# Appendix — CBS Inc. v. Brown & Williamson Tobacco Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1350%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1988 - **Citation:** 485 U.S. 993 ## Text IN THE Supreme Court of the United States OCTOBER TERM, 1987 CBS INc., a New York Corporation, and WALTER JACOBSON, Petitioners, v. BROWN & WILLIAMSON TOBACCO CORPORATION, Respondent. APPENDIX TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Of Counsel: DOUGLAS P. JACOBS CBS Inc. 51 W. 52nd St. New York, NY 10019 P. CAMERON DEVORE * MARSHALL J. NELSON STUART R. DUNWOODY DAVIS WRIGHT & JONES 2600 Century Square 1501 Fourth Avenue Seattle, WA 98101-1688 (206) 622-3150 * Counsel of Record WILSON - Epes Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001 APPENDIX INDEX Seventh Circuit Opinion, August 12, 1987 .........00000..... Seventh Circuit Order Denying Appellants’ Motion for Stay of Mandate, November 25, 1987 ................00000....... Seventh Circuit Opinion on Post-Judgment Interest, I RO aca asta raccctc sruchdamnsceianestniiccadedoncenice Seventh Circuit Opinion, July 14, 1983 _.......00--0.. District Court Docket Entry Order, August 7, 1986 ...... District Court Memorandum Opinion and Order, Au- Ee ep. RRR NEP to eT Ot ne Oey fae PE RTE CR NTO District Court Order of Dismissal, July 6, 1982 ........... Seventh Circuit Judgment, August 12, 1987 _................ Seventh Circuit Order Denying Petition for Rehearing, oR. ER ete ean ee ee ee Transcript of Perspective Broadcast, November 11, fs. Siena er ear aee Bex mee Or CSP a ope NNT Di RC, ONT ROPE Excerpts of Federal Trade Commission Report, May, TN ioc tsc acer ined pind acct on cat ate alee la APPENDIX IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Nos. 86-2474 and 86-2475 BROWN & WILLIAMSON TOBACCO CORPORATION, Plaintiff-Appellee—Cross Appellant, Vv. WALTER JACOBSON and CBS, INC., Defendants-A ppellants—Cross-A ppellees. Appeals from the United States District Court for the Northern District of Illinois, Eastern Division No. 82 C 1648—William T. Hart, Judge. ARGUED APRIL 3, 1987—-DECIDED AUGUST 12, 1987 Before BAUER, Chief Judge, Woop, JR., and POSNER, Circuit Judges. BAUER, Chief Judge. This case is the sequel to Brown & Williamson v. Jacobson, 713 F.2d 262 (7th Cir. 1983), in which we reinstated a libel suit that had been brought by Brown & Williamson Tobacco Corporation, which pro- duces and markets Viceroy cigarettes, against CBS, Inc. Following our remand, the district court held a jury trial that resulted in a verdict against CBS and an award of $3,000,000 in compensatory damages and an award of 2a $2,050,000 in punitive damages. Following post-trial mo- tions, the district court reduced the compensatory damage award to $1.00 but upheld the punitive damage award. See Brown & Williamson v. Jacobson, 644 F. Supp. 1240 (N.D. Ill. 1986). We affirm the district court’s decision on liability and punitive damages but reverse its compen- satory damage ruling and reinstate $1,000,000 of the $3,000,000 originally awarded by the jury. I. The attitude of most knowledgeable and disinterested: persons toward the tobacco industry is certainly negative; at least it has been negative for the past decade. In such an atmosphere, it becomes difficult to imagine how the tobacco people can be libeled. The bashing of the industry by government and private groups has become a virtual cottage industry. This case, however, demonstrates that general bum raps against the whole tobacco industry are different from specific accusations of skulduggery by a specific company or person. And this case involves some very specific statements against a very specific company in the tobacco industry. The facts are as follows: Walter Jacobson, an employee of the CBS-owned Chicago tele- vision station WBBM-TV, has served for a number of years as the co-anchor for the 10 p.m. weekday news- casts.’ In addition to fulfilling his duties as an anchor- man, Jacobson also delivers a nightly feature known as “Walter Jacobson’s Perspective.” When Jacobson delivers his Perspectives, he moves from his normal location at the anchor desk, which is located in the station’s news- room rather than in a separate studio, to a special “Per- spective” section of the newsroom. During the feature, the word Perspective appears on the screen with Mr. Jacobson’s signature below it. The Perspective segments 1The 10 p.m. news follows prime time programming in the cen- tral time zone. 3a are rebroadcast the following day during WBBM’s early evening news broadcasts. As part of its activities promoting the quality of its news personalities, CBS ran ads which stated that “Cwlith ten years of experience on our anchor desk, [Walter Jacobson] has established himself as the city’s most savvy political reporter . . . with contacts as solid as his credentials.” Jacobson was touted by CBS as some- one who “pulls no punches” and “lays it on the line.” According to the ads, he is a journalist who will “make you angry. Or make you cheer. Walter Jacobson is li- able to evoke all kinds of reactions ... and he’ll always leave you informed.” When he delivered his Perspective on November 11, 1981, he made the Brown & Williamson Tobacco Corporation very angry. Jacobson’s November 11 Perspective was the third in a series on the cigarette industry. The first in the series dealt with the political influence of tobacco manufac- turers while the second in the series discussed the failure of cigarette manufacturers to incorporate fire prevention features into their products. The final segment in the series, which was promoted on the day of the broadcast as “[t]obacco industry hooks children . . . Tonight at 10:00,” dealt with the marketing practices of the ciga- rette industry. After Jacobson had moved to the Perspec- tive section of the newsroom, his co-anchor, Harry Porter- field, introduced Jacobson’s Perspective by stating: For the past two nights in Perspective, Walter has been reporting on the companies that make ciga- rettes and the clout they carry in Washington. Tonight he has the last in his series of special reports, a look at how the cigarette business gets its customers. Jacobson then delivered his Perspective: 4a Ask the cigarette business how it gets its cus- tomers and you will be told over and over again, that it’s hard these days to get customers; that the good ‘old days are gone forever. The good old ads for cigarettes cannot be used anymore. Old St. Nick, for example, pushing Lucky Strikes because . . . “Luck- ies are easy on my throat.” The cigarette business can’t count on that kind of an ad anymore. Or the doctors pushing Camels; more doctors smoke Camels than any other cigarette. The business can’t count on an ad like that anymore, either. Nor can it count anymore on television. Pushing cigarettes on television is prohibited. Television is off limits to cigarettes. And so the business (the killer business) has gone to the ad business in New York for help; to the slicksters on Madison Avenue, with a billion dollars a year for bigger and better ways to sell cigarettes. Go for the youth of America. Go get ’em, guys. Get some young women, give them some samples. Pass them out on the streets, for free, to the teen- agers of America. Hook ’em while they’re young. Make ’em start now. Just think how many cigarettes they’ll be smoking when they grow up. Oh, here’s another cigarette-slickster idea. The Merit report wants your opinion; a survey, they say, on current events. A $270,000 Merit wagon. Walk in, children, and let us know what you think about President Reagan. Get involved, children. Thank you, on behalf of Merit cigarettes. Or another ciga- rette-slickster idea. Go for the children through sports. You’ll never guess who’s likely to be a win- ner at the Winter Olympics. How about Rudd Pyles, from Colorado? But better than that, how about Benson & Hedges? At-a-way. The best possible way to addict the children to poison. There are more 5a subtle ways, as well. A scene, for example, in Super- man II. A bus crashing into a truck. Could be any truck, couldn’t it? But, in a movie that’s being seen by millions of children who love Superman, the bus crashes into a Marlboro truck. Jacobson then reached the portion of his Perspective that the jury and the district court found libeled Brown & Williamson: The cigarette business insists, in fact, it will swear up and down in public, it is not selling cigarettes to children; that if children are smoking (which they are, more than ever before), it’s not the fault of the cigarette business. Who knows whose fault it is, says the cigarette business. That’s what Viceroy is saying. Who knows whose fault it is that children are smoking? It’s not ours. Well, there is a confidential report on cigarette ad- vertising in the files of the federal government right now, a Viceroy advertising [sic]. The Viceroy strat- egy for attracting young people (starters, they are called) to smoking. "“For the young smoker a cigarette falls into the same category with wine, beer, shaving, or wearing a bra,” says the Viceroy strategy. “A declaration of independence and striving for self-identity. There- fore, an attempt should be made,” says Viceroy, “to present the cigarette as an initiation into the adult world, to present the cigarete as an illicit pleasure, a basic symbol of the growing-up maturity process. An attempt should be made,” says the Viceroy slick- sters, “to relate the cigarette to pot, wine, beer, and sex. Do not communicate health or health-related points.” That’s the strategy of the cigarette-slicksters, the cigarette’s business which is insisting in public. . . we are not selling cigarettes to children. They’re not slicksters. They’re liars. : 6a While Jacobson was making his statements about Vice- roy, superimposed on the screen was a current Viceroy ad featuring two packs of Viceroy Rich Lights, a golf ball, and a part of a golf club. The relation of that par- ticular ad to “pot, wine, beer, and sex” advertisements is not clear. Jacobson testified that the golf club ad was used only as a means of identifying the brand name for the viewer. The “confidential report in the files of the federal gov- ernment” referred to by Jacobson was a report by mem- bers of the staff of the Federal Trade Commission (FTC). The report first came to the attention of Jacob- son’s researcher, Michael Radutzky, in the summer of 1981 when Radutzky saw an article in a Kentucky news- paper that referred to the FTC report. Radutzky, who went on to become the producer of the 5:00 p.m. and then the 10:00 p.m. news at WBBM-TV, received copies of the pertinent pages of the FTC report from the author of the newspaper article. The FTC report stated that documents obtained from Brown & Williamson and one of its advertising agencies, Ted Bates & Company, “set forth the development of an advertising strategy for Viceroy cigarettes designed to suppress or minimize public concern about the health ef- fects of smoking.” The report stated that the documents showed that Bates, which had the Viceroy account in 1975, requested a marketing and research firm, Market- ing and Research Counselors, Inc., (MARC) to assist Bates im developing a marketable image for Viccroy cigarettes. After conducting a number of focus group in- terviews on the subject of smoking, MARC delivered a report, which was authored by N. Kennan, to Bates. The MARC report made recommendations on what its author thought were the important elements of a success- ful cigarette advertising campaign. As summarized by the FTC report, “the basic premise of the [MARC] re- Ta port’s recommendations is that since there ‘are not any real, absolute, positive qualities and attributes in a ciga- rette,’ the most effective advertising is designed to ‘reduce objections’ to the product by presenting a picture or situ- ation ambiguous enough to provide smokers with a ra- tionale for their behavior and a means of repressing their health concerns about smoking.” The MARC report discussed in a later chapter how “starters” could be introduced to the Viceroy brand. The FTC report quoted the MARC report’s discussion of how the young smoker related to cigarettes. “For them,” the MARC report opined, “a cigarette, and the whole smok- ing process, is part of the illicit pleasure category. .. . In the young smoker’s mind a cigarette falls inte the same category with wine, beer, shaving, wearing a bra (or purposely not wearing one), declaration of independ- ence and striving for self-identity. For the young starter, a cigarette is associated with introduction to sex life, with courtship, with smoking ‘pot’ and keeping late studying hours.” FTC report at 17 (quoting MARC report) (em- phasis in MARC report). The MARC report went on to suggest’ a strategy for attracting “starters” to the Vice- roy brand based “on the following major parameters”: Present the cigarette as one of a few initiations into the adult world. Present the cigarette as part of the illicit pleasure category of products and activities. In your ads create a situation taken from the day- to-day life of the young smoker but in an elegant manner have this situation touch on the basic sym- bols of the growing-up, maturity process. To the best of your ability, (considering some legal constraints), relate the cigarette to “pot,” wine, beer, sex ete. Don’t communicate health or health-related points. 