{ "id": 4272670, "name": "THOMAS A. ROSE, Plaintiff-Appellant, v. HOLLINGER INTERNATIONAL, INC., et al., Defendants-Appellees", "name_abbreviation": "Rose v. Hollinger International, Inc.", "decision_date": "2007-08-14", "docket_number": "No. 1-06-2885", "first_page": "900", "last_page": "912", "citations": [ { "type": "official", "cite": "375 Ill. App. 3d 900" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "672 N.E.2d 1207", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "174 Ill. 2d 77", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223609 ], "weight": 7, "year": 1996, "pin_cites": [ { "page": "99-100" }, { "page": "99" }, { "page": "100" }, { "page": "100" }, { "page": "100-01" }, { "page": "100-02" }, { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0077-01" ] }, { "cite": "632 N.E.2d 1139", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "defendants' statements that plaintiffs \"failure to complete the project in a timely manner, substandard workmanship, reluctance to complete punch list items and inability to correctly interpret the contract documents\"" } ], "opinion_index": 0 }, { "cite": "261 Ill. App. 3d 21", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5372506 ], "year": 1994, "pin_cites": [ { "page": "26", "parenthetical": "defendants' statements that plaintiffs \"failure to complete the project in a timely manner, substandard workmanship, reluctance to complete punch list items and inability to correctly interpret the contract documents\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/261/0021-01" ] }, { "cite": "648 N.E.2d 1033", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "statements that defendant \"had patients from [plaintiff] before,\" that defendant \"found nothing wrong with his patients,\" that plaintiffs \"practice was a joke,\" that plaintiff was not \"any good as a doctor,\" and that plaintiffs \"opinion wasn't any good\"" } ], "opinion_index": 0 }, { "cite": "271 Ill. App. 3d 662", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 249364 ], "year": 1995, "pin_cites": [ { "page": "672", "parenthetical": "statements that defendant \"had patients from [plaintiff] before,\" that defendant \"found nothing wrong with his patients,\" that plaintiffs \"practice was a joke,\" that plaintiff was not \"any good as a doctor,\" and that plaintiffs \"opinion wasn't any good\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/271/0662-01" ] }, { "cite": "617 N.E.2d 191", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "247 Ill. App. 3d 216", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2930827 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "228" }, { "page": "228" }, { "page": "228" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/247/0216-01" ] }, { "cite": "732 N.E.2d 730", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "315 Ill. App. 3d 225", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980618 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "232-33" }, { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/0225-01" ] }, { "cite": "410 N.E.2d 984", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "employer's statements that employee exhibited a \"[l]ack of achievement in basic goals\" and \"did not have the qualifications needed to achieve the objectives of the profession\"" } ], "opinion_index": 0 }, { "cite": "88 Ill. App. 3d 597", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3172670 ], "year": 1980, "pin_cites": [ { "page": "600", "parenthetical": "employer's statements that employee exhibited a \"[l]ack of achievement in basic goals\" and \"did not have the qualifications needed to achieve the objectives of the profession\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0597-01" ] }, { "cite": "523 N.E.2d 179", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "plaintiff \"secretly\" and \"cheaply\" sold city property" } ], "opinion_index": 0 }, { "cite": "168 Ill. App. 3d 603", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3514391 ], "year": 1988, "pin_cites": [ { "page": "608", "parenthetical": "plaintiff \"secretly\" and \"cheaply\" sold city property" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/168/0603-01" ] }, { "cite": "595 N.E.2d 103", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "plaintiff was a \"liar\"" } ], "opinion_index": 0 }, { "cite": "230 Ill. App. 3d 503", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5211633 ], "year": 1992, "pin_cites": [ { "page": "510", "parenthetical": "plaintiff was a \"liar\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/230/0503-01" ] }, { "cite": "658 N.E.2d 1225", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "statements made in an evaluation in employee's personnel file: \"very aggressive, to the point of being cocky,\" \"A con artist!! Watch out for the bullshit!\"" } ], "opinion_index": 0 }, { "cite": "276 Ill. App. 3d 861", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 927584 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "866-67", "parenthetical": "statements made in an evaluation in employee's personnel file: \"very aggressive, to the point of being cocky,\" \"A con artist!! Watch out for the bullshit!