Meanith Huon v. Nick Denton

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 15-3049

MEANITH HUON,

Plaintiff-Appellant,

v.

NICK DENTON, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 11 CV 3054 — John J. Tharp, Jr. Judge.

____________________

ARGUED MAY 31, 2016 — DECIDED NOVEMBER 14, 2016

____________________

Before EASTERBROOK and WILLIAMS, Circuit Judges, and

YANDLE, District Judge. ∗

WILLIAMS, Circuit Judge. Meanith Huon sued the website

Above the Law for implying that he was a rapist in an article

published on the same day he was acquitted of rape. When

∗ Of the Southern District of Illinois, sitting by designation.

2 No. 15-3049

another website, Jezebel (which was owned by Gawker at

the time), reported on the lawsuit in an article entitled, “Ac-

quitted Rapist Sues Blog for Calling Him Serial Rapist,” Hu-

on added Gawker to the lawsuit. He accused Gawker of def-

amation, false light invasion of privacy, and intentional in-

fliction of emotional distress with regard to (i) the article’s

headline, (ii) its description of Huon’s criminal trial and sub-

sequent complaint against Above the Law, and (iii) certain

comments posted by a number of anonymous third-party

users (at least some of whom Huon claimed were Gawker

employees). The district judge granted Gawker’s motion to

dismiss as to all of Huon’s claims, and later denied him

leave to file a fifth amended complaint. Huon appeals both

decisions.

We conclude that the district judge correctly rejected Hu-

on’s defamation claim as to the article. The title can be con-

strued innocently when viewed with the rest of the article as

a whole, and the article’s text fairly reported on both Huon’s

criminal trial and his initial complaint against Above the

Law. In addition, the district judge did not err in denying

Huon leave to file a fifth amended complaint, since Huon

had ample opportunity to cure any deficiencies.

However, we reverse and remand the district judge’s re-

jection of Huon’s defamation claim as to the third-party user

comments. Huon adequately alleged that Gawker helped

create and develop at least some of the comments, and one

of the comments constitutes defamation under Illinois law.

We also reverse and remand the district judge’s rejection of

Huon’s false-light and intentional-infliction claims, which

were dismissed against Gawker based solely on the rejection

of his defamation claims. Since part of his defamation claim

No. 15-3049 3

can proceed, so too can his false-light and intentional-

infliction claims.

I. BACKGROUND

In July 2008, Plaintiff Meanith Huon was charged with

criminal sexual assault in connection with a sexual encoun-

ter he had with Jane Doe. Huon pleaded not guilty, claimed

that the encounter was consensual, and was acquitted by a

jury. On the day Huon was acquitted, the legal website

Above the Law (ATL) published an article entitled, “Rape

Potpourri” (ATL article). The article discussed two “rape

stories,” one of which concerned Jane Doe’s allegations and

Huon’s opening statement at his criminal trial. At some

point after its initial publication, the ATL article was updat-

ed to note that Huon was acquitted.

One year after publication of the ATL article, Huon filed

suit against ATL, alleging defamation, intentional infliction

of emotional distress, and false light invasion of privacy.

Several days later, the website Jezebel published an article

entitled, “Acquitted Rapist Sues Blog for Calling Him Serial

Rapist” (Jezebel article). The article superimposed Huon’s

2008 mugshot onto the ATL article and briefly explained the

circumstances of Huon’s criminal trial and subsequent law-

suit against ATL. The article’s title was later changed to read,

“Man Acquitted of Sexual Assault Sues Blog for Calling Him

Serial Rapist” (emphasis added), but otherwise remained the

same. The Jezebel article generated over 80 comments from

anonymous third-party users.

Huon amended his complaint in response to the publica-

tion of the Jezebel article, adding several new allegations

and nearly a dozen new defendants, including Irin Carmon,

4 No. 15-3049

the Jezebel article’s author; Gawker Media, Jezebel’s then-

owner; and Nick Denton, Gawker’s founder (Gawker De-

fendants 1). After Huon amended his complaint several addi-

tional times to cure certain jurisdictional defects, the Gawker

Defendants moved to dismiss Huon’s fourth amended com-

plaint.

