The opinion
SECOND DIVISION
August 14, 2007
No. 1-06-2885
THOMAS A. ROSE, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
)
HOLLINGER INTERNATIONAL, INC., CHICAGO )
SUN-TIMES, INC., JERUSALEM POST, and )
BRET STEPHENS, ) Honorable
) Lee Preston,
Defendants-Appellees. ) Judge Presiding.
PRESIDING JUSTICE WOLFSON delivered the opinion of the
court:
In this defamation case we are required to explore the
indistinct line between fact and opinion. Where we land
determines the outcome of this appeal.
Plaintiff Thomas A. Rose (Rose) appeals the trial court’s
order dismissing with prejudice his action against the defendants
Hollinger International, Inc. (Hollinger), Chicago Sun-Times,
Inc. (Sun-Times), Jerusalem Post, and Bret Stephens (Stephens).
Count V of plaintiff’s Second Amended Complaint alleged Stephens
made defamatory statements against Rose in an email sent to
Jerusalem Post employees.
The trial court found the alleged defamatory statements--
Rose "wrought damage to" the Jerusalem Post’s finances,
reputation, business relationships, morale, and quality of its
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editorial product--were not actionable because they were
protected expressions of Stephens’ opinions. Rose appeals the
court’s dismissal of Count V. We affirm.
FACTS
At the time of the complaint, Hollinger was the owner of the
Sun-Times and the Jerusalem Post. Rose began working for
Hollinger and the Chicago Sun-Times in 1997. In June 1998, Rose
became the publisher and chief executive officer (CEO) of the
Jerusalem Post. He moved to Israel and worked in that position
until he was fired on May 25, 2004. On May 27, 2004, Stephens,
the editor-in-chief of the Jerusalem Post, sent an email to the
editorial staff in Israel and New York. The content of the
email, in its entirety, is as follows:
"Subject: memo from Bret Stephens to
editorial staff
Dear Colleagues,
As some of you may have heard already,
Tom Rose was this Tuesday terminated as
Publisher and CEO of The Jerusalem Post. CFO
Mark Ziman has taken his place as publisher
on an interim basis.
For those of us who have seen up close
the damage Tom did to this newspaper, this is
a happy event indeed. For those Tom damaged
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personally, with his abusive behavior and
bizarre management style, it is happier
still. So good riddance, Tom, good riddance.
You will not be missed.
So many of us have been waiting for this
day, and fighting for it, that we may be
forgiven for thinking that Tom’s departure
brings our problems to an end. It does not.
It will be some time before we can undo the
damage he has wrought: To our finances, to
our reputation, to our business
relationships, to our morale, to the quality
of our editorial product.
What we can say is that, with Tom gone,
we can begin to address our problems in a
rational and purposeful way. Improvements
will not necessarily come quickly. But I’m
confident they will, in time, come.
I hope each of you had a pleasant
holiday. I look forward to seeing you next
week.
Yours, Bret."
Rose alleges Stephens took no steps to ensure the email was
not forwarded beyond its original recipients. He says the email
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was sent to several freelance journalists around the world and
forwarded to other people in Illinois and New York. Excerpts
from the email were published in at least two newspaper articles
available on the Internet. He alleges Stephens made the
defamatory statements in the course of his employment, "with the
intent to injure Rose personally and to interfere with Rose’s
efforts to obtain employment following his termination."
Count V of Rose’s Second Amended Complaint alleges the
statements in the email were defamatory per se because they
imputed an inability to perform, or a lack of integrity in the
discharge of, Rose’s employment duties, and imputed he lacked
ability in his trade, profession, or business.
The defendants filed a motion to dismiss pursuant to section
2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615
(West 2004)), contending: (1) the statements constitute
expressions of opinion; (2) the statements are subject to a
qualified privilege; (3) Rose failed to sufficiently allege
"actual malice;" (4) defendants are not liable for statements
made by Stephens outside the scope of his employment; and (5)
Rose cannot state a claim against Hollinger or the Sun-Times as
those companies were not Rose’s employers at the time the
statements were made.
