PAUL J. CIOLINO, Appellee, v. ALSTORY SIMON et al. (Terry A. Ekl, Appellant)
Docket No. 126024
SUPREME COURT OF THE STATE OF ILLINOIS
March 18, 2021
2021 IL 126024
Justices Theis, Neville, Overstreet, and Carter concurred in the judgment and opinion.
Chief Justice Anne M. Burke and Justice Michael J. Burke took no part in the decision.
OPINION
¶ 1 Plaintiff, Paul J. Ciolino, filed suit against several defendants, including Terry A. Ekl, for defamation, false light invasion of privacy, intentional infliction of emotional distress (IIED), and civil conspiracy. Pursuant to
BACKGROUND
¶ 2 ¶ 3 The facts underlying this case are quite extensive. See, e.g., 2020 IL App (1st) 190181, ¶¶ 4-34. We strive to relate only those facts necessary to an understanding of the issue on appeal, which is whether Ciolino‘s complaint is barred by the statute of limitations.
¶ 4 Northwestern University‘s Medill School of Journalism (the Innocence Project) sought to exonerate Anthony Porter for the 1982 murders of Jerry Hillard and Marilyn Green. The Innocence Project suspected that a different individual—Alstory Simon—had committed the murders. Ciolino, a private investigator who did work with the Innocence Project, obtained a videotaped confession from Simon.
¶ 5 Ultimately, Porter‘s conviction was vacated. Simon pleaded guilty to the murders and was sentenced to 37 years in prison. Porter‘s exoneration generated a great deal of publicity and is regarded as the impetus for former Governor George Ryan calling for a moratorium on the death penalty in Illinois.
¶ 6 Some people, however, remained unconvinced that Simon was responsible for the murders. The tactics Ciolino used to obtain Simon‘s confession came under heavy scrutiny. Among other things, it was alleged that Ciolino promised Simon that he would secure an attorney, Jack Rimland, to represent him in his murder case. Rimland shared office space with Ciolino and is said to have convinced Simon to plead guilty. He did not challenge Simon‘s confession to Ciolino or present other evidence to the court.
¶ 7 Simon unsuccessfully filed a pro se petition for postconviction relief. Thereafter, Ekl and James Sotos began representing Simon and filed a successive postconviction petition asserting actual innocence. New evidence in support of the successive petition provided that two witnesses who had implicated Simon had
¶ 8 Following an internal investigation into the Innocence Project‘s journalistic and investigative practices, Anita Alvarez, the Cook County State‘s Attorney at that time, revisited Simon‘s case and formally abandoned all charges against him. The circuit court granted the motion and vacated Simon‘s convictions. By this time, Simon had served 15 years in prison. Simon filed a federal civil rights lawsuit on February 17, 2015, for malicious prosecution against Ciolino, Northwestern University, Protess, and Rimland.
¶ 9 In 2011, defendant William Crawford authored a document, “Chimera,” which contended that the Innocence Project had framed Simon. On June 9, 2015, Crawford published a book titled Justice Perverted: How the Innocence Project of Northwestern University‘s Medill School оf Journalism Sent an Innocent Man to Prison, which sets forth the theory that Simon was framed by Ciolino and others to secure Porter‘s release to ultimately end the death penalty in Illinois. It was this book that inspired the documentary at issue—Murder in the Park (Transition Studios 2014).
¶ 10 Murder in the Park was created by defendants Andrew Hale and Whole Truth Films. Like Justice Perverted, Murder in the Park propounds the theory that Protess and the Innocence Project undertook an ends-justified-the-means approach to getting the death penalty abolished in Illinois. Murder in the Park contains interviews and commentary from defendants Simon, Hale, Ekl, Sotos, Delorto, Crawford, and Alvarez. The claim is advanced that Ciolino engaged in criminal behavior in his efforts to obtain a false cоnfession from Simon.
¶ 11 Ciolino‘s position, however, is that defendants’ goal has been to discredit the Innocence Project and the wrongful conviction movement. On April 27, 2016, Ciolino filed a counterclaim in Simon‘s federal case. Ciolino countersued Simon and interposed claims against several defendants, including Ekl, for defamation, false light, IIED, and conspiracy. On January 3, 2017, Ciolino‘s counterclaim was dismissed because the court concluded that the counterclaim was not compulsory and the district court did not have supplemental jurisdiction. Simon v. Northwestern University, No. 15-cv-1433, 2017 WL 25173, at *5 (N.D. Ill. Jan. 3, 2017).
