Stone v. Paddock Publications, Inc.

• Citation: 961 N.E.2d 380,39 Media L. Rep. 2697,356 Ill.Dec. 284,2011 IL App (1st) 093386
• Decision Date: 17 November 2011
• Docket Number: No. 1–09–3386.,1–09–3386.
• Parties: Lisa STONE, as Mother and Next Friend of Jed Stone, Petitioner–Appellee, v. PADDOCK PUBLICATIONS, INC., Respondent (John Doe, Intervenor–Appellant).
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 093386

356 Ill.Dec. 284

39 Media L. Rep. 2697

961 N.E.2d 380

Lisa STONE, as Mother and Next Friend of Jed Stone, Petitioner–Appellee,

v.PADDOCK PUBLICATIONS, INC., Respondent (John Doe, Intervenor–Appellant).

No. 1–09–3386.

Appellate Court of Illinois, First District, Fourth Division.

Nov. 17, 2011.

Michael D. Furlong, Peter M. Trobe, Trobe, Babowice & Associates LLC, Waukegan, IL, Charles Mudd, Jr., Mudd Law Offices, Chicago, IL, for appellant.

Stephen L. Tyma, William A. O'Connor, Tyma O'Connor, P.C., Chicago, IL, for appellee.

OPINION

Presiding Justice LAVIN delivered the judgment of the court, with opinion.

¶ 1 This appeal has its genesis in online chat on a suburban newspaper's comment board between two individuals (one later identified as a minor) who posted various sarcastic comments about a local election under anonymous screen names. The minor's mother, a candidate in the election, was the subject of much of the chatter and she ultimately filed a filed a petition pursuant to Supreme Court Rule 224 (Ill. S.Ct. R. 224 (eff. May 30, 2008)) on her son's behalf, seeking the discovery of John Doe's identity due to his comments, which were allegedly defamatory of her child. Ultimately, the trial court ordered that the identity of the subscriber to the internet protocol (IP) address used by Doe when posting on the website would be revealed to petitioner. Doe now appeals, asserting that the trial court erred by applying an improper standard in determining whether petitioner was entitled to discover his identity and by granting petitioner relief where the challenged comments do not constitute defamation. Doe also contends that the challenged comments were immunized by the Citizen Participation Act (735 ILCS 110/1 (West 2008)). We reverse.

¶ 2 I. BACKGROUND

¶ 3 Petitioner Lisa Stone, acting as mother and next friend for her minor son Jed Stone, filed petitions for discovery pursuant to Rule 224 naming Paddock Publications, Inc., as respondent. These petitions indicated that respondent published an article that was made available on its Daily Herald website on April 6, 2009. Like virtually all online newspaper's sites, the online version of this article allowed the public to post and read comments without specifically identifying themselves. On April 9, 2009, an individual with the user name “Hipcheck16” posted an allegedly defamatory comment regarding Jed, who went by the screen name “Uncle W” on this message board.¹ PETITIONER URGES That “[i]t is necessary to ascertain the identity of Hipcheck16, as he is a potential defendant for his defamatory remarks.” Petitioner sought an order to obtain discovery from respondent, whom petitioner believed possessed the name and address of Hipcheck16. Although the posted comments were not recited in or attached to the petition, petitioner provided the challenged comments as well as additional dialogue between Jed and Hipcheck16 in later filings.

¶ 4 The record shows that on April 4, 2009, Hipcheck16 had made the following comments in response to a letter in support of petitioner's campaign for Buffalo Grove Village trustee, which was published on the Daily Herald's website:

“Here we go again—another brainwashed adolescent who can't form an opinion on their own. Lou—you're probably not old enough to vote, and I'm certain all you know about this election is what your mommy told you. I'll bet you've never been to a village board meeting and couldn't find village hall even if they were giving away free iPods there.

Do some of your own research on your wonderful candidate and you'll quickly discover that she is NOT QUALIFIED to be a trustee. She knows little about finance, NOTHING about business or village operations and can't seem to form a coherent thought—at least not ones that find their way out of her mouth.

Your parents should teach you the importance of having good community leaders, and a lesson on independent thinking would probably be beneficial too. While you're at it, perhaps you should work on that spelling and grammar stuff, as it seems to be an ongoing challenge for you, as well as other Stone supporters.

Now go watch MTV and quit inserting yourself into conversations for which you're not prepared. If you're 16, go take your Rottweiler for a nice long walk. And don't do heroin—it's bad for you.”

On the same day, Hipcheck16 posted the following comments:

“Ooops—my previously post was directed at our little pal UncleW, not Lou. My apologies Lou!