The trial court dismissed the defamation count with
prejudice, holding the alleged defamatory statements were
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expressions of Stephens’ opinions. The court did not address
defendants’ other arguments. The court subsequently entered an
order finding no just reason to delay appeal of the dismissal
order. 155 Ill. 2d R. 304(a).
DECISION
A section 2-615 motion to dismiss challenges the legal
sufficiency of a complaint based on defects apparent on its face.
735 ILCS 5/2-615 (West 2004); Marshall v. Burger King Corp., 222
Ill. 2d 422, 429, 856 N.E.2d 1048 (2006). Our review is de novo.
Wakulich v. Mraz, 203 Ill. 2d 223, 228, 785 N.E.2d 843 (2003).
A statement is considered defamatory "if it tends to cause
such harm to the reputation of another that it lowers that person
in the eyes of the community or deters third persons from
associating with him." Kolegas v. Heftel Broadcasting Corp., 154
Ill. 2d 1, 10, 607 N.E.2d 201 (1992), citing Restatement (Second)
of Torts § 559 (1977). "Statements are considered defamatory per
se when the defamatory character of the statement is apparent on
its face; that is, when the words used are so obviously and
materially harmful to the plaintiff that injury to his reputation
may be presumed." Kolegas, 154 Ill. 2d at 10.
Rose alleges Stephens’ statements add up to imputation he is
unable to perform his professional duties, thus per se
defamation. The posture of this appeal does not call on us to
decide whether Stephens’ email contains defamatory words. We
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will assume, as the parties apparently do in this appeal, there
is at least some defamation. The question we must answer is
whether the defamatory words are actionable. See Bryson v. News
America Publications, Inc., 174 Ill. 2d 77, 99-100, 672 N.E.2d
1207 (1996). That is, statements that are defamatory per se may
enjoy constitutional protection as expressions of opinion.
Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d
558, 581, 852 N.E.2d 825 (2006); U.S. Const., amend. I.
First, we look at some of the decisions that have brought us
to the fact versus opinion contest we must resolve.
Before 1990, courts perceived a fundamental distinction
between statements of fact and statements of opinion for first
amendment purposes. Bryson, 174 Ill. 2d at 99. The distinction
was grounded in dictum contained in Gertz v. Robert Welch, Inc.,
418 U.S. 323, 339-40, 41 L. Ed. 2d 789, 805, 94 S. Ct. 2997,
3006-07 (1974):
"Under the First Amendment there is no such
thing as a false idea. However pernicious an
opinion may seem, we depend for its
correction not on the conscience of judges
and juries but on the competition of other
ideas. But there is no constitutional value
in false statements of fact."
In Milkovich v. Lorain Journal Co., 497 U.S. 1, 18, 111 L.
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Ed. 2d 1, 17, 110 S. Ct. 2695, 2705 (1990), the United States
