Barrett v. Fonorow

• Decision Date: 28 October 2003
• Docket Number: No. 2-02-0886.,2-02-0886.
• Parties: Stephen BARRETT, Plaintiff-Appellant and Cross-Appellee, v. Owen R. FONOROW and Intelisoft Multimedia, Inc., Defendants-Appellees and Cross-Appellants.
• Court: United States Appellate Court of Illinois

799 N.E.2d 916

343 Ill. App.3d 1184

279 Ill.Dec. 113

Stephen BARRETT, Plaintiff-Appellant and Cross-Appellee, v. Owen R. FONOROW and Intelisoft Multimedia, Inc., Defendants-Appellees and Cross-Appellants.

No. 2-02-0886.

Appellate Court of Illinois, Second District.

October 28, 2003.

John E. Norton, Thomas J. Long, Norton, Mancini, Weiler & DeAno, Wheaton, Peter M. Katsaros, Gessler Hughes Socol Piers Resnick & Dym, Ltd., Chicago, for Stephen Barrett, M.D.

Zachary H. Lawrence, Lawrence Law Firm, P.C., Lisle, Robert G. Black, Law Offices of Robert G. Black, Naperville, for Owen R. Fonorow, Intelisoft Multimedia, Inc.

Justice O'MALLEY delivered the opinion of the court:

Stephen Barrett, M.D., appeals from the judgment of the circuit court dismissing his complaint against Owen Fonorow and Intelisoft Multimedia, Inc. (Intelisoft). Fonorow and Intelisoft cross-appeal, challenging the circuit court's judgment granting summary judgment in favor of Barrett on their motion for sanctions under Supreme Court Rule 137 (155 Ill.2d R. 137). We affirm both the dismissal of Barrett's complaint and the denial of Intelisoft's motion for sanctions.

Barrett alleged in his complaint that he is a medical journalist, consultant, and consumer advocate who runs a website at "www.quackwatch.com." The aims of "quackwatch" are to warn the public of "health fraud" and "unfounded medical claims" and to help the public "make educated and informed consumer decisions about healthcare practices." A common target of "quackwatch" is the practice of "alternative medicine." Fonorow is president of Intelisoft and operates a website at "www.internetwks.com," where he posts articles and other commentary. (Hereinafter Fonorow and Intelisoft are together referred to as "Intelisoft.") Between January 6, 2001, and May 22, 2001, Intelisoft posted on its website 10 articles authored by Patrick "Tim" Bolen. The articles contained several disparaging claims about Barrett, the gist of which was that he was a liar and a charlatan. Barrett alleged that Intelisoft knew or had reason to know that the disparaging remarks in the articles were false and defamatory because "[o]ther webpages and articles that Fonorow and Intelisoft have posted to their websites have had false and defamatory material about Dr. Barrett in them, and this has been brought to their attention." Barrett brought one claim of defamation and one claim of false light invasion of privacy (hereinafter "false light") against Intelisoft.

Intelisoft moved to dismiss the complaint under section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2000)). Intelisoft argued that Barrett's claims were barred by section 230 of the Communications Decency Act (Act) (47 U.S.C. § 230 (2000)), which preempts all state causes of action that would hold a "provider or user of an interactive computer service" liable as the "publisher or speaker of any information provided by another information content provider." Barrett responded that section 230 did not bar his suit because (1) Intelisoft was not a "provider or user of an interactive computer service" but an "information content provider" as those terms are defined in section 230; and (2) section 230 was intended to grant immunity only to "publishers" and Intelisoft acted not as a "publisher" but as a "distributor" in posting Bolen's articles to its website. The trial court granted Intelisoft's motion and dismissed Barrett's complaint. Afterwards, Intelisoft filed a motion for sanctions under Supreme Court Rule 137 (155 Ill.2d R. 137), which the court denied. This appeal followed.

