Costello v. Capital Cities Communications, Inc.

776.) In (387 rather N.W.2d judgment. than defeat Adam, ex- event, we to the extent that our decision inconsistent to follow it. pressly decline in the case at to the sympathetic plight plaintiffs

While we are conduct, find evi- bar, do condone the defendant’s we and we judg- to withstand defendants’ motions for summary dence insufficient entry ment. affirm the circuit court’s of judgment We therefore defendants.

Affirmed.

EARNS, P.J., WELCH, J., concur. COSTELLO, CAPITAL CITIES COMMUNI- Plaintiff-Appellee, JERRY

CATIONS, al., INC., Defendants-Appellants. et

Fifth District No. 5 — 85—0236 11, 1987. Opinion filed March STEIGMANN, J., dissenting. Belleville, and Robert Hayes, & Hayes, Murphy Hayes,

Robert J. Rice, Martineau, Lewis & Hessel, all of Hoemeke, Joseph E. John M. B. Communications, Inc. Louis, Missouri, appellant Capital for Cities of St. Erdmann, Erdmann, of Fair of Richard O. Richard O. of Law Offices Heights, appellant Hargraves. for Richard view Belleville, Moore, Ltd., Cueto, Cueto, & Daley,

Amiel Williams appellee. of the court:

JUSTICE JONES delivered Communications, Inc., and Richard Defendants, Cities Capital County of St. Clair of the circuit court judgment a Hargraves, appeal in the jury without a sitting in a trial before the court rendered actual an award of $1,050,000. encompassed The judgment amount of $450,000 damages punitive in the amount of and damages The defendant $600,000. action was for libel. of Plaintiff’s amount the owner of Communications, Cities), (Capital Cities Capital newspaper gen- (News-Democrat), News-Democrat the Belleville Hargraves The defendant Richard in St. Clair County. eral circulation The plain- of the News-Democrat. page the editor of the editorial was the article Costello, was, time of the tiff, publication at the Jerry The case St. board. County the elected chairman of the Clair question, in this opin- detail later time, a fact we will us for a second before ion. the of St. Clair an residents there was issue before

In 1980 District, East Mass Transit for the Metro funding County regarding That agency Agency. Development of the Bi-State instrumentality of Illinois the States into entered between by compact created was interest of mutual to concerns approach to afford a joint and Missouri area. St. Louis metropolitan and counties of the the municipalities to Illinois counties Madison, Monroe are Clair, of St. The counties par. ch. Ill. Rev. Stat. (Cf. the compact. encompassed by seq.) Development Agency (Bi-State) 63s—1 et The Bi-State furnished the public transportation metropolitan to areas of the St. Louis urban area, including the three Illinois counties associated with the agency. funding

The method of for the mass transit became a system subject, much debated various were advanced accom proposals the In en plish legislature the summer of 1980 the Illinois purpose. (Ill. acted an to the amendment Local Mass Transit District Act Rev. 1112/3, Stat. ch. to the par. seq.) gave county et boards Madison, Monroe, and St. the to create authority Clair counties governed transit districts that would a board of trustees ap the pointed respective chairmen of the the county Among boards. powers upon conferred the trustees a sales power impose was 1%, tax of of which would be used to up proceeds subsi 1/4 public (Ill. 1112/3, dize transportation. par. 355.) Rev. Stat. ch. The News-Democrat was adamantly opposed imposition any tax transportation system unless and until such tax was approved by the in an voters referendum. An advisory editorial in 15,1980, issue of September this expressed viewpoint. general election the fall of a can- plaintiff was

didate for the office of chairman of the St. county board of Clair County. Sometime 1980 the September plaintiff was invited to an interview with the editorial board of the The purpose News-Democrat. of the interview was stated be for consideration anof endorsement plaintiff’s candidacy. meeting was held at the office of paper. plaintiff, Pounds, Present were defendant Hargraves, Steven and, times, at reporter, Wile, Darwin publisher of News-Demo- crat. The parties’ accounts of transpired meeting what at the differ. The discussions were were apparently wide-ranging but within governmental ambit local position concerns plaintiff’s regard- ing taxation. Plaintiff testified:

“There a general was my discussion about a need position for new taxes for any purpose; my position was at that time, Board, as I told the Editorial Hargraves Mr. and whoever present when the came that I topic up, was not in favor of new tax for any during reason first my term of office with- out a referendum.” Hargraves gave

Defendant regarding his of the testimony impression content of the He meeting. related that the plaintiff told them that new chairman had to be a county different “because the law had type been changed incoming county and the board chairman would not a on the (Emphasis added.) have vote board.” He then stated that plaintiff had told them that he political had clout and influence in St. County get things Clair to done: of a tax imposition

“He was to the transit [plaintiff] opposed of the He said that—no new people. without a referendum *** a He to going taxes referendum of the was people. without he County use clout that have as vigorously political would Board to that—the personally oppose imposition Chairman and impression of that tax without a referendum. He left that with us, him.” and we believed He of Darwin similar to that of Hargraves.

The Wile was testimony that had told them plaintiff stated

“he do he could to tax increases everything oppose any would that, he without some kind of referendum. When said mind, he stating to me. And very important my became was he making he a commitment to do position, everything increases.” oppose could to tax to plaintiff going had told them that he was be a also stated

Wile op- and that “he not the will to strong only board leader had county taxes, had the on that.” pose ability he deliver strongly In an on the News-Democrat editorial October board, as the candidate for chairman of plaintiff county endorsed his new taxes without a things, opposition any other citing, among referendum. followed, plaintiff election was elected the November first that was margin. meeting county presided The board

wide held December elected chairman was plaintiff newly over the ap- A the transit district direct 29, 1980. to create proposition board, A on the committee of the agenda. of trustees was pointment the advisability in office to study designated by plaintiff’s predecessor district, its record de- adoption. recommended creating had adop- the motion for efforts of defeat tails considerable advi- or, least, on the motion until an tion at to forestall board action lobbying could held. His efforts included referendum sory politicians. local and influential board members and various officials an- met with meeting, plaintiff of the board day On December measure, Hickey, pre- of the board member other vocal opponent until 1981 to table action on the measure April a motion to pare in an refer- advisory time the measure to the voters afford to submit meeting evening, proponent At board endum. the dis- creating of a resolution adoption measure made a motion recognized who pre- then prearrangement plaintiff Hickey, trict. By by prearrangement, plaintiff’s table. Also sented motion board, Hickey’s motion to brother, member of seconded another being taken, table. vote the motion to table was defeated to Upon vote, 6. The motion to the then for create district was called margin, was the same 22 to 6. Plaintiff did adopted by speak not measure, to the and he it. opposition against board did vote officer, As he was from so code that presiding by the prevented doing governed the conduct of the board’s Plaintiff’s as position business. chairman him to officer and serving presiding board limited parliamentarian. Reporter present of the News-Democrat Pound was throughout meeting.

In a section of the desig- News-Democrat December “Opinions,” nated as two editorials 29 crea- addressed the December tion of the Transportation System by county board Metropolitan of St. Clair The County. editorials were carried under the subtitle of “Our The Viewpoint.” first was appear bitterly sarcastically critical of the action the board for its adoption the resolution the district. This editorial furnished creating background some events that led to the resolution adoption gave some indi- cation of the momentum behind as it was proposal presented gave board action. second of the editorials is the one that rise to this case:

As this editorial defendant Richard Har- appears, signed by graves. Hargraves testified that he consulted with publisher had Wile stated, had, writing. They Hargraves decided criticize the board creation- in the vote give people did not choose

“who and I tax; one Mr. Wile and the second of this imposition for not providing Mr. Costello needed to criticize decided to provide.” he had leadership promised vigorous effective regarding an editorial that he had written then testified Hargraves of it to Wile. a draft and had submitted strong that —that that wasn’t said “And then he [Wile]—He lied to us and Mr. Costello had thought he enough, him, criticism vigorous a much more had to take that we he he could—that to think that Mr. Costello that he didn’t want newspaper’s the thing get and type with this get away could support again.” writing people to four before that he had talked also stated

Hargraves members Wile, and, telephone, board Pound, by item: reporter and Anderson. Hickey of defendants’ part direct examination on testimony

In his edi- drafting participated that he had case, testified Wile gave and then asked this question He was plaintiff. critical of torial this reply: to pertaining conversation

“Q. specifically Do recall you in the editorial? ‘lie’ the use of word the editorial a draft of brought Yes, Hargraves A. I do. Mr. very impor- that it was it; thought me, I read and to and back in- to us. I had lied that Mr. Costello out point tant we editorial, he and that in the to include Hargraves Mr. structed did.” subsequently Editor” a letter “To the 4, 1981, wrote plaintiff January

On to the December response that it It stated was the News-Democrat. shrill, upon attack personal that because of 31, 1980, editorial and readers, to Mr. his response direct he would integrity his of his often-stated a review of the letter was The content Hargraves. the imposi- district and the mass transit the creation of opposition critical of It was highly referendum. advisory tion of a tax without of the News-Democrat the hands had received at the treatment he at the endorse- transpired had of what the misrepresentation and of stating by The letter closed 1980. meeting September ment person’s upon false assaults knowing, permit does not that the law redress.” seek-my law I will through the that “it is integrity News- never published the editorial was response Plaintiff’s its was published it was not the reason stated that Democrat. Wile the editorial. of a lawsuit over threat concluding editor, in his promised brought As letter to this action in court against Capital Hargraves. libel Cities and The circuit sustained a motion for complaint judgment to dismiss the and entered the defendants. Plaintiff issue and we considered as sole appealed, in the case complaint whether the was a cause of sufficient state action. Resolution of that turned upon pub issue whether the editorial lished on December constituted libel se. held that it per We did, and we the judgment dismissing reversed and re complaint manded the proceedings. (Costello Capital case for further Cities Media, 13.) 111 Ill. name (1982), App. (The N.E.2d Cities was after the in the first Capital changed appeal.) decision $1,050,000 The trial remand upon resulting oc judgment curred as have above, we described we now consider defend appeal. ants’ (1) Defendants raise four issues: whether the statement that “Costello lied us” protected opinion, (2) whether, in any event, the evidence failed convincing to show clear and case ac tual (3) malice or falsity, whether, evidence, the edito considering se, rial was not libelous per (4) whether the damages awarded were excessive and violative of precepts. constitutional

Recovery for a statement offi defamatory concerning public cial may be allowed if it only is established clear and convincing evidence both that the utterance is false and it that was made with knowledge of its or in falsity reckless disregard whether was false or true. New York Times Co. v. Sullivan 376 U.S. L. Ed. 2d 710; 84 S. Ct. Wanless v. Rothballer 115 Ill. 2d 158, 503 N.E.2d

