extra credit

Hardiman v. Aslam, 2019 IL App (1st) 173196, 125 N.E.3d 1185, 430 Ill.Dec. 167 (Ill. App., 2019)

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2019 IL App (1st) 173196

125 N.E.3d 1185

430 Ill.Dec. 167

Tio HARDIMAN, Plaintiff-Appellant,

v.

Rehan ASLAM; Mike Flannery; Katie

Fraser ; Elizabeth Kane; and Fox

Television Stations, LLC, Defendants-

Appellees.

No. 1-17-3196

Appellate Court of Illinois, First

District, FIRST DIVISION.

Filed February 25, 2019

Rehearing denied March 26, 2019

Alfred S. Phelps, of Dolton, for appellant.

Mandell Menkes LLC, of Chicago (Steven P.

Mandell, Natalie A. Harris, and George V.

Desh, of counsel), for appellees.

JUSTICE PIERCE delivered the judgment of

the court, with opinion.

[125 N.E.3d 1188]

[430 Ill.Dec. 170]

¶ 1 This appeal concerns allegations by a

public figure that members of a media news

organization made defamatory statements

about him. It is therefore necessary to

understand the nature and context in which

the statements were made and the elements

and defenses applicable in defamation actions

by public figures against members of the

press. The circuit court of Cook County

entered summary judgment in favor of

defendants on plaintiff's defamation claims,

and dismissed with prejudice certain

defendants due to plaintiff's failure to timely

file his complaint against them. Plaintiff

appeals. For the reasons that follow we affirm

the circuit court's judgment.

¶ 2 I. BACKGROUND

¶ 3 A. Defamation Law

¶ 4 The essential elements of actionable

defamatory statements are well established.

To prove defamation, a plaintiff must show

that the defendant made a false statement

about the plaintiff, there was an unprivileged

publication to a third party by the defendant,

and the statement damaged the plaintiff.

Solaia Technology, LLC v. Specialty

Publishing Co. , 221 Ill. 2d 558, 579, 304

Ill.Dec. 369, 852 N.E.2d 825 (2006).

Defamatory statements are actionable either

per se or per quod . Statements are

defamatory per se if "the statements that

form the basis of the action * * * falsely

charge the plaintiff with misconduct or

incapacity in words so obviously and

naturally harmful that they are actionable

without proof of special damages." Costello v.

Capital Cities Communications, Inc. , 125 Ill.

2d 402, 414, 126 Ill.Dec. 919, 532 N.E.2d 790

(1988). Illinois recognizes five categories of

statements that are defamatory per se : (1)

words that impute a person has committed a

crime; (2) words that impute a person is

infected with a loathsome communicable

disease; (3) words that impute a person is

unable to perform or lacks integrity in

performing her or his employment duties; (4)

words that impute a person lacks ability or

otherwise prejudices that person in her or his

profession; and (5) words that impute a

person has engaged in adultery or fornication.

Green v. Rogers , 234 Ill. 2d 478, 491-92, 334

Ill.Dec. 624, 917 N.E.2d 450 (2009). No

showing of special damages—i.e. , damages of

a pecuniary nature—is required for

statements that are defamatory per se .

Costello , 125 Ill. 2d at 414, 126 Ill.Dec. 919,

532 N.E.2d 790.

¶ 5 If the offending statement does not fall

within one of the five recognized categories of

defamation per se , a plaintiff may pursue a

claim for defamation per quod . A cause of

action for defamation per quod may exist

where the defamatory character of the

statement is not apparent on its face but

Hardiman v. Aslam, 2019 IL App (1st) 173196, 125 N.E.3d 1185, 430 Ill.Dec. 167 (Ill. App., 2019)

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extrinsic circumstances demonstrate an

injurious meaning, or if the statement is

defamatory on its face but it does not fall

within a category of statements that are

actionable per se . Bryson v. News America

Publications, Inc. , 174 Ill. 2d 77, 103, 220

Ill.Dec. 195, 672 N.E.2d 1207 (1996). A

plaintiff may only prevail on a claim for

defamation per quod if the plaintiff pleads

and proves special damages, which are actual

damages of a pecuniary nature.

