This paper was presented at the Association for Education in Journalism
and Mass Communication in Toronto, Canada, August 2004.
        If you have questions about this paper, please contact the author
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Thank you.
Elliott Parker
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Often the facts about a lawsuit are more engrossing than the law. That is
certainly true of the libel suit that stemmed from Hardball, a movie about
a stock hustler who redeems himself from alcohol and drug abuse by coaching
Little League baseball in the Chicago housing projects.[1] It has the star
power of Keanu Reeves as the redeemed sinner. Nevertheless, despite the
compelling nature of the drama, it is a rare case where a court wiped away
decades of its own case law. In doing so it further undermined a key
protection of the news media in Illinois against libel suits. Illinois is
unique among the 50 states in adhering to the innocent construction
rule.[2] That rule mandates that a judge dismiss a suit alleging libel per
se at the beginning of a suit if the alleged libelous words can be
innocently construed.[3] Once the rule represented a giant hurdle for
people who sued the news media for libel. Not only did the rule result in
the dismissal of many libel suits, it did so at the start of cases and thus
saved the media huge amounts in legal expenses. Over the past 40 years the
protection the rule provided has been whittled away. Muzikowski v.
Paramount Pictures Corporation adds significantly to the pile of shavings.
Hardball, one of the top-drawing films of 2001, had its genesis in 1991
when Robert Muzikowski, a stockbroker and insurance salesman, became active
in starting and coaching a Little League baseball program in the
Cabrini-Green area. Later he founded a program on the Near West Side. Both
neighborhoods are among Chicago's poorest. The programs and Muzikowski's
work with them have been featured on Nightline and other national programs.
Author Daniel Coyle volunteered to coach in the Cabrini-Green league in
1991. Then in 1992 he took a leave of absence from his job as an editor of
Outside to coach and to research a book. The result was Hardball: A Season
in the Projects, published in 1994 by G.P. Putnam's Sons. The book
primarily focuses on the kids who play baseball, but substantial portions
are devoted to portrayals of the coaches. Prominent among the coaches whose
background and activities are recounted is Muzikowski. Paramount purchased
movie rights.[4]  The movie stars Reeves as a coach named Conor O'Neill,
whom Muzikowski claimed is a libelous portrayal of him. Muzikowski, a
devout Christian, said the movie falsely defames him by showing O'Neill as
an unlicensed securities salesman, drinker, gambler and ticket scalper who
commits illegal stock sales, battery, theft, and criminal destruction of
property.[5] When Muzikowski sued for libel, Paramount invoked the innocent
construction rule. It contended that O'Neill is a fictional character and
his activities in the film are capable of being construed in a way other
than libel per se.[6] A federal district court agreed and dismissed the
lawsuit.[7]
On appeal Judge Diane P. Wood held that federal courts are not bound by
state law mandating that judges decide on the pleadings[8] whether alleged
libelous statements are of and concerning the plaintiff and whether they
are capable of having an innocent meaning. The judge wrote:
In Illinois courts, this determination (of innocent meaning) is made by the
judge and
It is regarded as a question of law. Allocations of functions between judge
and jury in federal court, however, are a matter of federal law. Moreover,
facts beyond those that appear in a federal complaint may be relevant to
the reasonableness inquiry, which requires that statements be read in their
natural sense, not in the light most favorable to the defendant. However,
if a statement is capable of two reasonable constructions, one defamatory
and one innocent, the innocent one must prevail.[9]

The ruling effectively eliminates in federal courts the most advantageous
feature of the innocent construction rule for the news media. The feature
is the judge must rule at the start of the case whether the alleged
libelous statements are of and concerning the plaintiff and whether the
words can be innocently construed. That avoids the expense of discovery in
connection with a preparation of a plea for summary judgment and the
possibility of a trial. Wood's ruling was foreshadowed in a 1995 opinion by
Judge Richard Posner who wrote that the procedural aspect of the innocent
construction rule "is one of federal, not of state law. For it is a
question about control of the jury . . . rather than the substantive law of
defamation."[10] Because the issue was not before the court in Desnick, the
judge said, "(W)e shall leave the question whether the federal rule should
be identical to the Illinois rule for another day."[11]
The Muzikowski court, in commenting why it believed the case involved
issues which should be decided by the trier of fact---ordinarily the
jury---under federal rules, said Muzikowski "might be able to produce
evidence showing there is in fact no reasonable interpretation of the movie
that would support an innocent construction."[12] Moreover, the court said,
he may be able to that that the O'Neill character could be nobody but him
and the portrayal defamed him. At least he was entitled "to the chance to
prove his claim under a defamation per se theory."[13] On other hand, the
court remarked
(T)he most serious hurdle Muzikowski faces is the question whether he has
in essence pleaded himself out of court by showing that the federal trier
of fact (whether judge or jury) would be compelled to find an innocent
construction of the movie. Paramount argues that this is the case, and in
support of its position, it points to a number of differences between the
real and the fictional man that are apparent on the face of the complaint.
Hardball focuses on how O'Neill, a down-and-out gambler finds redemption by
coaching an inner-city baseball league. Muzikowski, in contrast, found
redemption long before he became involved in the Little League. O'Neill
drinks alcohol while Muzikowski no longer does. O'Neill gambles while
Muzikowski does not, and O'Neill begins coaching only to pay for his
gambling addiction while Muzikowski co-founded multiple inner-city leagues
out of a genuine concern for children.[14]

The judge neatly framed the issues, but shuttling them to the trier of fact
means extended litigation and defeats one of the main purposes of the
innocent construction rule. That purpose is to avoid extended litigation.

JOURNALISTS AND WORDS

Lord Diplock, an English jurist, wrote of what he described as the
"artificial and archaic"[15] character of libel:
Libel is concerned with the meaning of words. Everyone outside a court of
law recognizes that words are imprecise instruments for communicating the
thoughts of one man to another. The same words may be understood by one man
in a different meaning from that which they are understood by another and
both meanings may be different than that which the author of the words
intended to convey; but the notion that the same words should bear
different meanings to different men, and that more than one meaning should
be "right," conflicts with the whole training of a lawyer. Words are the
tools of his trade. He uses them to define legal rights and duties. They do
not achieve that purpose unless there can be attributed to them a single
meaning as the "right" meaning.[16]

Outside the realm of law, and in fact within it, languages are systems of
communication among people. Their primary purpose is the delivery of
meaning. Words make languages work. They are symbols by which people
describe the world around them and how they interact with it and what they
think about it. The news media string words together to communicate to
audiences descriptions of what is happening in their world. The meaning of
words is inherently ambiguous because they are but symbols that interpret
reality. Often words have more than one meaning. The meaning of words
change over time and from place to place. Words have different meanings
depending on the context in which they are placed or on what is omitted
from that context. The inherent ambiguity of words makes the law of libel
an economic danger for the news media. As Justice Oliver Wendell Holmes
admonished, "Whatever a man publishes, he publishes at his peril."[17] An
Illinois appeals court has recognized that the meaning of words emerges
from their context.

The same words uttered in one situation may be universally acknowledged as
innocuous, but in another be unchallenged as amounting to libel or slander.
Communication does not occur in a vacuum or void---it is employed in the
normal course of human relations, in social and commercial intercourse.[18]

Ambiguity is a particular peril in the news business. News is only news if
it is current. That means it must be gathered and written---or
broadcast---quickly. Moreover, a news story is a selective portrayal of
reality. Journalists start winnowing facts in the newsgathering process.
The winnowing continues during the writing of a story. The twin factors of
rapidity and selectivity in the process of reporting the news are often a
recipe for ambiguity.[19]
The perilous libel landscape has been significantly curbed in Illinois by
the innocent construction rule. Adopted while libel was still a common law
strict liability tort and Illinois' unique contribution to libel law, the
rule reduced the range of statements that could be deemed libelous. It has
saved legal expenses for the news media in many cases by mandating
dismissal of libel actions early in proceedings. It also has placed in the
hands of judges the decision in the first instance whether a statement is
defamatory and thus has permitted the media to avoid juries that are often
biased against them. Since adoption of the rule the United States Supreme
Court has held that the First Amendment prohibits the common law of strict
liability for defamation.[20] The Court's decisions have reduced the
significance of the innocent construction rule, but it remains an important
weapon in the arsenal of Illinois news media for fighting libel lawsuits.
This paper reviews the origin of the innocent construction rule, traces it
through its adoption and modifications, discusses how it has been applied,
and notes the effect on it of the constitutionalization of libel law by the
United States Supreme Court. It also notes that Muzikowski has curbed the
rule's usefulness in libel actions heard in federal courts in Illinois.
Finally, it assesses the current usefulness of the rule.

