Illinois Supreme Court Reports
TUITE v. CORBITT, 101054 (Ill. 12-21-2006) PATRICK A.
TUITE, Appellant, v. MICHAEL CORBITT et al., Appellees.
Docket No. 101054 Supreme Court of Illinois. Opinion filed
December 21, 2006.
OPINION
JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Justices Fitzgerald, Garman, and Karmeier concurred in the
judgment and opinion.
Justice Freeman concurred in part and dissented in part,
with opinion.
Chief Justice Thomas and Justice Burke took no part in the
decision.
Plaintiff, Patrick A. Tuite, filed a complaint in the
circuit court of Cook County against defendants, Michael
Corbitt, Sam Giancana, and HarperCollins Publishers,
alleging claims of defamation per se, false light invasion
of privacy, and intentional infliction of emotional
distress as a result of certain statements contained in
defendants’ book, Double Deal. Defendants filed a motion to
dismiss the complaint under section 2-615 of the Code of
Civil Procedure (Code) (735 ILCS 5/2-615 (West 2002)). The
trial court granted defendants’ motion to dismiss, finding
that the disputed statements were capable of a reasonable
innocent construction. The appellate court affirmed the
trial court’s judgment. 358 Ill. App. 3d 889.
We allowed Tuite’s petition for leave to appeal. 177 Ill.
2d R. 315(a). Tuite contends that this court should abandon
the innocent construction rule. In the alternative, Tuite
contends that the dismissal of his complaint should be
reversed because there is no reasonable innocent
construction for the statements. We decline to abandon the
innocent construction rule, but find that the appellate
court erred in affirming the dismissal of plaintiff’s
claims of defamation per se and false light invasion of
privacy based on the application of the rule. We therefore
reverse the judgments of the appellate and circuit courts
and remand this matter to the circuit court for further
proceedings.
I. BACKGROUND
Corbitt and Giancana coauthored Double Deal, a book that
recounts Corbitt’s experiences in organized crime in the
Chicago area. HarperCollins published Double Deal. In
Double Deal, Corbitt and Giancana included a discussion of
Tuite’s involvement in defending alleged Chicago mafia boss
Joey Aiuppa against criminal charges in 1985. Based on the
description of his involvement in Aiuppa’s defense, Tuite
filed a complaint alleging defamation per se, false light
invasion of privacy, and intentional infliction of
emotional distress.
In his complaint, Tuite alleged that Corbitt is a
“self-admitted professional criminal, whose life in crime
was in the service of the Chicago mafia.” Double Deal
purports to be a nonfiction account of organized crime
activities in the Chicago area. The cover of the book
states it is “The Inside Story of Murder, Unbridled
Corruption, and the Cop Who Was a Mobster.” Tuite
identified the following excerpt from Double Deal as the
basis of his claims:
“Unfortunately for the Outfit, during [Operation]
Strawman, the FBI had uncovered tons of evidence
connecting the Chicago bosses to the guys in Kansas City.
When the FBI started calling this new case against
Chicago’s top bosses Strawman II, it was pretty clear they
were on a roll.
Although Strawman II put a crimp in Chicago’s top guys,
particularly Joey Aiuppa, at first they figured they could
beat the charges. But then when witnesses starting [sic]
lining up against them, they began to get worried. Three
of the FBI’s key witnesses-Allen Glick, the guy who
fronted four Vegas casinos for Chicago; Aladena `Jimmy the
Weasel’ Fratianno; and the former Teamsters president Roy
Williams-had everyone seriously concerned. From what I
understand, they knew enough to bury just about everybody
who was anybody in the Outfit.
And it was no use trying to take them out, either. Even
if Lombardo (who was serving time on [Operation] Pendorf
in Leavenworth) or Spilotro (who was in a Chicago jail
awaiting trial for murder) had been available to do the
job, it would have been an impossible task. The more
critical witnesses, like Roy Williams, had been under
heavy security for months, ever since the convictions had
come down in Operation Pendorf. So they were virtually
untouchable.
Ultimately it wouldn’t be just Williams, Glick, and the
Weasel the Outfit would have to worry about; by the time
the trial got under way in 1985, there were guys flipping
left and right. It was pretty clear that the Chicago
Outfit was going to take a major hit. Sal told me Joey
Aiuppa figured he was going away for sure if he didn’t get
some better representation. At seventy-seven, Joey Aiuppa
was an old man, and he didn’t want to die in prison. He
was desperate to walk away from those charges and wanted
to bring in Pat Tuite, an attorney who’d represented mob
cases in the past. But Sal said that Aiuppa had run into a
wall with Tuite. Supposedly, the big-shot lawyer told
Aiuppa that he’d need a million-dollar retainer before
he’d even walk in the door.
It might seem crazy, playing hardball with an Outfit boss
like that, but Tuite had his reasons; he was far from
stupid. He knew that Outfit guys had a reputation for not
paying their attorneys. They’d get off and then leave the
lawyer holding the bag. If the guy made any noise about
his bill, it was `take me to court,’ which, of course,
no one ever had the balls to do.
So now Aiuppa and his pals had a dilemma. They didn’t
want to go on their kick, take their defense money out of
their own pockets. So what did they do? They decided to go
to Las Vegas-the now crime-free town-and let their skim
pay Tuite.
[The book then describes how Corbitt and others traveled
to Utah, picked up duffel bags containing $1 million in
$100 bills, and delivered the bags to an individual in
Chicago. The book states, `I understand Tuite got his
retainer later that night.’]
After Tuite was on the case, all the guys were sort of
semijubilant. Everybody figured Tuite had it all handled.
To Aiuppa and his codefendants, it was like it was a done
deal, like they were all going to be acquitted. So you can
imagine their reaction when they were all found guilty
the following January-1986. I understand they were all
sitting around their hotel room in Kansas City, ready to
open a bottle of champagne, when the feds showed up to
arrest them. And what about Tuite? What kind of
explanation could he possibly have given for this result?
I can’t think of one that would’ve satisfied me-not after
advancing him a million bucks for his legal fees. And I
guess that’s why, for the life of me, I’ve never
understood why Pat Tuite didn’t get whacked. Go figure.”
Tuite alleged that these statements are false. He was not
retained by Aiuppa, he was not the attorney of record, and
he did not file an appearance or participate in the trial.
Rather, he served only as a consultant to Aiuppa’s
attorneys. Additionally, he did not demand or receive a
retainer of $1 million cash and did not knowingly receive
illegally obtained funds as payment for his consulting
services. Further, Tuite alleged the statements falsely
imply that he would use all or a portion of the cash
retainer to commit bribery or other criminal conduct to
ensure that he “had it all handled” and that acquittal was
“a done deal.”
Tuite alleged that the statements are defamatory per se
because they impute to him criminal wrongdoing, a want of
integrity as an officer of the court, a want of integrity
in the performance of his ethical duties as an attorney,
and an inability to perform his professional duties as a
criminal defense attorney. Tuite further alleged that the
defendants were negligent in publishing the false
statements or, in the alternative, that the defendants
published the statements with knowledge that they were
false or with reckless disregard as to their truth or
falsity. Tuite alleged that publication of the statements
was wilful and wanton and damaged his reputation as an
attorney and as an officer of the court.
In support of his claim of intentional infliction of
emotional distress, Tuite alleged that statements in the
book, as well as statements made by defendants in marketing
the book, caused him to fear for his safety and the safety
of those around him. Tuite alleged that the statements were
extreme and outrageous and caused him severe emotional
distress.
Defendants filed a motion to dismiss the complaint under
section 2-615 of the Code, asserting that the complaint
failed to state a claim of defamation per se because the
disputed statements are capable of an innocent
construction. Additionally, defendants asserted that the
complaint failed to state a claim of false light invasion of
privacy because Tuite failed to allege special damages as
required to support such a claim when the statements are
not defamatory per se. Defendants further asserted that the
conduct alleged in the complaint was not sufficiently
extreme and outrageous to support a claim of intentional
infliction of emotional distress.