[125 N.E.3d 1189]

[430 Ill.Dec. 171]

Hill v. Schmidt , 2012 IL App (5th) 110324, ¶

25, 360 Ill.Dec. 753, 969 N.E.2d 563. In sum,

to pursue a defamation per quod action, a

plaintiff must plead and prove extrinsic facts

to explain the defamatory meaning of the

statement and that he suffered actual

monetary damages as a result of defendants'

defamatory statement.

¶ 6 Regardless of whether a defamation claim

involves statements that are alleged to be

defamatory per se or per quod , where the

offending statement is made by a member of

the press or a media organization about a

public figure—which includes a person

running for public office ( Matchett v.

Chicago Bar Association , 125 Ill. App. 3d

1004, 1011, 81 Ill.Dec. 571, 467 N.E.2d 271

(1984) )—first amendment protections

require that the plaintiff "may not obtain

redress in a libel action unless he proves that

the allegedly defamatory statements were

made with actual malice." Costello , 125 Ill. 2d

at 418-19, 126 Ill.Dec. 919, 532 N.E.2d 790

(1988) (citing New York Times Co. v. Sullivan

, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686

(1964) ). The inquiry into whether a

statement was made with actual malice is

subjective. Wanless v. Rothballer , 115 Ill. 2d

158, 170, 104 Ill.Dec. 759, 503 N.E.2d 316

(1986) (citing Bose Corp. v. Consumers

Union of United States, Inc. , 466 U.S. 485,

511 n.30, 104 S.Ct. 1949, 80 L.Ed.2d 502

(1984) ). The plaintiff must prove by clear and

convincing evidence that defendants

"published the defamatory statements with

knowledge that the statements were false or

with reckless disregard for their truth or

falsity." Costello , 125 Ill. 2d at 419, 126

Ill.Dec. 919, 532 N.E.2d 790. A reckless

disregard for the truth may be found "where

the evidence shows that the defendant in fact

entertained serious doubts as to the truth of

the publication." Id. Furthermore, a "failure

to investigate does not itself establish actual

malice if the defendants did not seriously

doubt the truth of their assertions." Id. at 421,

126 Ill.Dec. 919, 532 N.E.2d 790. We will

"infer that a media defendant published

defamatory statements in reckless disregard

for their truth only when the defendant's

investigation has revealed either insufficient

information to support the defamatory

accusations in good faith or creates a

substantial doubt as to the truth of those

accusations." Id.

¶ 7 Lastly, for purposes of the issues of this

appeal, the substantial truth doctrine is a

defense to a defamation claim. Lemons v.

Chronicle Publishing Co. , 253 Ill. App. 3d

888, 889, 192 Ill.Dec. 634, 625 N.E.2d 789

(1993). So long as the alleged defamatory

statement is substantially true, the statement

is not actionable. Parker v. House O'Lite

Corp. , 324 Ill. App. 3d 1014, 1026, 258

Ill.Dec. 304, 756 N.E.2d 286 (2001). To be

substantially true does not mean that every

detail of the statement needs to be accurate.

Id. The defendant bears the burden of

establishing the substantial truth of the

assertions which can be accomplished by

showing that the "gist" or "sting" of the

defamatory material is true. Id.

¶ 8 Here, plaintiff Tio Hardiman asserted

claims of defamation, "libel on the internet,"

false light and invasion of privacy, "false light

and invasion of privacy on the internet,"

reckless infliction of emotional distress,

"reckless infliction of emotional distress on

the internet," and libel per se against

Hardiman v. Aslam, 2019 IL App (1st) 173196, 125 N.E.3d 1185, 430 Ill.Dec. 167 (Ill. App., 2019)

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defendants Rehan Aslam, Mike Flannery,

Katie Fraser, Elizabeth Kane, and Fox

Television Stations, LLC (Fox). All of

plaintiff's claims centered on two statements

made by defendants: that plaintiff (1) was a

former gang member, and (2) was convicted

of domestic battery. We now turn to the

events giving rise to plaintiff's claims.

