Madison, Carl v. Frazier, Renatta ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1944
C ARL M ADISON,
Plaintiff-Appellant,
v.
R ENATTA F RAZIER, K OURTNEY W. M ITCHELL,
R ENATTA’S H EART , INCORPORATED , an
Illinois corporation, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 05 C 3283—Richard Mills, Judge.
____________
A RGUED M AY 30, 2008—D ECIDED A UGUST 22, 2008
____________
Before B AUER, R IPPLE and W OOD , Circuit Judges.
B AUER, Circuit Judge. In late 2001, Renatta Frazier, an
African-American police officer with the Springfield
Police Department, became the subject of an internal
affairs investigation when she was accused of failing to
prevent a rape while on duty. The incident occurred on
October 31, 2001, when Frazier allegedly failed to re-
2 No. 07-1944
spond to a dispatch call. She left the Department in No-
vember 2001 on a medical leave and apparently never
returned due to the allegations that surrounded her
conduct that day. That same year, she approached
the Black Guardians, a group that advocates for the
interests of American-American police officers, who
directed her to Carl Madison, an African-American and
president of the local National Association for the Ad-
vancement of Colored People (“NAACP”) chapter
in Springfield, Illinois (the “City”), for assistance in
addressing the allegations. Madison recommended
legal counsel to Frazier and discussed the investigation
of Frazier’s job performance with City representatives.
After frequent discussions, Frazier and Madison dis-
agreed as to the appropriate course of action regarding
the dispute and parted ways. Frazier was eventually
cleared of the allegations surrounding the dispatch call
and subsequently joined a lawsuit against the City that
claimed racial discrimination in its hiring practices. See
Frazier et al. v. Harris, 266 F. Supp. 2d 853 (C.D.Ill. 2003). The
parties reached a financial settlement in 2004.
On March 13, 2002, an article was published in a City
newspaper, the State Journal Register, stating that
Madison and the NAACP “dropped Frazier’s case” due
to her lack of cooperation. On March 18, 2002, the Black
Guardians sent Madison and the NAACP a letter, indicat-
ing that they no longer needed the NAACP’s assistance
in the discrimination cases (including Frazier’s) pending
against the City.
In 2003, Frazier began to write about her experiences
with the Department. These writings evolved into a book
No. 07-1944 3
titled The Enemy in Blue: The Renatta Frazier Story (the
“Book”), which was co-authored by Frazier’s son, Kourtney
Mitchell, and published in 2005 by Renatta’s Heart, Inc., an
Illinois corporation. The prologue describes the story as
“one woman’s fight against the enemy of racial and gender
discrimination in the system of a police department.” The
beginning chapters of the Book describe Frazier’s back-
ground, including her childhood, family, and life as a
probationary officer with the Department.
Relevant to this appeal, Chapter Seven, titled “Almost
Buried Alive,” relates the events surrounding October 31,
2001, Frazier’s perplexity at the accusations that swirled
around her conduct on that day, and the aftermath,
including her medical and financial difficulties. The end
of the chapter, also known as the “fantasy sequence,”
begins with the words “[d]uring this time of turmoil in
my life, one day in my imagination I fantasized the fol-
lowing scenario” and describes Frazier’s imaginary
interaction with various people. She imagined that she
was lying in the streets of Springfield, bleeding:
As I looked up, I thought I saw a lot of people standing
in the distance. I wasn’t sure; I had been beaten so
badly, I felt dizzy and my vision was blurred. I began
to yell as loudly as I could: “HELP! HELP!” I thought
maybe they couldn’t hear me. Perhaps the pain had
limited my ability to yell. Even so, I began to drag my
body with all the strength that remained. My faint yell
for help seemed to go undetected. I decided to ap-
proach the man closest to me. He was standing with
his back to me, and he appeared to have his arms
4 No. 07-1944
folded across his chest. “Mister,” I said, “can you help
me please, I’ve been hurt and they left me for dead.”
As the man turned around to reveal his face, I was
astonished and confused to see that he was black. He
didn’t say anything. He just shook his head in a
right-to-left motion. He turned his head and began to
walk away. I approached other people one by one—
prominent people, leaders in the community, political
figures, pastors, preachers, business owners. All black,
and all too selfish, too afraid, and too complacent to
“practice what they preach.” God forbid that they risk
their comfortable homes to help me. So once again
I was left for dead.
