dissenting:
Because I cannot agree that this article can be innocently construed and because I find no merit in defendants’ other contentions in support of the trial court’s judgment, I must respectfully dissent.
The reader of this article is told that the plaintiff owned and operated a business in which sky-sailing lessons were offered. A number of people paid for these lessons but never received them. Plaintiff and his partners ran up bills at a printing shop, were evicted from their place of business for nonpayment of rent, and also failed to pay for a motel room they rented to conduct their business. One of three theories advanced to explain their subsequent disappearance was that they had planned to build up the business over a short term and then leave with the money. The inescapable implication of these statements is that plaintiff was not able to manage his business affairs, was irresponsible with his customers’ money, and did not honor financial obligations incurred in his business. Moreover the theory advanced by the deputy clerk, accusing plaintiff of planning to build up the business and then leave with the money, imputes to him an act of dishonesty in his business affairs. The fact that his latter charge was only one of three theories advanced does not make it nonactionable. A positive assertion of defamatory matter is not required, it may be by insinuation, allusion, irony, or by a question and yet remain as defamatory as though positively and directly stated. (Maclaskey v. Mecartney (1944), 324 Ill. App. 498, 58 N.E.2d 630; 33A Ill. L. & Prac. Slander and Libel §12 (1970).) Furthermore, these other explanations in fact relate only to possible reasons for the closing of the business; they do not explain why the owners disappeared.
Although the parties on appeal debate the merits of the innocent-construction rule and plaintiff urges us to abandon it,11 do not find it to be applicable in this cause. The majority has cited our supreme court’s summary of the rule in John v. Tribune Co. (1962), 24 Ill. 2d 437, 181 N.E.2d 105, cert. denied (1962), 371 U.S. 877, 9 L. Ed. 2d 114, 83 S. Ct. 148. Although there may appear to be some conflict between giving words their natural and obvious meaning and at the same time finding them nonactionable if capable of being so read, that apparent conflict is satisfactorily resolved by construing the test to be whether the words are reasonably susceptible of an innocent construction. Moricoli v. Schwartz (1977), 46 Ill. App. 3d 481, 361 N.E.2d 74.
Here I find no ambiguity in the meaning of the statements previously discussed, nor is their meaning changed when viewed in the context of the entire article. Thus, this is not a case in which the innocent construction rule must be invoked to determine the effect of statements which are ambiguous. Indeed, defendants have not advanced such an innocent construction. Rather they contend that because the statements were not specifically about the behavior of plaintiff in his employment as regional manager of a retail sporting goods business they could not have prejudiced him in that occupation. I find no merit in this contention. The cases cited by defendants do not hold that defamatory statements prejudicing a plaintiff in his employment are nonactionable merely because they specifically related to another job held by him. Rather those cases involve determinations that no prejudice to the plaintiff in his employment resulted because the defamation did not affect plaintiff’s job abilities (Hudson v. Slack Furniture Co. (1943), 318 Ill. App. 15,47 N.E.2d 502 (ability of telegraph operator to pay his personal bills); Hambric v. Field Enterprises, Inc. (1964), 46 Ill. App. 2d 355, 196 N.E.2d 489 (plaintiff failed to allege injury to his business)), or related to his business but did not injure it (Hambric (alternative holding that report of strip-tease in bar was not injurious to such a business)), or was subject to an innocent construction (Valentine v. North American Co. for Life & Health Insurance (1974), 60 Ill. 2d 168, 328 N.E.2d 265 (“lousy agent” could have merely described unsatisfactory agency relationship); Wexler v. Chicago Tribune Co. (1979), 69 Ill. App. 3d 610, 387 N.E.2d 892 (statement that client’s fortune, managed by attorney, had dwindled not necessarily statement that loss attributable to the attorney)).
In Cobbs v. Chicago Defender (1941), 308 Ill. App. 55, 57, 31 N.E.2d 323, a newspaper reported that a minister was being investigated concerning an “ ‘unsavory incident of serious proportions.’ ” There was no indication that the incident specifically arose out of his activities as a minister, but the court noted the importance to a minister of having a spotless reputation and thus found the article libelous per se. This is illustrative of the purpose of making this category of defamation actionable per se, to protect business reputation. To distinguish between two defamatory statements which prejudice one in his employment merely because one concerned actions arising out of that specific employment and the other concerned another business activity would be contrary to this protective purpose.
“It is not necessary that the defamer refer to the other as engaged in the particular profession or calling in question. It is enough if the statement is of a character to be particularly disparaging of one engaged in such an occupation * * (Restatement (Second) of Torts, Explanatory Notes §573, comment e, at 194 (1977).)”
Just as a spotless personal reputation is of professional importance to a minister, so is a reputation for honest business dealings and responsibility in financial matters towards customers and creditors important to one engaged in business. This article imputing irresponsibility with customers’ money, failure to honor business debts, and dishonest professional behavior in one business enterprise owned and operated by the plaintiff was per se libelous of him in his employment as a regional manager of another business. It is clearly distinguishable from the articles found nonlibelous in Lowther v. North Central College (1978), 60 Ill. App. 3d 902, 377 N.E.2d 357, a case cited by the majority. In Lowther the plaintiff was a college professor of psychology who sued for libel on the basis of articles stating that she was fired from her tenured position because a research foundation that she ran had failed to pay its rent to the college and had issued bad checks (later made good), signed by her, to the college. Plaintiff’s suit was based on alleged injury to her professional reputation as a teacher and the court found that her “financial embarrassment” did not indicate any professional incompetence. In this cause the allegations concern the behavior of a businessman in his management of another business venture.
