Illinois Supreme Court Expands Freedom of Press
In honor of National Newspaper Week (October 1-7, 2006), this article discusses Solaia Technology v. Specialty Publishing, a recent Illinois Supreme Court case that expanded the fair report privilege, limiting defamation liability faced by the press when covering official proceedings. 221 Ill. 2d 558 (2006). The court proclaimed, "Plainly, freedom of the press is illusory if a cloud of defamation liability darkens the media's reports of official proceedings." Id. at 596. Journalists and attorneys have applauded Solaia for protecting the media's ability to report lawsuits and government meetings that are open to the public. However, the court's opinion leaves a few lingering questions about the fair report privilege.
Background
Although Solaia involved defamation claims, the circumstances giving rise to the case involved contentious issues of patent and antitrust law. In 2001, Solaia Technology purchased a patent describing a system used widely in computer-controlled manufacturing operations and proceeded to aggressively enforce the patent. 221 Ill. 2d at 563. Represented by the Chicago law firm Niro, Scavone, Haller & Niro ("NSHN"), Solaia filed patent infringement suits against numerous companies. Id. See Lisa Lerer, Meet the Original Patent Troll, Law.com, July 20, 2006, (describing the involvement of Solaia's counsel in the purchase and enforcement of the patent, as well as the controversy surrounding the business model). One of the companies affected by these infringement suits, Rockwell Automation, filed antitrust claims against Solaia and NSHN. 221 Ill. 2d at 568.
Rockwell alleged that Solaia's efforts to enforce the patent were "baseless," "misleading," and made in "bad faith," describing Solaia's conduct as an anticompetitive method of extracting money from manufacturers. Id. at 568-89.
Start, a magazine published by Specialty Publishing, issued several articles and an anonymous letter from an industry veteran about the events surrounding the Solaia patent. Id. at 563. The publications used strong language to discuss Solaia's patent infringement claims, Rockwell's antitrust claims, NSHN (Solaia's counsel), and Raymond Niro (partner at NSHN). Start lifted some language directly from legal filings, such as when it referenced Rockwell's allegations that Solaia and NSHN engaged in a "shakedown" of manufacturers. But Start also added its own characterizations by, for example, likening Solaia and its attorneys to "Johnny Cochrane, Enron and WorldCom Executives the Washington, D.C., sniper, and a group of muggers armed with baseball bats." Id. at 564-75.
Solaia's Defamation Claims
Solaia, NSHN, and Niro ("Plaintiffs") filed defamation claims against Specialty Publishing, Start's president, Start's editor, and the anonymous industry veteran ("Defendants"). Id. at 562. The Circuit Court of Cook County dismissed the complaint; the First District of the Appellate Court of Illinois affirmed in part and reversed in part. Id. The parties appealed to the Illinois Supreme Court, with media representatives such as Chicago Reader, Chicago Tribune Company, the Copley Press, and the Illinois Press Association submitting amicus curiae briefs. Id. at 561. The Illinois Supreme Court affirmed in part, reversed in part, and remanded the surviving claims for disposition by the trial court. Id. at 563.
Defamation Basics
The Solaia court reviewed the elements of a defamation claim: (1) defendant made a defamatory statement, a false statement that harms plaintiff's reputation; (2) defendant made an unprivileged publication of that statement to a third party; and (3) the publication caused damages. Id. at 579. Certain statements are defamatory per se; harm is obvious and apparent because the words, for example, impute that a person lacks integrity. Id. at 580. Once a plaintiff has established the requisite elements of defamation, the defendant might try to avoid liability by: (1) establishing "innocent construction," by showing that the statement may reasonably be interpreted as innocent or as referring to someone other than the plaintiff; (2) claiming that the statement deserves constitutional protection because it was an expression of an opinion; or (3) demonstrating that a privilege applies. Id. at 580, 585.
One privilege that allows a defendant to avoid liability is the fair report privilege, which shields the media from liability for publishing defamatory matters that are contained within official proceedings. Id. at 585. Solaia called this a "qualified privilege, which promotes our system of self-governance by serving the public's interest in [judicial and other official] proceedings." Id. To fall within the fair report privilege, a defendant's report of the proceeding must be "accurate and complete" or at least "a fair abridgement of the occurrence reported." Id. (emphasis added) (citing Restatement (Second) of Torts § 611 (1977)).
Fair Report Privilege: No Actual Malice Exception and No Judicial Action Limitation
Solaia contained two notable holdings that are likely to affect future cases involving the fair report privilege.
1. Contrary to what previous cases might have suggested, a showing of actual malice does not destroy the fair report privilege. In other words, even if the writer does not believe that the conduct she writes about is true and even when she knows that the conduct is false she is protected from defamation so long as she gave a fair and accurate report of the official proceeding. Id. at 587.