[125 N.E.3d 1190]

[430 Ill.Dec. 172]

¶ 9 B. Plaintiff's Claims

¶ 10 In August 2013, plaintiff declared his

intention to run for governor of Illinois. On

January 16, 2014, it was announced that

plaintiff's name would appear first on the

Democratic gubernatorial primary ballot.

That same day, Flannery, the political editor

for Fox Chicago WFLD, interviewed plaintiff

for a segment that was to air during WFLD's 9

p.m. news broadcast. As part of the

programming, a WFLD web producer, Katie

Fraser, wrote an article for WFLD's website

that was published under Flannery's byline

titled "Controversial candidate remains on

primary ballot for governor." The web article

stated, in part, "Tio Hardiman told FOX 32

that a judge last month expunged from his

record Hardiman's 1999 guilty plea and

conviction for misdemeanor domestic

violence, a charge filed by a former wife." The

web article was originally posted to WFLD's

website at 8:21 p.m.

¶ 11 Additionally, Kane, WFLD's producer,

wrote a teaser for Flannery's 9 p.m. segment

that was read on-air by WFLD news anchor

Jeff Herndon at 9:11 p.m. The teaser stated,

"Also, a former gang member who was once

accused of beating his wife wants to be your

governor. Why he says voters shouldn't be

concerned about his domestic violence

conviction." Plaintiff's name was not

mentioned in the teaser, and it ran only one

time.

¶ 12 After the teaser aired and before

Flannery's segment, Flannery purportedly

asked Kane whether she knew that plaintiff

was a former gang member and whether she

may have confused him with someone else.

Flannery's segment aired between 9:14 p.m.

and 9:16 p.m. At some point after Flannery's

segment aired, plaintiff called WFLD and told

a Fox newsroom employee that he was not a

former gang member, but he did not mention

the domestic violence conviction statement

made in the teaser. During the same news

broadcast, at 9:49 p.m., WFLD clarified on-

air that plaintiff "says he has worked closely

with gang members but says he himself has

never been in a gang." Later that evening,

plaintiff saw the web article. He called

Flannery to ask him to retract the

commentary about the domestic violence

conviction. Two days later, after plaintiff gave

Flannery further information, WFLD updated

the web article to state "Hardiman said that

after he pleaded guilty to domestic violence in

1999, a judge sentenced him to probation,

with the condition that if he committed no

further offenses there would not be a

conviction listed on his record."

¶ 13 On December 5, 2014, plaintiff initiated

this action against Flannery and Fox.1 On

February 23, 2017, plaintiff filed a second

amended complaint, the operative complaint

in this appeal, adding Aslam (a now former

WFLD executive producer), Fraser, and Kane

as defendants.2 The second amended

complaint asserted claims of defamation,

"libel on the internet," false light invasion of

privacy, "false light invasion of privacy on the

internet," reckless infliction of emotional

distress, "reckless infliction of emotional

distress on the internet," and libel per se .

Plaintiff's defamation claim alleged that

defendants falsely stated that plaintiff was a

former gang member and that he had been

convicted of domestic

[125 N.E.3d 1191]

[430 Ill.Dec. 173]

Hardiman v. Aslam, 2019 IL App (1st) 173196, 125 N.E.3d 1185, 430 Ill.Dec. 167 (Ill. App., 2019)