In St. Amant v. Thompson (1968), 727, 390 20 Ed. U.S. L. 2d 262, 1323, S. Ct. 88 Court restated the York Supreme New Times test to be that the plaintiff in defamation action must that the prove defamatory is, publication was made actual malice—that "with knowledge it or disregard that was false with reckless for whether it (Tunnell was false or not. Intelligencer, (1969), v. Edwardsville Inc. 239, 43 Ill. 2d 252 N.E.2d The for 538.) disregard reckless the truth that is to a in requisite proof of malice described terms of the sub of jective actor, frame mind of the and recklessness is said to exist only where a in to defendant fact entertained serious as doubts truth (St. 727, of his v. publication. Thompson (1968), Amant 390 U.S. 20 262, L. Ed. 2d S. 1323; (1986), 88 Ct. Wanless v. Rothballer 115 158, 516; Ill. 2d 503 N.E.2d (1980), Catalano v. Pechous 83 Ill. 2d 146, 350; 419 N.E.2d Intelligencer, Tunnell v. Edwardsville Inc. cf. 247, 538, aware, 2d (1969), 239, too, Ill. 541.) We that “[¡Judges, Constitution, as of expositors must independently whether in the is sufficient to cross the decide the evidence record that of entry any judgment constitutional threshold bars actual malice.” Bose convincing proof clear of supported by States, 485, (1984), 466 U.S. Corp. Consumers Union United 502, 1949, 499-500, 516, 1959; 80 L. 2d 104 S. Wanless v. Ed. Ct. 158, 2d Rothballer 115 Ill. 503 N.E.2d 516. case,

In the appeal argued first of this the defendants rule the editorial language under the “innocent construction” appeal should be found to be not the instant defendants libelous. rule, mention their preferring place the innocent-construction only the claim that the editorial is emphasis upon constitutionally protected of an Defendants state: expression opinion. exists,

“In the Court determining protection whether such must be innocent rule which re- guided by the construction context, in with the the statement ‘be considered quires natural given their implications words and therefrom If, construed, ***.’ the state- meaning obvious as so [Citations.] ment then is not reasonably interpreted opinion, as may actionable.” the case of Ollman v. position

Defendants’ is based principally upon (1985), 471 U.S. 750 F.2d cert. denied (D.C. 1984), Evans Cir. case the court L. 2662. In Oilman Ed. 2d S. Ct. guidelines determining four for use in factors serve developed alleged expressions statements defamatory privileged whether were The or actionable statements fact. Oilman court found opinion de justification “privileged expression opinion” approach its termine whether statements were libelous alleged defamatory Welch,Inc. 418 U.S. Court of Gertz v. Robert Supreme case Ed. 94 S. 2977. The court stated: 41 L. Ct. Ollman in abso Gertz, provide “In dicta seemed to Supreme Court for all opinions from defamation actions immunity lute the First Amendment.” immunity for this discern the basis (D.C. 1984), Cir. 750 F.2d added.) (Ollman v. Evans (Emphasis 970, 974.) precision, the statement’s (1) are: adopted

The four factors Oilman context in which verifiability, (3) literary the statement’s (2) in which the state- made, context (4) statement ment was made. an utterance constituted determining whether approach ex expression merely protected

statement fact of cases a number adopted in Ollman v. Evans has been pressed that the However, would not mentioned here. we observe that need be

965 implementation has approach Oilman not made a court’s task in a defamation case any simple more or decision less suscep- Newsweek, instance, tible of error. For in v. (8th Janklow Inc. Cir. 1300, 1302, 788 F.2d 1986), “Opinion court stated: is absolutely protected Welch, under the First Amendment. Gertz v. Robert 323, 799, 418 (1974), 329, 789, 2997, U.S. 41 L. 2d 94 Ct. Ed. S. 3001. But is is line bright hard draw between ‘fact’ and ‘opin- ” ion.’

Although the Illinois Supreme Court has mentioned v. Oilman rule, Evans and the “protected expression opinion” it has never it, choosing followed instead adhere the “innocent construction rule.” The Illinois innocent-construction rule was adopted case of John v. (1962), 437, 105, Tribune Co. 24 2d Ill. 181 N.E.2d cert. 877, 114, denied 371 U.S. L. (1962), Ed. 2d 83 Ct. S. and modi Chapski fied in Copley 344, 352, Press 92 Ill. (1982), 2d 442 N.E.2d modified, 195,199. As the rule states:

“We therefore hold that written or oral statement to be context, considered with the words and the implications if, therefrom their natural given meaning; and obvious as so construed, innocently the statement inter- may reasonably be be preted reasonably referring to someone interpreted plaintiff other than the it per pre- cannot be se. This actionable liminary determination is properly question law be re- solved by instance; court in first publica- whether the tion was in fact defamatory understood to be or to refer question is a for the jury should the initial determina- tion be resolved in of the plaintiff.” favor The innocent-construction has followed rule since been su preme (1983), court Fried v. 99 Ill. 2d Jacobson and Owen v. Carr 113 Ill. 2d 497 N.E.2d 1145. Not has the Illinois Court only Supreme adopted “privileged not ex rule,” pression opinion they had occasion to it (although criticize decided) the Oilman case in since it had not been particular yet the case of Catalano v. Pechous Ill.

N.E.2d 356-57: stated,

“So the contention that Pechous’ statement was not charge reduces to claim that when a of crime is defamatory must speaker, an inference drawn be only based treated as no more than an thus expression of defamatory. position ceases to We do not believe that such a on which the defend- supported by language from Gertz entirety, in its reads: passage, ants rely. no such as a thing the First Amendment there is

‘Under seem, an we de- may false idea. However pernicious opinion its not on the of and judges for correction conscience pend on of ideas. But there is no but the other juries competition in false of fact. Neither the constitutional value statements lie the careless advances so- materially intentional nor error “uninhibited, robust, de- wide-open” interest in ciety’s Sullivan, New York Times Co. v. 376 bate issues. 789, 323, 339-40, 270.’ 418 41 L. Ed. 2d at U.S. U.S.

S. Ct. in give here would a defendant a defa- argument made the immunity mation suit an absolute rather than limited immu- York Times on a whose defama- person conferred New nity without malice.” (Emphasis statement was made actual tory added.) dicta, in to the supreme again,

In the court referred Owen v. Carr of rule and the case. Af cited Oilman “protected expression opinion” the rule ter the case on the of innocent-construction deciding basis 273, 279, Ill. 2d 497 N.E.2d (see (1986), Owen v. Carr 1148), court stated dicta: the observe, too, recognized the has Supreme

“We Court of privilege expressions opinion. constitutional [Citation.] of fact or of judged a statement is to be to be one one Whether the involved [citation], language is a matter of law opinion whether state must considered in context determine the be opinion an of expression ment should be construed [cita stated, may reasonably be viewed as As the statements tions]. his client’s regarding allega of an Carr’s expression 113 Ill. v. Carr 2d against (Owen tions Owen.” 280-81, 1145, 1148.) Co. Chicago Insurance

In recent case Stewart v. Title Ill. followed dicta in Owen Carr court App. however, it We, believe that v. Evans in a libel case. deciding Ollman the point. our court on supreme is not in accord with decisions of the December our resolution of the issue whether libelous, innocent-construc we followed Illinois editorial was have than rule tion rather the protected-expression-of-opinion rule the “four factors” Our assessment Ollman v. Evans. above, seem another modifi Ollman, to be but which we have set out lacking rule. ob They cation innocent-construction of the does, deem We, our court supreme apparently jective specificity. and certainly more easily applied to be the innocent-construction rule suit, more understood. defendant in no easily Any any defamation shrill, acerbic, matter how profane, may accusatorial utterance be, can an always say, only expressing opinion, “Why, di- privileged.” that’s We do not believe law defamation should gress far, so as could if happen “protected opinion” expression rule is full given sway. The innocent-construction rule not permit does such extreme digression.

We considered the first of this case appeal upon pleadings and determined that the se. question editorial in constituted libel per stated: We out,

“As instant plaintiff points the editorial in the case re peatedly attacked him as a ref explicit liar and also included an erence ‘two more of the years lying Costello brand leader ship.’ The language editorial makes quite apparent that it was an actionable assault on character in plaintiff’s general, not mere criticism of his conduct in particular stance. we that the Accordingly, find editorial constituted libel it per se because imputed plaintiff an inability perform his a duties and want of or of integrity honesty per lack in forming the duties his (Costello of office.” v. Me Capital Cities dia, (1982), 1009, 1014, Inc. 111 Ill. 13, 3d App. 17.)

We reversed and remanded for further proceedings to determine whether plaintiff could establish actual malice clear convincing evidence. The evidence proof in the case are us, now before our consideration of that evidence and proof compels us to reaffirm our previous determination that the editorial before us is per libelous se and that it was indeed with the published requisite actual malice. cognizant We are that there fully profound national commitment to the uninhibited, that debate on principle public issues should be ro- Times, bust, and open (New wide York Inc. v. (1964), Sullivan 376 254, 686, U.S. 11 L. Ed. 2d 84 710) S. Ct. and that for candidates public office, having “thrust themselves to forefront of particular *** controversies have in- voluntarily exposed themselves to *** Welch, of creased risk defamatory (Gertz falsehood.” v. Robert 323, 345, (1974), 2997, Inc. 418 U.S. 41 L. Ed. 2d 94 S. Ct. 3010.) However, considered, that said and we have determined that the defendants cannot protection claim the afforded the first action, amendment as a defense to plaintiff’s for the editorial in ques- tion of goes beyond well bounds criticism. protected our consideration of this case in the first appeal, we discussed of 780, case Fried v. Jacobson 107 Ill. 3d (1982), App. N.E.2d 495, constituting and from it listed four of libel categories words in Fried case per granted se. court leave supreme appeal per to the constitute se categories and affirmed as of words that libel in Illinois:

“An se per requires action defamation based libel and natu obviously the words used are in and of themselves so rally damages proof special unnecessary. harmful Lines, 345, 41 Ill. 2d (Zeinfeld Hayes Freight words, Illinois, law, 348.) In the common four classes under for defa communicated, if to a cause of action give rise falsely showing damages. They mation without a are: special offense; ‘1. Those a criminal imputing commission of 2. Those infection with a communicable disease imputing which, one from true, if would tend to exclude any kind society; Those or want of imputing inability perform integrity

in or discharge employment; of duties of office his party profession

4. Those prejudicing particular (1965), 59 Ill. Whitby Corp. v. Associates Discount trade.’ 337, v. Greater approval Coursey cited with App. 2d 40 Ill. 261.” Township Corp. (1968), Publishing Niles Ill. 2d (Fried v. Jacobson N.E.2d 394.) liar in labeling held in the first that in its