\"" }, { "page": "867" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/276/0861-01" ] }, { "cite": "814 N.E.2d 951", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "parenthetical": "statement in newspaper column that \"the Election Board could refer plaintiffs case to the United States Attorney's office, claiming that [he] used the [United States mail] in perpetrating a fraud\"" }, { "parenthetical": "statement in column that a source told defendant the election board could refer plaintiffs case to the United State's Attorney's office for a mail fraud prosecution was a subjective judgment, not a verifiable statement of fact" } ], "opinion_index": 0 }, { "cite": "351 Ill. App. 3d 963", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083810 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "968", "parenthetical": "statement in newspaper column that \"the Election Board could refer plaintiffs case to the United States Attorney's office, claiming that [he] used the [United States mail] in perpetrating a fraud\"" }, { "page": "969", "parenthetical": "statement in column that a source told defendant the election board could refer plaintiffs case to the United State's Attorney's office for a mail fraud prosecution was a subjective judgment, not a verifiable statement of fact" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/351/0963-01" ] }, { "cite": "858 N.E.2d 967", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "pin_cites": [ { "parenthetical": "flyer aimed at judicial candidate stating: \"What was he thinking?\", \"Letting a Murderer Back on the Streets,\" \"A Mistake with Consequences,\" \"Questionable Judgment,\" \" 'Technicality' Justice?\", and \"Overturning the Conviction of a Sexual Predator\"" } ], "opinion_index": 0 }, { "cite": "368 Ill. App. 3d 844", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4266652 ], "year": 2006, "pin_cites": [ { "page": "851-52", "parenthetical": "flyer aimed at judicial candidate stating: \"What was he thinking?\", \"Letting a Murderer Back on the Streets,\" \"A Mistake with Consequences,\" \"Questionable Judgment,\" \" 'Technicality' Justice?\", and \"Overturning the Conviction of a Sexual Predator\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/368/0844-01" ] }, { "cite": "682 N.E.2d 163", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "289 Ill. App. 3d 544", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 351074 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "556-57" }, { "page": "554" }, { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/289/0544-01" ] }, { "cite": "708 N.E.2d 441", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "303 Ill. App. 3d 317", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 511385 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "329" }, { "page": "329-30" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/303/0317-01" ] }, { "cite": "741 N.E.2d 669", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "318 Ill. App. 3d 443", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 279694 ], "weight": 4, "year": 2000, "pin_cites": [ { "page": "452" }, { "page": "452" }, { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/318/0443-01" ] }, { "cite": "776 N.E.2d 693", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "333 Ill. App. 3d 755", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 485804 ], "weight": 5, "year": 2002, "pin_cites": [ { "page": "758" }, { "page": "760" }, { "page": "762" }, { "page": "760" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/333/0755-01" ] }, { "cite": "861 N.E.2d 655", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "opinion_index": 0 }, { "cite": "222 Ill. 2d 572", "category": "reporters:state", "reporter": "Ill. 2d", "year": 2006, "opinion_index": 0 }, { "cite": "853 N.E.2d 770", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "opinion_index": 0 }, { "cite": "367 Ill. App. 3d 48", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4265754 ], "weight": 5, "year": 2006, "pin_cites": [ { "page": "53" }, { "page": "53" }, { "page": "50" }, { "page": "54" }, { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/367/0048-01" ] }, { "cite": "552 N.E.2d 973", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "adopting factors announced in Oilman v. Evans, 750 E2d 970, 984-85 (D.C. Cir. 1984)" } ], "opinion_index": 0 }, { "cite": "135 Ill. 2d 220", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3256475 ], "weight": 6, "year": 1989, "pin_cites": [ { "page": "243", "parenthetical": "adopting factors announced in Oilman v. Evans, 750 E2d 970, 984-85 (D.C. Cir. 1984)" }, { "page": "245" }, { "page": "245" }, { "page": "245-46" }, { "page": "241" }, { "page": "243" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/135/0220-01" ] }, { "cite": "701 N.E.2d 99", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "299 Ill. App. 3d 513", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221509 ], "weight": 10, "year": 1998, "pin_cites": [ { "page": "518" }, { "page": "519" }, { "page": "521" }, { "page": "516" }, { "page": "519" }, { "page": "519" }, { "page": "520" }, { "page": "520" }, { "page": "519" }, { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/299/0513-01" ] }, { "cite": "497 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6212323 ], "weight": 24, "year": 1990, "pin_cites": [ { "page": "18" }, { "page": "17" }, { "page": "2705" }, { "page": "19" }, { "page": "18" }, { "page": "2706" }, { "page": "18-19" }, { "page": "17-18" }, { "page": "2706" }, { "page": "5" }, { "page": "9" }, { "page": "2698" }, { "page": "21" }, { "page": "19" }, { "page": "2707" }, { "page": "21" }, { "page": "19" }, { "page": "2707" }, { "page": "20" }, { "page": "19" }, { "page": "2706" }, { "page": "20" }, { "page": "19" }, { "page": "2706" } ], "opinion_index": 