Recent cases suggest an uptick in defamation lawsuits seeking damages for statements containing general criticisms of the plaintiff or highlighting certain negative personal traits. The theory is that such statements qualify as defamation per se for they impugn the ability or integrity of the plaintiffs in their occupation or professions. Almost invariably, these lawsuits get dismissed through motion practice.
Part of the reason for this lies in the definition of defamation per se. A per se defamation claim is appropriately brought only when allegedly false statements accuse the plaintiff of: (1) the commission of a crime; (2) infection with a loathsome communicable (sexually transmitted) disease; (3) an inability to perform or lack of integrity in the discharge of duties of office or employment; or (4) adultery or fornication. Statements which prejudice a party or impute a lack of ability in one’s trade, profession or business also qualify as defamation per se.[i]
Most of these criteria are definitionally precise. The gray area which continues to be a fertile subject of motion practice and appeals is whether the charged statement, in fact, disparages one’s ability or integrity in his or her employment or profession. Recent case law clarifies that lawsuits based upon general personal criticisms do not support a valid cause of action for defamation per se, even where alleged to have impugned the plaintiff’s professional abilities or integrity, andeven when made in an employment context.
For example, in McGurren v. Hubbard Radio Chi., LLC,[ii], the plaintiff former radio co-host claimed defamation per se based on the defendant radio station owner’s statement that it had investigated the plaintiff’s complaint of sexual harassment filed with the EEOC and disagreed with her claims. The plaintiff alleged that the employer’s statement implied that she was a liar, and thus falsely impugned her professional integrity.[iii]
In dismissing the defamation per se claim, the court emphasized that the employer’s statements were not related to the plaintiff’s job performance or ability as a radio personality.[iv] The court explained that even if the statement was false, it was properly construed not as a statement of plaintiff’s professional integrity, but as a statement of her personal integrity, “which does not satisfy the requirements for defamation per se.”[v] Perhaps the prominence of “shock jocks” and politically-biased talk show hosts in the radio industry weighed on the court when it found that “integrity is not a quality fundamental to being an on-air radio personality.”[vi],[vii] See also Jaros v. Vill. Of Downers Grove[viii] (an attack on personal integrity becomes an actionable attack on professional integrity “only when the statement is directly related to job skills or function”).
In Jaros, a village trustee was removed from office after a report claimed he had made comments reflecting that he did not recognize homosexual marriage and thought the library shouldn’t either. He alleged the report’s statement that he expressed his personal views against persons “different from white straight people” was defamatory per se.[ix] Jaros claimed that the statement was false and injured his reputation in his occupation as an attorney and position as a library trustee.[x] The court held that the statements alleging personal bigotry pertained to the plaintiff’s personal traits, but did not suggest a lack of professional competence or integrity as a library trustee or attorney.[xi] The court noted that an exception existed where a profession or occupation requires certain personal traits such as trustworthiness, as in the case of a schoolteacher (Kumaran v Brotman[xii]) or a clergyman (Cobbs v Chicago Defender[xiii]), but did not extend this exception to attorneys or library trustees.[xiv]
Similarly, in Pippen v. NBCUniversal Media LLC[xv] the court found an allegedly false statement that former NBA star Scottie Pippen filed for bankruptcy did not constitute defamation per se. The court found that the statement did not disparage the Chicago Bulls great in his employment or profession because his employability arose from his stardom as an athlete and knowledge of basketball (endorsements and sports analysis), not from his financial acumen.[xvi] Accord Cody v. Harris[xvii] (“We see no reason to believe that managing the sales department of a radio station requires a degree of integrity above and beyond that required for any job”); Heying v. Simonaitis[xviii] (statements that nurse engaged in name calling and disseminated epithets were not germane to her professional qualifications as a nurse and therefore did not constitute defamation per se).
In defamation per se cases predicated upon statements claimed to impugn the plaintiff’s employment abilities or professional integrity, an objectively verifiable connection to work-based criteria or qualifications is required to state a cause of action. The more generic a negative comment is, the more likely the statement will be found to be nonactionable. A good example is contained in Hopewell v. Vitullo.[xix] Plaintiff Earl Hopewell was U.S. Senator Carol Mosley Braun’s former campaign treasurer and CFO. At some point, Hopewell received a memorandum which informed him that on a going forward basis, he would be working only as an unpaid volunteer. Hopewell responded by filing a lawsuit alleging that he had been retaliatorily discharged as a consequence of his reporting certain campaign finance irregularities.[xx] The campaign was asked by the press to comment on Hopewell’s allegations and responded that Hopewell was “fired for incompetence.”[xxi] Hopewell then filed a second lawsuit claiming that the statement was defamatory per se because it impugned his abilities and integrity as a campaign treasurer.[xxii] The circuit court dismissed the lawsuit, and the appellate court affirmed.