We appeal times, think, editorial, once, with “Just concluding but five leadership,” got years lying we’ve two more Costello brand or want of imputed “inability perform integrity the defendants employment.” of duties of office or discharge above, by proof we actual malice is established As have stated it that was knowledge made with defamatory publication false or not. Those disregard or with reckless whether was false and con- the in the case clear plaintiff have been met by standards not lied to either the evidence. It is that had vincing plaintiff evident assertions repeated or the Inserted between the public. defendants charges plaintiff a leveled at the that was liar were several a reckless disre- either knew were untrue showed that defendants where charges true As to those gard they for whether or false. were easily a lack the truth was profess knowledge, defendants of might of had truth been one their ascertainable defendants readily and editorial that plaintiff The defendants stated the concerns. chairman, espe- a going tough county

“said he was to be board money. to spend taxpayers’ members cially when board wanted any He he would militan the tly oppose implementation said seeking through new tax without first the voters’ approval the He he the Board down County referendum. said would lead Well, the of the he proper protecting rights paths, taxpayers. lied.” the exaggerated verbiage,

Even when of its overdrawn and stripped false. he ex- statement was Plaintiff’s evidence showed that in fact erted to the every effort defeat creation the mass transit district its tax the and ensuant until the could be submitted to proposition voters in an advisory many people referendum. Plaintiff talked to board, and to other of the political prominence county members both those favor the those known to to it. He lob- proposition opposed members, with the leader of bied the coalition county black board to no avail the community public transportation. because black needed The from response many others was were in people need similar — the dis- public transportation favored creation of the mass transit trict. board, David of the Clair Hickey, County during member St. his was asked the testimony plaintiff’s position whether creation of the transit district was well known an- before December He known,” swered that it “well was known widely to avidly, vigorously opposed the creation of tran- “[h]e sit district without vote in the refer- townships, advisory the endum in townships affected.”

Plaintiff testified that he had worked to advance his opposition to creation of a transit district imposition a tax.

“Both prior my position and after election I made well through known the news media. I believe I ex- stated in an here, hibit back in January 1980 that articles were carried News-Democrat. They were carried in other newspapers, through the radio stations and St. Louis television I stations, that was to the creation of the transit dis- opposed that, trict until after a my referendum. In addition to made Board, clear position very to members of County throughout officials and to county my constituents who elected me office.”

Despite language editorial, of the December well defendants were aware of plaintiff’s opposition activities the transit proposition. appeared An editorial in the November 1980, issue of the issue. ed- News-Democrat addressed transit itorial was under the banner “St. face Bi-State County Clair Board crisis.” system ap- bus It noted that if transit did receive proval funding January sys- local transit plan by (including to the East Side St. tern would reduce service drastically plaintiff: Clair The editorial mentioned County). tax increase with-

“Costello said he form of new opposes any Costello During campaign, out a referendum. his countywide if a vote he favor not the Jan. deadline abiding by said would on the issue could be taken. it ‘a calling during campaign,

He was critical of Bi-State mismanaged candidate for the most agency.’ Louis, are big But some areas of the like East St. county, a hard- users of the Drastic cuts in service could be bus service. well-represented on East St. Louis residents who are ship *** Board. County Darius will meet with Board Member County Costello Board Chairman Nel- County Monken of O’Fallon and Madison to if the three Illinois counties have Hagnauer son determine the sales tax. funding through an alternative to Bi-State of a Board committee County Monken is chairman funding controversy.” has studied the Bi-State 31,1980, The editorial of December continued: things night, “He those Monday thereby didn’t do at his first promise very his most sacred breaking campaign meeting. binding to conduct a County opportunity Board had if to a new sales tax to asking you pay

referendum wanted you Costello very thing the Bi-State bus That’s support system. strongest in the promised, had he would do. He had pledged terms, that he let the voters decide.” possible would that the are false. The defendants well knew These statements either to a tax for authority impose board did not have the county referendum binding of the transit or to call for a support system sales tax” as a method of whether “new determining voters to defendants imposed. patently promised should Plaintiff never let the decide.” Such a decision else that he “would voters anyone that of the board as county his but beyond only authority and Wile shows above Hargraves well. The of both testimony in the News- Moreover, appearing editorials statement be false. that, exercised, if had would knowledge Democrat show defendants 31, 1980, attack charac- upon plaintiff’s have the December prevented column of the De- “Opinions” ter. There were two editorials the at- The second was 31, 1980, issue of the News-Democrat. cember “St. one carried under banner tack The first was upon plaintiff. decide,” it give a chance County you Board refuses Clair following: contained the transit for St. creating

“While district proposal [the Bi-State it County] give taxing powers directly Clair didn’t let thing: did next It boards create County taxing best taxing district do the for Bi-State.” This remark shows that the contemporary knowledge defendants could itself a tax county impose support board to the transit dis- trict.

In an column “Opinions” 15, editorial appearing September decide,” under the “The banner voters should a succinct state- given ment was by defendants of the method and processes be fol- lowed in creating a mass transit district and tax authorizing a to sup- it: port Clair,

“The St. Madison people of and Monroe counties de- for if serve decide themselves wish a cent they one-quarter tax for sales them transit imposed upon services.

But the Assembly right General has them that to de- denied cide.

So has Gov. R. Thompson. James The only remaining is the hope county boards coun- ties involved.

Gov. Thompson Thursday signed a measure establishing a system, Bi-State transit otherwise as known the Bi-State Bus Bail-out Bill.

The bill gives district, formed, transit if right to im- as much pose quarter as cent tax in sales the counties. To district, tax, form the and levy county boards must vote to join. Many, including Rep. Watson, Greenville, State Frank R—

wanted the measure to include referendum to let voters de- if they join cide wanted to and taxed or be out and do stay with limited bus service.

That’s what we recommended. still We believe voters alone should decide if they are deal with a new tax. in the General

Unfortunately, majority Assembly and the governor disagree.

* * * if surprised We wouldn’t the three county board chair- men, fellows, and their went ahead implemented plan without their asking people for direction.” “Opinions” Another column appearing editorial on December under banner “Bi-State going isn’t our this: way” contained Monroe counties have in Madison and “The boards comity to create Bi- agreed given up fight in. given They’ve remains uncommit- County But St. Clair taxing State’s district. taxpayers’ only hope.” ted. It is the of defend- signature over the appeared

All of the editorials foregoing ant Richard Hargraves. editorial in the December

The attack defendant upon continued by saying: there up decision he was when the time came to make a

“But on his sitting gavel.

Some leader! tell him from other bunch. politician You couldn’t interests. nothing He absolutely protect your did * * * think, more of the Costello brand got years Just we’ve two leadership.” lying stated, the conduct governing under the rules already

As we have could not board, the chairman the St. Clair meetings County action; his au- and resolutions board presented to the issues speak parliamentar- serving officer presiding limited thority was established law the board was position ian. Plaintiff’s before community. in the knowledge was of common to the unavoidable of the has led review evidence independent Our made with attack was upon plaintiff that the editorial conclusion of its un- knowledge actual in that it was made with actual malice it was true or a reckless for whether disregard truthfulness or with the fact that the accusa- their own paper not. Articles in established talked Hargraves were untrue. Defendant tions leveled at the plaintiff these, Hickey Of the editorial. preparing four before only people board, told him they county members of the and Anderson were Har- for the article. background as a factual that could serve nothing meeting 29 the December plaintiff talk to the between graves did not 31. on December editorial appearance of the board 30, on December office plaintiff’s that he called Hargraves testified return the in,” plaintiff “not and left word for told he was was all on December day that he was in his office call. Plaintiff testified reach plain- effort to event, made no further Hargraves In either Pound, who reporter talked to News-Democrat tiff. also Hargraves at the testify did not meeting. 29 Pound had attended the December stated, have Wile. As we publisher talked to Hargraves finally trial. plaintiff critical to rewrite an editorial Hargraves told Wile stronger it in order to make Hargraves had been submitted 973 that con- devastating language That was done call a liar. character. plaintiff’s attack upon and unwarranted stituted a vicious concede damages. They relates argument final Defendants’ is libel writing that a finding presumed upon be damages may Ill. App. 101 Library (1981), v. Public (Britton ous se. per Winfield C.J.S., sec. 262 650; Libel & Slander 546, 53 428 N.E.2d 3d cf. the award of com much, contend that they as (1948).)Having granted $450,000 unwar wholly in the amount damages pensatory v. Citing evidence. any support ranted and without Bloomfield 88, and 158, 302 N.E.2d 14 Ill. 3d (1973), App. Co. Retail Credit 789, 323, 94 Welch, 41 L. Ed. 2d (1974), 418 U.S. Robert v. Gertz pre damages” may that ‘‘substantial 2977, assert they S. Ct. dam regard punitive agree. With assertion we With such sumed. of discretion an abuse contend that was ages, defendants in the amount damages, especially punitive court to award in a libel damages $600,000, and, further, contend that they punitive I, 4, of the Illinois Constitution action violate article section freely, being responsible write and (“All may speak, publish persons that puni of that with defendants liberty”). agree for the abuse We case, for rea although were awarded in this damages improperly tive v. Granite they from those advance. sons different Cf. Schutzenhofer 563; v. Central 93 Ill. 2d 443 N.E.2d Motz (1982), Co. City Steel 958; Supreme 119 Ill. 3d App. National Bank 366(a)(5)). Ill. 2d R. 366(a)(5)(87 Rule Court pu the issue of order, consider first we will Proceeding in inverse Ill. App. Fopay v. Noveroske damages. nitive of an 79, 91-92, 196-97, propriety N.E.2d we considered we ob action. There damages a defamation punitive award served: punitive that an award of argues

“The defendant further actions the first amendment libel damages precluded by rule. This has been argument the New York Times governed by rejected by just consistently advanced and consistently Publishing Co. (Curtis States. Supreme Court United Butts, 130, 159, 18 L. Ed. 2d 87 S. Ct. 388 U.S. *** (1967).) Welch,Inc., 418 recent v. Robert While the decision Gertz 323, 789, 2997 will have (1974), 41 L. Ed. 2d 94 S. Ct. U.S. plain- of defamation of private on the law wide-ranging impact damages under punitive their to recover inability tiffs and retreating standard, not read the decision as we do negligence are damages holdings punitive the Court’s previous from 974 recoverable under the actual malice text of New York

properly *** Times. rights concerned, So far as first amendment are a plaintiff who satisfies the New York Times rule recover may punitive however, damages; say may this is not to States greater or additional tests as a condition to the recov impose Co., (Cantrell v. Forest ery punitive damages. Publishing 465, 419, 419 42 L. v. (1974); U.S. Ed. 2d 95 S. Ct. 465 Davis Schuchat, (D.C. 510 F.2d 731 see also v. Lit 1975); Buckley Cir. tell, (S.D.N.Y. 1975).)” 394 F. Supp. damages

