Rose v. Hollinger Intern., Inc.

• Decision Date: 19 May 2008
• Docket Number: No. 1-06-2885.,1-06-2885.
• Parties: Thomas A. ROSE, Plaintiff-Appellant, v. HOLLINGER INTERNATIONAL, INC., Chicago Sun-Times, Inc., Jerusalem Post, and Bret Stephens, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

889 N.E.2d 644

Thomas A. ROSE, Plaintiff-Appellant, v. HOLLINGER INTERNATIONAL, INC., Chicago Sun-Times, Inc., Jerusalem Post, and Bret Stephens, Defendants-Appellees.

No. 1-06-2885.

Appellate Court of Illinois, First District, First Division.

May 19, 2008.

Martin B. Carroll, Fox, Hefter, Swibel, Levin & Carroll, LLP, Chicago, for Appellant.

Steven L. Hamann, James V. Garvey, and Frederic T. Knape, Vedder, Price, Kaufman & Kammholz, P.C., Chicago, for Appellees.

Justice WOLFSON delivered the opinion of the court:

In this defamation case we are required to explore the indistinct line between fact and opinion. Where we land determines the outcome of this appeal.

Plaintiff Thomas A. Rose (Rose) appeals the trial court's order dismissing with prejudice his action against the defendants Hollinger International, Inc. (Hollinger), Chicago Sun-Times, Inc. (Sun-Times), Jerusalem Post, and Bret Stephens (Stephens). Count V of plaintiff's Second Amended Complaint alleged Stephens made defamatory statements against Rose in an email sent to Jerusalem Post employees.

The trial court found the alleged defamatory statements — Rose "wrought damage to" the Jerusalem Post's finances, reputation, business relationships, morale, and quality of its editorial product — were not actionable because they were protected expressions of Stephens' opinions. Rose appeals the court's dismissal of Count V. We affirm.¹

FACTS

At the time of the complaint, Hollinger was the owner of the Sun-Times and the Jerusalem Post. Rose began working for Hollinger and the Chicago Sun-Times in 1997. In June 1998, Rose became the publisher and chief executive officer (CEO) of the Jerusalem Post. He moved to Israel and worked in that position until he was fired on May 25, 2004. On May 27, 2004, Stephens, the editor-in-chief of the Jerusalem Post, sent an email to the editorial staff in Israel and New York. The content of the email, in its entirety, is as follows:

"Subject: memo from Bret Stephens to editorial staff Dear Colleagues,

As some of you may have heard already, Tom Rose was this Tuesday terminated as Publisher and CEO of The Jerusalem Post. CFO Mark Ziman has taken his place as publisher on an interim basis.

For those of us who have seen up close the damage Tom did to this newspaper, this is a happy event indeed. For those Tom damaged personally, with his abusive behavior and bizarre management style, it is happier still. So good riddance, Tom, good riddance. You will not be missed.

So many of us have been waiting for this day, and fighting for it, that we may be forgiven for thinking that Tom's departure brings our problems to an end. It does not. It will be some time before we can undo the damage he has wrought: To our finances, to our reputation, to our business relationships, to our morale, to the quality of our editorial product.

What we can say is that, with Tom gone, we can begin to address our problems in a rational and purposeful way. Improvements will not necessarily come quickly. But I'm confident they will, in time, come.

I hope each of you had a pleasant holiday. I look forward to seeing you next week.

Yours, Bret."

Rose alleges Stephens took no steps to ensure the email was not forwarded beyond its original recipients. He says the email was sent to several freelance journalists around the world and forwarded to other people in Illinois and New York. Excerpts from the email were published in at least two newspaper articles available on the Internet. He alleges Stephens made the defamatory statements in the course of his employment, "with the intent to injure Rose personally and to interfere with Rose's efforts to obtain employment following his termination."

Count V of Rose's Second Amended Complaint alleges the statements in the email were defamatory per se because they imputed an inability to perform, or a lack of integrity in the discharge of, Rose's employment duties, and imputed he lacked ability in his trade, profession, or business.

The defendants filed a motion to dismiss pursuant to section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 2004)), contending: (1) the statements constitute expressions of opinion; (2) the statements are subject to a qualified privilege; (3) Rose failed to sufficiently allege "actual malice;" (4) defendants are not liable for statements made by Stephens outside the scope of his employment; and (5) Rose cannot state a claim against Hollinger or the Sun-Times as those companies were not Rose's employers at the time the statements were made.

The trial court dismissed the defamation count with prejudice, holding the alleged defamatory statements were expressions of Stephens' opinions. The court did not address defendants' other arguments. The court subsequently entered an order finding no just reason to delay appeal of the dismissal order. 155 Ill.2d R. 304(a).

