# Colson v. Stieg

> Illinois Supreme Court · February 19, 1982 · 89 Ill. 2d 205

URL: https://www.frixlaw.com/law-library/cases/9743464

## Case

- **Full name:** JOHN CALVIN COLSON, Appellee, v. LEWIS STIEG, Appellant
- **Court:** Illinois Supreme Court
- **Decided:** February 19, 1982
- **Citations:** 89 Ill. 2d 205; 60 Ill. Dec. 449; 433 N.E.2d 246; 1982 Ill. LEXIS 227
- **Precedential status:** Published
- **Opinion:** Concurrence by Clark
- **Judges:** Clark, Moran, Ryan, Simon
- **Cited by:** 46 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9743464

## How later opinions describe it (automated extraction)

- holding that statements made by a university department chairman about a former assistant professor to a university personnel committee, that he had information that reflected adversely on the professor’s performance as a teacher, were protected only by qualified privilege; no…
- finding that the allegations of malice under the New York Times standard were sufficient to withstand a motion to dismiss where the complaint alleged that the defendant made the allegedly defamatory statement “maliciously, wilfully and intentionally” and “ ‘knowing it to be fa…

## Opinion text

JUSTICE CLARK, specially concurring:
I agree with the majority’s conclusion that the complaint states a cause of action. It alleges that false and defamatory statements were made with actual malice, and alleges actual malice in terms almost identical to those held sufficient by this court in Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill. 2d 257 . I do not think, however, that the plaintiff was required to allege actual malice according to the New York Times standard in order to state a cause of action. New York Times simply does not apply to this case.
It is not clear to me why, in a defamation action between two private persons — a college teacher and his department head — the New York Times requirement of knowing or reckless falsity should apply. I cannot subscribe to the majority’s apparent belief that defamation suits such as the one here so seriously threaten first amendment interests that imposition of the New York Times rule is necessary to protect them. Nor, apparently, does the United States Supreme Court. In Gertz v. Welch it declared that, in suits by private figures, imposing a standard of liability less rigorous than the New York Times standard does not impermissibly abridge freedom of speech and press. Gertz v. Welch (1974), 418 U.S. 323, 347 , 41 L. Ed. 2d 789, 809 , 94 S. Ct. 2997, 3010 .
The New York Times rule was first enunciated by the United States Supreme Court in a case involving a defamation suit brought by a public official, and was made mandatory only for such plaintiffs. (New York Times Co. v. Sullivan (1964), 376 U.S. 254 , 11 L. Ed. 2d 686 , 84 S. Ct. 710 .) The court later extended the rule to suits by public figures. (Curtis Publishing Co. v. Butts (1967), 388 U.S. 130 , 18 L. Ed. 2d 1094 , 87 S. Ct. 1975 .) The plaintiff’s status as a public official or a public figure, to whom the New York Times standard must be applied, or as a private figure, to whom the standard does not apply, is the key factor in the United States Supreme Court’s analysis of first amendment constraints on State-law remedies for injury to reputation. Annot., Progeny of New York Times v. Sullivan in the Supreme Court, 61 L. Ed. 2d 975 , 987-88 (1980); Christie, Injury to Reputation and the Constitution: Confusion Amid Conflicting Approaches, 75 Mich. L. Rev. 43 (1976); Hill, Defamation and Privacy under the First Amendment, 76 Colum. L. Rev. 1205 (1976); see Restatement (Second) of Torts secs. 580A (Defamation of Public Official or Public Figure), and 580B (Defamation of Private Person) (1977).
The Supreme Court’s definition of “public figure,” developed over a series of cases, includes any person having some special prominence in the affairs of society, or the resolution of public questions, either by having achieved such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts, or by voluntarily injecting himself into a particular public controversy and thereby becoming a public figure for a limited range of issues. (Curtis Publishing Co. v. Butts (1967), 388 U.S. 130 , 18 L. Ed. 2d 1094 , 87 S. Ct. 1975 ; St. Amant v. Thompson (1968), 390 U.S. 727 , 20 L. Ed. 2d 262 , 88 S. Ct. 1323 ; Gertz v. Welch (1974), 418 U.S. 323 , 41 L. Ed. 2d 789 , 94 S. Ct. 2997 ; Time, Inc. v. Firestone (1976), 424 U.S. 448 , 47 L. Ed. 2d 154 , 96 S. Ct. 958 ; Wolston v. Reader’s Digest Association, Inc. (1979), 443 U.S. 157 , 61 L. Ed. 2d 450 , 99 S. Ct. 2701 .) Clearly the plaintiff here is not within this category. Nor could he be deemed a “public official” simply because he is a public employee. (Hutchinson v. Proxmire (1979), 443 U.S. 111 , 61 L. Ed. 2d 411 , 99 S. Ct. 2675 .) In sum, there •is no Federal constitutional reason why a plaintiff cannot recover actual damages in a defamation suit upon a showing of the defendant’s negligence with regard to the truth or falsity of the defamatory statement. Gertz v. Welch (1974), 418 U.S. 323 , 41 L. Ed. 2d 789 , 94 S. Ct. 2997 ; Troman v. Wood (1975), 62 Ill. 2d 184, 192-94 ; Restatement (Second) of Torts sec. 580B (1977).