ADOPTION OF THE RULE

In 1952 Chicago police raided a plush apartment used for prostitution. The
Chicago Tribune, relying on information obtained from police, reported:

"Five women, one identified as a former girl friend of Tony Accardo, Capone
gangster, were seized by vice squad police last night in a raid on a
lavishly furnished nine-room apartment at 4417 Ellis Avenue.
"Detectives Jack Woessner, Edward Puhr, and Patrick Rafferty said they made
the raid after an unnamed policeman paid a $100 fee to one of the women to
obtain evidence of prostitution in the apartment. Two men seized as they
were entering the apartment were questioned and released.
"Delores Reising, 57, alias Eve Spiro and Eve John, who, police said, was
known years ago as Accardo's woman friend, was held as the suspected keeper
of the apartment."[21]

The next day the Tribune published an updated story:

"Five women arrested by Detectives Jack Woessner and Edward Puhr of Hyde
Park Station in a vice raid at 4417 Ellis Ave. Saturday night will appear
in Women's court Wednesday.
"Dorothy Clark, 57, who gave 4417 Ellis Ave. as her address, was charged
with being keeper of a disorderly house and selling liquor without a
license. Police said she also is known as Delores Reising, Eve Spiro, and
Eve John, and was known years ago as a girl friend of Tony Accardo, Capone
gangster."[22]

Unknown to the Tribune a 27-year-old divorcee whose maiden name was Eve
Spiro and whose married name was Eve John resided with her two daughters in
the apartment below the one raided by police. John was a practicing
psychologist who was pursuing a doctorate at the University of Chicago.
Dorothy Clark was her landlady. John was "in no manner involved with the
raid, or any of the immoral activities of her landlady."[23] John sued the
Tribune for libel. A Cook County Circuit Court twice dismissed John's
lawsuit, but an appellate court reversed each time.[24] The Illinois
Supreme Court, in ruling for the Tribune, followed a series of Illinois
appellate and federal court decisions and adopted the innocent construction
rule as part of the state's body of libel law.[25] While Ohio adhered to
the rule[26] at the time the Illinois high court adopted it, today Illinois
is the only state that follows the innocent construction rule.[27] Three
years before the Illinois Supreme Court adopted the rule, the California
Supreme Court rejected it. [28]
The Illinois Supreme Court defined the rule:

We further believe the language in defendant's articles is not libelous of
plaintiff when the innocent construction rule is consulted. That rule holds
that the article is to be read as a whole and the words given their natural
and obvious meaning, and requires that words allegedly libelous that are
capable of being read innocently must be so read and declared nonactionable
as a matter of law.[29]

Then the court said "(s)ince both of the publications here are capable of
being construed as referring only to Dorothy Clark-Delores Reising as the
keeper of the disorderly house, they are innocent publications as to the
plaintiff."[30]
The court's endorsement of the innocent construction rule was dictum. The
decision in John was based on the court's holding that the Tribune articles
were not capable of meaning that they referred to John. The court said when
the "articles are read against the plain meaning of 'alias' . . . it is
apparent that neither article is 'of and concerning' the plaintiff. When
aliases or assumed names appear in a publication, the first name given is
clearly the subject or 'target' of the publication, and such fact is one of
common knowledge."[31] Lower courts noted that John was decided on the
basis of identification and grafted that onto the innocent construction
rule. Both the holding of John and the dictum became the rule followed by
Illinois courts. The innocent construction rule did not originate in the
Illinois Supreme Court jurisprudence. By the time the court decided John v.
Tribune Co., four of the five state appellate districts[32] and the United
States Court of Appeals for the Seventh Circuit, applying Illinois law,[33]
arguably had approved the rule. Only the Fourth District Court of Appeals
in central Illinois had not applied the rule. The formulation of the rule
in John remained Illinois law for 20 years. It was applied in dozens of
cases.[34] The rule was often criticized as leading courts to adopt
unreasonable interpretations of allegedly libelous statements.[35] In
Chapski v. Copley Press[36] the Illinois Supreme Court modified the rule
into its current formulation:

We therefore hold that a written or oral statement is to be construed in
context, with the words and the implications therefrom given their natural
and obvious meaning; if, as so construed, the statement may reasonably be
innocently interpreted or reasonably be interpreted as referring to someone
other than the plaintiff it cannot be actionable per se. This preliminary
determination is properly a question of law to be resolved by the court in
the first instance; whether the publication was in fact understood to be
defamatory or to refer to the plaintiff is a question for the jury should
the initial determination be resolved in favor of the plaintiff.[37]

As a result of Muzikowski, federal courts no longer hold that the
determination of whether an allegedly libelous statement can be given an
innocent construction is a matter for the judge to decide.[38]

ORIGINS OF INNOCENT CONSTRUCTION RULE

Libel law protects a person's reputation. Supreme Court Justice Potter
Stewart said the law "reflects no more than our basic concept of the
essential dignity and worth of every human being---a concept at the root of
any decent system of ordered liberty."[39] Until 1964, when the law of
defamation was brought under the aegis of the First Amendment,[40] Illinois
followed the common law of libel it had inherited from England. The Kansas
Supreme Court found "no other branch of law is as open to criticism for its
doubts and difficulties, its meaningless and grotesque anomalies. It is, as
a whole, absurd in theory, and very often mischievous in its practical
operation."[41]
Defamation is a statement that "impeaches a person's integrity, virtue,
human decency, respect for others or reputation and thereby lowers that
person in the estimation of the community or deters third parties from
dealing with that person."[42] A plaintiff in a libel suit at common law
had to prove three elements: (1) The defendant made a defamatory statement
(2) of and concerning the plaintiff (3) to at least one third person.[43]
The plaintiff was not required to prove falsity. It was presumed. The
plaintiff prevailed unless the defendant proved the statement was
substantially true or fell within a conditional privilege. Under the strict
liability regime of common law libel, no proof of negligence or other fault
was required. Harm to reputation and damages were presumed. They need not
be proven.[44] The remedy for injury to reputation is money damages.
Compensatory damages are divided into two types. General damages compensate
for harm to reputation that is not measured by out-of-pocket losses. They
also cover such injury as hurt feelings, embarrassment, and mental and
emotional harm and can be awarded even when no damages are given for
reputational harm.[45] Special damages are those that cause actual monetary
and economic loss such as lost employment, business profits and psychiatric
therapy.[46] Punitive damages can be awarded if a plaintiff proves a libel
was published with knowing falsity or reckless disregard of the truth.
In Illinois and most other states defamatory statements are divided into
libel per se and libel per quod. Libel per se statements are ones where
"the words used are in and of themselves so obviously and naturally harmful
that proof of special damages is unnecessary."[47] Such words are limited
in Illinois to any of four types at common law and one by statute. The four
common law types are:

1) Those imputing the commission of a criminal offense;

2) Those imputing infection with a communicable disease that would cause
people to shun a person;

3) Those imputing inability to perform or want of integrity in the
discharge of duties in public office or employment; and

4) Those prejudicing a person in his trade or profession.[48]