It is well in Illinois that punitive may established fraud, malice, torts committed actual be awarded when with delib or oppression, wilfully erate violence or or when a defendant acts such as to indicate a wanton gross negligence disregard with Motorola, 172, of others. v. Inc. 74 Ill. 2d rights (Kelsay (1978), 353; 550, v. Le 142 Ill. May (1986), App. N.E.2d Warren 3d N.E.2d 464.) purpose punitive damages punishment While deterrence, the initial answered is whether question be their particular justify imposition; facts and circumstances of case this is a v. North American Asbestos question (Hammond law. 195, Nevertheless, Corp. (1983), 210.) 97 Ill. 2d 454 N.E.2d because of nature, law, their penal damages are not favored punitive im damages the courts must take caution see that are not punitive awarded. Hammond v. North American Asbestos properly unwisely Motorola, 195, 210; v. Corp. (1983), Kelsay 97 Ill. 2d 454 N.E.2d 172, 353; May (1986), 74 Ill. 2d 384 N.E.2d Warren v. Le (1978), 550, Ill. 491 N.E.2d 464. App. 3d

Since actual.malice is the action gist plaintiff’s against libel defendants, one of those ordinarily thought types would be that, an award of proper findings, justifies punitive action 182, v. Noveroski 31 Ill. 334 N.E.2d damages. (Fopay (1975), App. However, if the 79.) recognize Illinois has come to proposition damages factors that an award of are them ordinarily justify punitive to re selves the basic elements be established order necessary damages, damages cover an award of addi compensatory punitive damages impermissible tion to the constitutes an double compensatory This has been established and su recovery. principle developed 82 Ill. 2d Zeigler (1980), court cases of v. Coal Co. preme Dethloff 393, 412 N.E.2d Hammond v. North American Asbestos Co. Manor 97 Ill. 2d 454 N.E.2d and Harris v. (1986), 111 Ill. 2d 489 N.E.2d 1374. Corp. Healthcare Dethloff 526, the 82 Ill. 2d defend- Zeigler Coal Co.

975 in guilty mining ant was of a land and trespass plaintiff’s wilful removal coal. court supreme of The refused to the defendant permit in of production damages to deduct its costs of the assessment “to misconduct that The court stated: discourage nature.” a we that “Turning plaintiffs, contention of the hold in punitive trial court was correct their claim that denying damages above, were warranted. As have we observed harsh rule on to a damages applicable trespasser wilful and converter of coal is its The very punitive. plaintiffs nature were awarded far what have re damages beyond they would through royalty ceived and the defendant should not payments, in punitive damages upon pu be liable what would be effect 393, 413, damages.” (82 526, 536.) nitive Ill. 2d 412 N.E.2d Corp. (1983), Hammond North American Asbestos In 195, 97 Ill. 2d 210, 454 the result in bearing N.E.2d was less direct its on the propo us, sition meaningful before but nevertheless we in its im regard There the a port. plaintiff was the wife of worker who been in had by the inhalation of jured asbestos fibers. husband’s action for damages limitations, had been barred statute but the wife’s action for loss of consortium In it sought was viable. she both com pensatory punitive damages. damages were Compensatory ap punitive proved damages but were denied because wife’s injury did, however, derivative nature. The court cite cases from the as as jurisdictions, authorities, well other that stood for the proposi tion that courts will sanction a second for punitive award dam in a ages consortium action where a spouse has received such already an award. Such an additional award would serve to a defend punish ant second time and result double windfall to the injured party and the spouse. In Harris v. Corp. Manor Healthcare 111 Ill. (1986), 2d 489 N.E.2d the plaintiff sought treble under damages section 3—602 Home Act Nursing (Ill. Care Reform of 1979 111/2, Rev. 602). Stat. ch. A par. plain second count 4153 — tiff’s complaint sought both compensatory punitive damages upon based defendant’s wilful and wanton misconduct. The supreme court refused to permit recovery damages both treble afforded under the statute and common punitive law damages: agree with the parties treble-damages provision

“[W]e Atchison, & Santa of the Act is punitive Topeka (see in nature Ry. Fe Co. v. People (1907), ex rel. 279; Ill. People Fahner v. Climatemp, Ill. 1080- App. 81), and that of both recovery damages treble and common law punitive would, case, under damages the circumstances of this a double for a v. Ma recovery single injury.”

constitute Harris Corp. nor Healthcare Ill. 2d 1374, cases,

It with con teaching foregoing is with the that we given regarding damages, sideration policy punitive here, libel, gist is the of an action for hold where actual malice damages damages cannot be recov compensatory punitive both fact, nature of the conduct that will justify ered. essence and is the same as the conduct recovery compensatory damages punitive damages. Accordingly, must be shown in order recover allow both would constitute a double recovery.

We defendants that the amount of the agree must Although award of consider compensatory damages excessive. we defendants’ attack to be harsh and upon plaintiff’s unduly character vicious, the re damages assessed must nevertheless reasonable bear mindful, too, to the harm suffered. that in this lationship We remain damages are Plaintiff himself no re presumed. gave testimony case fact, the harm he In the witness testified only suffered. who garding wife, damages was his who stated was plaintiff’s plaintiff toas “incensed,” testi “humiliated,” “sleepless.” and Others “distraught,” note, in the We community. reputation fied as to excellent plaintiff’s of the St. Clair as chairman too, that reelected the consider Having in due election County general board at extent and for the publication ation for the nature of defendants’ au to to the acting pursuant caused suffering plaintiff, for thority 366(a)(5), Court Rule we reduce Supreme judgment damages $200,000. compensatory

Judgment damages reversed; for punitive judgment compensa- $200,000 $450,000 from and affirmed. damages reduced tory in part. modifiedin reversed part; Affirmed and KASSERMAN, J., concurs. STEIGMANN, dissenting:

JUSTICE minds, plainest opinions obvious to the must be “[I]t observations, many are not inferences, conjectural only facts, of the often be more may cases from the but inseparable *** themselves; than the facts objects prosecution [I]t those who bring the intent impossible punish manifestly without contempt, into government disrepute administer characters right discussing public striking freely at ***” measures. James Madison discussing Sedition Act of 1798, as reported in 4 Elliot’s Debates on the Federal Constitu- tion, 575.

Although almost years have since the passed enactment of our Constitution, Federal some of the controversies which confronted Framers, particularly amendment, area of the first are just as fresh and difficult to resolve now as were in they 1789. This case is an appeal example. The case concerns libel judgment obtained by a local public against official a newspaper and its editorial ed- page itor. The task Ias see it is one James Madison and the other Framers would well have understood: balancing an individual’s right protect his reputation against a newspaper’s to criticize right public officials. issue, order to resolve this I will discuss at the claim of length defendants, summarily rejected that their majority, allegedly statements defamatory are protected constitutionally opinion. will to determine attempt how “inseparable,” it, as James Madison put facts are from particular this case.

I. DEFENDANTS’ ASSERTION THAT THEIR STATEMENTS ARE CONSTITUTION- ALLY PROTECTED EXPRESSIONS OF OPINION

In order to properly consider defendants’ claim that the allegedly libelous statements constitutionally protected expressions opin- ion, it is to trace necessary the source of this claim and to discuss the criteria to be employed its determining Furthermore, validity. standards governing review of this claim and the policies which un- derlie those standards must be ascertained.

In my discussion, I will quote from decisions of other extensively courts that and, have wrestled with these issues ana- my judgment, them lyzed appropriately.

A. Opinion Constitutionally The Source of the Claim that Is Protected In Ollman v. (D.C. Evans Cir. 1984), (en banc), F.2d 970 cert. 1127, denied 471 U.S. 278, 2662, 86 L. Ed. 105 S. Ct. case will be citing frequently, the court had before a libel suit brought two against columnists, nationally syndicated Rowland Evans and Novak, Robert based upon allegedly defamatory material concerning that had plaintiff appeared in their column. The district court granted defendants’ motion for summary judgment, concluding in- and their opinion that the column reflected the columnists’ simply The district court held writings. Oilman’s terpretation amendment, and the the first absolutely protected by plaintiff appealed. case many present

Because of the similarities between of the Oilman, court’s analysis I believe that almost all of Oilman to this as well. That court issues it on case appeal applicable before the following: stated the delicate and sensitive task

“This case us with presents of free ex- the First Amendment’s accommodating protection law’s of an indi- protection of ideas with the common pression It that the free flow interest in is a truism reputation. vidual’s to our democratic opinions integral system of ideas and *** time, interest in At the same an individual’s government. order. Its is an highest protection his or her is of the reputation the dig- afforded expression respect historically eloquent A defam- Anglo-American legal the individual in culture. nity of livelihood, an individual’s wreck destroy statement atory may his sense of seriously impair in the standing community, his and self-esteem. dignity in- competing these accommodating task in judiciary’s law, the fair comment no means new: at common

terests is by actions as to from libel immunity doctrine bestowed qualified express in order that writers could opinions certain types However, interest. subjects public their views about freely Welch, Inc., 323, 94 S. Ct. v. Robert 418 U.S. since Gertz has the nature of this accommodation 41 L. Ed. 2d 789 Gertz, in dicta Court fundamentally changed. Supreme actions immunity from defamation provide seemed to absolute immunity the basis for this all and to discern opinions its of the case began analysis Amendment. The Court First stating: a false is no thing the First there such

Under Amendment seem, depend we opinion may However pernicious idea. judges juries correction not on the conscience for its But there is no consti- of other ideas. competition but on the Neither the inten- value in false statements of fact. tutional society’s materially error advances tional lie nor the careless on the ‘uninhibited, robust, and debate wide-open interest Welch, 418 U.S. issues.’ v. Robert [Gertz 92 S. Ct. 323, 339-40, 41 L. Ed. 2d (1964), 376 U.S. York Times Co. v. Sullivan New quoting

979 254, 270, 710, 11 L. Ed. 2d 84 S. Ct. 720.] statement, By this Gertz elevated to constitutional principle at opinion, distinction between fact and which common law had the basis of the doctrine of comment. formed fair Gertz’s implicit command thus state and imposes upon both federal courts the as a duty adjudication matter of constitutional to dis- tinguish facts from in order opinions provide opinions with the requisite, absolute First Amendment 750 F.2d protection.” 970, 974-75.

I concur this reasoning holding opinion constitu tionally protected, and the Supreme Illinois Court has done recently as (See so well. v. 113 Owen Carr Ill. 2d 1145, 1148.) agree I further that this court duty has a to distinguish here, from opinion presented, fact when as allegedly with a claim that defamatory material is constitutionally protected opinion.

B. Opinion: A Difficult, Necessary, Fact versus but Distinction Even though I believe court this is under a constitutional duty to fact from I distinguish opinion, readily difficulty concede the Indeed, of the task. several and legal courts scholars have argued strongly that such a distinction is logically impossible meaningless. pointed Oilman, As out in Court Supreme gave in Gertz no guid- Thus, ance on this issue. have searched elsewhere for appropriate analysis.

