NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.
Docket No. 79712--Agenda 12--March 1996.
KIMBERLY BRYSON, Appellant, v. NEWS AMERICA PUBLICATIONS, INC.,
et al., Appellees.
Opinion filed October 24, 1996.
CHIEF JUSTICE BILANDIC delivered the opinion of the court:
The plaintiff, Kimberly Bryson, brought an action against the
defendants, News America Publications, Inc., and Lucy Logsdon. The
plaintiff's two-count complaint alleged that she was defamed by the
publication of an article entitled Bryson, which was written by
defendant Logsdon and published by defendant News America in the
March 1991 edition of Seventeen magazine.
The complaint was originally filed in the United States
District Court for the Southern District of Illinois on August 6,
1991, but that action was dismissed for lack of diversity
jurisdiction. The plaintiff refiled her action in the circuit court
of St. Clair County in June 1992. On the defendants' motion, the
cause was transferred under the doctrine of forum non conveniens to
Gallatin County, where both the plaintiff and the defendant Logsdon
were domiciled. On September 17, 1993, the plaintiff filed an
amended complaint, which sought to add two counts seeking damages
for false light/invasion of privacy against the defendants.
The plaintiff subsequently filed a second-amended complaint,
which was dismissed by the trial court and is the subject of this
appeal. Each count of the second-amended complaint alleged that an
article appeared in the March 1991 edition of Seventeen magazine
that referred to the plaintiff as a "slut" and implied that she was
an unchaste individual. The complaint alleged that this language
and implication were false. Counts I though IV of the second-
amended complaint sought damages for defamation. Counts V and VI
sought damages for invasion of the plaintiff's privacy by
portraying the plaintiff in a false light.
The defendants filed a motion to dismiss counts I through IV
of the second-amended complaint, pursuant to section 2--615 of the
Code of Civil Procedure (735 ILCS 5/2--615 (West 1992)), for
failure to state a cause of action for defamation. The defendants
also moved to dismiss counts V and VI of the complaint under
section 2--619 of the Code, on the ground that these counts, which
alleged invasion of privacy, were barred by the statute of
limitations. The trial court granted the defendants' motions and
dismissed the second-amended complaint. The appellate court
affirmed. No. 5--94--0328 (unpublished order under Supreme Court
Rule 23). We granted the plaintiff's petition for leave to appeal.
155 Ill. 2d R. 315.
The plaintiff does not appeal from that portion of the
appellate court decision which affirmed the transfer of the cause
to Gallatin County on forum non conveniens grounds. She appeals
only that part of the decision that affirmed the dismissal of her
complaint in its entirety.
FACTS
A short story entitled Bryson, written by defendant Logsdon,
was published by the defendant News America in the March 1991 issue
of Seventeen magazine as part of a group of stories entitled New
Voices in Fiction. The story, written in the style of a first-
person narrative, recounts a conflict between the unidentified
speaker and her high school classmate, Bryson. According to the
speaker, Bryson, "[a] platinum-blond, blue-eye-shadowed, faded-
blue-jeaned, black polyester-topped shriek" who lives "on the other
side of town" was "after" her. In the course of describing events
that led up to an after-school fight between Bryson and the
speaker, the speaker discusses an incident that occurred two months
earlier:
"About two months ago Bryson was at a bonfire with
these two guys that nobody knew. One had a tattoo, and
they were all drinking. Lots. Who knows what guys like
that made Bryson do. The next day she came into school
with a black eye. Beth Harper looked at her too long, and
Bryson slammed her up against a glass door and cracked
her one clean in the mouth.
Later that afternoon, as Bryson shouted down the
hallways like always, I remembered what a slut she was
and forgot about the sorriness I'd been holding onto for
her."
The story continues as the speaker describes the fight that ensues
between the speaker and Bryson. A footnote at the end of the story
identifies the author, Lucy Logsdon, as a "native of southern
Illinois."
The plaintiff's second-amended complaint, which was dismissed
by the trial court, contained six counts. Each count alleges that
the March 1991 edition of Seventeen magazine, including the article
entitled Bryson, was published to the general public. The counts
further allege that defamatory language appeared in that magazine
"in that the article referred to the [p]laintiff as a `slut' and
implied that the [p]laintiff was an `unchaste' individual." Each
count further alleges that this language and implication were false
and that each defendant permitted a false statement to appear
through "malice or actual negligence."
Counts I and II, which attempt to state a cause of action for
defamation per se against each defendant, allege damage to the
plaintiff's reputation and seek appropriate compensatory relief, as
well as punitive damages. Counts III and IV also attempt to state
a cause of action for defamation, but allege that the damage to the
plaintiff's reputation caused her to suffer pecuniary loss in the
form of lost business opportunities and/or lost employment. Counts
V and VI, which attempt to state a cause of action for invasion of
privacy/false light against each defendant, assert that the article
placed the plaintiff in a false light in the community which would
be objectionable to a reasonable person. These counts further
alleged that the false light in which the plaintiff was placed
caused her to suffer pecuniary losses stemming from lost business
opportunities and/or employment and sought compensatory, as well as
punitive, damages.
ANALYSIS
We first consider whether the trial court properly dismissed
counts I through IV of the plaintiff's complaint, which attempt to
state a cause of action for defamation against the defendants. As
previously noted, the defendants moved to dismiss these counts
pursuant to section 2--615 of the Code of Civil Procedure (735 ILCS
5/2--615 (West 1994)). A section 2--615 motion attacks the legal
sufficiency of a complaint. Such a motion does not raise
affirmative factual defenses but alleges only defects on the face
of the complaint. Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458,
475 (1991). In ruling on a section 2--615 motion to dismiss, the
court must accept as true all well-pleaded facts in the complaint
and all reasonable inferences which can be drawn therefrom. McGrath
v. Fahey, 126 Ill. 2d 78, 90 (1988); Shaffer v. Zekman, 196 Ill.
App. 3d 727, 731 (1990). In making this determination, the court is
to interpret the allegations of the complaint in the light most
favorable to the plaintiff. McGrath v. Fahey, 126 Ill. 2d 78, 90
(1988). The question presented by a motion to dismiss a complaint
for failure to state a cause of action is whether sufficient facts
are contained in the pleadings which, if established, could entitle
the plaintiff to relief. Urbaitis v. Commonwealth Edison, 143 Ill.
2d 458, 475 (1991). A cause of action should not be dismissed on
the pleadings unless it clearly appears that no set of facts can be
proved under the pleadings which will entitle the plaintiff to
recover. Rueben H. Donnelley Corp. v. Brauer, 275 Ill. App. 3d 300
(1995).
I. Defamation
With these general principles in mind, we consider the
allegations in the plaintiff's complaint. A statement is considered
defamatory if it tends to cause such harm to the reputation of
another that it lowers that person in the eyes of the community or
deters third persons from associating with her. Kolegas v. Heftel
Broadcasting Corp., 154 Ill. 2d 1, 10 (1992); Restatement (Second)
of Torts §559 (1977). A statement or publication may be defamatory
on its face. However, even a statement that is not defamatory on
its face may support a cause of action for defamation if the
plaintiff has pled extrinsic facts that demonstrate that the
statement has a defamatory meaning. See, e.g., Morrison v. Ritchie
& Co., 4 Fraser, Sess. Cas., 645, 39 Scot. L. Rep. 432 (1902)
(report that plaintiff gave birth to twins considered defamatory,
where plaintiff proved, as extrinsic fact, that some readers knew
that the plaintiff had been married only one month).
Here, counts I and II of the plaintiff's complaint attempt to
state a cause of action for defamation per se. Only certain limited
categories of defamatory statements are deemed actionable per se.