The district judge granted the motion in full. He rejected

Huon’s defamation claims as to the third-party user com-

ments, finding insufficient allegations that Gawker employ-

ees had actually authored the comments, and concluding

that the Communications Decency Act protects online pub-

lishers like Gawker from third-party comments. The judge

also dismissed Huon’s defamation per se claim, finding that

the Article’s headline was protected by the innocent con-

struction rule and its text by the fair report privilege, and

concluded that Huon had failed to plead the requisite special

damages to maintain his defamation per quod claim. In addi-

tion, the judge dismissed Huon’s false-light and intentional-

infliction claims, noting that the failure of his defamation

claims was dispositive. The district judge later denied Hu-

on’s motion to reconsider and for leave to file a fifth amend-

ed complaint. This appeal followed. 2

1 Following oral argument, we were notified that Defendants Gawk-

er Media LLC and Nick Denton had separately filed petitions for bank-

ruptcy protection under Chapter 11. Counsel for both Defendants tells us

that the automatic stays in both bankruptcy proceedings have been mod-

ified so as to permit us to render a decision. We proceed accordingly.

2The ATL Defendants separately moved to dismiss Huon’s fourth

amended complaint. After the district judge granted their motion in part

and denied it in part, the ATL Defendants and Huon settled. The ATL

Defendants are not parties on appeal.

No. 15-3049 5

II. ANALYSIS

We review de novo the district judge’s grant of the

Gawker Defendants’ motion to dismiss for failure to state a

claim. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.

2008). A complaint need only contain enough factual content

to “state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2009). While “de-

tailed factual allegations” are not required, the complaint

must contain more than mere “labels and conclusions” and

“a formulaic recitation of the elements of a cause of action.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal

quotation marks omitted). We review the complaint in the

light most favorable to Huon and accept all well-pleaded

facts as true. Tamayo, 526 F.3d at 1081.

A. Jezebel Article’s Title and Content Defamation

Claim Properly Dismissed

A statement is defamatory under Illinois law 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.” Tuite v. Corbitt, 866 N.E.2d

114, 121 (Ill. 2006). The per se designation applies if the

statement’s “defamatory character is obvious and apparent

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

presumed.” Id. A statement will usually constitute defama-

tion per se if it falls into one of five categories; the only one at

issue here concerns “statements imputing the commission of

a crime.” Id.

On appeal, Huon contends that two aspects of the Jezebel

article constituted defamation per se: (1) the headline and ad-

jacent graphic containing his mug shot, to which the district

6 No. 15-3049

judge applied the innocent construction rule; and (2) the ar-

ticle’s description of the criminal trial and subsequent civil

suit, to which the judge applied the fair report privilege. We

consider each issue in turn. 3

1. Innocent Construction Rule Applies to Headline

and Graphic

A statement that is defamatory per se will not be actiona-

ble “if it is reasonably capable of an innocent construction.”

Green v. Rogers, 917 N.E.2d 450, 463 (Ill. 2009). Under this

rule, a court must give the defendant’s words their natural

and obvious meaning, after having considered “both the

substance of defendant’s alleged statements and the context

in which they allegedly were made.” Id. at 464. “[I]f a state-

ment is capable of two reasonable constructions, one defam-

atory and one innocent, the innocent one will prevail.”

Muzikowski v. Paramount Pictures Corp., 322 F.3d 918, 925 (7th

Cir. 2003) (citing Anderson v. Vanden Dorpel, 667 N.E.2d 1296,

1302 (Ill. 1996)). Nevertheless, “when the defendant clearly

intended and unmistakably conveyed a defamatory mean-

ing, a court should not strain to see an inoffensive gloss on

the statement.” Green, 917 N.E.2d at 463.

Here, Huon maintains that the Jezebel article’s headline,

“Acquitted Rapist Sues Blog For Calling Him Serial Rapist,”

is defamatory because it imputes to him the commission of a

crime (rape), and is not subject to an innocent construction.