0, "case_paths": [ "/us/497/0001-01" ] }, { "cite": "418 U.S. 323", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173012 ], "weight": 3, "year": 1974, "pin_cites": [ { "page": "339-40" }, { "page": "805" }, { "page": "3007" } ], "opinion_index": 0, "case_paths": [ "/us/418/0323-01" ] }, { "cite": "852 N.E.2d 825", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "opinion_index": 0 }, { "cite": "221 Ill. 2d 558", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5703617 ], "weight": 11, "year": 2006, "pin_cites": [ { "page": "581" }, { "page": "581-82" }, { "page": "581" }, { "page": "583" }, { "page": "583" }, { "page": "583" }, { "page": "584" }, { "page": "584" }, { "page": "584" }, { "page": "581" }, { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/221/0558-01" ] }, { "cite": "607 N.E.2d 201", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "154 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820830 ], "weight": 6, "year": 1992, "pin_cites": [ { "page": "10" }, { "page": "10" }, { "page": "14-15" }, { "page": "14-15" }, { "page": "16" }, { "page": "15", "parenthetical": "\"not for real,\" \"scamming,\" and \"no such show as the classic cartoon festival\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0001-01" ] }, { "cite": "785 N.E.2d 843", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "203 Ill. 2d 223", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799371 ], "year": 2003, "pin_cites": [ { "page": "228" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/203/0223-01" ] }, { "cite": "856 N.E.2d 1048", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "opinion_index": 0 }, { "cite": "222 Ill. 2d 422", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3602359 ], "year": 2006, "pin_cites": [ { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/222/0422-01" ] } ], "analysis": { "cardinality": 1407, "char_count": 28594, "ocr_confidence": 0.765, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1432687774460982 }, "sha256": "63d6ef036a9b909070e09f126572e726cc0bd332a250a8e30d08d1cc762ab7c7", "simhash": "1:287eb5f7ef50544d", "word_count": 4676 }, "last_updated": "2023-07-14T20:53:12.225665+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THOMAS A. ROSE, Plaintiff-Appellant, v. HOLLINGER INTERNATIONAL, INC., et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE WOLFSON\ndelivered the opinion of the court:\nIn this defamation case we are required to explore the indistinct line between fact and opinion. Where we land determines the outcome of this appeal.\nPlaintiff Thomas A. Rose (Rose) appeals the trial court\u2019s order dismissing with prejudice his action against the defendants Hollinger International, Inc. (Hollinger), Chicago Sun-Times, Inc. (Sun-Times), Jerusalem Post, and Bret Stephens (Stephens). Count V of plaintiffs second amended complaint alleged Stephens made defamatory statements against Rose in an e-mail sent to Jerusalem Post employees.\nThe trial court found the alleged defamatory statements \u2014 Rose \u201cwrought damage to\u201d the Jerusalem Post\u2019s finances, reputation, business relationships, morale, and quality of its editorial product \u2014 were not actionable because they were protected expressions of Stephens\u2019 opinions. Rose appeals the court\u2019s dismissal of count V. We affirm.\nFACTS\nAt the time of the complaint, Hollinger was the owner of the Sun-Times and the Jerusalem Post. Rose began working for Hollinger and the Chicago Sun-Times in 1997. In June 1998, Rose became the publisher and chief executive officer (CEO) of the Jerusalem Post. He moved to Israel and worked in that position until he was fired on May 25, 2004. On May 27, 2004, Stephens, the editor-in-chief of the Jerusalem Post, sent an e-mail to the editorial staff in Israel and New York. The content of the e-mail, in its entirety, is as follows:\n\u201cSubject: memo from Bret Stephens to editorial staff Dear Colleagues,\nAs some of you may have heard already, Tom Rose was this Tuesday terminated as Publisher and CEO of The Jerusalem Post. CFO Mark Ziman has taken his place as publisher on an interim basis.\nFor those of us who have seen up close the damage Tom did to this newspaper, this is a happy event indeed. For those Tom damaged personally, with his abusive behavior and bizarre management style, it is happier still. So good riddance, Tom, good riddance. You will not be missed.\nSo many of us have been waiting for this day, and fighting for it, that we may be forgiven for thinking that Tom\u2019s departure brings our problems to an end. It does not. It will be some time before we can undo the damage he has wrought: To our finances, to our reputation, to our business relationships, to our morale, to the quality of our editorial product.\nWhat we can say is that, with Tom gone, we can begin to address our problems in a rational and purposeful way. Improvements will not necessarily come quickly. But I\u2019m confident they will, in time, come.\nI hope each of you had a pleasant holiday. I look forward to seeing you next week.\nYours, Bret.