By statute it is libel per se to describe a woman as unchaste.[49] Libel
per quod statements are ones where defamation is inferred from context
either elsewhere in a publication or broadcast or through introduction of
external evidence. In Illinois per quod libel actions require proof of
actual monetary loss. When a statement is actionable per se, both
reputational injury and damages are presumed under Illinois common law.
First Amendment jurisprudence has modified the per se doctrine to require
proof of actual damages,[50] but the presumption of reputational harm
remains intact. As scholars have pointed out, however, the requirement for
proof of actual damages is often illusory.[51]
The innocent construction rule finds its roots in the mitior sensus
doctrine of the 16th and 17th centuries.[52] That doctrine was adopted to
alleviate the clogging of the common law courts by defamation actions. It
required that a statement be held not actionable if any possible
nondefamatory meaning---no matter how strained---could be attributed to it.
In 1842 the Illinois Supreme Court rejected the mitior sensus doctrine.[53]
The first Illinois decision to recognize the innocent construction rule
came in 1879 in Young v. Richardson.[54] Relying on Thomas Cooley, the 19th
century legal scholar, the court said "(i)t is a principle of law that
words alleged to be libelous will receive an innocent construction if they
are fairly susceptible of it."[55] In the 83 years between Young and John,
only a few appellate decisions reflected the innocent construction rule.
More often courts applied a reasonable construction standard in judging
whether statements were libelous.[56] Of course, it is difficult to judge
how often circuit courts applied the innocent construction rule because
most opinions at that level go unreported. Use of the rule was widespread
in courts in Cook County (First Appellate District), including federal
courts hearing cases from the county,[57] during the 1950s. As one court
pronounced, "Where an allegedly libelous statement is ambiguous, the court
will interpret the matter innocently, if possible."[58]
Libel law in Illinois was friendly to the news media in the post-John
period. The innocent construction rule was applied often in colloquium[59]
cases as well as those in which the meaning of allegedly libelous words was
at issue. One court said the rule "has the desirable benefits of
encouraging robust discussion of daily affairs . . . as well as of reducing
litigation."[60] The court added that the rule after 1964 "comports with
constitutional concerns about encouraging free expression. Regardless of
the standard of liability a State may apply in defamation actions, the
first amendment forbids any private libel action against a media defendant
unless the defendant's editors have been put on notice at the time of
dissemination that their publication could be held defamatory."[61]
A typical colloquium case was Lepman v. Everett.[62] Sports Illustrated
published a story about Marjorie Everett, chief stockholder in three
Chicago area race tracks. The article reported that Mrs. Everett disparaged
the efforts of Illinois racing officials in keeping illegal gamblers away
from race tracks. It quoted her as saying, "We've thrown out dozens of
undesirables, including a bookmaking relative of mine who is racing right
now in New Jersey."[63] Budd Lepman sued Mrs. Everett and the magazine. He
claimed the statement was about him and offered to prove that he was the
only relative of Mrs. Everett training and racing horses in New Jersey. The
court said Lepman was not mentioned by name in the article and an ordinary
reader would not have reason to believe that he was part of the corrupt
activities of gamblers at Illinois tracks.[64] The court noted that John,
as did Crosby and Brewer, required that the alleged libelous words,
including those about colloquium, must be read "stripped of innuendo;"[65]
that is, the words must be read literally without regard to inferences or
to facts not in the article.
In Levinson v. Time, Inc.,[66] the words describing the actions and
associations of Harry Levinson, owner of a well known Chicago jewelry
store, were alleged to be libelous. Time magazine published an article that
claimed six burglars who stole more than $1 million in jewelry, silver and
furs from Levinson's store turned up dead after the owner asked mob boss
Tony "Big Tuna" Accardo to recover the goods. The article quoted a police
officer, "He (Levinson) was the most uncooperative victim I've ever
seen."[67] The court said the article was capable of an innocent
construction. Friendship with an organized crime boss "may well exist
without mutual culpability."[68] Moreover, a report of failure to cooperate
with police is not defamatory because "(c)ommon sense and understanding
tell us that a great number of people may be uncooperative with the police
for a great variety of innocent reasons."[69] The court commented that
"attempts to eliminate the innocent construction rule have been
consistently rejected by the courts of Illinois for many years in the
past."[70]
Lepman and Levinson illustrate the difficulty a person who believes himself
libeled often faced under the John formulation of the innocent construction
rule. Most stories written by experienced journalists do not fall under any
of the per se categories or are not otherwise obviously defamatory. Under
common understandings of words as they were stringed together, Lepman and
Levinson were defamed. Yet they were foreclosed from proving it to a jury
under a per quod pleading because they could not plead that they
sustained---if, indeed, they did---monetary losses. The cases also show the
dilemma that the news media encounter. Both stories were about serious
events. Mrs. Everett did allude to a shady relative in New Jersey. Lepman,
although unnamed, was the only such relative. The men who stole from
Levinson did end up dead. Accardo was at least an acquaintance of Levinson.
The jeweler did not fully cooperate with police. The dilemma under the
common law of libel is that the news media would have the daunting task of
proving the natural inferences drawn from events of public importance.
Sometimes judges seemed to stretch to find innocent meaning. Statements
that are "in of themselves so obviously and naturally harmful" are libelous
per se.[71] In Rasky v. Columbia Broadcasting System, Inc.[72] WBBM-TV
aired a newscast about housing code violations that labeled lawyer Benjamin
Rasky, owner of a property in disrepair, a "slumlord" and grouped him with
"slum landlords."[73] The court found an innocent construction. Using
dictionary definitions of landlord and slum. The court said the labels "can
be construed to mean that plaintiff owned buildings in a poor and dirty
neighborhood or, simply stated, that plaintiff was a landlord in a
slum."[74] The court ignored the requirement of the innocent construction
rule that an article is to be read as a whole. In the context of the
broadcast, which pointed out housing code violations in Rasky's building,
the statement that Rasky was a slumlord was obviously defamatory.
Prior to Chapski, the innocent construction rule was applied to libel per
quod cases. In Newell v. Field Enterprises, Inc.[75] George Newell claimed
a story in the Chicago Daily News accused him of saving his pet parrot from
a house fire while allowing an overnight guest to die. The judge ruled the
story was not libel per se because it did not accuse Newell of committing a
crime.[76] However, the court said, the article was libelous per quod
because it defamed Newell by impeaching his "respect for human life and
thus acts to lower him in the estimation of the community and to deter
third persons from dealing with him."[77] The court said the newspaper
offered "no plausible alternative explanation which would not be libelous
of plaintiff."[78]
As Youm's study documents,[79] case law expanded the reach of the John
formulation to include defamatory statements of opinion, including epithets
and hyperbole.[80] One court commented, under the innocent construction
rule, "the law of libel does not provide redress for every expression of
opinion on a person's capabilities or qualifications . . . no matter how
much the complained of statement may injure the subject person in his own
conception."[81]

FIRST AMENDMENT LIBEL LAW

Two years after John the United States Supreme Court ruled that the First
Amendment placed restrictions on the common law of defamation.[82]  Until
then the Court had said that libel was a form of speech not protected by
the First Amendment.[83] In New York Times v. Sullivan the Court held that
the First Amendment "prohibits a public official from recovering damages
for a defamatory falsehood relating to his official conduct unless he
proves that the statement was made with 'actual malice'---that is, with
knowledge that it was false or with reckless disregard of whether it was
false or not."[84] Later, reckless disregard was defined as a "high degree
of awareness of probable falsity"[85] or " the defendant in fact
entertained serious doubts as to the truth of his publication."[86] In 1967
the Court extended the actual malice requirement for recovery of damages to
public figures.[87] Then, in 1974, in a case involving the late Chicago
attorney Elmer Gertz, the Court ruled that private figures must prove fault
to recover libel damages.[88] The Court said that "so long as they do not
impose liability without fault, the States may define for themselves the
appropriate standard of liability for a publisher or broadcaster of
defamatory falsehood injurious to a private individual."[89] Most states,
including Illinois,[90] have adopted negligence as the fault standard that
private figure plaintiffs must prove.[91]
The First Amendment law of libel is primarily about knowing or negligent
falsehood. The meaning of words and whether they are defamatory is still
generally in the realm of the common law of libel. In that respect the
innocent construction rule generally complements rather than duplicates or
conflicts with the constitutional law of libel. The rule gives operational
effect to one principle found in the constitutional law. In Sullivan the
plaintiff, director of a law enforcement agency which was severely
criticized, had successfully contended in the lower courts that false
statements about the agency damaged his reputation. The Court said the
First Amendment prohibited finding that a statement was "of and concerning"
a public official when it only mentioned the public agency to which the
plaintiff belonged.[92] The innocent construction rule requires the court
to dismiss a libel action where the "of and concerning" requirement is not
clear. This permits the news media to obtain an early ruling from the judge
in such situations and thereby avoid further legal expenses.
Opinion is one area of libel law where constitutional law has superceded
the common law. Gertz said that "(u)nder 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."[93] Later, the Court distinguished between
opinion statements which contained facts within them and assertions which
are unverifiable and thus are pure opinion.[94] Pure opinion receives
absolute protection against libel actions.[95] Fact-laden opinion is
subject to the actual malice rule for actions where the plaintiff is a
public official or public figure and to a state-determined fault standard
where the plaintiff is a private figure.[96] Whether an alleged libelous
statement is opinion and if so which type of opinion is a matter of law.
Thus, where an alleged libelous opinion statement is at issue, the innocent
construction rule must comport with the constitutional rule and is mostly
duplicative.
In an indirect way, through considerations of falsity, the Court has made
First Amendment law on the meaning of allegedly defamatory statements. In
Greenbelt Cooperative Publishing Assn. v. Bresler,[97] Charles Bresler, a
real estate developer, wanted land rezoned for high density apartments. The
city was seeking to acquire part of the land as a site for a high school.
Bresler said that he would convey the school site only if the city approved
the rezoning. The Greenbelt News Review published two stories that
described dealings between the developer and city and quoted some residents
as saying Bresler's negotiating position was "blackmail."[98] Bresler sued
for libel and won a $17,500 award. The Court reversed and commented on the
language:

It is simply impossible to believe that a reader who reached the word
"blackmail" in either article would not have understood exactly what was
meant: it was Bresler's public and wholly legal negotiating proposals that
were being criticized. No reader would have thought that either the
speakers at the meetings or the newspaper articles reporting their words
were charging Bresler with the commission of a criminal offense.[99]