****
[I]n my mind, this imaginary experience was equiva-
lent to a physical attack, a brutal beating. As I shared
this imaginary account with my husband he made a
profound statement: “That this was a modern day
lynching.”
Chapter Eight, entitled “Integrity Is: Who You Are When
No One’s Looking,” describes how Frazier contacted
Madison, the NAACP, and the Black Guardians, in late
2001, for insight on how to defend herself against the
City’s accusations:
In the weeks that followed, I began to feel that the
president of the local NAACP branch was not working
in my best interest. I spoke to him daily over the
phone, and his conversation seemed more centered
around my letting this matter go than fighting for the
truth. “Let’s forget it, and sweep it under the rug.”
No. 07-1944 5
I repeated, “Man, whose side are you on, mine or
theirs?” “I’m trying to get you back to work and put
this behind you,” he said. I replied, “I know damn well
they are all wrong and they are trying to destroy my
life.” He said, “Renatta, they’re willing to make this
go away, but I need your cooperation.” I replied, “Oh,
yeah? Tell them it’s not going away and neither am I.
As a matter of fact, tell them that when they start
talking dollars, then we can talk.”
Later in Chapter Eight, Frazier writes that she met with
a NAACP lawyer to discuss a possible lawsuit against the
City. After the meeting Frazier decided not to hire the
lawyer:
It was then that I made my decision to sever my ties
with the local NAACP branch. I spoke with Carl
Madison on the phone and said, to him, “I do not
believe you are acting in my best interest.” “I am
notifying you at this time that I will no longer consult
with you concerning my case.” Later, I read and heard
that Mr. Madison had decided to drop me. I couldn’t
believe what I was reading and hearing. The Guardians
were outraged. We knew as well as he did that it didn’t
happen like that at all. The severing of the ties had
been done long before he made this statement. Maybe
he planned to run for some political office or was
trying to obtain a politically connected employment
opportunity. Whatever the reason, my respect for
him diminished to nothing.
Following this alleged phone call to Madison, Frazier
“had many other brushes or encounters with him, mostly
6 No. 07-1944
from a distance. However close or far away the encounters
may have been, I couldn’t bring myself to speak to him or
even recognize his presence. ‘Real men don’t lie.’ I thought,
‘real men don’t sell out.’ ”
In 2005, Madison, now a citizen of Ohio, filed this
diversity action against Frazier, Mitchell and Renatta’s
Heart, Inc. (collectively the “Defendants”), complaining
that the fantasy section and above-mentioned statements
in Chapter Eight of the Book amounted to libel and por-
trayed him in a false light. Defendants filed a motion to
dismiss the complaint (or alternatively, for summary
judgment). After reviewing the facts on the record (such
as the respective parties’ affidavits and Frazier’s deposi-
tion testimony), the district court granted summary
judgment for the Defendants, finding that (1) the fantasy
section was fictional and capable of innocent construction,
(2) the descriptions of the events in Chapter Eight were
judgmental opinions, and (3) the phrase “real men
don’t lie,” in the context in which it was used, was per se
defamatory, but not actionable because Madison failed
to establish that the Defendants acted with actual mal-
ice. Madison filed this timely appeal.
I.
Madison argues that (1) the district court erred in finding
that the “imaginary black man” in the fantasy sequence
was capable of innocent construction; (2) statements in
Chapter Eight accuse Madison of “selling out” and lying
for purely selfish reasons (“to run for some sort of political
office or was trying to obtain a politically connected
No. 07-1944 7
employment opportunity”), and that these statements
have injured his reputation within the African-American
community; (3) the statement that Madison was a liar was
not an opinion, but a factual statement concerning Madi-
son; and (4) defamatory statements about Madison, who
is a public figure, were made with actual malice, where
Defendants failed to review any source material while
writing the Book, and Frazier’s purported recollection
of the events was inaccurate.
We review de novo the district court’s decision to grant
summary judgment, construing all the facts and inferences
in favor of Madison. See Republic Tobacco Co. v. North
Atlantic Trading Co., 381 F.3d 717, 726 (7th Cir. 2004).