3 Huon’s fourth amended complaint also alleges defamation per

quod. But since Huon does not press this claim on appeal, we consider it

forfeited. See, e.g., Milligan v. Bd. of Trs. of S. Ill. Univ., 686 F.3d 378, 386

(7th Cir. 2012); United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir.

1991).

No. 15-3049 7

According to Huon, the most reasonable meaning of the

headline is that Huon has committed rape at least once, and

that the word “acquitted,” by itself, does not controvert this

false insinuation.

We need not decide whether the headline itself defamed

Huon because, even if it did, it is subject to an innocent con-

struction. As the Gawker Defendants correctly note, head-

lines must be considered alongside the accompanying article

and not in isolation. See, e.g., Harrison v. Chi. Sun-Times, Inc.,

793 N.E.2d 760, 772 (Ill. App. Ct. 2003) (“As a general rule in

applying the innocent construction rule, a newspaper head-

line and the text of the article to which it refers are to be con-

sidered as one document and read together as a whole.”);

accord Solaia Tech., LLC v. Specialty Pub. Co., 852 N.E.2d 825,

846 (Ill. 2006); Seith v. Chi. Sun-Times, Inc., 861 N.E.2d 1117,

1127 (Ill. App. Ct. 2007); cf. Tuite, 866 N.E.2d at 127–28 (ex-

amining allegedly defamatory statements in the context of

the entire book in which they were published); Bryson v.

News Am. Publ’ns, Inc., 672 N.E.2d 1207, 1217 (Ill. 1996) (ex-

amining allegedly defamatory word in magazine article

alongside the adjacent sentences).

Huon argues that “[h]eadlines alone may be enough to

make libelous per se an otherwise innocuous article,” but the

small handful of cases he relies on are unhelpful. All of them

involve the laws of states other than Illinois, and many are

distinguishable on their facts insofar as the allegedly defam-

atory front-page headline was not next to the underlying ar-

ticle. See Solano v. Playgirl, Inc., 292 F.3d 1078, 1083–84 (9th

Cir. 2002) (emphasizing that “the magazine is displayed for

sale in plastic wrapping, making the cover the key to what a

reader can expect to find inside the magazine”); Kaelin v.

8 No. 15-3049

Globe Commc’ns Corp., 162 F.3d 1036, 1041 (9th Cir. 1998)

(concluding that a reasonable jury could find that the maga-

zine article “was too far removed [17 pages] from the cover

headline to have the salutary effect that [defendant]

claims”). Here, in contrast, the complaint indicates that the

headline and article were directly adjacent to one another.

The content of the underlying Jezebel article makes clear

that the only instance of alleged rape was the one Huon was

acquitted of. Indeed, one need only read the first sentence to

see that this is so: “A Chicago man who was acquitted on a

sexual assault charge is suing the legal blog Above The Law

for implying that he’s a serial rapist.” And two paragraphs

later, after having discussed Huon’s acquittal, the article ex-

plains that ATL “mistakenly believes that news accounts of

the same incident are different incidents that should have

tipped the woman off that Huon was a serial offender.”

(emphasis added).

Huon also contends the graphic containing his mugshot

and the phrases “Above the Law” and “Rape Potpourri”

constitutes defamation per se. We disagree. Above the Law

was the name of the website that Huon had sued, “Rape

Potpourri” was the headline of the ATL article, and the

mugshot illustrated the subject matter at issue. So the inno-

cent construction rule applies to the Jezebel article’s headline

and graphic.

2. Fair Report Privilege Applies to Discussion of

Criminal Trial and Civil Lawsuit

Under Illinois law, a defamatory statement is not action-

able if it falls within the fair report privilege, which applies

to statements that are “complete and accurate or a fair

No. 15-3049 9

abridgment of [an] official proceeding.” Solaia Tech., LLC v.