If a defamatory statement is actionable per se, the plaintiff need
not plead or prove actual damage to her reputation to recover. Owen
v. Carr, 113 Ill. 2d 273, 277 (1986). Rather, statements that fall
within these actionable per se categories are thought to be so
obviously and materially harmful to the plaintiff that injury to
her reputation may be presumed. Owen, 113 Ill. 2d 273. If a
defamatory statement does not fall within one of the limited
categories of statements that are actionable per se, the plaintiff
must plead and prove that she sustained actual damage of a
pecuniary nature ("special damages") to recover. See Kolegas, 154
Ill. 2d 1; Heerey v. Berke, 188 Ill. App. 3d 527, 532 (1989);
Mitchell v. Peoria Journal-Star, Inc., 76 Ill. App. 2d 154, 158-60
(1966).
The defendants raise three arguments in support of the trial
court's dismissal of the defamation per se counts. They first claim
that the statements do not fall within any of the limited
categories of statements that are considered actionable per se.
Second, they argue that the statements may not be considered
actionable per se because they are reasonably susceptible to an
innocent construction. Finally, the defendants claim that, even if
the statements may be considered actionable per se, they are
nevertheless expressions of opinion, protected under the first
amendment to the United States Constitution. U.S. Const., amend. I.
We consider each of these arguments in turn.
A. Defamation Per Se Counts
We first consider whether the disputed statements may be
considered actionable per se. The plaintiff alleges that the
article is actionable per se because it referred to her as a "slut"
and implied that she was an "unchaste" individual.
Under our common law, four categories of statements are
considered actionable per se and give rise to a cause of action for
defamation without a showing of special damages. They are: (1)
words that impute the commission of a criminal offense; (2) words
that impute infection with a loathsome communicable disease; (3)
words that impute an inability to perform or want of integrity in
the discharge of duties of office or employment; or (4) words that
prejudice a party, or impute lack of ability, in his or her trade,
profession or business. Kolegas, 154 Ill. 2d at 10-11. These common
law categories continue to exist except where changed by statute.
The Slander and Libel Act (740 ILCS 145/1 et seq. (West 1992)) has
enlarged the classifications enumerated above by providing that
false accusations of fornication and adultery are actionable as a
matter of law. See Owen v. Carr, 113 Ill. 2d 273, 277-78 (1986);
Fried v. Jacobson, 99 Ill. 2d 24, 27 (1983). Specifically, section
1 of that statute provides:
"If any person shall falsely use, utter or publish
words, which in their common acceptance, shall amount to
charge any person with having been guilty of fornication
or adultery, such words so spoken shall be deemed
actionable, and he shall be deemed guilty of slander."
740 ILCS 145/1 (West 1992).
The defendants initially claim that this statute has no
application here because it applies only to words that are spoken
and not in circumstances, such as those here, where the words are
written. We reject the defendants' attempt to so limit the statute.
We note initially that the defendant's argument relies upon a
distinction between spoken and written defamation (slander and
libel) that existed at common law, but was abandoned long ago by
our courts. At common law, libel and slander were analyzed under
different sets of standards, with libel recognized as the more
serious wrong. Illinois law evolved, however, and rejected this
bifurcated approach in favor of a single set of rules for slander
and libel. Libel and slander are now treated alike and the same
rules apply to a defamatory statement regardless of whether the
statement is written or oral. Mitchell v. Peoria Journal-Star,
Inc., 76 Ill. App. 2d 154, 159-60 (1966); Harris Trust & Savings
Bank v. Phillips, 154 Ill. App. 3d 574, 579 (1987); Irving v. J.L.
Marsh, Inc., 46 Ill. App. 3d 162, 165 (1977). Given the merger of
libel and slander, we reject the defendants' claim that the statute
providing for an action where false accusations of fornication are
made is not applicable here simply because the alleged defamation
was in writing.
Further, after considering the plaintiff's allegations, as
stated in the complaint, we find that they fall within this
statute's category of statements that are actionable per se. As
previously stated, the statute applies when persons use, utter or
publish words which amount to a charge of fornication or adultery.
Here, the plaintiff's complaint alleges that the defendants, by
using the word "slut," implied that she was "unchaste." The
complaint thus alleged, in effect, that the defendants published
words that falsely accused the plaintiff of fornication. The
defendants' statements fall within this statutorily created
category of statements that are considered actionable per se.
B. Innocent Construction Rule
Even if a statement falls into one of the recognized
categories of words that are actionable per se, it will not be
found actionable per se if it is reasonably capable of an innocent
construction. The innocent construction rule requires courts to
consider a written or oral statement in context, giving the words,
and their implications, their natural and obvious meaning. If, so
construed, a 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 v. Copely
Press, 92 Ill. 2d 344, 352 (1982); see also Kolegas, 154 Ill. 2d at
11. Only reasonable innocent constructions will remove an allegedly
defamatory statement from the per se category. Kolegas, 154 Ill. 2d
at 11; Costello v. Capital Cities Communications, Inc., 125 Ill. 2d
402 (1988). Whether a statement is reasonably susceptible to an
innocent interpretation is a question of law for the court to
decide. Kolegas, 154 Ill. 2d at 11; Chapski, 92 Ill. 2d at 352. The
defendants offer two arguments in support of their position that
the statement alleged to be actionable per se is reasonably
susceptible to an innocent construction. Before addressing these
two arguments, however, we briefly discuss a procedural point.
1. Procedural Note
As stated, the defendants' motion to dismiss was ostensibly
brought under section 2--615. In ruling upon a 2--615 motion, a
trial court may consider only the allegations of the complaint
(Curtis Casket Co. v. D.A. Brown & Co., 259 Ill. App. 3d 800
(1994)) and may not consider other supporting material (Oravek v.
Community School District 146, 264 Ill. App. 3d 895 (1994)). Here,
however, the defendants and the trial and appellate courts
considered matters outside the complaint in addressing that portion
of the motion which sought dismissal of the defamation per se
counts under the innocent construction rule. The plaintiff's
complaint simply alleged that she was defamed by an article
entitled Bryson that appeared in Seventeen magazine, because the
article referred to her as a "slut" and implied that she was
"unchaste." The plaintiff did not attach a copy of the article to
her complaint as an exhibit, nor did she recite the article within
the complaint.
The defendants' motion to dismiss the per se counts under the
innocent construction rule, however, was not limited to an analysis
of the allegations in the plaintiff's complaint. Instead, the
motion examined portions of the allegedly defamatory article which
were not part of the plaintiff's complaint. The defendants' motion
argued that, when the allegations of the complaint were considered
in light of the article itself, it was evident that the allegedly
defamatory statement was susceptible to an innocent construction,
and that the per se counts must therefore be dismissed. Mittleman
v. Witous, 135 Ill. 2d 220 (1989) (innocent construction rule is
applicable only to per se actions, and not to per quod actions).
Because these portions of the article did not appear in the
complaint, the defendants attached a copy of the article as an
exhibit to their motion to dismiss. The trial and appellate courts
relied upon the defamatory article, in addition to the allegations
in the plaintiff's complaint, in dismissing the per se counts under
the innocent construction rule.
By presenting and relying upon affirmative matters outside the
pleadings, the defendants and the lower courts disregarded the
proper use of a section 2--615 motion. We therefore conclude that
the portion of the defendants' motion that seeks the dismissal of
the per se counts under the innocent construction rule cannot
properly be considered a section 2--615 motion. Rather, we will
consider that part of the motion as having been filed and decided
under section 2--619 (735 ILCS 5/2--619(a)(9) (West 1992)). Perkaus
v. Chicago Catholic High School Athletic League, 140 Ill. App. 3d
127, 134 (1986) (where plaintiff failed to attach league bylaws as
an exhibit to his complaint, defendants properly submitted the
documents in support of a section 2--619(a)(9) motion to dismiss);
Cartwright v. Garrison, 113 Ill. App. 3d 536, 540 (1983) (in a
defamation action, the question of whether the allegedly defamatory
language is rendered nonactionable per se by reason of the innocent
construction rule may properly be considered in a section 2--619
motion to dismiss); Kilbane v. Sabonjian, 38 Ill. App. 3d 172
(1976) (same); see also 4 R. Michael, Illinois Practice §41.7, at
332 (1989).