Tuite filed an amended complaint, restating the allegations
of his original complaint and attaching a copy of Double
Deal as an exhibit. The trial court subsequently granted
defendants’ motion to dismiss the amended complaint. The
trial court found that the disputed statements were not
defamatory per se because they were capable of a reasonable
innocent construction. The court also held that Tuite failed
to state a claim of false light invasion of privacy because
he did not allege special damages. Further, the statements
were not sufficiently extreme and outrageous to support a
claim of intentional infliction of emotional distress. The
trial court, therefore, dismissed the amended complaint in
its entirety.
On appeal, Tuite argued that the trial court erred in
dismissing his claims of defamation per se and false light
invasion of privacy because, when read in context, the
statements do not permit a reasonable innocent
construction. Tuite also argued that his complaint
adequately alleged a claim of intentional infliction of
emotional distress.
The appellate court, with one justice dissenting in part,
affirmed the trial court’s judgment. 358 Ill. App. 3d at
891. The appellate court found that the statements could
reasonably be read to indicate that Tuite was hired to
provide “better representation” and that Aiuppa and his
codefendants were required to pay a substantial retainer due
to the risk of nonpayment of their legal bills. 358 Ill.
App. 3d at 897. The belief that acquittal was a “done deal”
and the “semijubilant” reaction after hiring Tuite could
reasonably be construed to mean that the codefendants had
complete faith in Tuite and they were elated at the thought
of being represented by the best attorney available. 358
Ill. App. 3d at 898. The appellate court concluded that the
statements, considered in the context of the book as a
whole, were reasonably subject to this innocent
construction. 358 Ill. App. 3d at 898. Thus, the appellate
court held that the complaint failed to state a claim of
defamation per se. 358 Ill. App. 3d at 899.
The appellate court also held that Tuite’s false light
invasion of privacy claim was dependent upon the
establishment of a claim of defamation per se. 358 Ill.
App. 3d at 899. Thus, the failure of Tuite’s defamation per
se cause of action resulted in the dismissal of his false
light invasion of privacy claim. 358 Ill. App. 3d at 899.
The appellate court further held that the disputed
statements were not sufficiently extreme and outrageous to
support a cause of action for intentional infliction of
emotional distress. 358 Ill. App. 3d at 900.
Justice Wolfson disagreed with the majority’s conclusion
that the statements were subject to a reasonable innocent
construction. 358 Ill. App. 3d at 901 (Wolfson, J.,
specially concurring in part and dissenting in part). In
Justice Wolfson’s view, “[t]he clear message is that Tuite
was ready and able to fix the case, that he was paid to fix
it, and that he did not deliver, something that should have
caused a premature end to his life. It takes more than a
`strain’ to apply an innocent meaning to the offending
words. It takes a gyration of Olympian proportion.” 358
Ill. App. 3d at 901 (Wolfson, J., specially concurring in
part and dissenting in part). Justice Wolfson would have
reversed the dismissal of the defamation per se and false
light invasion of privacy counts and remanded for further
proceedings. 358 Ill. App. 3d at 902 (Wolfson, J.,
specially concurring in part and dissenting in part).
We granted Tuite’s petition for leave to appeal. 177 Ill.
2d R. 315(a). We then allowed the Chicago Tribune Company,
the Chicago Sun-Times, Inc., ABC, Inc., WLS Television,
Inc., CBS Broadcasting, Inc., Simon & Schuster, Inc., the
Chicago Reader, Inc., Crain Communications, Inc., the
Copley Press, Inc., and the Illinois Broadcasters
Association to file an amicus curiae brief in support of
defendants. 155 Ill. 2d R. 345. We allowed AIDA, Inc., to
file an amicus curiae brief in support of Tuite. 155 Ill.
2d R. 345.
II. ANALYSIS
Tuite argues that the appellate court erred in finding the
statements in Double Deal capable of a reasonable innocent
construction. Tuite also urges this court to abandon the
innocent construction rule and replace it with the
“reasonable construction rule.” Based on these contentions,
Tuite seeks reinstatement of his claims of defamation per se
and false light invasion of privacy. Tuite does not
challenge the dismissal of his claim of intentional
infliction of emotional distress. We will first consider
Tuite’s argument that the innocent construction rule should
be abandoned.
A. The Innocent Construction Rule
A statement is defamatory if it tends to harm a person’s
reputation to the extent that it lowers that person in the
eyes of the community or deters others from associating
with that person. Solaia Technology, LLC v. Specialty
Publishing Co., 221 Ill. 2d 558, 579 (2006). Statements may
be considered defamatory per se or defamatory per quod.
Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 10
(1992). A statement is defamatory per se if its defamatory
character is obvious and apparent on its face and injury to
the plaintiff’s reputation may be presumed. Owen v. Carr,
113 Ill. 2d 273, 277 (1986). In a defamation per quod
action, damage to the plaintiff’s reputation is not
presumed. Rather, the plaintiff must plead and prove
special damages to recover. Bryson v. News America
Publications, Inc., 174 Ill. 2d 77, 103 (1996). Here,
plaintiff only alleges a claim of defamation per se.
In Illinois, there are five categories of statements that
are defamatory per se: (1) statements imputing the
commission of a crime; (2) statements imputing infection
with a loathsome communicable disease; (3) statements
imputing an inability to perform or want of integrity in
performing employment duties; (4) statements imputing a lack
of ability or that otherwise prejudice a person in his or
her profession or business; and (5) statements imputing
adultery or fornication. Solaia Technology, 221 Ill. 2d at
579-80, citing Van Horne v. Muller, 185 Ill. 2d 299, 307
(1998). However, even if a statement falls into one of the
categories of words that are defamatory per se, it will not
be actionable per se if it is reasonably capable of an
innocent construction. Bryson, 174 Ill. 2d at 90.
The innocent construction rule originated in Illinois from
obiter dictum in John v. Tribune Co., 24 Ill. 2d 437
(1962). See Chapski v. Copley Press, 92 Ill. 2d 344, 347
(1982), citing Valentine v. North American Co. for Life &
Health Insurance, 60 Ill. 2d 168, 172 (1974) (Ward, J.,
dissenting, joined by Underwood, C.J., and Schaefer, J.).
In John, this court stated:
“We further believe the language in defendant’s articles
is not libelous of plaintiff when the innocent
construction rule is consulted. That rule holds that the
article is to be read as a whole and the words given their
natural and obvious meaning, and requires that words
allegedly libelous that are capable of being read
innocently must be so read and declared nonactionable as a
matter of law.” John, 24 Ill. 2d at 442.
Twenty years after John was decided, this court
reconsidered the innocent construction rule in Chapski. We
acknowledged that the rule had “been applied in dozens of
appellate court cases, but in something less than a
completely uniform fashion [citations] and often over
vigorous objections concerning its application or whether
it continues to be a fair statement of the law.” Chapski,
92 Ill. 2d at 348. We also noted that application of the
rule had not been entirely consistent in this court and
that the rule had been subject to much critical commentary.
Chapski, 92 Ill. 2d at 349. We further recognized that the
innocent construction rule, or a variation of that rule,
was recognized in only a few states. Chapski, 92 Ill. 2d at
349 (citing Monnin v. Wood, 86 N.M. 460, 525 P.2d 387
(1974), Walker v. Kansas City Star Co., 406 S.W.2d 44 (Mo.
1966), Steffes v. Crawford, 143 Mont. 43, 386 P.2d 842
(1963), Becker v. Toulmin, 165 Ohio St. 549, 138 N.E.2d 391
(1956), and Tulsa Tribune Co. v. Kight, 174 Okla. 359, 50
P.2d 350 (1935)).
We observed that one of the early justifications for the
rule was that it mitigated the harshness of strict
liability that existed in defamation law prior to Gertz v.
Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S.