Specialty Pub. Co., 852 N.E.2d 825, 843–44 (Ill. 2006). Illinois

courts have repeatedly stressed the importance of a robust

privilege, as it “promotes our system of self-governance by

serving the public’s interest in official proceedings, includ-

ing judicial proceedings.” Id. at 842; see also, e.g., Lulay v. Peo-

ria Journal-Star, Inc., 214 N.E.2d 746, 747–48 (Ill. 1966) (“The

right to speak and print about such actions of government is

well established; denial of this right would be a serious in-

fringement of both State and Federal constitutional guaran-

tees of free speech and press.”).

A report constitutes a fair abridgment if it conveys “a

substantially correct account” to readers. Solaia Tech., 852

N.E.2d at 844–45 (citation omitted). Because the summary of

a legal proceeding “is bound to convey a somewhat different

impression than the … proceeding itself,” an abridgment is

typically unfair only if it “significantly change[s] the defa-

mation appearing in the governmental or public proceed-

ing.” O’Donnell v. Field Enters., Inc., 491 N.E.2d 1212, 1217

(Ill. App. Ct. 1986). A determination “is made by comparing

the gist or sting of the alleged defamation in the official re-

port or proceedings with the gist or sting in the news ac-

count.” Harrison v. Chi. Sun-Times, Inc., 793 N.E.2d 760, 773

(Ill. App. Ct. 2003). Contrary to Huon’s contention, the fair

report privilege typically raises a question of law, not a ques-

tion of fact, and is not concerned with the defendant’s al-

leged subjective intent. E.g., Solaia Tech., 852 N.E.2d at 842–

43; Missner v. Clifford, 914 N.E.2d 540, 551 (Ill. App. Ct. 2009).

Huon argues that the privilege should not apply to the

following sentence from the Jezebel article concerning his

criminal trial: “Huon’s version was that it was a consensual

10 No. 15-3049

encounter, and partly on the strength of the bartender’s tes-

timony that the woman had been drinking and asked where

to go to have fun, the jury believed him.” It bears noting,

however, that the district judge did not apply the fair report

privilege to this sentence, concluding instead that it did not

amount to defamation. See Huon v. Breaking Media, LLC, 75 F.

Supp. 3d 747, 768 (N.D. Ill. 2014) (statement “bolster[ed] ra-

ther than defame[d] his reputation” because it suggested

that “the jury found reason to discredit Jane Doe’s claims

and therefore acquitted Huon of the charges”).

We agree with the Gawker Defendants that the fair re-

port privilege applies to the Article’s references to consent

and the bartender’s testimony, since they appear to accurate-

ly capture the gist of what occurred at the trial. Huon’s

counsel emphatically and repeatedly referenced consent

during opening statements, and the multiple facts that Huon

points to as grounds for his acquittal, taken together, dove-

tail with a consent-focused defense strategy. In addition,

Huon makes no attempt to explain how the statement about

the bartender’s testimony mischaracterizes what she actually

said at trial.

We cannot, however, easily dismiss Huon’s argument

about the Article’s statement about the jury’s beliefs—

especially since there is no indication as to what swayed any

particular juror’s vote. The Gawker Defendants insist that

the statement is nothing more than a non-actionable opinion,

but we are dubious. The statement does not appear to be the

kind of subjective claim that courts applying Illinois law

have typically viewed as non-actionable, see, e.g., Wynne v.

Loyola Univ., 741 N.E.2d 669, 676 (Ill. App. Ct. 2000) (explain-

ing that non-actionable statements typically contain no “ob-

No. 15-3049 11

jectively verifiable factual assertion”), and the article’s con-

text more closely resembles a news article than an editorial.

However, we need not decide the issue, since we agree with

the district judge that the statement could not have injured

Huon’s reputation in the eyes of the public. (If anything, the

statement improved it.)