\u201d\nRose alleges Stephens took no steps to ensure the e-mail was not forwarded beyond its original recipients. He says the e-mail was sent to several freelance journalists around the world and forwarded to other people in Illinois and New York. Excerpts from the e-mail were published in at least two newspaper articles available on the Internet. He alleges Stephens made the defamatory statements in the course of his employment, \u201cwith the intent to injure Rose personally and to interfere with Rose\u2019s efforts to obtain employment following his termination.\u201d\nCount V of Rose\u2019s second amended complaint alleges the statements in the e-mail were defamatory per se because they imputed an inability to perform, or a lack of integrity in the discharge of, Rose\u2019s employment duties and imputed he lacked ability in his trade, profession, or business.\nThe defendants filed a motion to dismiss pursuant to section 2 \u2014 615 of the Illinois Code of Civil Procedure (735 ILCS 5/2 \u2014 615 (West 2004)), contending: (1) the statements constitute expressions of opinion; (2) the statements are subject to a qualified privilege; (3) Rose failed to sufficiently allege \u201cactual malice\u201d; (4) defendants are not liable for statements made by Stephens outside the scope of his employment; and (5) Rose cannot state a claim against Hollinger or the Sun-Times as those companies were not Rose\u2019s employers at the time the statements were made.\nThe trial court dismissed the defamation count with prejudice, holding the alleged defamatory statements were expressions of Stephens\u2019 opinions. The court did not address defendants\u2019 other arguments. The court subsequently entered an order finding no just reason to delay appeal of the dismissal order. 155 Ill. 2d R. 304(a).\nDECISION\nA section 2 \u2014 615 motion to dismiss challenges the legal sufficiency of a complaint based on defects apparent on its face. 735 ILCS 5/2\u2014 615 (West 2004); Marshall v. Burger King Corp., 222 Ill. 2d 422, 429, 856 N.E.2d 1048 (2006). Our review is de novo. Wakulich v. Mraz, 203 Ill. 2d 223, 228, 785 N.E.2d 843 (2003).\nA statement is considered defamatory \u201cif it tends to cause such harm to the reputation of another that it lowers that person in the eyes of the community or deters third persons from associating with him.\u201d Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 10, 607 N.E.2d 201 (1992), citing Restatement (Second) of Torts \u00a7559 (1977). \u201cStatements are considered defamatory per se when the defamatory character of the statement is apparent on its face \u2014 that is, when the words used are so obviously and materially harmful to the plaintiff that injury to his reputation may be presumed.\u201d Kolegas, 154 Ill. 2d at 10.\nRose alleges Stephens\u2019 statements add up to imputation he is unable to perform his professional duties, thus per se defamation. The posture of this appeal does not call on us to decide whether Stephens\u2019 e-mail contains defamatory words. We will assume, as the parties apparently do in this appeal, there is at least some defamation. The question we must answer is whether the defamatory words are actionable. See Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 99-100, 672 N.E.2d 1207 (1996). That is, statements that are defamatory per se may enjoy constitutional protection as expressions of opinion. Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 581, 852 N.E.2d 825 (2006); U.S. Const, amend. I.\nFirst, we look at some of the decisions that have brought us to the fact-versus-opinion contest we must resolve.\nBefore 1990, courts \u201cperceived a fundamental distinction between statements of fact and statements of opinion for first amendment purposes.\u201d Bryson, 174 Ill. 2d at 99. The distinction was grounded in dictum contained in Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 41 L. Ed. 2d 789, 805, 94 S. Ct. 2997, 3007 (1974):\n\u201cUnder 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. But there is no constitutional value in false statements of fact.\u201d\nIn Milkovich v. Lorain Journal Co., 497 U.S. 1, 18, 111 L. Ed. 2d 1, 17, 110 S. Ct. 2695, 2705 (1990), the United States Supreme Court held the above passage from Gertz was not intended to create a \u201cwholesale defamation exemption\u201d for anything labeled an \u201copinion.\u201d Rejecting what it called \u201cthe creation of an artificial dichotomy between \u2018opinion\u2019 and fact,\u201d the Court held there is no separate first amendment privilege for statements of opinion. Milkovich, 497 U.S. at 19, 111 L. Ed. 2d at 18, 110 S. Ct. at 2706. A false assertion of fact can be libelous even though couched in terms of an opinion. For example, simply couching the statement \u201cJones committed perjury\u201d in terms of opinion \u2014 \u201cIn my opinion Jones committed perjury\u201d \u2014 does not dispel the factual implications contained in the statement. Milkovich, 497 U.S. at 18-19, 111 L. Ed. 2d at 17-18, 110 S. Ct. at 2706.\nThe statement at issue in Milkovich appeared in a newspaper column that said the petitioner \u201c \u2018lied at the hearing after *** having given his solemn oath to tell the truth.\u2019 \u201d Milkovich, 497 U.S. at 5, 111 L. Ed. 2d at 9, 110 S. Ct. at 2698. The Court said the dispositive question was \u201cwhether a reasonable fact finder could conclude that the statements in the [column] imply an assertion that petitioner Milkovich perjured himself in a judicial proceeding.