Having addressed this procedural irregularity, we next
consider the defendants' two arguments that the per se counts were
properly dismissed because the allegedly defamatory statement is
reasonably susceptible to an innocent construction.
2. Innocent Construction of "Slut"
The defendants first claim that the assertion that Bryson is
a "slut" is not actionable per se because the word "slut" may
reasonably be innocently construed as describing Bryson as a
"bully." They note that the American Heritage Dictionary includes
a number of different definitions for the word "slut," including "a
slovenly, dirty woman," "a woman of loose morals," "prostitute," "a
bold, brazen girl," or "a female dog." American Heritage Dictionary
1153 (2d Coll. ed. 1985). They argue that, because "a bold, brazen
girl" may be considered synonymous with "bully," the court must
innocently construe the word "slut."
The defendants apparently believe that the innocent
construction rule applies whenever a word has more than one
dictionary definition, one of which is not defamatory. The innocent
construction rule does not apply, however, simply because allegedly
defamatory words are "capable" of an innocent construction. See
Chapski, 92 Ill. 2d at 351-52 (modifying the innocent construction
rule announced in John v. Tribune Co., 24 Ill. 2d 437, 442 (1962)).
In applying the innocent construction rule, courts must give the
allegedly defamatory words their natural and obvious meaning.
Chapski, 92 Ill. 2d at 351-52; 33A Ill. L. & Prac. Slander & Libel
§12 (1970). 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.
33A Ill. L. & Prac. Slander & Libel §12, at 25 (1970). 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.
Here, we need not determine whether the word "slut" always
implies unchastity or is always defamatory. When we consider the
allegedly defamatory language in context, and give the words and
implications their natural and obvious meaning, it is evident that
the word "slut" was intended to describe Bryson's sexual
proclivities. Immediately preceding the sentence in which Bryson is
called a "slut," the author describes an incident that occurred two
months earlier. The author states that Bryson appeared at a bonfire
with "two guys that nobody knew. One had a tattoo, and they were
all drinking. Lots. Who knows what guys like that made Bryson do."
The sexual implication underlying the use of "slut" is intensified
with the commentary "who knows what guys like that made Bryson do."
The defendants suggest that this latter statement did not
necessarily have sexual undertones, since the author could have
been implying that the two men made Bryson engage in conduct of a
nonsexual nature, such as shop-lifting. The defendant basically
asks this court to construe the words used, not in the plain and
popular sense in which they are naturally understood, but in their
best possible sense.
The innocent construction rule, however, does not require
courts to strain to find an unnatural but possibly innocent meaning
for words where the defamatory meaning is far more reasonable.
Chapski, 92 Ill. 2d at 350-51. Nor does it require this court to
espouse a naïveté unwarranted under the circumstances. Reading the
words in the context presented, and giving the words their "natural
and obvious" meaning, it is obvious that the word "slut" was used
to describe Bryson's sexual proclivities. See Tonsmeire v.
Tonsmeire, 281 Ala. 102, 106, 199 So. 2d 645, 648 (1967) (statement
that the plaintiff "had two affairs" could not be innocently
construed as referring to platonic associations; statement charged
the plaintiff with unchastity and was libelous per se); Jordan v.
Lewis, 20 A.D.2d 773, 774, 247 N.Y.S.2d 650, 653 (1964) (stating
that the plaintiff "slept with his secretary" is not susceptible of
an innocent construction and, as ordinarily used, charges the
plaintiff with sexual promiscuity). Accordingly, we reject the
defendant's contention that the defamatory language at issue must
be innocently construed as a matter of law.
The defendants finally note that our appellate court has held
that it is not defamatory per se to call a woman a slut. Roby v.
Murphy, 27 Ill. App. 394 (1888). We note initially that Roby is an
1888 appellate court decision. Appellate court decisions issued
prior to 1935 had no binding authority. Chicago Title & Trust Co.
v. Vance, 175 Ill. App. 3d 600, 606 (1988). We also conclude that
Roby is not persuasive for another reason as well.
Roby was decided more than 100 years ago. It is evident that
neither the law of defamation nor our use of language has remained
stagnant for the last century. Terms that had innocuous or only
nondefamatory meanings in 1888 may be considered defamatory today.
See, e.g., Moricoli v. Schwartz, 46 Ill. App. 3d 481 (1977)
(rejecting the defendant's claim that the term "fag" should be
innocently construed, because the dictionary definitions for that
term included "cigarette" and "to become weary"; stating that the
plaintiff "is a fag" amounted to a charge that the plaintiff was
homosexual); Manale v. City of New Orleans, 673 F.2d 122 (5th Cir.
1982) (referring to the plaintiff, a fellow police officer, as "a
little fruit" and "gay" falsely charged the plaintiff with
homosexuality and was defamatory per se); Tonsmeire v. Tonsmeire,
281 Ala. 102, 199 So. 2d 645 (1967) ("affair" is commonly
understood to mean unchastity rather than a platonic association).
At the time Roby was decided, Webster's dictionary defined the
term "slut" as "an untidy woman," "a slattern" or "a female dog,"
and stated that the term was "the same as bitch.' " Roby, 27 Ill.
App. at 398. Apparently, when Roby was decided, none of the
dictionary definitions of "slut" implied sexual promiscuity.
Moreover, the Roby court found that, even in its "common
acceptance," the term "slut" did not amount to a charge of
unchastity. Roby, 27 Ill. App. at 398.
We cannot simply assume that the term "slut" means the same
thing today as it did a century ago. Many modern dictionaries
include the definitions of the term "slut" cited in Roby, but add
new definitions that imply sexual promiscuity. See, e.g., Webster's
New World Dictionary (2d Coll. ed. 1975) ("a sexually immoral
woman"); American Heritage Dictionary 1153 (2d Coll. ed. 1985)
("[a] woman of loose morals" "prostitute"). Moreover, in the
present age, the term "slut" is commonly used and understood to
refer to sexual promiscuity. See Smith v. Atkins, 622 So. 2d 795
(La. App. 1993) (law professor called a female student a "slut" in
class; appellate court found that term was libelous per se). Thus,
for this additional reason, we find Roby to be of no value here.
3. Identity of Bryson as the Plaintiff?
The defendants next argue that the innocent construction rule
must apply in this case because the article may reasonably be
construed as referring to someone other than the plaintiff. The
defendants note that the complaint does not allege any facts to
demonstrate that third persons would reasonably conclude that the
character "Bryson" is the plaintiff, Kimberly Bryson. The
defendants argue that, under Illinois law, where an allegedly
defamatory statement does not mention the plaintiff by name, the
plaintiff must plead extrinsic facts to demonstrate that third
persons believed that the libelous statement referred to the
plaintiff. Barry Harlem Corp. v. Kraff, 273 Ill. App. 3d 388
(1995); Homerin v. Mid-Illinois Newspapers, 245 Ill. App. 3d 402
(1993); Moore v. Streit, 181 Ill. App. 3d 587, 597-98 (1989); Voris
v. Street & Smith Publications, 330 Ill. App. 409 (1947).
We agree with the general proposition that, where a libelous
article does not name the plaintiff, it should appear on the face
of the complaint that persons other than the plaintiff and the
defendant must have reasonably understood that the article was
about the plaintiff and that the allegedly libelous expression
related to her. See 33A Ill. L. & Prac. Slander & Libel §§93, 13,
at 97, 28-29 (1970); Coffey v. MacKay, 2 Ill. App. 3d 802, 807
(1972). Neither this principle nor the cases upon which the
defendants rely, however, apply here.
