Tuite v. Corbitt

Docket No. 101054.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

PATRICK A. TUITE, Appellant, v. MICHAEL CORBITT et al.,

Appellees.

Opinion filed December 21, 2006.

JUSTICE KILBRIDE delivered the judgment of the court, with

opinion.

Justices Fitzgerald, Garman, and Karmeier concurred in the

judgment and opinion.

Justice Freeman concurred in part and dissented in part, with

opinion.

Chief Justice Thomas and Justice Burke took no part in the

decision.

OPINION

Plaintiff, Patrick A. Tuite, filed a complaint in the circuit court of

Cook County against defendants, Michael Corbitt, Sam Giancana, and

HarperCollins Publishers, alleging claims of defamation per se, false

light invasion of privacy, and intentional infliction of emotional

distress as a result of certain statements contained in defendants’

book, Double Deal. Defendants filed a motion to dismiss the

complaint under section 2–615 of the Code of Civil Procedure (Code)

(735 ILCS 5/2–615 (West 2002)). The trial court granted defendants’

motion to dismiss, finding that the disputed statements were capable

of a reasonable innocent construction. The appellate court affirmed

the trial court’s judgment. 358 Ill. App. 3d 889.

We allowed Tuite’s petition for leave to appeal. 177 Ill. 2d R.

315(a). Tuite contends that this court should abandon the innocent

construction rule. In the alternative, Tuite contends that the dismissal

of his complaint should be reversed because there is no reasonable

innocent construction for the statements. We decline to abandon the

innocent construction rule, but find that the appellate court erred in

affirming the dismissal of plaintiff’s claims of defamation per se and

false light invasion of privacy based on the application of the rule. We

therefore reverse the judgments of the appellate and circuit courts and

remand this matter to the circuit court for further proceedings.

I. BACKGROUND

Corbitt and Giancana coauthored Double Deal, a book that

recounts Corbitt’s experiences in organized crime in the Chicago area.

HarperCollins published Double Deal. In Double Deal, Corbitt and

Giancana included a discussion of Tuite’s involvement in defending

alleged Chicago mafia boss Joey Aiuppa against criminal charges in

1985. Based on the description of his involvement in Aiuppa’s

defense, Tuite filed a complaint alleging defamation per se, false light

invasion of privacy, and intentional infliction of emotional distress.

In his complaint, Tuite alleged that Corbitt is a “self-admitted

professional criminal, whose life in crime was in the service of the

Chicago mafia.” Double Deal purports to be a nonfiction account of

organized crime activities in the Chicago area. The cover of the book

states it is “The Inside Story of Murder, Unbridled Corruption, and

the Cop Who Was a Mobster.” Tuite identified the following excerpt

from Double Deal as the basis of his claims:

“Unfortunately for the Outfit, during [Operation]

Strawman, the FBI had uncovered tons of evidence

connecting the Chicago bosses to the guys in Kansas City.

When the FBI started calling this new case against Chicago’s

top bosses Strawman II, it was pretty clear they were on a

roll.

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Although Strawman II put a crimp in Chicago’s top guys,

particularly Joey Aiuppa, at first they figured they could beat

the charges. But then when witnesses starting [sic] lining up

against them, they began to get worried. Three of the FBI’s

key witnesses–Allen Glick, the guy who fronted four Vegas

casinos for Chicago; Aladena ‘Jimmy the Weasel’ Fratianno;

and the former Teamsters president Roy Williams–had

everyone seriously concerned. From what I understand, they

knew enough to bury just about everybody who was anybody

in the Outfit.

And it was no use trying to take them out, either. Even if

Lombardo (who was serving time on [Operation] Pendorf in

Leavenworth) or Spilotro (who was in a Chicago jail awaiting

trial for murder) had been available to do the job, it would

have been an impossible task. The more critical witnesses, like

Roy Williams, had been under heavy security for months, ever

since the convictions had come down in Operation Pendorf.

So they were virtually untouchable.

Ultimately it wouldn’t be just Williams, Glick, and the

Weasel the Outfit would have to worry about; by the time the

trial got under way in 1985, there were guys flipping left and

right. It was pretty clear that the Chicago Outfit was going to

take a major hit. Sal told me Joey Aiuppa figured he was

going away for sure if he didn’t get some better

representation. At seventy-seven, Joey Aiuppa was an old

man, and he didn’t want to die in prison. He was desperate to

walk away from those charges and wanted to bring in Pat

Tuite, an attorney who’d represented mob cases in the past.

But Sal said that Aiuppa had run into a wall with Tuite.

Supposedly, the big-shot lawyer told Aiuppa that he’d need a

million-dollar retainer before he’d even walk in the door.

It might seem crazy, playing hardball with an Outfit boss

like that, but Tuite had his reasons; he was far from stupid. He

knew that Outfit guys had a reputation for not paying their

attorneys. They’d get off and then leave the lawyer holding the

bag. If the guy made any noise about his bill, it was ‘take me

to court,’ which, of course, no one ever had the balls to do.

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So now Aiuppa and his pals had a dilemma. They didn’t

want to go on their kick, take their defense money out of their

own pockets. So what did they do? They decided to go to Las

Vegas–the now crime-free town–and let their skim pay Tuite.

[The book then describes how Corbitt and others traveled

to Utah, picked up duffel bags containing $1 million in $100

bills, and delivered the bags to an individual in Chicago. The

book states, ‘I understand Tuite got his retainer later that

night.’]

After Tuite was on the case, all the guys were sort of

semijubilant. Everybody figured Tuite had it all handled. To

Aiuppa and his codefendants, it was like it was a done deal,

like they were all going to be acquitted. So you can imagine

their reaction when they were all found guilty the following

January–1986. I understand they were all sitting around their

hotel room in Kansas City, ready to open a bottle of

champagne, when the feds showed up to arrest them. And

what about Tuite? What kind of explanation could he possibly

have given for this result? I can’t think of one that would’ve

satisfied me–not after advancing him a million bucks for his

legal fees. And I guess that’s why, for the life of me, I’ve

never understood why Pat Tuite didn’t get whacked. Go

figure.”

Tuite alleged that these statements are false. He was not retained

by Aiuppa, he was not the attorney of record, and he did not file an

appearance or participate in the trial. Rather, he served only as a

consultant to Aiuppa’s attorneys. Additionally, he did not demand or

receive a retainer of $1 million cash and did not knowingly receive

illegally obtained funds as payment for his consulting services.

Further, Tuite alleged the statements falsely imply that he would use

all or a portion of the cash retainer to commit bribery or other criminal

conduct to ensure that he “had it all handled” and that acquittal was

“a done deal.”

Tuite alleged that the statements are defamatory per se because

they impute to him criminal wrongdoing, a want of integrity as an

officer of the court, a want of integrity in the performance of his

ethical duties as an attorney, and an inability to perform his

professional duties as a criminal defense attorney. Tuite further alleged

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that the defendants were negligent in publishing the false statements

or, in the alternative, that the defendants published the statements with

knowledge that they were false or with reckless disregard as to their

truth or falsity. Tuite alleged that publication of the statements was

wilful and wanton and damaged his reputation as an attorney and as

an officer of the court.

In support of his claim of intentional infliction of emotional

distress, Tuite alleged that statements in the book, as well as

statements made by defendants in marketing the book, caused him to

fear for his safety and the safety of those around him. Tuite alleged

that the statements were extreme and outrageous and caused him

severe emotional distress.

Defendants filed a motion to dismiss the complaint under section

2–615 of the Code, asserting that the complaint failed to state a claim

of defamation per se because the disputed statements are capable of

an innocent construction. Additionally, defendants asserted that the

complaint failed to state a claim of false light invasion of privacy

because Tuite failed to allege special damages as required to support

such a claim when the statements are not defamatory per se.

Defendants further asserted that the conduct alleged in the complaint

was not sufficiently extreme and outrageous to support a claim of

intentional infliction of emotional distress.

