2023 IL App (1st) 220950
Ill. App. Ct.2023Background:
- Plaintiffs Elizabeth Andrews (a/k/a Libby) and WorldOLuxe sued @properties and two executives for defamation and intentional interference after @properties publicly announced Andrews’ termination for her January 6, 2021 social‑media posts.
- Andrews posted photos at/near the U.S. Capitol on January 6 with captions including “History! It’s not done yet!” and “After storming the capital a good glass of champagne is needed!”
- After public complaints and reposts referencing Andrews’ posts, @properties issued a public statement saying it had received substantial outreach, was terminating Andrews, that she “acknowledged on social media, that she took part in ‘storming the Capitol,’ ” and that the company does not condone violence or illegal activity.
- Plaintiffs alleged the statement falsely implied Andrews committed violent, criminal acts and harmed her reputation; defendants moved to dismiss under 735 ILCS 5/2‑619.1, attaching Andrews’ own prior pleadings, her photos, and an affidavit authenticating public responses.
- Plaintiffs did not file counteraffidavits or dispute the photos/Admissions that Andrews was at the Capitol between ~1:30–3:15 p.m.; the trial court granted the dismissal; plaintiffs appealed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether @properties’ statement was defamatory per se (false/imputing criminal conduct) | Andrews: statement falsely implied she engaged in violence/criminal acts at the Capitol and thus was not substantially true or innocently construable | @properties: statement was substantially true (based on Andrews’ own posts/admissions and public complaints) and/or reasonably susceptible to an innocent construction | Court: Held statement was substantially true as to its "gist" and could be innocently construed; not actionable per se |
| Whether the innocent‑construction rule saves the statement | Andrews: the statement must be read to accuse her of criminal conduct and not be given an innocent reading | @properties: statement, read in context, could be understood as terminating an agent for celebrating/acknowledging the ‘‘storming’’ rather than accusing her of specific criminal acts | Court: Applied innocent‑construction rule; statement could reasonably be interpreted nondefamatorily and thus is nonactionable |
| Admissibility/authentication of affidavit and social‑media exhibits attached to the 2‑619 motion | Andrews: exhibits lacked foundation, were inadmissible hearsay/business records and should be disregarded | @properties: affidavit properly authenticated the screenshots/photos and plaintiffs forfeited any challenge by not moving to strike or filing a counteraffidavit | Court: Plaintiffs forfeited challenges by not contesting below; Albertson’s affidavit and exhibits were sufficiently authenticated and were considered |
| Whether defendants met their burden under 735 ILCS 5/2‑619(a)(9) to defeat the complaint | Andrews: defendants only disputed pleadings and did not present an affirmative matter defeating defamation | @properties: presented documentary admissions, photos, public complaints and affidavit showing substantial truth/innocent construction | Court: Defendants met burden; plaintiffs failed to rebut and dismissal under 2‑619 was proper; related interference claim failed |
Key Cases Cited
- Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (statement not false unless it has a different effect than the pleaded truth)
- Tuite v. Corbitt, 224 Ill. 2d 490 (innocent‑construction rule; court decides reasonable constructions)
- Bryson v. News Am. Publ’ns, Inc., 174 Ill. 2d 77 (truth is absolute defense; innocent construction may be considered on dismissal)
- Seitz‑Partridge v. Loyola Univ. of Chicago, 2013 IL App (1st) 113409 (elements of defamation and substantial‑truth doctrine)
- Green v. Rogers, 234 Ill. 2d 478 (categories of defamation per se and pleading particularity)
- Vachet v. Central Newspapers, Inc., 816 F.2d 313 (substantial‑truth/gist analysis)
- Henderson Square Condominium Ass’n v. LAB Townhomes, LLC, 2015 IL 118139 (standards for combined 2‑615/2‑619 motions)