Professor Prosser observed distinction between fact and has one, be a “proved most and unreliable unsatisfactory practice.” Prosser, difficult draw in W. Torts sec. at 820 (4th 1971). Titus, ed. See also H. Statement Fact Versus Statement Opinion Comment, Spurious Dispute in Fair 15 Vand. L. Rev. —A (1962); Carman, C. Neglected Hutchinson Proxmire Fair Comment An Malice,” Alternative to “Actual Defense: DePaul L. 12-21 (1980); Wigmore, Rev. sec. Evidence at 14 (Chadbourn 1978); Graham, rev. E. M.& Illinois Evidence sec. Cleary 701.1, at (4th 1984). 443-44 ed.

Speaking Ollman, for the majority Judge Starr observed:

“In formulating a distinguish test to between fact and opin- ion, courts are with a admittedly faced dilemma. Because of richness and diversity language, capacity evidenced same words to different convey meanings different contexts, is quite impossible lay bright-line down a or me- 970, 977-78. 750 F.2d chanical distinction.” much statement quoted referred to Justice Holmes’ Starr also Judge 372, 376, 418, 425, 62 L. Ed. 245 U.S. (1918), in Towne v. Eisner unchanged; a and crystal, transparent “A word is not S. Ct. 159: in color and greatly and living thought may vary a it is skin of it is the time in which and according content circumstances used.” of distin problem discussion of eloquent the most

Perhaps the concurring opinion is found in guishing opinion between fact and in Judge Bork Ollman: se- categories versus simple opinion], “I do not think these [fact defined, descriptive with their flat and barren mantically resonance, are nature, subtlety nearly their utter lack of factors that variety the rich should encompass sufficient sense, certainly which I have is a there when analysis into go amendment the first protected meant to be here, that values 970, 994. 750 F.2d are threatened.” is not a dif- ‘fact,’ ‘opinion,’

“The so-called difference between absolutes, mere differ- but a contrasting or opposites ference between Mc- boundary.” line to mark the recognizable no degree ence with words, there 11, at 22 In other Cormick, (1954). sec. Evidence “opinion” “fact” and descriptive designations linking continuum extremes, concepts may readily these different where, at their other; however, as one jour- from each distinguished identified one extreme to the dock from the dock of continuum along neys Yet, as ex- of uncertainty. sea other, gray traverses vast of the one to chart duty constitutional earlier, it is this court’s I believe plained whether, at a given to decide can to enable us this sea as best we “fact” or “opinion.” our location is point,

C. Opinion: The Illinois Situation versus Fact Court Supreme States since United passed Twelve have years constitutionally pro- opinion all expressions stated that Gertz Illinois decisions of time, only reported seven During tected. dis- fact-versus-opinion to the made reference of review have courts cases are concerned Illinois libel remaining tinction. Most of- (public figure the plaintiff the status of such as questions The seven rule, of malice. proof the innocent-construction ficial), to ascer- analyzed will be fact-versus-opinion discussing Illinois cases from opinion. fact separating used in they tain what criteria The first case is Owen v. Carr 113 Ill. 2d 497 N.E.2d There, the allegedly libelous remarks were made one attor about another ney in an attorney legal article The su newspaper. preme court held that defendant Carr’s statements not libelous were because when examined article, within the context of the they were reasonably susceptible an innocent construction and also enjoyed the constitutional protection allowed expressions opinion. ap In its plication rule, the protected-expression-of-opinion pro court vided the following standard without further analysis discussion: “The involved language must be considered in context determine whether the statement should be construed to be an expression ***” 273, 280, 113 Ill. 2d inter citing alia, (D.C. Ollman v. Evans 1984), Cir. 750 F.2d 970).

The second case is Catalano v. Pechous 83 Ill. 2d Catalano, N.E.2d 350. In the supreme court considered defend ants’ argument that were they merely expressing constitutionally pro tected opinion when they reported that the plaintiff had approved municipal contract because of a bribe. After reviewing several deci sions from other jurisdictions, the supreme court that an concluded accusation of specific criminal behavior is a statement of fact and not constitutionally protected expression of opinion. Catalano offers no guidance for the present case in which the claimed protected expres sion of opinion does not involve an accusation of a criminal specific act, nor does that case suggest criteria to be applied making when fact-versus-opinion determinations.

The third Illinois case concerned with the dis fact-versus-opinion tinction is our earlier decision in case, the present Costello v. Capital Media, Cities (1982), 111 1009, Ill. 3d App. 445 N.E.2d 13 (Cos I). tello The sole issue before the court in that appeal was whether the

plaintiff had stated a cause of action in his complaint. By reversing for a remanding merits, trial on the we expressed opinion no to the potential respective merits of the parties’ positions once evi dence was presented. Because Costello I was before us only on the our discussion pleadings, therein of the distinction fact-versus-opinion limited, was containing no discussion the criteria to applied. be

The next Illinois decision concerning is Naked fact-versus-opinion City, Chicago Inc. v. (1979), 188, Sun-Times 77 Ill. App. 3d 395 case, In N.E.2d 1042. the first court, district appellate citing Gertz, held that expressions receive opinion protec constitutional However, tion. beyond that “an noting examination of the amended *** discloses complaint that most of the plaintiffs’ refer charges ***” 191, opinions (77 188, Ill. 3d App. 1042, N.E.2d 1044), there is no discussion of the criteria used to make that determination.

The remaining three opinions addressing the fact-versus-opinion distinction all apply a similar the one analysis, suggested Restate ment (Second) of Torts section (1965). In order for a statement to nonactionable, protected 566, opinion under section the factual ba sis for the expressed opinion must be included within such statement. The first case apply this mode of is Howell v. analysis Blecharczyck Howell, 119 Ill. App. 3d 457 N.E.2d 494. In the first dis trict appellate court was with a presented claim that plaintiffs were libeled in a flier published by Gertz, defendants. Citing argued defendant that their statements concerning plaintiffs’ qual ifications for office were protected expressions of opinion. agreeing defendants, with the court appellate quoted from the approvingly (D.C. then current in 1979), district court decision Ollman Evans however, Howell, 479 F. 292. criterion discussed in in Supp. only The classifying given statement as fact or was whether all the opinion facts supporting defendants’ were article. opinion disclosed the

The same analysis was used another decision the first dis appellate court, trict Chicago Matchett v. Bar Association Ill. App. 3d 467 N.E.2d 271. In Matehett, the defendants were charged with their publicizing finding that the plaintiff was found to be “Not for a judicial Recommended” office he seeking. “[ejven court noted that if the at language issue charges *** with unfitness or lack of if ability, will not be actionable statement one of not of clearly opinion, (125 App. fact.” Ill. 3d 271, 276.) however, Howell, 467 N.E.2d again, Once as in supra, the criterion only discussed fact from distinguishing Gertz, the existence of Citing undisclosed facts. the court stated: first amendment does not preclude published for a liability “[T]he statement that implies the existence of undisclosed facts that are both defamatory.” false and 125 Ill. App. court, in a

Finally, recent decision the fourth district by appellate the Restatement In v. analysis specifically applied. Stewart Chi cago (1987), Title Insurance Co. 151 App. plaintiff alleged Ill. 3d that he had been libeled the contents of a letter of commitment to by furnish title insurance covering plaintiff’s farmland issued defend ants. In its the court that the in the letter analysis, found statements the concerning were in phrased language indicating opin ion and that the letter showed a sufficient factual for the opin basis ion. The court thus concluded that defendants’ statements were pro tected opinion.

983 later, I I the explain analysis ap As Restatement disagree Howell, Matchett, plied in I that the four and Stewart. believe instead Ollman, factors from following opin discussed section this ion, far are criterion of “undisclosed fact.” superior summary,

In there are no clear Illinois for the deter- guidelines therefore, It to seek cri- fact-versus-opinion. mination is necessary, teria which jurisdictions may appropri- discussed courts of other be ate right me to helpful. my just search leads Fortunately, Illinois. analysis adopt Ollman. I would such analysis

D. Opinion: Fact versus The Ollman Factors resolving the fact-versus-opinion issue with which it was pre- Oilman, began by noting sented the court the Supreme Court’s declaration are expressions opinion that absolutely privileged under the first amendment. To separate privileged opinion statements of from fact, court actionable statements of looked to four appeals important factors which used in of the cir- appraising totality cumstances of the factors, case. These four which I will discuss indi- vidually, 1) precision, 2) statement’s the statement’s verifiabil- ity, 3) context literary made, in which the statement was and 4) the public context in which the statement was made. The Ollman court further observed these factors should be considered in as- sessing average whether reader would view the statement as fact or opinion.

I am persuaded that the Ollman court has stated correctly factors be considered in a case. fact-versus-opinion Similarly, agree that the issue presented average how reader will view the statement. The of all of the totality evidence before the court must resolving however, be considered in this I emphasize, issue. these factors must be considered together, solitary no criterion can dispositive, and that the decision ultimately whether state- ment is fact must be based on all the circumstances in- Newsweek, (See volved. (8th Janklow v. Inc. Cir. 788 F.2d 1300 1986), (en banc).) Janklow is recent decision of the Circuit which Eighth similarly For other adopts analysis. Ollman cases which have re- standards, v. cently adopted Ollman see Scott News-Herald Times, (Tex. Ohio St. El v. N.E.2d Paso Inc. Kerr Press, App. 1986), Minn. Viking (D. S.W.2d Price v. 1985), Supp. F. v. Halliburton 690 S.W.2d 775 Henry (Mo. en and Mr. Azur S.A. Cir. banc); (2nd Chow Ste. Jour 984 219.