\u201d Milkovich, 497 U.S. at 21, 111 L. Ed. 2d at 19, 110 S. Ct. at 2707. The Court answered the question in the affirmative, holding:\n\u201cThis is not the sort of loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining that petitioner committed the crime of perjury. Nor does the general tenor of the article negate this impression.\nWe also think the connotation that petitioner committed perjury is sufficiently factual to be susceptible of being proved true or false.\u201d Milkovich, 497 U.S. at 21, 111 L. Ed. 2d at 19, 110 S. Ct. at 2707.\nThe Illinois Supreme Court has adopted and applied the Milkovich test. Bryson, 174 Ill. 2d at 100; Kolegas, 154 Ill. 2d at 14-15. Calling it a \u201crestrictive\u201d test, the court held a statement is protected by the first amendment only if it cannot be \u201c \u2018reasonably interpreted as stating actual facts\u2019 \u201d about the plaintiff. Bryson, 174 Ill. 2d at 100, quoting Milkovich, 497 U.S. at 20, 111 L. Ed. 2d at 19, 110 S. Ct. at 2706; Kolegas, 154 Ill. 2d at 14-15, citing Milkovich, 497 U.S. at 20, 111 L. Ed. 2d at 19, 110 S. Ct. at 2706. The determination is a matter of law for the court to decide. Hopewell v. Vitullo, 299 Ill. App. 3d 513, 518, 701 N.E.2d 99 (1998).\nCourts consider several factors in determining whether a statement is actionable: (1) whether the statement has a precise and readily understood meaning; (2) whether the statement is objectively verifiable as true or false; and (3) whether the statement\u2019s literary or social context signals that it has factual content. Solaia, 221 Ill. 2d at 581-82; Bryson, 174 Ill. 2d at 100-01; Mittelman v. Witous, 135 Ill. 2d 220, 243, 552 N.E.2d 973 (1989) (adopting factors announced in Oilman v. Evans, 750 E2d 970, 984-85 (D.C. Cir. 1984)). Statements made in the form of insinuation, allusion, irony, question, ridicule, or sarcasm may be considered defamatory as positive assertions of fact. Solaia, 221 Ill. 2d at 581; Kolegas, 154 Ill. 2d at 16.\nCourts evaluate the totality of the circumstances in each case, but the emphasis is on whether the statement is capable of objective verification. Imperial Apparel, Ltd. v. Cosmo\u2019s Designer Direct, Inc., 367 Ill. App. 3d 48, 53, 853 N.E.2d 770 (2006), appeal allowed, 222 Ill. 2d 572, 861 N.E.2d 655 (2006); Hopewell, 299 Ill. App. 3d at 519.\nTo aid our analysis of whether the statements at issue are constitutionally protected opinion or actionable factual assertions, we examine the ways various courts have analyzed similar statements.\nCases Finding Nonactionable Opinion\nIn Schivarelli v. CBS, Inc., 333 Ill. App. 3d 755, 776 N.E.2d 693 (2002), a segment in a 30-second promotional commercial for a television station depicted investigative reporter Pamela Zekman saying to the plaintiff, \u201c \u2018Let\u2019s sum this up for a second, the evidence seems to indicate that you\u2019re cheating the city.\u2019 \u201d Schivarelli, 333 Ill. App. 3d at 758. The ad did not provide any further detail, although the context of the ad \u201ctrumpet[ed the reporter\u2019s] ability to dig up hidden corruption, abuse, and unethical or illegal conduct.\u201d Schivarelli, 333 Ill. App. 3d at 760.\nThe court held the statement was not objectively verifiable because it was not made in any specific factual context. The reporter did not explain the evidence, state why she thought the plaintiff was cheating, or even explain what she meant by \u201ccheating.\u201d Schivarelli, 333 Ill. App. 3d at 762. It was not actionable.\nIn Wynne v. Loyola University of Chicago, 318 Ill. App. 3d 443, 741 N.E.2d 669 (2000), the court held the statements about a professor in a memorandum authored by a university employee did not constitute actionable defamation. The memorandum stated the plaintiff \u201cmade bizarre telephone calls\u201d to other colleagues about her fertility injections; she \u201cappeared to wheedle, persuade, nag, and domineer\u201d for changes in the university\u2019s special education program; nothing ever seemed to satisfy her; meetings with her were \u201cuniformly unpleasant\u201d; and she began \u201cstriking various deals\u201d with the dean. Wynne, 318 Ill. App. 3d at 452.\nThe court held none of the words and phrases was capable of objective verification; it was clear the employee was merely expressing her opinions in the memorandum. Wynne, 318 Ill. App. 3d at 452. The court found, \u201c[wjhile in one sense all opinions imply facts, the question of whether a statement of opinion is actionable as defamation is one of degree; the vaguer and more generalized the opinion, the more likely the opinion is nonactionable as a matter of law.\u201d Wynne, 318 Ill. App. 3d at 452, citing Hopewell, 299 Ill. App. 3d at 521.\nIn Dubinsky v. United Airlines Master Executive Council, 303 Ill. App. 3d 317, 708 N.E.2d 441 (1999), the plaintiffs alleged the defendants falsely accused them of criminal conduct related to the employee purchase of United Airlines. Specifically, plaintiff Dubinsky alleged defendant Richards defamed him by calling him a \u201ccrook\u201d in front of 30 to 40 pilots and their wives. Dubinsky, 303 Ill. App. 3d at 329. The court held the statement was not actionable because it was not made in any specific factual context. The court said, \u201c[o]ne cannot rely on an assumption that those who heard the statement were completely apprised of all the developments in the ESOP controversy so as to create a definitive factual context for the use of the word \u2018crook.\u2019 \u201d Dubinsky, 303 Ill. App. 3d at 329-30.