Bryson v. News America Publications, Inc.
Case Date: 12/31/1969
Court: Supreme Court
Docket No: 79712
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to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the following slip opinion is being made available prior to the Court's final action in this matter, it cannot be considered the final decision of the Court. The official copy of the following opinion will be published by the Supreme Court's Reporter of Decisions in the Official Reports advance sheets following final action by the Court. Docket No. 79712--Agenda 12--March 1996. KIMBERLY BRYSON, Appellant, v. NEWS AMERICA PUBLICATIONS, INC., et al., Appellees. Opinion filed October 24, 1996. CHIEF JUSTICE BILANDIC delivered the opinion of the court: The plaintiff, Kimberly Bryson, brought an action against the defendants, News America Publications, Inc., and Lucy Logsdon. The plaintiff's two-count complaint alleged that she was defamed by the publication of an article entitled Bryson, which was written by defendant Logsdon and published by defendant News America in the March 1991 edition of Seventeen magazine. The complaint was originally filed in the United States District Court for the Southern District of Illinois on August 6, 1991, but that action was dismissed for lack of diversity jurisdiction. The plaintiff refiled her action in the circuit court of St. Clair County in June 1992. On the defendants' motion, the cause was transferred under the doctrine of forum non conveniens to Gallatin County, where both the plaintiff and the defendant Logsdon were domiciled. On September 17, 1993, the plaintiff filed an amended complaint, which sought to add two counts seeking damages for false light/invasion of privacy against the defendants. The plaintiff subsequently filed a second-amended complaint, which was dismissed by the trial court and is the subject of this appeal. Each count of the second-amended complaint alleged that an article appeared in the March 1991 edition of Seventeen magazine that referred to the plaintiff as a "slut" and implied that she was an unchaste individual. The complaint alleged that this language and implication were false. Counts I though IV of the second- amended complaint sought damages for defamation. Counts V and VI sought damages for invasion of the plaintiff's privacy by portraying the plaintiff in a false light. The defendants filed a motion to dismiss counts I through IV of the second-amended complaint, pursuant to section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 1992)), for failure to state a cause of action for defamation. The defendants also moved to dismiss counts V and VI of the complaint under section 2--619 of the Code, on the ground that these counts, which alleged invasion of privacy, were barred by the statute of limitations. The trial court granted the defendants' motions and dismissed the second-amended complaint. The appellate court affirmed. No. 5--94--0328 (unpublished order under Supreme Court Rule 23). We granted the plaintiff's petition for leave to appeal. 155 Ill. 2d R. 315. The plaintiff does not appeal from that portion of the appellate court decision which affirmed the transfer of the cause to Gallatin County on forum non conveniens grounds. She appeals only that part of the decision that affirmed the dismissal of her complaint in its entirety. FACTS A short story entitled Bryson, written by defendant Logsdon, was published by the defendant News America in the March 1991 issue of Seventeen magazine as part of a group of stories entitled New Voices in Fiction. The story, written in the style of a first- person narrative, recounts a conflict between the unidentified speaker and her high school classmate, Bryson. According to the speaker, Bryson, "[a] platinum-blond, blue-eye-shadowed, faded- blue-jeaned, black polyester-topped shriek" who lives "on the other side of town" was "after" her. In the course of describing events that led up to an after-school fight between Bryson and the speaker, the speaker discusses an incident that occurred two months earlier: "About two months ago Bryson was at a bonfire with these two guys that nobody knew. One had a tattoo, and they were all drinking. Lots. Who knows what guys like that made Bryson do. The next day she came into school with a black eye. Beth Harper looked at her too long, and Bryson slammed her up against a glass door and cracked her one clean in the mouth. Later that afternoon, as Bryson shouted down the hallways like always, I remembered what a slut she was and forgot about the sorriness I'd been holding onto for her." The story continues as the speaker describes the fight that ensues between the speaker and Bryson. A footnote at the end of the story identifies the author, Lucy Logsdon, as a "native of southern Illinois." The plaintiff's second-amended complaint, which was dismissed by the trial court, contained six counts. Each count alleges that the March 1991 edition of Seventeen magazine, including the article entitled Bryson, was published to the general public. The counts further allege that defamatory language appeared in that magazine "in that the article referred to the [p]laintiff as a `slut' and implied that the [p]laintiff was an `unchaste' individual." Each count further alleges that this language and implication were false and that each defendant permitted a false statement to appear through "malice or actual negligence." Counts I and II, which attempt