O'DONNELL v. Field Enterprises, Inc.

JUSTICE McNAMARA, specially concurring:

I agree with the majority decision to affirm the trial court’s order granting defendants’ motion to dismiss, but I differ with the majority as to the basis of that decision. Defendants raised the defense of substantial truth, and the privilege that protects fair and accurate summaries of government proceedings. I have concluded that the trial court properly relied on defendants’ showing that the statements were substantially true, and properly decided not to reach the issue of privilege. I disagree with the majority’s analysis which disregards the defense of substantial truth and instead addresses the privilege defense. I also disagree with the majority’s analysis of the scope of the privilege defense.

It has long been recognized that truth is a defense to a defamation action and that literal truth need not be established. (Altman v. Amoco Oil Co. (1980), 85 Ill. App. 3d 104 , 406 N.E.2d 142 ; Kilbane v. Sabonjian (1976), 38 Ill. App. 3d 172 , 347 N.E.2d 757 ; Mitchell v. Peoria Journal-Star, Inc. (1966), 76 Ill. App. 2d 154 , 221 N.E.2d 516 .) A showing of the truth of the “gist or sting” of the defamatory imputation is sufficient. (Kilbane v. Sabonjian (1976), 38 Ill. App. 3d 172 , 347 N.E.2d 757 ; Mitchell v. Peoria Journal-Star, Inc. (1966), 76 Ill. App. 2d 154 , 221 N.E.2d 516 .) In the present case, the gist or sting of the defamatory imputation contained in the news reports is that plaintiff was indicted for distributing illegal drugs after being one of many targets under investigation in a major government operation.

Plaintiff contends that the news reports are false in that they link him to the gang members who were indicted for unlawful delivery of Talwin, while plaintiff’s indictment contains no such link. The news reports, however, are not based solely on the strict language of plaintiff’s indictment. They report information disseminated from the office of the United States Attorney through an information release, and from Sergeant Terrence J. McCue of the Chicago police department. The information release states that plaintiff was charged with distributing a controlled substance, phendimetrazine, outside of the course of his professional practice. The information release goes on to place plaintiff’s indictment into the context of the entire operation: “[T]hese Federal charges are the result of a lengthy coordinated investigation by federal and local law enforcement authorities aimed at the illegal distribution of Talwin (a heroin substitute) and other abuse controlled substances. [The United States Attorney] indicated that these types of controlled prescription drugs are sold by ‘pill pushers’ in Chicago’s neighborhoods, and his office is going to vigorously prosecute the medical providers, such as pharmacists and doctors, who are the initial sources of such drugs in the distribution chain.” Sergeant McCue’s affidavit accompanying defendants’ motions to dismiss also placed plaintiff’s indictment in the context of the massive investigation. It mentioned that many of those indicted were members of the El Rukn street gang and that one of the doctors indicted was plaintiff.

The link between plaintiff’s indictment for distributing one drug and the gang members’ indictments for delivering another drug, then, came from the government officials announcing the indictments. The reports accurately characterized plaintiff as one target in an investigation of massive proportions involving the illegal distribution of drugs by doctors, pharmacists and gang members. That is the real gist or sting of the articles. The news reports’ mischaracterization of plaintiff as a supplier of controlled substances to the gang members is nothing more than sloppy reporting on the part of the reporters. It does not amplify the real gist or sting of the statements. The government officials linked the doctors and pharmacists with the street gang in their releases, and the press truthfully arid accurately reported this link. Thus, the trial court properly granted defendants’ motion to dismiss because the news reports were truthful and truth is a defense to a defamation action.

Notwithstanding my conclusion that the majority unnecessarily relied on the privilege defense in affirming the trial court, I find that the majority distorts the law relating to that privilege. The relevant privilege is stated in the Restatement (Second) of Torts sec. 611 (1977): “The publication of defamatory matter concerning another in a report of an official action or proceeding or a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.” Illinois recognizes this privilege. Catalano v. Pechous (1980), 83 Ill. 2d 146 , 419 N.E.2d 350 , cert. denied (1981), 451 U.S. 911 , 68 L. Ed. 2d 300 , 101 S. Ct. 1981 ; Lulay v. Peoria Journal-Star, Inc. (1966), 34 Ill. 2d 112 , 214 N.E.2d 746 .

In order to bolster its conclusion that the issue of falsity is irrelevant here, the majority states that “the privilege exists even though the publisher does not believe that the defamatory statements from the proceedings are true and even though the publisher knows that they are false.” In support of this broad statement, the majority cites two authorities, comment a to sec. 611 of the Restatement (Second) of Torts (1977), and sec. 115 of Prosser & Keeton on Torts (5th ed. 1984). The majority misconstrues the law as stated in these two authorities, and fails to recognize other pertinent law.

Comment a to section 611 does state that “the privilege exists even though the publisher himself does not believe the defamatory words he reports to be true and even when he knows them to be false.” Our supreme court, however, has expressly refused to indicate approval of the “neutral reporting” doctrine, which provides “that a newspaper, under some circumstances, is protected against liability in reporting a defamatory statement about a public official or public figure even if the newspaper knew that the statement was false.” (Catalano v. Pechous (1980), 83 Ill. 2d 146, 170 , 419 N.E.2d 350, 361 .) In the face of this language from our supreme court, I do not believe that we should adopt the rule stated in comment a to section 611.

