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Tuesday, December 4, 2007

Illinois Appellate Court Affirms Lower Court Decision Re Newspaper Editor's Statements About Former CEO: Not Actionable

An Illinois appellate court has affirmed a lower court's decision that a newspaper editor's statements in an email distributed to employees regarding the dismissal of a former CEO and publisher are not actionable. The former CEO had complained in particular because the email's contents reached beyond the employees. The court was required to determine whether the statements complained of were fact or opinion.

"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."

According to the appellate court, "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....That is, statements that are defamatory per se may enjoy constitutional protection as expressions of opinion....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. The distinction was grounded in dictum contained in Gertz v. Robert Welch, Inc.... 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....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.... A false assertion of fact can be libelous even though couched in terms of an opinion....Courts evaluate the totality of the circumstances in each case, but the emphasis is on whether the statement is capable of objective verification....

"We consider whether a reasonable reader would understand the "damage to our finances" phrase as Stephens’ opinion or his factual assertion, bearing in mind "[t]he test is restrictive: a defamatory statement is constitutionally protected only if it cannot be reasonably interpreted as stating actual fact."...We look to the three "considerations" used by the supreme court in Solaia to separate fact from opinion....First, whether the statement has a precise and readily understood meaning. The meaning of "damage" is fairly clear, when taken in isolation. Our dictionary defines it as "loss due to injury; injury or harm to *** property."... Webster’s defines "finances" as: "the pecuniary affairs or resources of a ***company."...While the words at issue, when parsed separately, might be understandable, they do not exist in a vacuum. They refer to a business enterprise, the Jerusalem Post. The company’s "pecuniary affairs or resources" is a broad term, an outer shape without an inner core. The reasonable reader cannot know which pecuniary affairs or resources are being referred to. Different readers will have different views of the meaning of the phrase....We do not believe the phrase at issue has a "precise core of meaning for which a consensus of understanding exists."... Second, whether the statement is verifiable. That is, whether the alleged defamatory statement contains an objectively verifiable assertion....No specific location of injury is provided. Nor is one inferred in some undisclosed defamatory manner. One cannot tell whether it is a matter of profit and loss. Or assets and liabilities. Or net worth. And so on....Third, we look to the statement’s literary or social context to see whether it signals that it has factual content. Here, Stephens’ email represents a mean-spirited sendoff of a discharged publisher for no apparent institutional purpose. It was gloating ("So good riddance, Tom, good riddance. You will not be missed."). Stephens was not making a case or stating an argument. He did not claim "to be in possession of objectively verifiable facts."

"We recognize this is a close case. As Professor Graham has written: "A clear line between fact and opinion is impossible to draw." M. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 701.1, at 516 (8th ed. 2004). But draw it we must. We conclude Stephens’ intemperate words in the email are constitutionally protected opinions."

Read the entire opinion here.

The case is Rose v. Hollinger International, 314 Ill. Dec. 292; 874 N. E. 2d 202 (2007).

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