Maxon v. Ottawa Publishing

Citation: Maxon v. Ottawa Pub. Co., __ N.E.2d __, 2010 WL 2245065 (Ill.App. 3d Dist. June 1, 2010)(full-text).

Factual Proceeding
Ottawa Publishing publishes "The Times," a daily newspaper for general circulation in and around Ottawa, Illinois, as well as an online Internet version of the same newspaper. Readers of the Internet version could anonymously post comments to a comments section following each article published on the website after a registration process, which required each person to establish a unique “screen name,” a password and an e-mail address.

In 2008, Ottawa Publishing published an article about a proposed ordinance to allow a bed and breakfast to operate in residential areas without mentioning the name. Comments following the article claimed the Maxons were taking bribes. The Maxons file a “Petition for Discovery Before Suit to Identify Responsible Persons and Entities,” seeking an order requiring Ottawa Publishing to disclose the name, address, phone number, email or other account information used to establish their blog "identity."

After a hearing, the court granted the Maxons’ motion to amend the petition to include the purportedly defamatory statements. The trial court dismissed the amended petition and the Maxons appealed.

Appellate Court Proceedings
Trial court's decision denying plaintiffs' petition for discovery before suit to identify posters to the newspaper's website who allegedly posted defamatory comments about plaintiffs, and its conclusion that the allegedly defamatory statements were non-actionable opinions were both matters of law that the appellate court would review de novo.

Generally, the appellate court reviews a trial court's ruling on a petition seeking discovery before suit to identify responsible persons and entities under an abuse of discretion standard. While a trial court may exercise discretion in granting or denying a petition under rule governing discovery before suit to identify responsible persons and entities, a trial court must exercise its discretion within the bounds of the law. Where a trial court's exercise of discretion relies upon a conclusion of law, the appellate court's review is de novo.