Ct. 2997 (1974). Chapski, 92 Ill. 2d at 350. The strongest
rationale for the rule, however, was that it comported with
the constitutional interests of free speech and free press
and encouraged the robust discussion of daily affairs.
Chapski, 92 Ill. 2d at 350, citing Dauw v. Field
Enterprises, Inc., 78 Ill. App. 3d 67, 71 (1979). The
primary criticism of the rule was that courts had a
tendency to strain to find an unnatural innocent meaning
for a statement when an innocent construction was clearly
unreasonable and a defamatory meaning was far more
probable. Chapski, 92 Ill. 2d at 350-51.
This court concluded that a modification of the innocent
construction rule was warranted “[g]iven the
inconsistencies, inequities and confusion that are now
apparent from the interpretations and applications of the
rule as originally announced in John, and the broader
protections that now exist to protect first amendment
interests [citations], together with the availability of
the various privileges [citations].” Chapski, 92 Ill. 2d at
351-52. This court, therefore, held that:
“[A] written or oral statement is to be considered in
context, with the words and the implications therefrom
given their natural and obvious meaning; if, as so
construed, the statement may reasonably be innocently
interpreted or reasonably be interpreted as referring to
someone other than the plaintiff it cannot be actionable
per se.” Chapski, 92 Ill. 2d at 352.
This preliminary determination is a question of law to be
resolved by the court; whether the statement was in fact
understood to be defamatory or to refer to the plaintiff is
a question for the jury if the initial determination is
resolved in the plaintiff’s favor. Chapski, 92 Ill. 2d at
352, citing Troman v. Wood, 62 Ill. 2d 184, 189 (1975).
This court addressed the innocent construction rule again
in Mittleman v. Witous, 135 Ill. 2d 220, 232 (1989),
observing that “the law of defamation in general-and the
innocent construction rule in particular-has spawned a
morass of case law in which consistency and harmony have
long ago disappeared.” Nevertheless, we did not abandon the
innocent construction rule. Instead, we clarified that
courts should not balance a reasonable innocent
construction of a statement with a reasonable defamatory
construction. Mittleman, 135 Ill. 2d at 232. Rather,
statements reasonably capable of an innocent construction
should be interpreted as nondefamatory. Mittleman, 135 Ill.
2d at 232. This court also held that the innocent
construction rule applies only to per se actions.
Mittleman, 135 Ill. 2d at 232. We acknowledged that the
innocent construction rule favors defendants in per se
actions, but found the tougher standard warranted in those
cases because damages are presumed. Mittleman, 135 Ill. 2d
at 234.
Subsequently, in Bryson, this court stressed that “[o]nly
reasonable innocent constructions will remove an allegedly
defamatory statement from the per se category.” (Emphasis
in original.) Bryson, 174 Ill. 2d at 90, citing Kolegas,
154 Ill. 2d at 11; Costello v. Capital Cities
Communications, Inc., 125 Ill. 2d 402 (1988). We further
explained that:
“In applying the innocent construction rule, courts must
give the allegedly defamatory words their natural and
obvious meaning. [Citations.] Courts must therefore
interpret the allegedly defamatory words as they appeared
to have been used and according to the idea they were
intended to convey to the reasonable reader. [Citation.]
When a defamatory meaning was clearly intended and
conveyed, this court will not strain to interpret
allegedly defamatory words in their mildest and most
inoffensive sense in order to hold them nonlibellous under
the innocent construction rule.” Bryson, 174 Ill. 2d at
93.
Thus, the innocent construction rule does not require
courts to strain to find an unnatural innocent meaning for
a statement when a defamatory meaning is far more
reasonable. Bryson, 174 Ill. 2d at 94. The rule also does
not require courts “to espouse a naÄ?vet?© unwarranted under
the circumstances.” Bryson, 174 Ill. 2d at 94.
It is apparent that the innocent construction rule has been
clarified on several occasions by this court in response to
difficulties in application. Notably, the rule has been
retained despite those difficulties and is now well
established, with a long history in this state. Tuite’s
request that we abandon the innocent construction rule
necessarily implicates principles of stare decisis.
The doctrine of stare decisis expresses the policy of
courts to stand by precedent and to avoid disturbing
settled points. People v. Sharpe, 216 Ill. 2d 481, 519
(2005), quoting Vitro v. Mihelcic, 209 Ill. 2d 76, 81-82
(2004). This doctrine ensures that the law will not change
erratically, but will develop in a principled and
intelligible fashion. Sharpe, 216 Ill. 2d at 519, quoting
Vitro, 209 Ill. 2d at 81-82. Stare decisis allows the
people and the bar of this state to rely upon the decisions
of this court with assurance that they will not be lightly
overruled. Sharpe, 216 Ill. 2d at 519, quoting Vitro, 209
Ill. 2d at 81-82. Thus, any departure from stare decisis
must be specially justified. Sharpe, 216 Ill. 2d at 520,
quoting Vitro, 209 Ill. 2d at 81-82.
Prior decisions of this court should not be overruled
absent good cause or compelling reasons. Sharpe, 216 Ill.
2d at 520, quoting Vitro, 209 Ill. 2d at 81-82. This court
will not depart from precedent merely because the court
might have decided otherwise if the question were a new
one. Sharpe, 216 Ill. 2d at 520, quoting Vitro, 209 Ill. 2d
at 81-82. A settled rule of law that does not contravene a
statute or constitutional principle should, therefore, be
followed unless serious detriment prejudicial to public
interests is likely to result. Sharpe, 216 Ill. 2d at 520,
quoting Vitro, 209 Ill. 2d at 81-82. Good cause to depart
from stare decisis also exists when governing decisions are
unworkable or are badly reasoned. Sharpe, 216 Ill. 2d at
520, citing People v. Jones, 207 Ill. 2d 122, 134 (2003).
Tuite argues that this court should abandon the innocent
construction rule for several reasons. First, Tuite asserts
that the rule has been rejected in most other jurisdictions
and that there is no sound policy reason to retain it.
Tuite also argues that various protections and privileges
have developed rendering the rule unnecessary. Tuite
further contends that the innocent construction rule
improperly eliminates the role of the jury in determining
whether a statement has a defamatory meaning. According to
Tuite, if the trial court finds there is no reasonable
innocent construction for a statement, the plaintiff should
then be entitled to a judgment as a matter of law because no
jury could reasonably find the statement nondefamatory.
Tuite also argues that the rule cannot be reconciled with
the standards to be applied to a section 2-615 motion to
dismiss. Tuite asserts that, contrary to section 2-615, the
innocent construction rule requires the factual allegations
and inferences surrounding the statement to be viewed in a
light most favorable to the defendant because any
reasonable innocent construction must be accepted even if a
more reasonable defamatory construction exists. Lastly,
Tuite argues that despite the efforts in Chapski and Bryson
to clarify the rule, it continues to be misapplied by
Illinois courts.
Based on these arguments, Tuite asks this court to abandon
the innocent construction rule and adopt the “reasonable
construction rule” in its place. Tuite asserts that the
reasonable construction rule, applied in a majority of
jurisdictions, strikes the proper balance by requiring the
trial court to determine whether the disputed statement is
reasonably capable of a defamatory construction. If the
statement is reasonably capable of a defamatory
construction, the jury decides whether it was intended or
understood to be defamatory. Tuite argues that the
reasonable construction rule insulates the judicial system
from frivolous claims without eliminating the role of the
jury.
In Chapski, this court considered many of the objections to
the innocent construction rule that are now raised by
Tuite. We acknowledged that the innocent construction rule,
or a variation thereof, was recognized in only a few
states. See Chapski, 92 Ill. 2d at 349. We also considered
“the broader protections that now exist to protect first
amendment interests [citations] together with the
availability of the various privileges.” Chapski, 92 Ill.
2d at 351 (citing New York Times Co. v. Sullivan, 376 U.S.
254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), Gertz v.
Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S.
Ct. 2997 (1974), Colson v. Stieg, 89 Ill. 2d 205, 209
(1982), Blair v. Walker, 64 Ill. 2d 1 (1976), Farnsworth v.