Tuite filed an amended complaint, restating the allegations of his

original complaint and attaching a copy of Double Deal as an exhibit.

The trial court subsequently granted defendants’ motion to dismiss the

amended complaint. The trial court found that the disputed statements

were not defamatory per se because they were capable of a reasonable

innocent construction. The court also held that Tuite failed to state a

claim of false light invasion of privacy because he did not allege

special damages. Further, the statements were not sufficiently extreme

and outrageous to support a claim of intentional infliction of

emotional distress. The trial court, therefore, dismissed the amended

complaint in its entirety.

On appeal, Tuite argued that the trial court erred in dismissing his

claims of defamation per se and false light invasion of privacy because,

when read in context, the statements do not permit a reasonable

innocent construction. Tuite also argued that his complaint adequately

alleged a claim of intentional infliction of emotional distress.

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The appellate court, with one justice dissenting in part, affirmed

the trial court’s judgment. 358 Ill. App. 3d at 891. The appellate court

found that the statements could reasonably be read to indicate that

Tuite was hired to provide “better representation” and that Aiuppa

and his codefendants were required to pay a substantial retainer due

to the risk of nonpayment of their legal bills. 358 Ill. App. 3d at 897.

The belief that acquittal was a “done deal” and the “semijubilant”

reaction after hiring Tuite could reasonably be construed to mean that

the codefendants had complete faith in Tuite and they were elated at

the thought of being represented by the best attorney available. 358 Ill.

App. 3d at 898. The appellate court concluded that the statements,

considered in the context of the book as a whole, were reasonably

subject to this innocent construction. 358 Ill. App. 3d at 898. Thus,

the appellate court held that the complaint failed to state a claim of

defamation per se. 358 Ill. App. 3d at 899.

The appellate court also held that Tuite’s false light invasion of

privacy claim was dependent upon the establishment of a claim of

defamation per se. 358 Ill. App. 3d at 899. Thus, the failure of Tuite’s

defamation per se cause of action resulted in the dismissal of his false

light invasion of privacy claim. 358 Ill. App. 3d at 899. The appellate

court further held that the disputed statements were not sufficiently

extreme and outrageous to support a cause of action for intentional

infliction of emotional distress. 358 Ill. App. 3d at 900.

Justice Wolfson disagreed with the majority’s conclusion that the

statements were subject to a reasonable innocent construction. 358 Ill.

App. 3d at 901 (Wolfson, J., specially concurring in part and

dissenting in part). In Justice Wolfson’s view, “[t]he clear message is

that Tuite was ready and able to fix the case, that he was paid to fix

it, and that he did not deliver, something that should have caused a

premature end to his life. It takes more than a ‘strain’ to apply an

innocent meaning to the offending words. It takes a gyration of

Olympian proportion.” 358 Ill. App. 3d at 901 (Wolfson, J., specially

concurring in part and dissenting in part). Justice Wolfson would have

reversed the dismissal of the defamation per se and false light invasion

of privacy counts and remanded for further proceedings. 358 Ill. App.

3d at 902 (Wolfson, J., specially concurring in part and dissenting in

part).

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We granted Tuite’s petition for leave to appeal. 177 Ill. 2d R.

315(a). We then allowed the Chicago Tribune Company, the Chicago

Sun-Times, Inc., ABC, Inc., WLS Television, Inc., CBS

Broadcasting, Inc., Simon & Schuster, Inc., the Chicago Reader, Inc.,

Crain Communications, Inc., the Copley Press, Inc., and the Illinois

Broadcasters Association to file an amicus curiae brief in support of

defendants. 155 Ill. 2d R. 345. We allowed AIDA, Inc., to file an

amicus curiae brief in support of Tuite. 155 Ill. 2d R. 345.

II. ANALYSIS

Tuite argues that the appellate court erred in finding the

statements in Double Deal capable of a reasonable innocent

construction. Tuite also urges this court to abandon the innocent

construction rule and replace it with the “reasonable construction

rule.” Based on these contentions, Tuite seeks reinstatement of his

claims of defamation per se and false light invasion of privacy. Tuite

does not challenge the dismissal of his claim of intentional infliction of

emotional distress. We will first consider Tuite’s argument that the

innocent construction rule should be abandoned.

A. The Innocent Construction Rule

A statement is defamatory if it tends to harm a person’s reputation

to the extent that it lowers that person in the eyes of the community

or deters others from associating with that person. Solaia Technology,

LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 579 (2006).

Statements may be considered defamatory per se or defamatory per

quod. Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 10 (1992).

A statement is defamatory per se if its defamatory character is obvious

and apparent on its face and injury to the plaintiff’s reputation may be

presumed. Owen v. Carr, 113 Ill. 2d 273, 277 (1986). In a defamation

per quod action, damage to the plaintiff’s reputation is not presumed.

Rather, the plaintiff must plead and prove special damages to recover.

Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 103

(1996). Here, plaintiff only alleges a claim of defamation per se.

In Illinois, there are five categories of statements that are

defamatory per se: (1) statements imputing the commission of a crime;

(2) statements imputing infection with a loathsome communicable

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disease; (3) statements imputing an inability to perform or want of

integrity in performing employment duties; (4) statements imputing a

lack of ability or that otherwise prejudice a person in his or her

profession or business; and (5) statements imputing adultery or

fornication. Solaia Technology, 221 Ill. 2d at 579-80, citing Van

Horne v. Muller, 185 Ill. 2d 299, 307 (1998). However, even if a

statement falls into one of the categories of words that are defamatory

per se, it will not be actionable per se if it is reasonably capable of an

innocent construction. Bryson, 174 Ill. 2d at 90.

The innocent construction rule originated in Illinois from obiter

dictum in John v. Tribune Co., 24 Ill. 2d 437 (1962). See Chapski v.

Copley Press, 92 Ill. 2d 344, 347 (1982), citing Valentine v. North

American Co. for Life & Health Insurance, 60 Ill. 2d 168, 172 (1974)

(Ward, J., dissenting, joined by Underwood, C.J., and Schaefer, J.).

In John, this court stated:

“We further believe the language in defendant’s articles is

not libelous of plaintiff when the innocent construction rule is

consulted. That rule holds that the article is to be read as a

whole and the words given their natural and obvious meaning,

and requires that words allegedly libelous that are capable of

being read innocently must be so read and declared

nonactionable as a matter of law.” John, 24 Ill. 2d at 442.

Twenty years after John was decided, this court reconsidered the

innocent construction rule in Chapski. We acknowledged that the rule

had “been applied in dozens of appellate court cases, but in something

less than a completely uniform fashion [citations] and often over

vigorous objections concerning its application or whether it continues

to be a fair statement of the law.” Chapski, 92 Ill. 2d at 348. We also

noted that application of the rule had not been entirely consistent in

this court and that the rule had been subject to much critical

commentary. Chapski, 92 Ill. 2d at 349. We further recognized that

the innocent construction rule, or a variation of that rule, was

recognized in only a few states. Chapski, 92 Ill. 2d at 349 (citing

Monnin v. Wood, 86 N.M. 460, 525 P.2d 387 (1974), Walker v.

Kansas City Star Co., 406 S.W.2d 44 (Mo. 1966), Steffes v.

Crawford, 143 Mont. 43, 386 P.2d 842 (1963), Becker v. Toulmin,

165 Ohio St. 549, 138 N.E.2d 391 (1956), and Tulsa Tribune Co. v.

Kight, 174 Okla. 359, 50 P.2d 350 (1935)).

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We observed that one of the early justifications for the rule was

that it mitigated the harshness of strict liability that existed in

defamation law prior to Gertz v. Robert Welch, Inc., 418 U.S. 323, 41

L. Ed. 2d 789, 94 S. Ct. 2997 (1974). Chapski, 92 Ill. 2d at 350. The

strongest rationale for the rule, however, was that it comported with

the constitutional interests of free speech and free press and

encouraged the robust discussion of daily affairs. Chapski, 92 Ill. 2d

at 350, citing Dauw v. Field Enterprises, Inc., 78 Ill. App. 3d 67, 71

(1979). The primary criticism of the rule was that courts had a

tendency to strain to find an unnatural innocent meaning for a

statement when an innocent construction was clearly unreasonable and

a defamatory meaning was far more probable. Chapski, 92 Ill. 2d at

350-51.