\nIn Doherty v. Kahn, 289 Ill. App. 3d 544, 556-57, 682 N.E.2d 163 (1997), the court held statements made by plaintiffs former employer to clients were nonactionable opinion. Defendants told potential customers plaintiff was \u201cincompetent,\u201d \u201clazy,\u201d \u201cdishonest,\u201d \u201ccannot manage a business,\u201d and/or \u201clacks the ability to perform landscaping services.\u201d Doherty, 289 Ill. App. 3d at 554. The court held the statements were not actionable defamation because there were no specific facts at the root of the statements capable of being objectively verified as true or false. Doherty, 289 Ill. App. 3d at 557.\nIn Hopewell, 299 Ill. App. 3d at 516, a former paid officer on a United States senator\u2019s election committee brought a defamation action against another committee member who told a newspaper the plaintiff was \u201cfired because of incompetence.\u201d The court found the statement did not have a \u201cprecise and readily understood meaning\u201d because of its broad scope and lack of detail. Hopewell, 299 Ill. App. 3d at 519. \u201c[0]ne person\u2019s idea of when one reaches the threshold of incompetence will vary from the next person\u2019s.\u201d Hopewell, 299 Ill. App. 3d at 519. The tenor and context of the article in which the statement appeared further justified finding the statement was an opinion. The article was riddled with allegations concerning the senator\u2019s campaign finances, which easily could lead readers to conclude the statements were efforts at posturing before an ensuing legal battle between the plaintiff and the senator. Hopewell, 299 Ill. App. 3d at 520. Finally, the veracity of the statement could not be verified because the statement was so ambiguous and indefinite that any number of possible facts might support the conclusion that Hopewell was \u201cincompetent.\u201d Hopewell, 299 Ill. App. 3d at 520.\nFor other examples of nonactionable opinions, see also Maag v. Illinois Coalition for Jobs, Growth & Prosperity, 368 Ill. App. 3d 844, 851-52, 858 N.E.2d 967 (2006) (flyer aimed at judicial candidate stating: \u201cWhat was he thinking?\u201d, \u201cLetting a Murderer Back on the Streets,\u201d \u201cA Mistake with Consequences,\u201d \u201cQuestionable Judgment,\u201d \u201c \u2018Technicality\u2019 Justice?\u201d, and \u201cOverturning the Conviction of a Sexual Predator\u201d); Brennan v. Kadner, 351 Ill. App. 3d 963, 968, 814 N.E.2d 951 (2004) (statement in newspaper column that \u201cthe Election Board could refer plaintiffs case to the United States Attorney\u2019s office, claiming that [he] used the [United States mail] in perpetrating a fraud\u201d); Quinn v. Jewel Food Stores, Inc., 276 Ill. App. 3d 861, 866-67, 658 N.E.2d 1225 (1995) (statements made in an evaluation in employee\u2019s personnel file: \u201cvery aggressive, to the point of being cocky,\u201d \u201cA con artist!! Watch out for the bullshit!\u201d); Piersall v. Sports-Vision of Chicago, 230 Ill. App. 3d 503, 510, 595 N.E.2d 103 (1992) (plaintiff was a \u201cliar\u201d); Horowitz v. Baker, 168 Ill. App. 3d 603, 608, 523 N.E.2d 179 (1988) (plaintiff \u201csecretly\u201d and \u201ccheaply\u201d sold city property); Kakuris u. Klein, 88 Ill. App. 3d 597, 600, 410 N.E.2d 984 (1980) (employer\u2019s statements that employee exhibited a \u201c[l]ack of achievement in basic goals\u201d and \u201cdid not have the qualifications needed to achieve the objectives of the profession\u201d).\nCases Finding Actionable Factual Statements\nIn Imperial Apparel, 367 Ill. App. 3d at 53, the court held certain statements in the defendant\u2019s advertisement \u2014 referring to the plaintiffs as \u201cshameless owners of Empire Rags\u201d and their business establishment as a \u201cflea market style warehouse\u201d \u2014 did not qualify as statements of objectively verifiable fact, but part of the ad was held actionable. It stated:\n\u201cIt is laughable how with all the integrity of the \u2018Iraq Information Minister\u2019, they brazenly attempt pulling polyester over your eyes by conjuring up a low rent 3 for [1] imitation that has-the transparency of a hookers come on...but no matter how they inflate prices and compromise quality, much to their dismay, Cy and his son Paul the plagiarist still remain light years away from delivering anything close to our \u20183 for 1\u2019 values.\u201d Imperial Apparel, 367 Ill. App. 3d at 50.\nThe court held the statements addressed the conduct and character of the individual plaintiffs and appeared to be based on unstated facts concerning the quality of Imperial\u2019s goods. Whether Imperial was selling imitation goods of inferior quality was capable of objective verification. Imperial Apparel, 367 Ill. App. 3d at 54. Even though the statements were made in the context of a competitor\u2019s advertisement, a reasonable reader could interpret the ad as stating actual facts about the plaintiffs and the originality and quality of Imperial\u2019s goods. Imperial Apparel, 367 Ill. App. 3d at 54.\nIn Solaia, 221 Ill. 2d at 583, the court examined several statements in a magazine article discussing the plaintiffs\u2019 patent infringement claims against various well-known companies and reached a split decision. The court held the article\u2019s characterization of the plaintiffs as \u201c \u2018deeply greedy people\u2019 \u201d victimizing \u201c \u2018the innocent companies who are being forced to defend themselves in this debacle\u2019 \u201d fell within the bounds of constitutionally protected opinion. Solaia, 221 Ill. 2d at 583. The phrase had \u201cno precise meaning\u201d and was \u201cnot verifiable.