NO. 4-95-0979
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
DOUGLAS GIST, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Macon County
MACON COUNTY SHERIFF'S DEPARTMENT, ) No. 95L165
Defendant, )
and )
DECATUR HERALD AND REVIEW, a Division )
of Lee Enterprises, Inc. and TCI ) Honorable
CABLEVISION OF DECATUR, ) John K. Greanias,
Defendants-Appellees. ) Judge Presiding.
JUSTICE STEIGMANN delivered the opinion of the court:
In March 1995, plaintiff, Douglas Gist, sued defen-
dants, the Decatur Herald and Review (Decatur Herald), TCI
Cablevision of Decatur (TCI), and the Macon County Sheriff's
Department for defamation. Plaintiff based his suit on a Crime
Stoppers' "Most Wanted Fugitives" flyer which the sheriff's de-
partment compiled and the Decatur Herald distributed. TCI
produced a television segment based upon this flyer. In August
1995, the trial court granted motions to dismiss filed by the
Decatur Herald and the sheriff's department. In November 1995,
the court granted TCI's motion to dismiss. Plaintiff appeals,
arguing that the trial court erred by granting Decatur Herald's
and TCI's motions to dismiss. We affirm.
I. BACKGROUND
Plaintiff's complaint--which the trial court dismissed
--alleged essentially the following. On August 1, 1994, the
Macon County State's Attorney filed a complaint charging plain-
tiff with burglary to a motor vehicle. On that same day, the
trial court issued a warrant for plaintiff's arrest. However,
the warrant was never served on plaintiff. On October 26, 1994,
plaintiff spoke with someone from the sheriff's department about
the outstanding warrant, and a "no-charge" was issued.
(Plaintiff's counsel was unable to explain to this court what a
"no-charge" is, and we have no independent knowledge of such a
creature in the law.)
On October 31, 1994, the Decatur Herald circulated a
Crime Stoppers' flyer as an insert in its daily paper. The flyer
(appended to this opinion), captioned "Most Wanted Fugitives,"
featured plaintiff's name, picture, and the charge for which he
was wanted, along with similar information concerning others
wanted on outstanding warrants. Textual information appears to
the right of the pictures, including (1) the prefatory statement
"Fugitives featured in this publication are wanted as of October
6, 1994. Warrants must be verified before arrest"; (2) a warning
("IMPORTANT: These fugitives should be considered dangerous and
might possibly be armed"); and (3) the credited source of the
information ("This is an official quarterly publication compiled
by the Macon County Sheriff's Warrants and Extradition Division
with aid from local and state police agencies"). While the par-
ties at oral argument were unable to explain who actually format-
ted and published the flyer, plaintiff's complaint alleged only
that "the Macon County Sheriff's Department printed and distrib-
uted over 50,000 copies of the flyer" to be added as an insert in
the Decatur Herald. TCI made and aired a television segment
based on the flyer.
II. ANALYSIS
The material in this section is not to be published
pursuant to Supreme Court Rule 23. Official Reports Advance
Sheet No. 15 (July 20, 1994), R. 23, eff. July 1, 1994.
Although it is somewhat unclear from his brief, plain-
tiff appears to challenge three separate defamatory statements in
the flyer. First, plaintiff asserts as defamatory the statement
that, as of October 6, 1994, a warrant existed for his arrest in
connection with a charge of burglary to a motor vehicle. Second,
he asserts as defamatory the heading of the flyer, "Most Wanted
Fugitives." Third, he seems to allege that the warning inside
the box on the right side of the flyer, stating "[t]hese fugi-
tives should be considered dangerous and might possibly be
armed," defames him. We consider all three statements in review-
ing the trial court's decision.
A. Truth and Protected Opinion as a Defense
The material in this section is not to be published
pursuant to Supreme Court Rule 23.
B. Defense of Substantial Truth
Defendants contend that the trial court's decision was
proper because the flyer's statements were substantially true.
We agree.