The article at issue did, of course, use the plaintiff's last
name. The name "Bryson" is not so common that we must find, as a
matter of law, that no reasonable person would believe that the
article was about the plaintiff. The cases that the defendants cite
all involve circumstances in which the allegedly libelous article
or statement did not use the plaintiff's name. In Voris, the
defamatory article referred only to a person named "Snapper
Charlie." Voris, 330 Ill. App. 409. Homerin involved a political
cartoon that supposedly depicted the plaintiff's likeness, but did
not identify him by name. Homerin, 245 Ill. App. 3d 402. Barry
Harlem Corp. likewise involved an article that did not mention the
plaintiff by name. Barry Harlem Corp., 273 Ill. App. 3d 388. Under
the present facts, we reject the defendants' claim that the story
must be innocently construed as referring to someone other than the
plaintiff.
The defendants also argue that the article may be construed as
not referring to the plaintiff simply because the story is labeled
"fiction" and, therefore, does not purport to describe any real
person. We are not persuaded by this contention. In her complaint,
plaintiff Bryson claims that she is the character "Bryson" depicted
in the defamatory story. The fact that the author used the
plaintiff's actual name makes it reasonable that third persons
would interpret the story as referring to the plaintiff, despite
the fictional label. In addition, the setting of the story, the
events described therein, and the identification of the writer as
a native of southern Illinois all lead to a reasonable conclusion
that third persons familiar with both the plaintiff and the
defendant would understand the story as referring to the plaintiff.
In this regard, we note that, when addressing the defendant's
section 2--619 motion to dismiss the per se counts under the
innocent construction rule, the trial court should have considered
the plaintiff's responses to interrogatories, which were contained
in the record. Section 2--619(c) provides that, if the party
opposing a section 2--619 motion to dismiss presents "affidavits or
other proof *** establishing facts obviating the grounds of
defect," the court may consider the same in granting or denying the
motion. 735 ILCS 5/2--619(c) (West 1992). An interrogatory answer
is considered equivalent to an affidavit for purposes of a section
2--619 motion to dismiss. See 134 Ill. 2d Rs. 213(f), 212(a)(4).
The facts stated in the plaintiff's answers to the defendant's
interrogatories were therefore before the trial court for its
consideration when it ruled on the defendant's motion to dismiss.
Sierens v. Clausen, 60 Ill. 2d 585, 588 (1975). One of the
interrogatories propounded by the defendants asked the plaintiff to
identify why she believed that she was the character described in
the story. The plaintiff's response identified more than 25 alleged
similarities between herself and the physical attributes, locations
and events attributed to the character "Bryson" in the story. Had
the trial court considered this interrogatory answer, it certainly
would have rejected the defendants' claim that the article must be
innocently construed as referring to someone other than the
plaintiff. Under the circumstances, we conclude that the plaintiff
should be allowed the opportunity to prove that, despite the
fictional label, the character "Bryson" bears such a close
resemblance to the plaintiff that reasonable persons would
understand that the character was actually intended to portray the
plaintiff. Whether the article was actually understood by third
parties to be about the plaintiff is, of course, a question of fact
for the jury. Chapski, 92 Ill. 2d at 352.
C. First Amendment
The defendants finally claim that, even if the statements may
be considered actionable per se and are not susceptible to an
innocent construction, they are nevertheless expressions of
opinion, protected under the first amendment to the United States
Constitution. U.S. Const., amend. I.
Prior to 1990, this court and others perceived a fundamental
distinction between statements of fact and statements of opinion
for first amendment purposes. Statements of opinion were held to be
protected by the first amendment and not actionable in a defamation
action. Owen v. Carr, 113 Ill. 2d 273 (1986); Mittleman v. Witous,
135 Ill. 2d 220 (1989). This rule was grounded primarily on dictum
contained in Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 41
L. Ed. 2d 789, 805, 94 S. Ct. 2997, 3006-07 (1974): "Under the
First Amendment there is no such thing as a false idea. However
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."
Recently, however, the United States Supreme Court reexamined
the law of defamation within the context of the first amendment and
rejected what it called "the creation of an artificial dichotomy
between `opinion' and fact." Milkovich v. Lorain Journal Co., 497
U.S. 1, 19, 111 L. Ed. 2d 1, 18, 110 S. Ct. 2695, 2706 (1990). The
Court explained that the dictum in Gertz had been interpreted too
broadly and 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.
The Court held that there is no separate first amendment privilege
for statements of opinion and that a false assertion of fact can be
libelous even though couched in terms of an opinion. Milkovich, 497
U.S. at 18, 111 L. Ed. 2d at 17-18, 110 S. Ct. at 2706 (simply
couching the statement "Jones is a liar" in terms of opinion--"In
my opinion Jones is a liar"--does not dispel the factual
implications contained in the statement).
Thus, the test to determine whether a defamatory statement is
constitutionally protected is a restrictive one. Under Milkovich,
a statement is constitutionally protected under the first amendment
only if it cannot be "reasonably interpreted as stating actual
facts." Milkovich, 497 U.S. at 20, 111 L. Ed. 2d at 19, 110 S. Ct.
at 2706; see, e.g., Hustler Magazine v. Falwell, 485 U.S. 46, 50,
57, 99 L. Ed. 2d 41, 48, 53, 108 S. Ct. 876, 879, 883 (1988)
(parody); Old Dominion Branch No. 496 v. Austin, 418 U.S. 264, 284-
86, 41 L. Ed. 2d 745, 761-63, 94 S. Ct. 2770, 2781-82 (1974)
(hyperbole and imaginative expression); Greenbelt Cooperative
Publishing Ass'n v. Bresler, 398 U.S. 6, 13-14, 26 L. Ed. 2d 6, 14-
15, 90 S. Ct. 1537, 1541-42 (1970) (hyperbole and imaginative
expression).
In applying this test we first consider whether a reasonable
fact finder could conclude that the allegedly defamatory statement,
i.e., that Bryson was a "slut," was an assertion of fact.
Milkovich, 497 U.S. at 20, 111 L. Ed. 2d at 19, 110 S. Ct. at 2706.
We answer this question in the affirmative. The clear impact of the
statement was that Bryson was, in fact, sexually promiscuous. This
was not the sort of loose, figurative or hyperbolic language that
would negate the impression that the writer was seriously
maintaining that the character depicted in the story was unchaste.
The assertion is sufficiently factual to be susceptible to being
proven true or false. Milkovich, 497 U.S. at 20, 111 L. Ed. 2d at
19, 110 S. Ct. at 2706. Whether the statement was actually true or
false is a question of fact for the jury. We simply hold, as a
matter of law, that the allegation of sexual promiscuity in this
case contains a provably false factual assertion. Thus, we do not
find that the allegedly defamatory statement here was
constitutionally protected under the first amendment. Milkovich,
497 U.S. at 20, 111 L. Ed. 2d at 19, 110 S. Ct. at 2706.
The defendants argue, however, that the defamatory statement
cannot be reasonably interpreted as stating actual facts about the
plaintiff because the story was clearly labeled "fiction." The test
is not whether the story is or is not characterized as "fiction,"
or "humor," but whether the charged portions, in context, could be
reasonably understood as describing actual facts about the
plaintiff or actual events in which she participated. Kolegas, 154
Ill. 2d at 16. The cases upon which the defendant relies in this
regard are easily distinguished from the present case. For
instance, in Flip Side, Inc. v. Chicago Tribune Co., 206 Ill. App.