Huon also maintains that the Jezebel article failed to cap-

ture the gist of his lawsuit against the ATL Defendants in

two ways. First, he faults the article for omitting the fact that

the ATL Defendants called him a rapist on the same day he

was acquitted. However, we fail to see how omitting this

fact, by itself, caused the gist to be inaccurate. The Jezebel

article accurately conveyed the crux of Huon’s complaint

against the ATL Defendants—that ATL erroneously indicat-

ed Huon had committed multiple sexual assaults, and that

he was acquitted in the only case brought against him—and

Huon makes no attempt to explain why omitting the tem-

poral relationship between Huon’s acquittal and publication

of the ATL article misrepresents the nature of his lawsuit. In

essence, Huon complains that the Jezebel article omitted a

factual allegation of only modest significance; yet without

such omissions, abridgments of legal proceedings could

never occur.

Second, Huon faults the Jezebel article for republishing

the ATL article’s defamatory comments. See Brennan v. Kad-

ner, 814 N.E.2d 951, 970 (Ill. App. Ct. 2004) (“The republisher

of a defamatory statement made by another is himself liable

for defamation even if he gives the originator’s name.”). But

the Jezebel Article did not simply parrot the rape-based alle-

gations in the ATL article; rather, it summarized Huon’s crit-

icism of these allegations, and, if anything, indicated that the

12 No. 15-3049

criticism was founded, insofar as it noted that Huon was

“acquitted” and that the ATL article was based on a “mis-

taken[] belie[f].” So the fair report privilege applies to the

Jezebel article’s statements regarding Huon’s criminal trial

and subsequent lawsuit against ATL.

B. District Judge Erred in Dismissing Defamation

Claim Involving Third-Party User Comments

1. Communications Decency Act Not Applicable

The Communications Decency Act states, “[n]o provider

or user of an interactive computer service shall be treated as

the publisher or speaker of any information provided by an-

other information content provider.” 47 U.S.C. § 230(c)(1); see

also id. § 230(f)(3) (defining “information content provider”

as “any person or entity that is responsible, in whole or in

part, for the creation or development of information provid-

ed through the Internet or any other interactive computer

service”). This means that for purposes of defamation and

other related theories of liability, a company like Gawker

cannot be considered the publisher of information simply

because the company hosts an online forum for third-party

users to submit comments. See, e.g., Chi. Lawyers’ Comm. for

Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666,

671–72 (7th Cir. 2008) (concluding that Craigslist “is not the

author of the ads and could not be treated as the ‘speaker’ of

the posters’ words, given § 230(c)(1)”); Doe v. GTE Corp., 347

F.3d 655, 658–59 (7th Cir. 2003) (explaining that “entities that

know the information’s content do not become liable for the

sponsor’s deeds,” and noting that § 230(c) preempts contrary

state law).

No. 15-3049 13

A company can, however, be liable for creating and post-

ing, inducing another to post, or otherwise actively partici-

pating in the posting of a defamatory statement in a forum

that that company maintains. See Chi. Lawyers’ Comm., 519

F.3d at 671; see also Fair Hous. Council of San Fernando Valley v.

Roommates.Com, LLC, 521 F.3d 1157, 1166–67 (9th Cir. 2008)

(en banc) (concluding that a website was not a “passive

transmitter of information provided by others” but instead

helped develop the information by “requiring subscribers to

provide the information as a condition of accessing its ser-

vice, and by providing a limited set of pre-populated an-

swers”); FTC v. Accusearch Inc., 570 F.3d 1187, 1199–1200

(10th Cir. 2009) (concluding that a website developed the in-

formation by “solicit[ing] requests” for the information and

then “pa[ying] researchers to obtain it”).

Huon argues that the Act is inapplicable here because

Gawker’s comments forum was not a mere passive conduit

for disseminating defamatory statements. Rather, Gawker

itself was an information content provider, insofar as the

Gawker Defendants: (1) “encouraged and invited” users to

defame Huon, through selecting and urging the most defa-

mation-prone commenters to “post more comments and con-

tinue to escalate the dialogue”; (2) “edited,” “shaped,” and

“choreographed” the content of the comments that it re-

ceived; (3) “selected” for publication every comment that

appeared beneath the Jezebel article; and (4) employed indi-

viduals who authored at least some of the comments them-

selves.