In Illinois, an allegedly defamatory statement is not
actionable if it is substantially true, even though it is not
technically accurate in every detail. Farnsworth v. Tribune Co.,
43 Ill. 2d 286, 293, 253 N.E.2d 408, 412 (1969); Lemons v.
Chronicle Publishing Co., 253 Ill. App. 3d 888, 890, 625 N.E.2d
789, 791 (1993). While this rule is rooted in the United States
Constitution (see New York Times Co. v. Sullivan, 376 U.S. 254,
289, 11 L. Ed. 2d 686, 712, 84 S. Ct. 710, 731 (1964) (suggesting
that state law requiring literal and complete truth as a defense
might violate the first amendment); Masson v. New Yorker Maga-
zine, Inc., 501 U.S. 496, 115 L. Ed. 2d 447, 111 S. Ct. 2419
(1991) (only substantial truth, not literal truth, is required in
defense of a defamation action)), it is also logically driven, as
"falsehoods which do no incremental damage to the plaintiff's
reputation do not injure the only interest that the law of
defamation protects." (Emphasis in original.) Haynes v. Alfred
A. Knopf, Inc., 8 F.3d 1222, 1228 (7th Cir. 1993). Moreover,
"[a] fussy insistence upon literal accuracy 'would condemn the
press to an arid, dessicated [sic] recital of bare facts.'" Loeb
v. Globe Newspaper Co., 489 F. Supp. 481, 486 (D. Mass. 1980),
quoting Time, Inc. v. Johnston, 448 F.2d 378, 384 (4th Cir.
1971).
A defendant bears the burden of establishing the "sub-
stantial truth" of his assertions, which he can demonstrate by
showing that the "gist" or "sting" of the defamatory material is
true. Lemons, 253 Ill. App. 3d at 890, 625 N.E.2d at 791. When
determining the "gist" or "sting" of allegedly defamatory materi-
al, a trial court must "look at the highlight of the article, the
pertinent angle of it, and not to items of secondary importance
which are inoffensive details, immaterial to the truth of the
defamatory statement." Vachet v. Central Newspapers, Inc., 816
F.2d 313, 316 (7th Cir. 1987). While substantial truth is
normally a question for the jury, where no reasonable jury could
find that substantial truth had not been established, the ques-
tion is properly one of law, which this court may review de novo.
See Haynes, 8 F.3d at 1228.
Here, the essence of the matter is that plaintiff was
wanted on an arrest warrant as of October 6, 1994, for burglary
to a motor vehicle, which is entirely true. That plaintiff
"might possibly be armed" or "should be considered dangerous" or
was a "most wanted" fugitive--to the extent the statements can
even be considered as applying to plaintiff or asserting facts
about him--are all secondary details, immaterial to the truth of
the Crime Stoppers flyer. Viewing the three allegedly defamatory
statements under the totality of the circumstances, we conclude
that the trial court's decision was also proper in light of the
"substantial truth" of the flyer.
Our conclusion squares with similar results reached by
this court and other courts in similar circumstances. See, e.g.,
Lemons, 253 Ill. App. 3d at 890, 625 N.E.2d at 791 (where the
plaintiff was caught shoplifting by store employees and then
pulled a knife, newspaper article's statements that employees
were "security guards," the plaintiff was convicted of four
rather than three offenses, and one employee was "stabbed" as
opposed to cutting himself in trying to disarm the plaintiff were
of little relevance); Haynes, 8 F.3d 1222 (where the plaintiff
admitted or it was incontestably established that he drank heavi-
ly, lost his job, assaulted a police officer, walked out on his
children, and committed bigamy, statements that the plaintiff
left his children home alone on some nights, was fired for
drinking rather than for being caught with alcohol, and preferred
to spend money on his car rather than his children paled by
comparison); Vachet, 816 F.2d 313 (where the plaintiff admitted
being arrested for harboring a fugitive, whether the plaintiff
was arrested on a warrant for that charge was an irrelevant
detail); Wilson, 343 Ill. App. 238, 98 N.E.2d 391 ("gist" or
"sting" of a report of a supreme court decision was that the
plaintiff, after having been convicted, was granted a new trial,
and the newspaper's report that the plaintiff had begun to serve
his sentence was immaterial).
C. Privileges
1. Absolute Privilege as a Defense
The material in this section is not to be published
pursuant to Supreme Court Rule 23.
2. Conditional Privileges
The Decatur Herald and TCI both assert they were pro-
tected by a conditional privilege. We agree.