3d 641 (1991), the plaintiff, Flip Side Corporation, claimed that
it was defamed by events described in a Dick Tracy comic strip. The
appellate court reviewed the comic series and found that the
persons and events described therein were so fantastic that no
reasonable person would believe that they stated actual facts or
described actual events. The court noted that the characters' names
(i.e., A.M. and F.M. Stereo, Themesong, Flipside, Victor Promomo,
and Sam Catchem) and the events described (e.g., murders
perpetrated by means of a black box that emits high frequency sound
waves that destroy the inner ear, causing convulsions and death by
heart attack) were so fanciful that no one would interpret the
comic strip as describing actual people and events. Flip Side,
Inc., 206 Ill. App. 3d at 655. The court noted that the fact that
the episode appeared only on pages of the newspaper devoted solely
to comic strips fortified its conclusion that the characters and
events were not intended to depict actual persons and events.
Here, although the story Bryson is labeled as fiction, the
story itself is not so fanciful or ridiculous that no reasonable
person would interpret it as describing actual persons or events.
Compare Hustler Magazine v. Falwell, 485 U.S. 46, 50, 57, 99 L. Ed.
2d 41, 48, 53, 108 S. Ct. 878, 879, 883 (1988) (jury concluded that
Hustler ad parody could not reasonably be understood as describing
actual facts about Falwell or actual events in which he
participated). On the contrary, the story here portrays realistic
characters responding in a realistic manner to realistic events. A
reasonable reader could logically conclude that the author of the
story had drawn upon her own experiences as a teenager when writing
the story. Under the circumstances, we must reject the defendants'
claim that the story cannot reasonably be interpreted as stating
actual facts simply because it is labeled fiction.
In sum, we hold that the allegations in the plaintiff's
complaint are sufficient to state a cause of action for defamation
per se. The statement in the article that Bryson was a "slut" falls
within the class of statements deemed actionable per se under
section 1 of the Libel and Slander Act, because it amounted to a
charge of fornication. Moreover, we are not persuaded that there is
a reasonable innocent construction for the statement that would
remove it from the actionable per se category. Finally, we conclude
that the statement may reasonably be interpreted as stating an
actual fact and therefore falls outside the protection of the first
amendment. Accordingly, we reverse the trial court's dismissal of
counts I and II of the complaint.
II. Defamation Per Quod
We next consider whether the trial court properly dismissed
counts III and IV of the plaintiff's complaint, which attempt to
state a cause of action for defamation per quod. The allegations in
counts III and IV of the complaint are identical to those found in
counts I and II, except that the plaintiff has alleged that she
sustained pecuniary loss ("special damages") as a result of the
defendant's publication of the allegedly defamatory statements. The
defendants argue that the trial court properly dismissed these per
quod counts because they failed to allege any extrinsic facts to
show that the statements are defamatory in character. We disagree.
A cause of action for defamation per quod may be brought in
two circumstances. First, a per quod claim is appropriate where the
defamatory character of the statement is not apparent on its face,
and resort to extrinsic circumstances is necessary to demonstrate
its injurious meaning. To pursue a per quod action in such
circumstances, a plaintiff must plead and prove extrinsic facts to
explain the defamatory meaning of the statement. Kolegas v. Heftel
Broadcasting Corp., 154 Ill. 2d 1 (1992); Mittleman v. Witous, 135
Ill. 2d 220, 233 (1989).
A per quod action is also appropriate, however, where a
statement is defamatory on its face, but does not fall within one
of the limited categories of statements that are actionable per se.
See Mitchell v. Peoria Journal-Star, Inc., 76 Ill. App. 2d 154,
158-60 (1966). In such per quod actions, the plaintiff need not
plead extrinsic facts, because the defamatory character of the
statement is apparent on its face and resort to additional facts to
discern its defamatory meaning is unnecessary. The action is one
for defamation per quod simply because the statement does not fall
into one of the actionable per se categories. In other words, the
statement is defamatory on its face, but damage to the plaintiff's
reputation will not be presumed. See Mitchell v. Peoria Journal-
Star, Inc., 76 Ill. App. 2d 154, 158-60 (1966). As with any
defamation per quod action, the plaintiff must plead and prove
special damages to recover.
Counts III and IV of the plaintiff's complaint attempt to
assert this second type of per quod action. The plaintiff claims
that the statement that Bryson is a "slut" is defamatory on its
face. Thus, the fact that the plaintiff failed to plead extrinsic
facts to explain the defamatory character of the statement is not
an adequate or appropriate basis for dismissing counts III and IV.
The trial court improperly dismissed them on that ground.
The defendants alternatively argue that counts III and IV were
properly dismissed because the plaintiff failed to adequately
allege special damages. In any defamation per quod action, the
plaintiff must plead and prove actual damage to her reputation and
pecuniary loss resulting from the defamatory statement ("special
damages") to recover. As stated above, we have found that the
statement that Bryson is a "slut" falls within the class of
statements deemed actionable per se under the Libel and Slander
Act, because it amounted to a charge of fornication. Because the
defamatory statement is actionable per se, the plaintiff need not
plead or prove special damages to establish a cause of action for
defamation. Counts III and IV, which simply restate the allegations
found in counts I and II of the complaint, are therefore redundant
and unnecessary. We therefore affirm the dismissal of those counts,
with the modification that the dismissal is without prejudice.
III. False Light Counts
We next consider whether counts V and VI of the plaintiff's
complaint, which attempt to state a cause of action for false
light, were properly dismissed. As previously noted, the defendants
filed a section 2--619 motion to dismiss those counts on the ground
that they were barred by the applicable statute of limitation. The
trial court granted the defendants' motion, relying upon the
appellate court decision in Starnes v. International Harvester Co.,
184 Ill. App. 3d 199 (1989). The appellate court affirmed the
dismissal of counts V and VI, quoting Starnes, 184 Ill. App. 3d at
206, for the proposition that "[a]n amendment asserting new causes
of action will not be permitted after the statute of limitations
has run."
The limitations period for invasion of privacy claims and for
defamation claims is one year after the cause of action accrues.
735 ILCS 5/13--201 (West 1992). Here, the cause of action accrued
in March 1991, when the article Bryson was published in Seventeen
magazine. As previously noted, the plaintiff filed her original
complaint in the United States district court on August 6, 1991.
That action was dismissed for lack of diversity jurisdiction in
June 1992.
The plaintiff refiled her action in the circuit court of St.
Clair County in June 1992, pursuant to section 13--217 of the
Limitations Act (735 ILCS 5/13--217 (West 1992)). That section
provides:
"In the actions specified in Article XIII of this
Act or any other act or contract where the time for
commencing an action is limited, if *** the action is
dismissed by a United States District Court for lack of
jurisdiction, then, whether or not the time limitation
for bringing such action expires during the pendency of
such action, the plaintiff, his or her heirs, executors
or administrators may commence a new action within one
year or within the remaining period of limitation,
whichever is greater, after *** the action is dismissed
by a United States District Court for lack of
jurisdiction." 735 ILCS 5/13--217 (West 1992).
Section 13--217 gave the plaintiff an absolute right to refile the
same cause of action in the circuit court after that action was
dismissed in the federal district court for lack of diversity
jurisdiction. See Gonzalez v. Thorek Hospital & Medical Center, 143
Ill. 2d 28, 30-31 (1991); Flores v. Dugan, 91 Ill. 2d 108 (1982).
As stated, the plaintiff filed a complaint in the circuit court of
St. Clair immediately after the federal action was dismissed.
In September 1993, the plaintiff filed an amended complaint,
which added two counts for false light/invasion of privacy. The
plaintiff argues that the amendment, which was filed after the
limitations period expired, relates back to the original complaint,
which was timely filed in the federal court. Under section 2--
616(b) of the Code of Civil Procedure (735 ILCS 5/2--616(b) (West
1992)), a cause of action alleged in an amended complaint, filed
after the expiration of the limitations period, will relate back to
the filing of the original complaint if two requirements are met:
(1) the original pleading was timely filed and (2) the original and
amended pleadings indicate that the cause of action asserted in the
amended pleading grew out of the same transaction or occurrence set
up in the original pleading. Wolf v. Meister-Neiberg, Inc., 143
Ill. 2d 44 (1991); Zeh v. Wheeler, 111 Ill. 2d 266 (1986). The
lower courts apparently found that neither of these requirements
was met in the instant case. We disagree and find that both
requirements for invoking section 2--616(b) are met here.