8a FTC report at 18 (quoting MARC report). The FTC report then stated that Brown & Williamson had adopted many of the ideas contained in the MARC report in the development of an advertising campaign for Viceroy. Specifically, the report noted that in a document it had received directly from Brown & Williamson, rather than from an advertising agency or a firm hired by the adver- tising agency, Brown & Williamson had indicated that it must prove consumers with a rationalization for smok- ing and a “means of repressing their health concerns about smoking a full flavor Viceroy.”” FTC report at 18 (quoting Viceroy strategy paper dated March 3, 1976). The Viceroy strategy paper also indicated that other major full flavor brands had either consciously or un- consciously “coped” with the smoking and health issues in advertising by appealing to repression. The strategy paper suggested that Viceroy’s advertising objective should be to “communicate effectively that Viceroy is a satisfying flavorful cigarette which young adult smokers enjoy, by providing them a rationalization for smoking, or, a repression of the health concern they appear to need.”” FTC report at 19 (citing Viceroy strategy paper). The FTC report then cited three Viceroy advertising strategies that were used in a six-month media cam- paign conducted in three test cities in 1976. The first campaign was the “satisfaction” campaign which was intended to provide a “rationalization.” Specifically, the intention was to convey the message that “Viceroy is so satisfying that smokers can smoke fewer cigarettes and still receive the satisfaction they want.” The second campaign, the “tension release” campaign, was intended to convince the smoker that Viceroy’s satisfying flavor would help the smoker in a tense situation. The third campaign, the “feels good” campaign, was intended to repress concerns that smokers might have about smok- ing by justifying it with the simple slogan “if it feels good, do it; if it feels good, smoke it.” FTC report at 9a 20 (citing internal memorandum dated July 14, 1976). None of these campaigns was cited in the FTC report as an example of Viceroy implementing the MARC re- port strategy to relate the cigarette to “pot,” wine, beer, and sex. The FTC report stated, however, that Brown & Williamson documents did indicate that the company had “translated the advice on how to attract young ‘starters’ into an advertising campaign featuring young adults in situations that the vast majority of young peo- ple probably would experience and in situations demon- strating adherence to a ‘free and easy, hedonistic life- style.’”” FTC report at 20 (citing document titled Vice- roy Marketing/Advertising Strategy dated January 26, 1976). After reviewing the report, Radutzky contacted mem- bers of the FTC staff who had drafted the report to con- firm that the partial copy of the report he had received from the Kentucky newspaper was accurate. The staff members told Radutzky that they could not send him the confidential documents cited in the report but did confirm ‘ that the report and its findings were accurate. Radutzky also spoke on at least two occasions with Brown & Williamson public relations officer Thomas Humber. At trial, CBS introduced two internal Viceroy documents, which were written by Humber for his su- periors, that relate the substance of the conversations that Humber had with Radutzky. In a conversation on November 4, 1981, Humber stated that the internal Vice- roy memoranda could only be understood in context. The context included the fact that the Ted Bates agency was told prior to their submission of the memo that it was in trouble on the Viceroy account because Brown & Wil- liamson was unhappy with its work. Humber told Radutzky that Brown & Williamson had not requested any ad campaign similar to the one suggested by Bates. Moreover, he stated that Brown & Williamson had re- jected the strategy embodied in the documents submitted 10a by Bates. Humber also noted that “thus far [we] have been unable to find copies of the proposed ads, to the best of our knowledge, no ads as described by the memo were ever actually published.” Radutzky was also in- formed that partly as a result of Brown & Williamson’s dissatisfaction with the specific proposal submitted by Bates, Brown & Williamson had terminated Bates’ par- ticipation in Viceroy advertising. In a conversation with Radutzky on November 5, Humber told Radutzky that all Brown & Williamson ads must have the approval of the legal department and the highest levels of senior management. He also stated that the legal department did not get involved in the creative process and did not review the ads until they “are at the point of worked-up ads.”” Humber stated that the proposals referred to in the FTC report were similar to a proposed libelous story that a young inexperienced reporter might submit to his editors but that was corrected by a news organization’s editors and attorneys. Humber stated that in such a case no legitimate criticism could be leveled at the news organization. He clearly implied that because Brown & Williamson had never run any of the controversial pro- posals as ads, it would be unfair to criticize Brown & Williamson simply because such proposals had been made by individuals who could not authorize an ad campaign. In addition to contacting Brown & Williamson, Ra- dutzky, on Jacobson’s request, conducted a search for “pot,” wine, beer and sex ads that were used by Vice- roy. Unable to locate any such ads, Radutzky reported the result of his search to Jacobson. Radutzky also com- mented to Jacobson prior to the broadcast that Jacobson’s script for the broadcast omitted Brown & Williamson’s statement that it had never adopted a “pot,” wine, beer or sex strategy. Jacobson did not alter his script. During the course of this investigation, Radutzky made contemporaneous interview notes and extensive hand- written notes on his copy of the FTC report. In addi- aac lla tion, he developed an eighteen-page sample script for the broadcast. The sample script, which was duplicated at least six times and distributed to various people in the newsroom including Walter Jacobson, reported “both sides of the issue.” The jury never saw much of Ra- dutszy’s work product. Prior to trial, Radutzky de stroyed all of his contemporaneous interview notes, five of the ten pages of the FTC report including those pages that contained the recommendations from the MARC re- port, and fifteen of the original eighteen pages of his sample script. CBS was unable to produce any of the copies of the sample script that Radutzky had distributed in the newsroom. Radutzky testified that he destroyed his materials as part of a general housecleaning after the original com- plaint in this case had been dismissed by the district court but before he became aware that Brown & William- son appealed that dismissal. His destruction of the docu- ments contravened a CBS retention policy that provides that once litigation has commenced “any and all related ‘materials should be retained until specifically released.” The policy also provides that “[o]bviously if there is a . . . pending legal action, our policy is to retain all per- tinent materials unless specifically released by the Law Department.” Although Radutzky conceded that he did destroy the documents without the approval of the Law Department at CBS, he stated that he was unaware that the policy existed. When Radutzky destroyed the documents, he was no longer assigned to the Perspective unit and therefore his desk was in a completely different section of the news- room. Nonetheless, he apparently made a point of “clean- | ing house” in the Perspective section of the newsroom even though he had not worked there for several months. Brown & Williamson attempted to prove that Jacob- son’s charges were false by introducing every Viceroy 12a advertisement published between 1975 and 1982. They argued to the jury that none of these advertisements was a “pot,’’ wine, beer, or sex ad. In addition, Robert Pitt- man, the Brown & Williamson Vice President whose ap- proval was required before any Viceroy ad could be pub- lished, testified that he had never seen the MARC report prior to litigation in this case. Pittman also stated that Brown & Williamson had never asked Bates to design any “pot,” wine, beer, and sex ads. William Scholz, the Bates employee in charge of the Viceroy account, con- firmed that Brown & Williamson had never asked Bates to utilize a “pot,” wine, beer, and sex strategy in de- veloping advertisements. Brown & Williamson put forth evidence that it ad- hered vigorously to the Cigarette Advertising Code, which bars advertising to persons under 21. In addition to adhering to the Code, Brown & Williamson took the additional step of establishing a detailed procedure to ensure that its advertising agencies did not use models who either were or appeared to be younger than 25. When undertaking advertising campaigns that involved the distribution of samples, Brown & Williamson re- quired the individuals distributing the samples to sign statements promising not to distribute cigarettes to peo- ple under 21. Walter Jacobson also testified at trial. Jacobson indi- cated that he had read the FTC report prior to delivering his Perspective and was aware that the FTC report was quoting a document prepared by Market and Re- search Counselors. He agreed that the way in which the Perspective was delivered, with the Viceroy graphics on the screen at the time he was referring to the “pot,” wine, beer, and sex strategy, would convey the impres- sion that the “pot,” wine, beer, and sex comment was made by Viceroy itself rather than MARC. After agree- ing that such an impression would be created, Jacobson added that “I even said that, ‘Viceroy says.’ ” 13a Jacobson’s testimony indicated that he had reviewed Radutzky’s sample script prior to delivering the Perspec- tive. Jacobson corroborated part of Radutzky’s testi- mony by confirming that Radutzky had told him that he had been unable to find any ads showing that Brown & Williamson had implemented a “pot,” wine, beer, and sex advertising strategy. Jacobson was also aware that Ra- dutzky had spoken with Brown & Williamson and that the company denied adopting the strategy and therefore had no advertisements that they could supply that would reflect that strategy. According to Jacobson, he para- phrased Viceroy’s denial in the broadcast when he stated “Viceroy insists . . . whose fault is it that children are smoking? It’s not ours.” 3 Jacobson also agreed, at least at one point, that it would be fair to say that when he wrote the Perspective script he wrote it in the present tense with respect to Viceroy and the purported “pot,” wine, beer, and sex strategy. For example, he agreed that when he used a phrase such as “/t]hat’s what Viceroy is saying,” he - realized that it would be interpreted by any reasonable listener as referring to the present tense. At other points during his testimony, however, Jacobson appeared to state that some language used during the broadcast was past tense. While recognizing that there was no indication in the Perspective that the strategy mentioned in the MARC report had been recommended in 1975, six years before the broadcast, Jacobson testified that because the FTC report described it as “the Viceroy strategy” he did not believe that he gave the viewer “an impression of time that varies from the facts.” Under further ques- tioning, Jacobson did agree that the phrase “[a]n at- tempt should be made, says the Viceroy slicksters to re- late the cigarette to ‘pot,’ wine, and beer’ would be “more current” than the phrase “the Viceroy strategy.” ° 2 Jacobson also agreed that when he said “Viceroy slicksters” he was talking about Brown & Williamson and the people who make Viceroy cigarettes as opposed to their advertising agency. l4a Jacobson also noted that there was a distinction be- tween a report, an analysis, a commentary and an edi- torial. An example of a report, according to Jacobson, would be if a newsperson went on the air and said “tlhe FTC says that Viceroy did such and such, and Viceroy says it did not.” He agreed that when deliver- ing such a statement a reporter should try to be fair and accurate. Jacobson also stated that “[mly life is re search” and indicated that what he said in the Perspec- tive was “absolutely true.” On direct examination, Jacobson’s counsel brought out his client’s state of mind at the time of the broadcast. Jacobson asserted that he “believed” at the time he de- livered the Perspective that it was truthful and that it was a fair and accurate summary of what the Federal Trade Commission had said about Viceroy cigarettes. Jacobson also testified about what he “intend[ed]” to inform the viewers about Viceroy when he “sat down to write” the Perspective. When cross examined, Jacobson confirmed that he had testified on direct examination about what he was thinking when he wrote the script and attempted to refute the allegation that he “really [had] no recollection at all of what [he] thought about in” preparing the script by stating that such an assertion was “absolutely untrue.” Brown & Williamson’s counsel then read Jacobson’s 1984 deposition in which the follow- ing exchange took place: Question: I just want to know if you have a recollection whether in 1981, when you called the manufacturers of Viceroy cigarettes liars, you were attempting then to be objective? Jacobson: I don’t remember what I was think- ing now when I wrote that three and a half years ago. Question: Can you recall whether when you wrote the November 11, 1981 script, you were try- ing to fairly present both sides of the question? l5a Jacobson: I don’t remember what I was thinking when I wrote that script. It’s hard to remember three and a half years ago. Question: You don’t remember what was in your mind? Jacobson: Right. Question: You do remember you wrote the script though? Jacobson: I don’t remember writing it. I do see it. Question: You don’t remember writing it? Jacobson: Yes, I mean—I don’t remember sitting at my typewriter, what I was thinking and how my hands were working. I see the script. It has a date. I wrote it, obviously, and I remember being involved in a series of reports on that subject. On redirect examination, Jacobson asserted that his rec- ollection of his state of mind at the time of the broadcast had improved from the time of his deposition to the time of the trial because he had “gone over everytning that ha[d] been given [him] by a whole team of lawyers” including the script that he used during his Perspec- tive and the videotape of the actual broadcast. Jacob- son stated that as a consequence his memory was jarred and he was able to “just recall more specifically some things that I didn’t recall from before.” II. Concerned that traditional state law actions for defa- mation might interfere with the First Amendment guar- antees of free expression, the Supreme Court held in the landmark case of New York Times v. Sullivan, 376 U.S. 254 (1964), that a public official could recover in a libel action only if the official was able to show that the al- leged defamatory statement was made with “ ‘actual malice’—that is with knowledge that it was false or with reckless disregard of whether it was false or not.” Jd. at 279-80. This constitutional standard, which was ex- 16a tended to public figures such as Brown & Williamson in Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), requires that the plaintiff prove by “clear and convincing evidence” that the defendant either knew the statement was false or “in fact entertained serious doubts as to [its] truth... .” St. Amant v. Thompson, 390 U.S. 727, 731 (1968). In New York Times, the Supreme Court also outlined the role that a reviewing court must play in insuring that the First Amendment is not infringed upon. In re- viewing a defamation verdict, courts must exercise par- ticularly careful review. They “must ‘make an independ- ent examination of the whole record,’ . . . so as to assure [themselves] that the judgment does not constitute a for- bidden intrusion on the field of free expression.” New York Times, 376 U.S. at 285 (quoting Edwards v. South Carolina, 372 U.S. 229, 235 (1963)); see also Tavou- lareas v. Piro, No. 83-1605, slip op. at 24-27 (D.C. Cir. Mar. 