To allow imposition of financial injury upon the newspaper, the Court said,
"would subvert the most fundamental meaning of a free press."[100] While
Bresler dictates that statements may not be read in way that pulls them
from context and distorts their meaning, it falls short of holding a court
must select an innocent meaning if that is one of two or more reasonable
interpretations.
Three decisions of the Court,[101] when read together and within the
context of public officials and public figures suing for libel, do suggest
a First Amendment rule similar to the innocent construction rule. That
constitutional rule holds that where a statement can be understood as both
libelous and nonlibelous, there can be no finding of actual malice unless
the plaintiff can prove the publisher intended the libelous meaning.[102]
In Time, Inc. v. Pape, a Chicago deputy chief of detectives sued Time
magazine over a story that claimed he brutalized an African-American family
during a police raid. The source of the story was a U.S. Civil Rights
Commission report, but the story attributed the allegation to the
commission when the commission had only reported claims in a lawsuit.[103]
The Court found that the Time story "amounted to the adoption of one of a
number of possible rational interpretations of a document that bristled
with ambiguities. The deliberate choice of such an interpretation, though
arguably reflecting a misconception, was not enough to create a jury issue
of 'malice' under New York Times."[104] Bose v. Consumers Union involved a
review in Consumer Reports that said music from a sound system "tended to
wander about the room."[105] In fact, a trial court ruled, the music
wandered "along the wall" and the reviewer was aware of it.[106] Even if
the trial court's finding was correct, the Court said, "the difference
between hearing violin sounds move around the room and hearing them wander
back and forth fits easily within the breathing space that gives life to
the First Amendment."[107] The Court said the review fell within the
rational interpretation doctrine of Pape.[108]
In Masson v. New Yorker, the Court reaffirmed the rational interpretation
doctrine.[109] The case involved inaccuracies in the use of direct
quotations. While ruling that use of direct quotations that substantially
change meaning and reflect on the speaker's character can be evidence of
actual malice,[110] the Court said that "(t)he protection for rational
interpretation serves First Amendment principles by allowing an author the
interpretive license that is necessary when relying upon ambiguous
sources."[111] The rational interpretation doctrine comes close to
constitutionalizing the substance of the innocent construction rule. It
falls short because it is connected to actual malice. Where a plaintiff can
prove deliberate selection of a defamatory interpretation, the doctrine
does not apply. By contrast the innocent construction rule relies only on
whether a reasonable nondefamatory interpretation is possible. The
motivation of the publisher is not relevant. The rational interpretation
doctrine as a matter of law does not apply in cases where the plaintiff is
a private figure and the fault standard is negligence. In one respect its
reach is broader than the innocent construction rule. It applies to both
per se and per quod libel.
Sullivan and its progeny had a huge impact on the burden of proof in libel
actions. Both fault and falsity had to be proved. Statements were no longer
presumed to be false. Plaintiffs had to prove they were false.[112] Still
the news media in Illinois found the innocent construction rule useful for
ending an action quickly and avoiding much legal expense. While summary
judgment could be obtained under First Amendment law in many cases, usually
some discovery was necessary. By contrast judgment on the pleadings could
be obtained under the innocent construction rule.
A study by Marc Franklin, a libel law scholar, concluded that the innocent
construction rule had a major impact on curbing libel judgments against the
news media in Illinois. During a four-year period the media won 93 percent
of all appellate decisions in which they were litigants. The rate of
success in Illinois was higher than that of any other state in which there
were large numbers of appeals.[113] By contrast the success rate in
California was 55 percent; in New York it was 69 percent. Franklin
attributed the Illinois success rate to the "existence in that state, and
only in that state, of the innocent construction rule."[114]

MODIFICATION OF THE RULE

Illinois courts applied the innocent construction rule in numerous cases
after John. In Makis v. Area Publications Corp., the court, saying an
"appellate court is not an appropriate forum to seek a change in this
well-established rule of law,"[115] commented:

Illinois courts have applied the innocent construction standard
consistently and with logical predictability. For instance: A news story
reported the keeper of a bawdy house had an alias identical with
plaintiff's name and it was held non-actionable as a matter of law because
the story did not under all possible constructions indicate plaintiff was
the keeper; as a matter of law it was held that an insurance agent had not
been libeled because he was described as a "lousy agent;" a deputy circuit
clerk was not libeled by being called a "political hack;" a school
principal had no cause of action for slander because he had been called not
qualified to be a principal and a disgrace to his profession; a business
executive was not libeled by a story in a nationally circulated magazine
that stated he was "no manager."[116]

In the cases cited in Makis, applying the innocent construction rule was
not difficult. Other cases posed more challenges to the courts in analyzing
the meaning of words. Two libel cases, Troman v. Wood[117] and Catalano v.
Pechous,[118] signaled that the Illinois Supreme Court was not comfortable
with the innocent construction rule as it was formulated in John.
Mary Troman, a resident of northwest Chicago, sued the Chicago Sun-Times
for libel after it published an article about burglaries and other criminal
activities of a youth gang in her neighborhood. The story quoted one
neighborhood resident as saying, "Ten years ago, I became very friendly
with the family that moved into what became the gang headquarters."[119]
Another resident was quoted as commenting:

The gang stole us blind. One time after my husband had paid them for
painting and stripping his basement, he returned home to find one TV set
gone. You know where it was? It was in the basement of the gang house.[120]

The story carried the photograph of a house with the caption: "Home of Mrs.
Mary Troman at 5832 N. Wayne. Thomas Troman testified that he is a member
of the gang."[121] The article did not identify Thomas Troman's
relationship to Mrs. Troman. Nor did it explicitly say the house was the
gang's headquarters. Mrs. Troman contended the story and photograph taken
together would be understood to mean her home was the gang's headquarters
and she was associated with the gang.[122]
The Sun-Times invoked the innocent construction rule, but the court ignored
the rule it had laid down in John. The court said that the reference to
Mrs. Troman by name and the photograph of her residence compelled the
rejection of the newspaper's contention the article was not of and
concerning her.[123] Whether the story was understood by readers to refer
to Mrs. Troman "might ultimately be a question for the jury, should there
be controversy on the matter. But the preliminary determination whether the
article is capable of being so understood is a question of law which must .
. . be resolved in favor of the plaintiff."[124] The court found untenable
the Sun-Times' claim that the article was not libelous. The court said
"(i)f the article were read as meaning that the plaintiff allowed her house
to be used as a headquarters for persons engaging in criminal acts or for
storage of stolen goods, it can hardly be doubted that her reputation would
be injured. Whether the article was in fact so understood is a question
which must await the presentation of evidence."[125]
Without saying so, the court rejected the use of the innocent construction
rule to decide whether the story could be construed not to refer to Mrs.
Troman and whether it could have a nondefamatory meaning. Rather, it cited
Ogren v. Rockford Star Printing Co.,[126] where the court used a reasonable
construction standard to determine the issues of colloquium and of whether
statements were libelous.[127] That standard requires that when words are
ambiguous as to colloquium it is for the jury to decide whether they are of
and concerning the plaintiff.[128] The standard also requires that the jury
determine the meaning of words while the court decides whether any
particular meaning is libelous.[129] Had Troman been decided under the
innocent construction rule, the court would have considered whether the
article could be interpreted as not of and concerning Mrs. Troman and
whether references to her and her home could be construed as having a
nonlibelous meaning. If the story could have been so interpreted on either
issue, under the innocent construction rule her lawsuit would have been
dismissed.
In Catalano v. Pechous seven Berwyn aldermen sued City Clerk Robert C.
Pechous for libel over remarks Perchous made about the award of a trash
collection contract. Pechous said at a city council meeting and to the
Chicago Sun-Times, in an illusion to Judas' betrayal of Jesus Christ, "Two
hundred forty pieces of silver changed hands---thirty for each
alderman."[130] Citing the innocent construction rule, the trial court
dismissed the action. The First District Court of Appeals reversed. In
affirming the appeals court decision, the Illinois Supreme Court dismissed
the contention of Pechous that the action should be dismissed because his
statement fell under the innocent construction rule. The court said it
would not consider the rule because Pechous did not "suggest an alternative
construction of Pechous' statement which is plausible."[131]
In fact two alternative meanings were suggested. One was that the aldermen
were politically and not criminally motivated. The court said it did not
"find that to be a fair reading of Pechous' words. To charge that the
approval of the contract was procured by a bribe cannot fairly be
transmuted into a criticism of the award of the contract."[132] The other
suggested meaning was that the charge of taking payoffs was an inference
from the circumstances of the contract award and thus protected opinion.
The court, in rejecting this meaning, found the statement one of fact.[133]
While the meanings may not be plausible, at least the one about political
motivation was within the John formulation of the innocent construction
rule. The court simply declined to apply John. Justice William Clark,
dissenting from the decision against Pechous, commented on the court's
confused jurisprudence:

I note in passing that the majority, in its discussion of Pechous' intended
meaning, has foregone an opportunity to clear up the confusion over the
innocent construction rule. The rule has been inconsistently applied and
recently ignored in this court. Nor can the standard announced in Troman be
reconciled with the standard announced in John v. Tribune Co. If the
disregard of stare decisis among judges of appellate courts is
problematical, surely it is intolerable to have the innocent construction
rule consistently applied in the circuit courts and the appellate courts
while it is ignored in this court.[134]

Malone and Smolla concluded that Catalano "has to be taken as a
modification of the innocent construction rule because, apart from the
question of whether the alternative construction in that case was indeed
implausible, plausibility rarely, if ever, had been a prerequisite to a
finding of an innocent construction in the lower courts."[135] Whether
Catalano is to be taken as modifying the rule or not, it certainly was a
signal. For the Illinois Supreme Court did modify the rule two years later
in Chapski.
Chapsi originated with a series of articles in the Elgin Daily Courier News
about the circumstances preceding and surrounding the death of two-year-old
Kristie Hubbard. Attorney Robert Chapski represented Kathleen Hubbard, the
child's mother, in juvenile and divorce proceedings in Kane County Circuit
Court. The child died of abuse soon after the mother was awarded custody.
Norman Platter, boyfriend of Mrs. Hubbard, was convicted of involuntary
manslaughter in the death and sentenced to prison. Mrs. Hubbard received a
30-day sentence on a lesser offense. Prior to September, 1978, the child
had been removed from Mrs. Hubbard's custody. Apparently, on Sept. 14,
1978, with various parties present, the Kane County court issued an oral
order returning custody to Mrs. Hubbard. Seven days later, on Sept. 21,
with only Chapski present, the judge signed a written order confirming the
oral one.[136]In February, 1979, after the child had died, the Courier News
published a story, headlined "Child custody battle sad as child's death
itself," which described the Sept. 21 hearing as "impromptu" and quoted an
assistant public defender as saying "it's my feeling that when an attorney
comes in with a motion that will affect the status of the case, court
procedures require proper notice to other parties." A second article
reported Chapski's representation of Platter when he was charged in the
beating death of the child. The article said custody of the child had been
taken from Mrs. Hubbard in August, 1978, reportedly because of abuse by
Platter, and then returned at "an unscheduled hearing in September."
Another article questioned whether Chapski knew of the abuse of the child
when he appeared before another judge in the mother's divorce proceeding,
in which custody of the child was an issue, and whether the attorney had a
legal or moral responsibility to inform the judge of what he knew. The
newspaper quoted other attorneys as questioning particular court tactics
without directly mentioning Chapski or his actions. The Courier News
printed other articles about the alleged unscheduled hearing and
questioning whether Chapski had fulfilled his moral responsibility.[137]
As a result of the newspaper articles, a panel of the Attorney Registration
and Disciplinary Commission investigated Chapski's conduct in representing
Mrs. Hubbard and Platter. The panel concluded Chapski's conduct had nothing
to do with Kristie Hubbard's death. It also found that at the Sept. 21
hearing Chapski "merely obtained a written confirmation of an oral custody
order that had been entered the prior week when all interested parties were
present."[138]
Chapski sued the Courier News for libel. Citing the innocent construction
rule, the trial court dismissed his lawsuit and the Second District Court
of Appeals affirmed.[139] The appeals court analyzed the newspaper articles
and concluded most of the statements Chapski described as disparaging
referred to judges and the court system and not to him.[140] Where it was
questioned whether Chapski had a legal or moral duty to act otherwise than
he did, the court said he was not accused "of any impropriety. Rather, the
words are used in a figurative sense to demonstrate the writer's personal
disagreement with what occurred. While accusations of impropriety or
criminal activity in terms of an opinion are not protected, the language in
question is not susceptible to such a construction."[141] Other statements
in the articles were found to be not about Chapski or capable of innocent
construction.[142]
On appeal to the Illinois Supreme Court, Chapski contended the decisions of
the trial and appeals courts on the innocent construction rule granted the
Courier News "a broad immunity in libel actions which is unwarranted."[143]
The court agreed. After reviewing the history of the rule and 20 years of
experience with it, the court adopted the rule in its current formulation.
That rule mandates that an alleged libelous statement cannot be actionable
per se if it can "reasonably be innocently interpreted or reasonably be
interpreted as referring to someone other than the plaintiff."[144] If
there is no reasonable innocent construction as to the defamatory nature of
the statement or as to colloquium, then it is a question for the jury as to
whether the statement in fact was understood as defamatory or to refer to
the plaintiff.[145]
The court traced the decisional history of the rule since John and
commented that it had "been applied in dozens of appellate court cases, but
in something less than in a completely uniform fashion and often over
vigorous objections concerning its application or whether it continues to
be a fair statement of the law."[146] The court said one of the early
rationales for the rule is that it mitigated the harshness of the regime of
strict liability. The strongest justification, the court  remarked, "is
that it comports with the constitutional interests of free speech and free
press and encourages the robust discussion of daily affairs."[147]  The
court said the principal criticism of the rule was that "courts generally
strain to find unnatural but possibly innocent meanings of words where such
a construction is clearly unreasonable and a defamatory meaning is far more
probable."[148] Such unreasonable interpretations by the lower courts, the
court commented, were "incompatible with the rule's requirement that words
be given their 'natural and obvious meaning.'"[149] Then the court said:

Given the inconsistencies, inequities and confusion that are now apparent
from the interpretations and applications of the rule as originally
announced in John, and the broader protections that now exist to protect
first amendment interests, together with the availability of the various
privileges, we are persuaded that a modification of the innocent
construction rule would better serve to protect the individual's interest
in vindicating his good name and reputation, while allowing the first
amendment guarantees that "breathing space" essential to their fruitful
exercise.[150]

The court remanded the case to the circuit court to apply the modified
rule. While the modification of the rule was overdue, as applied to the
stories about Chapski in the Courier News, Chapski was wrongly decided. The
stories were a reasonable interpretation of how the behavior of actors in
the judicial system resulted in the death of two-year-old Kristie Hubbard.
Any negative connotations concerning Chapski's behavior resulted from
interpretations of his behavior rather than accusations of illegality or
unethical behavior. How the judicial system treats innocent victims,
including children particularly, is a significant public issue. It is one
that continues to plague Illinois.[151] The court should not have remanded
the case. The stories were capable of a reasonable innocent construction as
a matter of law. Moreover, assuming Chapski is a public figure,[152] the
stories also fell within the gambit of the First Amendment rational
interpretation doctrine.
In Mittelman v. Witous,[153] the Illinois Supreme Court cleared up the
confusion left by Chapski as to whether the innocent construction rule is
to be applied to libel per quod actions. The court said:

Of course, the modified innocent construction rule, by its terms, applies
only to per se actions: those which stand or fall upon the import of the
statement, without the aid of extrinsic facts, and for which damages are
presumed. We perceive no good reason to extend the rule to per quod
actions: those which are only actionable in consequence of extrinsic facts
showing the circumstances under which the statements at issue were said or
the damages resulting to the slandered party.[154]

The court said a plaintiff is free to avoid the strictures of the
prohibition on applying the rule to per quod actions by pleading extrinsic
facts to establish the defamatory nature of a statement.[155] The court
noted that related principles had been applied by appellate courts to per
quod lawsuits. The test in such actions is whether the statements at issue
are "not reasonably or fairly capable of the meaning assigned to
them."[156] The test is a matter of law for the judge; if it is not met,
the case must be dismissed. The per quod ruling is an unfortunate one.
There is no good policy reason why per quod claims should be exempt from
the innocent construction rule.
Mittelman also rejected the notion that as part of the Chapsi formulation
the court must balance innocent constructions against those incapable of
innocent meaning and pick the most likely meaning. The court said it is
"self-evident that a statement 'reasonably' capable of a nondefamatory
interpretation, given its verbal or literary context, should be so
interpreted. There is no balancing of reasonable constructions. . ."[157]
The modification of the innocent construction rule in Chapski did not
affect the usefulness of the rule, but it reduced the number of cases in
which the news media prevailed. In fact, where under the John formulation
courts sometimes strained to find innocent meaning, under the Chapski
interpretation they sometimes stretched to find no reasonable innocent
construction. To some extent the cause was a reflection of the fact pattern
in Chapski. Because the Illinois high court did not declare the stories in
Chapski reasonably capable of an innocent construction, courts found it a
signal to tilt against the news media.