The defendants concede in their brief that the original
pleading was timely filed in the federal court within the one-year
limitation period. The defendants do not argue that section 2--
616(b) does not apply simply because the original action was
dismissed by the federal court and refiled in the circuit court
pursuant to section 13--217. We would reject such an argument even
if the defendants had raised it. Frankenthal v. Grand Trunk Western
R.R. Co., 120 Ill. App. 3d 409, 417 (1983). Both section 13--217
and section 2--616(b) are remedial in nature and should be
liberally construed in favor of hearing the plaintiff's claim.
Steinberg v. Dunseth, 276 Ill. App. 3d 1038 (1995); Frankenthal v.
Grand Trunk Western R.R. Co., 120 Ill. App. 3d 409, 417 (1983).
Both provisions were enacted to facilitate the disposition of
litigation upon the merits and to protect plaintiffs from losing a
cause of action because of a technical default unrelated to the
merits. See Zeh v. Wheeler, 111 Ill. 2d 266 (1986); Gendek v.
Jehangir, 119 Ill. 2d 338, 343 (1988); Wolf v. Meister-Neiberg,
Inc., 143 Ill. 2d 44 (1991); American National Bank & Trust Co. v.
Dozoryst, 256 Ill. App. 3d 674 (1993). Where the original action
was timely filed, the plaintiff should not be penalized simply for
availing herself of the provisions of sections 13--217. We
therefore conclude that the first requirement for invoking section
2--616(b) is met here.
The second requirement is likewise satisfied. The cause of
action for false light asserted in counts V and VI of the second-
amended complaint clearly "grew out of the same transaction or
occurrence set up in the original pleading." 735 ILCS 5/2--616(b)
(1992). The false light counts are based upon the same publication
that formed the basis of the defamation claims raised in the
original complaint. Counts V and VI allege that the Bryson article
"placed the Plaintiff in a false light in the public eye in that it
said that she was a `slut' and implied that she was of `unchaste
moral character.' " The counts further allege that the false light
mentioned "is something that is objectionable to a reasonable
person under the circumstances."
The defendants were thus clearly made aware, within the
limitations period, of the relevant facts underlying the false
light claim and were afforded sufficient opportunity to investigate
the circumstances upon which the plaintiff was attempting to impose
liability. Wolf v. Meister-Neiberg, Inc., 143 Ill. 2d 44 (1991);
Zeh v. Wheeler, 111 Ill. 2d 266 (1986). In fact, the original
complaint supplied the defendant with all of the information
necessary to prepare a defense to the subsequently asserted false
light claim. Where the original complaint put the defendants on
notice of the disputed transaction and occurrence, and the
amendment arises out of that same transaction or occurrence, the
purposes of section 2--616(b) are fulfilled. Because the defendants
had notice of litigation arising out of the same facts and
circumstances within the limitations period, the rationale for
extending the limitations period pursuant to section 13--217 is
likewise fulfilled. Gonzalez v. Thorek Hospital & Medical Center,
143 Ill. 2d 28, 36-37 (1991). We hold that the amendment to the
pleadings relates back to the original filing pursuant to section
2--616(b), even though the original pleading was dismissed and
refiled in accordance with section 13--217.
The lower courts determined that the amendment was barred by
the statute of limitations simply because it alleged a new cause of
action. This conclusion was in error. In Zeh v. Wheeler, 111 Ill.
2d 266 (1986), this court explained that the test for whether an
amended complaint relates back under section 2--616(b) to the
original pleading for statute of limitations purposes does not
depend on whether the amended complaint asserts the "same cause of
action" pleaded in the original complaint. Instead, the focus is on
the identity of the transaction or occurrence. Zeh, 111 Ill. 2d at
272-73. Under the "same transaction or occurrence" standard, the
focus is on the facts and occurrence alleged in the original
complaint, not the name of the cause of action or legal theory used
to support the claim for damages. Thus, those decisions which
impose a "same cause of action" or "substantially similar cause of
action" requirement on amended complaints are inconsistent with
Zeh. See, e.g., Starnes, 184 Ill. App. 3d at 206 ("An amendment
asserting new causes of action will not be permitted after the
statute of limitations has run"); Beam v. Erven, 133 Ill. App. 2d
193, 199 (1971) (same). The trial and appellate courts erroneously
relied upon those decisions in dismissing counts V and VI of the
plaintiff's complaint. See Weber v. Cueto, 253 Ill. App. 3d 509,
515-16 (1995). Accordingly, we hold that counts V and VI of the
second-amended complaint relate back to the original complaint and
that the trial court erred in granting the defendants' section 2--
619 motion to dismiss those counts. The defendants raise additional
challenges to the sufficiency of counts V and VI which were not
raised in the trial court. In the interest of fairness to the
plaintiff, we conclude that those challenges should be raised and
addressed in the trial court on remand.
IV. Punitive Damages
The plaintiff finally argues that her punitive damage claims
were improperly dismissed. Counts I, II, V and VI of the
plaintiff's complaint seek punitive damages. In support of a
punitive damage award, the plaintiff's complaint alleges that the
defendants published a defamatory statement or permitted a false
statement to appear through malice or actual negligence.
In Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d
789, 94 S. Ct. 2997 (1974), the United States Supreme Court held
that the first amendment prohibits awards of presumed and punitive
damages for false and defamatory statements unless the plaintiff
shows actual malice. The Supreme Court subsequently limited the
scope of Gertz, however, in Dun & Bradstreet, Inc. v. Greenmoss
Builders, Inc., 472 U.S. 749, 761, 86 L. Ed. 2d 593, 604, 105 S.
Ct. 2939, 2946 (1985), where the Court held that the first
amendment of the federal Constitution does not bar states from
awarding private individuals presumed and punitive damages in a
defamation action upon a showing of less that actual malice where
the statements in question do not involve matters of public
concern. See also Philadelphia Newspapers, Inc. v. Hepps, 475 U.S.
767, 774-75, 89 L. Ed. 2d 783, 791, 106 S. Ct. 1558, 1562-63
(1986); Owens v. CBS, Inc., 173 Ill. App. 3d 977, 996 (1988);
Beasley v. St. Mary's Hospital, 200 Ill. App. 3d 1024 (1994).
This court has not yet considered whether, as a matter of
state law, punitive damages may be awarded in a defamation action
absent a showing of actual malice. We decline to address the
question in this appeal, however, because neither party has raised
or briefed it. Rather, both the plaintiff and the defendants assume
that punitive damages may be awarded in this case only upon a
showing of actual malice. They disagree only with respect to
whether the plaintiff's complaint adequately alleges actual malice.
The trial and appellate courts dismissed the punitive damage
claims, finding that the complaint failed to set forth sufficient
factual allegations from which actual malice may be said to exist.
We disagree. A complaint must be liberally construed, to the end
that controversies may be quickly and finally determined according
to the substantive rights of the parties. 735 ILCS 5/1--106 (West
1992). Accordingly, it has been held that a plaintiff need not
plead facts with precision when the information needed to plead
those facts is within the knowledge and control of the defendant
rather than the plaintiff. Stap v. Chicago Aces Tennis Team, Inc.,
63 Ill. App. 3d 23 (1978); Coffey v. MacKay, 2 Ill. App. 3d 802
(1972); 3 R. Michael, Illinois Practice §23.4, at 310 (1989). This
rule assists plaintiffs who may be unable to discover the
information needed to draft a detailed complaint before bringing an
action. Holton v. Resurrection Hospital, 88 Ill. App. 3d 655
(1980). This rule also recognizes that, where the defendants have
most of the pertinent information in their possession, they do not
have to rely primarily on the facts stated in the complaint to
formulate an answer and prepare for trial, since they can easily
determine the specific details for themselves. Holton v.