Tribune Co., 43 Ill. 2d 286 (1969), Zienfeld v. Hayes
Freight Lines, Inc., 41 Ill. 2d 345 (1968), Catalano v.
Pechous, 83 Ill. 2d 146, 167-68 (1980), and Restatement
(Second) of Torts §§ 583 through 613 (1977)).
We, nevertheless, chose only to modify the rule in light of
these considerations rather than abandon it. Chapski, 92
Ill. 2d at 351-52.
Tuite cites three cases that were decided after Chapski in
support of his argument that new protections have rendered
the innocent construction rule unnecessary. Tuite asserts
that Milkovich v. Lorain Journal Co., 497 U.S. 1, 111 L.
Ed. 2d 1, 110 S. Ct. 2695 (1990), held a defamatory
statement must be factual rather than mere hyperbole or
unverifiable opinion to be actionable. The Supreme Court,
however, previously stated in Gertz that expressions of
opinion are constitutionally protected. The Court asserted
that “[h]owever pernicious an opinion may seem, we depend
for its correction not on the conscience of judges and
juries but on the competition of other ideas.” Gertz, 418
U.S. at 339-40, 41 L. Ed. 2d at 805, 94 S. Ct. at 3007. In
Milkovich, the Court clarified that there is no artificial
distinction between opinion and fact, and that a false
assertion of fact can be defamatory even if it is couched
in terms of an opinion. Bryson, 174 Ill. 2d at 99-100,
citing Milkovich, 497 U.S. at 18-19, 111 L. Ed. 2d at
17-18, 110 S. Ct. at 2705-06. Under Milkovich, a statement
is constitutionally protected only if it cannot be
reasonably construed as stating actual facts. Bryson, 174
Ill. 2d at 100, quoting Milkovich, 497 U.S. at 20, 111 L.
Ed. 2d at 19, 110 S. Ct. at 2706. Nonetheless, the
constitutional protection of statements of opinion was
recognized in Gertz. See Solaia Technology, 221 Ill. 2d at
581 (quoting Gertz as support for the proposition that a
statement may be constitutionally protected as an
expression of opinion). In Chapski, this court considered
the “broader protections” provided in Gertz in modifying
the innocent construction rule. Chapski, 92 Ill. 2d at
351-52.
Tuite also cites Kuwik v. Starmark Star Marketing &
Administration, Inc., 156 Ill. 2d 16, 24 (1993), for the
proposition that qualified privileges protect defamation
defendants from liability even when the allegedly
defamatory statement is untrue. But in Chapski this court
considered the availability of various qualified privileges
in deciding to modify the innocent construction rule.
Chapski, 92 Ill. 2d at 351. Thus, the existence of
qualified privileges does not support a decision to abandon
the rule now.
In addition, Tuite notes that defamation plaintiffs must
prove that defamatory speech is false when seeking damages
against a media defendant for speech that is of public
concern. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S.
767, 776-77, 89 L. Ed. 2d 783, 793, 106 S. Ct. 1558, 1564
(1986). This constitutional protection was not considered
in Chapski. Tuite, however, does not specifically explain
how this protection replaces the function served by the
innocent construction rule.
As previously noted, the innocent construction rule applies
only to per se actions. Mittleman, 135 Ill. 2d at 232.
While the rule favors defendants, the tougher standard is
warranted because damages are presumed in per se actions.
Mittleman, 135 Ill. 2d at 234. We are not persuaded that
the constitutional protections and privileges cited by
Tuite supplant the innocent construction rule. We therefore
reject Tuite’s argument that the innocent construction rule
should be abandoned on this basis.
As for Tuite’s argument that the innocent construction rule
eliminates the jury’s role in determining the meaning of a
statement, this court addressed that claim in Chapski. We
held that the preliminary determination of whether a
statement is capable of a reasonable innocent construction
is a question of law to be resolved by the court in the
first instance. Chapski, 92 Ill. 2d at 352. Whether the
statement was in fact understood to be defamatory is a
question for the jury if the initial determination is
resolved in the plaintiff’s favor. Chapski, 92 Ill. 2d at
352. Thus, the innocent construction rule does not
eliminate the role of the jury as Tuite claims. This
argument does not provide good cause or a compelling reason
for this court to depart from stare decisis.
We also observe no conflict between the innocent
construction rule and the standards applied to a section
2-615 motion to dismiss. A section 2-615 motion to dismiss
attacks the legal sufficiency of a complaint based on
facial defects. City of Chicago v. Beretta U.S.A. Corp.,
213 Ill. 2d 351, 364 (2004). All well-pleaded facts and
reasonable inferences that can be drawn from those facts
are accepted as true. Bryson, 174 Ill. 2d at 86. The court
is to interpret the allegations in the complaint in the
light most favorable to the plaintiff. Wakulich v. Mraz,
203 Ill. 2d 223, 228 (2003). A cause of action should not
be dismissed under section 2-615 unless it is clear that no
set of facts can be proved under the pleadings that would
entitle the plaintiff to recover. Canel v. Topinka, 212
Ill. 2d 311, 318 (2004).
In considering a section 2-615 motion to dismiss a
defamation per se claim, the court must accept as true the
facts alleged in the complaint, including the defendant’s
publication of a statement. The court is not, however,
required to accept the plaintiff’s interpretation of the
disputed statement as defamatory per se. The meaning of the
disputed statement is not a fact that can be alleged and
accepted as true. Thus, the preliminary construction of the
statement “is properly a question of law to be resolved by
the court in the first instance.” Chapski, 92 Ill. 2d at
352. In construing the statement under the innocent
construction rule, the court must “give the allegedly
defamatory words their natural and obvious meaning” and
interpret them “as they appeared to have been used and
according to the idea they were intended to convey to the
reasonable reader.” Bryson, 174 Ill. 2d at 93. Contrary to
Tuite’s contention, in applying the rule the court does not
construe the factual allegations in the light most favorable
to the defendant. Rather, the court determines the legal
question of the preliminary construction of the statement.
We, therefore, find no conflict between the innocent
construction rule and section 2-615.
Tuite’s final contention in support of his argument that
the innocent construction rule should be abandoned is that
the rule continues to be misapplied. Since the rule was
last clarified in Bryson, the appellate court has applied
it in several cases. Tuite has not identified any specific
case since Bryson that he claims misapplied the rule. We
note that this court did find the appellate court erred in
applying the innocent construction rule in one recent case.
See Solaia Technology, 221 Ill. 2d at 582-83. That does not
provide a basis for finding the rule unworkable, however,
because any rule of law is subject to occasional
misapplication. In Bryson, decided just 10 years ago, this
court chose to clarify the innocent construction rule rather
than to abandon it. We will not now abandon the rule as
unworkable absent evidence that it has been subject to more
than an occasional misapplication following its
clarification.
In sum, this court has held that the innocent construction
rule advances the constitutional interests of free speech
and free press and encourages the robust discussion of
daily affairs. Chapski, 92 Ill. 2d at 350, citing Dauw, 78
Ill. App. 3d at 71. The rule applies only to claims of
defamation per se, and it is justified due to the
presumption of damages. Mittleman, 135 Ill. 2d at 234. A
plaintiff can always avoid application of the innocent
construction rule by seeking to establish a per quod
action. Mittleman, 135 Ill. 2d at 233. We conclude that the
rationale underlying the rule remains valid. Tuite has not
established the good cause or compelling reason required
for this court to depart from stare decisis. Accordingly,
we reject Tuite’s request to abandon the innocent
construction rule.
B. Application of the Innocent Construction Rule
Tuite argues that the appellate court erred in finding that
the disputed statements are capable of a reasonable
innocent construction. As previously noted, the preliminary
construction of an allegedly defamatory statement is a
question of law. Chapski, 92 Ill. 2d at 352. Accordingly,
our review is de novo. Woods v. Cole, 181 Ill. 2d 512, 516
(1998), citing Lucas v. Lakin, 175 Ill. 2d 166, 171 (1997).