¶ 13 In support of their motions to dismiss, Ekl and Christopher Rech, a manager оf Whole Truth Films, attested to the following information. Per Ekl‘s affidavit, Ekl attended a public showing of Murder in the Park in November 2014 in New York City, at the 2014 DOC NYC film festival. The film festival was open to the public. Rech additionally declared that DOC NYC is America‘s largest documentary film festival; that, prior to its premiere, Murder in the Park was advertised and mentioned in several different media outlets; that from March 24-26, 2015, Murder in the Park was played to sold-out audiences at the Cleveland International Film Festival after being advertised in a manner similar to that for DOC NYC; and that “[a]t no time did Whole Truth hide the Documentary or its contents from the public” but it was instead “actively advertised *** so people would go see it.” Referencing several exhibits in еxample, Rech‘s declaration asserted that Murder in the Park was advertised, referenced, or mentioned in varying capacities by the following outlets: the Chicago Sun-Times, the Jacksonville Journal-Courier (Illinois), the Chicago Tribune, Fox News, IndieWire, Variety, the Villager, and Twitter. The articles were published between October 30, 2014, and March 24, 2015.
¶ 14 Ciolino attached his own affidavit to his response, attesting that he was not aware of Murder in the Park‘s existence as it was being shown in New York City or any of the attendant articles and media promoting Murder in the Park. He also attested that he was unaware that Murder in the Park was shown in Cleveland in March 2015. Furthermore, Ciolino asserted that he did not learn of Murder in the
¶ 15 The circuit court granted the motions to dismiss, ruling that the claims were time-barred because Murder in the Park premiered more than a year before Ciolino filed suit. The court did not address defendants’ arguments that Ciolino‘s claims were not actionable as a matter of law (
¶ 16 The appellate court affirmed in part, reversed in part, and remanded to the circuit court for further proceedings. 2020 IL App (1st) 190181, ¶ 101. Relevant here, the appellate court reversed the circuit court‘s ruling that Ciolino‘s claims against Ekl were time-barred. Id. ¶ 100. Although the New York City premiere of Murder in the Park took place more than a year before the operative filing date of Ciolino‘s complaint, the court analyzed whether the discovery rule applied to Ciolino‘s claims for defamation and false light publicity such that the one-year statute of limitations was tolled until Ciolino knew or should have known of the publication of the allegedly defamatory material in Murder in the Park. See id. ¶¶ 39, 42, 50-68. Defendants argued that the discovery rule should not even be considered because the film was not hidden and its existence was not inherently unknowable. Id. ¶ 61. Nonetheless, the court noted that a “litany of factual issues” remained unresolved and precluded dismissal. Id. ¶¶ 61-62, 68. Additionally, the court concluded that defendants failed to present evidence on all points to counteract the inferences that must be drawn in Ciolino‘s favor. Id. ¶ 61. Accordingly, the court remanded the case for further proceedings. Id. ¶ 100.
¶ 17 This court allowed Ekl‘s petition for leave to appeal.
ANALYSIS
¶ 18 ¶ 19 At issue is whether Ciolino‘s defamation and false light publicity claims are time-barred.
¶ 20 A motion to dismiss pursuant to
¶ 21 Here, by virtue of the Illinois savings statute, Ciolino is deemed to have filed his complaint on April 27, 2016. See
¶ 23 Ekl also notes that the legislature did not write a discovery rule into
¶ 24 According to Ekl, the appellate court below should have only considered whether the New York City showing was concealed from the public or inherently undiscoverable or unknowable. Although the showing in November 2014 at the DOC NYC film festival may not have been easily discoverable, Ekl maintains that it was far from being inherently undiscoverаble.
¶ 25 Ciolino counters that Ekl seeks “to overrule long-standing precedent that the discovery rule may apply to defamation and false light claims when the defamatory
¶ 26 Having set forth the parties’ respective arguments, we turn to the issue of whether applicatiоn of the discovery rule would undermine the single-publication rule.