Summary judgment is appropriate when the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with any affidavits, show that there is
no genuine issue of material fact and the movant is
entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). “The initial burden is on the moving party . . . to
demonstrate that there is no material question of fact with
respect to an essential element of the non-moving party’s
case.” Cody v. Harris, 409 F.3d 853, 860 (7th Cir. 2005). If the
moving party meets this burden, the non-moving party
must submit evidence that there is a genuine issue for
trial. Fed. R. Civ. P. 56(e); Ptasznik v. St. Joseph Hosp., 464
F.3d 691, 694 (7th Cir. 2006). The existence of merely a
scintilla of evidence in support of the non-moving party’s
position is insufficient; there must be evidence on which
the jury could reasonably find for the non-moving party.
Id. We apply the substantive law of Illinois, the state
in which this diversity case was filed. See Global Relief
8 No. 07-1944
Found., Inc. v. New York Times Co., 390 F.3d 973, 981 (7th
Cir. 2004).
Defamation is the publication of any statement that
“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].” Seith
v. Chicago Sun-Times, Inc., 371 Ill.App.3d 124, 308 Ill. Dec.
552, 861 N.E.2d 1117, 1126 (2007) (quoting Bryson v. News
America Publications, Inc., 174 Ill. 2d 77, 220 Ill. Dec. 195, 672
N.E.2d 1207, 1214 (1996)). To prove a defamation claim, the
evidence must show that a defendant made a false state-
ment concerning the plaintiff, that there was an
unprivileged publication of the defamatory statement to
a third party by the defendant, and that the plaintiff
suffered damages as a result. Seith, 308 Ill. Dec. 552, 861
N.E.2d at 1126. Some statements are considered defama-
tory per se because they are “so obviously and materially
harmful” to a plaintiff that his injury may be presumed and
he does not need to prove actual damages to recover,
Bryson, 220 Ill. Dec. 195, 672 N.E.2d at 1214, while other
statements are considered defamatory per quod, which
“requires the plaintiff to allege both extrinsic facts to
establish that the statement is defamatory and special
damages with particularity.” Myers v. Levy, 348 Ill.App.3d
906, 283 Ill. Dec. 851, 808 N.E.2d 1139, 1147 (2004). Madison
relies on the theory of defamation per se.
Illinois recognizes five categories of statements which
are considered actionable per se; two are pertinent to this
case: (1) those imputing an inability to perform or want
of integrity in the discharge of one’s duties of office or
No. 07-1944 9
employment; and (2) those that prejudice a party, or
impute lack of ability, in his or her trade, profession or
business. Bryson, 220 Ill. Dec. 195, 672 N.E.2d at 1214-15.
Although a statement may fit into one of these categories,
this fact, standing alone, “has no bearing on whether
the alleged defamatory statement is actionable,” Hopewell
v. Vitullo, 299 Ill.App.3d 513, 233 Ill. Dec. 456, 701 N.E.2d 99,
102 (1998), because certain factors may render defamatory
statements nonactionable as a matter of law. For ex-
ample, if a defendant’s statements are capable of an
innocent, nondefamatory construction, a plaintiff cannot
maintain an action for defamation per se. See Bryson, 220
Ill. Dec. 195, 672 N.E.2d at 1221. Further, the First Amend-
ment affords protection from liability to a speaker express-
ing an opinion that does not misstate actual facts. See
Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S. Ct. 2695,
111 L. Ed. 2d 1 (1990); Moriarty v. Greene, 315 Ill.App.3d 225,
247 Ill. Dec. 675, 732 N.E.2d 730, 739 (2000). Madison
believes that various statements made in the Book impute
a want of integrity on his part, that as the president of
the local NAACP chapter, he is involved with many
issues of racial equality within the City’s businesses and
public offices, and that the statements prejudiced his
reputation as a hard working advocate for the African-
American community.
A. Fantasy Sequence
Madison argues that the district court erred in finding
that the fantasy sequence was subject to innocent construc-
tion because (1) the sequence directly precedes the next
10 No. 07-1944
chapter which names Madison, and therefore “sets the
stage” for the discussion of Madison’s relationship with
Frazier; and (2) Madison is the only African-American
in the Book portrayed in an unfavorable light. Defendants
argue that the sequence was clearly identified as “fantasy,”
Madison was never identified by name in the fantasy
sequence, and Frazier presented the sequence as fiction
from the outset.