In Kuwik v. Starmark Star Marketing & Administration,
Inc., 156 Ill. 2d 16, 27, 619 N.E.2d 129, 134 (1993), our supreme
court adopted the Restatement (Second) of Torts approach to
determine whether a qualified privilege should be recognized in a
given situation. See Restatement (Second) of Torts §§593 through
599 (1977). Conditional privileges generally fall into three
categories: (1) situations which involve some interest of the
person who publishes the defamatory matter; (2) situations which
involve some interest of the person to whom the matter is pub-
lished or of some third person; and (3) situations which involve
a recognized interest of the public. Kuwik, 156 Ill. 2d at 29,
619 N.E.2d at 135. A court should look only to the occasion
giving rise to the defamation action when determining as a matter
of public policy whether the occasion created some recognized
duty or interest which makes communication of the defamatory
statement in that situation conditionally privileged as a matter
of law. Kuwik, 156 Ill. 2d at 27, 619 N.E.2d at 134; see Quinn
v. Jewel Food Stores, Inc., 276 Ill. App. 3d 861, 871, 658 N.E.2d
1225, 1233 (1995); Barakat v. Matz, 271 Ill. App. 3d 662, 668,
648 N.E.2d 1033, 1039 (1995). The defendant bears the burden of
demonstrating the existence of a conditional privilege. Kuwik,
156 Ill. 2d at 27, 619 N.E.2d at 134.
Here both defendants were protected by a conditional
privilege. The publication of the Crime Stoppers flyer was
conditionally privileged under category three, as a situation
which involved a recognized interest of the public. Section 598
of the Restatement (Second) of Torts, entitled "Communication to
One Who May Act in the Public Interest," sets forth this privi-
lege:
"An occasion makes a publication conditional-
ly privileged if the circumstances induce a
correct or reasonable belief that
(a) there is information that affects a
sufficiently important public interest, and
(b) the public interest requires the
communication of the defamatory matter to a
public officer or a private citizen who is
authorized or privileged to take action if
the defamatory matter is true." Restatement
(Second) of Torts §598, at 281 (1977).
Comments d and f to section 598 of the Restatement (Second) of
Torts compel recognition of a conditional privilege for the type
of publication at issue in this case. Comment d states, "[t]he
rule stated in this Section is applicable when any recognized
interest of the public is in danger, including the interest in
the prevention of crime and the apprehension of criminals."
(Emphasis added.) Restatement (Second) of Torts §598, comment d,
at 282-83 (1977). Comment f, entitled "Communications to private
citizen to prevent crime or apprehend criminal," states:
"The privilege stated in this Section affords
protection to a private citizen who publishes
defamatory matter to a third person even
though he is not a law enforcement officer,
under circumstances which, if true, would
give to the recipient a privilege to act for
the purpose of preventing a crime or of ap-
prehending a criminal or fugitive from jus-
tice." (Emphasis added.) Restatement (Sec-
ond) of Torts §566, comment f, at 283-84
(1977).
In light of these comments to the Restatement, we hold that the
trial court correctly concluded defendants' publications were
conditionally privileged.
However, a determination that a qualified privilege
exists does not end the inquiry. If a defendant demonstrates the
existence of a qualified privilege, the burden then shifts to the
plaintiff to demonstrate abuse of the privilege. Quinn, 276 Ill.
App. 3d at 871, 658 N.E.2d at 1234. Prior to the adoption of the
Restatement approach to conditional privileges, a plaintiff could
establish abuse of a qualified privilege only by a showing of
actual malice, i.e., showing defendant knew the statement to be
false or acted in reckless disregard to the truth or falsity of
the statement. Zeinfeld v. Hayes Freight Lines, Inc., 41 Ill. 2d
345, 349-50, 243 N.E.2d 217, 221 (1968). Following the adoption
of the Restatement (Second) approach, a plaintiff could addition-
ally establish abuse by showing "any reckless act which shows a
disregard for the defamed party's rights, including the failure
to properly investigate the truth of the matter, limit the scope
of the material, or send the material to only the proper par-
ties." Kuwik, 156 Ill. 2d at 30, 619 N.E.2d at 136.