Single-Publication Rule
¶ 27 ¶ 28 Ekl, Ciolino, and the appellate court all appear to assume that the single-publication rule applies. Numerous cases note that application of the discovery rule in the defamation context would undermine the single-publication rule. Thus, it is necessary to begin our analysis by examining that rule.
¶ 29 The foremost Illinois case examining the single-publication rule is Winrod. There, the appellate court examined the propriety of the single-publication rule in the context of whether a libel2 action was barred by the one-year statute of limitations. Id. at 60. The plaintiff filed suit on April 13, 1943, in connection with an alleged libel that was printed and published in аn issue of Life magazine. The defendant moved to strike the complaint because, although the date “April 13, 1942,” appeared on the magazine, the magazine had been published at least two days earlier. Id. Affidavits attached to the defendant‘s motion demonstrated that
¶ 30 The Winrod court observed that, “[h]istorically, each delivery and sale of an article containing defamatory mаterial was considered a publication that, defenses aside, gave rise to a separate cause of action.” Id. at 61 (citing Duke of Brunswick v. Harmer (1849) 117 Eng. Rep. 75; 14 Q.B. 185). However, the court noted that this rule had recently been tempered by the growing recognition that such a rule was outdated. See id. (stating “this ancient rule ‘is ill-suited to the needs of a culture demanding mass publication‘” (quoting Libel and Slander—Publication—Sale of Replacement Copies Within Statutory Period Held Republication Resulting in New Cause of Action, 59 Harv. L. Rev. 136, 136 (1945))). This was because the rule espoused in Harmer would lead to a multiplicity of suits and render the statute of limitations meaningless. Id.
¶ 31 The Winrod court surveyed numerous cases and arrived at the сonclusion that “‘the decided weight of authority in this country is, where large distributions of published matter are involved, that the cause of action accrues, for the purpose of the statute of limitations, upon the first publication, when the issue goes into circulation generally.‘” Id. at 64. Further, as to whether “certain miscellaneous copies [that] were circulated to the general public up to and including April 18 and for some time thereafter” could constitute republications to retrigger the statute of limitations, the court dispensed with this assertion by relying on authority holding that, “where any distribution takes place after the original sale, no new cause of аction will accrue if the subsequent distribution is reasonably connected, by trade practice relating to the type of printed matter involved, to the original distribution.” Id. at 65.
¶ 32 Finally, the Winrod court favorably cited Seelman on the Law of Libel and Slander‘s articulation of the test for distinguishing between when a republication of an article has occurred or simply a repetition of the defamatory material. See id. at 68-69 (describing the reliance thereon by Wolfson v. Syracuse Newspapers, Inc., 4 N.Y.S.2d 640 (App. Div. 1938)); see also Ernest P. Seelman, The Law of Libel
“‘The test of whether the article is a republication or a repetition should not depend on an interval of time, or a separate sale but upon the answer to the question. Was the act of the defendant a conscious independent оne? The individual who sends the same letter to different persons at the same or another time, consciously and intentionally and independently does so. Each separate mailing is a separate conscious act. Each would then be provable as showing conscious intent. Whereas, in the case of a newspaper, as the circulation is considered one of the chief items of damage, and plaintiff recovers for all the distribution, no conscious intent arises until the defendant consciously as a second edition republishes the article. In each case it is the conscious act which determines.‘” (Emphases in original.) Winrod, 334 Ill. App. at 70 (quoting Seelman, supra, § 130, at 120).
¶ 33 The Winrod court concluded that “Seelman‘s test of the conscious act appeals to us as more rational, and in the case of a newspaper or magazine ‘no conscious intent arises until the defendant consciously as a second edition republishes the article.‘” (Emphases in original.) Id. at 72 (quoting Seelman, supra, § 130, at 120). For that reason, the court held that the miscellaneous copies of Life magazine received on April 13, 1942, and thereafter did not constitute separate publications giving rise to separate causes of actions with different accrual dates. Id. at 61-62, 72. Instead, those copies were held to be subject to the single-publication rule. Id. at 72. Accоrdingly, the plaintiff‘s cause of action accrued on April 11, 1942, and was time-barred. Id. at 60, 72.