The majority opinion provides several possible explanations for the closing of the flight school. But these explanations do not relate to the specific allegations in the article concerning plaintiff’s disappearance and failure to pay debts and meet business obligations with no explanation offered by him to the affected parties. Accordingly, I cannot agree with the majority that the trial court’s judgment should be affirmed on the basis of the innocent-construction rule.
But defendants contend that because plaintiff was one of three owners named in the article no wrongdoing can be directly attributed to him from that article, citing Latimer v. Chicago Daily News, Inc. (1947), 330 Ill. App. 295, 71 N.E.2d 553. In Latimer 23 lawyers had represented a total of 30 defendants on Federal sedition charges. A published report of the trial spoke of “the scum of political gangsterdom” being represented by a group of lawyers described as “craven.” (Latimer, 330 Ill. App. 295, 297, 71 N.E.2d 553.) Later in the article it was stated that there were “despicable characters among the defendants.” (Latimer, 330 Ill. App. 295, 298, 71 N.E.2d 553.) The court held that in this context it was unclear whether the language referred to all of the lawyers in the group, thus distinguishing those cases in which an article clearly referred to every group member. Defendants do not appear to contest that defamation of a group may be applicable to individual members of a group where it can be shown that the words applied to every member of the group. (Crosby v. Time, Inc. (7th Cir. 1958), 254 F. 2d 927.) And the burden is much easier where very small groups are involved. (Prosser, Torts §111, at 749-751 (4th ed. 1971).) Here there were but three co-owners of a business, all were named in the article, and acts were repeatedly attributed to all of them in such terms as “the three owners,” “the owners” and “the three.” Thus, there is no doubt that statements in the article concerning the owners specifically referred to the plaintiff, and Latimer is distinguishable on that basis.
Defendants also claim the privilege of “neutral reportage” formulated in Edwards v. National Audubon Society (2d Cir. 1977), 556 F. 2d 113, cert. denied sub nom. Edwards v. New York Times Co. (1977), 434 U.S. 1002, 54 L. Ed. 2d 498, 98 S. Ct. 647, and adopted by the Fourth District of this court in Krauss v. Champaign News Gazette, Inc. (1978), 59 Ill. App. 3d 745, 375 N.E.2d 1362. In Edwards the New York Times had printed charges made by members of the National Audubon Society that certain scientists were “paid liars.” It was specified at trial and not contested on appeal that plaintiffs were public figures. The court held:
“* # “when a responsible, prominent organization like the National Audubon Society makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter’s private views regarding their validity.” (556 F.2d 113, 120.)
The privilege was formulated as a limited one, to be defeated only upon proof that the publisher espoused or concurred in the charges or deliberately distorted the reporting in order to make a personal attack of his own on the plaintiff. The court found no such proof and also noted that there was no proof of actual malice which was also required to maintain the action because a public figure was involved. In Krauss the director of a county youth home who had designed and directed a drug program there claimed libel from an article alleging abuse in the program. Relying on Edwards, the court held that the doctrine of neutral reportage supported the dismissal of the action by the trial court:
“Thus, the doctrine of neutral reportage gives bent to a privilege by the terms of which the press can publish items of information relating to public issues, personalities, or programs which need not be literally accurate.” (59 Ill. App. 3d 745, 747, 375 N.E.2d 1362, 1363.)
This privilege was conditioned on the journalist reasonably believing that his story accurately conveyed the information asserted and on the assertion being made under circumstances wherein the assertion itself was newsworthy. The privilege could be defeated upon a showing that the story was deliberately distorted to launch personal attack. As an alternative basis for affirming the dismissal the court found the article nonactionable under the innocent-construction rule.
These cases are distinguishable from the cause before us in one crucial detail; we are not concerned here with a public figure or an issue of public concern. For defendants to claim that the matter was newsworthy and of legitimate public concern is insufficient to establish the privilege. This was not an issue with significant public health ramifications as in Edwards, nor did it concern the performance of a public employee in a public social service program, as was the case in Krauss. At issue are essentially private complaints concerning a small business enterprise. I thus do not find the doctrine of neutral reportage applicable. Furthermore, the continuing validity of this doctrine is questionable in the light of recent United States Supreme Court decisions which restrict the first amendment privilege invoked in Edwards and Krauss to cases where public figures or public officials are involved and which expressly hold that it is not sufficient if the defamation concerns private persons involved in matters of public or general concern. (Wolston v. Readers Digest Association (1979),_U.S_, 61 L. Ed. 2d 450, 99 S. Ct. 2701; Time, Inc. v. Firestone (1976), 424 U.S. 448, 47 L. Ed. 2d 154, 96 S. Ct. 958; Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 74 S. Ct. 2997.) If comments about private persons which also involve matters of public interest are not to be accorded the more limited protection of the requirement that actual malice be established, it is doubtful that the broader protection of the Edwards neutral reportage doctrine is constitutionally required. Nor have defendants contended that such protection should be afforded as a matter of common law, independent of constitutional protections.
For the reasons set forth in this dissent, I would reverse the judgment of the trial court and remand the cause with instructions that plaintiff’s complaint be reinstated.
Plaintiff contends that because a central purpose of the doctrine has been to mitigate the harsh effect of strict liability in defamation (Note, The Illinois Doctrine of Innocent Construction: A Minority of One, 30 U. Chi. L. Rev. 524 (1963)), it is no longer needed now that liability without fault in defamation has been ruled unconstitutional. (Gertz v. Robert Welch, Inc. (1974), 418 U. S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997; Troman v. Wood (1975), 62 Ill. 2d 184, 340 N.E.2d 292.) I agree with the majority that this contention can properly only be resolved by the Illinois Supreme Court.