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Hardiman v. Aslam

Court of Appeals of Illinois, First District, First Division

February 25, 2019

TIO HARDIMAN, Plaintiff-Appellant,
v.
REHAN ASLAM; MIKE FLANNERY; KATIE FRASER; ELIZABETH KANE; and FOX TELEVISION STATIONS, LLC, Defendants-Appellees.

          Rehearing denied March 26, 2019

          Appeal from the Circuit Court of Cook County, No. 14-L-12703; the Hon. Patricia O'Brien Sheahan, Judge, presiding.

          Alfred 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.

          OPINION

          PIERCE, JUSTICE

         ¶ 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. Id.

         ¶ 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 ...


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