DECISION

A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint based on defects apparent on its face. 735 ILCS 5/2-615 (West 2004); Marshall v. Burger King Corp., 222 Ill.2d 422, 429, 305 Ill.Dec. 897, 856 N.E.2d 1048 (2006). Our review is de novo. Wakulich v. Mraz, 203 Ill.2d 223, 228, 271 Ill.Dec. 649, 785 N.E.2d 843 (2003).

A statement is considered defamatory "if it tends to cause such harm to the reputation of another that it lowers that person in the eyes of the community or deters third persons from associating with him." Kolegas v. Heftel Broadcasting Corp., 154 Ill.2d 1, 10, 180 Ill.Dec. 307, 607 N.E.2d 201 (1992), citing Restatement (Second) of Torts § 559 (1977). "Statements are considered defamatory per se when the defamatory character of the statement is apparent on its face; that is, when the words used are so obviously and materially harmful to the plaintiff that injury to his reputation may be presumed." Kolegas, 154 Ill.2d at 10, 180 Ill.Dec. 307, 607 N.E.2d 201.

Rose alleges Stephens' statements add up to imputation he is unable to perform his professional duties, thus per se defamation. The posture of this appeal does not call on us to decide whether Stephens' email contains defamatory words. We will assume, as the parties apparently do in this appeal, there is at least some defamation. The question we must answer is whether the defamatory words are actionable. See Bryson v. News America Publications, Inc., 174 Ill.2d 77, 99-100, 220 Ill.Dec. 195, 672 N.E.2d 1207 (1996). That is, statements that are defamatory per se may enjoy constitutional protection as expressions of opinion. Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill.2d 558, 581, 304 Ill.Dec. 369, 852 N.E.2d 825 (2006); U.S. Const., amend. I.

First, we look at some of the decisions that have brought us to the fact versus opinion contest we must resolve.

Before 1990, courts perceived a fundamental distinction between statements of fact and statements of opinion for first amendment purposes. Bryson, 174 Ill.2d at 99, 220 Ill.Dec. 195, 672 N.E.2d 1207. The distinction was grounded in dictum contained in Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3006-07, 41 L.Ed.2d 789, 805 (1974):

"Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact."

In Milkovich v. Lorain Journal Co., 497 U.S. 1, 18, 110 S.Ct. 2695, 2705, 111 L.Ed.2d 1, 17 (1990), the United States Supreme Court held the above passage from Gertz was not intended to create a "wholesale defamation exemption" for anything labeled an "opinion." Rejecting what it called "the creation of an artificial dichotomy between `opinion' and fact," the Court held there is no separate first amendment privilege for statements of opinion. Milkovich, 497 U.S. at 18-19, 110 S.Ct. at 2706, 111 L.Ed.2d at 18. A false assertion of fact can be libelous even though couched in terms of an opinion. For example, simply couching the statement "Jones committed perjury" in terms of opinion — "In my opinion Jones committed perjury" — does not dispel the factual implications contained in the statement. Milkovich, 497 U.S. at 18-19, 110 S.Ct. at 2706, 111 L.Ed.2d at 17-18.

The statement at issue in Milkovich appeared in a newspaper column that said the petitioner "lied at the hearing after * * * having given his solemn oath to tell the truth." Milkovich, 497 U.S. at 5, 110 S.Ct. at 2698, 111 L.Ed.2d at 9. The Court said the dispositive question was "whether a reasonable factfinder could conclude that the statements in the [column] imply an assertion that petitioner Milkovich perjured himself in a judicial proceeding." Milkovich, 497 U.S. at 21, 110 S.Ct. at 2707, 111 L.Ed.2d at 19. The Court answered the question in the affirmative, holding:

"This is not the sort of loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining that petitioner committed the crime of perjury. Nor does the general tenor of the article negate this impression. We also think the connotation that petitioner committed perjury is sufficiently factual to be susceptible of being proved true or false." Milkovich, 497 U.S. at 21, 110 S.Ct. at 2707, 111 L.Ed.2d at 19.

The Illinois Supreme Court has adopted and applied the Milkovich test. Bryson, 174 Ill.2d at 100, 220 Ill.Dec. 195, 672 N.E.2d 1207; Kolegas, 154 Ill.2d at 10, 180 Ill.Dec. 307, 607 N.E.2d 201. Calling it a "restrictive" test, the court held a statement is protected by the first amendment only if it cannot be "reasonably interpreted as stating actual facts" about the plaintiff. Bryson, 174 Ill.2d at 100, 220 Ill.Dec. 195, 672 N.E.2d 1207; Kolegas, 154 Ill.2d at 14-15, 180 Ill.Dec. 307, 607 N.E.2d 201, citing Milkovich, 497 U.S. at 20, 110 S.Ct. at 2706, 111 L.Ed.2d at 19. The determination is a matter of law for the...