“The so-called ‘innocent construction rule’ in Illinois
requires a court to consider the statement in context and
give the words of the statement, and any implications
arising from them, their natural and obvious meaning.”
Solaia Tech., LLC v. Speciality Publ’g Co., 221 Ill. 2d 558, 304
Ill. Dec. 369, 852 N.E.2d 825, 839 (2006). A statement
that may innocently or reasonably be construed as refer-
ring to a person other than the plaintiff cannot be action-
able per se. Salamone v. Hollinger Int’l, Inc., 347 Ill.App.3d
837, 283 Ill. Dec. 245, 807 N.E.2d 1086, 1089 (2004). While
this rule favors a defendant because a tougher standard
is warranted where damages are presumed, it “does
not require courts to strain to find an unnatural innocent
meaning for a statement when a defamatory meaning is
far more reasonable.” Tuite v. Corbitt, 224 Ill. 2d 490, 310
Ill. Dec. 303, 866 N.E.2d 114, 123 (2007). Our court, as well
as Illinois courts, have said that “[w]hether a statement
is reasonably capable of an innocent construction is a
question of law for the court to decide.” Knafel v. Chicago
Sun-Times, Inc., 413 F.3d 637, 640 (7th Cir. 2005); Kolegas v.
Heftel Broad. Corp., 154 Ill. 2d 1, 180 L. Ed. 2d 307, 607 N.E.2d
201, 207 (1992).
No. 07-1944 11
It is reasonable to read the statements made in the
fantasy sequence and not call into question Madison’s
integrity or his reputation. In the fantasy, Frazier is beaten
and left “to die,” and she approached other people for
help, who were “all black, and all too selfish, too afraid,
and too complacent to ‘practice what they preach.’ ” The
“imaginary scenario” fails to identify Madison, or anyone
else, by name, and therefore is very capable of innocent
construction.
Furthermore, statements that cannot “reasonably [be]
interpreted as stating actual facts” are protected under
the First Amendment. These statements (or “opinions”)
cannot give rise to a cause of action for defamation in the
interest of “provid[ing] assurance that public debate will
not suffer for lack of ‘imaginative expression’ or the
‘rhetorical hyperbole’ which has traditionally added much
to the discourse of our Nation.” Milkovich, 497 U.S. at 20,
110 S. Ct. 2695; see Lifton v. Bd. of Educ. of the City of Chicago,
416 F.3d 571, 579 (7th Cir. 2005) (holding that Illinois law
requires that an allegedly defamatory statement must
contain an objectively verifiable factual assertion); Pease v.
Int’l Union of Operating Engineers Local 150, et al., 208
Ill.App.3d 863, 153 Ill. Dec. 656, 567 N.E.2d 614, 619 (1991)
(“Words that are mere name calling or found to be rhetori-
cal hyperbole or employed only in a loose, figurative
sense have been deemed nonactionable.”). The Illinois
Supreme Court considers several nonexclusive factors
in determining whether a statement constitutes an opin-
ion or factual assertion: (1) whether the statement has a
precise and readily understood meaning; (2) whether the
statement is verifiable; and (3) whether the statement’s
12 No. 07-1944
literary or social context signals that it has factual content.
J. Maki Constr. Co. v. Chicago Reg’l Council of Carpenters, 379
Ill.App.3d 189, 318 Ill. Dec. 50, 882 N.E.2d 1173, 1183 (2008)
(citing Tuite, 310 Ill. Dec. 303, 866 N.E.2d at 121). Whether
a statement is an opinion or fact is a question of law.
Moriarty, 247 Ill. Dec. 675, 732 N.E.2d at 740.
The fantasy sequence purports to be a symbolic represen-
tation of Frazier’s frustration and contempt for the events
that had consumed her life over the previous years. Illinois
law is clear that allegedly defamatory words are to be
interpreted as they appear to be used and according to
the idea they were intended to convey to the reasonable
reader. Bryson, 220 Ill. Dec. 195, 672 N.E.2d at 1217. Clearly
the statements convey to the reasonable reader that Frazier
imagined she had been beaten and needed someone to
come to her assistance; a reasonable reader would perceive
that the “imaginary” event was a reference to her reality—
that she believed she was being persecuted because of
her race and had no one to turn to for help. No reasonable
reader would construe Frazier’s fantasy to have specific
factual content. Frazier did not claim to have been actually
beaten and left for dead. The literary context and setting
in which the fantasy sequence was published leads easily
to the conclusion that the sequence was a dream without
factual support.
