page "leader" article, must be read together with an inside article, and if so, whether it is capable of an innocent construction; and whether the statement is a fair report of the district court decision.
The facts pertinent to this case were set forth by the United States District Court in the international child abduction action (Tabacchi v. Harrison, No. 99 C 4130 (N.D. Ill. 2000) (Tabacchi case or the district court case)) and are as follows.
Harrison met Gian Andrea Tabacchi (Tabacchi) in 1994, in New York City, where they began living together. The following year Harrison and Tabacchi moved to Italy and lived on Tabacchi's family property near Rome. The couple married in 1996 and their daughter Beatrice was born in March 1997. Beatrice had lived her entire life in Italy and was enrolled in school there until her removal to the United States in January 1999.
On January 15, 1999, Harrison, who had earlier argued with Tabacchi, took Beatrice to a neighbor's house. In response to Harrison's announcement that day that she planned to go to the United States with Beatrice, Tabacchi said he would go to the police. Tabacchi drove to the neighbor's house to get Beatrice and attemped to leave with her. In trying to prevent Tabacchi from leaving, Harrison was knocked to the ground by him. Harrison ultimately prevented him from leaving by blocking the driveway with her car and Tabacchi gave Beatrice back to Harrison. The police arrived and Tabacchi inquired about charging Harrison with child abduction. He was told that he could not do so because Harrison was the child's mother and he and Harrison were still married. Harrison later went to the police station to report the assault by Tabacchi. When she left the police station, she saw Tabacchi arrive there with his father. Tabacchi filed a police report which included Harrison's threat to keep him from seeing Beatrice again: "'I WILL TAKE ALL YOU HAVE, ASSHOLE, YOU WILL NEVER SEE THE CHILD AGAIN.'"
The next day, January 16, Tabacchi went to family court in Rome to try to prevent Harrison from leaving with Beatrice. On a judge's suggestion, Tabacchi went to the police station to have Beatrice's name listed to prohibit her removal from the country. He filed a report at another police station, where he sought to track Harrison, but was told that was not possible. Tabacchi twice called the neighbor with whom Harrison stayed to inquire about Harrison's whereabouts. In the afternoon, the neighbor told him that Harrison and Beatrice were probably on an airplane.
On January 16, Harrison took Beatrice on a flight to London. Harrison did not tell Tabacchi where they were going or when they would return to Italy. While she was still at the airport in Italy, Harrison mailed Tabacchi a postcard in which she informed him only of their departure from Italy and her intention not to keep "total rights or access" to Beatrice from him. The next day, Harrison and Beatrice flew to Chicago, where they lived with Harrison's brother. On January 18, Tabacchi telephoned Harrison at her brother's apartment. Shortly thereafter, Harrison informed Tabacchi that she planned to divorce him. She later filed for divorce and an order of protection in the Illinois courts.
Within one month, Tabacchi filed for separation from Harrison and custody of Beatrice in the Italian courts. In March 1999, Tabacchi filed another document in the Italian courts, complaining of Harrison's conduct and removal of Beatrice, and claiming she falsely accused him of mistreating her (Harrison) to justify taking Beatrice. In Harrison's absence in July 1999, the Italian courts granted Tabacchi's petition for separation, awarded Harrison temporary custody of Beatrice, and required Harrison to return Beatrice to Italy.
In June 1999, Tabacchi filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Conference on Private International Law, Fourteenth Session, Final Act, done at The Hague, October 25, 1980; Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. 11670, 1343 U.N.T.S. 89 (entered into force Dec. 1, 1983)) (child abduction convention or Hague Convention) in the United States District Court. After holding a bench trial that ended in December 1999, the district court issued a memorandum opinion and order on February 10, 2000 (violation order). The district court's determination was limited to the question of Harrison's wrongful removal of Beatrice under the Hague Convention and did not address the merits of underlying custody issues. Harrison raised defenses under the Hague Convention, including grave risk of physical or psychological harm to Beatrice if she (Beatrice) were separated from Harrison upon return to Italy due to criminal prosecution of Harrison pending in Italy. Tabacchi testified that he would drop all criminal charges against Harrison and take all possible measures to ensure that Harrison would not face criminal prosecution for leaving Italy with Beatrice. The district court rejected Harrison's defenses and found that Beatrice's habitual residence was Italy and Tabacchi had custodial rights to Beatrice that he was exercising at the time of Beatrice's removal, thus satisfying the requirements for wrongful removal under the Hague Convention. See Hague Convention, ch. I, art. 3; 42 U.S.C. §11601 (1988).
