2020 IL App (2d) 180654
Ill. App. Ct.2020Background
- Arthur Jaros was an appointed Downers Grove Public Library trustee; at the August 23, 2017 board meeting he criticized proposed "equity, diversity, and inclusion" action items and expressed concerns about exposing children to certain viewpoints.
- Susan Farley (League of Women Voters) published an online observer report summarizing the meeting and stating Jaros "proceeded to continue to express his personal views on how we should reject any people different from white straight people." Jaros denied using racial language or advocating rejection of people.
- The Downers Grove village council voted in September 2017 to remove Jaros from the library board; Jaros sued Farley, the League, Council members, the Village, and the mayor asserting defamation, republication, free-speech and conspiracy claims, and seeking declaratory/injunctive relief.
- Defendants moved under sections 2-615/2-619 to dismiss; the trial court dismissed the first amended complaint with prejudice, holding the reported statement was not defamatory per se, the fair-report privilege applied, and Jaros’s speech as a trustee was not protected; it also denied leave to file a second amended complaint.
- On appeal the court affirmed: it concluded the reported statement was not defamatory per se as to Jaros’s legal practice, rejected Jaros’s free-speech claim (he spoke in his official capacity as an appointed trustee), and upheld denial of leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Defamation — actionable per se and actual malice | Jaros: report accused him of bigotry that damages his reputation as an attorney (per se) and alleged defendants published with reckless disregard | Defendants: statement not defamatory per se; lacked falsity/special damages; fair-report privilege; Jaros, as public official, failed to plead actual malice | Court: statement not defamatory per se as to his legal profession; Jaros’s actual malice allegations were minimally sufficient but dismissal stands on nonactionability |
| Republication (Hosé) | Jaros: Hosé republished Farley’s report on Facebook with malice | Hosé: republication cannot be actionable if original publication nonactionable; legislative immunity asserted | Court: republication not actionable because original statement was not defamatory |
| Free-speech (removal from board) | Jaros: removal violated his Illinois constitutional free-speech rights; analogized to Pickering/Bond protections | Defendants: Jaros spoke as an appointed official (not a citizen on matter of public concern); Garcetti/Pickering justify employer/appointing-body authority; immunity defenses | Court: Jaros spoke in his official capacity as an appointee; removal did not implicate protected free speech; counts dismissed |
| Due process / home-rule challenge to removal procedure | Jaros: removal violated due process and Village code exceeded home-rule power | Defendants: prior appeal resolved home-rule issue in Village’s favor; no due-process pleading of defective procedure | Court: prior ruling disposed of home-rule claim; no adequate due-process pleading; counts IV and V dismissed |
| Denial of leave to file second amended complaint | Jaros: trial court erred in denying leave after dismissal under §2-615 and §2-619 | Defendants: court properly found §2-619 defects could not be cured; denial within discretion | Court: denial affirmed — court reasonably concluded §2-619 grounds precluded relief and Jaros forfeited persuasive authority to the contrary |
Key Cases Cited
- New York Times Co. v. Sullivan, 376 U.S. 254 (U.S. 1964) (established actual malice standard for defamation by public officials)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S. 1990) (distinguishing opinion from provable false statements for defamation)
- Pickering v. Board of Education, 391 U.S. 563 (U.S. 1968) (balancing public-employee speech interests against government-employer interests)
- Garcetti v. Ceballos, 547 U.S. 410 (U.S. 2006) (public-employee speech analysis: whether employee spoke as citizen on matter of public concern)
- Bond v. Floyd, 385 U.S. 116 (U.S. 1966) (strong First Amendment protection for legislators speaking on public issues)
- Cody v. Harris, 409 F.3d 853 (7th Cir. 2005) (distinguishes attacks on personal character from job-related allegations that support defamation per se)
- Colson v. Stieg, 89 Ill. 2d 205 (Ill. 1982) (pleading of actual malice need not be detailed beyond alleging knowledge of falsity or reckless disregard)
- Van Horne v. Muller, 185 Ill. 2d 299 (Ill. 1998) (sets Illinois categories of defamation per se)
- Kumaran v. Brotman, 247 Ill. App. 3d 216 (Ill. App. 1993) (when an occupation requires personal integrity, certain attacks may be defamatory per se)
- Basile v. Prometheus Global Media, 225 F. Supp. 3d 737 (N.D. Ill. 2016) (statements not defamatory per se where alleged misconduct unrelated to job duties)
- Fleming v. Moore, 275 S.E.2d 632 (Va. 1981) (requires a nexus between defamatory content and the plaintiff's occupation for per se treatment)