Here, the plaintiff has failed to demonstrate how
either defendant abused its conditional privilege. Plaintiff set
forth no facts tending to show either of the defendants acted in
bad faith in circulating the flyer. According to the allegations
in the plaintiff's complaint, the sheriff's department printed
and distributed the flyer to be inserted in the Decatur Herald,
which in turn reasonably relied on the sheriff's department as a
source of the compilation. The defendants cannot be expected to
verify the existence of each individual outstanding warrant for
all fugitives pictured on these flyers; such time-consuming
verification procedures would greatly reduce the effectiveness
and timeliness of these flyers. The flyer at issue here was
limited in its scope; the flyer simply stated that plaintiff was
wanted on an outstanding arrest warrant as of October 6, 1994,
and noted the charge on which the warrant was based. Further,
the timing of the publication was proper because it occurred not
long after the most current information was compiled by the
sheriff's department. Last, plaintiff's complaint alleges
nothing improper regarding the manner in which the communication
was made (as an insert in the newspaper), and, given that such
programs depend upon the widest possible circulation for their
success, it was proper for the public at large to receive the
communication.
3. Privilege of Fair and Accurate Summary
Defendants were additionally protected by the privilege
which protects fair and accurate summaries of governmental pro-
ceedings. Our supreme court first recognized this privilege in
Lulay v. Peoria Journal-Star, Inc., 34 Ill. 2d 112, 114-15, 214
N.E.2d 746, 747-48 (1966), which adopted the definition of this
privilege as set forth in the first Restatement of Torts:
"The publication of a report of judicial
proceedings, or proceeding of a legislative
or administrative body or an executive offi-
cer *** or a municipal corporation or of a
body empowered by law to perform a public
duty is privileged, although it contains
matter which is false and defamatory, if it
is
(a) accurate and complete or a fair
abridgment of such proceedings, and
(b) not made solely for the purpose
of causing harm to the person de-
famed." Restatement of Torts §611,
at 293 (1938).
Thus, under Lulay, this privilege is qualified because a plain-
tiff can defeat it by showing that a defendant made a defamatory
statement in the course of reporting governmental proceedings but
did so with common law malice.
In Catalano v. Pechous, 83 Ill. 2d 146, 167-68, 419
N.E.2d 350, 360-61 (1980), the supreme court modified this privi-
lege in accordance with the Restatement (Second) of Torts.
Section 611 of the Restatement (Second) of Torts dropped part (b)
from the above definition, and, in a sense, created a "hybrid"
privilege: "conditional" in that only those reports of govern-
mental proceedings which are accurate and complete or fair
abridgments of the proceedings are privileged; "absolute" in that
once the prerequisites of the privilege are met, the privilege
cannot be defeated by a showing of malice. See Restatement (Sec-
ond) of Torts §611, comments a, b, at 297-98 (1977). Section 611
of the Restatement (Second) of Torts provides as follows:
"The publication of defamatory matter con-
cerning another in a report of an official
action or proceeding *** is privileged if the
report is accurate and complete or a fair
abridgement of the occurrence reported." Re-
statement (Second) of Torts §611, at 297
(1977).
Thus, under the Restatement (Second) approach, actual
or common law malice will not defeat the privilege once the
prerequisites of the privilege have been met. After noting the
privilege is not absolute but "broader in its scope" than tradi-
tional qualified privileges, the Restatement (Second) stresses
"the interest of the public in having information made available
to it as to what occurs in official proceedings and public
meetings." Restatement (Second) of Torts §611, comment a, at 297
(1977). The accuracy of the summary, not the truth or falsity of
the information being summarized, is the benchmark of the privi-
lege, because the one reporting on the proceeding or meeting is
simply acting as the public eye, reporting information "that any
member of the public could have acquired for himself." Restate-
ment (Second) of Torts §611, comment i, at 301 (1977); see also
Martin v. State Journal-Register, 244 Ill. App. 3d 955, 965, 612
N.E.2d 1357, 1364 (1993) (noting reporters "serve as conduits
through which information flows from the reporters' sources to
the public"); W. Keeton, Prosser & Keeton on Torts §115, at 836
(5th ed. 1984) (the rationale underlying the privilege is that
"any member of the public, if he were present, might see and hear
for himself [what is contained in a governmental report or stated
in governmental proceedings], so that the reporter is merely a
substitute for the public eye").