This court concluded that a modification of the innocent

construction rule was warranted “[g]iven the inconsistencies,

inequities and confusion that are now apparent from the

interpretations and applications of the rule as originally announced in

John, and the broader protections that now exist to protect first

amendment interests [citations], together with the availability of the

various privileges [citations].” Chapski, 92 Ill. 2d at 351-52. This

court, therefore, held that:

“[A] written or oral statement is to be considered in context,

with the words and the implications therefrom given their

natural and obvious meaning; if, as so construed, the statement

may reasonably be innocently interpreted or reasonably be

interpreted as referring to someone other than the plaintiff it

cannot be actionable per se.” Chapski, 92 Ill. 2d at 352.

This preliminary determination is a question of law to be resolved by

the court; whether the statement was in fact understood to be

defamatory or to refer to the plaintiff is a question for the jury if the

initial determination is resolved in the plaintiff’s favor. Chapski, 92 Ill.

2d at 352, citing Troman v. Wood, 62 Ill. 2d 184, 189 (1975).

This court addressed the innocent construction rule again in

Mittleman v. Witous, 135 Ill. 2d 220, 232 (1989), observing that “the

law of defamation in general–and the innocent construction rule in

particular–has spawned a morass of case law in which consistency and

harmony have long ago disappeared.” Nevertheless, we did not

abandon the innocent construction rule. Instead, we clarified that

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courts should not balance a reasonable innocent construction of a

statement with a reasonable defamatory construction. Mittleman, 135

Ill. 2d at 232. Rather, statements reasonably capable of an innocent

construction should be interpreted as nondefamatory. Mittleman, 135

Ill. 2d at 232. This court also held that the innocent construction rule

applies only to per se actions. Mittleman, 135 Ill. 2d at 232. We

acknowledged that the innocent construction rule favors defendants

in per se actions, but found the tougher standard warranted in those

cases because damages are presumed. Mittleman, 135 Ill. 2d at 234.

Subsequently, in Bryson, this court stressed that “[o]nly

reasonable innocent constructions will remove an allegedly

defamatory statement from the per se category.” (Emphasis in

original.) Bryson, 174 Ill. 2d at 90, citing Kolegas, 154 Ill. 2d at 11;

Costello v. Capital Cities Communications, Inc., 125 Ill. 2d 402

(1988). We further explained that:

“In applying the innocent construction rule, courts must give

the allegedly defamatory words their natural and obvious

meaning. [Citations.] Courts must therefore interpret the

allegedly defamatory words as they appeared to have been

used and according to the idea they were intended to convey

to the reasonable reader. [Citation.] When a defamatory

meaning was clearly intended and conveyed, this court will not

strain to interpret allegedly defamatory words in their mildest

and most inoffensive sense in order to hold them nonlibellous

under the innocent construction rule.” Bryson, 174 Ill. 2d at

93.

Thus, the innocent construction rule does not require courts to

strain to find an unnatural innocent meaning for a statement when a

defamatory meaning is far more reasonable. Bryson, 174 Ill. 2d at 94.

The rule also does not require courts “to espouse a naïveté

unwarranted under the circumstances.” Bryson, 174 Ill. 2d at 94.

It is apparent that the innocent construction rule has been clarified

on several occasions by this court in response to difficulties in

application. Notably, the rule has been retained despite those

difficulties and is now well established, with a long history in this

state. Tuite’s request that we abandon the innocent construction rule

necessarily implicates principles of stare decisis.

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The doctrine of stare decisis expresses the policy of courts to

stand by precedent and to avoid disturbing settled points. People v.

Sharpe, 216 Ill. 2d 481, 519 (2005), quoting Vitro v. Mihelcic, 209

Ill. 2d 76, 81-82 (2004). This doctrine ensures that the law will not

change erratically, but will develop in a principled and intelligible

fashion. Sharpe, 216 Ill. 2d at 519, quoting Vitro, 209 Ill. 2d at 81-82.

Stare decisis allows the people and the bar of this state to rely upon

the decisions of this court with assurance that they will not be lightly

overruled. Sharpe, 216 Ill. 2d at 519, quoting Vitro, 209 Ill. 2d at 81-

82. Thus, any departure from stare decisis must be specially justified.

Sharpe, 216 Ill. 2d at 520, quoting Vitro, 209 Ill. 2d at 81-82.

Prior decisions of this court should not be overruled absent good

cause or compelling reasons. Sharpe, 216 Ill. 2d at 520, quoting Vitro,

209 Ill. 2d at 81-82. This court will not depart from precedent merely

because the court might have decided otherwise if the question were

a new one. Sharpe, 216 Ill. 2d at 520, quoting Vitro, 209 Ill. 2d at 81-

82. A settled rule of law that does not contravene a statute or

constitutional principle should, therefore, be followed unless serious

detriment prejudicial to public interests is likely to result. Sharpe, 216

Ill. 2d at 520, quoting Vitro, 209 Ill. 2d at 81-82. Good cause to

depart from stare decisis also exists when governing decisions are

unworkable or are badly reasoned. Sharpe, 216 Ill. 2d at 520, citing

People v. Jones, 207 Ill. 2d 122, 134 (2003).

Tuite argues that this court should abandon the innocent

construction rule for several reasons. First, Tuite asserts that the rule

has been rejected in most other jurisdictions and that there is no sound

policy reason to retain it. Tuite also argues that various protections

and privileges have developed rendering the rule unnecessary. Tuite

further contends that the innocent construction rule improperly

eliminates the role of the jury in determining whether a statement has

a defamatory meaning. According to Tuite, if the trial court finds there

is no reasonable innocent construction for a statement, the plaintiff

should then be entitled to a judgment as a matter of law because no

jury could reasonably find the statement nondefamatory. Tuite also

argues that the rule cannot be reconciled with the standards to be

applied to a section 2–615 motion to dismiss. Tuite asserts that,

contrary to section 2–615, the innocent construction rule requires the

factual allegations and inferences surrounding the statement to be

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viewed in a light most favorable to the defendant because any

reasonable innocent construction must be accepted even if a more

reasonable defamatory construction exists. Lastly, Tuite argues that

despite the efforts in Chapski and Bryson to clarify the rule, it

continues to be misapplied by Illinois courts.

Based on these arguments, Tuite asks this court to abandon the

innocent construction rule and adopt the “reasonable construction

rule” in its place. Tuite asserts that the reasonable construction rule,

applied in a majority of jurisdictions, strikes the proper balance by

requiring the trial court to determine whether the disputed statement

is reasonably capable of a defamatory construction. If the statement

is reasonably capable of a defamatory construction, the jury decides

whether it was intended or understood to be defamatory. Tuite argues

that the reasonable construction rule insulates the judicial system from

frivolous claims without eliminating the role of the jury.

In Chapski, this court considered many of the objections to the

innocent construction rule that are now raised by Tuite. We

acknowledged that the innocent construction rule, or a variation

thereof, was recognized in only a few states. See Chapski, 92 Ill. 2d

at 349. We also considered “the broader protections that now exist to

protect first amendment interests [citations] together with the

availability of the various privileges.” Chapski, 92 Ill. 2d at 351 (citing

New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84

S. Ct. 710 (1964), Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L.

Ed. 2d 789, 94 S. Ct. 2997 (1974), Colson v. Stieg, 89 Ill. 2d 205,

209 (1982), Blair v. Walker, 64 Ill. 2d 1 (1976), Farnsworth v.