Supreme Court held the above passage from Gertz was not intended
to create a "wholesale defamation exemption" for anything labeled
an "opinion." Rejecting what it called "the creation of an
artificial dichotomy between ‘opinion’ and fact," the Court held
there is no separate first amendment privilege for statements of
opinion. Milkovich, 497 U.S. at 18-19, 111 L. Ed. 2d at 18, 110
S. Ct. at 2706. A false assertion of fact can be libelous even
though couched in terms of an opinion. For example, simply
couching the statement "Jones committed perjury" in terms of
opinion--"In my opinion Jones committed perjury"--does not dispel
the factual implications contained in the statement. Milkovich,
497 U.S. at 18-19, 111 L. Ed. 2d at 17-18, 110 S. Ct. at 2706.
The statement at issue in Milkovich appeared in a newspaper
column that said the petitioner "lied at the hearing after ***
having given his solemn oath to tell the truth." Milkovich, 497
U.S. at 5, 111 L. Ed. 2d at 9, 110 S. Ct. at 2698. The Court
said the dispositive question was "whether a reasonable
factfinder could conclude that the statements in the [column]
imply an assertion that petitioner Milkovich perjured himself in
a judicial proceeding." Milkovich, 497 U.S. at 21, 111 L. Ed. 2d
at 19, 110 S. Ct. at 2707. The Court answered the question in
the affirmative, holding:
"This is not the sort of loose, figurative,
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or hyperbolic language which would negate the
impression that the writer was seriously
maintaining that petitioner committed the
crime of perjury. Nor does the general tenor
of the article negate this impression. We
also think the connotation that petitioner
committed perjury is sufficiently factual to
be susceptible of being proved true or
false." Milkovich, 497 U.S. at 21, 111 L.
Ed. 2d at 19, 110 S. Ct. at 2707.
The Illinois Supreme Court has adopted and applied the
Milkovich test. Bryson, 174 Ill. 2d at 100; Kolegas, 154 Ill. 2d
at 100. Calling it a "restrictive" test, the court held a
statement is protected by the first amendment only if it cannot
be "reasonably interpreted as stating actual facts" about the
plaintiff. Bryson, 174 Ill. 2d at 100; Kolegas, 154 Ill. 2d at
14-15, citing Milkovich, 497 U.S. at 20, 111 L. Ed. 2d at 19, 110
S. Ct. at 2706. The determination is a matter of law for the
court to decide. Hopewell v. Vitullo, 299 Ill. App. 3d 513, 518,
701 N.E.2d 99 (1998).
Courts consider several factors in determining whether a
statement is actionable: (1) whether the statement has a precise
and readily understood meaning; (2) whether the statement is
objectively verifiable as true or false; and (3) whether the
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statement’s literary or social context signals that it has
factual content. Solaia, 221 Ill. 2d at 581-82; Bryson, 174 Ill.
2d at 100-01; Mittelman v. Witous, 135 Ill. 2d 220, 243, 552
N.E.2d 973 (1989) (adopting factors announced in Ollman v. Evans,
750 F.2d 970, 984-85 (D.C. Cir. 1984)). Statements made in the
form of insinuation, allusion, irony, question, ridicule, or
sarcasm may be considered defamatory as positive assertions of
fact. Solaia, 221 Ill. 2d at 581; Kolegas, 154 Ill. 2d at 16.
Courts evaluate the totality of the circumstances in each
case, but the emphasis is on whether the statement is capable of
objective verification. Imperial Apparel, Ltd. v. Cosmo’s
Designer Direct, Inc., 367 Ill. App. 3d 48, 53, 853 N.E.2d 770
(2006), appeal allowed, 222 Ill. 2d 572, 861 N.E.2d 655 (November
29, 2006); Hopewell, 299 Ill. App. 3d at 519.
To aid our analysis of whether the statements at issue are
constitutionally protected opinion or actionable factual
assertions, we examine the ways various courts have analyzed
similar statements.
Cases Finding Non-Actionable Opinion
In Schivarelli v. CBS, Inc., 333 Ill. App. 3d 755, 776
N.E.2d 693 (2002), a segment in a 30-second promotional
commercial for a television station depicted investigative
reporter Pamela Zekman saying to the plaintiff, " ‘Let’s sum this
up for a second, the evidence seems to indicate that you’re
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cheating the city.’ " Schivarelli, 333 Ill. App. 3d at 758. The
ad did not provide any further detail, although the context of
the ad "trumpeted the reporter’s ability to dig up hidden
corruption, abuse, and unethical or illegal conduct."
Schivarelli, 333 Ill. App. 3d at 760.
The court held the statement was not objectively verifiable
because it was not made in any specific factual context. The
reporter did not explain the evidence, state why she thought the
plaintiff was cheating, or even explain what she meant by
"cheating." Schivarelli, 333 Ill. App. 3d at 762. It was not
actionable.
