Rosner v. Field Enterprises, Inc.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE MANNING

delivered the opinion of the court:

Defendants have filed a petition for rehearing asserting that because of the Mittelman case (Mittelman v. Witous (1989), 135 Ill. 2d 220, 552 N.E.2d 973), which was not discussed in our opinion, this court has incorrectly determined the requisite mental state plaintiff must allege and prove in the underlying defamation action. In addition, defendants seek a point of clarification in reference to part of the order of this court regarding the February 15 publication.

Having read the petition alone, and in' conjunction with Mittelman, the United States Supreme Court decision in Milkovich v. Lorain Journal Co. (1990), 497 U.S._, 111 L. Ed. 2d 1, 110 S. Ct. 2695, and those cases cited to in our opinion, we remain steadfast in the views previously expressed in our opinion. Although we find the facts in Mittelman to be distinguishable from those in the case at bar, for clarity’s sake, we will briefly discuss the assertions raised by defendants and our rationale for the conclusion that Mittelman does not change the result here.

Initially, Mittelman addresses the instance wherein the trial court is called upon to determine whether an utterance is one of fact or opinion, which requires application of the Oilman test. In Ollman v. Evans (D.C. Cir. 1984), 750 F.2d 970, the Federal Court of Appeals enunciated the factors necessary to the determination of whether an utterance is one of fact or opinion. Those four factors, to be viewed under the “totality of circumstances” are: (1) the specific language used; (2) whether the statement is verifiable; (3) the general context of the statement; and (4) the broader context in which the statement appeared. (Oilman, 750 F.2d at 979.) Mittelman then states where the trial court finds the utterance to be a statement of fact versus a constitutionally protected opinion, its further inquiry pertains “to any claim of defamation” as to whether such statement is: (1) false; (2) not subject to privilege; (3) made with the requisite mental state; and (4) incapable of a reasonable nondefamatory construction. (Mittelman, 135 Ill. 2d at 234.) As we have already discussed the application of the Oilman factors in the opinion, we need not readdress them; rather, we turn our attention to defendants’ contention that the statements at issue are subject to Illinois common law privilege and that plaintiff must prove actual malice to overcome the privilege.

First, in response to defendants’ claims that the privilege of “fair comment” is rejuvenated by Mittelman, we reiterate that it is our belief that such privilege has been supplanted by Federal constitutional law. In fact, Mittelman concedes that “this court [the Illinois Supreme Court] found that the New York Times holding had essentially replaced the ‘fair comment’ common law privilege.” (Mittelman, 135 Ill. 2d at 235, quoting Colson v. Stieg (1982), 89 Ill. 2d 205, 209, 433 N.E.2d 246.) Although such holding is often cited to as a sword, i.e., the right of the public to be informed and of the media to engage in “robust discussion” about matters of public concern, it is our view that commencing with Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997, it is to be used as a shield in factual situations precisely like the one before us. In the first situation, such statement when used in context refers to public officials, public figures and public persons. However, in our opinion and this supplemental opinion, we principally rely upon such statement as a clarification of the Gertz Court’s rejection of the Rosenbloom holding (which applied the actual malice standard to matters involving public concern) and its rationale for declining to impose such stringent requirements when the distinction to be considered involves the rights of a private individual plaintiff who has suffered wrongful injury to reputation versus those rights of free press and free speech of a media defendant. And herein lies the major similarity between the factual matrix in the instant matter and those present in Gertz and Milkovich on the one hand; and on the other hand, the major distinction between the facts here presented and those in Mittelman and Colson. Gertz, as discussed in our opinion, which involved libel litigation between a private plaintiff, an attorney, and a media defendant, placed significant emphasis upon the balance that must be accorded between the law of defamation and freedoms of speech and press. The Court concluded that neither our Constitution nor State common law principles require imposition of the public interest or public concern element, that serves as the basis of “fair comment”5 when a private person is involved. The major reason for this rule is based upon sound theory when juxtaposed with the then radical rule in New York Times, that is, the private plaintiff has not voluntarily chosen to be placed in a public light and is not afforded the same channels of rebuttal as a public person under circumstances where the purported defamation is published in the media.