POST-CHAPSKI DEVELOPMENTS

One of the first cases to apply the Chapski formulation was Costello v.
Capital Cities Communications, Inc.[158] The case was a libel action by
Jerry Costello, then chairman of the St. Clair County Board,[159] against
the Belleville News Democrat. The newspaper believed that Costello's
failure to prevent creation of a transit district without a referendum was
a violation of a campaign promise he had made to its editorial board. The
News Democrat published in 1980 an editorial that read in part:

Jerry Costello lied to us. There's no nicer way to put it; he simply lied.
And when he lied to us, he lied to you. He said he was going to be a tough
county board chairman, especially when board members wanted to spend
taxpayers' money. He said he would militantly oppose the implementation of
any new tax without first seeking the voters' approval through a
referendum. He said he would lead the County Board down the proper paths,
protecting the rights of taxpayers. Well, he lied. He didn't do any of
those things Monday night, thereby breaking his most sacred campaign
promise at his very first meeting. The County Board had an opportunity to
conduct a binding referendum, asking you if you wanted to pay a new sales
tax to support the Bi-State bus system. That's the very thing Costello had
pledged he would do. He promised, in the strongest possible terms, that he
would let the voters decide. But when the time came to make a decision, he
was up there sitting on his gavel.[160]

The newspaper ended the editorial by saying "(W)e've got two more years of
the Costello brand of lying leadership. Doesn't that thrill you?"[161]
Costello sued for libel and a circuit court jury awarded $450,000 in
compensatory damages and $600,000 in punitive damages. The Fifth District
Court of Appeals twice found the editorial was incapable of a reasonable
innocent construction.[162] The appeals court did reduce the compensatory
damages to $200,000 and tossed out the punitive damages award.[163] The
Illinois Supreme Court reversed the decisions of the circuit and appeals
courts because Costello failed to prove the allegedly libelous statements
were made with actual malice,[164] the fault standard under Sullivan
requiring proof of knowing falsity or reckless disregard of the truth. On
the issue of whether the editorial could have a reasonable innocent
construction, however, the court found against the News Democrat. The court
said:

Nor does the Chapski decision allow us to consider the language, which a
number of times accuses Costello of lying, as being innocent of libelous
content as a matter of law. The defamatory meaning is evident. The
statements in the editorial are not reasonably susceptible to an innocent
construction, and are to be considered libelous per se because they imputed
to Costello a want of integrity in discharging the duties of his office.[165]

In finding the statements incapable of an innocent meaning, the court found
that three appeals court decisions that had reached an opposite conclusion
in cases involving similar fact patterns "no longer valid."[166]
In Costello the court misapplied its own rule. The court could find the
newspaper's statements did not meet the Chapski standard only if it
considered the only reasonable meaning of the assertions to be statements
of fact and not interpretations of Costello's behavior. The Chapski rule
does not require that innocent construction be the best judgment of a
statement's meaning. It only requires that it be reasonable. Clearly, when
read in context, a reasonable construction---and probably the best
construction---of the newspaper's statements is that Costello could have
kept the county board from creating the transit district without a
referendum and that he broke a campaign promise by not doing so. The
language was rough and perhaps unfair, but it comported with Sullivan's
principle that "debate on public issues should be uninhibited, robust, and
wide-open, and that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials."[167] The
ruling also violated First Amendment law both on how language must be read
in context[168] and on protection given rational interpretations of
ambiguous interpretations.[169]
Another case in which the Illinois Supreme Court misapplied the Chapski
formulation was Bryson v. News America Publications, Inc.[170] The teen
magazine Seventeen published a short story titled Bryson in its "New Voices
in Fiction" section. It was written in first person style by Lucy Logsdon,
a resident of Gallatin County in southern Illinois. Kimberly Bryson, a
classmate of Logsdon, believed the story referred to her and filed suit for
libel. By labeling her a "slut," she alleged it was libel per se because it
accused her of being unchaste. The statements Bryson claimed were libelous
read:

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 her.[171]

The court rejected Seventeen's claim that the story could reasonably be
construed as not referring to Bryson and that the word "slut" was
reasonably susceptible to a meaning other than Bryson was unchaste.[172]
Within the circle of those who knew Logsdon and Bryson in sparsely
populated Gallatin County, the ruling on colloquium is correct. Such is not
the case with the holding on the word "slut." The issue is not whether the
word is a pleasant appellation. It is whether in context it is reasonably
susceptible to a negative but non-sexual meaning. The court said:

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. Nor does it require this court
to espouse a naivete unwarranted under the circumstances. Reading the words
in the context presented, and giving the words their "natural and obvious"
meaning, it is obvious that the word "slut" was used to describe Bryson's
sexual proclivities.[173]

One difficulty with the holding is that the persuasive authorities cited
were only two cases, and the wording in those cases---"had two affairs" and
"slept with his secretary"---was far more explicit than the ambiguous
"slut."[174] In fact, the court's decision smacks of grandfathers straining
to interpret the language of grandchildren.
That the word "slut" only could be construed reasonably as meaning Bryson
was unchaste was not so obvious to Justice Maryann McMorrow. In a
dissenting opinion, the justice analyzed the context in which the term was
used and concluded:

(N)ot only can the word "slut" as used here be construed in the
nondefamatory sense connoting brazenness, it is the only way it can be
construed. There is nothing lascivious or licentious in the word "slut"
when used to describe the fictional Bryson's less than decorous or mannerly
behavior. Indeed, Bryson's sexual drive is neither the focal point of the
story, nor a digression.[175]

Justice McMorrow noted that courts generally hold "slut" to be not
actionable "unless the word is used in such a manner as to impute
whoredom."[176] The context in which the word was used, the jurist
asserted, "cannot be viewed as anything more than a literary embellishment
intended to convey the brazen nature of a school yard bully."[177]
Unlike Chapski and Costello, where the plaintiffs were a public figure and
public official, Bryson does not fall within the First Amendment rational
interpretation doctrine. Kimberly Bryson is a private figure.
The court's opinions in Costello and Bryson, along with the analysis of the
newspaper's interpretation of how the justice system abused a two-year-old
girl in Chapski itself, weakens but does not eviscerate the innocent
construction rule formulation the court promulgated in Chapski. However,
they send a signal to lower courts to be restrictive when judging whether
caustic interpretation of government institutions and of fiction can be
read to have innocent meanings. Other post-Chapski cases have been more
respectful of the Chapski formulation
Owen v. Carr[178] involved a story in the National Law Journal about a
complaint attorney Robert D. Owen filed with the Illinois Judicial Inquiry
Board against St. Clair County Circuit Judge William B. Starnes. Owen was
representing International Harvester in litigation before Starnes. Rex
Carr, attorney for Starnes, was quoted in the Journal as saying Owen "did
not file his complaint in the interest of justice, but instead was trying
deliberately to intimidate Judge Starnes and other judges in future cases
involving International Harvester."[179] Owen claimed the statement was
libel per se because it impugned his professional integrity in the practice
of law. The court held the words "considered as part of the whole article,
may reasonably be said to permit an innocent interpretation."[180] The
words may best be interpreted, the court added, "as an attorney's biased
presentation of his client's view."[181]  In Grisanzio v. Rockford
Newspapers, Inc., a story in the Rockford Register Star said the
"white-stuccoed Capri Restaurant, 313 E. State St., a frequent stop for
politicians, the media and pasta lovers, stands out amid the
turn-of-the-century redevelopment projects preferred by city
planners."[182] Then the article reported the building was owned by the
former head of the Rockford Mafia. The court ruled the story could be
innocently construed and did not accuse Vito Grisanzio, operator of the
restaurant, of committing a "crime or to lack honesty or integrity in his
trade or business."[183]
In 1995 and 1996 Bob Greene, then a columnist for the Chicago Tribune,
crusaded against abuses by the Illinois courts and bureaucracy in a case
called "Baby Richard." Custody of the child, born to an unwed mother, had
been given to adoptive parents when he was four-days-old. Later, Otakar
Kirchner, the biological father, was awarded custody by the Illinois
Supreme Court when the child was four-years-old.[184] In columns Greene
described the actions taking away the child from his adoptive parents as a
"crime," "an atrocity," "an unlawful act," and as breaking the child "like
a dog."[185]  The First District Court of Appeals found the language was
not a "positive factual statement of criminal child abuse" and was directed
at a callous state bureaucracy and court system and not at Kirchner.[186]
Similarly, in Harrison v. Chicago Sun-Times,[187] the court ruled that the
statement "Kidnapped girl must go home" could be innocently construed as a
description of circumstances surrounding a judicial order under the
international treaty on child abduction.[188]

CONCLUSION

"Meaning is the life of language,"[189] and libel is about the meaning of
language. In 1962 when the Illinois Supreme Court adopted the innocent
construction rule, libel was a major threat to the financial health of the
news media. Much of the media was family-owned and thinly capitalized.
Libel was a plaintiff-friendly strict liability tort. Both those conditions
have changed. Most of the media are owned by large financially strong
corporations. The United States Supreme Court has erected strong
constitutional barriers to collecting damages for defamation. Most libel
suits are settled or dismissed before going to trial. While the media lose
most suits at trial, they prevail on about two-thirds of appellate court
decisions.[190]  Libel law is not a significant threat to the news media
today.[191]
Supreme Court Justice Frank Murphy once said "(w)ords are inexact tools at
best."[192] The innocent construction rule was designed to overcome the
harshness of common law libel where language was ambiguous. The practice of
some courts of stretching to find innocent meaning was corrected by
Chapski's modification. One unfortunate effect of Chapski was to limit the
rule to libel per se claims. Another was it encouraged restrictive
interpretations of what could reasonably be construed as innocent words.
The rule has proven a means by which Illinois news media can efficiently
protect itself against libel suits. In an era of constitutional protection,
the significance of the rule has diminished. Moreover, its efficiency has
been reduced in the federal courts by Muzikowski. Still Illinois news media
find it useful in fighting libel suits and are likely to continue to find
it so.