In Wynne v. Loyola University of Chicago, 318 Ill. App. 3d
443, 741 N.E.2d 669 (2000), the court held the statements about a
professor in a memorandum authored by a university employee did
not constitute actionable defamation. The memorandum stated the
plaintiff "made bizarre telephone calls" to other colleagues
about her fertility injections; she "appeared to wheedle,
persuade, nag, and domineer" for changes in the university’s
special education program; nothing ever seemed to satisfy her;
meetings with her were "uniformly unpleasant"; and she began
"striking various deals" with the dean. Wynne, 318 Ill. App. 3d
at 452.
The court held none of the words and phrases was capable of
objective verification; it was clear the employee was merely
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expressing her opinions in the memorandum. Wynne, 318 Ill. App.
3d at 452. The court found, "[w]hile in one sense all opinions
imply facts, the question of whether a statement of opinion is
actionable as defamation is one of degree; the vaguer and more
generalized the opinion, the more likely the opinion is
nonactionable as a matter of law." Wynne, 318 Ill. App. 3d at
452, citing Hopewell, 299 Ill. App 3d at 521.
In Dubinsky v. United Airlines Master Executive Council, 303
Ill. App. 3d 317, 708 N.E.2d 441 (1999), the plaintiffs alleged
the defendants falsely accused them of criminal conduct related
to the employee purchase of United Airlines. Specifically,
plaintiff Dubinsky alleged defendant Richards defamed him by
calling him a "crook" in front of 30 to 40 pilots and their
wives. Dubinsky, 303 Ill. App. 3d at 329. The court held the
statement was not actionable because it was not made in any
specific factual context. The court said, "[o]ne cannot rely on
an assumption that those who heard the statement were completely
apprised of all the developments in the ESOP controversy so as to
create a definitive factual context for the use of the word
‘crook.’ " Dubinsky, 303 Ill. App. 3d at 329-30.
In Doherty v. Kahn, 289 Ill. App. 3d 544, 556-57, 682 N.E.2d
163 (1997), the court held statements made by plaintiff’s former
employer to clients were non-actionable opinion. Defendants told
potential customers plaintiff was "incompetent," "lazy,"
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"dishonest," "cannot manage a business," and/or "lacks the
ability to perform landscaping services." Doherty, 289 Ill. App.
3d at 554. The court held the statements were not actionable
defamation because there were no specific facts at the root of
the statements capable of being objectively verified as true or
false. Doherty, 289 Ill. App. 3d at 557.
In Hopewell, 299 Ill. App. 3d at 515-16, a former paid
officer on a United States senator’s election committee brought a
defamation action against another committee member who told a
newspaper the plaintiff was "fired because of incompetence." The
court found the statement did not have a "precise and readily
understood meaning" because of its broad scope and lack of
detail. Hopewell, 299 Ill. App. 3d at 519. "[O]ne person’s idea
of when one reaches the threshold of incompetence will vary from
the next person’s." Hopewell, 299 Ill. App. 3d at 519. The
tenor and context of the article in which the statement appeared
further justified finding the statement was an opinion. The
article was riddled with allegations concerning the senator’s
campaign finances, which easily could lead readers to conclude
the statements were efforts at posturing before an ensuing legal
battle between the plaintiff and the senator. Hopewell, 299 Ill.
App. 3d at 520. Finally, the veracity of the statement could not
be verified because the statement was so ambiguous and indefinite
that any number of possible facts might support the conclusion
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that Hopewell was "incompetent." Hopewell, 299 Ill. App. 3d at
520.
For other examples of nonactionable opinions, see also Maag
v. Illinois Coalition for Jobs, Growth & Prosperity, 368 Ill.
App. 3d 844, 851-52, 858 N.E.2d 967 (2006) (flyer aimed at
judicial candidate stating: “What was he thinking?,” “Letting a
Murderer Back on the Streets,” “A Mistake with Consequences,”
“Questionable Judgment,” “ ‘Technicality’ Justice?,” and
“Overturning the Conviction of a Sexual Predator”); Brennan v.