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violence in 1999 (count I). Plaintiff alleged

that Flannery "in his capacity as news

political editor was responsible for the

decision to broadcast that the Plaintiff was a

former gang member and had been convicted

of domestic violence." Plaintiff further alleged

that Flannery told plaintiff after the broadcast

that a WFLD producer decided to include the

statement that plaintiff was a former gang

member even though Flannery told the

producer that there was no evidence that

plaintiff was ever a gang member. Plaintiff's

libel on the internet claim alleged that the

web article, posted under Flannery's byline,

falsely stated that plaintiff was convicted of

domestic violence, falsely stated that plaintiff

had told defendants that a judge expunged his

record for a conviction on domestic violence,

and falsely stated that plaintiff told

defendants that he pled guilty to domestic

violence, and that defendants knew those

statements were false (count II). Counts I and

II asserted that defendants "knowingly,

unlawfully, wrongfully, intentionally,

maliciously, contrived [sic ] and desired to

injure and destroy the [p]laintiff's good

name," and that defendants' false statements

injured his reputation and caused him to lose

"thousands of votes in the March 2014,

primary for governor, and the support and

contributions of * * * [certain identified]

supporters who were prepared to donate to

the [p]laintiff's campaign." Plaintiff's false

light invasion of privacy claims alleged that

defendants' false and defamatory statements

placed plaintiff in a false light (counts III and

IV). Plaintiff's reckless infliction of emotional

distress claims alleged that defendants'

conduct in making the allegedly defamatory

statements "was so extreme and outrageous,

that it exceeded all possible bounds of

decency," and that defendants "knew that the

statements that [p]laintiff was ‘a former gang

member who was convicted of domestic

violence’, [sic ] would cause [p]laintiff severe

emotional distress" (counts V and VI).

Finally, plaintiff's libel per se claim asserted

that defendants' statement that plaintiff was

convicted of domestic violence is actionable

per se (count VII). For each count, plaintiff

sought general, punitive, and exemplary

damages, as well as attorney fees and costs.

¶ 14 Aslam, Fraser, and Kane moved to

dismiss the second amended complaint

pursuant to section 2-619 of the Code. They

argued that plaintiff's claims against them,

asserted for the first time in February 2017,

did not relate back to the initial complaint.

They argued that they did not receive notice

of commencement of this action during the

one-year limitations period applicable to

defamation and false light claims in section

13-201 of the Code ( 735 ILCS 5/13-201 (West

2016) ), which expired in January 2015.

Aslam, Fraser, and Kane each filed

supporting affidavits in which they averred

that they did not learn of the lawsuit until late

2015 or 2016. They argued, therefore, that

plaintiff's claims against them were barred by

the one year statute of limitations. All

defendants moved to dismiss plaintiff's

reckless infliction of emotional distress claims

pursuant to section 2-615 of the Code.

¶ 15 In addition to the motions to dismiss, all

defendants moved for summary judgment on

plaintiff's second amended complaint. With

respect to the former gang member

statement, defendants argued that plaintiff

failed to identify any special damages to

support a claim for defamation per quod .

Plaintiff only alleged that he lost potential

votes without any further specificity and that

his political campaign, "Hardiman for

Illinois," lost promised campaign

contributions, which defendants argued were

too speculative and uncertain to constitute

special damages. With respect to the

statements that

[125 N.E.3d 1192]

[430 Ill.Dec. 174]

plaintiff was convicted of and pleaded guilty

to domestic violence, defendants argued that

those statements were substantially true "as

Hardiman v. Aslam, 2019 IL App (1st) 173196, 125 N.E.3d 1185, 430 Ill.Dec. 167 (Ill. App., 2019)

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they capture the ‘gist and sting’ of the

undisputedly true fact that [p]laintiff pled

guilty to battering his ex-wife Felecia

Hardiman in 1999." Although plaintiff

claimed that he pleaded guilty to simple

battery against his wife, defendants argued

that was a distinction without a difference, as

domestic battery is simple battery committed

against a family or household member.