[1]  Muzikowski v. Paramount Pictures Corporation, 322 F.3d 918 (7th Cir.
2003).
[2]  Smolla, LAW OF DEFAMATION, sect. 4.22 (1999). Libel per se is a false
statement whose defamatory nature is apparent on its face either from the
statement itself or the context in which it appears. Libel per quod is a
false statement whose defamatory character stems from external facts. Under
Illinois law, libel per quod requires a plaintiff to prove actual economic
damages. General damages are available in a libel per se action.
[3]  Anderson v. Vanden Dorpel, 172 Ill.2d 399 (1996).
[4]  Muzikowski at 921-22.
[5]  Id at 922. The movie was condemned by Chicago Mayor Richard M. Daley
for spewing four-letter words with abandon. Anne Sweeney and Fran Spielman,
Hey Keanu, clean up your movie, Chicago Sun-Times, Aug. 31, 2000.
[6]  Id at 925-26.
[7]  Muzikowski v. Paramount Pictures Corp., 2001 U.S. LEXIS 19397
(N.D.Ill. 2001).
[8]  That is, after the plaintiff files a complaint and the defendant files
an answer, but before any discovery or other proceedings.
[9]  Muzikowski, 322 F.3d at 924-25 (citations omitted).
[10]  Desnick v. American Broadcasting Companies, 44 F.3d 1345, 1349 (7th
Cir. 1995). Although not mentioned in Desnick or Muzikowski, the United
States Supreme Court held in Erie Railroad Co. v. Tompkins, 304 U.S. 64
(1939), that in diversity cases federal courts must apply state substantive
law and federal procedural law.
[11]  Id.
[12]  Muzikowski at 927.
[13]  Id.
[14]  Id at 926 (citations omitted).
[15]  Slim v. Daily Telegraph, (1968) 1 All ER 497, 508 (CA).
[16]  Id.
[17]  Peck v. Tribune Co., 214 U.S. 185, 189 (1909) (quoting Lord Mansfield).
[18]  Sloan v. Hatton, 66 Ill.App.3d 41, 42-43 (4th Dist. 1978).
[19]  Schwartz, General Semantics and the Reporter's Job, in Hayakawa, THE
USE AND MISUSE OF LANGUAGE (1962).
[20]  New York Times v. Sullivan, 376 U.S. 254 (1964) (public official
plaintiffs must prove libelous statements are made with knowing falsity or
reckless disregard of truth); Curtis Publishing Co. v. Butts, 388 U.S. 130
(1967) (public official rule extended to public figure plaintiffs); Gertz
v. Robert Welch, Inc., 418 U.S. 323 (1974) (states must adopt fault
standard for private figure plaintiffs).
[21]  John v. Tribune Co., 24 Ill. 2d 437, 439 (1962).
[22]  Id at 439-40.
[23]  Id at 441.
[24]  John v. Tribune Co., 19 Ill. App.2d 547 (lst Dist. 1958) and 28 Ill.
App.2d . 300 (1st Dist. 1960).
[25]  John, 24 Ill.2d 437, 442-43.
[26]  Becker v. Toulmin, 165 Ohio St. 549 (1956); England v. Automatic
Canteen Company of America, 349 F.2d 989 (6th Cir. 1965); Smith v.
Huntington Publishing Co., 410 F.Supp. 1270 (S.D.Ohio 1975).
[27]  Smolla, LAW OF DEFAMATION sect. 4.22 (1999). Kyu Ho Youm found at
various times Alabama, Missouri, New Mexico, North Carolina and Oklahoma
adhered to the rule. Youm, The Innocent Construction Rule As A Libel
Defense: Its Strengths, Weaknesses, and Uncertain Future, Unpublished
Master's Thesis, Southern Illinois University-Carbondale, 53-54 (1982). For
other commentary see Donenberg, Note and Comment: The Reform of the
Innocent Construction Rule in Illinois, 60 Chi-Kent L.Rev. 524 (1984);
Polelle, The Guilt of the 'Innocent Construction Rule' in Illinois
Defamation Law, 1 No. Ill. L.Rev. 181 (1981); Note, The Illinois Doctrine
of Innocent Construction: A Minority of One, 30 U. Chi. L.Rev. 524 (1963);
Stonecipher and Trager, The Impact of Gertz on the Law of Libel in
Illinois, 1979 So. Ill. L.Rev. 73.
[28]  MacLeod v. Tribune Co., 52 Cal.2d 553 (1959).
[29]  John, 24 Ill.2d 437, 442.
[30]  Id at 443.
[31]  Id at 442.
[32]  Judge v. Rockford Memorial Hospital, 17 Ill.App.2d 365 (2d Dist.
1958); Gogerty v. Covins, 5 Ill.App.2d 74 (3d Dist. 1955); Epton v. Vail, 2
Ill.App.2d 287 (1st Dist. 1954); Tiernan v. East Shore Newspapers, Inc., 1
Ill.App.2d 150 (5th Dist. 1953); Eick v. Perk Dog Food Co., 347 Ill.App.
293 (1st Dist. 1952); Piacenti v. Williams Press, Inc., 347 Ill.App. 440
(lst Dist. 1952); Parmalee v. Hearst Publishing Co., 341 Ill.App. 339 (lst
Dist. 1950); Dilling v. Illinois Publishing and Printing Co., 340 Ill.App.
303 (lst Dist. 1950); Creitz v. Bennett, 273 Ill.App. 88 (lst Dist. 1933);
LaGrange Press v. Citizens Publishing Co., 252 Ill.App. 482 (lst Dist.
1929); Fulrath v. Wolfe, 250 Ill.App. 130 (lst Dist. 1928); Davis v.
Ferguson, 246 Ill.App. 318 (3d Dist. 1927); Sullivan v. Illinois Publishing
Co., 186 Ill.App. 268 (2d Dist. 1914); Young v. Richardson, 4 Ill.App. 364
(2d Dist. 1879).
[33]  Crosby v. Time, Inc., 254 F.2d 927 (7th Cir. 1958); Schy v. Hearst
Pub. Co., 205 F.2d 750 (7th Cir. 1953); Brewer v. Hearst Publishing Co.,
185 F.2d 846 (7th Cir. 1950).
[34]  Chapski v. Copley Press, 92 Ill.2d 344, 348 (1982) and cases cited
therein.
[35]  The most extensive scholarly criticism is Polelle, The Guilt of the
"Innocent Construction Rule" In Illinois Defamation Law.
[36]  92 Ill. 2d 344.
[37]  Id at 352 (emphasis added).
[38]  Muzikowski v. Paramount Pictures Corporation, 322 F.3d 918, 926 (7th
Cir. 2003). See also Desnick v. American Broadcasting Companies, 44 F. 3d
1345, 1349-50 (7th Cir. 1995).
[39]  Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring).
[40]  Sullivan, 376 U.S. 254 (1964).
[41]  Coleman v. MacLennon, 78 Kan. 711, 717 (1908), quoting Veeder, The
History and Theory of the Law of Defamation, 3 Col.L.Rev. 546 (1903).
[42]  Newell v. Field Enterprises, Inc., 91 Ill.App.3d 735, 741 (1st Dist.
1980).
[43]  Zuckman, et al, MODERN COMMUNICATION LAW 408 (1999).
[44]  Smolla, LAW OF DEFAMATION, sect. 1.8.
[45]  Time, Inc. v. Firestone, 424 U.S. 448, 460 (1976).
[46]  Zuckman, et al, MODERN COMMUNICATION LAW 415.
[47]  Fried v. Jacobson, 99 Ill.2d 24, 28 (1983).
[48]  Id; Bryson v. News America Publications, 174 Ill.2d 77, 89 (1996).
[49]  740 ILCS 145/1 (West 1992); John, 19 Ill.App.2d 547, 551 (1958).
[50]  Gertz, 349.
[51]  Anderson, Reputation, Compensation, and Proof, 25 Wm. and Mary L.Rev.
747, 757-58 (1984), and Presumed Harm: An Item for the Unfinished Agenda of
Times v. Sullivan, 62 Journalism Q. 24, 29-30 (1985).
[52]  Chapski, 349-350.
[53]  McKee v. Ingalls, 5 Ill. 30 (1842)
[54]  4 Ill.App. 364.
[55]  Id at 374.
[56]  The Illinois Supreme Court first used a reasonable construction
standard in Nelson v. Borchenius, 52 Ill. 236 (1869). See Ogren v. Rockford