We are cognizant that prefatory language does not
control whether statements labeled as “fiction” may be
actionable, Republic Tobacco, 381 F.3d at 729; Bryson, 220
Ill. Dec. 195, 672 N.E.2d at 1221; however even the most
careless reader must perceive that this “fantasy” was no
No. 07-1944 13
more than rhetorical hyperbole. We find that the fantasy
sequence cannot be actionable per se.
B. Chapter Eight
Next, Madison argues that the district court erred in
finding that the statements made in Chapter Eight were not
actionable assertions of fact and were constitutionally-
protected opinions. Madison points to the statements such
as “who’s side are you on, mine or theirs,” and “[m]aybe
he planned to run for some sort of political office or was
trying to obtain a politically connected employment
opportunity,” and argues that these statements are
factual assertions that he was acting on behalf of interests
that did not include Frazier, and thus could not be opin-
ions. We disagree, and find these statements to be vague
and unprovable allegations which do not give rise to a
defamation claim. See Hopewell, 233 Ill. Dec. 456, 701 N.E.2d
at 105 (“[w]e note that in one sense all opinions imply
facts; however the question of whether a statement is
actionable is one of degree . . . [t]he vaguer and more
generalized the opinion the more likely the opinion is non-
actionable as a matter of law.”). Clearly, Frazier was
frustrated that she had parted ways with Madison, how-
ever, as the district court noted, she “wondered about
his motives; she did not state that Madison was in fact
motivated by political concerns.” The very word “maybe”
implicates subjective judgment. Frazier’s speculations fail
to amount to verifiable assertions of fact, lacking precise
and readily understood meaning. See Wilkow v. Forbes, Inc.,
241 F.3d 552, 555 (7th Cir. 2001) (applying Illinois law
14 No. 07-1944
and finding that “[i]f it is plain that the speaker is express-
ing a subjective view, an interpretation, a theory, conjec-
ture, or surmise, rather than claiming to be in possession
of objectively verifiable facts, the statement is not action-
able.”) (quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d
1222, 1227 (7th Cir. 1993)).
C. “Real Men Don’t Lie”
We reach the last statements of the Book that Madison
believes to be defamatory. He contends that the statement
“[r]eal men don’t lie . . . real men don’t sell out” refers to
Madison, and it imputes that (1) he was acting on behalf
of the City instead of Frazier’s; (2) he was incapable
of performing his role at the NAACP with competence
and integrity; and (3) the statements lowered him
in the eyes of the African-American community. Frazier
concedes that she was referring to Madison (and all men
in general) when she made the statement.
In Illinois, to succeed under the relevant categories of
defamation per se in this case, a plaintiff must have been
accused of lacking ability in his trade or doing something
bad in the course of carrying out his job. Cody, 409 F.3d at 857;
Clarage v. Kuzma, 342 Ill.App.3d 573, 276 Ill. Dec. 995, 795
N.E.2d 348, 356 (2003). We have found that statements
deemed to be defamatory per se in Illinois under these
categories have been related to job performance, as op-
posed to attacks related to personal integrity and character.
Cody, 409 F.3d at 856-57; Clarage, 276 Ill. Dec. 995, 795
N.E.2d at 356 (finding accusations of lying to govern-
No. 07-1944 15
ment officials were defamatory per se, where the plaintiff
was not accused of lying to family and friends, but rather
to government officials with whom it was his job to com-
municate honestly); Heying v. Simonaitis, 126 Ill.App.3d 157,
81 Ill. Dec. 335, 466 N.E.2d 1137, 1143 (1984) (statements
made by doctors regarding personality conflicts between
the plaintiff nurse and her fellow employees did not
impugn her ability as a nurse). However, sometimes
personal integrity is so intertwined with job skills, that an
attack upon it could constitute defamation per se. See
Kumaran v. Bortman, 247 Ill.App.3d 216, 186 Ill. Dec. 952,
617 N.E.2d 191, 199 (1993) (holding that a newspaper
article accusing a teacher of filing “scam” lawsuits was
defamatory per se because part of a teacher’s job is to set
a good example and serve as a role model for her students).