Furthermore, defendants argued that the

statement that plaintiff was convicted of

domestic violence, even if technically

inaccurate, was substantially true because

plaintiff had pleaded guilty to charges of

battering his wife and had thus assumed the

responsibility for the consequences of his

conduct. Defendants further asserted that

plaintiff was a public figure and could not

establish by clear and convincing evidence

that defendants acted with actual malice in

making either the former gang member

statement or the domestic violence

statements.

¶ 16 All of the motions were fully briefed and

argued. On August 21, 2017, the circuit court

entered a handwritten order (1) granting

Aslam, Fraser, and Kane's motion to dismiss

based on the statute of limitations, (2)

dismissing plaintiff's reckless infliction of

emotional distress claims for failure to state a

claim (counts V and VI), (3) granting

defendants' motion for summary judgment on

all of plaintiff's defamation and false light

claims (counts I-IV, and V), and (4) denying

all other pending motions.3 The circuit court's

order provides that the bases for its decisions

were "stated in open court on the record." On

December 5, 2017, after briefing and a

hearing, the circuit court denied plaintiff's

timely-filed motion to reconsider. Plaintiff

filed a timely notice of appeal.

¶ 17 ANALYSIS

¶ 18 Plaintiff's overarching argument on

appeal is that the circuit court improperly

granted summary judgment in favor of

defendants on his defamation claims because

there were genuine issues of material fact as

to whether defendants acted with actual

malice when they stated that plaintiff had

been convicted of domestic violence and that

he was a former gang member.4 We find that

defendants were entitled to summary

judgment on plaintiff's claims related to

defendants' domestic violence statements

because those statements were substantially

true and therefore not defamatory. We

further find that defendants were entitled to

summary judgment on plaintiff's claims

related to defendants' former gang member

statement because plaintiff failed to identify

any genuine issue of material fact as to

whether he suffered any special damages or

that defendants acted with actual malice.

¶ 19 Summary judgment is appropriate if the

pleadings, depositions, affidavits, and other

admissions on file establish that there is no

genuine issue of material fact and that the

moving party is entitled to judgment as a

matter of law. 735 ILCS 5/2-1005(c) (West

2016); Cohen v. Chicago Park District , 2017

IL 121800, ¶ 17, 422 Ill.Dec. 869, 104 N.E.3d

436. The purpose

[125 N.E.3d 1193]

[430 Ill.Dec. 175]

of summary judgment is not to try a question

of fact, but rather to determine whether one

exists. Robidoux v. Oliphant , 201 Ill. 2d 324,

335, 266 Ill.Dec. 915, 775 N.E.2d 987 (2002).

"In determining whether a genuine issue as to

any material fact exists, a court must construe

the pleadings, depositions, admissions, and

affidavits strictly against the movant and

liberally in favor of the opponent." Adams v.

Northern Illinois Gas Co. , 211 Ill. 2d 32, 43,

284 Ill.Dec. 302, 809 N.E.2d 1248 (2004). "A

triable issue precluding summary judgment

exists where the material facts are disputed,

or where, the material facts being undisputed,

reasonable persons might draw different

inferences from the undisputed facts." Id. Our

review of a summary judgment order is de

Hardiman v. Aslam, 2019 IL App (1st) 173196, 125 N.E.3d 1185, 430 Ill.Dec. 167 (Ill. App., 2019)

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novo . Id. We review a circuit court's

judgment, not its reasoning, and we may

therefore affirm the circuit court's judgment

on any basis supported by the record.

Rodriguez v. Sheriff's Merit Comm'n of Kane

County , 218 Ill. 2d 342, 357, 300 Ill.Dec. 121,

843 N.E.2d 379 (2006).

¶ 20 A. The Domestic Violence Statements

¶ 21 We begin with defendants' statements

that plaintiff pleaded guilty to and was

convicted of domestic violence. Plaintiff

argues that he was never convicted of

domestic violence, but instead pleaded guilty

to simple battery. He argues that his guilty

plea was expunged, and that a conviction for

domestic battery cannot be expunged. We

conclude that defendants' statements are not

actionable because the statements were

substantially true.