Resurrection Hospital, 88 Ill. App. 3d 655 (1980). Accordingly, in
such cases, the plaintiff can state the material facts in the
complaint with less specificity than would normally be required.
Holton v. Resurrection Hospital, 88 Ill. App. 3d 655 (1980).
In the instant case, the facts and information necessary to
support the claim of actual malice are within the knowledge and
control of the defendants. What motivated defendant Logsdon to
assert that the plaintiff was a "slut" and what precautions
defendant Seventeen magazine undertook before publishing that
assertion are details that the defendants can easily discern for
themselves without relying on the plaintiff's complaint. The
plaintiff cannot know or allege with particularity facts that are
solely within the minds of the defendants. Although the allegation
of malice here was less than ideal, the information needed to
support or overcome that allegation is within the defendants'
control. The defendants cannot realistically claim that the lack of
factual detail hinders their ability to prepare an answer or a
defense for trial. Accordingly, we hold that the facts alleged in
the plaintiff's complaint are sufficiently specific to meet the
requirements of law in the circumstances of this case. See Duhl v.
Nash Realty Inc., 102 Ill. App. 3d 483 (1981) (where complaint
alleged fraudulent misrepresentation by a real estate broker,
allegation that defendant acted intentionally with reckless
disregard for the truth was sufficient); Sherman v. Field Clinic,
74 Ill. App. 3d 21 (1979). Under the circumstances, we conclude
that the plaintiff's punitive damage claims were improperly
dismissed.
CONCLUSION
For the reasons stated, the judgments of the trial and
appellate courts are reversed in part and affirmed in part. Those
portions of the appellate court's judgment that affirmed the trial
court's dismissal of counts I, II, V and VI of the plaintiff's
second-amended complaint and the dismissal of the claims for
punitive damages are reversed and those counts are reinstated.
Those portions of the appellate court's judgment that affirmed the
dismissal of counts III and IV of the complaint are affirmed, with
the modification that the dismissal is without prejudice. This
cause is remanded to the trial court for further proceedings
consistent with the views expressed herein.
Appellate court judgment affirmed in part
and reversed in part;
circuit court judgment affirmed in part
and reversed in part;
cause remanded.
JUSTICE McMORROW, dissenting:
This is an important case in the field of defamation and libel
law. I believe that the majority's decision turns defamation law on
its head. Today's decision has serious ramifications with respect
to our first amendment right of free speech, for it may pave the
way for frivolous lawsuits whenever something caustic is written,
even in a fictional story. I do not believe that is the purpose of
our defamation law.
The plaintiff in this cause is not a public figure or well
known for any other reason. She does not allege or claim to be
known or publicly recognizable for any reason. She is a domiciliary
of Gallatin County, located in southern Illinois. Without even
attaching a copy of the allegedly defamatory article to her
complaint, the plaintiff claims that she was defamed by a fictional
article in Seventeen magazine, which is published and widely
distributed nationally. She alleged in her complaint that the
fictional article referred to a character named Bryson (which is
not plaintiff's full name) in the article as being a slut. She
claims that the fictitious character in the article was intended to
portray her, and that she was defamed because the article referred
to the fictitious Bryson as a slut.
Nowhere in the complaint does plaintiff establish her identity
as the fictitious Bryson. It is only in her answer to
interrogatories that plaintiff claims 25 similarities between the
fictitious Bryson and herself. None of the similarities are unique
or conclusive. For example, the author of the story describes the
Bryson character as a "Brass Blonde" and a "Platinum Blonde."
According to plaintiff, "her mother owned a beauty salon" and she
and "her friend, Susie Patton[,] were always changing their hair
color." Plaintiff also refers to one incident in the story wherein
another character, Anita, is grounded for refusing to tell her
father what she had done with his Willie Nelson tapes. Plaintiff
claims that she had a friend named Anita, and that Anita's brother
was named Nelson. In my opinion, these are not similarities which
establish the identity of plaintiff as the Bryson in the fictional
story.
Plaintiff did not allege any special damages in her complaint.
She must, under the law, allege special damages in order to
successfully prosecute her claim for defamation per quod. Schaffer
v. Zekman, 196 Ill. App. 3d 727 (1990). Indeed, plaintiff's answers
to interrogatories reveal that she had not been employed for four
years prior to the publication of the article. Further, plaintiff's
answers did not indicate that she was refused employment after the
publication of the article.
I disagree, then, with the majority's decision to reinstate
plaintiff's claim for libel per se. In my view, the majority fails
to properly consider the full impact of the innocent construction
rule under the circumstances of this case. Contrary to the
majority, I do not believe that the author's use of the word "slut"
in describing one of her characters is the equivalent of charging
plaintiff with "having been guilty of fornication." 740 ILCS 145/1
(West 1992). In addition, I also believe that the majority errs in
relying on facts not found within the article itself in order to
reinstate plaintiff's claim for libel per se. For these reasons, I
respectfully but strongly dissent.
I
The innocent construction rule provides that an allegedly
defamatory statement is not actionable per se if it is reasonably
capable of an innocent construction. Kolegas v. Heftel Broadcasting
Corp., 154 Ill. 2d 1, 11 (1992). This rule "requires courts to
consider a written or oral statement in context, giving the words
and implications therefrom their natural and obvious meaning."
Kolegas, 154 Ill. 2d at 11. The focus of the rule is on whether the
statement, when so considered, "may reasonably be innocently
interpreted." Chapski v. Copley Press, 92 Ill. 2d 344, 352 (1982).
That determination is a question of law for the court to decide.
Chapski, 92 Ill. 2d at 352.
In this case, the majority holds that the word "slut" is not
susceptible to an innocent construction. Slip op. at 9-12. The
majority reaches this holding by noting the pejorative evolution of
the word "slut." In today's parlance, the majority posits, the word
"slut" connotes sexual promiscuity. Therefore, when viewed in
context, "it is evident that the word `slut' was intended to
describe [plaintiff's] sexual proclivities." Slip op. at 10. From
this reasoning, the majority concludes that the article in question
comes within the purview of the Illinois Slander and Libel Act. 740
ILCS 145/1 (West 1992) (making charges of fornication actionable).
In my opinion, the majority's holding not only fails to give
due regard to the various meanings of the word "slut," but also
fails to fully appreciate the context in which it was expressed. I
address each of these points in turn.
As a general rule, it is not actionable to call a woman a
"slut" unless the word is used in such a manner as to impute
whoredom. See 53 C.J.S. Libel & Slander §26 (1977) (cases cited
therein); 13 A.L.R. 3d 1286 (1967) (cases cited therein). This rule
recognizes that the word itself does not always impute a breach of
chastity, but carries with it such nonactionable connotations as
brazen or shameless. Indeed, as defendants point out, and the
majority concedes, the American Heritage Dictionary contains
several definitions of the word "slut," such as a "slovenly, dirty
woman," "a woman of loose morals," a "prostitute," "a bold, brazen
girl," or "a female dog." Slip op. at 9. See also Webster's Third
New International Dictionary 2148 (1986). Consequently, because the
word has many different meanings, most of which are not defamatory
per se, context is crucial; for as noted above, if a word "may
reasonably be innocently interpreted," it is not actionable per se.
Chapski v. Copley Press, 92 Ill. 2d 344, 352 (1982).
We then, as the court, must consider how the word "slut" was
used in the context of this article in order to determine whether
the author intended to characterize the fictitious Bryson as a
fornicator, or merely as an overbearing high school bully. In my
view, this can only be done by considering the story in the context
in which the word was used, something which the majority does not
do.