to state a cause of action for defamation per se against each defendant, allege damage to the plaintiff's reputation and seek appropriate compensatory relief, as well as punitive damages. Counts III and IV also attempt to state a cause of action for defamation, but allege that the damage to the plaintiff's reputation caused her to suffer pecuniary loss in the form of lost business opportunities and/or lost employment. Counts V and VI, which attempt to state a cause of action for invasion of privacy/false light against each defendant, assert that the article placed the plaintiff in a false light in the community which would be objectionable to a reasonable person. These counts further alleged that the false light in which the plaintiff was placed caused her to suffer pecuniary losses stemming from lost business opportunities and/or employment and sought compensatory, as well as punitive, damages. ANALYSIS We first consider whether the trial court properly dismissed counts I through IV of the plaintiff's complaint, which attempt to state a cause of action for defamation against the defendants. As previously noted, the defendants moved to dismiss these counts pursuant to section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 1994)). A section 2--615 motion attacks the legal sufficiency of a complaint. Such a motion does not raise affirmative factual defenses but alleges only defects on the face of the complaint. Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 475 (1991). In ruling on a section 2--615 motion to dismiss, the court must accept as true all well-pleaded facts in the complaint and all reasonable inferences which can be drawn therefrom. McGrath v. Fahey, 126 Ill. 2d 78, 90 (1988); Shaffer v. Zekman, 196 Ill. App. 3d 727, 731 (1990). In making this determination, the court is to interpret the allegations of the complaint in the light most favorable to the plaintiff. McGrath v. Fahey, 126 Ill. 2d 78, 90 (1988). The question presented by a motion to dismiss a complaint for failure to state a cause of action is whether sufficient facts are contained in the pleadings which, if established, could entitle the plaintiff to relief. Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 475 (1991). A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved under the pleadings which will entitle the plaintiff to recover. Rueben H. Donnelley Corp. v. Brauer, 275 Ill. App. 3d 300 (1995). I. Defamation With these general principles in mind, we consider the allegations in the plaintiff's complaint. 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 her. Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 10 (1992); Restatement (Second) of Torts 559 (1977). A statement or publication may be defamatory on its face. However, even a statement that is not defamatory on its face may support a cause of action for defamation if the plaintiff has pled extrinsic facts that demonstrate that the statement has a defamatory meaning. See, e.g., Morrison v. Ritchie & Co., 4 Fraser, Sess. Cas., 645, 39 Scot. L. Rep. 432 (1902) (report that plaintiff gave birth to twins considered defamatory, where plaintiff proved, as extrinsic fact, that some readers knew that the plaintiff had been married only one month). Here, counts I and II of the plaintiff's complaint attempt to state a cause of action for defamation per se. Only certain limited categories of defamatory statements are deemed actionable per se. If a defamatory statement is actionable per se, the plaintiff need not plead or prove actual damage to her reputation to recover. Owen v. Carr, 113 Ill. 2d 273, 277 (1986). Rather, statements that fall within these actionable per se categories are thought to be so obviously and materially harmful to the plaintiff that injury to her reputation may be presumed. Owen, 113 Ill. 2d 273. If a defamatory statement does not fall within one of the limited categories of statements that are actionable per se, the plaintiff must plead and prove that she sustained actual damage of a pecuniary nature ("special damages") to recover. See Kolegas, 154 Ill. 2d 1; Heerey v. Berke, 188 Ill. App. 3d 527, 532 (1989); Mitchell v. Peoria Journal-Star, Inc., 76 Ill. App. 2d 154, 158-60 (1966). The defendants raise three arguments in support of the trial court's dismissal of the defamation per se counts. They first claim that the statements do not fall within any of the limited categories of statements that are considered actionable per se. Second, they argue that the statements may not be considered actionable per se because they are reasonably susceptible to an innocent construction. Finally, the defendants claim that, even if the statements may be considered actionable per se, they are nevertheless expressions of opinion, protected under the first amendment to the United States Constitution. U.S. Const., amend. I. We consider each of these arguments in turn. A. Defamation Per Se Counts We first consider whether the disputed statements may be considered actionable per se. The plaintiff alleges that the article is actionable per se because it referred to her as a "slut" and implied that she was an "unchaste" individual. Under our common law, four categories of statements are considered actionable per se and give rise to a cause of action for defamation without a showing of special damages. They are: (1) words that impute the commission of a criminal offense; (2) words that impute infection with a loathsome communicable disease; (3) words