13, 1987) (en banc). In Bose v. Consumers Union, 466 U.S. 485 (1984), the Court reaffirmed the New York Times mandate of independent appellate review that it had applied “uncounted times before.” Jd. at 514. The Court stated that “[t]he question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amend- ment protection is not merely a question of the trier of fact.” Id. at 511. The Court held that appellate judges “must exercise independent judgment and determine whether the record establishes actual malice with con- vicing clarity.” Jd. Jacobson and CBS argue that Bose mandates independent appellate review of all issues of “constitutional fact,” see Bose, 466 U.S. at 508, n.27, which they contend includes the issues of falsity and opin- ion. Brown & Williamson counters that Bose allows ex- panded appellate review “solely of the issue of actual malice, and of no other question.” Appellee’s Brief at 7 (citing Bose, 466 U.S. at 514 n.31). There is also a dis- 17a pute about what independent appellate review means. The District of Columbia Circuit in Tavoulareas v. Piro, slip op. (D.C. Cir. 1987), recently summarized the two positions. “Under one view, Bose’s mandate of de novo review means precisely that, with no deference at all to be accorded any jury finding germane to actual malice. Under the contrary view, Bose does not alter the tradi- tional rules governing the review of jury verdicts and thus judicial deference is constitutionally mandated to presumed jury findings of underlying facts, evaluations of credibility, and the drawing of inferences.” Slip op. at 24-25. The extent to which Bose mandates independent appel- late review “as to findings of underlying facts, evalua- tions of credibility, and the drawing of inferences” is still an open question. See Tavoulareas, slip op. at 25 (declining to decide the issue). But see Tavoulareas, slip op. at 4 (Wald, C.J., concurring in judgment) (arguing that Tavoulareas majority does “reexamine and reject ‘permissible’ inferences which the jury might have drawn to support their verdict”). We decline to “tackle the knotty constitutional issue regarding what constitutes in- dependent review under Bose...” Tavoulareas, slip op. at 26. We also decline te decide whether Brown & Wil- liamson is correct in arguing that Bose’s mandate of in- dependent appellate review encompasses only the issue of actual malice. We can avoid these issues by accepting, for purposes of this case only, the defendants’ argument that Bose man- dates a wide-ranging appellate review, with little or no deference to the jury’s findings, of all aspects of this case including falsity and opinion. We emphasize that we are not deciding the correctness of the defendants’ interpre- tation of Bose. Rather, we are applying their interpre- tation because we can avoid the difficult issues left un- resolved by Bose without affecting the outcome of this case because both deferential and de novo review yield the same result. 18a Of course, even under defendants’ interpretation of Bose, there is a limit to the amount of independent re- view that an appellate court can engage in. For example, we are incapable of making complete credibility deter- minations because we are unable to observe the demeanor of witnesses. We can, however, review the transcript of a witness’s testimony and determine whether the record would give us any reason to question the jury’s credibil- ity findings. When the record fully supports the jury’s determinations, as in this case, Bose obviously requires the appellate court to affirm the decision below. In short, we do not believe, nor do defendants argue, that Bose requires an appellate court to believe the unbelievable and to accept the untenable. At most, Bose requires an appellate court to review all the findings below, to the extent that it can within the confines of an appellate rec- ord, and determine whether the judgment below is cor- rect. In our discussion, we will undertake a thorough review of all aspects of this case including opinion, fals- ity, fair summary, and actual malice and determine whether the evidence supports the jury verdict. ITI. CBS and Jacobson raise three main liability defenses. First, they contend that the broadcast was an expression of editorial opinion protected by the First Amendment. Second, they argue that the statements of fact that were in the broadcast, including the summary of the FTC re- port, were substantially true. Finally, they assert that Brown & Williamson did not meet its burden of proving actual malice. A. Opinion Both parties ask us to apply a test used by the District of Columbia Circuit, see Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984) (en banc} (plurality opinion of Starr, J.), cert. denied, 471 U.S. 1127 (1985), in deciding = 19a whether Jacobson’s Perspective was opinion protected from a defamation suit by the First Amendment.’ Under the test, a court must first analyze whether the statement has “a precise core of meaning for which a consensus of understanding exists or, conversely, whether the state- ment is indefinite and ambiguous.” 750 F.2d at 979. Second, a court must consider whether the statement is capable of being objectively characterized as true or false. Third, a court should review the full context of the state- ment because the language surrounding an alleged de- famatory statement may influence “the average reader’s readiness to infer that a particular statement has factual content.” Jd. Fourth, in addition to considering the im- mediate context in which a statement is made, a court should also consider the broader social context into which the statement fits. Jd. at 983. In support of their argument that the literary and so- cial context in which the Perspective was made requires this court to conclude that the Perspective was opinion protected by the First Amendment, defendants note that Jacobson delivered his Perspective away from the anchor desk With the word “Perspective” written on the screen near Jacobson’s signature. They also argue that because the Perspective was delivered in a vehement and caustic manner and the phrase “the killer business’ was used near the beginning of the Perspective, viewers should have been alerted to Jacobson’s harsh opinion of the -techniques of cigarette advertisers. They cite as an ex- ample Jacobson’s statement that the cigarette “slicksters . . are not slicksters, they’re liars.” In addition, defend- ants argue that the use of phrases such as “slicksters,” 3’ Although we are using the test embodied in Judge Starr’s opin- ion, we do so only at the request of the parties. Because the par- ties agree on the Ollman test, we need not decide whether that test is the appropriate one to assist a court in differentiating fact from opinion. See generally McCabe v. Rattiner, 814 F.2d 839 (1st Cir. 1987). 20a “the killer business,” “hook ’em while they’re young,” “addicting the children to poison,” and “they’re liars,” show that the broadcast when considered in context is really protected opinion. CBS’s opinion argument appears to be best summarized by their contention that “|t]he tone of the broadcast should have immunized CBS and Mr. Jacobson from liability—not exposed them to it.” Appellant’s Brief at 34. In making its “context is determinative” argument, CBS ignores some important facts. First, Jacobson’s co- anchor began his introduction for the Perspective by stat- ing that “Walter has been reporting [for the past two nights] on the companies that make cigarettes and the clout they carry in Washington.” (Emphasis added.) In completing the introduction, Jacobson’s co-anchor stated that “[t]onight he has the last in his series of special reports, a look at how the cigarette business gets its cus- tomers.” The Perspective was also promoted during the day of the broadcast as “[t]obacco industry hooks chil- dren... Tonight at 10:00.” The introduction itself and the promotional advertisements would appear to lead reasonable viewers to believe that what they were about to hear was a news report by Walter Jacobson. In addi- tion, the literary context in which the statement was made also provides no assistance to CBS. CBS concedes, as it must, that the entire Perspective was filled with spe- cific examples of cigarette marketing techniques that would attract young people. Rather than preparing the viewer for Jacobson’s opinion about Viceroy, the literary context prepared the viewer for an example of how Vice- roy went about attracting young smokers. An example (whether true or not) is exactly what Jacobson provided. The defendants appear to realize that the literary and social context does not automatically immunize the entire broadcast as opinion because they concede that “not... every statement in the broadcast is automatically immune from factual analysis.” Appellant’s Brief at 37 n.14. De- 2la spite this concession, the defendants have failed, with one minor exception, to argue to this court what specific statements constitute protected opinion.* The defendants probably prefer to avoid specifics because even a cursory analysis of the relevant parts of the broadcast using the first two factors in the Ollman analysis (‘‘core meaning” and the extent to which a statement can be characterized as true or false) reveals that the statements are factual. “The cigarette business insists ... it is not selling ciga- rettes to children. . . . That’s what Viceroy is saying. Who knows whose fault it is [that children are smoking more]? It’s not ours.” There is an obvious “core mean- ing,” see Oliman, 750 F.2d at 979, to this statement (Viceroy says it is not selling cigarettes to children) that is either true or false. It is not an indefinite or am- biguous statement. /d. Jacobson also says that “[wlell, there is a confidential report on cigarette advertising in the files of the federal government right now, a Viceroy advertising [sic]. The Viceroy strategy for attracting young peopie (starters, they are called) to smoking.” The Perspective then states what the “Viceroy strategy says” and what “the Viceroy slicksters say.” The critical pas- sages of the Perspective are without question factual under the first two Ollman factors. The only issue is whether the quoted statement is true or false. We note that in holding that the broadcast is fact and not opinion, we simply agree with the view that Jacob- son expressed at trial. Jacobson, in attempting to draw a distinction between a report, an analysis, a commen- tary, and an editorial, stated that a report would be if a reporter went on the air and said “|t|he FTC says that Viceroy did such and such, and Viceroy says it did not.” 4 The only relevant part of the broadcast that the defendants con- tend is opinion is Jacobson’s closing statement that “they’re liars.” As Brown & Williamson points out, even assuming that “they’re liars” can be characterized as opinion, it does not make the various other allegations against Brown & Williamson any less factual. 22a Jacobson’s example of a report is, of course, essentially what he delivered to his viewers on November 11, 1981. The fact that a report is delivered in a caustic tone does not turn a statement of fact into a statement of opinion. Our holding on this issue is also supported by the state- ments of Jacobson’s trial counsel. In closing argument, it was asserted that the statements Jacobson made (as in- terpreted by Jacobson and CBS) were “absolutely, totally, 100% true.” While an opinion can be right or wrong, it cannot be true or false. Jacobson’s trial counsel recog- nized this and so do we. B. Falsity In their closing argument at trial, CBS argued at three separate points that “when you look at the Perspective closely you will see that there is no statement whatsoever about any advertising being run, and the suggestion made [by Brown & Williamson] that advertising is being run . is only an attempt to take your eye off the ball of what the real issue in this case is.” CBS also stated that Jacobson “never in his Perspective said anything about running pot, wine, beer and sex advertisements.” It re- iterated this point later in its closing argument: “|a] gain, I ask you: Is there a word? Is there a single word that says that Viceroy ever ran an ad featuring pot, wine, sex and beer?” The defendants answered the question them- selves: “Of course there is no such statement. And it’s ridiculous to suggest that they ever did run such a cam- paign.”’ It may be ridiculous to suggest that such a campaign was run but this is exactly what CBS now argues before this court. We reject CBS’s argument not only because CBS waived it but also because it is not convincing. CBS contends that three advertisements, which were run as part of a six month test market campaign in three cities, were the implementation of the “pot,” wine, beer and sex strategy recommended in the MARC report. These adver- 23a tisements, according to CBS, were the “more refined and acceptable expression of the MARC strategy” to present the cigarette as part of the illicit pleasure category of products and activities. Responsive Brief at 2. The ads, as described by CBS, show “a well-dressed young woman wading in a public fountain while her date looks on, a young man poised to throw a cream pie at the camera, and a young woman dousing her head under a water pump.” At the top of the ads is the slogan “If it feels good, do it. If it feels good, smoke it.” According to CBS, the first sentence is “a common slogan of the sexual rev- olution” while the second sentence is “a thinly-veiled reference to marijuana.” At the bottom of each advertise- ment is a picture of a package of Viceroy cigarettes Under the package is the slogan “Viceroy. It feels good.” We agree with trial counsel that these ads cannot be fairly characterized as “refined” versions of “pot,” wine, beer, and sex ads. In the fountain ad, the woman is fully clothed in a dress and a shirt jacket. The water in the fountain is coming up to her knees and her dress appears to be about five inches above her knee on the right leg and eleven inches above the knee on her left leg, which is extended forward. The man in the ad is fully clothed and about ten feet away from the woman. She appears from the picture to be having a good time even though she is not involved in any sexual adventure. The ad seems to imply that this is a woman who has done something (wade in the fountain) because “it feels good.” The ad also implies that this woman,-who is holding a cigarette in her hand, is smoking that cigarette because it feels good. (“If it feels good, smoke it.”) The connection to Viceroy is at the bottom of the ad where it states “Vice- roy. It feels good.” As we read the ad in context, the full message is that an individual should do things that feel good and that because Viceroy (not marijuana) feels good when one_smokes it, the American consumer should