Tribune Co., 43 Ill. 2d 286 (1969), Zienfeld v. Hayes Freight Lines,

Inc., 41 Ill. 2d 345 (1968), Catalano v. Pechous, 83 Ill. 2d 146, 167-

68 (1980), and Restatement (Second) of Torts §§ 583 through 613

(1977)). We, nevertheless, chose only to modify the rule in light of

these considerations rather than abandon it. Chapski, 92 Ill. 2d at 351-

52.

Tuite cites three cases that were decided after Chapski in support

of his argument that new protections have rendered the innocent

construction rule unnecessary. Tuite asserts that Milkovich v. Lorain

Journal Co., 497 U.S. 1, 111 L. Ed. 2d 1, 110 S. Ct. 2695 (1990),

held a defamatory statement must be factual rather than mere

hyperbole or unverifiable opinion to be actionable. The Supreme

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Court, however, previously stated in Gertz that expressions of opinion

are constitutionally protected. The Court asserted that “[h]owever

pernicious an opinion may seem, we depend for its correction not on

the conscience of judges and juries but on the competition of other

ideas.” Gertz, 418 U.S. at 339-40, 41 L. Ed. 2d at 805, 94 S. Ct. at

3007. In Milkovich, the Court clarified that there is no artificial

distinction between opinion and fact, and that a false assertion of fact

can be defamatory even if it is couched in terms of an opinion. Bryson,

174 Ill. 2d at 99-100, citing Milkovich, 497 U.S. at 18-19, 111 L. Ed.

2d at 17-18, 110 S. Ct. at 2705-06. Under Milkovich, a statement is

constitutionally protected only if it cannot be reasonably construed as

stating actual facts. Bryson, 174 Ill. 2d at 100, quoting Milkovich, 497

U.S. at 20, 111 L. Ed. 2d at 19, 110 S. Ct. at 2706. Nonetheless, the

constitutional protection of statements of opinion was recognized in

Gertz. See Solaia Technology, 221 Ill. 2d at 581 (quoting Gertz as

support for the proposition that a statement may be constitutionally

protected as an expression of opinion). In Chapski, this court

considered the “broader protections” provided in Gertz in modifying

the innocent construction rule. Chapski, 92 Ill. 2d at 351-52.

Tuite also cites Kuwik v. Starmark Star Marketing &

Administration, Inc., 156 Ill. 2d 16, 24 (1993), for the proposition

that qualified privileges protect defamation defendants from liability

even when the allegedly defamatory statement is untrue. But in

Chapski this court considered the availability of various qualified

privileges in deciding to modify the innocent construction rule.

Chapski, 92 Ill. 2d at 351. Thus, the existence of qualified privileges

does not support a decision to abandon the rule now.

In addition, Tuite notes that defamation plaintiffs must prove that

defamatory speech is false when seeking damages against a media

defendant for speech that is of public concern. Philadelphia

Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77, 89 L. Ed. 2d 783,

793, 106 S. Ct. 1558, 1564 (1986). This constitutional protection was

not considered in Chapski. Tuite, however, does not specifically

explain how this protection replaces the function served by the

innocent construction rule.

As previously noted, the innocent construction rule applies only

to per se actions. Mittleman, 135 Ill. 2d at 232. While the rule favors

defendants, the tougher standard is warranted because damages are

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presumed in per se actions. Mittleman, 135 Ill. 2d at 234. We are not

persuaded that the constitutional protections and privileges cited by

Tuite supplant the innocent construction rule. We therefore reject

Tuite’s argument that the innocent construction rule should be

abandoned on this basis.

As for Tuite’s argument that the innocent construction rule

eliminates the jury’s role in determining the meaning of a statement,

this court addressed that claim in Chapski. We held that the

preliminary determination of whether a statement is capable of a

reasonable innocent construction is a question of law to be resolved

by the court in the first instance. Chapski, 92 Ill. 2d at 352. Whether

the statement was in fact understood to be defamatory is a question

for the jury if the initial determination is resolved in the plaintiff’s

favor. Chapski, 92 Ill. 2d at 352. Thus, the innocent construction rule

does not eliminate the role of the jury as Tuite claims. This argument

does not provide good cause or a compelling reason for this court to

depart from stare decisis.

We also observe no conflict between the innocent construction

rule and the standards applied to a section 2–615 motion to dismiss.

A section 2–615 motion to dismiss attacks the legal sufficiency of a

complaint based on facial defects. City of Chicago v. Beretta U.S.A.

Corp., 213 Ill. 2d 351, 364 (2004). All well-pleaded facts and

reasonable inferences that can be drawn from those facts are accepted

as true. Bryson, 174 Ill. 2d at 86. The court is to interpret the

allegations in the complaint in the light most favorable to the plaintiff.

Wakulich v. Mraz, 203 Ill. 2d 223, 228 (2003). A cause of action

should not be dismissed under section 2–615 unless it is clear that no

set of facts can be proved under the pleadings that would entitle the

plaintiff to recover. Canel v. Topinka, 212 Ill. 2d 311, 318 (2004).

In considering a section 2–615 motion to dismiss a defamation per

se claim, the court must accept as true the facts alleged in the

complaint, including the defendant’s publication of a statement. The

court is not, however, required to accept the plaintiff’s interpretation

of the disputed statement as defamatory per se. The meaning of the

disputed statement is not a fact that can be alleged and accepted as

true. Thus, the preliminary construction of the statement “is properly

a question of law to be resolved by the court in the first instance.”

Chapski, 92 Ill. 2d at 352. In construing the statement under the

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innocent construction rule, the court must “give the allegedly

defamatory words their natural and obvious meaning” and interpret

them “as they appeared to have been used and according to the idea

they were intended to convey to the reasonable reader.” Bryson, 174

Ill. 2d at 93. Contrary to Tuite’s contention, in applying the rule the

court does not construe the factual allegations in the light most

favorable to the defendant. Rather, the court determines the legal

question of the preliminary construction of the statement. We,

therefore, find no conflict between the innocent construction rule and

section 2–615.

Tuite’s final contention in support of his argument that the

innocent construction rule should be abandoned is that the rule

continues to be misapplied. Since the rule was last clarified in Bryson,

the appellate court has applied it in several cases. Tuite has not

identified any specific case since Bryson that he claims misapplied the

rule. We note that this court did find the appellate court erred in

applying the innocent construction rule in one recent case. See Solaia

Technology, 221 Ill. 2d at 582-83. That does not provide a basis for

finding the rule unworkable, however, because any rule of law is

subject to occasional misapplication. In Bryson, decided just 10 years

ago, this court chose to clarify the innocent construction rule rather

than to abandon it. We will not now abandon the rule as unworkable

absent evidence that it has been subject to more than an occasional

misapplication following its clarification.

In sum, this court has held that the innocent construction rule

advances the constitutional interests of free speech and free press and

encourages the robust discussion of daily affairs. Chapski, 92 Ill. 2d

at 350, citing Dauw, 78 Ill. App. 3d at 71. The rule applies only to

claims of defamation per se, and it is justified due to the presumption

of damages. Mittleman, 135 Ill. 2d at 234. A plaintiff can always

avoid application of the innocent construction rule by seeking to

establish a per quod action. Mittleman, 135 Ill. 2d at 233. We

conclude that the rationale underlying the rule remains valid. Tuite has

not established the good cause or compelling reason required for this

court to depart from stare decisis. Accordingly, we reject Tuite’s

request to abandon the innocent construction rule.

-15-

B. Application of the Innocent Construction Rule

Tuite argues that the appellate court erred in finding that the

disputed statements are capable of a reasonable innocent construction.

As previously noted, the preliminary construction of an allegedly

defamatory statement is a question of law. Chapski, 92 Ill. 2d at 352.

Accordingly, our review is de novo. Woods v. Cole, 181 Ill. 2d 512,

516 (1998), citing Lucas v. Lakin, 175 Ill. 2d 166, 171 (1997).