Nor do I think we are required by any reason of State law or policy to extend the New York Times scienter standard to cases of purely private defamation. I agree with Justice Schaefer’s observation, in Troman v. Wood, that such a limitation on redress for injury to reputation would unduly subordinate the rights of the individual. Troman v. Wood (1975), 62 Ill. 2d 184, 195 .
Here, moreover, the private defamation plaintiff’s right to recover is already limited by the common law doctrine of qualified privilege, sometimes also called conditional privilege:
“ ‘A privileged communication is one which, except for the occasion on which or the circumstances under which it is made, might be defamatory and actionable: 33 Am. Jur., p. 123 . *** Where circumstances exist, or are reasonably believed by the defendant to exist, from which he has an interest or duty, or in good faith believes he has an interest or duty, to make a certain communication to another person having a corresponding interest or duty, and the defendant is so situated that he believes, in the discharge of his interest or duty or in the interests of society, that he should make the communication, and if he makes the communication in good faith, under those circumstances, believing the communication to be true, even though it may not be true, then the communication is qualifiedly or conditionally privileged, even though the defendant’s interest or duty be not necessarily a legal one but only moral or social and imperfect in character ***.’ ” Zeinfeld, v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345, 349 , quoting Judge v. Rockford Memorial Hospital (1958), 17 Ill. App. 2d 365, 376-77 .
The majority opinion notes, and plaintiff conceded before the appellate court, that defendant in this case had a qualified privilege in making the statements concerning plaintiff to the faculty committee. (89 Ill. 2d at 209; Colson v. Stieg (1980), 86 Ill. App. 3d 993, 997 .) To overcome the privilege and hold the defendant hable, plaintiff would have to prove that the defendant did not believe the truth of the defamatory matter, or had no reasonable grounds to believe it true. (Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345, 350 .) This accomodation, through the rules of privilege, of the interest in free expression and uninhibited exchange of information is built right into the common law, and I do not think that the United States Supreme Court’s decisions in this area render or were intended to render them nugatory. Indeed, since New York Times was announced, a number of jurisdictions have found statements made in precisely the factual context presented in this case — a faculty committee’s tenure evaluation meeting — to be conditionally privileged, and have denied recovery on that basis. Stevens, Evaluation of Faculty Competence as a “Privileged Occasion,” 4 J. Coll. & Univ. Law 281 (1977).
The majority opinion does not base its determination that the New York Times standard should apply to this case on a finding that the plaintiff here was a public figure, or that the subject of the statement was a “matter of public or general interest.” (The United States Supreme Court, in Rosenbloom v. Metromedia, Inc. (1971), 403 U.S. 29 , 29 L. Ed. 2d 296 , 91 S. Ct. 1811 , flirted briefly with a rule that would have made the New York Times standard applicable whenever the defamatory statement concerned a matter of “general or public interest. ” This position was never adopted by a majority of the court, and was explicitly repudiated by the court in Gertz v. Welch (1974), 418 U.S. 323, 346 , 41 L. Ed. 2d 789, 809 , 94 S. Ct. 2997, 3010 .) Rather, primary reliance is placed on the importance of the subject matter of the communication to the speaker and hearers. (89 Ill. 2d at 212.) The argument, if I understand it correctly, is that because of the '“interest and concern” and “need for * * * .information” of speaker and hearers (89 Ill. 2d at 213), their first amendment interests in free expression and uninhibited exchange of information become so urgent that the “actual malice” rule is required to prevent them from being curtailed by the threat of liability for defamation.
No opinion of the United States Supreme Court or this court provides a precedent for this rationale. Rather, as discussed above, the common interest or concern of speaker and hearers is the traditional basis for finding that a privilege to make a defamatory statement exists.
The United States Supreme Court in Gertz acknowledged the importance of reputational interests and the “strong and legitimate State interest in compensating private individuals for injury to reputation.” ( 418 U.S. 323, 348-49 , 41 L. Ed. 2d 789, 810 , 94 S. Ct. 2997, 3011 .) Our State constitution provides that every individual is entitled to a remedy “for all injuries and wrongs which he receives to his person, privacy, property or reputation.” Ill. Const. (1970), art. I, sec. 12.
I think that defendant here had a qualified privilege under the rationale of Zeinfeld v. Hayes Freight Lines, Inc., and plaintiff need only allege and prove that the defendant publisher did not believe in the truth of the defamatory matter, or had no reasonable grounds for believing it to be true.
MORAN and SIMON, JJ., join in this special concurrence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9743464. Public record. Not legal advice.