choose Viceroy. The other two ads convey essentially the 24a same message. The age range of the models in the adver- tisements appears to be from the mid to late twenties to the mid thirties. We conclude that these ads are not, even in somewhat refined form, “pot,” wine, beer, and sex ads. It is true that the phrase “if it feels good, do it” can under certain circumstances have sexual connotations. When the ads are read in context, however, there is only an attempt to relate pleasurable experiences (which could include sex but in the ads do not) to smoking Viceroys. Our reading of these ads is also supported by the FTC report which cited these ads as an attempt by Brown & Williamson to implement a strategy that attempted to pro- vide consumers “with a rationale for smoking a full flavor Viceroy ....” These ads were not cited by the FTC as an attempt by Viceroy to attract “starters” or to imple- ment the “pot,” wine, beer, and sex strategy that had been proposed by MARC. Moreover, even if these ads could be characterized as sex ads, CBS has failed to show the truthfulness of the “pot,” wine, and beer allega- tion. ) In a related challenge, CBS argues that the district court erred in excluding a document referred to at trial as the final MARC report. The final MARC report was submitted by MARC to Bates in May 1976. The final MARC report is not the May 1975 “pot,” wine, beer, and sex MARC report authored by N. Kennan. The final MARC report, which was not referred to in the FTC report, is a 243 page document that gives the details of testing of several “comp” ads, which are artists’ render- ings of possible advertising approaches. Two primary rea- sons support the district court’s decision not to allow the final MARC report to be published to the jury. First, there was no showing that the content of the final report could be fairly attributed to Brown & Williamson since it had been written by MARC. Therefore, some of the contents of the report which the defendants argue con- tain some sexual themes might be unfairly attributed by 25a the jury to Brown & Williamson rather than MARC. Sec- ond, although there were similarities between some of the composite ads and the test market campaign actually run by Viceroy, the published ads themselves, and not the composite ads, were the only probative and nonprejudicial material that could be fairly attributed to Brown & Wil- liamson. CBS argues in this court that by excluding the final MARC report, the district court excluded “the critical evidence” of truth. The defendants contend that by see- ing the final report, the jury would have understood that Brown & Williamson did implement the “pot,” wine, beer, and sex strategy in an advertising campaign. The defend- ants point to the fountain ad as an example. In the final report, there was an ad similar to the fountain ad de- scribed above but with the slogan “If you don’t have a hangup about pleasure.” In addition to changing the slogan before the ad was test marketed, Brown & Wil- liamson also changed the ad, according to the defendants, “slightly to diminish its more overt sexual connotations.” If the ads were truly similar to the ones used in the cam- ‘paign, the defendants should have argued to the jury that the published ads, which were admitted into evidence, were indeed “pot,” wine, beer, and sex ads. The defend- ants would not have needed the composite ads to make this argument. Of course, CBS and Jacobson declined to make such an argument apparently because they be- lieved, as do we, that such an argument would have failed. Moreover, as the FTC report made clear, the fountain ad was not used to implement the “pot,” wine, beer, and sex strategy for “starters” but was used to provide all consumers a rationale for smoking a full- flavor Viceroy. We conclude that the district court did not abuse its discretion in excluding the final MARC report. 5 The defendants also challenge Judge Hart’s decision to exclude evidence of Brown & Williamson’s advertising efforts for the other brands of cigarettes that it markets. Judge Hart also limited OEE 26a CBS and Jacobson also argue that the Perspective was a fair summary of the FTC report. In Brown & William- son v. Jacobson, 713 F.2d 262 (7th Cir. 19838) (Brown & Williamson I), we had to decide whether the fairness of Jacobson’s summary of the FTC report “emerges so in- controvertibly from a comparison of the [FTC report] with the broadeast that no rational jury” could conclude that Jacobson had distorted the report. Jd. at 271 (hold- ing that under Illinois law fair summary was a question of fact for the jury to decide). We remanded the case for trial, holding that a rational jury could find that Jacob- son’s broadcast was not a fair summary of the FTC report. In remanding for trial, we stated that the FTC report could be interpreted to convey the “following mes- . sage: six years ago a market-research firm submitted to Brown & Williamson a set of rather lurid proposals for enticing young people to smoke cigarettes and Brown & Williamson adopted many of its ideas (though not neces- sarily the specific proposals quoted in the report) in an advertising campaign aimed at young smokers which it conducted the following year.” Jd. We held that a jury could find that Jacobson’s Perspective carried a greater sting, and therefore was not a fair summary, if it con- cluded that Jacobson conveyed “the following message: Brown & Williamson currently is advertising cigarettes in a manner designed to entice children to smoke by as- sociating smoking with drinking, sex, marijuana, and other illicit pleasures of youth.” Jd. In answer to a special interrogatory, the jury found that Jacobson’s broadcast was not a fair summary of the FTC report. The jury’s finding normally would be the end of the matter. However, subsequent to our decision in Brown & Williamson I, the Supreme Court decided Bose. Be- Brown & Williamson to introducing evidence directly concerning practices that applied to Viceroy. This was a reasonable limita- tion in a libel trial that dealt with charges that were made spe- cifically against the Viceroy brand. Judge Hart acted well within his discretion. 27a cause we have accepted for purposes of this case (and only this case) the defendants’ contention that Bose man- dates appellate review with no deference to the jury’s findings, we will independently review the fair summary issue. The defendants contend that our conclusion on the fair summary issue should differ from Brown & William- son I because trial testimony supports their position on the fair summary issue. We do not agree. The trial record simply reinforces the result we hinted at in Brown & Williamson I. At trial, Jacobson stated that the Perspec- tive attributed the “pot,” wine, beer, and sex language to Viceroy rather than to the MARC report—“I even said that, ‘Viceroy says.’”’ Jacobson also agreed that the lan- guage in the broadcast would lead viewers to believe that Jacobson was “making a present tense statement about current Viceroy strategy.”’ These concessions simply rein- force the conclusion we hinted at in Brown & William- son I and the one that Judge Hart reached in his opin- ion. Judge Hart correctly pointed out that “there are sev- eral differences between the FTC report and the broad- .cast that would allow a jury to find that the one was not a fair summary of the other.” Judge Hart gave four examples: 1. The broadcast used the present tense to repre- sent that the tactics were currently being used while the FTC staff report indicated that the quoted lan- guage came from a report written six years earlier. 2. The broadcast implied that the quotations from the MARC report come directly from [Brown & Wil- liamson] while the FTC staff report clearly indicated that they were from the MARC report... 3. The broadcast used the term “children” to refer to the object of this strategy, while the report used the terms “young smokers” and “starters.” 4. The report did not cite any published Viceroy advertisement that implemented a pot, wine, beer or CC 28a sex strategy to attract children to smoke cigarettes. The broadcast clearly implied such ads existed. 644 F. Supp. at 1253-54. We agree with Judge Hart’s observations. The defendants have given us no reason to disagree with the jury’s conclusion that the Perspective was not a fair summary of the FTC report. See also Brown & Williamson I, 713 F.2d at 271.° C. Malice Even according no deference to the jury’s findings, we conclude that Brown & Williamson proved by clear and convincing evidence that the defendants either knew the Perspective was false or in fact entertained serious doubts as to its truth. See St. Amant v. Thompson, 390 U.S. at 731; see also New York Times v. Sullivan, 376 U.S. at 279-80. The most compelling evidence of actual malice sub- mitted to the jury was the intentional destruction of critical documents by Jacobson’s researcher, Michael Ra- dutzky. The story that emerges from Radutzky’s tes- timony is that at some point after this litigation com- menced in early 1982, he destroyed various documents that in all likelihood would have established that both he and Jacobson were aware that the “tobacco industry hooks children” Perspective was false at the time that it was delivered. The documents that Radutzky destroyed included: an eighteen-page sample script which was dis- tributed to Jacobson and others in the newsroom, Ra- 6 Defendants also claim that this case is controlled by the Illinois rule of innocent construction. See Fried v. Jacobson, 99 Ill. 2d 24, 457 N.E.2d 392 (1983); Chapski v. Copley Press, 92 Ill. 2d 344, 442 N.E.2d 195 (1982). Under that rule, if the defendants are able to show that the alleged defamatory statements are capable of a reasonable construction that is “innocent,” then the defendant will not be liable for defamation. The rule does not apply to this case, however, because defendants have not submitted to this court any reasonable construction of Jacobson’s Perspective that is “inno- cent.” 29a dutzky’s annotated copy of the FTC report, and various contemporaneous interview notes that Radutzky had taken while investigating the Perspective. Radutzky, however, did not destroy all of these documents. Ra- dutzky only destroyed the parts of the documents that would have been relevant to this litigation. Radutzky de- stroyed fifteen of the eighteen pages of his copy of the sample script. Although there is no evidence that Ra- dutzky destroyed the additional six or seven copies of the sample script that had been distributed to various individuals in the newsroom, CBS was unable to produce any of the copies of the sample script. Radutzky tes- tified that he also went to Jacobson’s desk (when he was no longer a member of the Perspective work unit) and disposed of some documents from Jacobson’s desk that might have included the sample script. Radutzky also destroyed five of the ten pages from his copy of the FTC report. As “luck” would have it, the five destroyed pages were the pages that contained the quotations of the “pot,” wine, beer, and sex recommendations from the ‘MARC report. Radutzky’s sample script, which Radutzky admitted reported both sides of the story, was reviewed by Jacob- son before he prepared the final draft of the Perspective. Radutzky’s selective destruction of this document, along with all the other document destruction that he under- took, is strong evidence of actual malice. A court and a jury are entitled to presume that documents destroyed in bad faith while litigation is pending would be unfavor- able to the party that has destroyed the documents. See Coates v. Johnson & Johnson, 756 F.2d 524, 551 (7th Cir. 1985); S.C. Johnson & Son v. Louisville & Nashville Railroad, 695 F.2d 253, 258-59 (7th Cir. 1982); see also Nation-Wide Check v. Forest Hills Distributors, 692 F.2d 214, 217-19 (1st Cir. 1982). Because Radutzky did have an “innocent” explanation for his activities, we must also consider whether the evi- ——— 30a dence indicates that Radutzky destroyed the documents in bad faith. We conclude that even a cursory review of his story reveals that the jury was justified in find- ing that it was a complete fabrication. Radutzky told the jury that he destroyed the documents while he was cleaning out his section of the newsroom. Radutzky also told the jury that he cleaned up Jacobson’s desk in the Perspective section of the newsroom where Radutzky was no longer assigned. Radutzky testified that he de- cided to do the housecleaning after he heard that the libel case had been dismissed by the district court but before he heard that the dismissal would be appealed. As the district court pointed out, his emphasis on de- stroying the documents after the case had been dismissed confirms that Radutzky was aware of the common-sense notion that important documents should not be destroyed while litigation is pending.’ For several reasons, Radutzky’s story is not believable. First, Radutzky’s explanation that he was unaware that Brown & Williamson had a right to appeal the initial dismissal is implausible. We do not think it immodest of us to suggest that many people know that an appellate court such as the Seventh Circuit exists. Radutzky, a college graduate who majored in history, worked “con- stantly” on stories involving legal matters. For a person of his experience, it is completely implausible that he would be unaware that a party who lost in a lower court had a right to challenge the decision in an appellate court. Moreover, Radutzky testified that he had “heard of an appellate process” which is all the knowledge that Radutzky needed to know to omit the documents from his housecleaning operation. 7 Radutzky apparently had some trouble verbalizing his thoughts at trial because at one point he stated that “I just know that I had disposed of [the documents] after I learned that the case had been appealed.” After plaintiff’s counsel had the statement read back, Radutzky tesified that he, of course, had meant dismissed. 