Sup. Ct. Rules, Rule 224 states that a person or entity who wishes to engage in discovery for the sole purpose of ascertaining the identity of one who may be responsible in damages may file an independent action for such discovery. The action for discovery shall be initiated by the filing of a verified petition in the circuit court of the county in which the action or proceeding might be brought or in which one or more of the persons or entities from whom discovery is sought resides. A trial court may grant or deny a petition under Rule 224 in the exercise of its discretion. A petition under the rule governing discovery before suit to identify responsible persons and entities must be verified and is inapplicable to any case where the identity of any potential defendant is already known. A hearing must be held on a petition for discovery before suit to identify responsible persons and entities before the court can grant or deny the petition in order to prevent “fishing expeditions”. The use of a petition for discovery before suit to identify responsible persons and entities is limited to discovery of the identity of a potential defendant. Where a trial court must rule upon a petition to disclose the identity of any anonymous potential defamation defendant pursuant to rule governing discovery before suit to identify responsible persons and entities, the court must insure that the petition: (1) is verified, (2) states with particularity facts that would establish a cause of action for defamation; (3) seeks only the identity of the potential defendant and no other information necessary to establish the cause of action of defamation, and (4) is subjected to a hearing at which the court determines that the petition sufficiently states a cause of action for defamation against the unnamed potential defendant, i.e., the unidentified person is one who is responsible in damages to the petitioner. If a trial court considers the petition in accordance with these guidelines, all rights of the potential defendant are protected. Sup.Ct.Rules, Rule 224. Trial courts have a readily available mechanism to determine whether the petition sufficiently states a cause of action against the potential defendant. A motion to dismiss for failure to state a claim attacks the legal sufficiency of the complaint; it does not raise affirmative factual defenses, but alleges only defects on the face of the complaint. 735 ILCS 5/2-615. A court considering whether to grant or deny a motion to dismiss for failure to state a claim must determine whether the complaint alone has stated sufficient facts to establish a cause of action upon which relief may be granted. Subjecting a petition for discovery before suit to identify responsible persons and entities to the same level of scrutiny afforded the sufficiency of a complaint pursuant to a motion to dismiss for failure to state a claim addresses any constitutional concerns arising from disclosing the identity of any potential defendant. Certain types of anonymous speech are constitutionally protected; however, it is overly broad to assert that anonymous speech warrants constitutional protection. Private individuals and their reputations are more deserving of protection against defamation than public officials or public figures. All potential defendants received some degree of notice by Ottawa Publishing. Once the court has determined that the prima facie case has been met by the petitioner, he has made out a valid claim for damages and has a right to expect a remedy. Once the court has made out a prima facie case for defamation, the potential defendant has no first-amendment right to balance against the petitioner’s right to redress for damages to his reputation, as it is well settled that there is no first-amendment right to defame. Illinois is a fact-pleading jurisdiction that requires a plaintiff to present a legally and factually sufficient complaint. Thus if a complaint can survive a motion to dismiss, it is legally and factually sufficient and should be answered. To state a defamation claim, a plaintiff must present facts showing that the defendant made a false statement about the plaintiff, the defendant made an unprivileged publication of that statement to a third party, and that this publication caused damages. A statement is “defamatory per se” if its harm is obvious and apparent on its face. Words that impute a person has committed a crime are considered defamatory per se. However, a statement that is defamatory per se is not actionable if it is reasonably capable of an innocent construction. Moreover, if a statement is defamatory per se, and is not subject to an innocent construction, it still may not be actionable if it is an expression of opinion. In determining whether a statement is merely an opinion and thus not subject to a cause of action for defamation as a matter of law, courts must take several considerations into account: whether the statement has a precise and readily understood meaning, whether the statement is verifiable, and whether the statement's literary or social context signals that it has factual content. Statements by anonymous posters that appeared on newspaper's internet website that citizens bribed members of planning commission in order to obtain a favorable ruling on a zoning matter were sufficient to form basis for claim of defamation against posters, such that citizens, who had filed petition against newspaper for discovery before suit of identity of the posters, were entitled to disclosure of identities of the posters from newspaper. Nothing in content or forum indicated that allegations made by posters could not reasonably be interpreted as stating an actual fact, in that the internet postings pointed out that commission's vote was subject to unexplained delay, that citizens' request to rezone their property was approved even though citizens' proposed structure did not suit purpose of a bed and breakfast, and that proposal was changed at last minute and vote took place when several members of commission were not present. The mere fact that a statement of fact is couched in the rhetorical hyperbole of an opinion does not render it non-actionable; the test is whether the statement can be reasonably interpreted as stating actual fact. The Appellate Court held that citizens stated claim for defamation, such that they were entitled to disclosure of identities of the internet posters from newspaper.

Dissenting Opinion Anonymous speech is protected by the 1st Amendment. An author’s decision to remain anonymous is an aspect of the freedom of speech protected by the 1st Amendment. The protection of anonymity of speech is a separate issue from the defamatory nature of the speech. First Amendment protections extend to speech via the Internet. The ability to speak anonymously through the Internet allows for a diverse exchange of ideas. Fact pleading has simply not eliminated frivolous lawsuits in Illinois. If “facts” are pled that lead to the discovery of the speaker’s identity and then these facts cannot later be proven, the harm to anonymous is a fait accompli. The Dendrite-Cahill test places the burden on a petitioner to demonstrate that the purported underlying defamation claim could successfully withstand a defendant’s motion for summary judgment. The procedural requirements of the test are designed to protect the identity of those participating in non-actionable anonymous speech. Once an anonymous speaker’s identity is revealed, it cannot be “unrevealed”. Even though a statement may fit into a defamatory per se category, it still may be constitutionally protected if it cannot be reasonably interpreted as stating actual. There is no suggestion that the blogger knew how the permit process worked or had any substantial evidence that a crime was committed. Any reasonable person could construe the words for what they were: the venting of one’s spleen by someone disgruntled by the decision of a local body politic.