The district judge concluded that these arguments failed

to plausibly state a claim for relief. But we see nothing

farfetched about Huon’s factual allegations—in particular,

14 No. 15-3049

his contention that one or more of the comments were au-

thored by Gawker employees. Rather than asserting one or

two standalone factual allegations concerning Gawker’s con-

trol over comments, Huon’s fourth amended complaint de-

votes over four pages to detailing Gawker’s alleged activi-

ties. Critically, the complaint hints at why Gawker employ-

ees might have anonymously authored comments, alleging

that increasing the defamatory nature of comments can in-

crease traffic to Gawker’s websites, which can in turn en-

hance the attractiveness of Gawker’s commenting system for

prospective advertisers. In doing so, the complaint quotes

several passages from a Reuters article that explains precise-

ly how Gawker was planning to “monetize” comments, and

why advertisers might find this commenting system appeal-

ing.

The Gawker Defendants may well be correct in contend-

ing that none of Huon’s various allegations actually oc-

curred, but this doesn’t mean that the allegations are so im-

plausible as to warrant dismissal under Rule 12(b)(6). See

Twombly, 550 U.S. at 555 (explaining that a complaint need

only plead enough facts to “raise a right to relief above a

speculative level, on the assumption that all the allegations

in the complaint are true (even if doubtful in fact)” (footnote

and citations omitted)); id. at 556 (“[A] well-pleaded com-

plaint may proceed even if it strikes a savvy judge that actu-

al proof of those facts is improbable, and that a recovery is

very remote and unlikely.” (citation and internal quotation

marks omitted)). Discovery is the proper tool for Huon to

use to test the validity of his allegations, and if he is unable

to marshal enough facts to support his claim the Gawker De-

fendants can move for summary judgment. Moreover, to the

extent Gawker and other publishers are concerned that our

No. 15-3049 15

ruling will result in a flood of frivolous lawsuits, we remind

them that sanctions are available under Federal Rule of Civil

Procedure 11 if it is determined that a plaintiff’s factual alle-

gations were plead with improper purpose, are frivolous, or

were known by plaintiff’s counsel to be lacking any factual

basis.

The Gawker Defendants proffer several arguments in

support of the Act’s application here, but none are availing.

For example, they argue that Huon’s allegations amount to

the kind of “traditional publishing activities” that other

courts of appeals have found warrant protection under the

Act. See, e.g., Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th

Cir. 1997) (Under § 230, “lawsuits seeking to hold a service

provider liable for its exercise of a publisher’s traditional ed-

itorial functions—such as deciding whether to publish,

withdraw, postpone or alter content—are barred.”); accord

Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 18–20 (1st

Cir. 2016); Jones v. Dirty World Entm’t Recordings LLC, 755

F.3d 398, 407 (6th Cir. 2014). But we need not wade into that

debate, since Huon has adequately pleaded that at least

some of the allegedly defamatory comments were authored

by Gawker employees—thus making Gawker an “infor-

mation content provider” under § 230(f).

In addition, the Gawker Defendants argue that Huon’s

allegation that the Defendants induced the comments is be-

lied by Gawker’s terms of use for commenters, which,

among other things, prohibited the posting of “harassing,

defamatory or libelous material.” But the mere fact that a

terms-of-use statement exists does not establish that all

comments complied with it.

16 No. 15-3049

The Gawker Defendants also argue that Huon failed to

plead facts plausibly establishing that Gawker authored the

allegedly defamatory comments. As discussed above, how-

ever, there is nothing implausible about this allegation, and

we reject the Gawker Defendants’ invitation to interpret

Rule 8, Twombly, and Iqbal as requiring more. Indeed, poten-

tially meritorious claims could be prematurely and improp-

erly dismissed if we were to accept the Gawker Defendants’

position, since the information necessary to prove or refute

allegations like Huon’s is typically available only to defend-

ants. Cf. Brown v. Budz, 398 F.3d 904, 914 (7th Cir. 2005)

(“Where pleadings concern matters peculiarly within the

knowledge of the defendants, conclusory pleading on ‘in-

formation and belief’ should be liberally viewed.” (citation

and internal quotation marks omitted)).