8la A second factor undercuts Radutzky’s “innocent” ex- planation. Although he was supposedly engaged in a gen- eral housecleaning operation, he threw out only part of the FTC report and part of the sample script. Radutzky had no explanation for why he destroyed only certain parts of the documents. The unexplained selective de- struction would have allowed (almost compelled) the jury to reach two conclusions. First, Radutzky’s “houseclean- ing” explanation was a complete fabrication. Nobody cleans house as selectively as Radutzky did. Second, be- cause Radutzky destroyed only the parts of the documents that would have contained statements and notations rele- vant to this litigation, the full documents, if they had been produced, would have severely damaged CBS’s case. In addition, Radutzky had no explanation for why he would be cleaning off Jacobson’s desk in addition to his own. Under normal circumstances, it would be difficult to believe that a research assistant would clean off his boss’s desk without permission. In this case, Radutzky’s story suffers from an additional defect because at the ' time that he removed documents from Jacobson’s desk, he was'no longer working for Jacobson and, in fact, no longer worked in the Perspective section of the news- room. Radutzky had gone on to become the producer of the 5:00 p.m. news. In destroying the documents, Radutzky also violated a CBS retention policy that provided: Once the station is notified of a claim pertaining to any of the following material, the litigation section of the Law Department should be notified and any and all related materials should be retained until specifically released. Some materials are retained indefinitely on a selected basis. Our policy is to review the files in January to determine what should be selectively retained. Ob- viously if there is a... pending legal action, our ee 32a policy is to retain all pertinent materials unless spe- cifically released by the Law Department. Radutzky admitted that he was not given permission by CBS’s attorneys to destroy any documents but claimed that he was unaware that CBS had a retention policy. The defendants ask us in exercising independent appel- late review to credit Radutzky’s testimony. Our review indicates, however, that the evidence overwhelmingly sup- ports an inference that Radutzky destroyed the docu- ments in bad faith. In order for the jury to have cred- ited Radutzky’s testimony that the document destruction was not an attempt to conceal evidence of actual malice, it would have had to believe the following: (1) Radut- zky was unaware that a party can appeal an adverse judgment of a trial court; (2) Radutzky decided to clean house by disposing of only certain parts of some docu- ments; (3) Radutzky believed that it was his duty to clean off the desk of his former boss; (4) Radutzky did not adhere to the CBS retention policy because he was unaware that it existed. We conclude that the evidence fully supports the jury’s decision not to believe Radut- zky’s “innocent” explanation. Because Radutzky de- stroyed the documents in bad faith, the jury was allowed to infer that the destroyed documents would have seri- ously damaged the defendants’ case. See, e.g., Nation- Wide Check, 692 F.2d at 217-19. The destruction of the documents is strong evidence of actual malice. Brown & Williamson also points to Walter Jacobson’s testimony as evidence of actual malice. Jacobson’s testi- mony revealed that he had received and reviewed Radut- zky’s sample script prior to delivering the broadcast. In addition, he knew that Radutzky’s search for “pot,” wine, beer, and sex ads had been unsuccessful. Jacobson had also read the FTC report and was aware that the “pot,” wine, beer, and sex language in the report was not from a document prepared by Brown & Williamson but was actually from a document prepared by MARC. Nonethe- 33a less, his testimony indicated that he had intended to create the impression that the “pot,” wine, beer, and sex comment had been made by Viceroy itself. (“I even said that, ‘Viceroy says.’”) His assertion that he intended to create the impression that the “pot,” wine, beer, and sex statement was made by Viceroy indicates that Jacobson acted with actual malice since he admitted that he knew that the statement was made by MARC rather than Vice- roy.* Defendants cite other Jacobson testimony in support of their argument that Jacobson only inadvertently created the impression that Viceroy was running “pot,” wine, beer, and sex ads. Specifically, they contend that the following exchange during Jacobson’s direct examination supports their argument: Question: When you sat down to write this Per- spective, and then when you got on the air and de- livered it, did you intend to inform your viewers that Viceroy was actually running advertising that contained pot, wine, beer and sex? "Jacobson: No, no way. I didn’t say it. I didn’t think it. I was reporting on the federal government report. And I put the quotes on the air. And I was not making a statement whatever about advertise- ments, certain advertisements that might have been implemented. I was simply saying what the report said, that this was a Viceroy strategy, that this strategy might have been there for ten years, twenty years, two years, or whatever. Defendants ask us to credit this testimony and conclude that because Jacobson did not intend to create a false im- pression about Viceroy advertising, he did not act with actual malice. Brown & Williamson counters that the 8 As discussed in more detail below, even if we were to disregard Jaccbson’s admission on this point, the other evidence supports the jury’s verdict on actual malice. 34a language and graphics used in the broadcast itself indi- cate that Jacobson could not have delivered the broadcast without intending to inform viewers that he was talking about current Viceroy advertising. The district court, in its thorough opinion, dealt with these arguments this way: [T]he jury could have rejected Jacobson’s testi- mony that he did not intend to communicate a mes- sage about actual Viceroy advertising. The theme of the broadcast was cigarette advertising. The state- ments made in the broadcast relating to the “‘Vice- roy strategy” were made in the context of explaining why so many children take up smoking. The state- ment was made by Jacobson that television adver- tising of cigarettes is off limits; so the “killer busi- ness has gone to Madison Avenue with a billion dol- lars a year for bigger and better ways to sell cigarettes.” Just prior to describing “the Viceroy strategy,”’ Jacobson stated in the broadcast: The cigarette business insists, in fact, it will swear up and down in public, it is not selling cigarettes to children, that if children are smok- ing (which they are, more than ever before), it’s not the fault of the cigarette business. ‘‘Who knows whose fault it is?” says the cigarette business. “Who knows whose fault it is that children are smoking? It’s not ours.” Jacobson immediately goes on to describe “a Viceroy advertising, the Viceroy strategy for attracting young people, starters they are called, to smoking.” The reference to “Viceroy advertising” and “the Viceroy strategy” at that point can be understood as demonstrating how and why children begin smok- ing, and that it was Viceroy’s fault (at least as one advertiser). A “strategy” that was not implemented, that was nothing more than a report in a drawer, could not 35a explain why children smoke. Only advertising that children see can persuade them of anything... . Jacobson [at the end of the Perspective] stated that the cigarette companies were liars because they were in fact selling cigarettes to children. And the clear message is that Viceroy was doing this through the use of its advertising that relates the cigarette to pot, wine, beer, and sex. 644 F. Supp. at 1250. Judge Hart continued: [T]he statement made by Jacobson is a powerful statement indicting the cigarette industry and Vice- roy in particular. It communicates the message that Viceroy was using actual advertisements to hook children on cigarettes. The evidence was such that the jury could have found it incredible that Jacobson gave this impres- sion inadvertently. Jacobson is a veteran newsman and commentator who writes hundreds of Perspec- tive scripts each year>... The entire broadcast dealt with methods actually used by the cigarette industry to-entice children to smoking, such as advertising in popular movies and distributing cigarettes on the street. The visual portion of the broadcast included pictures of cigarettes being distributed to young people on the street. Defendants admitted that this footage was taken from its archives and that Vice- " roy cigarettes were not being distributed [T]he evidence does not support a conclusion that Jacobson inadvertently sent the message that Brown & Williamson was actually using such ads... . 644 F. Supp. at 1251 (emphasis in original). We agree with Judge Hart’s excellent analysis. The plain language of the broadcast undermines Jacobson’s testimony that he did not intend to make a statement about Viceroy’s cur- rent advertising practices. Moreover, Jacobson’s deposi- tion testimony also reveals that he did not accurately 36a testify about his state of mind at the time of the broad- cast. At his deposition in the summer of 1984, Jacobson said that he did not remember what he was thinking when he wrote the script and did not even remember writing the script. As Jacobson himself pointed out at the deposition, “[{i]t’s hard to remember... .”” We con- clude that the evidence supports the jury’s decision not to credit his later claim that his recollection had been refreshed. Disregarding Jacobson’s testimony (including his ad- mission that he intended to attribute the MARC language to Viceroy), the evidence shows that Jacobson received and reviewed the FTC report. In addition, he was aware that Radutzky’s search for “pot,’’ wine, beer, and sex ads had been unsuccessful and that Brown & Williamson had denied publishing ads implementing the strategy. Defend- ants argue vigorously that each of these facts, standing alone, cannot provide clear and convincing proof of actual malice. Responsive Brief at 26-31 (citing Time, Jne. v. Pape, 401 U.S. 279, 289-92 (1971) (rational misinter- pretation of government report that “bristled with am- biguities” does not create jury issue on actual malice) ; Edwards v. National Audubon Society, Inc., 556 F.2d 113, 121 (2d Cir.), cert. denied, 434 U.S. 1002 (1977) (actual malice cannot be predicated solely on mere de- nials}); see also Bose, 466 U.S. at 511 (there is a sig- nificant difference between proof of actual malice and mere proof of falsity); Woods v. Evansville Press, 791 F.2d 480, 489 (7th Cir. 1986) (reporter’s journalism skills are not on trial in a libel case). The cases defend- ants cite are unlike this one because none of them com- bines a distortion of a government report with a vehe- ment denial of the “pot,” wine, beer, and sex charge and an investigation by the journalist that tended to corro- borate the denial. Moreover, none of those cases had evidence of document destruction. We conclude that when the intentional destruction of the sample script (which il 37a Jacobson did review prior to delivering the broadcast) is considered along with the distortion of the FTC report, Brown & Williamson’s denial, and the corroboration of the denial, Brown & Williamson has met its burden of proving that Walter Jacobson and CBS acted with ac- tual malice.® IV. In general, damages remedies in defamation cases can include: (1) compensatory damages which may be either general or special; (2) punitive or exemplary damages; and (3) nominal damages. See Sunward Corp. v. Dun & Bradstreet, Inc., 811 F.2d 511, 5382 (10th Cir. 1987) (quoting Prosser and Keeton on Torts § 116A (5th ed. 1984) ). Illinois adheres to the general rule. See Babb v. Minder, 806 F.2d 749, 757-58 (7th Cir. 1986) (dis- cussing Illinois law); see also Erickson v. Aetna Life & Casualty Co., 127 Ill. App. 3d 753, 469 N.E.2d 679 (2d Dist. 1984). In seeking compensatory damages, a plain- tiff may attempt to prove “special damage, that is, of directly linking specific [economic] loss to the [defama- tory material] by competent evidence.” Sunward, 811 F.2d at 532; see also Prosser and Keeton on Torts, § 116A at 844. In certain actions in which the defamatory ma- terial is characterized as defamatory per se, the plaintiff * Brown & Williamson also argues that pressures to produce in- teresting stories brought on by the November “sweeps” is “strong proof of actual malice.” Ratings during “sweeps” months such as November and May are especially important in determining the rates that advertisers will pay to stations to promote their prod- ucts. The extent to which journalistic pressures to produce can constitute evidence of actual malice has caused some debate among members of the federal bench. Compare Tavoulareas v. Piro, slip op. at 66-68 with Tavoulareas, slip op. at 53-56 (MacKinnon, J.., dissenting). Because we have concluded that there is clear and con- vinecing evidence of actual malice without considering the “sweeps” evidence, we need not enter this debate. We do note that CBS has not objected to the district court’s admission of the “sweeps” evidence. 38a may recover general compensatory damages without prov- ing special damages. This is called the doctrine of pre- sumed damages and it allows the assessment of dam- ages “without proof by the plaintiff that there [has] been any impairment of reputation.” Prosser and Keeton on Torts, § 116A at 843. Under that doctrine, presumed damages is “an estimate, however rough, of the probable extent of actual loss a person had suffered and would suf- fer in the future, even though the loss could not be iden- tified in terms of advantageous relationships lost, either from a monetary or enjoyment-of-life standpoint.” Jd. The doctrine of presumed damages applies to this case because the libelous material prejudiced Brown & Wil- liamson in its trade or business in a manner that is “ ‘so obviously and naturally hurtful to [Brown & William- son] that proof of [its] injurious character can be, and is, dispensed with.’” Brown & Williamson I, 713 F.2d at 268 (quoting Reed v. Albanese, 78 Ill. App. 2d 53, 58, 223 N.E.2d 419, 422 (1966)). At trial, Brown & Williamson did not attempt to prove special damages but relied instead on the doctrine of presumed damages. The jury returned a verdict of $3,000,000 in compensatory damages which in this case is composed only of pre- sumed damages. The district court reduced the compen- satory damage award to $1.00. 644 F. Supp. at 1260-65. Brown & Williamson appeals that decision. Punitive damages may also be awarded under Illinois law by a jury when a public figure such as Brown & Williamson proves that a defendant has defamed it with actual malice. See Babb v. Minder, 806 F.2d 749, 758 (7th Cir. 1986). The purpose of punitive damages, of course, ig te punish the defendant for the improper con- duct and to deter him from any future transgression. The jury awarded $2,050,000 in punitive damages against CBS and Jacobson and the district court upheld the award. 