In the story, the Bryson character is introduced as a
"platinum-blond, blue-eye-shadowed, faded-blue-jeaned, black-
polyester-topped shriek" who is once again "after" the unnamed
narrator. Both characters are in high school, although their mutual
dislike has spanned several years. As the narrator relates, "We've
never been friends. But she's tracked my life since fifth grade,
when I climbed on the school bus whose new route added my country
stop to her section of town. Two grades ahead, she spent the next
four years pelting spitballs at me until she got her driver's
license."
Returning to the present, the narrator relates that during one
particular week Bryson had been slamming lockers, cutting classes
and dropping water balloons. The narrator, bemoaning the fact that
"[i]t was only a matter of time before her attention swung my way,"
proceeds to describe the following scene, which takes place in the
high school restroom in the presence of another girl, Sue Barton:
"I heard a voice behind me like I've heard a million
times, in a high-pitched, brassy voice, `Well look who's
here.' Bryson had just walked in. Without turning around
I knew she was talking straight to me. `You usually got
cigarettes.' ***
`Not today.'
`Not today?' Bryson looked at Sue ... and didn't say
anything. Good. If she wasn't saying anything, she wasn't
looking for a scene. I put my comb in my bag and edged
for the door.
`Hey, I was talking to you.' She placed one arm on
the wall's peeling green paint. *** Then, instead of
doing what I'd always done--what I've learned was the
only thing to do--stand there, quiet, looking at my feet
until her attention went somewhere else, I walked
straight up to her arm, put my hands together in a sort
of hammer, and knocked it down. *** Then she smiled and
said, `So meet me by the baseball field after school
today then.' "
Later that morning, the narrator telephoned her friend Anita
who was sick at home. Anita cautioned, "You can't fight her. She
broke Beth Harper's two front teeth." Then, the narrator states:
"About two months ago Bryson was at a bonfire with
these two guys that nobody knew. One had a tatoo, and
they were all drinking. Lots. Who knows what guys like
that made Bryson do. The next day she came into school
with a black eye. Beth Harper looked at her too long, and
Bryson slammed her up against a glass door and cracked
her one clean in the mouth.
Later that afternoon, as Bryson shouted down the
hallways like always, I remembered what a slut she was
and forgot about the sorriness I'd been holding onto for
her."
The story eventually culminates with the fight between Bryson and
the narrator.
In this case, the majority submits that the "sexual
implication underlying the use of `slut' is intensified with the
commentary `who knows what guys like that made Bryson do.' " Slip
op. at 10. I disagree. In my opinion, not only can the word "slut"
as used here be construed in the nondefamatory sense connoting
brazenness, it is the only way it can be construed. There is
nothing lascivious or licentious in the word "slut" when used to
describe the fictional Bryson's less than decorous or mannerly
behavior. Indeed, Bryson's sexual drive is neither the focal point
of the story, nor a digression.
The appellate court in this case correctly observed that the
word "slut" was merely an opinion uttered "by a fictional character
about another fictional character" in a story that "creat[ed] a
small snapshot of time, one moment in the lives of two fictional
adolescents where one calls the other a name because she `shouted
down the hallways like always.' " No. 5--94--0328, slip op. at 7
(unpublished order under Supreme Court Rule 23). Like the appellate
court, I believe that "[a]lthough it may be true that this word has
a coarse effect on the ear, its use does not create the prurient
image plaintiff avers." No. 5--94--0328, slip op. at 7. On the
contrary, the word "slut" in this context cannot be viewed as
anything more than a literary embellishment intended to convey the
brazen nature of a school yard bully. It is not, as the majority
suggests, the functional equivalent of charging plaintiff with
having engaged in fornication. Thus, if the author of the article
did not intend to portray the fictitious Bryson as a fornicator,
then she could not intend to characterize the plaintiff as one
either. As a result, plaintiff cannot claim that the article in
question is libelous per se.
In light of the above, I also wish to emphasize that I believe
that courts should not espouse a "naïveté" when applying the
innocent construction rule. Slip op. at 10-11. However, courts
should not be overly sensitive whenever a vulgar or depraved word
is used. This is particularly true where the word is found in a
work of fiction, where authors typically use colorful language to
describe characters and events.
Because I believe that the word "slut" as used in this context
is clearly capable of a nondefamatory construction, and because I
also find that our defamation law is ill-served by the majority's
decision, I cannot join in the majority's reinstatement of
plaintiff's claim for libel per se.
II
Defendants also contend that the statement in question cannot
be defamatory per se because it does not mention the plaintiff by
name, and therefore extrinsic facts must be pled to demonstrate
that third persons reasonably understood that the statement
referred to plaintiff. They add that the article was a work of
fiction which did not purport to describe any actual person. I
agree with defendants' arguments.
In rejecting these contentions, the majority points out that
plaintiff "identified more than 25 alleged similarities between
herself and the physical attributes, locations and events
attributed to the character `Bryson' in the story." Slip op. at 14.
The majority looks to these extrinsic, alleged similarities in
order to bolster the connection between plaintiff and the fictional
character. However, by relying on these alleged similarities, which
are not found within the four corners of the allegedly libelous
article, the majority contravenes established case law in this
area.
If additional facts are required to show the identity of the
allegedly defamed person, then the statement cannot be said to be
defamatory on its face. Our appellate court has repeatedly held
that " `the injurious character of the statement *** cannot be
considered so obvious as to justify dispensing with proof of actual
damages' [i.e., the statement cannot be libelous per se] where
additional explanation is required to establish a person's
identification with the publication." Schaffer v. Zekman, 196 Ill.
App. 3d 727, 732-33 (1990) (holding that news broadcast which fell
within several of the historical categories for per se defamation
was not defamatory per se where plaintiff's identity was not shown
on its face), quoting Moore v. Streit, 181 Ill. App. 3d 587, 598
(1989). See also Barry Harlem Corp. v. Kraff, 273 Ill. App. 3d 388
(1995); Colucci v. Chicago Crime Comm'n, 31 Ill. App. 3d 802
(1975).
In this case, I find it ironic and improper that the majority
relies on the very extrinsic facts (i.e., the alleged similarities
between plaintiff and the fictitious Bryson referred to in the
article) that remove this case from per se defamation in order to
reinstate plaintiff's claim for libel per se. Plaintiff cannot, on
the one hand, rely on numerous facts not found within the article
itself to show that she was the person intended to be defamed, and
then, on the other hand, claim to have been libeled on the face of
the article. That position, which the majority ultimately approves,
is not only logically inconsistent, it is also legally unsound. For
this additional reason, I submit that it is improper to reinstate
plaintiff's claim for libel per se.
III
Finally, the position I espouse in this dissent regarding
plaintiff's claim for libel per se requires me to address the
propriety of plaintiff's claim for libel per quod. As with any
action for defamation per quod, the plaintiff here must plead
special damages in order to recover. Schaffer v. Zekman, 196 Ill.
App. 3d 727 (1990). A review of plaintiff's complaint in the case
at bar reveals that the allegations of special damages are
factually insufficient and cannot withstand a motion to dismiss.
Plaintiff summarily alleges that she suffered "pecuniary damages in
that she lost business opportunities and/or lost employment as a
result of the damage to her reputation." She does not, however,
allege either the nature of the purported lost business
opportunities or the circumstances surrounding the loss of her
employment. Our courts have consistently viewed such general,
boiler-plate allegations as insufficient to state a cause of action
for defamation per quod. Taradash v. Adelet/Scott-Fetzer Co., 260
Ill. App. 3d 313, 318 (1993); see also Heerey v. Berke, 188 Ill.
App. 3d 527, 532-33 (1989).
IV
For the foregoing reasons, I would affirm the order of the
circuit court dismissing with prejudice those counts in the
complaint seeking relief for libel per se and libel per quod. I
respectfully dissent.