In considering allegedly defamatory statements under the
innocent construction rule, we reemphasize that courts must
interpret the words “as they appeared to have been used and
according to the idea they were intended to convey to the
reasonable reader.” Bryson, 174 Ill. 2d at 93. Courts are
not required to strain to find an unnatural innocent
meaning for words when a defamatory meaning is far more
reasonable. Bryson, 174 Ill. 2d at 94. Thus, if the likely
intended meaning of a statement is defamatory, a court
should not dismiss the plaintiff’s claim under the innocent
construction rule. In those circumstances, an innocent
construction of the statement would necessarily be strained
and unreasonable because the likely intended meaning is
defamatory. We also note that the innocent construction
rule does not require courts “to espouse a naÄ?vet?©
unwarranted under the circumstances.” Bryson, 174 Ill. 2d
at 94.
Additionally, this court has emphasized that the context of
a statement is critical in determining its meaning. See
Bryson, 174 Ill. 2d at 93-94; Mittelman, 135 Ill. 2d at
247-48. A given statement may convey entirely different
meanings when presented in different contexts. Thus, the
innocent construction rule requires a writing “to be read as
a whole.” John, 24 Ill. 2d at 442. In this case, we must
consider the entire book in determining the context of the
allegedly defamatory statements. See Flip Side, Inc. v.
Chicago Tribune Co., 206 Ill. App. 3d 641, 651 (1990).
Double Deal is essentially a series of stories about mafia
figures and their activities. A review of the book shows
its context is organized crime and corruption in the
Chicago area and Corbitt’s involvement in those activities.
As Tuite asserts, the book “recounts story after story of
corruption, including within the judicial system.” The
disputed statements must be viewed in the context of the
corruption described repeatedly throughout Double Deal.
Given the overwhelming focus on corruption in this book,
these statements cannot reasonably be given an innocent
construction. In the excerpt, defendants asserted that “the
FBI had uncovered tons of evidence,” and three of the key
witnesses “knew enough to bury just about everybody who was
anybody in the Outfit.” Defendants asserted that additional
witnesses were “flipping left and right” and “[i]t was
pretty clear that the Chicago Outfit was going to take a
major hit.” These statements, if accurate, indicate that
the evidence against Aiuppa and his codefendants was
extremely strong.
According to the book, Tuite was then paid $1 million in
cash to represent Aiuppa and his codefendants. After Tuite
was hired, “all the guys were sort of semijubilant,” they
believed Tuite “had it all handled,” and “it was like it
was a done deal, like they were all going to be acquitted.”
In fact, Aiuppa and his codefendants were so confident that
they would be acquitted in spite of the compelling evidence
of their guilt that they were preparing to celebrate while
waiting for the verdict. In the context of this book about
crime and widespread corruption, these statements naturally
indicate that Tuite was expected to engage in bribery or
payoffs to secure the acquittals. We agree with Justice
Wolfson that “[t]he clear message is that Tuite was ready
and able to fix the case, that he was paid to fix it, and
that he did not deliver, something that should have caused
a premature end to his life.” 358 Ill. App. 3d at 901
(Wolfson, J., specially concurring in part and dissenting
in part).
Defendants, nonetheless, argue that terms such as “better
representation,” “retainer,” “defense money,” and “legal
fees” in the excerpt indicate that Tuite was hired to
provide legitimate legal services rather than to pay
bribes. Defendants maintain that it is reasonable to accept
the innocent construction that Tuite was hired on the basis
of his legal skills. We disagree. The isolated use of those
terms does not control the meaning of the excerpt. The
context of the book as a whole significantly colors those
terms. Importantly, this book is not about hiring a lawyer
or complimenting Tuite’s skills as an attorney. The book is
a series of stories about corruption, including corruption
within the judicial system. It is not reasonable to believe
defendants intended to convey a story about Tuite’s trial
skills given the context of the book as a whole. It is far
more reasonable to believe defendants intended to convey a
story about corruption.
Defendants further argue that they explicitly accused other
people of criminal misconduct in the book. Tuite, however,
was not explicitly accused of bribing officials or any
other criminal act. Defendants, therefore, contend that the
excerpt is capable of a reasonable innocent construction.
We agree that Tuite was not explicitly accused of bribing
officials in the excerpt. The excerpt, however, indicates
that Aiuppa and his codefendants were facing virtually
insurmountable evidence in their pending criminal trial.
Nevertheless, after allegedly paying Tuite $1 million in
cash from their illegal “skim,” the criminal defendants
considered their acquittals to be “a done deal.” The
question naturally arises as to how Tuite would ensure
acquittals with certainty despite the “tons of evidence”
against the criminal defendants. Although the book does not
explicitly describe bribery as the means of achieving that
result, it also does not mention or describe Tuite’s trial
skills as the basis for the criminal defendants’ confidence
in their acquittals. Based on the wording of the excerpt
along with the context of the book as a whole, we believe
that a reasonable reader would most likely conclude this
passage was intended to allude to bribery and corruption of
the judicial system. A reasonable reader would likely
conclude that the delivery of $1 million in cash in
illegally obtained funds was not solely for legitimate
legal fees, but was, at least in part, to be used for
bribes and payoffs to ensure the acquittals. There is simply
no basis for a reasonable reader to believe that defendants
implicitly intended to compliment Tuite’s trial skills in
the middle of a book about organized crime and corruption.
As noted, we will not strain to find an innocent meaning
for words when a defamatory construction is far more
reasonable. Bryson, 174 Ill. 2d at 94. We conclude that a
defamatory construction of the disputed statements is far
more reasonable than any innocent construction. An innocent
construction is incompatible with the description of the
events leading up to and following Tuite’s hiring, as well
as the events chronicled in the remainder of the book. Any
innocent construction of these statements would be strained
and unreasonable. See Bryson, 174 Ill. 2d at 94.
Accordingly, we conclude that the appellate court erred in
finding the disputed statements capable of a reasonable
innocent construction.
Finally, Tuite’s false light invasion of privacy claim was
based upon the defamatory per se nature of the statements.
The appellate court held that the failure of Tuite’s
defamation per se claim required the dismissal of his false
light claim. 358 Ill. App. 3d at 899. Because we reverse
the dismissal of Tuite’s defamation per se claim, it
follows that the dismissal of his false light invasion of
privacy claim must also be reversed.
III. CONCLUSION
For the foregoing reasons, we reverse the judgment of the
appellate court and the circuit court and remand this
matter to the circuit court for further proceedings
consistent with this opinion.
Reversed and remanded.
CHIEF JUSTICE THOMAS and JUSTICE BURKE took no part in the
consideration or decision of this case.
JUSTICE FREEMAN, concurring in part and dissenting in part:
I agree with the majority that it is appropriate to reverse
the circuit court’s order dismissing the case. However, I
would arrive at that conclusion by a different route than
the majority, because I respectfully dissent from that
portion of the majority opinion which reaffirms the
“innocent construction rule.”
While I strongly believe in the doctrine of stare decisis,
I do not believe its application in this case is proper for
several reasons. First, the innocent construction rule is,
in my view, out of step with the first amendment
jurisprudence of the United States Supreme Court. Second, I
find compelling plaintiff’s arguments-which I do not
believe this court ever to have addressed-that the innocent
construction rule is inherently flawed. The fact that the
rule has been rejected by an overwhelming majority of
jurisdictions reinforces my belief. This court’s own
inconsistent application of the rule also demonstrates the
flaws inherent therein, and suggests that the need exists
for this court to revisit the question of the rule’s
continued place in our case law.
To my mind, these facts together constitute sufficient
cause for stare decisis to yield. Stare decisis is a valid
and useful rule of thumb, but as we have long acknowledged,
it is not an “inexorable command.” Chicago Bar Ass’n v.