¶ 22 The "gist or sting" of defendants'

statements that plaintiff "was once accused of

beating his wife" and had a "conviction for

misdemeanor domestic violence" are

substantially true. At his deposition in this

matter, plaintiff acknowledged that in 1999,

he pleaded guilty to simple battery against his

wife. While plaintiff insists that he pleaded

guilty to simple battery rather than domestic

violence, the term "domestic violence"

denotes some form of physical abuse against a

household or family member. There is no

serious question that simple battery against

one's spouse is an act of domestic violence.

Section 12-3 of the Criminal Code of 1961

provided, "A person commits battery if he

intentionally or knowingly without legal

justification and by any means, (1) causes

bodily harm to an individual or (2) makes

physical contact of an insulting or provoking

nature with an individual." 720 ILCS 5/12-3

(West 1998). Our supreme court has

explained that "[t]he difference between

simple battery and domestic battery is that

the latter is committed against a ‘family or

household member as defined in subsection

(3) of Section 112A-3 of the Code of Criminal

Procedure of 1963, as amended.’ " People v.

Wilson , 214 Ill. 2d 394, 396, 292 Ill.Dec. 887,

827 N.E.2d 416 (2005) ; compare 720 ILCS

5/12-3 (West 1998) with 720 ILCS 5/12-3.2

(West 1998). The definition of "family or

household member" in section 112A-3 of the

Code of Criminal Procedure of 1963 includes

spouses and former spouses. 725 ILCS

5/112A-3(3) (West 1998). Simple battery

against a spouse fits within the legal

definition of domestic battery, both of which

constitute an act of domestic violence.

¶ 23 Furthermore, it is undisputed that a

guilty plea and conviction both result in a

criminal defendant's culpability for a criminal

act. Here, plaintiff pleaded guilty to an act of

battery against his wife. Although plaintiff

testified at his deposition that he "got [his]

record expunged," the record does not

confirm that the battery conviction was

expunged, and plaintiff admitted to pleading

guilty to battery against his wife in 1999. Even

accepting as true that the 1999 battery

conviction was expunged,

[125 N.E.3d 1194]

[430 Ill.Dec. 176]

and that defendants used an incorrect legal

term to describe the current status of the 1999

disposition of those criminal charges, any

discrepancies did not meaningfully alter the

uncontroverted fact that plaintiff pleaded

guilty to and acknowledged his criminal

culpability for an act of battery against his

wife. We find that defendants' statements that

plaintiff was "accused of beating his wife" and

was "convicted of misdemeanor domestic

violence" were substantially true, and

therefore cannot form the basis of a

defamation per se claim. The circuit court

properly entered summary judgment in favor

of defendants on plaintiff's claims related to

defendants' statements that plaintiff was

convicted of domestic violence.

¶ 24 B. The Former Gang Member Statement

Hardiman v. Aslam, 2019 IL App (1st) 173196, 125 N.E.3d 1185, 430 Ill.Dec. 167 (Ill. App., 2019)

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¶ 25 The teaser statement that plaintiff was a

former gang member, however, was not

substantially true, and was in fact false. The

former gang member statement is not

actionable per se , as it does not fall within

any recognized category of statements that

are defamatory per se . See supra ¶ 2.

Defendants do not contest whether plaintiff

could establish the defamatory meaning of

the former gang member statement for the

purposes of a claim of defamation per quod .

Instead, defendants argue that plaintiff could

not prevail on a defamation per quod claim

because he could not establish either special

damages resulting from the former gang

member statement, or that defendants acted

with actual malice. We agree with defendants.