2. Illinois does not place a judicial action limitation on the fair report privilege. This means that a writer may invoke the fair report privilege even if she reported on a complaint that was recently filed; the writer need not wait for any other official action to take place. To discourage the press from reporting on frivolous lawsuits, most jurisdictions will not apply the privilege unless the report was of a proceeding in which some kind of "judicial action" had occurred. Id. at 588-89, 600-04 (Freeman, J., dissenting in part).
Specific Holdings
The Illinois Supreme Court held that some statements made in Start magazine were actionable as defamation:
- The letter by the anonymous industry veteran, calling Solaia's patent "essentially worthless" and comparing Plaintiffs' tactics to those of muggers armed with baseball bats, was per se defamatory because it imputed Plaintiffs' integrity. The statement did not qualify as opinion because it implied a fact that "Solaia secured a worthless patent and filed infringement claims with the sole aim of extracting settlements." Id. at 584.
- Start's statements that Rockwell sued attorney Niro in a personal capacity for antitrust violations were per se defamatory because they imputed Plaintiff Niro's integrity and implied that he committed a crime. The statements did not fall within the fair report privilege because they were not a "fair abridgement" of Rockwell's complaint. In actuality, Rockwell did not sue Niro personally but rather sued his client and his law firm. Yet, Start's articles inaccurately stated that Rockwell accused Niro of "unfair business practices," including conspiring to "shakedown" manufacturers with "baseless" claims. Start departed from the complaint in describing the judicial proceedings and, therefore, might face liability for defamation.
The court otherwise affirmed the trial court's dismissal of Plaintiffs' claims because the remaining statements in Start magazine were not actionable:
- Start's statement that "innocent companies" were being forced to defend themselves from "deeply greedy people," implying that Plaintiffs were victimizing companies through their patent infringement claims, was per se defamatory because it imputed Plaintiffs' integrity. However, the statement was not actionable because it was a constitutionally protected opinion; "it may have been judgmental, but it was not factual." Id. at 583.
- The headlines "Chaos Update: Conspiracy Shakedown" and "Conspiracy of a Shakedown" were not defamatory because they were susceptible to innocent construction, as they did not directly refer to plaintiffs. Even if they were defamatory, the headlines fell within the fair report privilege because they borrowed words from Rockwell's complaint, which alleged that Solaia and NSHN engaged in a "shakedown" of manufacturers. Id. at 591-92.
- The article's description of criminal provisions of the Sherman Act was per se defamatory because it imputed that Plaintiffs had committed a crime when, in fact, Rockwell's civil antitrust complaint did not mention any criminal proceedings The statement was not actionable, however, because it fell within the fair report privilege. The Court found Start's inaccurate reporting to be a "fair abridgement" of Rockwell's complaint because "we cannot expect reporters to possess the same skills as lawyers and to venture further into the filigree of federal antitrust law, searching for a distinction between criminal and civil enforcement actions." Id. at 594-96.
Remaining Questions
Did the Illinois Supreme Court go too far in extending the rights of the press?
Solaia called the fair report privilege to defamation liability a "qualified privilege," but the court might have effectively promoted this privilege to "absolute" status. See Id. at 585-89. Because Solaia made the fair report privilege impervious to the actual malice exception and judicial action limitation, it is unclear whether the privilege is, in any sense, qualified.
Additionally, Solaia makes it unnecessary for journalists reporting official proceedings to clarify who made accusations of improper conduct. For example, assume that Plaintiff filed a complaint accusing Defendant of embezzlement. Solaia importantly allows a journalist to write "Plaintiff's complaint states that Defendant embezzles" even if the journalist knows that Defendant does not actually embezzle. But the Illinois Supreme Court did not stop there. Solaia also seems to allow the journalist who knows that Defendant does not actually embezzle to omit any mention of the complaint and simply write, "Defendant embezzles." See Id. at 591, 593-96.
If the law instead motivated journalists to report official proceedings by detailing not only who was accused of what conduct but also who made the accusations, a court could then stick to just evaluating the truth or falsity of whether the allegations were made in an official proceeding. See Peter Saharko, Reporting False Facts, The News Media & The Law, Summer 2006, at 37. This could simplify the defamation analysis and engender the "objectivity and civility" in journalism that the Solaia court hoped for. 221 Ill. 2d at 596.
Were Solaia's changes to defamation law necessary to give the media the "breathing space" it needs to effectively report lawsuits? See Id. at 596. Or was Justice Freeman correct in stating that "the majority does not strike the proper balance between the rights of individuals to their good reputation and the interest of the public in being informed of court proceedings"? Id. at 598.