I'm not perfect. But at least I know what a Home Rule Tax is.:)”

¶ 5 In response to an article which was primarily about candidate Joanne Johnson, the following colloquy ensued on April 8, 2009:

“HIPCHECK16: UncleW—funny how you suddenly surface again to gloat about Stone's win, and do so like the ill-informed punk that you really are. Didn't you learn last week that you should stay out of things you don't understand? Can you really be proud of a candidate who stood idly by while people claiming to be her supporters made anti-Semitic allegations about two of her opponents?

Whether or not Stone actually condoned the use of anti-Semitism is really not the issue. She was aware that people who were in some way associated with her campaign were calling voters all over the village falsely accusing Johnson and Terson of running anti-Semitic campaigns. If she did not believe that Johnson and Terson were anti-Semitic, she could have made a public statement denouncing those calls and disassociating herself from the actions of what may have been a few overzealous supporters.

Instead, she took no action, allowing those rumors to spread. By not speaking out against such hate speech, she tacitly condoned it, knowing that it would work to her advantage in the election.

Now, that's something you can really be proud of, isn't it UncleW? Would you be down for a conversation about that?

UNCLEW: Yes Hipcheck, and like I said show yourself in person. With all your resources I'm sure you could navigate your way over to the Stone confines. Then I'll be glad to have this conversation with you, however, I will not continue to comment on these blogs where anyone can be anyone.

And HAPPY PESACH Hipcheck. Hopefully you will find the afikoman tonight.

HIPCHECK16: Thanks UncleW, ya little nebish. You have a nice little Pesach yourself. I may stop by tonight—have room for me at the Seder?

Some days I'm really ashamed of my fellow tribesmen, and today is one of them. You'll do anything to justify your actions, and your sense of entitlement sickens me. Your holier than thou attitude and arrogance is disgusting, but what's even worse is that just like your mommy and all her buddies, you think you're smarter than you really are. And there is nothing more dangerous than someone who is not nearly as smart as they think they are.

Hope you and daddy are in the front row at the board meetings so you can mouth answers to her, just like you did at the forum. Otherwise she'll be completely lost, and I don't think she should count on the other trustees for help, since she's already alienated herself from most of them. She's not qualified to carry the other trustee's briefcases—they know it and she knows it. Can't wait to watch her ummm and uhhh her way through the meetings—I'm in need of a good laugh.

Now go help mommy prepare her Seder so she doesn't break one of her acrylic nail extensions or accidentally wash off her fake tan.

UNCLEW: Ya got a name Mr. Hipcheck?”

¶ 6 The next day, Hipcheck16 posted the following comments, including the emphasized comments being challenged by petitioner:

“And as for you, UncleW ...

Thanks for the invitation to visit you.. but I'll have to decline. Seems like you're very willing to invite a man you only know from the internet over to your house—have you done it before, or do they usually invite you to their house?

Plus, now that you have stupidly revealed yourself, you may want to watch what you say here—and consider the damage you've done by attacking sitting trustees and other municipal officials that your mommy will now have to work with. Too bad she'll have to begin her tenure with apologies. These people are way too smart to just accept her outright. Their obligation is to the village, not to your mommy. If she thinks she's entitled to their respect simply because she got herself elected, she needs to think again. If I were her, I'd be working on some apologies and learning something about finance before she's sworn in.

Now quit gloating, you're looking as silly as your mommy did accosting voters at the polls.” (Emphasis added.)

[356 Ill.Dec. 290] ¶ 7 On April 13, 2009, after petitioner was elected as trustee, the Daily Herald's website published an article titled “Buffalo Grove trustees move forward after contentious campaign.” In his comment posted below the article, Hipcheck16 stated as follows:

“The lies continue. In a blog under a previous article related to the election[,] Stone's son, writing under them [ sic ] name UncleW claims that his family received one of the robo calls. Now Stone claims they never got one. The least they could do is get their lies straight.”

¶ 8 The trial court entered a written order permitting petitioner to engage in limited discovery to obtain the information necessary to identify Hipcheck16. Respondent apparently answered petitioner's discovery requests by informing petitioner that Hipcheck16's IP address was 24.1.3.203 and his e-mail address was hipcheck 16@ yahoo. com, but did not reveal Hipcheck16's name. In addition, it was determined that this IP address belonged to a Comcast Cable user or subscriber. Notwithstanding petitioner's failure to add Comcast as a Rule 224 respondent, petitioner then filed a motion seeking an order compelling Comcast to respond to a subpoena and provide the identity of the subscriber to the pertinent IP address. The trial court ordered Comcast to notify its subscriber that his identity was being sought by petitioner and...