¶ 26 1. Special Damages

¶ 27 Plaintiff relies on two allegations in his

second amended complaint to support his

argument that he sufficiently pleaded special

damages (i.e. , actual damages of a pecuniary

nature) to support a claim for defamation per

quod . First, plaintiff alleged that he "lost

thousands of votes in the March 2014, [sic ]

primary for governor, and the support and

contributions" of certain identified supporters

"who were prepared to donate to the

[p]laintiff's campaign." Second, he alleged

that he lost a $ 500 honorarium for a

speaking engagement at North Park

University. We are not convinced. Clearly,

plaintiff's allegation that he "lost thousands of

votes in the March 2014 primary" is not an

allegation of a pecuniary loss, and any

allegation that plaintiff suffered a pecuniary

loss as a result of losing the primary election

is simply too speculative to support a claim

for defamation per quod . Second, plaintiff

stated at his deposition that he lost the $ 500

honorarium for a speaking engagement at

North Park University because of the

domestic violence statements; he did not

testify that the former gang member

statement caused him to lose the honorarium,

and he did not offer any other evidence to

show that the former gang member statement

caused him a pecuniary loss to meet the

pleading and proof requirements of a

defamation per quod claim. Therefore,

plaintiff did not identify or establish any facts

tending to show that he suffered a pecuniary

loss as a result of the former gang member

statement.

¶ 28 We further observe that plaintiff's

second amended complaint alleged that he

lost over $ 200,000 in pledged campaign

contributions as a result of defendants'

domestic battery statements. Plaintiff does

not direct our attention to any portion of the

record to establish that financial support for

his campaign was withdrawn as a result of the

former gang member statement.

Furthermore, in his reply brief to this court,

plaintiff asserts that the contributions his

gubernatorial campaign lost "are still

damages that affected [plaintiff] personally."

Plaintiff, however, cites no authority to

support his assertion, whereas

[125 N.E.3d 1195]

[430 Ill.Dec. 177]

defendants cite section 9-6(c) of the Illinois

Election Code ( 10 ILCS 5/9-6(c) (West 2016)

) to defeat this assertion. Section 5/9-6(c) of

the Illinois Election Code states, "All funds of

a political committee shall be segregated

from, and may not be commingled with, any

personal funds of officers, members, or

associates of such committee." Id. We find

that the loss of monetary contributions to

plaintiff's political campaign fund—money to

which plaintiff had no individual right and

which he was prohibited from receiving

personally—are not actual damages of a

pecuniary nature suffered by plaintiff

individually and do not equate to special

damages incurred by an individual plaintiff as

required in an action for defamation per quod

.

¶ 29 2. Actual Malice

Hardiman v. Aslam, 2019 IL App (1st) 173196, 125 N.E.3d 1185, 430 Ill.Dec. 167 (Ill. App., 2019)

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¶ 30 But even assuming arguendo that

plaintiff could establish that the former gang

member statement was defamatory and that

the loss of votes or the loss of an honorarium

constitute special damages, plaintiff did not

come forward with any evidence to show that

the former gang member statement was made

with actual malice. Where plaintiff is a public

figure—which is undisputed in the case before

us—he "may not obtain redress in a libel

action unless he proves that the allegedly

defamatory statements were made with actual

malice." Costello , 125 Ill. 2d at 418-19, 126

Ill.Dec. 919, 532 N.E.2d 790 (1988) (citing

New York Times Co. v. Sullivan , 376 U.S.

254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ). In

order to defeat defendant's motion for

summary judgment, plaintiff was required to

establish facts tending to show by clear and

convicting evidence that defendants either (1)

knew that the former gang member statement

was false, (2) had a high degree of awareness

that their statement was probably false, or (3)

entertained serious doubts about the truth of

the statements made. Jacobson v. CBS

Broadcasting, Inc. , 2014 IL App (1st)

132480, ¶ 36, 386 Ill.Dec. 12, 19 N.E.3d 1165.