Kadner, 351 Ill. App. 3d 963, 968, 814 N.E.2d 951 (2004)
(statement in newspaper column that "the election board could
refer [plaintiff’s] case to the U.S. attorney’s office, claiming
that he used the U.S. mail in perpetrating a fraud"); Quinn v.
Jewel Food Stores, Inc., 276 Ill. App. 3d 861, 866-67, 658 N.E.2d
1225 (1995) (statements made in an evaluation in employee’s
personnel file: “very aggressive, to the point of being cocky,”
“A con artist!! Watch out for the bullshit!”); Piersall v.
Sportsvision of Chicago, 230 Ill. App. 3d 503, 510, 595 N.E.2d
103 (1992) (plaintiff was a "liar"); Horowitz v. Baker, 168 Ill.
App. 3d 603, 607, 523 N.E.2d 179 (1988) (plaintiff “secretly” and
“cheaply” sold city property); Kakuris v. Klein, 88 Ill. App. 3d
597, 600, 410 N.E.2d 984 (1980) (employer’s statements that
employee exhibited a "[l]ack of achievement in basic goals" and
"did not have the qualifications needed to achieve the objectives
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of the profession.")
Cases Finding Actionable Factual Statements
In Imperial Apparel, 367 Ill. App. 3d at 54, the court held
certain statements in the defendant’s advertisement--referring to
the plaintiffs as "shameless owners of Empire Rags" and their
business establishment as a "flea market style warehouse"--did
not qualify as statements of objectively verifiable fact, but
part of the ad was held actionable. It stated:
"It is laughable how with all the integrity
of the ‘Iraq Information Minister,’ they
brazenly attempt pulling polyester over your
eyes by conjuring up a low rent 3 for 1
imitation that has the transparency of a
hookers come on. . . but no matter how they
inflate prices and compromise quality, much
to their dismay, Cy and his son Paul the
plagiarist still remain light years away from
delivering anything close to our ‘3 for 1'
values." Imperial Apparel, 367 Ill. App. 3d
at 50.
The court held the statements addressed the conduct and
character of the individual plaintiffs and appeared to be based
on unstated facts concerning the quality of Imperial’s goods.
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Whether Imperial was selling imitation goods of inferior quality
was capable of objective verification. Imperial Apparel, 367
Ill. App. 3d at 54. Even though the statements were made in the
context of a competitor’s advertisement, a reasonable reader
could interpret the ad as stating actual facts about the
plaintiffs and the originality and quality of Imperial’s goods.
Imperial Apparel, 367 Ill. App. 3d at 54.
In Solaia, 221 Ill. 2d at 583, the court examined several
statements in a magazine article discussing the plaintiffs’
patent infringement claims against various well-known companies
and reached a split decision. The court held the article’s
characterization of the plaintiffs as “deeply greedy people”
victimizing "the innocent companies who are being forced to
defend themselves in this debacle" fell within the bounds of
constitutionally protected opinion. Solaia, 221 Ill. 2d at 583.
The phrase had “no precise meaning” and was “not verifiable.”
Solaia, 221 Ill. 2d at 583. But a reprinted comment in the
article from an industry veteran describing the plaintiffs’
patent as “ ‘essentially worthless,’ *** being used to generate
settlement proceeds *** filing claims ‘to make a lot of money,’
regardless of the means” was actionable fact. Solaia, 221 Ill.
2d at 583-84. Though the phrase “essentially worthless” had no
precise meaning in the abstract, it had a very precise meaning in
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the context of the letter. Solaia, 221 Ill. 2d at 584. Although
the letter “undoubtedly employs hyperbole,” the court held the
statement was not an opinion. “Under its metaphorical chaff
hides a kernel of fact: Solaia Technology secured a worthless
patent and filed infringement claims with the sole aim of
extracting settlements.” Solaia, 221 Ill. 2d at 584.
