Gist v. Macon County Sheriff's Dept.

• Decision Date: 18 October 1996
• Docket Number: No. 4-95-0979,4-95-0979
• Citation: 671 N.E.2d 1154,284 Ill.App.3d 367
• Parties: , 219 Ill.Dec. 701 Douglas GIST, Plaintiff-Appellant, v. MACON COUNTY SHERIFF'S DEPARTMENT, Defendant (Decatur Herald and Review, a Division of Lee Enterprises, Inc. and TCI Cablevision of Decatur, Defendants-Appellees).
• Court: United States Appellate Court of Illinois

Page 1154

671 N.E.2d 1154

284 Ill.App.3d 367, 219 Ill.Dec. 701

Douglas GIST, Plaintiff-Appellant, v. MACON COUNTY SHERIFF'S DEPARTMENT, Defendant (Decatur Herald and Review, a Division of Lee Enterprises, Inc. and TCI Cablevision of Decatur,

Defendants-Appellees).

No. 4-95-0979.

Appellate Court of Illinois,

Fourth District.

Argued May 15, 1996.

Decided Oct. 18, 1996.

James A. Martinkus, D. Douglas Aldeen, Erwin, Martinkus, Cole & Ansel, Ltd., Champaign, for Douglas Gist.

Deanne F. Jones, Charles C. Hughes (argued), Kehart, Shafter, Hughes & Webber, P.C., Decatur, for Decatur Herald & Review.

Garry E. Davis, Bradley T. Paisley (argued), Erickson, Davis, Murphy, Johnson, Griffith & Walsh, Decatur, for TCI Cablevision of Decatur.

Justice STEIGMANN delivered the opinion of the court:

In March 1995, plaintiff, Douglas Gist, sued defendants, the Decatur Herald and Review (Decatur Herald), TCI Cablevision of Decatur (TCI), and the Macon County Sheriff's Department, for defamation. Plaintiff based his suit on a Crime Stoppers' "Most Wanted Fugitives" flyer which the sheriff's department compiled and the Decatur Herald distributed. TCI produced a television segment based upon this flyer. In August 1995, the trial court granted motions to dismiss filed by the Decatur Herald and the sheriff's department. In November 1995, the court granted TCI's motion to dismiss. Plaintiff appeals, arguing that the trial court erred by granting Decatur Herald's and TCI's motions to dismiss. We affirm.

I. BACKGROUND

Plaintiff's complaint--which the trial court dismissed--alleged essentially the following. On August 1, 1994, the Macon County State's Attorney filed a complaint charging plaintiff with burglary to a motor vehicle. On that same day, the trial court issued a warrant for plaintiff's arrest. However, the warrant was never served on plaintiff. On October 26, 1994, plaintiff spoke with someone from the sheriff's department about the outstanding warrant, and a "no-charge" was issued. (Plaintiff's counsel was unable to explain to this court what a "no-charge" is, and we have no independent knowledge of such a creature in the law.)

On October 31, 1994, the Decatur Herald circulated a Crime Stoppers' flyer as an insert in its daily paper. The flyer (appended to this opinion), captioned "Most Wanted Fugitives," featured plaintiff's name, picture, and the charge for which he was wanted, along with similar information concerning others wanted on outstanding warrants. Textual information appears to the right of the pictures, including (1) the prefatory statement "Fugitives featured in this publication are wanted as of October 6, 1994. Warrants must be verified before arrest"; (2) a warning ("IMPORTANT: These fugitives should be considered dangerous and might possibly be armed"); and (3) the credited source of the information ("This is an official quarterly publication compiled by the Macon County Sheriff's Warrants and Extradition Division with aid from local and state police agencies"). While the parties at oral argument were unable to explain who actually formatted and published the flyer, plaintiff's complaint alleged only that "the Macon County Sheriff's Department printed and distributed over 50,000 copies of the flyer" to be added as an insert in the Decatur Herald. TCI made and aired a television segment based on the flyer.

II. ANALYSIS

The material in this section is not to be published pursuant to Supreme Court Rule 23. Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23, eff. July 1, 1994.

Although it is somewhat unclear from his brief, plaintiff appears to challenge three separate defamatory statements in the flyer. First, plaintiff asserts as defamatory the statement that, as of October 6, 1994, a warrant existed for his arrest in connection with a charge of burglary to a motor vehicle. Second, he asserts as defamatory the heading of the flyer, "Most Wanted Fugitives." Third, he seems to allege that the warning inside the box on the right side of the flyer, stating "[t]hese fugitives should be considered dangerous and might possibly be armed," defames him. We consider all three statements in reviewing the trial court's decision.

A. Truth and Protected Opinion as a Defense

The material in this section is not to be published pursuant to Supreme Court Rule 23.

B. Defense of Substantial Truth

Defendants contend that the trial court's decision was proper because the flyer's statements were substantially true. We agree.

