306 F.Supp. 310 (N.D.Ill. 1969), 69 C 1288, Gertz v. Robert Welch, Inc.

Docket Nº:69 C 1288.
Citation:306 F.Supp. 310
Party Name:Elmer GERTZ, Plaintiff, v. ROBERT WELCH, INC., Defendant.
Case Date:November 18, 1969
Court:United States District Courts, 7th Circuit, Northern District of Illinois
 
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Page 310

306 F.Supp. 310 (N.D.Ill. 1969)

Elmer GERTZ, Plaintiff,

v.

ROBERT WELCH, INC., Defendant.

No. 69 C 1288.

United States District Court, N.D. Illinois, Eastern Division.

Nov. 18, 1969

Wayne B. Giampietro, Chicago, Ill., for plaintiff.

James A. Boyle, Jr., Chicago, Ill., for defendant.

MEMORANDUM OPINION

DECKER, District Judge.

Plaintiff, a practicing attorney, brings this diversity action for libel under Illinois law, claiming that defendant published a magazine article, and reprints thereof, designating plaintiff as a Communist or Communist sympathizer. defendant has moved to dismiss the complaint for failure to state a claim upon which relief can be granted, or alternatively, for failure to satisfy the requisite jurisdictional amount.

Plaintiff's complaint alleges that he has been injured in his professional reputation and practice by defendant's publications. The alleged defamatory statements include representations that plaintiff has been an 'official of the Marxist League for Industrial Democracy, originally Known as the Intercollegiate Socialist Society, which has advocated the violent seizure of our government,' that he is 'preeminent' in the 'Communist National Lawyers Guild,' and that he is a 'Leninist' and a 'Communist-fronter.'

The complaint generally seeks actual damages of $10,001 and punitive damages of $500,000 in each of two counts. If the libel is only a libel 'per quod' rather than a libel 'per se,' the complaint would be defective because it fails to allege special damages which are essential to the maintenance of a per quod action. See, e.g., Whitby v. Associates Discount Corp., 59 Ill.App.2d 337, 207 N.E.2d 482 (3d Dist. 1965); Continental Nut Company v. Robert L. Berner Company, 393 F.2d 283 (7th Cir. 1968). The defendant contends that calling the plaintiff a Communist amounts only to a libel per quod.

Prior cases have uniformly held that it is libel per se under Illinois law to falsely label one a Communist. Dilling v. Illinois Publishing and Printing Company, 340 Ill.App. 303, 91 N.E.2d 635 (1st Dist. 1950); Spanel v. Pegler, 160 F.2d 619, 171 A.L.R. 699 (7th Cir. 1947); cf. Ogren v. Rockford Star Printing Company, 288 Ill. 405, 123 N.E. 587 (1919) .

Page 311

Recent Illinois Appellate Court cases in two districts have, however, equated the standards for libel per se with those for slander per se. 1 Assuming that the...

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