In Bryson, 174 Ill. 2d at 100-102, the court held a short
story’s description of the plaintiff as a “slut” was an assertion
of fact. The clear impact of the statement was that the
plaintiff was sexually promiscuous. The court held the assertion
was “sufficiently factual to be susceptible of being proven true
or false.” Bryson, 174 Ill. 2d at 100-01.
In Mittelman, 135 Ill. 2d at 245, the court examined a
statement by a supervising attorney in a meeting with the law
firm’s board of directors. The attorney told the directors the
waste of time and money in preparing a case was "not his fault."
He said the plaintiff "sat on the statute of limitations defense
with knowledge of [adverse authority] for three years without
attempting to settle or cut the firm’s probable losses."
Mittelman, 135 Ill. 2d at 245. The court held the word "fault"
was used to express a non-actionable opinion, but the remainder
of the statement was factual because it had a precise core of
meaning and referred to the plaintiff’s actions or omissions with
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respect to events that had taken place. Mittelman, 135 Ill. 2d
at 245-46. The words were actionable.
In Moriarty v. Greene, 315 Ill. App. 3d 225, 232-33, 732
N.E.2d 730 (2000), the statement by a newspaper columnist that a
child psychologist "has readily admitted that she sees her job as
doing whatever the natural parents instruct her to do," was found
to be actionable because it was a factual assertion capable of
being proved true or false. Moriarty, 315 Ill. App. 3d at 233.
The court in Kumaran v. Brotman, 247 Ill. App. 3d 216, 228,
617 N.E.2d 191 (1993), held a statement in a newspaper article
was a verifiable assertion of fact. The court found the gist of
the article--that plaintiff was "working a scam" by filing
frequent, unwarranted lawsuits to procure pecuniary settlements,
concerned plaintiff’s conduct and character, suggesting it was
factual. Kumaran, 247 Ill. App. 3d at 228, citing Mittelman, 135
Ill. 2d at 241. The word "scam" had a precise core of meaning
for which a consensus of understanding exists, namely, swindle.
And the statement was verifiable by reviewing the evidence in
plaintiff’s filed lawsuits to determine whether they were bona
fide or bogus. Kumaran, 247 Ill. App. 3d at 228.
For other examples of actionable statements, see also
Kolegas, 154 Ill. 2d at 15 (“not for real,” “scamming,” and “no
such show as the classic cartoon festival”); Barakat v. Matz, 271
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Ill. App. 3d 662, 672, 648 N.E.2d 1033 (1995) (statements that
defendant “had patients from [plaintiff] before,” that defendant
“found nothing wrong with his patients,” that plaintiff’s
“practice was a joke,” that plaintiff was not “any good as a
doctor,” and that plaintiff’s “opinion wasn’t any good”); Quality
Granite Construction Co. v. Hurst-Rosche Engineers, Inc., 261
Ill. App. 3d 21, 26-27, 632 N.E.2d 1139 (1994) (defendants’
statements that plaintiff’s “failure to complete the project in a
timely manner, substandard workmanship, reluctance to complete
punch list items and inability to correctly interpret the
contract documents”).
Application to the Instant Case
Plaintiff’s strongest argument for the presence of
actionable defamatory statements of fact is found in the third
paragraph of the email:
"It will be some time before we can undo the
damage he has wrought: To our finances, to
our reputation, to our business
relationships, to our morale, to the quality
of our editorial product."
We are particularly interested in the reference to damage
"to our finances." It strikes us that the balance of the
paragraph and the other assertions in the email--"abusive
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behavior," "bizarre management style," for example--clearly are
nonactionable opinions and require no further analysis.
We consider whether a reasonable reader would understand the
"damage to our finances" phrase as Stephens’ opinion or his
factual assertion, bearing in mind "[t]he test is restrictive: a
defamatory statement is constitutionally protected only if it
cannot be reasonably interpreted as stating actual fact." Solaia
Technology, 221 Ill. 2d at 581. We look to the three
"considerations" used by the supreme court in Solaia to separate
fact from opinion. Solaia Technology, 221 Ill. 2d at 581.