In considering allegedly defamatory statements under the innocent

construction rule, we reemphasize that courts must interpret the

words “as they appeared to have been used and according to the idea

they were intended to convey to the reasonable reader.” Bryson, 174

Ill. 2d at 93. Courts are not required to strain to find an unnatural

innocent meaning for words when a defamatory meaning is far more

reasonable. Bryson, 174 Ill. 2d at 94. Thus, if the likely intended

meaning of a statement is defamatory, a court should not dismiss the

plaintiff’s claim under the innocent construction rule. In those

circumstances, an innocent construction of the statement would

necessarily be strained and unreasonable because the likely intended

meaning is defamatory. We also note that the innocent construction

rule does not require courts “to espouse a naïveté unwarranted under

the circumstances.” Bryson, 174 Ill. 2d at 94.

Additionally, this court has emphasized that the context of a

statement is critical in determining its meaning. See Bryson, 174 Ill. 2d

at 93-94; Mittelman, 135 Ill. 2d at 247-48. A given statement may

convey entirely different meanings when presented in different

contexts. Thus, the innocent construction rule requires a writing “to

be read as a whole.” John, 24 Ill. 2d at 442. In this case, we must

consider the entire book in determining the context of the allegedly

defamatory statements. See Flip Side, Inc. v. Chicago Tribune Co.,

206 Ill. App. 3d 641, 651 (1990).

Double Deal is essentially a series of stories about mafia figures

and their activities. A review of the book shows its context is

organized crime and corruption in the Chicago area and Corbitt’s

involvement in those activities. As Tuite asserts, the book “recounts

story after story of corruption, including within the judicial system.”

The disputed statements must be viewed in the context of the

corruption described repeatedly throughout Double Deal.

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Given the overwhelming focus on corruption in this book, these

statements cannot reasonably be given an innocent construction. In the

excerpt, defendants asserted that “the FBI had uncovered tons of

evidence,” and three of the key witnesses “knew enough to bury just

about everybody who was anybody in the Outfit.” Defendants asserted

that additional witnesses were “flipping left and right” and “[i]t was

pretty clear that the Chicago Outfit was going to take a major hit.”

These statements, if accurate, indicate that the evidence against

Aiuppa and his codefendants was extremely strong.

According to the book, Tuite was then paid $1 million in cash to

represent Aiuppa and his codefendants. After Tuite was hired, “all the

guys were sort of semijubilant,” they believed Tuite “had it all

handled,” and “it was like it was a done deal, like they were all going

to be acquitted.” In fact, Aiuppa and his codefendants were so

confident that they would be acquitted in spite of the compelling

evidence of their guilt that they were preparing to celebrate while

waiting for the verdict. In the context of this book about crime and

widespread corruption, these statements naturally indicate that Tuite

was expected to engage in bribery or payoffs to secure the acquittals.

We agree with Justice Wolfson that “[t]he clear message is that Tuite

was ready and able to fix the case, that he was paid to fix it, and that

he did not deliver, something that should have caused a premature end

to his life.” 358 Ill. App. 3d at 901 (Wolfson, J., specially concurring

in part and dissenting in part).

Defendants, nonetheless, argue that terms such as “better

representation,” “retainer,” “defense money,” and “legal fees” in the

excerpt indicate that Tuite was hired to provide legitimate legal

services rather than to pay bribes. Defendants maintain that it is

reasonable to accept the innocent construction that Tuite was hired on

the basis of his legal skills. We disagree. The isolated use of those

terms does not control the meaning of the excerpt. The context of the

book as a whole significantly colors those terms. Importantly, this

book is not about hiring a lawyer or complimenting Tuite’s skills as an

attorney. The book is a series of stories about corruption, including

corruption within the judicial system. It is not reasonable to believe

defendants intended to convey a story about Tuite’s trial skills given

the context of the book as a whole. It is far more reasonable to believe

defendants intended to convey a story about corruption.

-17-

Defendants further argue that they explicitly accused other people

of criminal misconduct in the book. Tuite, however, was not explicitly

accused of bribing officials or any other criminal act. Defendants,

therefore, contend that the excerpt is capable of a reasonable innocent

construction.

We agree that Tuite was not explicitly accused of bribing officials

in the excerpt. The excerpt, however, indicates that Aiuppa and his

codefendants were facing virtually insurmountable evidence in their

pending criminal trial. Nevertheless, after allegedly paying Tuite $1

million in cash from their illegal “skim,” the criminal defendants

considered their acquittals to be “a done deal.” The question naturally

arises as to how Tuite would ensure acquittals with certainty despite

the “tons of evidence” against the criminal defendants. Although the

book does not explicitly describe bribery as the means of achieving

that result, it also does not mention or describe Tuite’s trial skills as

the basis for the criminal defendants’ confidence in their acquittals.

Based on the wording of the excerpt along with the context of the

book as a whole, we believe that a reasonable reader would most

likely conclude this passage was intended to allude to bribery and

corruption of the judicial system. A reasonable reader would likely

conclude that the delivery of $1 million in cash in illegally obtained

funds was not solely for legitimate legal fees, but was, at least in part,

to be used for bribes and payoffs to ensure the acquittals. There is

simply no basis for a reasonable reader to believe that defendants

implicitly intended to compliment Tuite’s trial skills in the middle of

a book about organized crime and corruption.

As noted, we will not strain to find an innocent meaning for words

when a defamatory construction is far more reasonable. Bryson, 174

Ill. 2d at 94. We conclude that a defamatory construction of the

disputed statements is far more reasonable than any innocent

construction. An innocent construction is incompatible with the

description of the events leading up to and following Tuite’s hiring, as

well as the events chronicled in the remainder of the book. Any

innocent construction of these statements would be strained and

unreasonable. See Bryson, 174 Ill. 2d at 94. Accordingly, we conclude

that the appellate court erred in finding the disputed statements

capable of a reasonable innocent construction.

Finally, Tuite’s false light invasion of privacy claim was based

upon the defamatory per se nature of the statements. The appellate

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court held that the failure of Tuite’s defamation per se claim required

the dismissal of his false light claim. 358 Ill. App. 3d at 899. Because

we reverse the dismissal of Tuite’s defamation per se claim, it follows

that the dismissal of his false light invasion of privacy claim must also

be reversed.

III. CONCLUSION

For the foregoing reasons, we reverse the judgment of the

appellate court and the circuit court and remand this matter to the

circuit court for further proceedings consistent with this opinion.

Reversed and remanded.

CHIEF JUSTICE THOMAS and JUSTICE BURKE took no part

in the consideration or decision of this case.

JUSTICE FREEMAN, concurring in part and dissenting in part:

I agree with the majority that it is appropriate to reverse the circuit

court’s order dismissing the case. However, I would arrive at that

conclusion by a different route than the majority, because I

respectfully dissent from that portion of the majority opinion which

reaffirms the “innocent construction rule.”

While I strongly believe in the doctrine of stare decisis, I do not

believe its application in this case is proper for several reasons. First,

the innocent construction rule is, in my view, out of step with the first

amendment jurisprudence of the United States Supreme Court.

Second, I find compelling plaintiff’s arguments–which I do not believe

this court ever to have addressed–that the innocent construction rule

is inherently flawed. The fact that the rule has been rejected by an

overwhelming majority of jurisdictions reinforces my belief. This

court’s own inconsistent application of the rule also demonstrates the

flaws inherent therein, and suggests that the need exists for this court

to revisit the question of the rule’s continued place in our case law.

To my mind, these facts together constitute sufficient cause for

stare decisis to yield. Stare decisis is a valid and useful rule of thumb,

but as we have long acknowledged, it is not an “inexorable

command.” Chicago Bar Ass’n v. Illinois State Board of Elections,

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161 Ill. 2d 502, 510 (1994). Rather, it is a means to the end of

“ensur[ing] that the law will not merely change erratically, but will

develop in a principled and intelligible fashion.” Chicago Bar Ass’n,

161 Ill. 2d at 510. Prior decisions should not be overruled absent

“good cause” (Moehle v. Chrysler Motors Corp., 93 Ill. 2d 299, 304

(1982)), but good cause exists when the prior decision in question

proves to be unworkable or badly reasoned (People v. Sharpe, 216 Ill.