Illinois State Board of Elections, 161 Ill. 2d 502, 510
(1994). Rather, it is a means to the end of “ensur[ing]
that the law will not merely change erratically, but will
develop in a principled and intelligible fashion.” Chicago
Bar Ass’n, 161 Ill. 2d at 510. Prior decisions should not
be overruled absent “good cause” (Moehle v. Chrysler Motors
Corp., 93 Ill. 2d 299, 304 (1982)), but good cause exists
when the prior decision in question proves to be unworkable
or badly reasoned (People v.Sharpe, 216 Ill. 2d 481, 520
(2005), citing People v. Jones, 207 Ill. 2d 122, 134
(2003)). Nor, we have noted, does it do violence to stare
decisis to overrule a prior decision which the court has
been quietly disavowing since its inception. See People v.
Mitchell, 189 Ill. 2d 312, 339 (2000) (“`explicitly
overruling [a prior decision] is not an “erratic” change in
the law. In the eighteen years since [that case], every
case interpreting [it], including today’s majority opinion,
has eroded its holding. I would merely make explicit what
this court has done implicitly for the last eighteen
years'”), quoting McMahan v. Industrial Comm’n, 183 Ill. 2d
499, 518 (1998) (Heiple, J., specially concurring).
A brief review of the history of the innocent construction
rule is in order. We initially adopted the rule in 1964, in
John v. Tribune Co., 24 Ill. 2d 437 (1962). There, we
stated in “obiter dictum” (Chapski v. Copley Press, 92 Ill.
2d 344, 347-48 (1982)) that
“the language in defendant’s articles is not libelous of
plaintiff when the innocent construction rule is
consulted. That rule holds that the article is to be read
as a whole and the words given their natural and obvious
meaning, and requires that words allegedly libelous that
are capable of being read innocently must be so read and
declared nonactionable as a matter of law.” John, 24 Ill.
2d at 442.
We did not offer any rationale for adopting the rule,
despite the fact that we had made Illinois an outlier by
doing so. See, e.g., Comment, The Illinois Doctrine of
Innocent Construction: A Minority of One, 30 U. Chi. L.
Rev. 524 (1963). Commentators subsequently recognized that
the rule could have the beneficial effect of mitigating the
doctrine of strict liability in the law of defamation (30
U. Chi. L. Rev. at 538-39), but that doctrine was abolished
10 years after John, over 30 years prior to the present
day. Chapski, 92 Ill. 2d at 350, citing Gertz v. Robert
Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997
(1974).
Approximately 20 years after John, this court decided
Chapski. There, we debated whether to persist with the
innocent construction rule. Recognizing that the rule had
been applied in wildly divergent ways by our appellate
court, the strongest argument this court could muster in
defense of the innocent construction rule was “that it
comports with the constitutional interests of free speech
and free press and encourages the robust discussion of
daily affairs.” Chapski, 92 Ill. 2d at 350, citing Dauw v.
Field Enterprises, Inc., 78 Ill. App. 3d 67, 71 (1979).
Nevertheless, we also acknowledged in Chapski that since
John had been decided, there had come broader general
protection for first amendment interests. Chapski, 92 Ill.
2d at 351 (citing Gertz v. Robert Welch, Inc., 418 U.S.
323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974), and New York
Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84
S. Ct. 710 (1964) (abolishing doctrine of strict liability
for both private and public plaintiffs, respectively)). We
also recognized the existence of “various privileges”
protective of free speech. Chapski, 92 Ill. 2d at 351
(citing Colson v. Stieg, 89 Ill. 2d 205, 209 (1982),
Catalano v. Pechous, 83 Ill. 2d 146, 167-68 (1980), Blair
v. Walker, 64 Ill. 2d 1 (1976), Farnsworth v. Tribune Co.,
43 Ill. 2d 286 (1969), Zeinfeld v. Hayes Freight Lines,
Inc., 41 Ill. 2d 345 (1968), and Restatement (Second) of
Torts §§ 583 through 613 (1977)). We
accordingly concluded that the rule’s protection was
sufficiently less compelling that we could modify the rule
as announced in John to clarify that
“a written or oral statement is to be considered in
context, with the words and the implications therefrom
given their natural and obvious meaning; if, as so
construed, the statement may reasonably be innocently
interpreted or reasonably be interpreted as referring to
someone other than the plaintiff it cannot be actionable
per se. This preliminary determination is properly a
question of law to be resolved by the court in the first
instance; whether the publication was in fact understood
to be defamatory or to refer to the plaintiff is a
question for the jury should the initial determination be
resolved in favor of the plaintiff.” Chapski, 92 Ill. 2d
at 352, citing Troman v. Wood, 62 Ill. 2d 184, 189 (1975).
We have applied the rule numerous times since Chapski but
have never since explicitly modified it. See, e.g., Solaia
Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d
558 (2006); Bryson v. News
America Publications, Inc., 174 Ill. 2d 77, 90, 93 (1996);
Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 11
(1992); Mittelman v. Witous, 135 Ill. 2d 220 (1989);
Costello v. Capital Cities Communications, Inc., 125 Ill.
2d 402 (1988). Nor have we, since Chapski, expressly
addressed any challenge to the rule, so far as I am aware.
The first reason that I believe stare decisis must yield in
this case is that the innocent construction rule is out of
step with United States Supreme Court precedent involving
defamation and the first amendment’s protection of free
speech. It is outdated. That is not to say that “robust
discussion of daily affairs” (Chapski, 92 Ill. 2d at 350)
has become pass?©, but as the Supreme Court has long
recognized, free speech is not the only societal interest
at issue in defamation actions. “If it were, this Court
would have embraced long ago the view that publishers and
broadcasters enjoy an unconditional and indefeasible
immunity from liability for defamation.” Gertz, 418 U.S. at
341, 41 L. Ed. 2d at 806, 94 S. Ct. at 3007. Rather, that
interest is in tension with the individual’s interest in
maintaining his good name against defamatory falsehood.
Gertz, 418 U.S. at 341, 41 L. Ed. 2d at 806, 94 S. Ct. at
3008. Thus, the simple fact that the innocent construction
rule favors free speech (see slip op. at 15, citing
Chapski, 92 Ill. 2d at 350) is not sufficient reason to
prefer it.
Moreover, as first amendment jurisprudence has evolved, the
United States Supreme Court has provided a great deal of
additional protection to free speech which did not exist at
the time of John or Chapski. Sullivan and Gertz were, of
course, landmark cases in defamation law which were decided
after John but before Chapski. They did away with the
doctrine of strict liability in defamation actions, and we
took them into account when we modified the rule in
Chapski. See Chapski, 92 Ill. 2d at 351. But the Court has
announced numerous significant decisions since Chapski, as
plaintiff notes in his brief to this court. For instance,
the Court has ruled that when the speech at issue concerns
a matter of public importance, the burden is on the
plaintiff to prove the speech false (rather than truth
being an affirmative defense which the defendant must raise
and prove) even when the plaintiff is not a public figure.
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776,
89 L. Ed. 2d 783, 792, 106 S. Ct. 1558, 1563 (1986). The
Court has erected an absolute bar to recovery for any
speech which cannot “reasonably have been interpreted as
stating actual facts” about a public figure. Hustler
Magazine v. Falwell, 485 U.S. 46, 50, 99 L. Ed. 2d 41, 48,
108 S. Ct. 876, 879 (1988). And, as the majority
recognizes, Milkovich v. Lorain Journal Co., 497 U.S. 1,
111 L. Ed. 2d 1, 110 S. Ct. 2695 (1990), wrought yet another
change in defamation law. There, the Court disavowed the
statement in Gertz that “[h]owever pernicious an opinion
may seem, we depend for its correction not on the
conscience of judges and juries but on the competition of
other ideas” (see Gertz, 418 U.S. at 339-40, 41 L. Ed. 2d
at 805, 94 S. Ct. at 3007) as mere “dictum” which was not
“intended to create a wholesale defamation exemption for
anything that might be labeled `opinion.'” Milkovich, 497
U.S. at 18, 111 L. Ed. 2d at 17, 110 S. Ct. at 2705.