644 F. Supp. at 1260-65. In this court, CBS and Jacobson challenge the punitive damage award as both excessive and inappropriate. ———————————eeEeeer 39a A. Compensatory Damages During the damage portion of the bifurcated trial, Brown & Williamson introduced a variety of evidence in- tended to show that its reputation had been harmed by Jacobson’s statement. First, Brown & Williamson’s gen- eral counsel testified that after the broadcast there were ealls from the field sales force indicating that their con- tacts were asking “how in the world could Brown & Wil- liamson have done such a thing.” Second, a department sales manager for Brown & Williamson testified that sales managers in the Chicago area had received negative comments from distributors, retailers, and consumers. The reports he received indicated that the sales staff had been disrupted in their normal activities by questions from retailers and consumers about the broadcast. Third, the former Vice President of Marketing for Brown & Williamson testified that the company had 2 reputation it eared about and that he believed that Viceroy’s cus- tomers care about the reputation of the company from which they buy cigarettes. He also testified that the com- ‘pany’s reputation among governmental entities was im- portant because the cigarettte industry is such a closely regulated industry. Fourth, the company introduced evi- dence that the Perspective (including its rebroadcasts) was seen by over 2.5 million people in the Chicago area. In addition, over two million people read a 1984 article in the Saturday Evening Post which repeated some of the most damaging portions of the Perspective. Brown & Williamson also argued that the Perspective was espe- cially devastating because Chicago area viewers believe that Jacobson’s Perspectives are reliable. Although Brown & Williamson asked the jury for $7,000,000 dollars in compensatory damages, the jury was only willing to award $3,000,000. In setting aside the award, the district court relied primarily on the fail- ure of Brown & Williamson to put forth any evidence that “Viceroy lost sales, lost a distributor, lost profits, or 40a had an employee quit or stop working as effectively and enthusiastically as he used to, or that any individual stopped smoking Viceroys.” 644 F. Supp. at 1261. The court concluded that “[Brown & Williamson] clearly did not prove any actual damages... .” Jd. The district court recognized that this was a case of libel per se and that therefore Brown & Williamson was entitled to pre- sumed damages. See Brown & Williamson I, 713 F.2d at 267-69. Nonetheless, it set aside the damage award. In addition to the failure to prove any pecuniary dam- ages, the court cited two other reasons for its decision to reduce the damage award to $1.00. First, the court held that under Illinois law, substantial damages are not presumed. 644 F. Supp. at 1261 (citing Bloomfield v. Retail Credit Co., 14 Ill. App. 3d 158, 170, 302 N.E.2d 88, 97 (1st Dist. 1973) ). Second, the court found that any residual effect of the broadcast was greatly reduced if not eliminated by the jury’s verdict in favor of Brown & Williamson and the accompanying publicity.*® The- district court incorrectly relied on Brown & Wil- liamson’s failure to prove any actual damages such as lost sales. As noted above, under Illinois law, Brown & Wil- liamson could choose, as it did, to forego any proof of special damages and seek to recover compensatory dam- ages under the doctrine of presumed damages. See Babb v. Minder, 806 F.2d 749, 757-58 (7th Cir. 1986) (apply- ing Illinois law). Brown & Williamson is entitled in this case to recover under the doctrine of presumed damages because Jacobson’s Perspective was libelous per se. See Brown & Williamson I, 718 F.2d at 268-69; see also 10 The court was correct in holding that testimony that employees were emotionally upset is not relevant because a corporation is not capable of mental suffering, which ordinarily will be an im- portant component of an individual’s damage award for libel. See Gertz v. Robert Welch, Inc., 680 F.2d 527, 540 (7th Cir. 1982), cert. denied, 459 U.S. 1226 (1983). Although a corporation is not capable of mental suffering, it is of course still entitled to be compensated for damages to its reputation. 4la Brown v. Farkas, No. 85-3012, slip op. at 5 (1st Dist. Dec. 31, 1986) (presumed damages, which include in- jury to reputation, “arise by inference of law and are not required to be proved by evidence’) (petition for rehearing pending). It is true that the harm to Brown & Williamson’s repu- tation cannot be measured easily. See Brown & William- son I, 7138 F.2d at 269. As the Tenth Circuit recently stated, “[a]scertainment of presumed general damages is difficult at best and unavoidably includes an element of speculation.” Sunward Corporation v. Dun & Bradstreet, Inc., 811 F.2d 511, 588 (10th Cir. 1987).1' Nonetheless, presumed general damages are permissible under Illinois law and under the United States Constitution. Babb, 806 F.2d at 758. The failure to prove specific pecuniary dam- ages does not in any way impair the right of Brown & Williamson to recover for the libelous broadcast. In fact, an attempt to show specific pecuniary loss, while still electing the presumption of general damages, is under cer- tain circumstances impermissible. See Sunward, 811 F.2d .at 539. We conclude that in setting aside the damage award the district court impermissibly took into account Brown & Williamson’s failure to show specific pecuniary harm. 11 Ascertainment of actual damages is often not much easier. This is why it “has been the experience and judgment of history that ‘proof of actual damage will be impossible in a great many cases ... W. Prosser, Law of Torts §112 ... As a result, courts for centuries have allowed juries to presume that some damage oc- curred from many defamatory utterances and publications .... This rule furthers the state interest in providing remedies for defamation by ensuring that those remedies are effective.” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 760-61 (1985) (plurality opinion). The reason for such a rule is il- lustrated by this case. Even if Brown & Williamson were able to show that there was a decline in Viceroy sales after Jacobson’s Perspective, it would be extremely difficult to prove that the de- cline was the result of the libelous broadcast. Cf. Sunward, 811 F.2d at 539-41 (discussing flaws in a specific actual damage theory). 42a Brown & Williamson also challenges the district court’s conclusion that media coverage of its victory at trial was “fair” and therefore it “ameliorates whatever injury Brown & Williamson might have .. . suffered.” 644 F. Supp. at 1262. In making its finding, the court took ju- dicial notice of the “fact” that the coverage of the liability verdict was “fair.” “Fair” media coverage is not the kind of undisputed “fact” that is proper for judicial notice. See Fed. R. Evid. 201(b). In addition, even if the media coverage could be characterized as fair, it does not neces- sarily mean that the effect of the libelous statements will be ameliorated. For example, much of the post-verdict publicity reported Jacobson’s vehement denials of the charges and included assurances by the defendants that, like many libel defendants, they would be victorious in the appellate court. Moreover, some of the commentary that occurred in the wake of the verdict questioned the correctness of the verdict and included some suggestions that the defendants had lost simply because they were “out-lawyered.” We conclude that the district court er- roneously relied on the post-verdict publicity in setting aside the damage award. In striking the compensatory damage award, the dis- trict court also relied on a statement in an Illinois appel- late court decision that substantial damages are not pre- sumed. 644 F. Supp. 1261 (citing Bloomfield v. Retail Credit Co., 14 Ill. App. 3d 158, 302 N.E.2d 88 (1st Dist. 1973)). In Bloomfield, the Puritan Life Insurance Com- pany had requested a background report on Harold Bloomfield whom it was considering for a position as an insurance agent. The defendant in Bloomfield, the Re- tail Credit Company, supplied a background report to Puritan that contained defamatory material about Bloom- field. Bloomfield became aware of the defamatory report through a friend at another company who, apparently out of curiosity, had requested the report on Bloomfield. After the friend notified Bloomfield of the defamatory ~ 43a material, Bloomfield contacted Retail Credit and ar- ranged a meeting. Following the meeting and some fur- ther investigation, Retail Credit’s report was amended in October 1964 to exclude most (and perhaps all) of the incorrect defamatory material. The amended report was sent to Puritan and negotiations between Bloomfield and Puritan continued until November 1964. However, no employment agreement was ever signed. The jury in Bloomfield awarded $50,000 in compen- satory damages and $100,000 in punitive damages. The appellate court ordered a new trial on damages because there was a great deal of improperly admitted evidence that probably prejudiced the jury. For example, although the evidence showed that the defamatory report had been sent to only one potential employer (Puritan), the plain- tiff was allowed to introduce evidence that ‘permitted the jury to conclude that plaintiff was forever barred from further reasonable employment... .” 14 Ill. App. 3d at 171, 302 N.E.2d at 98. In addition, Bloomfield’s counsel had suggested during his opening statement that the President of Puritan would testify that he had refused to hire Bloomfield because of the Retail Credit report. Jd. No such evidence was introduced at trial and there was some indication in the record that Puritan’s refusal to hire Bloomfield was usrelated to the Retail Credit Report. Id. In short, the evidence showed that there had been only one publication of the defamatory material, that it had been corrected only one month after it was issued, and that it may not have had any effect at all on Bloom- field’s employability with Puritan. It was in this context that the appellate court made the statement that ‘“‘sub- stantial damages are not presumed.” 14 Ill. App. 3d at 170, 302 N.E.2d at 97 (emphasis in original). In Bloomfield, it was clear to the appellate court that $50,000 in compensatory damages was excessive. The defamatory material was published to only one potential employer and because it was corrected promptly, it had 44a very little effect on Bloomfield’s reputation in the com- munity. There was also a serious question whether the report had any significant impact on Bloomfield’s rela- tionship with Puritan. We conclude that Bloomfield pro- vides us with very little assistance in deciding this case. It simply gives a broad guideline that substantial dam- ages, a term whose meaning is not clear, will not be pre- sumed. A case decided subsequent to the district court’s deci- sion here provides us with some additional assistance in interpreting the meaning of substantial damages. In Cos- tello v. Capital Cities Communications, 153 Ill. App. 3d 956, 505 N.E.2d 701 (5th Dist. 1987) (petition for re- view pending), the plaintiff, Jerry Costello, sued the Belleville News-Democrat which is a general circulation newspaper in St. Clair County, Illinois. Costello, who had just been elected Chairman of the County Board of St. Clair County, was attacked in a December 31, 1980, edi- torial as a Chairman who “blew his first chance’”’ because he had failed at his first board meeting to “militantly oppose the implementation of any new tax without first seeking the voters’ approval through a referendum.” Tie editorial stated that this action had run directly con- trary to what he had promised the newspaper when he had sought and received its endorsement. The paper ac- cused Costello of lying and concluded its editorial with the observation ‘‘!j]ust think, we’ve got two more years of the Costello brand of lying leadership.” The jury award Costello $450,000 in presumed damages. The ap- pellate court agreed with the defendants’ assertion that substantial damages may not be presumed, 153 Ill. App. 3d at 973, 505 N.E.2d at 712 (citing Bloomfield), and reduced the jury award to $200,000. The $200,000, while perhaps not “substantial” under Illinois law, certainly is a sizable figure especially when one considers that the editorial apparently had no effect on Costello’s political career because he was reelected as Chairman in 1982. 45a We read the holding in Costello as advising an appel- late court to give some deference to the jury’s deter- mination of presumed damages while also considering whether it considers the jury award of presumed dam- ages excessive. If it finds the award excessive, the court may exercise its discretion and reduce the award to what it considers a more appropriate figure. One obvious fac- tor in deciding how much deference to give a jury ver- dict on presumed damages is the extent to which the court believes that the jury may have been carried away by passion and prejudice. See Douglass v. Hustler Maga- zine, 769 F.2d 1128, 1143 (7th Cir. 1985), cert. denied, 106 S. Ct. 1489 (1986). In this case, the jury appears not to have been carried away by passion and prejudice. Brown & Williamson asked for $7,000,000 in presumed damages but the jury only awarded $3,000,000. Brown & Williamson asked for $10,100,000 in punitive damages but the jury awarded only $2,050,000. At the very least, both of these awards indicate that the jury was not mere putty in the hands of the plaintiff. The strongest evi- dence that the jury was not carried away by passion and prejudice’is its award of only $50,000 in punitive dam- ages against Jacobson. Brown & Williamson had asked for $100,000 which in light of Jacobson’s net worth of over $5,000,000 does not strike us as an especially ab- surd figure to seek as punitive damages. Nonetheless, the jury, despite hearing evidence of post-verdict recal- citrance (Jacobson said he would not hesitate to deliver the same broadcast again), assessed a reasonable punitive damage figure against Jacobson personally. We conclude that the jury was not carried away by passion and pre}- udice and that it fulfilled its duty in attempting to assess a reasonable amount of compensatory damages. Although the jury did conscientiously fulfill its duty in this case, we are hesitant to uphold the entire award. Illinois law requires appellate courts to examine jury awards under the doctrine of presumed damages with 46a great care to determine whether they are “substantial’’ or within an acceptable range. See Costello; Bloomfield; cf. Brown v. Farkas, slip op. at 10 (reducing punitive damage award from $1,000,000 to $50,000). We hold that an award of $1,000,000 in compensatory damages is appropriate in this case. The $1,000,000 in presumed damages is sizable but on the facts of this case it is not “substantial” under Illinois law. We grant that it is difficult to draw a distinction but that in effect is what the Costello court calls for in applying the test. Unlike Costello, this broadeast was made not in a relatively small community but in one of the largest television mar- kets in the country. The defamatory material here was not published once but was broadcast four separate times