1985), F.2d

1. Factor Statement’s Precision One —The analysis The first factor—the statement’s precision requires — or words usage meaning allegedly defamatory the common themselves. to determine whether analysis

“We seek this branch our meaning has precise statement a allegedly defamatory A classic thus rise to clear factual likely give implications. is meaning is an accu of a statement with a well-defined example *** therefore not hesi sation of crime. Post-Geriz courts have conduct state to hold that accusations of criminal are tated action support with factual content’ an may ments ‘laden Co., See, Publishing for Cianci v. New Times e.g., defamation. 1980) Evans Cir. (2d (Ollman (D.C. Cir. ***.” v. F.2d 970, 980.) F.2d 1984),750 hand, or defin “loosely

On other terms statements that support or cannot most contexts “variously interpretable” able” as, is despica a “A statement such ‘Mr. Jones action defamation. Evans Cir. opinion.” (Ollman (D.C. is a v. politician,’ paradigm ble less I readers 1984), 978.) considerably 750 F.2d believe to be than or ambiguous to infer facts an indefinite statement likely from the observa meaning. agree a commonly one with understood a or state vague imprecise is difficult to call tion Janklow “[i]t so ‘fact’; context, moreover, doing place a would present ment fourth- subtleties and mercy linguistic the First Amendment at the Newsweek, v. Inc. Cir. (8th definitions.” Janklow dictionary ranked 1300, 1302. 788 F.2d 1986),

2. Verifiability Statement’s Factor Two —The verifiability. that of If a state- is concept precision “Tied to ” ‘fact.’ verified, it cannot be seen as ment cannot plausibly An- Newsweek, 1986), 788 F.2d (8th Cir. Janklow v. ob- Is the statement stating following: factor way other this not be- A reader will disproof? or reasonable proof jectively capable has of verification a method lacking plausible lieve a statement content. factual specific unverifiable, First

“Moreover, as a statement insofar endangered prove Amendment is when are made to attempts a Lacking statement true or false. clear method of verifica tion a labelling with which to evaluate a statement—such Littell, ‘fascist,’ well-known Buckley American author see denied, (2d 1976), F.2d 882 Cir. cert. 429 U.S. 97 S. [539 Ct. 50 L. Ed. 2d 777 trier of fact (1977)] may improp —the upon approval disap tend to render decision based erly subject.” author, its statement, of its or proval the contents 970, 981. (D.C. 1984), man v. Cir. 750 F.2d Evans Oll 3. Literary Factor Three — The Context The third factor “the full involves context of the statement —the column, entire article or for example other, as unchal —inasmuch lenged language surrounding the allegedly statement defamatory will influence average reader’s to infer readiness that a particular statement (Ollman (D.C. has factual content.” v. 1984), Evans Cir. 970, 979.) goes 750 F.2d This beyond third factor four corners column, It on story, editorial. focuses category publica tion, its style writing, and its intended audience. also v. (See Owen Carr (1986), 113 Ill. 2d in (“the language volved must be considered in context to determine whether the statement should be expression construed be an of opinion”).)

“The language of the entire column signal that a may specific which, statement alone, standing would to be factual is appear *** in actuality a statement of opinion. *** Another consideration in this respect, is the inclusion of cautionary language in in the text which the statement at issue *** is found. The rationale advanced for this consider typically *** ation is that cautionary language put[s] the reader on no tice is being opinion that what read and thus any weaken[s] inference that the author possesses knowledge damaging, word, facts. undisclosed when the reasonable [Citation.] reader encounters he cautionary language, tends to ‘discount that which follows.’ v. (Ollman (D.C. Evans Cir. [Citation.]” 1984),750 F.2d 982-83.)

By remarks, these do not mean to that statements of quoting imply fact that protection expres are libelous “warrant constitutional sions of be opinions merely they because to made on a news happen I, editorial 111 Ill. paper’s page.” (Costello App. However, in 13.) determining

N.E.2d first instance whether an and defamatory opinion, placement statement is fact or allegedly statement, page, content of that such as location an editorial its expects reader important average consideration. extremely usually find knows they columns and editorials and too brief for extensive discussion of the facts. pertinent

4. Factor Four —The Public Context remind of writing This factor serves to us different types signal have which to the reader the widely varying social conventions “It is being of a either fact or one opinion. likelihood statement’s thing official orator corrupt public soapbox to be assailed as a monograph in a de corrupt another to labelled research quite Olklman public the causes cures of service.” tailing corruption F.2d (D.C. 1984), Evans Cir. concurrence, again Bork most elo- Judge spoke In his Oilman context criterion: concerning this quently public dispute, who into areas choose the step “Those who controversy, willing must be pleasures distractions criticism,' even assessments. wounding bear disparagement, if conducted Perhaps disputation would be better were assessments, with strict phrases measured and calibrated and better, hominem; is, if the and avoidance the ad editorial of the were Feder- pages public press modeled live, Papers. alist But that is not the world we ever which lived, know, or and the law of first likely have are ever amendment to make safe com- try public dispute must That stifle the de- participants. only fortable all the would 970, bate.” 750 F.2d 993. those of the

The similarities facts Oilman and between this in discussion of fourth present case become evident particularly factor. short,

“In it that editorial writers com- is well understood bombast tra- type mentators ‘resort to the caustic frequently reaction.’ writing public in editorial to stimulate ditionally used Hence, in the distinction between fact and analyzing [Citation.] take into account the different so- will opinion, fully court types in different writ- cial conventions or customs inherent 970, 984. ing.” 750 F.2d Eighth made fully following with the observation agree this factor: respect

Circuit in Janklow “It is true that the distinction between private fig ures which bears so heavily many libel cases has no direct here [citation]; actionable, relevance no opinion whether it concerns or a private person public figure. However, when determining whether a statement initially is fact or opinion, does a disservice to the First Amendment not to consider the public or arena in political which the statement is made and whether the statement implicates core values of the First fact, Amendment. as Judge MacKinnon recog [Citation.] nized, ‘Judge Bork’s skillful of “the employment of a concept public, political arena” is crucial to a proper understanding of the analysis Judge Starr elucidates.’ Ollman v. Evans (D.C. Cir. 1984), J., 750 F.2d 1016 (MacKinnon, concurring).” (Em phasis Newsweek, in original.) Janklow v. (8th Cir. 1986), 1300, 788 F.2d 1303.

5. Effe ct of Ollman Factors I cannot conclude this analysis four Oilman factors without observing that, in my judgment, consideration of these factors con cludes the inquiry which the court is to make when deciding whether a statement is a fact or an Once the opinion. court determines that the statement in question fact, is opinion, not then it does not matter what the mental state (actual of the defendant malice or intentional disregard) may have been in making statement. Equally irrele vant under those circumstances is the question of whether the state ment in question imputed inability perform want of integrity discharge duties of office or See employment. Fried v. 24, Jacobson (1983), 99 Ill. 2d 457 N.E.2d I earlier discussed the decisions of the first district appellate court in Howell v. Blecharczyck (1983), 119 Ill. App. 3d 494, and Matchett v. Chicago Bar Association (1984), 125 Ill. App. 1004, 467 N.E.2d the fourth district court in appellate Stewart v. Chicago Title Insurance Co. 151 Ill. App. 3d wherein those courts deemed significant to the fact-versus-opinion the issue of analysis whether all the facts supporting a stated opinion were disclosed decisions, materials in These question. employ ing suggested criterion by (Second) Restatement of Torts section indicated that a statement is more to be found to likely be if the disclosed; facts supporting otherwise, there is the assumption undisclosed, that the reader infer presence will is unwieldly inquiry I this additional facts. believe defamatory possibly have been factors best; it if the four Oilman unnecessary at is also analy the Restatement with correctly Accordingly, disagree utilized. from Ollman: sis, following reasoning and would adopt rather is opinion “After that a statement deciding particular mode of be fact, analysis often undertake a second than courts Amend in the mantle of the First fore the statement wrapping *** view, however, al In our the tests ment’s opinion privilege. determining whether are a sufficient aid articulated ready *** facts. A sep of undisclosed the existence implies statement statement, classified already into whether inquiry arate defamatory allegedly implies way opinion, this painstaking v. Evans would, view, Ollman superfluous.” facts in our be 750 F.2d 984-85. (D.C. 1984), Cir.

E. Application Ollman Factors to the Present Case fol he was libeled alleged complaint, plaintiff his in defendants’ editorial: lowing statements Costello lied to us.”

(1) “Jerry it, lied.” put (Costello) simply no nicer he (2) way “There’s us, to you.” lied to he lied (Costello) “And when he (3) “Well, lied.” (Costello) he (4) decision, (Costello) he came to make a “But when the time

(5) sitting gavel.” there on his upwas inter- nothing protect your “He did

(6) (Costello) absolutely ests.” more of the Costello think, years two

(7) got “Just we’ve leadership.” brand of lying Verifiability The Editorial’s Precision the first with Oilman begins of the above statements analysis

My com- factor, is, upon of their based question precision and that Statements which themselves. meaning words usage mon factual rise to clear give are more meaning likely have a precise not, pre- these more do than are which statements implications the av- therefore, understood statements, likely are less cise of opinion. reader as erage expressions to the above regard complaint gist plaintiff’s is him he a they

statements that accuse of when made lying campaign It is at promise. apparent charge once that the that someone has lied is far a greater different in kind from of charge involving precision such language, as an accusation of criminal specific Why behavior. this is so leads into the second of the my analysis Oilman factors— of the verifiability. Because close between these first two relationship factors, I shall discuss them jointly.

Determining always whether a has lied the speaker involves use judgment by of the listener. Judgment used the listener when these considering (1) Did hear the If questions: correctly speaker? (2) so, did I misunderstand the (3) speaker Did the intend to speaker? say (in words, what he said other precisely given opportunity to edit remarks, his changed would he have them be more precise)? (4) If the speaker has deviated from a promised is such deviation path, due to changed unforeseen circumstances a of sincerity or to lack in his promise path? initial follow that concluding given lied,

Before that a speaker many has listeners would likely challenge their own faculties to they determine whether correctly him in the listeners, understood first Other place. perhaps more charitable, reckless or might less find hastily bad motives and conclude that the speaker lying. point was The all is that peo- this ple commonly understand the involvement of judgment the accuser’s liar; when one accuses person being another a no one is shocked that two people, hearing precisely viewing the same speech pre- cisely the same action taken that subsequently speaker, might draw different conclusions toas whether or not the action was incon- is, sistent with the speech, speaker whether or not the lied about the action that words, would be taken. In a other the accusation that speaker precise lied lacks a meaning, core without which accusa- tion is unverifiable. When speaker lying is accused upon based conduct, statements made future closest one concerning intended can come verifying discrepancy accusation to show be- tween what was said what was done. subsequently case facts this demonstrate applicability forego- ing charge has analysis that someone lied. A substantial amount of the evidence in the who what in meeting record concerns said between the defendant editorial board newspaper’s fall that occurred of 1980. The defendants claim that the plain- meeting positioned tiff himself as a fiscal conservative who oppose the creation of a transit district for the Metro pledged East area. As a result of that pledge, newspaper endorsed Costello for election as Clair county County. board chairman St. Wlien crea- tion of such a came after Costello’s county district before board election, he did not it. The con- speak publicly against newspaper at promised, cluded that Costello had not done as he and the editorial issue in this case was published accusing lying. Costello

Costello, course, denies that he ever made such He any pledge. further that he disputes had to behave than authority any differently he at the at county meeting did board which transit district was discussed and created. to the rules of the subsequently According St. board, Costello, chairman, no Clair as board had at that County power to vote or matter before the His role meeting speak board. that of Thus the record raises the fol- strictly parliamentarian. lowing 1) issues: What in fact did Costello at the editorial board say meeting? 2) Did the defendants at that misunderstand him? meeting 3) meeting Given that Costello at that was not from speaking pre- notes, did he pared convey accurately position his oral remarks his district, or, on the transit due to of he imprecision speech, did unin- an tentionally give impression incorrect of his views on that subject? 4) that he made the Assuming pledge reported by the newspaper, were the limitations on his board chairman the kind position county of he not foreseen that perhaps making circumstance which had when the transit dis- pledge and which would excuse his lack of action when and, trict was fail to act in accordance with approved? 5) Did Costello of his course action? promised