Rather, Milkovich clarified, the question is whether the
statement is “provable as false,” at least with respect to
speech on matters of public concern involving a media
defendant. Milkovich, 497 U.S. at 19-20, 111 L. Ed. 2d at
18, 110 S. Ct. at 2706.
A comprehensive dissertation on defamation law since 1964
is well beyond the scope of this partial dissent. But what
is apparent even from the above cursory survey is that a
number of factors come into play in balancing free speech
concerns against the rights of the individual against
defamation. The calculus turns on such variables as whether
the plaintiff is a public figure, whether defendant is a
member of the media, and the degree of public interest in
the subject matter of the allegedly defamatory speech at
issue. Although some of these permutations had been settled
at the time Chapski was decided, not all had.
What is further apparent is that the innocent construction
rule is blind to all of the above distinctions. We have
applied the rule when the defendant is a member of the
media (Solaia Technology, 221 Ill. 2d 558 (trade magazine);
Bryson, 174 Ill. 2d 77 (national magazine)) and when the
defendant is a private individual (Mittelman, 135 Ill. 2d
220 (member of board of directors of plaintiff’s law
firm)). The rule is in equal force when the plaintiffs are
public figures (Catalano v. Pechous, 83 Ill. 2d 146 (1980)
(city aldermen)) and when the plaintiff is a private
individual (Bryson, 174 Ill. 2d 77 (private individual
living in a small town in southern Illinois)). Nor does my
review of our case law evince any attempt to take into
account the degree of public interest in the subject matter
of the speech at issue. The rule is wholly insensitive to
the complex context-sensitive balance between the
public’s interest in free speech and the individual’s
interest in his good name, unsullied by falsehood. So far
as I can see, the innocent construction rule is nothing
more than a thumb on the scale on the side of the defendant
in every per se defamation case. It is out of step with the
delicate balances inherent in defamation law and this alone
constitutes sufficient reason to overrule it, stare decisis
notwithstanding.
My second basis for finding cause to depart from stare
decisis deals with the very operation of the innocent
construction rule. Not only is it out of step with
defamation law generally-a sledgehammer where a scalpel is
called for-it is intrinsically logically flawed and
inconsistent with our general standards applicable at the
dismissal stage of lawsuits. The majority purports to
address these concerns, but I believe it falls short.
Plaintiff argues that by its terms, the innocent
construction rule does away with the role of the jury, and
he is correct. According to the rule, at the dismissal
stage, the court must answer the threshold question of
whether, as a matter of law, a statement can reasonably be
read innocently. If the answer is yes-i.e., the statement
can be read innocently-the case never goes to a jury. Only
if the answer is no-i.e., the statement cannot reasonably
be read innocently-does the case proceed. That is, a jury
will only be allowed to decide whether a statement was
actually innocent or defamatory if the court has already
decided as a matter of law that the statement cannot
reasonably be read innocently. Chapski, 92 Ill. 2d at 352.
No jury finding in favor of a defendant should be allowed
to stand, given that for the case to get to the jury, the
court must already have found as a matter of law that the
statement cannot reasonably be read innocently.
As plaintiff notes in his brief, commentators have
described this flaw in the rule for decades. Shortly after
Chapski, commentators noted:
“The primary flaw in the innocent construction rule is
its illogical method for determining which statements are
to be nonactionable as a matter of law and which are to be
sent to a jury. Under the rule as applied in John,
allegedly defamatory words capable of being read
innocently must be so read and declared nonactionable by
the judge as a matter of law. Therefore, only those
statements which the court determines are incapable of any
innocent construction are to be sent to the jury for a
determination of whether they were understood to be
defamatory. Under this procedure, however, if a judge
determines that no innocent construction exists, there is
nothing left for the jury to determine. In theory, though
apparently not in actual practice, the plaintiff should
then be entitled to judgment as a matter of law.
Alternatively, the judge should be compelled to enter a
directed judgment or judgment notwithstanding the verdict
if the issue is submitted to the jury and the jury
determines otherwise.” L. Malone & R. Smolla, The Future
of Defamation in Illinois after Colson v. Stieg and
Chapski v. Copley Press, Inc., 32 DePaul L. Rev. 219, 277
(1983).
The same fact was observed just prior to Chapski:
“[T]here should never be a jury trial in Illinois on the
nature of the words. For, if the words are reasonably
capable of innocent meaning, the trial judge should
dismiss the case. The only other kind of case will be a
situation in which the words are not capable of any
reasonably innocent meaning. Therefore, the trial judge
should enter a judgment for the plaintiff, at least on
the meaning of the words, because no reasonable jury by
definition could ever find the words to be innocent.” M.
Polelle, The Guilt of the “Innocent Construction Rule” in
Illinois Defamation Law, 1 N. Ill. U. L. Rev. 181, 214
(1981).
Indeed, commentators have been making the same observation
since John:
“If literally applied, [the innocent construction rule]
would seem practically to eliminate the jury from the
determination of the defamatory quality of ambiguous
language. If the words are capable of an innocent
construction, the defendant is entitled to a directed
verdict. If there is no innocent construction that can be
derived from the publication then there is no question of
fact as to its defamatory character, and it should be
declared defamatory as a matter of law. Either way there
would be no question to be submitted to the jury.” 30 U.
Chi. L. Rev. at 531.
See also R. Smolla, Law of Defamation 2d § 4.22, at
4-38.8 (1999) (noting that the innocent construction rule,
“which is often internally contradictory, confusing, and on
the whole significantly biased in favor of defendants, has
produced some bizarre results, and has come in for
substantial criticism”).
The majority suggests that we answered this objection in
Chapski. See slip op. at 13-14. I respectfully disagree. In
Chapski we never professed to address the argument that the
rule did away with the jury’s role. It is not clear the
argument was even raised in the case, despite the objection
having been voiced by commentators since the rule’s
inception. To the contrary, the only argument against the
rule which we acknowledged in Chapski was that when applying
it, courts failed to interpret statements reasonably.
Chapski, 92 Ill. 2d at 350-51. Moreover, even if the
argument was raised in Chapski and rejected sub silentio,
the response is that then, as now, a majority of this court
failed to come to grips with the heart of the objection. To
say that the case goes to the jury if it has not been
dismissed is technically true, but the point of the
objection is that once a case has survived dismissal under
the innocent construction rule there is nothing left for
the jury to decide, because the court must already have
ruled as a matter of law that it would be unreasonable to
interpret the statements as anything but defamatory.
Plaintiff also argues that the rule is inconsistent with
the standards we otherwise apply at the dismissal stage.
Again, plaintiff’s point is well-taken. As the majority
correctly summarizes, at the dismissal stage “[A]ll
well-pleaded facts and reasonable inferences that can be
drawn from those facts are accepted as true.” Moreover,
“[t]he court is to interpret the allegations in the
complaint in the light most favorable to the plaintiff,”
dismissing the cause of action only if “it is clear that no
set of facts can be proved under the pleadings that would
entitle the plaintiff to recover.” Slip op. at 14. The
majority reasons that the innocent construction rule is
consistent with these principles because although “the
court must accept as true the facts alleged in the
complaint,” the court “is not, however, required to accept
the plaintiff’s interpretation of the disputed statement as
defamatory per se. The meaning of the disputed statement is
not a fact that can be alleged and accepted as true.”
(Emphasis in original.) Slip op. at 14. Rather, the court
“`give[s] the allegedly defamatory words their natural and
obvious meaning’ and interprets them `as they appeared to
have been used and according to the idea they were intended
to convey to the reasonable reader.'” Slip op. at 14,
quoting Bryson, 174 Ill. 2d at 93.