¶ 34 In 1959, the Illinois legislature codified the single-publication rule by adopting the Uniform Single Publication Act, which provides in pertinent part:
“No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one edition of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture.”
740 ILCS 165/1 (West 2016) .
¶ 36 However, we need not reach the parties’ arguments regarding the interplay between the single-publication rule and the discovery rule because the July 15, 2015, screening of Murder in the Park in Chicago is a separate publication that does not fall within the ambit of the single-publication rule. The parties discuss Tom Olesker‘s at length, but that case involved a one-time publication of the defamatory credit report by a credit reporting agency to its subscribers, a group of which the plaintiff was not a member. Tom Olesker‘s, 61 Ill. 2d at 131-32. The single-publication rule was not at issue nor discussed. See generally id. Accordingly, Tom Olesker‘s has no real bearing on the instant case.
¶ 37 The single-publication rule does not gather under its umbrella all repetitions of allegedly defamatory material appearing in the same medium. See
¶ 38 The single-publication rule certainly applies where defamatory material is mass-published to the public in a medium where the delayed receipt of the
¶ 39 Section 577A of the Restatement (Second) of Torts, “Single and Multiple Publications,” is particularly illuminating. This section provides, in relevant part:
“(1) Except as stated in Subsections (2) and (3), each of several communications to a third person by the same defamer is a separate publication.
(2) A single communication heard at the same time by two or more third persons is a single publication.
(3) Any one edition of a book or newspaper, or any one radio or television broadcast, exhibition of a motion picture or similar aggregate communication is a single publication.” Restatement (Second) of Torts § 577A (1977).
Of note, comment d on subsection (3) states in pertinent part:
“So far as the cases heretofore decided indicate, the single publication rule stated in Subsection (3) does not include separate aggregate publications on different occasions. Thus if the same defamatory statement is published in the morning and evening editions of a newspaper, each edition is a separate single рublication and there are two causes of action. The same is true of a rebroadcast of the defamation over radio or television or a second run of a motion picture on the same evening. In these cases the publication reaches a new group and the
repetition justifies a new cause of action. The justification for this conclusion usually offered is that in these cases the second publication is intended to and does reach a new group.” (Emphases added.) Id. § 577A cmt. d, at 210 .
¶ 40 Unlike, for example, an edition of a newspaper or magazine that was, upon its first publication, distributed to the general public, Murder in the Park was first screened to a limited audience in New York City on November 14, 2014. This certainly constituted a publication of the allegedly defamatory material, and the premiere itself would be subject to the single-publication rule.
¶ 41 We note that, in the cases holding that the publications at issue therein were subject to the single-publication rule, the publications were “mass-published” to a general or national audience. See Winrod, 334 Ill. App. at 60 (noting that the issue of Life magazine was distributed “throughout the United States“); Blair, 369 Ill. App. 3d at 326 (finding that the photo was “delivered to a mass sector of the public“); see, e.g., Shively, 80 P.3d at 689 (holding that the single publication rule applied to book that had been “generally distributed to the public“); Long v. Walt Disney Co., 10 Cal. Rptr. 3d 836, 842 (Ct. App. 2004) (explaining that, “like a publication in a nationally distributed book, newspaper, or magazine, the broadcasts on national television over a period of many months meant that plaintiffs had access to them, if only as members of the general public“); see also Long, 10 Cal. Rptr. 3d at 841 (“The [single-publication rule] was intended to protect defamation-like claims, implicating First Amendment values and arising from mаss communications.“); see also
¶ 42 In a similar vein, the subsequent screenings in Cleveland and Chicago are not akin to the situation where, for example, miscellaneous copies of a magazine issue containing defamatory material incidentally make their way into the hands of third parties on a later date. See Winrod, 334 Ill. App. at 63-65; see also Wolfson, 4 N.Y.S.2d at 642 (determining that defendants’ conduct of maintaining bound copies of its prior issues in its library and making such copies available upon request by a third party was “passive in character, with nothing to indicate a conscious intent to induce the public or any individual to read the alleged libels” and thus did not amount to a republication). Had the рremiere in New York City been the only time Murder in the Park was shown, there would not have been any other incidental disseminations of the documentary. Accordingly, the additional screenings in Cleveland and Chicago cannot be characterized as passive.