that impute an inability to perform or want of integrity in the discharge of duties of office or employment; or (4) words that prejudice a party, or impute lack of ability, in his or her trade, profession or business. Kolegas, 154 Ill. 2d at 10-11. These common law categories continue to exist except where changed by statute. The Slander and Libel Act (740 ILCS 145/1 et seq. (West 1992)) has enlarged the classifications enumerated above by providing that false accusations of fornication and adultery are actionable as a matter of law. See Owen v. Carr, 113 Ill. 2d 273, 277-78 (1986); Fried v. Jacobson, 99 Ill. 2d 24, 27 (1983). Specifically, section 1 of that statute provides: "If any person shall falsely use, utter or publish words, which in their common acceptance, shall amount to charge any person with having been guilty of fornication or adultery, such words so spoken shall be deemed actionable, and he shall be deemed guilty of slander." 740 ILCS 145/1 (West 1992). The defendants initially claim that this statute has no application here because it applies only to words that are spoken and not in circumstances, such as those here, where the words are written. We reject the defendants' attempt to so limit the statute. We note initially that the defendant's argument relies upon a distinction between spoken and written defamation (slander and libel) that existed at common law, but was abandoned long ago by our courts. At common law, libel and slander were analyzed under different sets of standards, with libel recognized as the more serious wrong. Illinois law evolved, however, and rejected this bifurcated approach in favor of a single set of rules for slander and libel. Libel and slander are now treated alike and the same rules apply to a defamatory statement regardless of whether the statement is written or oral. Mitchell v. Peoria Journal-Star, Inc., 76 Ill. App. 2d 154, 159-60 (1966); Harris Trust & Savings Bank v. Phillips, 154 Ill. App. 3d 574, 579 (1987); Irving v. J.L. Marsh, Inc., 46 Ill. App. 3d 162, 165 (1977). Given the merger of libel and slander, we reject the defendants' claim that the statute providing for an action where false accusations of fornication are made is not applicable here simply because the alleged defamation was in writing. Further, after considering the plaintiff's allegations, as stated in the complaint, we find that they fall within this statute's category of statements that are actionable per se. As previously stated, the statute applies when persons use, utter or publish words which amount to a charge of fornication or adultery. Here, the plaintiff's complaint alleges that the defendants, by using the word "slut," implied that she was "unchaste." The complaint thus alleged, in effect, that the defendants published words that falsely accused the plaintiff of fornication. The defendants' statements fall within this statutorily created category of statements that are considered actionable per se. B. Innocent Construction Rule Even if a statement falls into one of the recognized categories of words that are actionable per se, it will not be found actionable per se if it is reasonably capable of an innocent construction. The innocent construction rule requires courts to consider a written or oral statement in context, giving the words, and their implications, their natural and obvious meaning. If, so construed, a statement "may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff, it cannot be actionable per se." Chapski v. Copely Press, 92 Ill. 2d 344, 352 (1982); see also Kolegas, 154 Ill. 2d at 11. Only reasonable innocent constructions will remove an allegedly defamatory statement from the per se category. Kolegas, 154 Ill. 2d at 11; Costello v. Capital Cities Communications, Inc., 125 Ill. 2d 402 (1988). Whether a statement is reasonably susceptible to an innocent interpretation is a question of law for the court to decide. Kolegas, 154 Ill. 2d at 11; Chapski, 92 Ill. 2d at 352. The defendants offer two arguments in support of their position that the statement alleged to be actionable per se is reasonably susceptible to an innocent construction. Before addressing these two arguments, however, we briefly discuss a procedural point. 1. Procedural Note As stated, the defendants' motion to dismiss was ostensibly brought under section 2--615. In ruling upon a 2--615 motion, a trial court may consider only the allegations of the complaint (Curtis Casket Co. v. D.A. Brown & Co., 259 Ill. App. 3d 800 (1994)) and may not consider other supporting material (Oravek v. Community School District 146, 264 Ill. App. 3d 895 (1994)). Here, however, the defendants and the trial and appellate courts considered matters outside the complaint in addressing that portion of the motion which sought dismissal of the defamation per se counts under the innocent construction rule. The plaintiff's complaint simply alleged that she was defamed by an article entitled Bryson that appeared in Seventeen magazine, because the article referred to her as a "slut" and implied that she was "unchaste." The plaintiff did not attach a copy of the article to her complaint as an exhibit, nor did she recite the article within the complaint. The defendants' motion to dismiss the per se counts under the innocent construction rule, however, was not limited to an analysis of the allegations in the plaintiff's complaint. Instead, the motion examined portions of the allegedly defamatory article