\u201d Solaia, 221 Ill. 2d at 583. But a reprinted comment in the article from an industry veteran describing the plaintiffs\u2019 patent as \u201c \u2018essentially worthless,\u2019 *** being used to generate settlement proceeds,\u201d filing claims \u201c \u2018to make a lot of money,\u2019 regardless of the means\u201d was actionable fact. Solaia, 221 Ill. 2d at 584. Though the phrase \u201cessentially worthless\u201d had no precise meaning in the abstract, it had a very precise meaning in the context of the letter. Solaia, 221 Ill. 2d at 584. Although the letter \u201cundoubtedly employs hyperbole,\u201d the court held the statement was not an opinion. \u201cUnder its metaphorical chaff hides a kernel of fact: Solaia Technology secured a worthless patent and filed infringement claims with the sole aim of extracting settlements.\u201d Solaia, 221 Ill. 2d at 584.\nIn Bryson, 174 Ill. 2d at 100-02, the court held a short story\u2019s description of the plaintiff as a \u201cslut\u201d was an assertion of fact. The clear impact of the statement was that the plaintiff was sexually promiscuous. The court held the assertion was \u201csufficiently factual to be susceptible to being proven true or false.\u201d Bryson, 174 Ill. 2d at 100.\nIn Mittelman, 135 Ill. 2d at 245, the court examined a statement by a supervising attorney in a meeting with the law firm\u2019s board of directors. The attorney told the directors the waste of time and money in preparing a case was \u201cnot his fault.\u201d He said the plaintiff \u201csat on the statute of limitations defense with knowledge of [adverse authority] *** for three years without attempting to settle or cut the firm\u2019s probable losses.\u201d Mittelman, 135 Ill. 2d at 245. The court held the word \u201cfault\u201d was used to express a nonactionable opinion, but the remainder of the statement was factual because it had a precise core of meaning and referred to the plaintiffs actions or omissions with respect to events that had taken place. Mittelman, 135 Ill. 2d at 245-46. The words were actionable.\nIn Moriarty v. Greene, 315 Ill. App. 3d 225, 232-33, 732 N.E.2d 730 (2000), the statement by a newspaper columnist that a child psychologist has \u201creadily admitted that she sees her job as doing whatever the natural parents instruct her to do,\u201d was found to be actionable because it was a factual assertion capable of being proved true or false. Moriarty, 315 Ill. App. 3d at 233.\nThe court in Rumoran v. Brotman, 247 Ill. App. 3d 216, 228, 617 N.E.2d 191 (1993), held a statement in a newspaper article was a verifiable assertion of fact. The court found the gist of the article\u2014 that plaintiff was \u201cworking a scam\u201d by filing frequent, unwarranted lawsuits to procure pecuniary settlements \u2014 concerned plaintiff\u2019s conduct and character, suggesting it was factual. Rumoran, 247 Ill. App. 3d at 228, citing Mittelman, 135 Ill. 2d at 241. The word \u201cscam\u201d had a precise core of meaning for which a consensus of understanding exists, namely, swindle. And the statement was verifiable by reviewing the evidence in plaintiffs filed lawsuits to determine whether they were bona fide or bogus. Rumoran, 247 Ill. App. 3d at 228.\nFor other examples of actionable statements, see also Rolegas, 154 Ill. 2d at 15 (\u201cnot for real,\u201d \u201cscamming,\u201d and \u201cno such show as the classic cartoon festival\u201d); Barakat v. Matz, 271 Ill. App. 3d 662, 672, 648 N.E.2d 1033 (1995) (statements that defendant \u201chad patients from [plaintiff] before,\u201d that defendant \u201cfound nothing wrong with his patients,\u201d that plaintiffs \u201cpractice was a joke,\u201d that plaintiff was not \u201cany good as a doctor,\u201d and that plaintiffs \u201copinion wasn\u2019t any good\u201d); Quality Granite Construction Co. v. Hurst-Rosche Engineers, Inc., 261 Ill. App. 3d 21, 26, 632 N.E.2d 1139 (1994) (defendants\u2019 statements that plaintiffs \u201cfailure to complete the project in a timely manner, substandard workmanship, reluctance to complete punch list items and inability to correctly interpret the contract documents\u201d).\nApplication to the Instant Case\nPlaintiff\u2019s strongest argument for the presence of actionable defamatory statements of fact is found in the third paragraph of the e-mail:\n\u201cIt will be some time before we can undo the damage he has wrought: To our finances, to our reputation, to our business relationships, to our morale, to the quality of our editorial product.\u201d\nWe are particularly interested in the reference to damage \u201cto our finances.\u201d It strikes us that the balance of the paragraph and the other assertions in the e-mail \u2014 \u201cabusive behavior,\u201d \u201cbizarre management style,\u201d for example \u2014 clearly are nonactionable opinions and require no further analysis.\nWe consider whether a reasonable reader would understand the \u201cdamage to our finances\u201d phrase as Stephens\u2019 opinion or his factual assertion, bearing in mind \u201c[t]he test is restrictive: a defamatory statement is constitutionally protected only if it cannot be reasonably interpreted as stating actual fact.\u201d Solaia Technology, 221 Ill. 2d at 581. We look to the three \u201cconsiderations\u201d used by the supreme court in Solaia to separate fact from opinion. Solaia Technology, 221 Ill. 2d at 581.