2. One Comment Is Defamatory

The fact that Huon has plausibly alleged that Gawker

employees created the defamatory comments, by itself, does

not allow him to press forward with his defamation per se

claim; the comments must actually constitute defamation.

We have already discussed the general principles of defama-

tion per se under Illinois law. But given the fact that the

statements at issue were shared in a comments forum, a brief

discussion of the distinction between actionable factual as-

sertions and non-actionable opinions is in order.

Opinions that do not misstate actual facts are protected

by the First Amendment and thus non-actionable. E.g., Madi-

son v. Frazier, 539 F.3d 646, 653 (7th Cir. 2008) (citing Milko-

vich v. Lorain Journal Co., 497 U.S. 1, 20 (1990)); Moriarty v.

Greene, 732 N.E.2d 730, 739 (Ill. App. Ct. 2000)). Illinois

courts consider the following three factors in differentiating

No. 15-3049 17

between factual assertions and opinions: “(1) whether the

statement has a precise and readily understood meaning; (2)

whether the statement is verifiable; and (3) whether the

statement’s literary or social context signals that it has factu-

al content.” J. Maki Const. Co. v. Chi. Reg’l Council of Carpen-

ters, 882 N.E.2d 1173, 1183 (Ill. App. Ct. 2008). Notably,

“[w]ords that are mere name calling or found to be rhetorical

hyperbole or employed only in a loose, figurative sense have

been deemed nonactionable.” Pease v. Int’l Union of Operating

Eng’rs Local 150, 567 N.E.2d 614, 619 (Ill. App. Ct. 1991); see

also Milkovich, 497 U.S. at 20 (statements that are not reason-

ably understood as stating actual facts should not be action-

able, in order to ensure that “public debate will not suffer for

lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’

which has traditionally added much to the discourse of our

Nation”).

Here, most—but not all—of the comments do not consti-

tute defamation per se. Some comments are not defamatory

because they do not directly concern Huon himself, but in-

stead relate to acquittal and guilt more generally. For exam-

ple:

SarahMc:

Just because a man is acquitted of rape does

not mean he did not commit rape. That a

jury would decide “not guilty” does not

magically erase what he did--if he did, in

fact, rape someone. The vast majority of

rapists are never convicted of rape. Does

that make them not rapists?

Dinosaurs and Nachos, girlfriend!:

18 No. 15-3049

Innocent until proven guilty is a widely

misunderstood concept. It basically means

that the mere fact that someone is charged

with a crime is not itself evidence that the

person committed a crime.

Then you go to court. In court, there will be

evidence presented. This evidence is where

an actual, legal determination is made. No-

body is declared “innocent” in a court of

law, they are found guilty or not guilty.

“Not guilty” is absolutely not the same

thing as “innocent” from a legal standpoint.

Those words do not mean the same thing in

the world of law. “Innocent until proven

guilty” is merely a concept for laymen to

try to keep their non-lawyer brains from

jumping to (nonlegal) conclusions.

Other comments amount to hyperbole that cannot be rea-

sonably understood as asserting objectively verifiable facts.

For example:

SorciaMacnasty:

Nevermind [sic] “serial rapist,” he sounds

like a foreal [sic] crazy person.

Still other comments, while referencing certain alleged facts

surrounding Huon’s criminal trial, do not directly accuse

him of committing a crime and are better classified as non-

actionable opinions—specifically, a rhetorical decrying of

general notions of “rape culture” and “victim blaming.” For

example:

No. 15-3049 19

cool_as_KimDeal:

Well shit! I didn’t know kicking back at a

bar and asking where I should go to have

fun meant that I hereby consent to any and

all sexual activity, with anybody, with this

bartender here as my witness. Can I sign

away my right to consent here on my bar

tab? Okay, great.

JadeSays:

Weird. I didn’t know “where do I go to

have fun” meant the same thing as “where

do I go to get raped.” It’s great that that ju-

ry made that clear to me, otherwise I could

get myself in some sticky situations like

apparently accidentally begging to be

raped.