and was seen by a total viewership of approximately 2.5 million people. It was delivered on what was the most popular news broadcast in Chicago and was delivered by a veteran journalist who was trusted by the public and promoted by his employer as someone who “always leave you informed.” Moreover, the text of the broadcast car- ried a very substantial sting that must have hurt both the reputation of Brown & Williamson and its parent company (which as CBS’s counsel pointed out at trial owns one of the most respected department stores in Chi- cago). In addition, the libelous material was a television broadcast and not a newspaper editorial. Television is a more intense and more focused medium. It allows the libeler to come into peoples’ homes and deliver essentially in person a powerful libelous statement using various voice inflections to add power to the message. Television also allows for the use of graphics to emphasize the libel- ous material. Our review of the videotape of the broad- cast indicates that Walter Jacobson relied on these attri- butes of television using both graphics and voice inflec- tions to further convince the viewer that Brown & Wil- liamson was using a “pot,” wine, beer, and sex strategy to attract children to Viceroy cigarettes. We agree with the district court that the message that Jacobson deliv- 47a ered was an extraordinarily powerful one. We also con- clude that the power of Jacobson’s Perspective was greatly enhanced because of the medium through which it was delivered. We recognize that this is a very inexact and somewhat arbitrary process. Nonetheless, the process is inherent in the doctrine of presumed damages. An appellate court must, under Illinois law, use its judgment in determin- ing the extent to which a jury award of presumed dam- ages will be upheld. Our judgment is $1,000,000. B. Punitive Damages Punitive damages are available under Illinois law when a plaintiff has proven actual malice. See Brown, slip op. at 10; see also Babb, 806 F.2d at 758." Several factors can be considered by the jury in arriving at a punitive damage award. First, and most importantly for purposes of this case, the jury was entitled to consider the amount of attorney’s fees incurred by the plaintiff in bringing the libel action. See Hazelwood v. Illinois Central Gulf Rail- road, 114 Ill. App. 3d 703, 711, 450 N.E.2d 1199, 1206 (4th Dist. 1983) ; Anvil Investment Limited Partnership v. Thornhill Condominiums, 85 Ill. App. 3d 1108, 1121, 407 N.E.2d 645, 654 (1st Dist. 1980); Glass v. Burkett, 64 Ill. App. 3d 676, 683, 381 N.E.2d 821, 826 (5th Dist. 1978). Second, the jury was entitled to take into account the defendants’ wealth. See Hazelwood, 114 Ill. App. 3d at 113, 450 N.E.2d at 1207 ‘punitive damages should be large enough to provide retribution and deterrence but should not be so large that the award destroys the de- fendant). Finally, because the purpose of punitive dam- 12 Without citing any authority, the Costello court held that “where actual malice is the gist of an action for libel, as here, both compensatory and punitive damages cannot be recovered.” 153 Ill. App. 3d at 976, 505 N.E.2d at 713. Costello stands alone among the Illinois cases and consequently we decline to follow it. See Babb, 806 F.2d at 758. 48a ages is deterrence, the jury was entitled to consider evi- dence of post-verdict recalcitrance in determining the punitive damage award. See Goldwater v. Ginzburg, 414 F.2d 324, 341 n.27 (2d Cir. 1969), cert. denied, 396 U.S. 1049 (1970). Taking only the first two factors into account, we conclude that the district court’s decision upholding the jury’s punitive damage award was clearly correct. Brown & Williamson’s attorney’s fees were $1,360,000 prior to post-trial motions. Jacobson’s net worth including his contract with CBS was over $5,000,000, while CBS’s net worth was approximately one and one-half billion dollars. The punitive damage award of $50,000 against Jacobson is a modest one considering his net worth. See Brown, slip op. at 10. It might provide some deterrent value without being destructive. In light of the attor- ney’s fees that Brown & Williamson incurred and CBS’s substantial net worth, the $2,000,000 award against CBS is reasonable. The award might provide some deterrence to future misconduct and yet will not burden CBS with a debt that it cannot easily discharge." See also Gertz v. Robert Welch, Inc., 680 F.2d 527, 540 (7th Cir. 1982), cert. denied, 459 U.S. 1226 (1983) (upholding $300,000 punitive damage award). V. One of the most important functions of the court sys- tem in the United States is to protect the freedom of the press. See, e.g., Bose v. Consumers Union, 466 U.S. 485 (1984); New York Times v. United States, 403 U.S. 713 (1971); New York Times v. Sullivan, 376 U.S. 254 'S Defendants also argue that the punitive damage award violates the Eighth Amendment which provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Even if we were to accept the defendants’ argument that the excessive fines clause applies to civil proceed- ings, we conclude that the punitive damage award in this case is not excessive. 49a (1964). The federal courts of appeals including this one nave played an important role in fulfilling this function. See, e.g., Tavoulareas v. Piro, F.2d (D.C. Cir. 1987) (en bane) ; Sunward Corporation v. Dun & Brad- street, Inc., 811 F.2d 511, 588 (10th Cir. 1987); Woods v. Evansville Press, 791 F.2d 480, 489 (7th Cir. 1986). In considering the merits of this case, this court has granted the defendants the fullest possible review; the standard of review that we have used, giving essentially no deference to the jury’s findings, may be far broader than the review to which the defendants are entitled. See Bose, 466 U.S. at 499-500 (constitutionally based rule of independent review permits reviewing courts to give “due regard” to the trial court’s opportunity to observe the demeanor of the witnesses). After conducting such a re- view, it is unfortunate that we are forced to conclude that this case does not involve freedom of the press. Rather, it is one in which there is clear and convincing evidence that a local television journalist «cted with ac- tual malice when he made false statements about Brown . & Williamson Tobacco Corporation. Because false state- ments of fact made with actual malice are not protected by the First Amendment, this court is required to affirm the district court’s finding that Jacobson and CBS libeled Brown & Williamson. AFFIRMED IN PART, REVERSED IN PART. A true Copy: Teste: Clerk of the United States Court of Appeals for the Seventh Circuit ~ 50a UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Chicago, Illinois 60604 November 25, 1987 Before HON. WILLIAM J. BAUER, Chief Judge 86-2474 "86-2475 BROWN & WILLIAMSON TOBACCO CORPORATION, Plaintiff-A ppellant, Cross-A ppellee, VS. Nos | WALTER JACOBSON and CBS, INC., Defendants-A ppellees, Cross-A ppellants. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 82 C 1648—Judge William T. Hart This matter comes before the court for its considera- tion upon the “APPELLANT’S MOTION FOR STAY OF MANDATE?” filed herein on November 20, 1987. On consideration thereof, IT IS ORDERED that said motion is DENIED. 5la IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Nos. 86-2474 and 86-2475 BROWN & WILLIAMSON TOBACCO CORPORATION, Plaintiff-Appellee Cross-Appellant, Vv. WALTER JACOBSON and CBS, INC., Defendants-Appellants Cross-A ppellees. Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 C 1648—William T. Hart, Judge. ARGUED APRIL 3, 1987—-DECIDED AUGUST 12, 1987 POSTJUDGMENT BRIEFS FILED SEPTEMBER 23, 1987—-DECIDED NOVEMBER 6, 1987 Before BAUER, Chief Judge, Woop, and POSNER, Cir- cuit Judges. PER CURIAM. For the first time, this court must de- cide when to award postjudgment interest pursuant to Rule 37 of the Federal Rules of Appellate Procedure. This issue comes before us after we affirmed in part and reversed in part the district court’s judgment in this libel action. Brown & Williamson v. Jac#bson, 827 F.2d 1119 (7th Cir. 1987). Our earlier opinion discusses in detail the facts of this case. We summarize here only the facts necessary to re- solve the postjudgment interest issue. On December 5, 1985, the jury below awarded Brown & Williamson $3 ee 52a million compensatory damages, $2 million punitive dam- ages against CBS, and $50,000 punitive damages against Jacobson, for a total of $5,050,000. The district court entered judgment on the verdict the same day. Defend- ants moved for judgment n.o.v. or a new trial. In August 1986, the district court denied defendants’ motion with respect to liability and punitive damages, but granted judgment n.o.v. with respect to the compensatory dam- ages award, reducing it to $1.00 “nominal compensatory damages.” Brown & Williamson v. Jacobson, 644 F.Supp. 1240 (N.D. Ill. 1986). In a decision rendered on August 12, 1987, we affirmed the judgment of the district court upholding the punitive damages verdict, but reversed the district court’s decision to reduce the compensatory dam- ages award to $1.00. We agreed with the reduction on a different theory but set the figure at $1 million in dam- ages to Brown & Williamson. Brown & Williamson now asks this court to grant post- judgment interest on the $1 million compensatory damage award dating from the district court’s judgment on the original jury verdict, rather than the date of this court’s mandate.’ We reject this view and hold that postjudg- ment interest should run from the date of our mandate. Federal Rule of Appellate Procedure 37 provides that where a judgment for money in a civil case is affirmed,... interest . . . shall be payable from the date the judg- ment was entered in the district court. If a judg- ment is modified or reversed with a direction that a judgment for money be entered in the district court, the mandate shall contain instructions with respect to allowance of interest. 1The parties do not dispute that the postjudgment interest on the $2,050,000 punitive damages should run from the date of the original judgment. Rule 37 dictates this result. 58a Several Circuit Courts have interpreted this rule in con- junction with 28 U.S.C. §1961(a).2. The Eighth and Ninth Circuits have held that after a reversal of a judg- ment n.o.v., interest should run from the date of the original jury verdict and not from the mandate of the appellate court. Turner v. Japan Lines, Ltd., 702 F.2d 752, 755 (9th Cir. 1983); Buck v. Burton, 768 F.2d 285, 287 (8th Cir. 1985). (In both cases the appellate court reinstated the jury verdict without any modification. ) The Second Circuit rejected this view and held that in- terest should not begin to run prior to the date of the appellate court’s mandate. Powers v. New York Cent. R.R., 251 F.2d 818, 818 (2d. Cir. 1958). The Fifth Cir- cuit, sitting en banc, has chosen a middle path based on the ‘“‘equities” of each case, refusing to draw a bright line rule. Affiliated Capital Corp. v. City of Houston, 793 F.2d 706, 710 (5th Cir. 1986). We agree with the approach adopted by the Fifth Cir- cuit and follow it here. Although a case by case ap- proach can be problematic, this solution is an inherent ‘outgrowth of Rule 37, which grants the appellate court discretion with respect to allowing interest. Rule 37; Notes of Advisory Committee on Appellate Rules. Often, when the appellate court reverses a judgment n.o.v., there is no justification for imposing interest dating from the original judgment. For example, if the de- fendant is not liable for damages after the court enters the judgment n.o.v., the defendant obviously is unable to toll the running of interest by paying the plaintiff. Similarly, when judgment n.o.v. is entered, the plaintiff is not entitled to any damages. On the other hand, this should not preclude allowing interest to run from the original judgment in all cases where the appellate court 2 Section 1961(a) provides in pertinent part: Interest shall be allowed on any money judgment in a civil case recovered in a district court .... Such interest shall be calculated from the date of the entry of the judgment... . 54a reverses a judgment n.o.v. The jury’s original verdict may reflect the present value of money equal to the amount of damages sustained by the plaintiff at the date of judgment. When the appellate court reinstates the jury’s verdict for the identical amount some time in the future, the value of the jury verdict is diminished by the lost time value of money. Allowing postjudgment inter- est to date back to the original judgment in such a case compensates the injured plaintiff and prevents the de- fendant from reaping any windfall during the course of appeal. The equities of this case dictate that postjudgment in- terest run from the date of the entry of our mandate. If interest runs from the date of our mandate, the plain- tiffs would not suffer the lost time value of the vacated $3 million verdict. Nor will this result unfairly punish the defendants, who were unable to toll the running of interest until our decision. We hold, therefore, that postjudgment interest should run on the $1 million compensatory damages from the date of this court’s mandate. A true Copy: Teste: Clerk of the United States Court of Appeals for the Seventh Circuit 55a UNITED STATES COURT OF APPEALS SEVENTH CIRCUIT | No. 82-2115 BROWN & WILLIAMSON TOBACCO CORPORATION, Plaintiff-A ppellant, v. WALTER JACOBSON and CBS, INC., Defendants-A ppellees. Argued April 12, 1983 Decided July 14, 1983 Before POSNER and COFFEY, Circuit Judges, and GRANT, Senior District Judge.* POSNER, Circuit Judge. This diversity suit brought by Brown & Williamson, the manufacturer of Viceroy cigarettes, charges CBS and Walter Jacobson with libel and other violations of II- linois law. Jacobson is a news commentator for WBBM- TV, a Chicago television station owned by CBS. The defendants moved to dismiss the complaint on a variety of grounds. Without writing an opinion the district court granted the motion “for the reasons set forth in defendants’ memoranda,” adding only: ‘“to deny this * Hon. Robert A. Grant of the Northern District of Indiana, sitting by designation. 