The conflict between the these con- parties concerning questions sumed a of the trial and has continued in their portion substantial this court. considered the trial record and the Having briefs before on these it seems to me that while courts can points, adjudicate briefs whom, are to who they ill-equipped adjudicate may who said what conduct. making have lied when statements intended future subject I noted earlier that terms which are defined or loosely in most an action for interpretations support various cannot contexts categories defamation. The terms and “liar” fit into these “lying” extreme, means the intentional vague making terms. At its most “lie” It also possible of an untrue statement with intent to deceive. a false or im- creating misleading that word to mean unintentionally very These uses are editorial which pression. multiple present is the After Costello of be- subject litigation. accusing lying this district, cause he violated a transit campaign pledge oppose that it en- upon pledge, reminds its readers that newspaper based told the readers that dorsed Costello’s and had candidacy previously The politicians past. he was different from the run-of-the-mill states, if lie to Obvi- you.” then “Now we wonder we didn’t editorial is not an ously, newspaper accusing itself untrue state- making deceive; ment indicating with intent it is that its en- merely dorsement, unintentionally among created false its impression Thus, readers towards Costello. “lie” is not a word with only multiple meanings, those multiple meanings used within the of the al- body legedly defamatory case, statement at in this thereby reminding issue the reader of that word’s lack of precise meaning. a given whether

Determining speaker has lied involves necessarily judgment cases, listener. In almost all can offer one only issue, on that which is did precisely what the defendants their editorial in this case. I find state- Accordingly, that defendants’ ments lied concerning the transit to be both district imprecise and unverifiable. With regard to fifth and sixth state- him, ments that Costello claims libeled too they precision lack verifiability. statement, The fifth Costello “sat his gavel” obviously nothing more than a figure speech and need not be dis- cussed further. statement, sixth that Costello “did absolutely nothing protect your interests,” is hyperbole which in- necessarily judgment volves its author. That statement does not assert that nothing, Costello did instead states that but action he took did terms, not its “protect your very interests.” that statement deals By uncertain, with an concept readers’ interests. There subjective —the can no doubt reasonable could about people disagree only are, what those but interests also about whether any action Costello took was protect sufficient to them.

2. Literary The Editorial’s Context The of context literary allegedly defamatory remarks about Costello could not stronger suggesting be in to the average reader she that what he or is reading opinion, is not fact. The statements in on a question appear page under in newspaper heading bold Furthermore, type, “opinions.” the box on the in which the page title, statements are “our viewpoint.” contained bears the Attached as an to this in appendix copy dissent is a of the editorial page ques- tion in order make the context of these remarks clearer. all

Common teaches that almost are com experience newspapers posed 1) sup two articles events in a parts: reporting newsworthy fashion, 2) opin unbiased columns and editorials in which posedly ions those the mere fact that expressed concerning are events. While on editorial appear page guarantee they statements does not that their opinion, constitutionally protected will be found be always a most factor in literary significant in that context is presence following with the observa agree determination. I fact-versus-opinion this is so: why tion from Ollman as to an Evans and Novak peruses

“The reasonable reader who or that page fully on the editorial is aware Op-Ed column those printed found there are not ‘hard’ news like statements in the news sections of the front or elsewhere page strong that columnists will make expect Readers newspaper. in that manner statements, phrased polemical sometimes fair considered elsewhere hardly would be balanced (D.C. 1984), v. Evans Cir. Ollman newspaper. [Citation.]” F.2d 986.

3. The Public Context Editorial’s this The statements in allegedly defamatory context public single strongest possess is the defendants point case perhaps not fact. That con- opinion, their that their statements are argument holding this: official text, bluntly, public most plaintiff, stated office, he is se- of a editorial which complains newspaper’s elective suit, This there- performance criticized for his office. libel verely fore, very sought protected by strikes at the core of the values be criticism a free first untrammelled vigorous, amendment — following and actions. I with the agree officials press governmental subject: courts have made on this observations other officers, “Certainly, speech government about its about duties, their lies at badly very how well or out they carry It is vital our of the First Amendment. heart [Citations.] dis- government press form of citizens alike be free to and, fit, officials.” they impugn public if see motives cuss Newsweek, (8th 1986), 788 F.2d 1304- Cir. Janklow that the dis- consequence people is of the utmost should “[I]t suf- of candidates their qualifications cuss character society to the state and such dis- frages. importance The and the derived so advantages great, cussions so vast pri- the inconvenience of they more than counterbalance involved, in- be and occasional may vate whose conduct persons must to the yield to the individuals jury reputations public welfare, times although injury may great. at such benefit from publicity great, is so and the chance injury private small, character so that such discussion must be privi- leged.” Coleman v. MacLennan Kan. 98 P. 281, 286. sum,

In I there are other believe few types public discussions concern which could make a claim First greater Amendment pro- tection than one involved in this case.

Finding Because allegedly defamatory statements here are imprecise, unverifiable, presented in a forum “opinions” entitled where spirited writing expected, and involve criticism of a official’s public per- his office, formance of I would find all of the statements com- of be plained constitutionally protected opinion.

F. Opinion: Fact versus The Standard of Review opinion, I have a detailed provided this analysis criteria fact-versus-opinion should be used in a determination. also must discuss the standards which those criteria should reviewed. The by need for this discussion arises from the fact that fundamental consti- tutional protections involved.

I first note the inherent threat the first amendment whenever the press charged in a Noting civil action with defamation. this someone; threat does not suggest is immune if it libels press it merely suggests that such cases should be handled courts with a awareness heightened of what is at stake. Courts should engage refuse to in the face of fact-versus-opinion nitpicking guaranteed constitutionally expression. freedom conflicting accommodation of the concerns reflected “[I]n defamation, in the First Amendment the deep- law in the Bill of re- Rights seated constitutional values embodied bearing that we not without mind quire engage, clearly us, parsing single context before in a Talmudic of a sentence two, if were with occupied philosophical enterprise or as we task, Ours is a elemental linguistic analysis. practical looming large go values of freedom as we constitutional about And in that we are reminded undertaking, our work. Gertz of our ‘to to the freedoms of duty speech itself assure exer to their fruitful “breathing essential space” press For the Gertz, at 94 S. Ct. 3008. 418 U.S. supra, cise.’ inhibi can mean ‘breathing only of liberty’s space’ contraction in of general discussion matters public tion of the scope space counsels breathing The provision terest and concern. content a straining squeeze against strongly from factual clearly opinion.” a column that is otherwise single sentence in 1984), 750 F.2d (D.C. v. Evans Cir. added.) Ollman (Emphasis 970, 991. constitutionally claim

Furthermore, if in which a a libel case outset, at the is has not been dismissed raised protected opinion the ensure that constitutional must evidence to fully courts revievz balancing the of interests. As the applied in principles correctly are Associa- Publishing in Greenbelt Cooperative Court stated Supreme 6, 13-14, 90 6, 11-12, L. Ed. 2d S. 398 U.S. tion Bresler 1537,1540-41, a case: Ct. libel “ the con- not elaboration of duty Court’s is limited ‘[T]his cases proper we must also in review principles;

stitutional con- that have principles evidence to make certain those been *** ex- independent “make We must an stitutionally applied. *** record,” so as ourselves of the whole to assure amination intrusion on does not constitute a forbidden judgment the field of free expression.’ [Citation.]

* * * of pecuniary liability the threat actual imposition Because impair for defamation unfettered exercise alleged may freedoms, imposes Amendment the Constitution these First liabil- upon permissible scope such stringent limitations ity.” the high purpose courts must have mind

Finally, constantly the Illi- government democracy. Perhaps serves a criticism in a best the stakes li- Supreme years ago nois Court over stated present bel case such as the one. a re- clear a civil action as if not great, greater,

“[I]t speech] prosecution. freedom of than criminal [upon striction government If criticize the is a which right privilege *** restricted, then all civil well as criminal cannot be as can despotic government A or corrupt actions forbidden. actions than more stifle series civil easily opposition *** therefore, follows, citi- every criminal It prosecutions. govern- zen to criticize inefficient or right corrupt has well prosecution. fear of as criminal This ment without civil privilege absolute is founded on the that it is advan principle tageous for the public interest that the citizen should not be in statements, fettered in his way and where ser vice or due justice administration of is involved he shall have right speak City Chicago his mind v. Tribune freely.” 607-08, Co. 307 Ill. 139 N.E.

II. THE MAJORITY OPINION The majority opinion rejects the of the Ollman stand- application and, ards to the present case chooses to adhere to the alternatively, so, doing innocent-construction rule. As a as- majority basis 1) serts that the Illinois Supreme rejected Court has considered and standards, 2) Ollman rule is protected-expression-of-opinion established, 3) the do not clearly simplify Ollman standards court’s task of fact from the innocent- distinguishing opinion, 4) construction rule is the in such preferred making criterion apply distinctions. believe the in on majority to be error opinion clearly all four points.

A. The Ollman Standards

The majority opinion Supreme cites the recent Illinois Court case 273, 1145, of v. 497 (1986), support Owen Carr 113 Ill. 2d N.E.2d of its that the position accepted by Ollman standards have not been the court. But the cita majority supreme omits the court’s opinion tion to cited the quotation majority Ollman from Owen (153 Ill. 3d at the court’s citations opinion. App. 966.) supreme When Owen, are included in the from clear quoted paragraph becomes that the court did not standards at all. On reject Owen Ollman court to their use. contrary, supreme gave implicit approval The same citations paragraph quoted by majority opinion, with included, is set forth as follows: observe, too, recognized that the Court has Supreme

“We (Gertz of v. privilege opinion. constitutional for expressions Welch, 789, 94 Robert Inc. 418 41 L. Ed. 2d (1974), U.S. one of 2997.) judged S. Ct. Whether a statement is to be be v. Time Inc. (Lewis fact or one of is a matter of law opinion must 1983), 549), language Cir. 710 F.2d involved (9th the statement in context to determine whether considered 996 (Old Do opinion expression be construed be an

should Letter Carri Association Branch No. National minion 745, 94 264, 41 L. Ed. 2d S. Ct. Austin 418 U.S. (1974), ers v. 970). F.2d As 2770; (D.C. 1984), Evans Cir. 750 Ollman v. an expres be viewed as stated, may reasonably the statements against allegations Carr’s his client’s regarding sion of opinion know the acknowledgment spe that he did not Owen. Carr’s the Judicial Board shows gave Inquiry cific information Owen actionable as charge not a factual that his statement was 273, 280-81, 113 2d (1986), v. Carr Ill. a matter law.” Owen 1145, 1148. inferring without above-quoted paragraph It is difficult read the analysis. of the Oilman Cer- approval by Supreme Illinois Court find, has, majority is no as the dis- tainly, opinion there basis approval.