In discussing why malice no longer defeats the privi-
lege, the Restatement (Second) of Torts comments:
"The privilege *** permits a person to pub-
lish a report of an official action or pro-
ceeding ***, even though the report contains
what he knows to be a false and defamatory
statement. The constitutional requirement of
fault is met in this situation by a showing
of fault in failing to do what is reasonably
necessary to insure that the report is accu-
rate and complete or a fair abridgment." Re-
statement (Second) of Torts §611, comment b,
at 298 (1977).
Despite these comments to the Restatement (Second) of
Torts, Catalano appears to have caused confusion in the appellate
courts as to whether actual malice might still be raised to
defeat this privilege. See Brown & Williamson Tobacco Corp. v.
Jacobson, 713 F.2d 262, 272 (7th Cir. 1983) ("Illinois law is in
disarray on the question whether actual malice defeats the
privilege of fair summary"); Berkos v. National Broadcasting Co.,
161 Ill. App. 3d 476, 493, 515 N.E.2d 668, 678 (1987) (citing a
variety of appellate court cases reaching opposite conclusions on
the issue); Note, Reports upon Public Proceedings and Documents:
Absolutely Protected by Constitutional Privilege, 1985 U. Ill. L.
Rev. 1059, 1080-83 (1985) (discussing and criticizing post-
Catalano cases permitting a showing of actual malice to overcome
the privilege). However, decisions of the United States Supreme
Court suggest that a constitutional barrier prevents actual
malice from overcoming the privilege. See Cox Broadcasting Corp.
v. Cohn, 420 U.S. 469, 43 L. Ed. 2d 328, 95 S. Ct. 1029 (1975)
(imposition of liability for the "accurate publication" by the
press of information lawfully obtained and available in the
public record would be inconsistent with the first and fourteenth
amendments); Smith v. Daily Mail Publishing Co., 443 U.S. 97,
103, 61 L. Ed. 2d 399, 405, 99 S. Ct. 2667, 2671 (1979) ("[I]f a
newspaper lawfully obtains truthful information about a matter of
public significance then state officials may not constitutionally
punish publication of the information, absent a need *** of the
highest order"). Moreover, other decisions support the conclu-
sion that it is the accuracy of the press' report--the degree to
which it tracks the material contained in the public record--and
not the underlying truth or falsity of the public record itself
which forms the basis of the privilege and renders notions of
actual malice irrelevant. See Cox, 420 U.S. at 492, 43 L. Ed. 2d
at 347, 95 S. Ct. at 1044 (noting the responsibility of the news
media "to report fully and accurately the proceedings of govern-
ment"); Florida Star v. B.J.F., 491 U.S. 524, 539, 105 L. Ed. 2d
443, 459, 109 S. Ct. 2603, 2612 (1989) (holding that a newspaper
may not be punished for the publication of the name of a rape
victim where the name was lawfully obtained from a sheriff's
department release and noting that had the defendant newspaper
"merely reproduced the news release prepared and released by the
[Sheriff's] Department, imposing civil damages would surely
violate the First Amendment"); Time, Inc. v. Firestone, 424 U.S.
448, 47 L. Ed. 2d 154, 96 S. Ct. 958 (1976) (inaccurate summari-
zations of public proceedings not protected under Cox); Mathis v.
Philadelphia Newspapers, Inc., 455 F. Supp. 406, 417 (E.D. Pa.
1978) (for privilege to apply, court must compare complained-of
publications not with the events which actually transpired but
with what was actually stated in the governmental proceeding or
report); O'Donnell v. Field Enterprises, Inc., 145 Ill. App. 3d
1032, 1035-36, 491 N.E.2d 1212, 1215 (1986) (finding privilege
applies even where publisher knows statements he is reporting are
false); Martin, 244 Ill. App. 3d at 965, 612 N.E.2d at 1364
(noting "reporters do not and cannot guarantee the truth of their
stories; instead, they serve as conduits through which informa-
tion flows from the reporters' sources to the public" (emphasis
in original)). This approach makes sense because the privilege
is circumscribed by definition--one must either make a complete
and accurate report, or, if a summary is made, the summary must
be "fair" for the privilege to apply.