56a motion would unduly restrict the freedom of the press and the right of a journalist to express opinions freely.” Brown & Williamson appeals. In 1975, Ted Bates, the advertising agency that had the Viceroy account, hired the Kennan market-research firm to help develop a new advertising strategy for Vice- roy. Kennan submitted a report which stated that for “the younger smoker,” “a cigarette, and the whole smok- ing process, is part of the illicit pleasure category. .. . In the young smoker’s mind a cigarette falls into the same category with wine, beer, shaving, wearing a bra (or purposely not wearing one), declaration of inde- pendence and striving for self-identity. For the young starter, a cigarette is associated with introduction to sex life, with courtship, with smoking ‘pot’ and keeping late studying hours. .. .” The report recommended, there- fore, the followng pitches to “young smokers, starters”: “Present the cigarette as part of the illicit pleasure cate- gory of products and activities. ... To the best of your ability, (considering some legal constraints), relate the cigarette to ‘pot’, wine, beer, sex, ete. Don’t communicate health or health-related points.” Ted Bates forwarded the report to Brown & Williamson. According to the al- legations of the complaint, which on this appeal we must accept as true, Brown & Williamson rejected the “illicit pleasure strategy” proposed in the report, and fired Ted Bates primarily because of displeasure with the proposed strategy. Years later the Federal Trade Commission conducted an investigation of cigarette advertising, and in May 1981 it published a report of its staff on the investiga- tion. The FTC staff report discusses the Kennan report, correctly dates it to May 1975, and after quoting from it the passages we have quoted states that “B & W adopted many of the ideas contained in this report in the 57a development of a Viceroy advertising campaign.” In support of this assertion the staff report quotes an in- ternal Brown & Williamson document on “Viceroy Strat- egy,” dated 1976, which states, “The marketing efforts must cope with consumers’ attitudes about smoking and health, either providing them a rationale for smoking a full flavor VICEROY or providing a means of repress- ing their concerns about smoking a full flavor VICE- ROY.” The staff report then quotes a description of three advertising strategies. Although the description contains no reference to young smokers or to “starters,” the staff report states: “B & W documents also show that it translated the advice [presumably from the Ken- nan report] on how to attract young ‘starters’ into an advertising campaign featuring young adults in situa- tions that the vast majority of young people probably would experience and in situations demonstrating ad- herence to a ‘free and easy, hedonistic lifestyle.’”” The interior quotation is from another 1976 Brown & Wil- liamson document on advertising strategy. On November 4, 1981, a reporter for WBBM-TV called Brown & Williamson headquarters and was put in touch with a Mr. Humber in the corporate affairs department. The reporter told Mr. Humber that he was preparing a story on the tobacco industry for Walter Jacobson’s “Perspective” program and asked him about the part of the FTC Staff report that dealt with the Viceroy adver- tising strategy. Humber replied that Brown & William- son had rejected the proposals in the Kennan report and had fired Ted Bates in part because of dissatisfaction with those proposals. Walter Jacobson’s “Perspective” on the tobacco in- dustry was broadcast on November 11 and rebroadcast on November 12 and again on March 5, 1982. In the broadcast, Jacobson, after stating that “pushing ciga- TE 58a rettes on television is prohibited,” announces his theme: “Television is off limits to cigarettes and so the business, the killer business, has gone to the ad business in New York for help, to the slicksters on Madison Avenue with a billion dollars a year for bigger and better ways to sell cigarettes. Go for the youth of America, go get ’em guys .... Hook ’em while they are young, make ’em start now —just think how many cigarettes they’ll be smoking when they grow up.” Various examples of how cigarette mar- keting attempts “to addict the children to poison” are given. The last and longest concerns Viceroy. The cigarette business insists, in fact, it will swear up and down in public, it is not selling cigarettes to children, that if children are smoking, which they are, more than ever before, it’s not the fault of the cigarette business. “Who knows whose fault it is?” says the cigarette business. That’s what Viceroy is saying, “Who knows whose fault it is that children are smoking? It’s not ours.” Well, there is a confidential report on cigarette advertising in the files of the Federal Government right now, a Viceroy advertising, the Viceroy strategy for attracting young people, starters they are called, to smoking—“FOR THE YOUNG SMOKER .... A CIGARETTE FALLS INTO THE SAME CATE- GORY WITH WINE, BEER, SHAVING OR WEAR- ING A BRA... .” says the Viceroy strategy— “A DECLARATION OF INDEPENDENCE AND STRIVING FOR SELF-IDENTITY.” Therefore, an attempt should be made, says Viceroy, to “. . . PRESENT THE CIGARETTE AS AN INITIA- TION INTO THE ADULT WORLD,” to “. . . PRE- SENT THE CIGARETTE AS AN ILLICIT PLEAS- URE... A BASIC SYMBOL OF THE GROWING- UP, MATURING PROCESS.” An attempt should be made, says the Viceroy slicksters, “TO RELATE OOOO | 59a THE CIGARETTE TO ‘POT’, WINE, BEER, SEX. DO NOT COMMUNICATE HEALTH OR HEALTH- RELATED POINTS.” That’s the strategy of the cigarette slicksters, the cigarette business which is insisting in public, “We are not selling cigarettes to children.” They’re not slicksters, they’re liars. While Jacobson is speaking those lines the television screen is showing Viceroy ads published in print media in 1980. Each ad shows two packs of Viceroys alongside a golf club and ball. The complaint charges that the broadcast made state- ments about Brown & Williamson that the defendants knew to be false and that not only were libelous per se and injurious to Brown & Williamson but also wrongfully interfered with Brown & Williamson’s business relations and violated two Illinois statutes, the Consumer Fraud and Deceptive Business Practices Act, Ill.Rev.Stat.1981, ch. 12114, I] 261 et seg., and the Uniform Deceptive Busi- ness Trade Practices Act, Ill.Rev.Stat.1981, ch. 121%, ©{ 311 et sey. We begin with the defamation count. Since the district court accepted all of the grounds for dismissal advanced by the defendants, we must decide whether any of these grounds—other than those abandoned in this court, as some have been—supports dismissal. One ground is that the broadcast is not libelous per se. If it is not, the complaint does not state a claim under the Illinois common law of defamation (the parties agree that Illinois law governs all of the substantive issues in this diversity case) unless it adequately alleges special damage, which the district court found it did not. Under traditional principles, a finding of libel per se (“per se” in defamation law meaning just that pecuniary damage—“‘special damage”—need not be proved) requires only that the defamatory character of the statement al- leged to be libelous be apparent on the face of the state- | 60a ment, or in other words that “extrinsic facts” not be necessary to make the statement defamatory. (If the statement was that Mrs. Jones had given birth on Janu- ary 11, 1939, the extrinsic fact necessary to complete the libel might be that Mrs. Jones had married the child’s father the previous month.) The defendants admitted at oral argument that the fact that Walter Jacobson’s broad- cast did not mention Brown & Williamson by name was not an extrinsic fact in this sense. See Hambric v. Field Enterprises, Inc., 46 Ill.App.2d 355, 359, 196 N.E.2d 489, 492 (1964); Harwood Pharmacal Co. v. National Broadcasting Co., 9 N.Y.2d 460, 214 N.Y.S.2d 725, 174 N.E.2d 602 (1961). The reason for distinguishing be- tween statements that are and statements that are not libelous on their face is that the impact of an apparently innocuous statement will be limited to the presumably small group of readers who know additional facts, so damage cannot be presumed but must be proved. The Jacobson broadcast was not innocuous on its face, and the fact that Brown & Williamson was not mentioned by name is relevant not to whether the broadcast was libel per se but to the distinct question whether it would be understood as referring to Brown & Williamson rather than to someone else. The defendants do not deny it would be. So the broadcast is libel per se in the traditional sense— unless the aspersions that it casts on Brown & William- son’s corporate character cannot be considered defama- tory at all, which is hardly tenable. But Illinois has abolished the distinction between slander and libel and in the process has_assimilated libel per se to the quite different concept of slander per se, rather than vice versa. E.g., Mitchell v. Peoria Journal-Star, Inc., 76 Tl. App.2d 154, 158-60, 221 N.E.2d 516, 519-20 (1966); Grabavoy v. Wilson, 87 Ill.App.2d 193, 202, 230 N.E.2d 581, 585 (1967); American Pet Motels, Inc. v. Chicago Veterinary Medical Ass'n, 106 Ill.App.3d 626, 629 and 6la n. 1, 62 Ill. Dec. 325, 328 and n. 1, 435 N.E.2d 1297, 1300 and n. 1 (1982). (Stanley v. Taylor, 4 Ill.App.3d 98, 104, 278 N.E.2d 824, 828 (1972), looks the other way, but is unclear as well as outnumbered.) Slander per se unlike libel per se depends on the character as well as complete- ness of the defamatory statement. Under traditional prin- ciples, an utterance is slander per se only if it imputes to the plaintiff (1) crime, (2) unchastity (if the plaintiff is female), (3) a loathsome disease, or (4) anything likely to discredit the plaintiff in his trade or business. Prosser, Handbook of the Law of Torts 756-60 (4th ed. 1971). Jacobson’s broadcast fits the fourth category. The de- fendants argue that since a cigarette company cannot survive in the long run if young people do not take up smoking, the broadcast will be understood in the business community as complimenting Brown & Williamson for its aggressive efforts to hook the young on smoking. But we doubt that a cigarette company could survive in the short run and thus be around to enjoy the long run if it flouted the strong public policy against encouraging chil- dren to smpke, a policy expressed for example in the ban on cigarette television advertising in section 6 of the Public Health Cigarette Smoking Act of 1969, 15 U.S.C. $ 1335. The Senate Report on the bill asked the FTC to include in the biennial reports on cigarette labeling and advertising that are required by section 8(a) of the Act, 15 U.S.C. § 1337(a), “an analysis of public opinion polls and other relevant information indicating the extent to which the American public, especially young people, have been made fully aware of the hazards of smoking... .” S.Rep. No. 566, 91st Cong., Ist Sess. 11 (1969), U-S. Code Cong. & Admin.News 1970, pp. 2652, 2662. The Re- port adds: “The committee cannot overstate its strong desire that the cigarette industry not only honor its state- ment carefully to limit print advertising so as not to appeal to youth, but that it will also exercise restraint in the overall use of print advertising and other forms 62a of promotion.” Jd. See also IIl.Rev.Stat.1981, ch. 23, ‘{ 2357-58, making it an offense to sell cigarettes to minors. A modern American corporation, especially one owned by a foreign company (Brown & Williamson is the wholly owned subsidiary of an English conglomerate corpora- tion), cannot proclaim “the public be damned” as its motto. If it openly defied the views passionately held by a substantial segment of the public, the Congress, and government agencies such as the FTC, it would be in- viting serious trouble on many fronts. Obviously it would have been grossly defamatory for Walter Jacobson to have accused Brown & Williamson of poisoning children; yet that is what he did in effect—indeed in those words, though used figuratively rather than literally. It is ir- relevant that some unreconstructed businessmen might approve of what Walter Jacobson accused Brown & Wil- liamson of doing. “If the advertisement obviously would hurt the plaintiff in the estimation of an important and respectable body of the community, liability is not a ques- tion of majority vote.” Peck v. Tribune Co., 214 U.S. 185, 190, 29 S.Ct. 554, 556, 53 L.Ed. 960 (1909) (per Holmes, J.). We have been assuming that in merging libel and slander Illinois merely extended the traditional categories of slander per se to written (or what is nowadays treated as the same thing, broadcast) statements. But those cate- gories have long been thought anachronistic and two of them, in today’s moral climate, are merely quaint. So it is not surprising that in the course of merging libel and slander the Illinois courts have altered the traditional categories. Chastity has been dropped; “loathsome dis- ease” has been replaced with “a communicable disease which would exclude one from society”; and discrediting people in their trades or businesses has become two cate- gories—“imput[ing] ... inability to perform or want of integrity in the discharge of duties of office or employ- peal 63a ment” and “prejudic({ing] a person in his profession or trade.” American Pet Motels, Inc. v. Chicago Vetinary Medical Ass’n, supra, 106 Ill.App.3d at 629, 62 IIl.Dee. at 328, 435 N.E.2d at 1300. And even a statement that falls within one of those categories is not necessarily slander per se any more. The statement must be suffi- ciently defamatory to justify an award of damages with- out proof of actual damage. “Words are libelous per se if they are ‘so obviously and naturally hurtful to the person aggrieved that proof of their injurious character can be, and is, dispensed with.’” Jd., quoting Reed v. Albanese, 78 Ill.App.2d 53, 58, 223 N.E.2d 419, 422 (1966). See also Costello v. Capital Cities Media, Inc., 111 Ill.App.3d 1009, 1011, 67 Ill.Dec. 721, 723, 445 N.E.2d 13, 15 (1982). Under contemporary as under traditional Illinois law, Jacobson’s broadcast is libelous per se. Accusing a ciga- rette company of what many people consider the immoral strategy of enticing children to smoke—enticing them by advertising that employs themes exploitive of adolescent vulnerability—is likely to harm the company. It may make it harder for the company to fend off hostile govern- ment regulation and may invite rejection of the com- pany’s product by angry parents who smoke but may not want their children to do so. These harms cannot easily be measured, but so long as some harm is highly likely the difficulty of measurement is an additional reason, under the modern functional approach of the Illinois courts, for finding libel per se rather than insisting on proof of special damage. In the American Pet Motels case the alleged libel consisted of a statement that persons who were not veternarians had treated a cat at the plaintiff’s pet “motel” for a parasite infection and that the state’s attorney would be notified of the incident. The statement may have prejudiced the plaintiff in its business but the likely prejudice was too slight to dispense with proof of special damage. See 106 Ill.App.3d at 629, 62 IIl.Dec. at 64a 328, 485 N.E.2d at 1300. The libel in the present case falls in one of the new as w [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1350%3A2. Public record. Not legal advice.