2d 481, 520 (2005), citing People v. Jones, 207 Ill. 2d 122, 134

(2003)). Nor, we have noted, does it do violence to stare decisis to

overrule a prior decision which the court has been quietly disavowing

since its inception. See People v. Mitchell, 189 Ill. 2d 312, 339 (2000)

(“ ‘explicitly overruling [a prior decision] is not an “erratic” change in

the law. In the eighteen years since [that case], every case interpreting

[it], including today’s majority opinion, has eroded its holding. I

would merely make explicit what this court has done implicitly for the

last eighteen years’ ”), quoting McMahan v. Industrial Comm’n, 183

Ill. 2d 499, 518 (1998) (Heiple, J., specially concurring).

A brief review of the history of the innocent construction rule is

in order. We initially adopted the rule in 1964, in John v. Tribune Co.,

24 Ill. 2d 437 (1962). There, we stated in “obiter dictum” (Chapski

v. Copley Press, 92 Ill. 2d 344, 347-48 (1982)) that

“the language in defendant’s articles is not libelous of

plaintiff when the innocent construction rule is consulted. That

rule holds that the article is to be read as a whole and the

words given their natural and obvious meaning, and requires

that words allegedly libelous that are capable of being read

innocently must be so read and declared nonactionable as a

matter of law.” John, 24 Ill. 2d at 442.

We did not offer any rationale for adopting the rule, despite the fact

that we had made Illinois an outlier by doing so. See, e.g., Comment,

The Illinois Doctrine of Innocent Construction: A Minority of One,

30 U. Chi. L. Rev. 524 (1963). Commentators subsequently

recognized that the rule could have the beneficial effect of mitigating

the doctrine of strict liability in the law of defamation (30 U. Chi. L.

Rev. at 538-39), but that doctrine was abolished 10 years after John,

over 30 years prior to the present day. Chapski, 92 Ill. 2d at 350,

citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789,

94 S. Ct. 2997 (1974).

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Approximately 20 years after John, this court decided Chapski.

There, we debated whether to persist with the innocent construction

rule. Recognizing that the rule had been applied in wildly divergent

ways by our appellate court, the strongest argument this court could

muster in defense of the innocent construction rule was “that it

comports with the constitutional interests of free speech and free press

and encourages the robust discussion of daily affairs.” Chapski, 92 Ill.

2d at 350, citing Dauw v. Field Enterprises, Inc., 78 Ill. App. 3d 67,

71 (1979). Nevertheless, we also acknowledged in Chapski that since

John had been decided, there had come broader general protection for

first amendment interests. Chapski, 92 Ill. 2d at 351 (citing Gertz v.

Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997

(1974), and New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed.

2d 686, 84 S. Ct. 710 (1964) (abolishing doctrine of strict liability for

both private and public plaintiffs, respectively)). We also recognized

the existence of “various privileges” protective of free speech.

Chapski, 92 Ill. 2d at 351 (citing Colson v. Stieg, 89 Ill. 2d 205, 209

(1982), Catalano v. Pechous, 83 Ill. 2d 146, 167-68 (1980), Blair v.

Walker, 64 Ill. 2d 1 (1976), Farnsworth v. Tribune Co., 43 Ill. 2d 286

(1969), Zeinfeld v. Hayes Freight Lines, Inc., 41 Ill. 2d 345 (1968),

and Restatement (Second) of Torts §§583 through 613 (1977)). We

accordingly concluded that the rule’s protection was sufficiently less

compelling that we could modify the rule as announced in John to

clarify that

“a written or oral statement is to be considered in context,

with the words and the implications therefrom given their

natural and obvious meaning; if, as so construed, the statement

may reasonably be innocently interpreted or reasonably be

interpreted as referring to someone other than the plaintiff it

cannot be actionable per se. This preliminary determination is

properly a question of law to be resolved by the court in the

first instance; whether the publication was in fact understood

to be defamatory or to refer to the plaintiff is a question for

the jury should the initial determination be resolved in favor of

the plaintiff.” Chapski, 92 Ill. 2d at 352, citing Troman v.

Wood, 62 Ill. 2d 184, 189 (1975).

We have applied the rule numerous times since Chapski but have

never since explicitly modified it. See, e.g., Solaia Technology, LLC

v. Specialty Publishing Co., 221 Ill. 2d 558 (2006); Bryson v. News

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America Publications, Inc., 174 Ill. 2d 77, 90, 93 (1996); Kolegas v.

Heftel Broadcasting Corp., 154 Ill. 2d 1, 11 (1992); Mittelman v.

Witous, 135 Ill. 2d 220 (1989); Costello v. Capital Cities

Communications, Inc., 125 Ill. 2d 402 (1988). Nor have we, since

Chapski, expressly addressed any challenge to the rule, so far as I am

aware.

The first reason that I believe stare decisis must yield in this case

is that the innocent construction rule is out of step with United States

Supreme Court precedent involving defamation and the first

amendment’s protection of free speech. It is outdated. That is not to

say that “robust discussion of daily affairs” (Chapski, 92 Ill. 2d at 350)

has become passé, but as the Supreme Court has long recognized, free

speech is not the only societal interest at issue in defamation actions.

“If it were, this Court would have embraced long ago the view that

publishers and broadcasters enjoy an unconditional and indefeasible

immunity from liability for defamation.” Gertz, 418 U.S. at 341, 41 L.

Ed. 2d at 806, 94 S. Ct. at 3007. Rather, that interest is in tension

with the individual’s interest in maintaining his good name against

defamatory falsehood. Gertz, 418 U.S. at 341, 41 L. Ed. 2d at 806, 94

S. Ct. at 3008. Thus, the simple fact that the innocent construction

rule favors free speech (see slip op. at 15, citing Chapski, 92 Ill. 2d at

350) is not sufficient reason to prefer it.

Moreover, as first amendment jurisprudence has evolved, the

United States Supreme Court has provided a great deal of additional

protection to free speech which did not exist at the time of John or

Chapski. Sullivan and Gertz were, of course, landmark cases in

defamation law which were decided after John but before Chapski.

They did away with the doctrine of strict liability in defamation

actions, and we took them into account when we modified the rule in

Chapski. See Chapski, 92 Ill. 2d at 351. But the Court has announced

numerous significant decisions since Chapski, as plaintiff notes in his

brief to this court. For instance, the Court has ruled that when the

speech at issue concerns a matter of public importance, the burden is

on the plaintiff to prove the speech false (rather than truth being an

affirmative defense which the defendant must raise and prove) even

when the plaintiff is not a public figure. Philadelphia Newspapers,

Inc. v. Hepps, 475 U.S. 767, 776, 89 L. Ed. 2d 783, 792, 106 S. Ct.

1558, 1563 (1986). The Court has erected an absolute bar to recovery

for any speech which cannot “reasonably have been interpreted as

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stating actual facts” about a public figure. Hustler Magazine v.

Falwell, 485 U.S. 46, 50, 99 L. Ed. 2d 41, 48, 108 S. Ct. 876, 879

(1988). And, as the majority recognizes, Milkovich v. Lorain Journal

Co., 497 U.S. 1, 111 L. Ed. 2d 1, 110 S. Ct. 2695 (1990), wrought

yet another change in defamation law. There, the Court disavowed the

statement in Gertz that “[h]owever pernicious an opinion may seem,

we depend for its correction not on the conscience of judges and juries

but on the competition of other ideas” (see Gertz, 418 U.S. at 339-40,

41 L. Ed. 2d at 805, 94 S. Ct. at 3007) as mere “dictum” which was

not “intended to create a wholesale defamation exemption for

anything that might be labeled ‘opinion.’ ” Milkovich, 497 U.S. at 18,

111 L. Ed. 2d at 17, 110 S. Ct. at 2705. Rather, Milkovich clarified,

the question is whether the statement is “provable as false,” at least

with respect to speech on matters of public concern involving a media

defendant. Milkovich, 497 U.S. at 19-20, 111 L. Ed. 2d at 18, 110 S.