This recitation of the rules ordinarily applicable at the
dismissal stage and what occurs pursuant to the innocent
construction rule seems to me sufficient to demonstrate the
incompatibility to which plaintiff directs our attention. I
agree with the majority that it would be inappropriate to
treat the plaintiff’s interpretation of a statement as a
fact which must be assumed to be true. However, if the
meaning of a statement is not a “fact” to be “alleged,”
then how is the trial court to arrive at a conclusion
regarding the statement’s meaning? Clearly, the court must
interpret the statement, inferring its meaning from the
context in which it was made. And thus, by the rules the
majority cites, any doubt regarding the statement’s meaning
should be resolved in plaintiff’s favor. See slip op. at 14
( “All well-pleaded facts and reasonable inferences that
can be drawn from those facts are accepted as true.
[Citation.] The court is to interpret the allegations in
the complaint in the light most favorable to the plaintiff”
(emphases added)). But under the innocent construction
rule, no preference is given for that interpretation of the
statement which support’s plaintiff’s complaint. To the
contrary, any doubt about the statement’s meaning is
resolved in the defendant’s favor because if the
defendant’s interpretation of the statement is reasonable,
the case is dismissed. This is not an appropriate standard
at the dismissal stage.
To say it another way, the innocent construction rule comes
into play when there are two reasonable ways in which a
statement could be interpreted, one of which is defamatory
and one of which is not. In such a situation, the court is
required to dismiss the action rather than allowing the
case to go to the jury. This is clearly different than all
other civil actions, in which, at the dismissal stage, if
there are two reasonable ways to resolve a factual dispute,
one favoring plaintiff and the other favoring defendant,
the court must deny the motion to dismiss, sending the case
to the jury to resolve the factual dispute. The majority’s
statement that the rule does not require a court to
“construe the factual allegations in the light most
favorable to the defendant” is, again, technically true but
misses the thrust of the argument. A court does not have to
draw inferences in the defendant’s favor, because according
to the innocent construction rule, the entire case must be
decided in defendant’s favor as a matter of law if the
defendant’s position is even reasonable. Plaintiff’s point
is that in all cases except defamation, the question at the
dismissal stage is, Is it reasonably possible that the
plaintiff will be able to prove his case? If so, the case
must proceed. In defamation, by contrast, the question is,
Is it reasonably possible that the plaintiff’s case could
fail? If so, the case must be dismissed without the
plaintiff ever having the opportunity to put his case
before a jury of his peers.
By contrast, the reasonable construction rule suffers none
of these defects. Application of the reasonable
construction rule requires a court at the dismissal stage
to determine whether there is any reasonable way to
interpret the statement in a defamatory manner. If the
statement can reasonably be so interpreted, the case
proceeds, and the jury must ultimately determine if the
statement was actually defamatory. Only if it is not
reasonably possible to interpret the statement as
defamatory is the case dismissed. Slip op. at 12; see also
James v. Gannett Co., 40 N.Y.2d 415, 419, 353 N.E.2d 834,
837-38, 386 N.Y.S.2d 871, 874 (1976). This rule comports
with our normal rules applicable at the dismissal stage,
and leaves a question for the jury to decide if the case
does actually go to the jury.
I believe that these inherent flaws in the rule constitute
another sufficient reason to abandon it despite stare
decisis. See Sharpe, 216 Ill. 2d at 519; Jones, 207 Ill. 2d
at 134 (good cause to overrule a prior decision exists when
the prior decision is unworkable or badly reasoned). I see
no indication that this court has ever considered these
deficiencies in the rule. We certainly did not do so in
John, where we adopted the rule in dictum in one paragraph
with no analysis, nor did we do so in Chapski, where the
only challenge we addressed was the fact that courts
applying the rule interpreted statements unreasonably, nor
in any other decision applying the rule. The rule is badly
reasoned and illogical, and should be done away with for
this reason alone, let alone the fact that it is also badly
out of step with evolving defamation and first amendment
jurisprudence.
Another virtue of the reasonable construction rule is that
it is followed by the vast majority of jurisdictions. The
Restatement and Dobbs both state simply that it is the
judge’s function to determine whether the words are capable
of being understood as defamatory, and the jury determines
whether they were actually defamatory. Restatement (Second)
of Torts § 614, at 311 (1977); 2 D. Dobbs, Torts
§ 404, at 1131 (2001). Neither even mentions another
approach. A leading treatise says that the reasonable
construction rule has been adopted by “every jurisdiction
in the United States save Illinois.” R. Smolla, Law of
Defamation 2d § 4.21, at 4-38.5 (1999). But see R.
Sack, Sack on Defamation § 2.4.14, at 2-62-2-63 (3d
ed. rev. 2004) (innocent construction rule is the law not
only in Illinois but also in “Ohio and, perhaps, in
Missouri, New Mexico, and Montana”). Some jurisdictions,
such as New York, appear always to have followed the
reasonable construction rule (see, e.g., James, 40 N.Y.2d
at 419, 353 N.E.2d at 837-38, 386 N.Y.S.2d at 874), while
others, such as California, once followed the innocent
construction rule but abandoned it in favor of the
reasonable construction rule (MacLeod v. Tribune Publishing
Co., 52 Cal. 2d 536, 343 P.2d 36 (1959)).
I would not necessarily find our uniqueness alone to be
sufficient reason to abandon our prior precedent. I believe
it is no vice to hold fast to a well-reasoned rule, even if
other jurisdictions do not agree. But in this case, I
believe the rule Illinois follows is not well reasoned, and
its almost universal rejection by our sister States tends
to support that view.
Finally, I note that the innocent construction rule has
been fraught with inconsistency since its inception. Our
modification of the rule in Chapski provides one example of
this, of course. Moreover, despite this court’s express
statement in Chapski that our holding there “modified” the
rule as announced in John, we have been inconsistent about
whether Chapski did in fact modify the rule. Compare, e.g.,
Bryson, 174 Ill. 2d at 93 (parenthetically characterizing
Chapski as “modifying” John), with Anderson v. Vanden
Dorpel, 172 Ill. 2d 399, 416 (1996) (“`it is hardly tenable
that prior to Chapski an innocent construction could be
unreasonable. In short, a reasonable innocent construction
was always the mandate of John v. Tribune Co. and was
applied in the numerous defamation cases which are John’s
progeny'” (emphases in original)), quoting Harris Trust &
Savings Bank v. Phillips, 154 Ill. App. 3d 574, 581 (1987).
Yet another apparent inconsistency may be observed within
the instant case. The majority cites approvingly the holding
in Mittelman that we do not “balance” differing
constructions of the statement at issue. See slip op. at
9-10, citing Mittelman, 135 Ill. 2d at 232. Yet in applying
the rule in this case the majority “conclude[s] that a
defamatory construction is far more reasonable than any
innocent construction.” (Emphasis added.) Slip op. at 18.
The innocent construction rule was adopted, in dictum, at a
time when defamation was a strict liability cause of
action, with little protection for the speaker. Since then,
not only has strict liability been entirely repudiated, but
defamation law has become increasingly complex, taking into
account the status of both parties involved as well as the
nature of the speech at issue. But the innocent construction
rule has remained unchanged, a simple blanket layer of
protection for defendants no matter what the circumstance.
Moreover, even if the law had not changed, the rule has
from its inception been logically flawed and inconsistent
with our general rules concerning motions to dismiss. It
has been repudiated by all, or nearly all, other
jurisdictions in the country. Further, this court has had
to amend the rule in the past, and continues to apply it
inconsistently. For all these reasons, in this case, I
believe that stare decisis should yield, and the innocent
construction rule should at long last be consigned to its
rightful place in the scrap heap of Illinois legal history.
Accordingly, I respectfully dissent from this portion of
the majority opinion.
However, I agree with the result reached by the majority.
For if we were to adopt the reasonable construction rule,
as I advocate, I would conclude that it is reasonably
possible to interpret the statements at issue in a
defamatory fashion. Thus according to that rule the
appropriate resolution of this case would be to reverse and
remand for further proceedings, the same result the
majority reaches through its application of the innocent
construction rule. Accordingly, I concur in the majority’s
result.