¶ 31 Plaintiff did not identify any facts to

show that there was a genuine issue of

material fact as to whether Kane, at the time

she wrote the teaser, or Fox, at the time the

teaser was read on air, knew that the former

gang member statement was false, that they

had a high degree of awareness that the

statement was probably false, or that they

entertained serious doubts as to the truth of

the statement. At her deposition, Kane

testified that she based the former gang

member statement on previous WFLD

interviews with plaintiff in which he claimed

to have inside knowledge of gang activity and

how gangs work, that he claimed to be an

expert on street life, and that he had

interviewed gang members. Kane further

testified that she believed that plaintiff was a

former gang member based on his area of

expertise. It was not until after the teaser ran,

when Flannery asked Kane whether she was

sure that plaintiff was a former gang member,

that Kane worried that she might have

confused plaintiff with someone else. Plaintiff

did not come forward with any facts to

contradict Kane's deposition testimony, or

any other facts tending to show that Kane was

aware when she wrote the teaser that the

statement was probably false or that she

entertained any serious doubts as to its truth.

Plaintiff offered no contrary testimony or

counter-affidavits to put this testimony at

issue. In the face of a motion for summary

judgment by defendants showing that some

element of the case must be resolved in their

favor or that there was an absence of evidence

to support plaintiff's case, it was incumbent

on plaintiff to come forward with some

factual basis that would defeat plaintiff's

motion for summary judgment. Nedzvekas v.

Fung , 374 Ill. App. 3d 618, 624, 313 Ill.Dec.

448, 872 N.E.2d 431 (2007). Here, plaintiff

failed to do so, and thus failed to demonstrate

[125 N.E.3d 1196]

[430 Ill.Dec. 178]

the existence of any genuine issue of material

fact as to whether Kane or Fox acted with

actual malice.

¶ 32 Furthermore, there was no evidence that

Kane discussed the teaser with Flannery or

any of the other individual defendants before

the teaser aired. Flannery stated at his

deposition that he was not aware of the teaser

until after it aired, and plaintiff does not

direct our attention to any facts in the record

to contradict Flannery's statement. Nor does

plaintiff identify any facts in the record to

show that Aslam or Fraser had any knowledge

of or participation in creating the teaser.

Plaintiff therefore cannot establish that

Flannery, Aslam, or Fraser acted with actual

malice with respect to the former gang

member statement. The circuit court

therefore properly entered summary

judgment in favor of all defendants with

respect to plaintiff's claims arising from

Hardiman v. Aslam, 2019 IL App (1st) 173196, 125 N.E.3d 1185, 430 Ill.Dec. 167 (Ill. App., 2019)

-9-

defendants' statement that plaintiff was a

former gang member.

¶ 33 As we have concluded that defendants

were entitled to summary judgment on

plaintiff's defamation claims, we need not

address plaintiff's remaining argument on

appeal as to whether the circuit court

properly granted Aslam, Fraser, and Kane's

motion to dismiss based on the statute of

limitations because, regardless of whether

they were proper defendants, they were

entitled to judgment as a matter of law on

plaintiff's complaint.

¶ 34 CONCLUSION

¶ 35 For the foregoing reasons, the judgment

of the circuit court is affirmed.

¶ 36 Affirmed.

Justices Griffin and Walker concurred in the

judgment and opinion.

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Notes:

1 Plaintiff initially named Fox TV Stations and

WFLD News as defendants, but the proper

defendant was Fox Television Stations, LLC.

For simplicity, we refer to Fox as the proper

defendant.

2 Plaintiff also changed "Fox TV Stations" to

"Fox Television Stations, LLC". Plaintiff

continued to list "WFLD News" as a

defendant, although it does not appear that

WFLD News is an entity separate from Fox

Television Stations, LLC.

3 Those motions, which are not at issue on

appeal, include plaintiff's cross-motion for

summary judgment, and the parties' cross-

motions to strike various summary judgment

affidavits.

4 Plaintiff does not raise any specific

argument on appeal related to his false light

invasion of privacy claims or his reckless

infliction of emotional distress claims. He has

therefore forfeited any arguments related to

those claims. Ill. S. Ct. R. 341(h)(7) (eff. May

25, 2018) ("Points not argued are forfeited.").

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