Ct. at 2706.

A comprehensive dissertation on defamation law since 1964 is

well beyond the scope of this partial dissent. But what is apparent

even from the above cursory survey is that a number of factors come

into play in balancing free speech concerns against the rights of the

individual against defamation. The calculus turns on such variables as

whether the plaintiff is a public figure, whether defendant is a member

of the media, and the degree of public interest in the subject matter of

the allegedly defamatory speech at issue. Although some of these

permutations had been settled at the time Chapski was decided, not all

had.

What is further apparent is that the innocent construction rule is

blind to all of the above distinctions. We have applied the rule when

the defendant is a member of the media (Solaia Technology, 221 Ill.

2d 558 (trade magazine); Bryson, 174 Ill. 2d 77 (national magazine))

and when the defendant is a private individual (Mittelman, 135 Ill. 2d

220 (member of board of directors of plaintiff’s law firm)). The rule

is in equal force when the plaintiffs are public figures (Catalano v.

Pechous, 83 Ill. 2d 146 (1980) (city aldermen)) and when the plaintiff

is a private individual (Bryson, 174 Ill. 2d 77 (private individual living

in a small town in southern Illinois)). Nor does my review of our case

law evince any attempt to take into account the degree of public

interest in the subject matter of the speech at issue. The rule is wholly

insensitive to the complex context-sensitive balance between the

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public’s interest in free speech and the individual’s interest in his good

name, unsullied by falsehood. So far as I can see, the innocent

construction rule is nothing more than a thumb on the scale on the

side of the defendant in every per se defamation case. It is out of step

with the delicate balances inherent in defamation law and this alone

constitutes sufficient reason to overrule it, stare decisis

notwithstanding.

My second basis for finding cause to depart from stare decisis

deals with the very operation of the innocent construction rule. Not

only is it out of step with defamation law generally–a sledgehammer

where a scalpel is called for–it is intrinsically logically flawed and

inconsistent with our general standards applicable at the dismissal

stage of lawsuits. The majority purports to address these concerns, but

I believe it falls short.

Plaintiff argues that by its terms, the innocent construction rule

does away with the role of the jury, and he is correct. According to

the rule, at the dismissal stage, the court must answer the threshold

question of whether, as a matter of law, a statement can reasonably be

read innocently. If the answer is yes–i.e., the statement can be read

innocently–the case never goes to a jury. Only if the answer is no–i.e.,

the statement cannot reasonably be read innocently–does the case

proceed. That is, a jury will only be allowed to decide whether a

statement was actually innocent or defamatory if the court has already

decided as a matter of law that the statement cannot reasonably be

read innocently. Chapski, 92 Ill. 2d at 352. No jury finding in favor

of a defendant should be allowed to stand, given that for the case to

get to the jury, the court must already have found as a matter of law

that the statement cannot reasonably be read innocently.

As plaintiff notes in his brief, commentators have described this

flaw in the rule for decades. Shortly after Chapski, commentators

noted:

“The primary flaw in the innocent construction rule is its

illogical method for determining which statements are to be

nonactionable as a matter of law and which are to be sent to

a jury. Under the rule as applied in John, allegedly defamatory

words capable of being read innocently must be so read and

declared nonactionable by the judge as a matter of law.

Therefore, only those statements which the court determines

are incapable of any innocent construction are to be sent to the

-24-

jury for a determination of whether they were understood to

be defamatory. Under this procedure, however, if a judge

determines that no innocent construction exists, there is

nothing left for the jury to determine. In theory, though

apparently not in actual practice, the plaintiff should then be

entitled to judgment as a matter of law. Alternatively, the

judge should be compelled to enter a directed judgment or

judgment notwithstanding the verdict if the issue is submitted

to the jury and the jury determines otherwise.” L. Malone &

R. Smolla, The Future of Defamation in Illinois after Colson

v. Stieg and Chapski v. Copley Press, Inc., 32 DePaul L. Rev.

219, 277 (1983).

The same fact was observed just prior to Chapski:

“[T]here should never be a jury trial in Illinois on the

nature of the words. For, if the words are reasonably capable

of innocent meaning, the trial judge should dismiss the case.

The only other kind of case will be a situation in which the

words are not capable of any reasonably innocent meaning.

Therefore, the trial judge should enter a judgment for the

plaintiff, at least on the meaning of the words, because no

reasonable jury by definition could ever find the words to be

innocent.” M. Polelle, The Guilt of the “Innocent

Construction Rule” in Illinois Defamation Law, 1 N. Ill. U.

L. Rev. 181, 214 (1981).

Indeed, commentators have been making the same observation since

John:

“If literally applied, [the innocent construction rule] would

seem practically to eliminate the jury from the determination

of the defamatory quality of ambiguous language. If the words

are capable of an innocent construction, the defendant is

entitled to a directed verdict. If there is no innocent

construction that can be derived from the publication then

there is no question of fact as to its defamatory character, and

it should be declared defamatory as a matter of law. Either

way there would be no question to be submitted to the jury.”

30 U. Chi. L. Rev. at 531.

See also R. Smolla, Law of Defamation 2d §4.22, at 4–38.8 (1999)

(noting that the innocent construction rule, “which is often internally

-25-

contradictory, confusing, and on the whole significantly biased in

favor of defendants, has produced some bizarre results, and has come

in for substantial criticism”).

The majority suggests that we answered this objection in Chapski.

See slip op. at 13-14. I respectfully disagree. In Chapski we never

professed to address the argument that the rule did away with the

jury’s role. It is not clear the argument was even raised in the case,

despite the objection having been voiced by commentators since the

rule’s inception. To the contrary, the only argument against the rule

which we acknowledged in Chapski was that when applying it, courts

failed to interpret statements reasonably. Chapski, 92 Ill. 2d at 350-

51. Moreover, even if the argument was raised in Chapski and

rejected sub silentio, the response is that then, as now, a majority of

this court failed to come to grips with the heart of the objection. To

say that the case goes to the jury if it has not been dismissed is

technically true, but the point of the objection is that once a case has

survived dismissal under the innocent construction rule there is

nothing left for the jury to decide, because the court must already

have ruled as a matter of law that it would be unreasonable to

interpret the statements as anything but defamatory.

Plaintiff also argues that the rule is inconsistent with the standards

we otherwise apply at the dismissal stage. Again, plaintiff’s point is

well-taken. As the majority correctly summarizes, at the dismissal

stage “[A]ll well-pleaded facts and reasonable inferences that can be

drawn from those facts are accepted as true.” Moreover, “[t]he court

is to interpret the allegations in the complaint in the light most

favorable to the plaintiff,” dismissing the cause of action only if “it is

clear that no set of facts can be proved under the pleadings that would

entitle the plaintiff to recover.” Slip op. at 14. The majority reasons

that the innocent construction rule is consistent with these principles

because although “the court must accept as true the facts alleged in

the complaint,” the court “is not, however, required to accept the

plaintiff’s interpretation of the disputed statement as defamatory per

se. The meaning of the disputed statement is not a fact that can be

alleged and accepted as true.” (Emphasis in original.) Slip op. at 14.