In Illinois, an allegedly defamatory statement is not actionable if it is substantially true, even though it is not technically accurate in every detail. Farnsworth v. Tribune Co., 43 Ill.2d 286, 293, 253 N.E.2d 408, 412 (1969); Lemons v. Chronicle Publishing Co., 253 Ill.App.3d 888, 890, 192 Ill.Dec. 634, 636, 625 N.E.2d 789, 791 (1993). While this rule is rooted in the United States Constitution (see New York Times Co. v. Sullivan, 376 U.S. 254, 289, 11 L.Ed.2d 686, 712, 84 S.Ct. 710, 731 (1964) (suggesting that state law requiring literal and complete truth as a defense might violate the first amendment); Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 115 L.Ed.2d 447, 111 S.Ct. 2419 (1991) (only substantial truth, not literal truth, is required in defense of a defamation action)), it is also logically driven, as "falsehoods which do no incremental damage to the plaintiff's reputation do not injure the only interest that the law of defamation protects." (Emphasis in original.) Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1228 (7th Cir.1993). Moreover, "[a] fussy insistence upon literal accuracy 'would condemn the press to an arid, dessicated [sic ] recital of bare facts.' " Loeb v. Globe Newspaper Co., 489 F.Supp. 481, 486 (D.Mass.1980), quoting Time, Inc. v. Johnston, 448 F.2d 378, 384 (4th Cir.1971).

A defendant bears the burden of establishing the "substantial truth" of his assertions, which he can demonstrate by showing that the "gist" or "sting" of the defamatory material is true. Lemons, 253 Ill.App.3d at 890, 192 Ill.Dec. at 636, 625 N.E.2d at 791. When determining the "gist" or "sting" of allegedly defamatory material, a trial court must "look at the highlight of the article, the pertinent angle of it, and not to items of secondary importance which are inoffensive details, immaterial to the truth of the defamatory statement." Vachet v. Central Newspapers, Inc., 816 F.2d 313, 316 (7th Cir.1987). While substantial truth is normally a question for the jury, where no reasonable jury could find that substantial truth had not been established, the question is properly one of law, which this court may review de novo. See Haynes, 8 F.3d at 1228.

Here, the essence of the matter is that plaintiff was wanted on an arrest warrant as of October 6, 1994, for burglary to a motor vehicle, which is entirely true. That plaintiff "might possibly be armed" or "should be considered dangerous" or was a "most wanted" fugitive--to the extent the statements can even be considered as applying to plaintiff or asserting facts about him-- are all secondary details, immaterial to the truth of the Crime Stoppers flyer. Viewing the three allegedly defamatory statements under the totality of the circumstances, we conclude that the trial court's decision was also proper in light of the "substantial truth" of the flyer.

Our conclusion squares with similar results reached by this court and other courts in similar circumstances. See, e.g., Lemons, 253 Ill.App.3d at 890, 192 Ill.Dec. at 636, 625 N.E.2d at 791 (where the plaintiff was caught shoplifting by store employees and then pulled a knife, newspaper article's statements that employees were "security guards," the plaintiff was convicted of four rather than three offenses, and one employee was "stabbed" as opposed to cutting himself in trying to disarm the plaintiff were of little relevance); Haynes, 8 F.3d 1222 (where the plaintiff admitted or it was incontestably established that he drank heavily, lost his job, assaulted a police officer, walked out on his children, and committed bigamy, statements that the plaintiff left his children home alone on some nights, was fired for drinking rather than for being caught with alcohol, and preferred to spend money on his car rather than his children paled by comparison); Vachet, 816 F.2d 313 (where the plaintiff admitted being arrested for harboring a fugitive, whether the plaintiff was arrested on a warrant for that charge was an irrelevant detail); Wilson v. United Press Associations, 343 Ill.App. 238, 98 N.E.2d 391 (1951) ("gist" or "sting" of a report of a supreme court decision was that the plaintiff, after having been convicted, was granted a new trial, and the newspaper's report that the plaintiff had begun to serve his sentence was immaterial).

C. Privileges

1. Absolute Privilege as a Defense

The material in this section is not to be published pursuant to Supreme Court Rule 23.

2. Conditional Privileges

The Decatur Herald and TCI both assert they were protected by a conditional privilege. We agree.

In Kuwik v. Starmark Star Marketing & Administration, Inc., 156 Ill.2d 16, 27, 188 Ill.Dec. 765, 770, 619 N.E.2d 129, 134 (1993), our supreme court adopted the Restatement (Second) of Torts approach to determine whether a qualified privilege should be recognized in a given situation. See Restatement (Second) of Torts §§ 593 through 599 (1977). Conditional privileges generally fall into three categories: (1) situations which involve some interest of the person who publishes the defamatory matter; (2) situations which involve some interest of the person to whom the matter is published or of some third person; and (3) situations which involve a recognized interest of the public. Kuwik, 156 Ill.2d at 29, 188 Ill.Dec. at 771, 619 N.E.2d at 135. A court should look only to the occasion giving rise to the defamation action when determining as a matter of public policy whether the occasion created some...