With these principles in mind, it is clear that the
fair summary privilege protects the defendants in the present
case because they accurately published information obtainable
through public records. An outstanding warrant for plaintiff's
arrest did exist as of October 6, 1994. The existence of an
arrest warrant is a matter of public record and inherently
involves some official action by the judiciary. The flyer was
complete and accurate in reporting plaintiff's fugitive status as
of October 6, 1994. Even were it not, as discussed above, the
flyer was beyond a doubt substantially true, making the privilege
applicable. See Restatement (Second) of Torts §611, comment f,
at 300 (1977) ("substantially correct account of the proceedings"
is all that is required to invoke the privilege).
In support of our conclusion, we note that other courts
have found this privilege applicable under very similar circum-
stances. In Mathis (455 F. Supp. at 409), two allegedly libelous
newspaper articles described the arrest and arraignment of two
brothers for kidnapping and bank robbery. Both articles errone-
ously pictured the plaintiff as one of the two suspects, but the
erroneous picture was supplied by the Philadelphia police depart-
ment. The second article contained a further error. In describ-
ing the second arrestee (who had the same name as the plaintiff
and in whose place plaintiff's picture appeared), the article
gave, as the supposed age and address of the suspect, the age and
address of the plaintiff, again based on information supplied by
the police. Although neither article credited law enforcement as
the source of the information, the misinformation was compiled by
the "night command," the official source of information regarding
the activities of Philadelphia detectives. Mathis, 455 F. Supp.
at 416. The Mathis court concluded that the police had issued an
"informal report" to the press involving the suspects, such that
the privilege set out under section 611 of the Restatement
(Second) of Torts applied. Comparing the articles with the
"informal report" supplied by the police, the court found that
the articles were "accurate" and that the privilege could not
have been forfeited by simple negligence in failing to discover
the truth of the information. Mathis, 455 F. Supp. at 416-17.
Likewise, in Porter v. Guam Publications, Inc., 643
F.2d 615 (9th Cir. 1981), the "Police Blotter" section of
defendant's newspaper accurately reported, based on a police
compilation of criminal complaint and arrest reports, that the
plaintiff had been arrested and booked for theft of a motor
vehicle and some cash. While true, the police bulletin itself
was based on false charges filed by the complainant, and no
complaint or arrest warrant was ever issued. Porter, 643 F.2d at
616. The Porter court reversed a jury verdict in favor of the
plaintiff, concluding that defendant's motion for summary judg-
ment should have been granted based on Guam's statutory privilege
for "fair and true" reports of "judicial" or "other public
official" proceedings. Porter, 643 F.2d 617-18.
4. Privilege of Neutral Reportage
Both defendants here were also protected by the privi-
lege of neutral reportage, which this court adopted in Krauss v.
Champaign News Gazette, Inc., 59 Ill. App. 3d 745, 747, 375
N.E.2d 1362, 1363 (1978). The Krauss court, relying on the
decision in Edwards v. National Audubon Society, Inc., 556 F.2d
113 (2d Cir. 1977), summarized the privilege as follows:
"[T]he doctrine of neutral reportage gives
bent to a privilege by the terms of which the
press can publish items of information relat-
ing to public issues, personalities, or pro-
grams which need not be literally accurate.
If the journalist believes, reasonably and in
good faith, that his story accurately conveys
information asserted about a personality or a
program, and such assertion is made under
circumstances wherein the mere assertion is,
in fact, newsworthy, then he need inquire no
further. Unless it is shown that the jour-
nalist deliberately distorts these statements
to launch a personal attack of his own upon
the public figure or the program, that which
he reports under such circumstance is privi-
leged." Krauss, 59 Ill. App. 3d at 747, 375
N.E.2d at 1363.
Although the first district has refused to recognize
the privilege (see Newell v. Field Enterprises, Inc., 91 Ill.
App. 3d 735, 757-58, 415 N.E.2d 434, 451-52 (1980); Tunney, 109
Ill. App. 3d at 777-78, 441 N.E.2d at 92), other courts have done
so. See, e.g., Edwards, 556 F.2d 113; Cianci v. New Times
Publishing Co., 639 F.2d 54 (2d Cir. 1980); Price v. Viking Pen-
guin, Inc., 881 F.2d 1426 (8th Cir. 1989), cert. denied, 493 U.S.