Rather, the court “ ‘give[s] the allegedly defamatory words their

natural and obvious meaning’ and interprets them ‘as they appeared

to have been used and according to the idea they were intended to

-26-

convey to the reasonable reader.’ ” Slip op. at 14, quoting Bryson,

174 Ill. 2d at 93.

This recitation of the rules ordinarily applicable at the dismissal

stage and what occurs pursuant to the innocent construction rule

seems to me sufficient to demonstrate the incompatibility to which

plaintiff directs our attention. I agree with the majority that it would

be inappropriate to treat the plaintiff’s interpretation of a statement as

a fact which must be assumed to be true. However, if the meaning of

a statement is not a “fact” to be “alleged,” then how is the trial court

to arrive at a conclusion regarding the statement’s meaning? Clearly,

the court must interpret the statement, inferring its meaning from the

context in which it was made. And thus, by the rules the majority

cites, any doubt regarding the statement’s meaning should be resolved

in plaintiff’s favor. See slip op. at 14 ( “All well-pleaded facts and

reasonable inferences that can be drawn from those facts are accepted

as true. [Citation.] The court is to interpret the allegations in the

complaint in the light most favorable to the plaintiff” (emphases

added)). But under the innocent construction rule, no preference is

given for that interpretation of the statement which support’s

plaintiff’s complaint. To the contrary, any doubt about the statement’s

meaning is resolved in the defendant’s favor because if the defendant’s

interpretation of the statement is reasonable, the case is dismissed.

This is not an appropriate standard at the dismissal stage.

To say it another way, the innocent construction rule comes into

play when there are two reasonable ways in which a statement could

be interpreted, one of which is defamatory and one of which is not. In

such a situation, the court is required to dismiss the action rather than

allowing the case to go to the jury. This is clearly different than all

other civil actions, in which, at the dismissal stage, if there are two

reasonable ways to resolve a factual dispute, one favoring plaintiff and

the other favoring defendant, the court must deny the motion to

dismiss, sending the case to the jury to resolve the factual dispute. The

majority’s statement that the rule does not require a court to “construe

the factual allegations in the light most favorable to the defendant” is,

again, technically true but misses the thrust of the argument. A court

does not have to draw inferences in the defendant’s favor, because

according to the innocent construction rule, the entire case must be

decided in defendant’s favor as a matter of law if the defendant’s

position is even reasonable. Plaintiff’s point is that in all cases except

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defamation, the question at the dismissal stage is, Is it reasonably

possible that the plaintiff will be able to prove his case? If so, the case

must proceed. In defamation, by contrast, the question is, Is it

reasonably possible that the plaintiff’s case could fail? If so, the case

must be dismissed without the plaintiff ever having the opportunity to

put his case before a jury of his peers.

By contrast, the reasonable construction rule suffers none of these

defects. Application of the reasonable construction rule requires a

court at the dismissal stage to determine whether there is any

reasonable way to interpret the statement in a defamatory manner. If

the statement can reasonably be so interpreted, the case proceeds, and

the jury must ultimately determine if the statement was actually

defamatory. Only if it is not reasonably possible to interpret the

statement as defamatory is the case dismissed. Slip op. at 12; see also

James v. Gannett Co., 40 N.Y.2d 415, 419, 353 N.E.2d 834, 837-38,

386 N.Y.S.2d 871, 874 (1976). This rule comports with our normal

rules applicable at the dismissal stage, and leaves a question for the

jury to decide if the case does actually go to the jury.

I believe that these inherent flaws in the rule constitute another

sufficient reason to abandon it despite stare decisis. See Sharpe, 216

Ill. 2d at 519; Jones, 207 Ill. 2d at 134 (good cause to overrule a prior

decision exists when the prior decision is unworkable or badly

reasoned). I see no indication that this court has ever considered these

deficiencies in the rule. We certainly did not do so in John, where we

adopted the rule in dictum in one paragraph with no analysis, nor did

we do so in Chapski, where the only challenge we addressed was the

fact that courts applying the rule interpreted statements unreasonably,

nor in any other decision applying the rule. The rule is badly reasoned

and illogical, and should be done away with for this reason alone, let

alone the fact that it is also badly out of step with evolving defamation

and first amendment jurisprudence.

Another virtue of the reasonable construction rule is that it is

followed by the vast majority of jurisdictions. The Restatement and

Dobbs both state simply that it is the judge’s function to determine

whether the words are capable of being understood as defamatory,

and the jury determines whether they were actually defamatory.

Restatement (Second) of Torts §614, at 311 (1977); 2 D. Dobbs,

Torts §404, at 1131 (2001). Neither even mentions another approach.

A leading treatise says that the reasonable construction rule has been

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adopted by “every jurisdiction in the United States save Illinois.” R.

Smolla, Law of Defamation 2d §4.21, at 4–38.5 (1999). But see R.

Sack, Sack on Defamation §2.4.14, at 2–62-2–63 (3d ed. rev. 2004)

(innocent construction rule is the law not only in Illinois but also in

“Ohio and, perhaps, in Missouri, New Mexico, and Montana”). Some

jurisdictions, such as New York, appear always to have followed the

reasonable construction rule (see, e.g., James, 40 N.Y.2d at 419, 353

N.E.2d at 837-38, 386 N.Y.S.2d at 874), while others, such as

California, once followed the innocent construction rule but

abandoned it in favor of the reasonable construction rule (MacLeod

v. Tribune Publishing Co., 52 Cal. 2d 536, 343 P.2d 36 (1959)).

I would not necessarily find our uniqueness alone to be sufficient

reason to abandon our prior precedent. I believe it is no vice to hold

fast to a well-reasoned rule, even if other jurisdictions do not agree.

But in this case, I believe the rule Illinois follows is not well reasoned,

and its almost universal rejection by our sister States tends to support

that view.

Finally, I note that the innocent construction rule has been fraught

with inconsistency since its inception. Our modification of the rule in

Chapski provides one example of this, of course. Moreover, despite

this court’s express statement in Chapski that our holding there

“modified” the rule as announced in John, we have been inconsistent

about whether Chapski did in fact modify the rule. Compare, e.g.,

Bryson, 174 Ill. 2d at 93 (parenthetically characterizing Chapski as

“modifying” John), with Anderson v. Vanden Dorpel, 172 Ill. 2d 399,

416 (1996) (“ ‘it is hardly tenable that prior to Chapski an innocent

construction could be unreasonable. In short, a reasonable innocent

construction was always the mandate of John v. Tribune Co. and was

applied in the numerous defamation cases which are John’s progeny’ ”

(emphases in original)), quoting Harris Trust & Savings Bank v.

Phillips, 154 Ill. App. 3d 574, 581 (1987). Yet another apparent

inconsistency may be observed within the instant case. The majority

cites approvingly the holding in Mittelman that we do not “balance”

differing constructions of the statement at issue. See slip op. at 9-10,

citing Mittelman, 135 Ill. 2d at 232. Yet in applying the rule in this

case the majority “conclude[s] that a defamatory construction is far

more reasonable than any innocent construction.” (Emphasis added.)

Slip op. at 18.

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The innocent construction rule was adopted, in dictum, at a time

when defamation was a strict liability cause of action, with little

protection for the speaker. Since then, not only has strict liability been

entirely repudiated, but defamation law has become increasingly

complex, taking into account the status of both parties involved as

well as the nature of the speech at issue. But the innocent construction

rule has remained unchanged, a simple blanket layer of protection for

defendants no matter what the circumstance. Moreover, even if the

law had not changed, the rule has from its inception been logically

flawed and inconsistent with our general rules concerning motions to

dismiss. It has been repudiated by all, or nearly all, other jurisdictions

in the country. Further, this court has had to amend the rule in the

past, and continues to apply it inconsistently. For all these reasons, in

this case, I believe that stare decisis should yield, and the innocent

construction rule should at long last be consigned to its rightful place

in the scrap heap of Illinois legal history. Accordingly, I respectfully

dissent from this portion of the majority opinion.

However, I agree with the result reached by the majority. For if

we were to adopt the reasonable construction rule, as I advocate, I

would conclude that it is reasonably possible to interpret the

statements at issue in a defamatory fashion. Thus according to that

rule the appropriate resolution of this case would be to reverse and

remand for further proceedings, the same result the majority reaches

through its application of the innocent construction rule. Accordingly,

I concur in the majority’s result.

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