First, whether the statement has a precise and readily
understood meaning. The meaning of "damage" is fairly clear,
when taken in isolation. Our dictionary defines it as "loss due
to injury; injury or harm to *** property." Webster’s Third New
International Dictionary 571 (1981). Webster’s defines
"finances" as: "the pecuniary affairs or resources of a ***
company." Webster’s Third New International Dictionary 851
(1981). While the words at issue, when parsed separately, might
be understandable, they do not exist in a vacuum. They refer to
a business enterprise, the Jerusalem Post. The company’s
"pecuniary affairs or resources" is a broad term, an outer shape
without an inner core. The reasonable reader cannot know which
pecuniary affairs or resources are being referred to. Different
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readers will have different views of the meaning of the phrase.
The conclusion we reach is substantially similar to that
expressed by our court in Hopewell:
"Regardless of the fact that ‘incompetent’ is
an easily understood term, its broad scope
renders it lacking the necessary detail for
it to have a precise and readily understood
meaning. There are numerous reasons why one
might conclude that another is incompetent;
one person’s idea of when one reaches the
threshold of incompetence will vary from the
next person’s." Hopewell, 299 Ill. App. 3d
at 519-20.
We do not believe the phrase at issue has a "precise core of
meaning for which a consensus of understanding exists."
Mittelman, 135 Ill. 2d at 243, citing Ollman, 750 F.2d at 979-84.
Second, whether the statement is verifiable. That is,
whether the alleged defamatory statement contains an objectively
verifiable assertion. Schivarelli, 333 Ill. App. 3d at 760. Is
it objectively capable of proof or disproof? See Quinn, 276 Ill.
App. 3d at 867.
Given the broad and shapeless form of Stephens’ accusation,
we do not see how a reasonable person would go about proving or
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disproving the assertion. Where would such a person begin?
No specific location of injury is provided. Nor is one
inferred in some undisclosed defamatory manner. One cannot tell
whether it is a matter of profit and loss. Or assets and
liabilities. Or net worth. And so on. As in Hopewell, an
attempt to prove or disprove the statement would entail an
"endless analysis of each and every fact connected with" the
plaintiff’s duties. Hopewell, 299 Ill. App. 3d at 520.
That an analysis of company records would be difficult is
not dispositive. It is the fruitlessness of the investigation,
given the sparse information provided, that leads to our
conclusion that the statement is too broad, conclusory, and vague
to be objectively verifiable.
Third, we look to the statement’s literary or social context
to see whether it signals that it has factual content. Here,
Stephens’ email represents a mean-spirited sendoff of a
discharged publisher for no apparent institutional purpose. It
was gloating ("So good riddance, Tom, good riddance. You will
not be missed."). Stephens was not making a case or stating an
argument. He did not claim "to be in possession of objectively
verifiable facts." Brennan v. Kadner, 351 Ill. App. 3d 963, 969,
814 N.E.2d 951 (2004) (statement in column that a source told
defendant the Election Board could refer plaintiff’s case to the
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United State’s Attorney’s office for a mail fraud prosecution was
a subjective judgment, not a verifiable statement of fact).
Here, given the occasion for sending of the email and the
audience it was intended to reach, we do not see how a reasonable
reader would take "wrought damage to our finances" as a factual
assertion that Rose caused some injury to specific, identifiable
pecuniary affairs or resources of the newspaper.
We recognize this is a close case. As Professor Graham has
written: "A clear line between fact and opinion is impossible to
draw." M. Graham, Cleary & Graham’s Handbook of Illinois
Evidence § 701.1, at 516 (8th ed. 2004). But draw it we must.
We conclude Stephens’ intemperate words in the email are
constitutionally protected opinions.
CONCLUSION
For the reasons we have stated, the trial court’s order
dismissing Count V of the plaintiff’s complaint with prejudice is
affirmed. Because we reach this conclusion, we see no need to
discuss other issues raised by the defendants.
Affirmed.
HOFFMAN and SOUTH, JJ., concur.
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