1036, 107 L. Ed. 2d 774, 110 S. Ct. 757 (1990); Ryan v. Herald
Ass'n, Inc., 152 Vt. 275, 566 A.2d 1316 (1989); Burns v. Times
Argus Ass'n, Inc., 139 Vt. 381, 430 A.2d 773 (1981) (citing
privilege with approval in dicta); Herron v. Tribune Publishing
Co., 108 Wash. 2d 162, 736 P.2d 249 (1987) (en banc); Barry v.
Time, Inc., 584 F. Supp. 1110 (N.D. Cal. 1984); Sunshine Sports-
wear & Electronics, Inc. v. WSOC Television, Inc., 738 F. Supp.
1499 (D. S.C. 1989); see also Comment, Neutral Reportage: The
Case for a Statutory Privilege, 86 Nw. U. L. Rev. 417 (1992)
(hereinafter Comment); cf. Harte-Hanks Communications, Inc. v.
Connaughton, 491 U.S. 657, 694, 105 L. Ed. 2d 562, 593, 109 S.
Ct. 2678, 2699 (1989) (Blackmun, J., concurring) (petitioner's
failure to assert neutral reportage privilege "unwise"); contra,
e.g., Dickey v. CBS, Inc., 583 F.2d 1221 (3d Cir. 1978); Janklow
v. Viking Press, 378 N.W.2d 875 (S.D. 1985). Our supreme court
has not yet addressed this privilege. See Catalano, 83 Ill. 2d
at 170, 419 N.E.2d at 362. We renew our acceptance of the
privilege and conclude that it applies here. We note that
plaintiff's complaint contains no assertion that the defendants
abused this privilege in the instant matter.
D. The Innocent Construction Rule
The material in this section is not to be published
pursuant to Supreme Court Rule 23.
III. EPILOGUE
The fear of libel litigation alone is potentially a
greater threat to freedom of speech than the actual litigation.
See Costello v. Ocean County Observer, 136 N.J. 594, 605, 643
A.2d 1012, 1018 (1994). As long ago as 1984, Judge Bork noted,
"[A] remarkable upsurge in libel actions, accompanied by a
startling inflation of damage awards, has threatened to impose a
self-censorship on the press which can as effectively inhibit
debate and criticism as would overt governmental regulation that
the first amendment most certainly would not permit." Ollman v.
Evans, 750 F.2d 970, 996 (D.C. Cir. 1984) (en banc) (Bork, J.,
concurring, joined by Wilkey, Ginsburg, and MacKinnon, JJ.).
While only 10% of libel plaintiffs win their cases, the average
monetary judgments against media defendants in these winning
cases is a frightening $2 million. Comment, 86 Nw. U. L. Rev. at
444 & n.200 (describing the case of the Alton Telegraph, an Illi-
nois daily newspaper with 35,000 subscribers, which, after having
lost a $9.2 million libel suit based on an article which was
never published, threatened bankruptcy, settled, and was eventu-
ally sold). Thus, motions for summary judgment and like motions
are exceedingly important tools for disposing of nonmeritorious
defamation suits. Costello, 136 N.J. at 605, 643 A.2d at 1018;
see, e.g., Porter, 643 F.2d 615 (jury award of $25,000 in
plaintiff's favor in libel action reversed because the
defendant's motion for summary judgment should have been grant-
ed). Again, as Judge Bork notes, "The only solution to the
problem libel actions pose would appear to be close judicial
scrutiny to ensure that cases about types of speech and writing
essential to a vigorous first amendment do not reach the jury."
Ollman, 750 F.2d at 996 (Bork, J., concurring, joined by Wilkey,
Ginsburg, and MacKinnon, JJ.); see also Costello v. Capital
Cities Communications, Inc., 153 Ill. App. 3d 956, 993, 505
N.E.2d 701, 724 (1987) (Steigmann, J., dissenting) (because of
danger to first amendment freedoms presented by libel suits,
courts must act with "heightened awareness" when ruling in this
area). While the writing at issue here was not political speech
often thought to be at the core of the first amendment, the media
in this type of situation nevertheless perform an invaluable
service to both law enforcement and the public at large. Accord-
ingly, we conclude that the trial court's grant of defendants'
motions to dismiss in the present case was absolutely proper.
IV. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
COOK, P.J., and KNECHT, J., concur.