B. Expression Opinion Protected its opinion attempts rejection applica- to bolster majority rule in this case sug- tion of the protected-expression-of-opinion example, For gesting page rule does exist. from Oilman for opinion quotes

majority proposition clearly recognized protected has not Supreme United States Court Gertz, The ma- opinion, merely supra. mentioned it “in dicta” but stronger language the much jority opinion apparently overlooked Owen, supra: our supreme own court *** recognized that the Court has Supreme “We observe (Gertz constitutional privilege expressions Welch, 2d 41 L. Ed. Robert U.S. v. Carr 2997)”

S. Ct. Ill. Owen N.E.2d the the existence quoted passage, clearly recognizes

In this court in rule. Yet the an at- majority, of the protected-expression-of-opinion “dicta.” The to weaken the refers to it as tempt impact, statement’s the further asserts that the court in Owen decided majority opinion rule, mention- merely case the of the innocent-construction on basis rule, it. applying without ing protected-expression-of-opinion the the However, Owen, overlooked language apparently majority in not the court’s intention state the opinion, indicates that it was but, holding the dicta, apply rule in the as a in contrary, on case: above, however, statements,

“As we have said Carr’s when ex article, within amined the context of reasonably the sus construction, ceptible enjoy innocent and also the consti protection tutional allowed expressions opinion.” (Emphasis of 113 Ill. added.) 1145, 1149. The the majority opinion implies that protected-expression-of- opinion exist; rule the Supreme does Illinois has held Court State, As an contrary. intermediate court of this we are appellate required to decide law questions Federal constitutional based Illinois Court Supreme interpretations United States Supreme Here, Court decisions. the Illinois Court has Supreme analyzed Gertz of the Supreme decision United States Court and has con- cluded that the United States Court Supreme recognized has a con- stitutional for privilege expressions opinion. judgment, my our conclusionends inquiry.

C. Difficulty Analysis The interesting proffered by most reason majority opinion rejection Oilman standards is claim that their imple mentation “has not any made court’s task a defamation case more simple or more 965.) infallible.” Ill. 3d at (153 App. majority opinion Newsweek, then (8th cites Janklow v. Cir. 1986), 788 F.2d 1300 (en banc), for startling the hardly proposition that while absolutely protected amendment, under the first it is hard draw a line bright between “fact” “opinion.” Ill. 3d at 965. App. dissenting

As IB of this I am in part opinion, supra, discussed total agreement making difficulty fact-versus-opinion distinction. difficulty, however, this it is our consti Notwithstanding tutional responsibility to do the best we can. The beauty Oilman standards is that they provide some criteria upon clear-cut to make this difficult which determination. The opinion com majority that these standards “are plains lacking any objective specificity.” concludes, 966.) Ill. 3d at It then as it does the Illi (153 App. claims Court, can nois that the innocent-construction rule be more Supreme Almost the easily more understood.” en applied “certainly easily however, concerning the issue majority opinion, tire discussion making fact-versus-opinion why distinction concerns work; all to why fail to there is no discussion at Oilman standards Indeed, do work. the entire innocent-construction rule standards 998 concerning application opinion 18-page majority

analysis alleg- that the claim rule to the defendants’ innocent-construction constitutionally-protected in question statements edly defamatory following: com national profound that there is cognizant are fully “We be issues should public that debate principle mitment to Times, Inc. v. York uninhibited, robust, wide-open (New 84 S. Ct. 11 L. Ed. 2d (1964), 376 U.S. Sullivan office, ‘thrust having public that candidates for 710), and controversies of particular forefront themselves *** increased risk themselves to voluntarily exposed have *** Welch, (1974), v. (Gertz falsehood.’ Robert defamatory 789, 808, 94 Ct. 323, 345, 41 L. Ed. 2d S. 418 U.S. considered, we have determined However, that said and 3010.) afforded by the protection cannot claim that the defendants action, for the to plaintiff’s as a defense the first amendment of protected well bounds goes beyond editorial in question 967.) Ill. 3d at (153 App. criticism.” is so. as to this given why that no explanation

It should noted be lan foregoing one can infer from the anything from Apparently, statements allegedly defamatory read guage, my colleagues the bounds beyond well they decided “went simply question made they is no as to how suggestion criticism.” There protected courts or determination, for trial any guidance nor is there similar de called to make might upon courts of review who be other ad Instead, holding represents this in the future. terminations more nothing It is making at its worst. hominem decision judicial “I may simple: law made application obscenity than the civil law I see it.” it, but I know when Whatever not know how define standards, there are at least there the Ollman may deficiencies hand, rule, on the other standards; provides the innocent-construction none at all.

D. Rule The Innocent-Construction Illinois Court deems Supreme that the majority The claim of and under easily applied rule to be more the innocent-construction Owen, the ridiculous. borders on stood than the Oilman standards has rule that “the court said supreme construction] [innocent 113 Ill. (Owen v. Carr criticism.” subject strong been the fol- The court then stated 1147.) 2d N.E.2d lowing:

“This court observed in Press Chapski Copley Ill. 349:

‘It has of much critical com subject been [the rule] Polelle, mentary (see, e.g., Guilt the ‘Innocent Con Law, struction L. Rule’ in Rlinois N.I.U. Defamation Illinois, (1981)); Rev. 181 Libel (Symposium, and Slander Comment, (1966)); 43 Chi. Kent L. Rev. 1 cf. The Illinois Minority One, Doctrine Innocent A 30 Construction: of of Chi. L. Rev. & (1963); Stonecipher Trager, U. 524 The Im Illinois, Gertz on the 73 pact Law Libel in S.I.U. L.J. of and to a (1979)), long-dis considered be resurrection of the English carded 16th- and 17th- rule century of mitior sen (Eldredge, 24, sus The Law at 161 sec. of Defamation (1978)).’ This court in Chapski stated that in the application rule there had been inconsistent and in holdings, contradictory a cluding of courts tendency to ‘strain to find unnatural but possibly innocent of words such meanings where a construction reasonable a clearly defamatory is far more meaning probable.’ v. Press (Chapski Copley Ill. 2d 350- 278-79, 51.)” 113 Ill. 2d 497 N.E.2d It is doubtful that the Illinois Supreme Court has ever indicated greater reluctance in it continuing apply a rule law than did when it applied innocent-construction rule in The the Owen case. supreme court gave for, indication every looking being ready to apply, a new interpretation standard of when the case appropriate first, comes before it. If the appropriate case comes us before case, believe it has in the instant we need wait for the Illinois Supreme Court to adopt formally the Oilman standards before we do. The facts of this case us not present only opportunity, but with obligation so, to do no by decision the Illinois Su- preme Court otherwise. suggests when the Illinois first stated the inno Supreme Court rule, it alleg

cent-construction was defined as “that words requiring edly being libelous that are read so capable must be innocently read and declared nonactionable as a matter law.” (John Trib une Co. 108.) Ill. 2d Despite criticism has lodged against (and which been that rule acknowledged by the Illinois have Supreme Court), may it some useful role some law, areas of libel determining, instance, such as alleg whether edly referring statements- can or should be defamatory interpreted as may It also plaintiff. someone other than the fact statement of determining particular

have some use whether However, resolving use all in se. is of no at may per be actionable say To the innocent-construction fact-versus-opinion questions. be read as ex- can reasonably rule that statements which requires beg question. read is simply must be so pressions opinion be so read reasonably tell may How is one to whether statement very in this The majority opinion and what standard is one apply? making created example case is an of the standardless decision fact-versus-opinion rule to application of innocent-construction issue.

III. CONCLUSION be, learn, as that in they shocked to should will could collect politician of America local United States he was because solely in a libel case hundreds of thousands of dollars permit- By newspaper. criticized a liar a local harshly and called wrong, but result, is not ting merely such a the majority important freedoms— truly constitutes a threat to one our most even vigorously, unpleas- the freedom of the to criticize press if their duties. officials in the execution of official Even antly, public further to a fraction what damages the in this case were reduced be insufficient at, that reduction would they originally were assessed to seriously crimping willingness press express to avoid the Very harsh officials. few weeklies opinions concerning governmental six-figure withstand the easily judg- and small could daily newspapers in plaintiff fit to to the colleagues ment that have seen award my it be- case, newspaper a this because against this rendered judgment officiallied. governmental that a reported lieved the to of the Ollman standards rejecting application following: case, the states the present majority shrill, no how suit, matter defendant in defamation “Any be, al may can acerbic, or accusatorial utterance profane, I an and that’s opinion, ways say, ‘Why, only expressing di do the law of defamation should not believe privileged.’ We could, it far, expression if gress ‘protected so which rule full The innocent-construction given sway. rale is opinion’ 3d (153 Ill. digression.” App. an extreme permit does not such 967.) at in question is if utterance to realize majority fails

What in was in correct his absolutely fact then the is opinion, speaker claim Supreme that his As the United States privileged. statement is us, thing (See Court there is no such as a false idea. has reminded Welch, 339-40, L. Gertz v. Robert Ed. U.S. 789, 804-05, S. no 3007.) thing 94 Ct. There also such as a opinion. false The first all protections supposedly amendment we right shrill, acerbic, cherish us the guarantee express profane, to And, course, opinions. accusatorial the more shrill and profane is, more language likely that readers or will perceive hearers as as opinion opposed to fact.

The worthy purpose of libel law to protect injury reputation, case, to feelings. however, not this judgment in seems to be upon damage based not to the plaintiff’s reputation, upon disap but proval courts of the tone and tactics of the defendants. Yet the price of a press free is the an irresponsible press, forbearance at least the extent it attacks in politicians expressions opinion. That a particular politician, attacks, as a result of such be “dis may “humiliated,” traught,” “incensed,” (153 Ill. “sleepless,” App. 3d at 976) as the be, this case claimed to is totally irrele vant. Mr. Costello was not drafted be chairman the St. Clair board, if County he or other politicians have their of sensibilities fended accuses them of press lying, they resign when can always their public positions and avoid the increased thereby scrutiny those positions bring.

The Belleville may sheet, News-Democrat be scandal Richard Hargraves editor, may be bad publisher his be driven venal may motives, and the investigation and reporting litigation led in this however, case may disgrace journalism; long as the allegedly defamatory statements in this opinion, fact, case are none of these other factors matter. Because I majority believe the opinion to be egregiously concluding error statements in question were not opinion, respectfully dissent.

Case Details

Case Name: Costello v. Capital Cities Communications, Inc.

Court Name: Appellate Court of Illinois

Date Published: Mar 11, 1987

Citation: 505 N.E.2d 701

Docket Number: 5-85-0236

Court Abbreviation: Ill. App. Ct.