which were not part of the plaintiff's complaint. The defendants' motion argued that, when the allegations of the complaint were considered in light of the article itself, it was evident that the allegedly defamatory statement was susceptible to an innocent construction, and that the per se counts must therefore be dismissed. Mittleman v. Witous, 135 Ill. 2d 220 (1989) (innocent construction rule is applicable only to per se actions, and not to per quod actions). Because these portions of the article did not appear in the complaint, the defendants attached a copy of the article as an exhibit to their motion to dismiss. The trial and appellate courts relied upon the defamatory article, in addition to the allegations in the plaintiff's complaint, in dismissing the per se counts under the innocent construction rule. By presenting and relying upon affirmative matters outside the pleadings, the defendants and the lower courts disregarded the proper use of a section 2--615 motion. We therefore conclude that the portion of the defendants' motion that seeks the dismissal of the per se counts under the innocent construction rule cannot properly be considered a section 2--615 motion. Rather, we will consider that part of the motion as having been filed and decided under section 2--619 (735 ILCS 5/2--619(a)(9) (West 1992)). Perkaus v. Chicago Catholic High School Athletic League, 140 Ill. App. 3d 127, 134 (1986) (where plaintiff failed to attach league bylaws as an exhibit to his complaint, defendants properly submitted the documents in support of a section 2--619(a)(9) motion to dismiss); Cartwright v. Garrison, 113 Ill. App. 3d 536, 540 (1983) (in a defamation action, the question of whether the allegedly defamatory language is rendered nonactionable per se by reason of the innocent construction rule may properly be considered in a section 2--619 motion to dismiss); Kilbane v. Sabonjian, 38 Ill. App. 3d 172 (1976) (same); see also 4 R. Michael, Illinois Practice 41.7, at 332 (1989). Having addressed this procedural irregularity, we next consider the defendants' two arguments that the per se counts were properly dismissed because the allegedly defamatory statement is reasonably susceptible to an innocent construction. 2. Innocent Construction of "Slut" The defendants first claim that the assertion that Bryson is a "slut" is not actionable per se because the word "slut" may reasonably be innocently construed as describing Bryson as a "bully." They note that the American Heritage Dictionary includes a number of different definitions for the word "slut," including "a slovenly, dirty woman," "a woman of loose morals," "prostitute," "a bold, brazen girl," or "a female dog." American Heritage Dictionary 1153 (2d Coll. ed. 1985). They argue that, because "a bold, brazen girl" may be considered synonymous with "bully," the court must innocently construe the word "slut." The defendants apparently believe that the innocent construction rule applies whenever a word has more than one dictionary definition, one of which is not defamatory. The innocent construction rule does not apply, however, simply because allegedly defamatory words are "capable" of an innocent construction. See Chapski, 92 Ill. 2d at 351-52 (modifying the innocent construction rule announced in John v. Tribune Co., 24 Ill. 2d 437, 442 (1962)). In applying the innocent construction rule, courts must give the allegedly defamatory words their natural and obvious meaning. Chapski, 92 Ill. 2d at 351-52; 33A Ill. L. & Prac. Slander & Libel 12 (1970). Courts must therefore interpret the allegedly defamatory words as they appeared to have been used and according to the idea they were intended to convey to the reasonable reader. 33A Ill. L. & Prac. Slander & Libel 12, at 25 (1970). When a defamatory meaning was clearly intended and conveyed, this court will not strain to interpret allegedly defamatory words in their mildest and most inoffensive sense in order to hold them nonlibellous under the innocent construction rule. Here, we need not determine whether the word "slut" always implies unchastity or is always defamatory. When we consider the allegedly defamatory language in context, and give the words and implications their natural and obvious meaning, it is evident that the word "slut" was intended to describe Bryson's sexual proclivities. Immediately preceding the sentence in which Bryson is called a "slut," the author describes an incident that occurred two months earlier. The author states that Bryson appeared at a bonfire with "two guys that nobody knew. One had a tattoo, and they were all drinking. Lots. Who knows what guys like that made Bryson do." The sexual implication underlying the use of "slut" is intensified with the commentary "who knows what guys like that made Bryson do." The defendants suggest that this latter statement did not necessarily have sexual undertones, since the author could have been implying that the two men made Bryson engage in conduct of a nonsexual nature, such as shop-lifting. The defendant basically asks this court to construe the words used, not in the plain and popular sense in which they are naturally understood, but in their best possible sense. The innocent construction rule, however, does not require courts to strain to find an unnatural but possibly innocent meaning for words where the defamatory meaning is far more reasonable. Chapski, 92 Ill. 2d at 350-51. Nor does it require this court to espouse a na |