We first address Intelisoft's motion to strike Barrett's reply brief. Intelisoft argues that the reply brief violates Supreme Court Rule 341 (Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(a), eff. October 1, 2001) in that it exceeds the maximum page length by four pages and its statement of facts is inappropriately argumentative at points. Intelisoft desires that we strike the whole brief or at least the offending parts. We decline to do so. "Where violations of supreme court rules are not so flagrant as to hinder or preclude review, the striking of a brief in whole or in part may be unwarranted." Amcore Bank, N.A. v. Hahnaman-Albrecht, Inc., 326 Ill.App.3d 126, 134, 259 Ill.Dec. 694, 759 N.E.2d 174 (2001). While we do perceive some violations of Rule 341 in the reply brief—its length being the most obvious—we decline to strike any part of it because the violations do not hamper our review of the issues. Intelisoft's motion is denied. However, we do admonish Barrett that the supreme court rules are not merely advisory and that courts do enforce them.

We turn now to Barrett's appeal from the trial court's judgment dismissing his complaint under section 2-619(a)(9) of the Code. Generally, a motion to dismiss made under section 2-619 admits the legal sufficiency of a plaintiff's complaint but raises defects, defenses, or other affirmative matters that appear on the face of the complaint or that are established by external submissions acting to defeat the allegations of the complaint. Krilich v. American National Bank & Trust Co. of Chicago, 334 Ill.App.3d 563, 569-70, 268 Ill.Dec. 531, 778 N.E.2d 1153 (2002). Section 2-619(a)(9) in particular allows dismissal when "the claim asserted * * * is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2000). Immunity from suit is an "affirmative matter" properly raised under section 2-619(a)(9). Epstein v. Chicago Board of Education, 178 Ill.2d 370, 383, 227 Ill.Dec. 560, 687 N.E.2d 1042 (1997). The "affirmative matter" asserted by the defendant must be apparent on the face of the complaint or supported by affidavits or certain other evidentiary materials. Epstein, 178 Ill.2d at 383,227 Ill.Dec. 560, 687 N.E.2d 1042. Once a defendant satisfies this initial burden of going forward on the section 2-619(a)(9) motion to dismiss, the burden then shifts to the plaintiff, who must establish that the affirmative defense asserted either is unfounded as a matter of law or requires the resolution of an essential element of material fact before it is proven. Epstein, 178 Ill.2d at 383,227 Ill.Dec. 560,687 N.E.2d 1042. The plaintiff may establish this by presenting "affidavits or other proof." 735 ILCS 5/2-619(c) (West 2000). If, after considering the pleadings and affidavits, the trial judge finds that the plaintiff has failed to carry the shifted burden of going forward, the motion may be granted and the cause of action dismissed. Epstein, 178 Ill.2d at 383,227 Ill.Dec. 560,687 N.E.2d 1042. As in reviewing a grant of summary judgment, a court reviewing the dismissal of a complaint under section 2-619 determines de novo whether there is a genuine issue of material fact and whether the defendant is entitled to judgment as a matter of law. Nichol v. Stass, 192 Ill.2d 233, 248, 248 Ill.Dec. 931, 735 N.E.2d 582 (2000).

In its section 2-619 motion, Intelisoft claimed that section 230 of the Act provided it immunity from Barrett's suit because the defamatory material it disseminated was created by a third party, Bolen. Section 230 "creates a federal immunity to any state law cause of action that would hold computer service providers liable for information originating with a third party." Ben Ezra, Weinstein, & Co. v. America Online, Inc., 206 F.3d 980, 986 (10th Cir. 2000). Section 230 provides in relevant part:

"(c) Protection for Good Samaritan blocking and screening of offensive material

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1) [subparagraph (A)].

* * *

(e) Effect on other laws

* * *

(3) State law

Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

* * *

(f) Definitions

As used in this section:

(1) Internet

The term `Internet' means the international computer network of both Federal and non-Federal interoperable packet switched data networks.

(2) Interactive computer service The term `interactive computer service' means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

(3) Information content provider

The term `information content provider' means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." 47 U.S.C. § 230 (2000).

In passing section 230, "Congress decided not to treat providers of interactive computer services like other information providers such as newspapers, magazines, or television and radio stations, all of which may be liable for publishing or distributing obscene or defamatory material written or prepared by others." Blumenthal v. Drudge, 992 F.Supp. 44, 49 (D.D.C.1998).

The threshold issue for...