\nFirst, whether the statement has a precise and readily understood meaning. The meaning of \u201cdamage\u201d is fairly clear, when taken in isolation. Our dictionary defines it as \u201closs due to injury; injury or harm to *** property.\u201d Webster\u2019s Third New International Dictionary 571 (1981). Webster\u2019s defines \u201cfinances\u201d as: \u201cthe pecuniary affairs or resources of a *** company.\u201d Webster\u2019s Third New International Dictionary 851 (1981). While the words at issue, when parsed separately, might be understandable, they do not exist in a vacuum. They refer to a business enterprise, the Jerusalem Post. The company\u2019s \u201cpecuniary affairs or resources\u201d is a broad term, an outer shape without an inner core. The reasonable reader cannot know which pecuniary affairs or resources are being referred to. Different readers will have different views of the meaning of the phrase. The conclusion we reach is substantially similar to that expressed by our court in Hopewell:\n\u201cRegardless of the fact that \u2018incompetent\u2019 is an easily understood term, its broad scope renders it lacking the necessary detail for it to have a precise and readily understood meaning. There are numerous reasons why one might conclude that another is incompetent; one person\u2019s idea of when one reaches the threshold of incompetence will vary from the next person\u2019s.\u201d Hopewell, 299 Ill. App. 3d at 519.\nWe do not believe the phrase at issue has a \u201cprecise core of meaning for which a consensus of understanding exists.\u201d Mittelman, 135 Ill. 2d at 243, citing Oilman, 750 F.2d at 979-84.\nSecond, whether the statement is verifiable. That is, whether the alleged defamatory statement contains an objectively verifiable assertion. Schivarelli, 333 Ill. App. 3d at 760. Is it objectively capable of proof or disproof? See Quinn, 276 Ill. App. 3d at 867.\nGiven the broad and shapeless form of Stephens\u2019 accusation, we do not see how a reasonable person would go about proving or disproving the assertion. Where would such a person begin?\nNo specific location of injury is provided. Nor is one inferred in some undisclosed defamatory manner. One cannot tell whether it is a matter of profit and loss. Or assets and liabilities. Or net worth. And so on. As in Hopewell, an attempt to prove or disprove the statement would entail an \u201cendless analysis of each and every fact connected with\u201d the plaintiffs duties. Hopewell, 299 Ill. App. 3d at 520.\nThat an analysis of company records would be difficult is not dispositive. It is the fruitlessness of the investigation, given the sparse information provided, that leads to our conclusion that the statement is too broad, conclusory, and vague to be objectively verifiable.\nThird, we look to the statement\u2019s literary or social context to see whether it signals that it has factual content. Here, Stephens\u2019 e-mail represents a mean-spirited send-off of a discharged publisher for no apparent institutional purpose. It was gloating (\u201cSo good riddance, Tom, good riddance. You will not be missed\u201d). Stephens was not making a case or stating an argument. He did not claim \u201cto be in possession of objectively verifiable facts.\u201d Brennan v. Kadner, 351 Ill. App. 3d 963, 969, 814 N.E.2d 951 (2004) (statement in column that a source told defendant the election board could refer plaintiffs case to the United State\u2019s Attorney\u2019s office for a mail fraud prosecution was a subjective judgment, not a verifiable statement of fact). Here, given the occasion for sending of the e-mail and the audience it was intended to reach, we do not see how a reasonable reader would take \u201cwrought damage to our finances\u201d as a factual assertion that Rose caused some injury to specific, identifiable pecuniary affairs or resources of the newspaper.\nWe recognize this is a close case. As Professor Graham has written: \u201cA clear Une between fact and opinion is impossible to draw.\u201d M. Graham, Cleary & Graham\u2019s Handbook of IUinois Evidence \u00a7701.1, at 516 (8th ed. 2004). But draw it we must. We conclude Stephens\u2019 intemperate words in the e-mail are constitutionally protected opinions.\nCONCLUSION\nFor the reasons we have stated, the trial court\u2019s order dismissing count V of the plaintiffs complaint with prejudice is affirmed. Because we reach this conclusion, we see no need to discuss other issues raised by the defendants.\nAffirmed.\nHOFFMAN and SOUTH, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE WOLFSON" } ], "attorneys": [ "Martin B. Carroll, of Fox, Hefter, Swibel, Levin & Carroll, LLP) of Chicago, for appellant.", "Steven L. Hamann, James V. Garvey, and Frederic T. Knape, all of Vedder, Price, Kaufman & Kammholz, PC., of Chicago, for appellees." ], "corrections": "", "head_matter": "THOMAS A. ROSE, Plaintiff-Appellant, v. HOLLINGER INTERNATIONAL, INC., et al., Defendants-Appellees.\nFirst District (2nd Division)\nNo. 1-06-2885\nOpinion filed August 14, 2007.\nMartin B. Carroll, of Fox, Hefter, Swibel, Levin & Carroll, LLP) of Chicago, for appellant.\nSteven L. Hamann, James V. Garvey, and Frederic T. Knape, all of Vedder, Price, Kaufman & Kammholz, PC., of Chicago, for appellees." }, "file_name": "0900-01", "first_page_order": 916, "last_page_order": 928 }