AWE. SOME.

rachel723 (in reply to JadeSays’s comment):

you know it’s women like you who don’t

understand the rules that make the rest of

us ladies look bad.

I’m glad you learned before you actually

got raped not to complain now if you do,

you were asking for it!!

/sarcasm

HeartRateRapid:

Yea, all those crazy bitches going to the

cops and lying about being raped. Except

20 No. 15-3049

that false reports for stolen cars are more

common. False rape reports make up less

than 3% of all reported rapes, and as I’m

sure you know, it horrendously underre-

ported.

Only the following comment qualifies as defamation per

se under Illinois law:

vikkitikkitavi:

She jumped out of a moving car, leaving

her shoes and purse behind and ran bare-

foot through a cornfield and pounded on a

stranger’s door to help her?

Fuck this “he’s been acquitted” noise. He’s

a rapist alright, so we may as well call him

one.

This comment unequivocally accuses Huon of committing a

crime (rape), and nothing in its context suggests it is more

appropriately viewed as mere name-calling or stylistic exag-

geration. So Huon’s defamation per se claim as to this com-

ment may proceed.

C. False Light Invasion of Privacy and Intentional In-

fliction of Emotional Distress Claims Improperly

Rejected

The district judge rejected Huon’s false-light and inten-

tional-infliction claims based solely on the dismissal of Hu-

on’s defamation claims. It appears that this tethering is con-

sistent with Illinois law. See Madison v. Frazier, 539 F.3d 646,

659 (7th Cir. 2008) (When an “unsuccessful defamation per se

claim is the basis of [a plaintiff’s] false-light claim, his false-

No. 15-3049 21

light invasion of privacy claim fails as well.”). But that rea-

soning no longer holds, since Huon’s defamation per se claim

as to one third-party user comment was improperly dis-

missed. And because the false-light and intentional-infliction

claims have not been adequately briefed on appeal, we re-

verse the dismissal of those claims and remand for further

proceedings.

D. No Error in Denying Motion for Leave to File Fifth

Amended Complaint

Finally, Huon argues that the district judge erred in

denying him leave to file a fifth amended complaint to cure

certain alleged deficiencies relating to his defamation per

quod claim. Federal Rule of Civil Procedure 15(a)(1) instructs

that courts should freely give plaintiffs leave to amend their

complaints “when justice so requires.” However, district

judges have “broad discretion” to deny leave to amend,

“where there is undue delay, bad faith, dilatory motive, re-

peated failure to cure deficiencies, undue prejudice to the

defendants, or where the amendment would be futile.” Arre-

ola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008). “We review a

district court’s denial of leave to amend for abuse of discre-

tion and reverse only if no reasonable person could agree

with that decision.” Schor v. City of Chi., 576 F.3d 775, 780

(7th Cir. 2009).

Huon has not satisfied this high bar. The district judge

explained that in each of his previously amended com-

plaints, Huon had added new factual and legal allegations,

added or removed defendants, or revised certain statements

in an attempt to cure jurisdictional deficiencies. In addition,

the judge emphasized that the modifications in the proposed

complaint could have been made earlier, since they purport

22 No. 15-3049

to cure deficiencies highlighted in the Defendants’ motions

to dismiss Huon’s second amended complaint. Why Huon

did not modify his third or fourth amended complaints ac-

cordingly remains a mystery. So the district judge did not err

in finding that Huon had ample opportunity to plead his

claims, and justice does not require an additional bite of the

apple. See Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d

328, 347–48 (7th Cir. 2012) (finding no abuse of discretion in

denying leave to amend where plaintiffs had already had

three opportunities to state a claim); Emery v. Am. Gen. Fin.,

Inc., 134 F.3d 1321, 1322–23 (7th Cir. 1998) (same).

III. CONCLUSION

The judgment of the district court is AFFIRMED in part and

REVERSED in part, and the case is REMANDED for proceedings

consistent with this opinion.