Similarly, in Milkovich, which involved a private plaintiff and a media defendant, the Supreme Court stated “where a statement of ‘opinion’ on a matter of public concern reasonably implies false and defamatory facts regarding public figures or officials, those individuals must show that such statements were made with knowledge of their false implications or with reckless disregard of their truth”; however, “where such a statement involves a private figure on a matter of public concern, a plaintiff must show that the false connotations were made with some level of fault as required by Gertz.” (Emphasis added.) (Milkovich, 497 U.S. at_, 111 L. Ed. 2d at 19, 110 S. Ct. at 2706-07.) Accordingly, it is clear to us that the policy reasons underlying the United States Supreme Court’s decisions in Gertz and Milkovich pronounce strong considerations for a substantial number of high State courts to reconcile the competing interests of no intrusion into the area of free expression and the State’s duty to protect a private person’s reputation from false and defamatory statements that are publicized in a widespread media, and conclude that negligence is the requisite mental state to be proved.

We recognize that the privilege of “fair comment” was mentioned in Colson and Mittelman in context with other common law privileges which involve public issues and concerns; however, even if our supreme court were to hold that such privilege survives Gertz as a common law privilege in most situations, such was not the pronouncement in those cases. To the contrary, fair comment was not in issue in either case; rather, at issue was the common law privilege of common interest as between .the parties or the small group involved. Contrary to defendants’ assertions, we believe the question here and in Gertz concerns the public interest as would affect an entire society or large part thereof. The difference is that the speech at issue in the common interest situation involves speech that is in the individual interest of the speaker and its specific audience. In the Gertz situation, the speech conceivably is about a public issue that is intended for and either has the potential to or does reach a large segment of the general populace outside a specific interested audience. The harm inflicted and to be corrected in the latter situation where a private person is affected might well be irreversible, as the Gertz Court enunciated. Our decision is not meant to change the face of the law of defamation or privilege, as we agree that where a common law privilege is applicable, the rule is that actual malice must be proven to overcome the privilege. However, our point of divergence is based upon the narrow fact pattern here presented, where the trial court was called upon to reconsider that the common law rules of privilege, i.e., speech made in the common interest and intended for a specific audience (at issue in Mittelman and Colson), are “not the same as those related to constitutional privilege” (Mittelman, 135 Ill. 2d at 237), i.e., the supplanting of “fair comment” by New York Times and Gertz. We reiterate that the trial court was correct in its determination and find that the Mittelman holding neither detracts from nor changes our affirmation of that decision.

We decline to accept the defendants’ assertion that the mere mention of “fair comment” in Mittelman unequivocally expresses the view by our high court that actual malice is the requisite mental state to be applied in each instance when a public issue or concern is involved. It is our view that our high court has neither squarely addressed nor reconciled the Gertz holding, which found no place in defamation law for the issue of public concern as a cloak of protection for the media defendant, when a private person’s injury to reputation is involved.

Contrary to defendants’ assertions here, our high court has not concluded that malice is the standard to be applied in a defamation action involving a private plaintiff and a media defendant, notwithstanding the potential presence of a public issue. Nor has the court discussed the continued need for the common law privilege of fair comment, outside the realm of a constitutionally protected opinion, in light of the Gertz holding. Rather, the law in Illinois as it stands today states that proof of negligence is sufficient where a private plaintiff is involved and no common law privilege is applicable. (Troman v. Wood (1975), 62 Ill. 2d 184, 340 N.E.2d 292.) Because we have critically addressed the narrow issue presented in light of the current law in Illinois, in reliance on the law set forth by the United States Supreme Court and the law in over three-fourths of our sister States, we adhere to the conclusion set forth in our opinion.

Finally, we clarify our order on remand to the trial court that concerns the February 15 publication. We restate that the publication standing alone could be capable of a nondefamatory construction; however, it was republished along with another article and photograph concerning the plaintiff in a special reprint that also concerned several other persons purportedly involved in accident fraud and swindling. When viewed in that larger context, the February 15 publication is not reasonably capable of a nondefamatory interpretation. To the contrary, the publication in the context in which it appeared in the later special reprint implies that plaintiff is guilty of wrongdoing, and such implication is reinforced and strengthened where plaintiff was identified in relationship to a group of individuals who were accused of fraudulent activities. Whether the publications were in fact understood to so harm the plaintiff in his profession are fact determinations to be made by the jury.

For the foregoing reasons, we adhere to the judgment previously entered by this court in the instant matter.

Affirmed and remanded.

CAMPBELL and O’CONNOR, JJ., concur.

Prior to Gertz, both the State and Federal courts in Illinois had defined the common law privilege of fair comment and determined that certain statements would be subject to the privilege if they were: (1) comments, (2) based upon stated facts, and (3) about a matter of public concern. These factors were clearly set forth in Hahnemannian Life Insurance Co. v. Beebe (1868), 48 Ill. 87, and Brewer v. Hearst Publishing Co. (7th Cir. 1950), 185 F.2d 846.