In the February 2000 violation order, the court did not require Beatrice's immediate return to Italy. Rather, the court made the return conditional upon receiving satisfactory evidence from Tabacchi that he would provide housing and living expenses for Harrison and Beatrice pending the resolution of custody proceedings in Italy. After additional proceedings, on May 11, 2000, the district court issued an order (return order) incorporating the violation order and requiring that Beatrice be returned to Italy by May 25, 2000, pursuant to the Hague Convention and the International Child Abduction Remedies Act. See Hague Convention, ch. III, art. 12; 42 U.S.C. §11603 (1988).
On Tuesday, May 23, 2000, the Sun-Times reported the outcome of the Tabacchi case. In a front-page column containing references to inside articles, a photograph of Harrison and Beatrice appeared above a two-sentence "leader" article. A headline to the leader, appearing also to be a caption to the photograph, stated, "Kidnapped girl must go home." The leader was printed in a font that appears to be approximately the same size as that used in the text of other articles. It stated: "A woman must return her daughter to Italy, where the girl's father lives, a judge ruled Monday. Claiming she was fleeing an abusive husband, Deirdre Harrison kidnapped Beatrice Tabacchi. Page 16."
The full article on the Tabacchi case appeared on page 16 of the newspaper under the headline, "Judge: Mom must return girl to Italy," and the subheading, "Ruling says woman violated an international treaty on abduction." The text of the two-column article focused on Harrison's relationship with Tabacchi and her response to the ruling. The article summarized the district court case, stating that Tabacchi had filed "a rare Hague petition *** charging his wife violated an international treaty on child abduction and demanding Beatrice's return." Harrison's attorney was cited as saying that allegations of spousal abuse raised by plaintiff are "largely irrelevant in Hague petition cases." The article explained that the "issue is whether Harrison had her husband's permission to take their child out of the country." Another photograph of Harrison and Beatrice appeared above the article with the caption, "Deirdre Harrison was ordered by a judge to return her daughter, Beatrice Tabacchi, 3, to the child's father in Italy."
Two days later, the Sun-Times printed a correction notice which stated, "A front-page Chicago Sun-Times headline Tuesday incorrectly described the case of a woman ordered to return her daughter to Italy. The woman said she thought it was legal to bring her daughter to the United States to flee a husband she said abused her, and she was not found guilty of kidnapping. Despite that, a federal judge earlier this month ordered her to go back to Italy and work through the Italian court system."
In April 2001, plaintiff filed a three-count defamation action against the Sun-Times. The first count, for defamation per se, was based on the front-page statements "Kidnapped girl must go home" and "Deirdre Harrison kidnapped Beatrice Tabacchi" and alleged that both statements falsely imputed Harrison had committed the criminal offense of kidnapping. See 720 ILCS 5/10-1 (West 2000). It further alleged that the Sun-Times published the statements in bad faith and with actual malice. The second count of the complaint was based on the same two statements and alleged that the Sun-Times placed plaintiff in a false light. A third count for false light was based on the photograph caption on page 16.
The Sun-Times filed a motion to dismiss pursuant to sections 2-615 and 2-619(a)(9) of the Illinois Code of Civil Procedure (735 ILCS 5/ 2-615, 2-619(a)(9) (West 2000)) based on the alleged substantial truth and innocent construction of the statements, and on the fair report privilege for official proceedings. The Sun-Times alleged that the public nature of the district court case and plaintiff's failure to plead actual malice and special damages required dismissal of the two false light counts. The Sun-Times relied upon, among other things, plaintiff's own proposed findings of fact and conclusions of law from the district court case. In that document, plaintiff ...