¶ 43 We observe also that the single-publication rule would not serve its purpose if it were applied to encompass the subsequent screenings in Cleveland and Chicago. Specifically, application of the rule would not prevent “ungovernable piecemeal liability and [a] potentially endless tolling of the statute of limitations.” See, e.g., Long, 10 Cal. Rptr. 3d at 841. For example, in Blair, 369 Ill. App. 3d at 320-21, the defendants used the same photo of the plаintiff to promote its restaurant in several ways from 1995 until 2004. Blair specifically analyzed and rejected the argument that the repeated use of the photo constituted separate publications. Id. at 324-25. In doing so, the court noted that “a republication of the plaintiff‘s likeness can constitute a new cause of action if the publication is altered so as to reach a new
¶ 44 Critically, in Blair, the appellate court cited Founding Church for the broad proposition that the single-publication rule provides that “‘any subsequent appeаrances or distributions of copies of the original publication are of no consequence to the creation or existence of a cause of action.‘” Id. at 324-25 (quoting Founding Church, 60 Ill. App. 3d at 588). A closer examination of Founding Church reveals that that court was not referring to all subsequent appearances or distributions of an original publication but of a mass-published article. There, the court considered whether three copies of an allegedly defamatory article could constitute a “second edition or new publication.” Founding Church, 60 Ill. App. 3d at 589. The allegedly defamatory article was “published generally and released in 1968.” Id. Although the three copies were released several years lаter in 1975, the court relied on Winrod and held that the three copies “were mailed on an isolated basis and were nothing more than miscellaneous copies incidental to the general publication of the article 7 years earlier.” Id.; see also id. at 588 (noting that, “[u]nder the Uniform Single Publication Act, no person is given more than one cause of action for damages for libel founded on any single publication, such as one edition of a newspaper or magazine, or one printing of a book” (emphases added)). The court commented that it would be unjust and unrealistic to deem the three copies a republication because “the article in quеstion might well be on file in libraries, and so open to the public anyway.” Id. at 589.
¶ 45 Again, here there were but several distinct and limited screenings of Murder in the Park. Once Murder in the Park was shown in New York City, there was no
¶ 46 Accordingly, because Murder in the Park was republished in Chicago on July 15, 2015, thus retriggering the statute of limitations, Ciolino‘s complaint is timely filed. As a result, we need not address whether the discovery rule applies to the earlier screenings in New York City and Cleveland. See In re Alfred H.H., 233 Ill. 2d 345, 351 (2009) (“As a general rule, courts in Illinois do not decide moot questions, render advisory opinions, or consider issues where the result will not be affected regardless of how those issues are decided.“).
¶ 47 Because the defamation and false light claims are timely, Ekl‘s arguments that Ciolino‘s civil conspiracy claim and IIED claim are time-barred because they are derivative and thus subject to the same one-year statute of limitations fail.
¶ 48 Finally, Ekl asserts that reversal of the appellate court‘s decision is warranted for the additional reason that it wrongly declined to rule on whether the statements attributed to Ekl were actionable as a matter of law. Like the trial court and the appellate court, we decline to reach these arguments. See 2020 IL App (1st) 190181, ¶¶ 79-86. We make clear that we express no opinion beyond the issue of whether the claims werе timely filed.
CONCLUSION
¶ 49 ¶ 50 Because the screenings of Murder in the Park each constituted a separate publication of the allegedly defamatory material, the single-publication rule does not apply. Following the screening of Murder in the Park in Chicago, Ciolino filed his complaint within the one-year statute of limitations. Because the complaint is timely filed, we need not consider whether the discovery rule would apply to toll the statute of limitations.
¶ 51 Accordingly, the judgment of the appellate court, reinstating Ciolino‘s claims against Ekl, is affirmed. We remand the cause to the trial court for further proceedings.
¶ 52 Appellate court judgment affirmed.
¶ 54 Cause remanded.
¶ 55 CHIEF JUSTICE ANNE M. BURKE and JUSTICE MICHAEL J. BURKE took no part in the consideration or decision of this case.