Court of Appeals of Illinois, First District, First Division
Rehearing denied March 26, 2019
from the Circuit Court of Cook County, No. 14-L-12703; the
Hon. Patricia O'Brien Sheahan, Judge, presiding.
S. Phelps, of Dolton, for appellant.
Mandell Menkes LLC, of Chicago (Steven P. Mandell, Natalie A.
Harris, and George V. Desh, of counsel), for appellees.
JUSTICE PIERCE delivered the judgment of the court, with
opinion. Justices Griffin and Walker concurred in the
judgment and opinion.
1 This appeal concerns allegations by a public figure that
members of a media news organization made defamatory
statements about him. It is therefore necessary to understand
the nature and context in which the statements were made and
the elements and defenses applicable in defamation actions by
public figures against members of the press. The circuit
court of Cook County entered summary judgment in favor of
defendants on plaintiff's defamation claims, and
dismissed with prejudice certain defendants due to
plaintiff's failure to timely file his complaint against
them. Plaintiff appeals. For the reasons that follow we
affirm the circuit court's judgment.
2 I. BACKGROUND
3 A. Defamation Law
4 The essential elements of actionable defamatory statements
are well established. To prove defamation, a plaintiff must
show that the defendant made a false statement about the
plaintiff, there was an unprivileged publication to a third
party by the defendant, and the statement damaged the
plaintiff. Solaia Technology, LLC v. Specialty Publishing
Co., 221 Ill.2d 558, 579 (2006). Defamatory statements
are actionable either per se or per quod.
Statements are defamatory per se if "the
statements that form the basis of the action *** falsely
charge the plaintiff with misconduct or incapacity in words
so obviously and naturally harmful that they are actionable
without proof of special damages." Costello v.
Capital Cities Communications, Inc., 125 Ill.2d 402, 414
(1988). Illinois recognizes five categories of statements
that are defamatory per se: (1) words that impute a
person has committed a crime, (2) words that impute a person
is infected with a loathsome communicable disease, (3) words
that impute a person is unable to perform or lacks integrity
in performing her or his employment duties, (4) words that
impute a person lacks ability or otherwise prejudices that
person in her or his profession, and (5) words that impute a
person has engaged in adultery or fornication. Green v.
Rogers, 234 Ill.2d 478, 491-92 (2009). No showing of
special damages-i.e., damages of a pecuniary
nature-is required for statements that are defamatory per
se. Costello, 125 Ill.2d at 414.
5 If the offending statement does not fall within one of the
five recognized categories of defamation per se, a
plaintiff may pursue a claim for defamation per
quod. A cause of action for defamation per quod
may exist where the defamatory character of the statement is
not apparent on its face but extrinsic circumstances
demonstrate an injurious meaning, or if the statement is
defamatory on its face but does not fall within a category of
statements that are actionable per se. Bryson v.
News America Publications, Inc., 174 Ill.2d 77, 103
(1996). A plaintiff may only prevail on a claim for
defamation per quod if the plaintiff pleads and
proves special damages, which are actual damages of a
pecuniary nature. Hill v. Schmidt, 2012 IL App (5th)
110324, ¶ 25. In sum, to pursue a defamation per
quod action, a plaintiff must plead and prove extrinsic
facts to explain the defamatory meaning of the statement and
that he suffered actual monetary damages as a result of
defendants' defamatory statement.
6 Regardless of whether a defamation claim involves
statements that are alleged to be defamatory per se
or per quod, where the offending statement is made
by a member of the press or a media organization about a
public figure-which includes a person running for public
office (Matchett v. Chicago Bar Ass'n, 125
Ill.App.3d 1004, 1011 (1984))-first amendment protections
require that the plaintiff "may not obtain redress in a
libel action unless he proves that the allegedly defamatory
statements were made with actual malice."
Costello, 125 Ill.2d at 418-19 (citing New York
Times Co. v. Sullivan, 376 U.S. 254 (1964)). The inquiry
into whether a statement was made with actual malice is
subjective. Wanless v. Rothballer, 115 Ill.2d 158,
170 (1986) (citing Bose Corp. v. Consumers Union of
United States, Inc., 466 U.S. 485, 511 n.30 (1984)). The
plaintiff must prove by clear and convincing evidence that
defendants "published the defamatory statements with
knowledge that the statements were false or with reckless
disregard for their truth or falsity."
Costello, 125 Ill.2d at 419. A reckless disregard
for the truth may be found "where the evidence shows
that the defendant in fact entertained serious doubts as to
the truth of the publication." Id. Furthermore,
a "[f]ailure to investigate does not itself establish
actual malice if the defendants did not seriously doubt the
truth of their assertions." Id. at 421. We will
"infer that a media defendant published defamatory
statements in reckless disregard for their truth only when
the defendant's investigation has revealed either
insufficient information to support the defamatory
accusations in good faith or creates a substantial doubt as
to the truth of those accusations." Id.
7 Lastly, for purposes of the issues of this appeal, the
substantial truth doctrine is a defense to a defamation
claim. Lemons v. Chronicle Publishing Co., 253
Ill.App.3d 888, 890 (1993). So long as the alleged defamatory
statement is substantially true, the statement is not
actionable. Parker v. House O'Lite Corp., 324
Ill.App.3d 1014, 1026 (2001). To be substantially true does
not mean that every detail of the statement needs to be
accurate. Id. The defendant bears the burden of
establishing the substantial truth of the assertions, which
can be accomplished by showing that the "gist" or
"sting" of the defamatory material is true.
8 Here, plaintiff Tio Hardiman asserted claims of defamation,
"libel on the internet," false light and invasion
of privacy, "false light and invasion of privacy on the
internet," reckless infliction of emotional distress,
"reckless infliction of emotional distress on the
internet," and libel per se against defendants
Rehan Aslam, Mike Flannery, Katie Fraser, Elizabeth Kane, and
Fox Television Stations, LLC (Fox). All of plaintiff's
claims centered on two statements made by defendants: that
plaintiff (1) was a former ...