Star Printing Co., 288 Ill. 405 (1919), wherein the court arguably rejected
the innocent construction rule.
[57]  Crosby, Schy, Brewer.
[58]  Eick, 306.
[59]  Colloquium is a term of art that refers to the requirement that the
plaintiff in a defamation action plead the alleged libel is "of and
concerning" him.
[60]  Dauw v. Field Enterprises, 78 Ill.App.3d 67, 71 (lst Dist. 1979)
(citations omitted).
[61]  Id.
[62]  333 F.2d 154 (7th Cir. 1964).
[63]  Id at 155.
[64]  Id at 156.
[65]  Id.
[66]  89 Ill.App.3d 338 (1st Dist. 1980).
[67]  Id at 340.
[68]  Id at 343.
[69]  Id.
[70]  Id.
[71]  Fried, 27.
[72]  103 Ill.App.3d 577 (lst Dist. 1981).
[73]  Id at 579, 580.
[74]  Id at 582.
[75]  91 Ill.App.3d 735 (1st Dist. 1980).
[76]  Id at 742.
[77]  Id at 743.
[78]  Id.
[79]  Youm, 95-104.
[80]  Sloan v. Hatton; Johnson v. Board of Junior College District No. 508,
31 Ill.App.3d 270 (1st Dist. 1975); Korbar v. Hite, 43 Ill.App. 636 (1st
Dist. 1976); Byars v. Kolodziej, 48 Ill.App.3d 1015 (4th Dist. 1977);
Anderson v. Matz, 67 Ill.App.3d 175 (1st Dist. 1978); Angelo v. Brenner, 84
Ill.App.3d 594 (lst Dist. 1980); Delis v. Sepsis, 9 Ill.App.3d 217 (lst
Dist. 1972).
[81]  Anderson, 67 Ill.App.3d 175, 178.
[82]  Sullivan, 376 U.S. 254.
[83]  Chaplinski v. New Hampshire, 315 U.S. 568, 572 (1942).
[84]  Sullivan, 279-80.
[85]  Garrison v. Louisiana, 379 U.S. 64, 74 (1964).
[86]  St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
[87]  Curtis Pub. Co. v. Butts, 388 U.S. 130, 155 (1967).
[88]  Gertz v. Robert Welch, Inc., 418 U.S. 323, 347-48 (1974).
[89]  Id at 347.
[90]  Troman v. Wood, 62 Ill.2d 184, 198 (1975).
[91]  Smolla, LAW OF DEFAMATION sect. 3.30. Gertz held that even private
figures must prove actual malice to collect punitive damages.
[92]  Sullivan, 292.
[93]  Gertz, 339-40.
[94]  Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).
[95]  Id at 20.
[96]  Id at 21. Most often the standard for private figure plaintiffs is
negligence.
[97]  398 U.S. 6 (1970).
[98]  Id at 7.
[99]  Id at 14.
[100]  Id.
[101]  Time, Inc. v. Pape, 401 U.S. 279 (1971); Bose v. Consumers Union,
466 U.S. 485 (1984); Masson v. New Yorker, 501 U.S. 496 (1991).
[102]  Dienes and Levine, Implied Libel, Defamatory Meaning, and State of
Mind: The Promise of New York Times Co. v. Sullivan, 78 Iowa L.Rev. 237,
323 (1978), adopt this position.
[103]  Pape, 285.
[104]  Id at 290.
[105]  Bose at 488.
[106]  Id at 491-92.
[107]  Id at 514.
[108]  Id at 512-13.
[109]  Masson, 518.
[110]  Id at 517.
[111]  Id at 519.
[112]  Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986).
[113]  Franklin, Suing Media for Libel: A Litigation Study, 1981 Am. Bar
Foundation Research J. 795, 828.
[114]  Id, 828-29.
[115]  Makis v. Area Publications Corp., 77 Ill.App.3d 452, 457 (1st Dist.
1979).
[116]  Id, quoting Sloan, 66 Ill.App.3d 41, 43 (citations omitted).
[117]  62 Ill.2d 184 (1975).
[118]  83 Ill.2d 146 (1980).
[119]  Troman, 188.
[120]  Id.
[121]  Id.
[122]  Id.
[123]  Id at 189.
[124]  Id.
[125]  Id.
[126]  288 Ill. 405 (1919).
[127]  Id at 413-14. See Malone and Smolla, The Future of Defamation In
Illinois After Colson v. Steig and Chapski v. Copley Press, Inc., 32 DePaul
L.Rev. 219, 278-81 (1983).
[128]  Ogren, 413.
[129]  Id.
[130]  83 Ill.2d 146, 152-153. The aldermen also sued the Sun-Times and the
reporter who wrote the story. The Illinois Supreme Court ruled the story
was a fair report of a government proceeding and affirmed dismissal of the
claims against the newspaper and its reporter.
[131]  Id at 157.
[132]  Id at 158.
[133]  Id at 159.
[134]  Id at 183-84 (Clark, J., concurring in part, dissenting in part)
(citations omitted).
[135]  Malone and Smolla, 284.
[136]  Chapski v. Copley Press, 100 Ill.App.3d 1012, 1013 (2d Dist. 1981).
[137]  Id at 1014-15.
[138]  Chapski v. Copley Press, 92 Ill.2d 344, 346 (1982).
[139]  100 Ill.App.3d 1012, 1020.
[140]  Id at 1017-20.
[141]  Id at 1018
[142]  Id at 1017-20.
[143]   92 Ill.2d 344, 347.
[144]  Id at 352.
[145]  Id.
[146]  Id at 348.
[147]  Id at 350.
[148]  Id at 350-51.
[149]  Id at 351.
[150]  Id at 351-52.
[151]  Kirchner v. Greene, 294 Ill.App.3d 672 (1998).
[152]  In Gertz, attorney Elmer Gertz was considered a private figure.
Unlike Gertz, Chapski's behavior was central in Chapski.
[153]  135 Ill.2d 220 (1989).
[154]  Id at 232-33 (citations omitted).
[155]  Id at 233.
[156]  Id.
[157]  Id at 232, implicitly overruling Berkos v. National Broadcasting
Co., 161 Ill.App.3d 476 (lst Dist. 1987).
[158]  125 Ill.2d 402 (1988).
[159]  The notion that Costello suffered reputational harm is belied by the
fact that he is now a congressman.
[160]  125 Ill.2d 402, 412.
[161]  Id.
[162]  111 Ill.App.3d 1009 (1982) and 153 Ill.App.3d 956 (1987).
[163]  153 Ill.App.3d at 976.
[164]  125 Ill.2d at 419.
[165]  Id at 417
[166]  Id at 415.
[167]  Sullivan, 270.
[168]  Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6 (1970)
(use of word "blackmail" in context meant hard bargaining and not crime);
Letter Carriers v. Austin, 418 U.S. 264 (1974) (words "traitor to his God,
his country, his family and his class" did not accuse person of crime). In
Milkovich, decided two years after Costello, the Court said a statement in
a sports column that a person lied possibly was factual and defamatory.
However, the statement referred to alleged perjured court testimony.
[169]  Pape, Bose, Masson.
[170]  174 Ill.2d 77 (1996).
[171]  Id at 85.
[172]  Id at 94, 97-98,
[173]  Id at 94 (citations omitted).
[174]  The cases were Tonsmiere v. Tonsmiere, 199 So.2d 645 (Ala. 1967),
and Jordan v. Lewis, 247 N.Y.S.2d 650 (App.Div. 1964).
[175]  174 Ill.2d at 117. (McMorrow, J., dissenting).
[176]  Id at 114-15, citing 53 C.J.S. Libel and Slander sect. 26 (1977) and
cases cited therein.
[177]  Id at 117.
[178]  113 Ill.2d 273 (1986).
[179]  Id at 284-85.
[180]  Id at 279.
[181]  Id at 280.
[182]  132 Ill.App.3d 914, 916 (2d Dist. 1985).
[183]  Id at 919.
[184]  Kirchner v. Greene, 294 Ill.App.3d 672, 675 (1st Dist. 1998).
[185]  Id at 676.
[186]  Id at 680.
[187]  793 N.E.2d 760 (Ill. App.1st Dist. 2003).
[188]  Id at ___.
[189]  Masson, 517.
[190]  Logan, Libel Law in the Trenches: Reflections on Current Data on
Libel Litigation, 87 Va.L.Rev. 503, 509-518 (2001).
[191]  Id, 529.
[192]  Harrison v. Northern Trust Co., 317 U.S. 476, 479 (1943).