The court found that even if the statement “fired for incompetence” fell within a per se category, it was a nonactionable opinion. As the court explained, “regardless of the fact that “incompetent” is an easily understood term, its broad scope renders it lacking the necessary detail for it to have a precise and readily understood meaning. … Without the context and content of the statement to limit the scope of “incompetent,” we cannot say that there is a precise meaning relating to the alleged defamatory statement.” [xxiii]
In addition, the tenor and context of the article in which the statement occurred suggested that the statement was opinion, not fact based: “Readers easily could conclude that Vitullo’s statement as well as Hopewell’s allegations were efforts at posturing before the ensuing battle between the Senator and Hopewell.”[xxiv] The court further found, “In light of today’s ever controversial political climate and the conflict between the parties, the public most likely understood Vitullo’s statement as substanceless rhetoric.”[xxv] Further, no objectively verifiable facts underlaid the statements.[xxvi]
The Court concluded: “The vaguer and more generalized the opinion the more likely the opinion is non-actionable as a matter of law. To say that a businessman is guilty of ‘poor judgment’ is, therefore, not defamatory.” (citation omitted) … we conclude that the alleged defamatory statement – “fired because of incompetence” – is too vague and general to support an action for defamation as a matter of law.”[xxvii] Accord Law Offices of David Freydin, P.C., et al v. Chamara, et al.[xxviii] (statements that plaintiff attorney was a “hypocrite,” “chauvinist,” “unethical,” “racist,” with a “one star review” on its social media sites, without objectively verifiable factual support, constituted nonactionable opinion). As that court held: “we assume that one-star ratings can cause substantial harm to a business. The power of a review does not change the fact however, that there is no measuring tool to gauge the reliability of a one-star rating or a five-star rating.”[xxix]
The recent McGurren, Jaros, and Law Offices of David Freydin, P.C. cases demonstrate, particularly when viewed in context with historic cases such Heying, Pippen, and Hopewell, that in order to state viable claims for defamation per se based upon statements which impugn a plaintiff’s ability or integrity in his occupation or profession, the statements must facially and factually address traits or conduct which are germane to the plaintiff’s occupation or profession.
Phillip J. Zisook is of counsel at Schoenberg Finkel Beederman Bell Glazer LLC, where he concentrates in defamation and privacy litigation and commercial litigation. If you have any questions regarding this article, please contact Phil at [email protected] or by calling (312) 648-2300.
[i] See generally, Tuite v. Corbett, 224 Ill. 2d 490, 502 (2006).
[ii] 2022 U.S. Dist. LEXIS 35631, 2022 WL 602467 No. 21 C 6287 (N.D. Ill. March 1, 2022).
[iii] Id. at *5.
[iv] Id. at *6.
[v] Id.
[vi] The court also found that the statement was reasonably capable of an innocent construction, as expressing an opinion on a legal issue. Id. at **7-8.
[vii] Id. at **7-8.
[viii] 2020 IL App (2d) 180654 at ¶69.
[ix] Id. at ¶8.
[x] Id. at ¶9.
[xi] Id. at ¶¶67-69.
[xii] 247 Ill. App.3d 216, 227 (1st Dist. 1993) (By portraying plaintiff, a grammar school teacher, as a swinder, the article could be found to constitute defamation per se because it could be found to prejudice his teaching ability and integrity because it presented him as someone who would not be an acceptable role model for young students).
[xiii] 308 Ill. App. 55, 57-58 (1st Dist. 1941) (“a clergyman in the practice of his profession must maintain a spotless reputation.”).
[xiv] 2020 IL App (2d) 180654 at ¶62.
[xv] 734 F.3d 610 (7th Cir. 2013).
[xvi] Id. at 613.
[xvii] 409 F.3d 853, 857-58 (7th Cir. 2005).
[xviii] 126 Ill. App. 3d 157 (1st Dist. 1984).
[xix] 299 Ill. App. 3d 513 (1st Dist. 1998).
[xx] Id. at 516.
[xxi] Id.
[xxii] Id. at 517.
[xxiii] Id. at 519-20.
[xxiv] Id. at 520.
[xxv] Id.
[xxvi] Id. at 520-21.
[xxvii] Id. at 521.
[xxviii] 24 F.4th 1122, 1130-32 (7th Cir. 2022).
[xxix] Id. at 1132.