Furthermore, the Restatement does not stop at comment a. In comment b, it goes on to explain that the language in comment a has been significantly limited by holdings of the Supreme Court. “The privilege stated in this Section permits a person to publish a report of an official action or proceeding *** even though the report contains what he knows to be a false and defamatory statement. The constitutional requirement of fault is met in this situation by a showing of fault in failing to do what is reasonably necessary to insure that the report is accurate and complete or a fair abridgement.” (Restatement (Second) of Torts sec. 611, comment b (1977).) Thus, the Restatement recognizes that the privilege to publish a false and defamatory statement made by a government official is only protected when both the common law privilege’s element of fairness and the constitutional privilege’s element of fault are met.

The element of fairness which permeates the common law privilege for summaries of governmental proceedings is also seen in comment f to section 611: “Not only must the report be accurate, but it must be fair.” The report should not be written in such a way that “conveys an erroneous impression.” For example, whether the “report of one side of a trial is not as complete as that of the other side is a factor to be considered in determining whether the report, as a whole, is unfair.” (Restatement (Second) of Torts sec. 611, comment f (1977).) The majority’s statement, permitting the publication of false defamatory statements without any qualification, ignores this fundamental element of fairness.

The element of fault and underlying concern for truth extends throughout the law relating to the constitutional privilege for summaries of governmental proceedings. In considering these constitutional mandates in connection with section 611 of the Restatement, Prosser & Keeton on Torts states:

“In the Second Restatement of Torts [sec. 611], the position has been taken that malice in the sense of an improper motive or purpose in publishing a fair and accurate report of public proceedings containing a defamatory statement about the plaintiff will not constitute an abuse of the privilege or constitute the kind of fault that will justify the imposition of liability on the defendant, even when the publisher believed the defamatory statement made about the plaintiff to be false. But there is substantial judicial authority to the contrary, and the result does not appear to be constitutionally mandated.” W. Keeton, Prosser & Keeton on Torts sec. 115, at 838 (5th ed. 1984).

The Supreme Court has indicated its concern with publishers’ knowledge of falsehood on numerous occasions. In Time, Inc. v. Pape (1971), 401 U.S. 279 , 28 L. Ed. 2d 45 , 91 S. Ct. 633 , the court states that “a constitutional zone of protection [exists] for errors of fact caused by negligence. The publisher who maintains a standard of care such as to avoid knowing falsehood or reckless disregard of the truth is thereby given assurance that those errors that nonetheless occur will not lay him open to an indeterminable financial liability.” ( 401 U.S. 279, 291 , 28 L. Ed. 2d 45, 54 , 91 S. Ct. 633, 640 .) While the court in Time, Inc. v. Pape recognized the first amendment’s need for “breathing space,” and the need to tolerate some error, it added a final cautionary note: “ ‘Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation.’ ” (Time, Inc. v. Pape (1971), 401 U.S. 279, 292 , 28 L. Ed. 2d 45, 55 , 91 S. Ct. 633, 640 , quoting St. Amant v. Thompson (1968), 390 U.S. 727, 732 , 20 L. Ed. 2d 262, 267 , 88 S. Ct. 1323, 1326 .) The court in St. Amant also stated that: “There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” (St. Amant v. Thompson (1968), 390 U.S. 727, 731 , 20 L. Ed. 2d 262, 267 , 88 S. Ct. 1323, 1325 .) This reasoning was emphasized in another case: “[T]here is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust, and wide-open’ debate on public issues.” Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 340 , 41 L. Ed. 2d 789, 805 , 94 S. Ct. 2997, 3007 , quoting New York Times Co. v. Sullivan (1964), 376 U.S. 254, 270 , 11 L. Ed. 2d 686, 701 , 84 S. Ct. 710, 721 .

I recognize that these Supreme Court cases were not construing language such as the broad statements in comment to section 611 and in the majority opinion in the present case. However, those broad statements permit the publication of a defamatory statement which the publisher knows is false, and I find the Supreme Court’s underlying concern for avoiding an abuse of the applicable privilege of utmost importance and relevance here.

Furthermore, I disagree with the majority’s rejection, without discussion or any attempt to distinguish, Brown & Williamson Tobacco Corp. v. Jacobson (7th Cir. 1983), 713 F.2d 262 . The majority states that it declines to follow that case, which it says plaintiff relies mainly upon “to support his argument that the newspaper articles and the editorial are not privileged and are not a fair abridgement of the governmental and public proceedings.” Plaintiff does not, however, rely on the case as support for its argument against privilege. Plaintiff relies on Brown & Williamson Tobacco Corp. only as support for his argument that the news reports were not substantially true and were libelous per se. Moreover, the language in that case regarding the publishing of defamatory statements known to be false is dicta, and it is doubtful that plaintiff would rely on it. The court there reviewed the Illinois cases which discuss whether the privilege to republish government reports is forfeited by proof of actual malice, but declined to decide the issue, concluding that the issue would become moot if the jury, on remand, found the news report was not a fair summary. Thus, plaintiff does not rely on this dicta, and the majority unnecessarily rejects it. Additionally, I find nothing objectionable in the applicable language in that case. See Brown & Williamson Tobacco Co. v. Jacobson (7th Cir. 1983), 713 F.2d 262, 272-73 .

In sum, I disagree with the breadth of the majority’s statements permitting the publication of defamatory statements known to be false. The issue need not have been addressed. Moreover, such a broad statement endangers the constitutional principles set forth by the Supreme Court, misconstrues the law cited by the majority, and ignores our supreme court’s refusal to adopt such a policy.

I adopt the majority’s rationale regarding the discovery and procedural issues. I also conclude that the trial court properly found that the statements were substantially true and correctly granted defendants’ motion to dismiss plaintiff’s complaint.

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