Calling Madison a liar and a sell-out to the African-Ameri-
can community, in the context of an ongoing public
battle with the City and its discrimination policies,
imputes a lack of integrity in his duties as NAACP presi-
dent, specifically his involvement with issues of racial
equality within the city’s businesses and public offices.
So to determine whether the statement can be reasonably
interpreted as stating actual facts protected under the
First Amendment, we look at whether the statement has
a precise and readily understood meaning; whether the
statement is objectively verifiable as true or false; and
whether the statement’s literary, social, or public context
signals that it has factual content. Bryson, 220 Ill. Dec. 195,
672 N.E.2d at 1220.
In this context, referring to someone as one who “lies”
has a clearly precise meaning—“to create a false or mis-
16 No. 07-1944
leading impression” or “to make an untrue statement
with intent to deceive.” Merriam–Webster Collegiate
Dictionary (11th ed. 2008) (online at http://www.m-w.com).
In addition, referring to someone as a “sell out” in
this context refers to one who “betrays one’s cause or
associates especially for personal gain.” Id. Frazier’s
statements were made within the context of accusing
Madison of failing to tell the truth about who “dropped”
whom first, and the overall literary context of the Book
represents a professional and personal struggle about false
allegations of misconduct as a police officer, as told
through the eyes of the woman who experienced the
accusations first hand. The Book’s accusations and ac-
counts were directed at the Department and its allegedly
discriminatory hiring practices, Frazier’s involvement in
that controversy, and her belief that Madison and the
NAACP failed to come to her assistance.
The question, however, is whether these statements are
objectively verifiable as true or false. A false assertion of a
fact can be defamatory even when couched within an
apparent opinion or rhetorical hyperbole. Solaia, 304
Ill. Dec. 369, 852 N.E.2d at 840; Dubinsky v. United Airlines
Master Executive Council, 303 Ill.App.3d 317, 236 Ill. Dec.
855, 708 N.E.2d 441, 451 (1999) (finding that calling some-
one a “crook” was not an actionable statement because
it was not made in any specific factual context, and “[o]ne
cannot rely on an assumption that those who heard the
statement were completely apprised of all the develop-
ments in the . . . controversy so as to create a definitive
factual context for the use of the word ‘crook’ ”); see also
Milkovich, 497 U.S. at 18-19, 110 S. Ct. 2695 (finding that
No. 07-1944 17
the phrase “[i]n my opinion, [plaintiff] is a liar” may still
imply a false assertion of fact if the facts on which the
speaker bases his opinion are either incorrect or incom-
plete, or if his assessment of them is erroneous).
We find that the phrase “sell out” is incapable of being
verified as a statement of fact; it is merely an opinion that
Madison betrayed his race. “Free speech is not restricted
to compliments. . . . [M]embers of a free society must be
able to express candid opinions and make personal judg-
ments. And those opinions and judgments may be harsh
or critical—even abusive—yet still not subject the speaker
or writer to civil liability.” Van Duyn v. Smith, 173
Ill.App.3d 523, 123 Ill. Dec. 367, 527 N.E.2d 1005, 1014 (1988)
(citing Sloan v. Hatton, 66 Ill.App.3d 41, 22 Ill. Dec. 783, 383
N.E.2d 259, 260 (1978)).
At first blush, the statement at issue, “real men don’t
lie” seems to be nothing more than a difference of opinion.
Frazier believes Madison lied when he said he cut off ties
with her first; Madison believes he did not lie in making
this statement. However, we must determine whether
the context behind the phrase “real men don’t lie” makes
the statement defamatory per se. In Piersall v. SportsVision of
Chicago, the plaintiff, a well-known sports announcer,
accused the defendant of calling him a liar. The court held
that the general statement that someone is a “liar” without
being put in a context of specific facts, is merely opinion.
230 Ill.App.3d 503, 172 Ill. Dec. 40, 595 N.E.2d 103, 107
(1992). The court reasoned that in order to determine
whether a statement is fact or opinion, a court must
evaluate the totality of the circumstances and should
18 No. 07-1944
consider whether the statement is capable of objective
verification as true or false. Id. Here, the context of the
statement was clear—Frazier stated that she called Madi-
son weeks before the article was published to tell him
that she was no longer interested in his help in the De-
partment’s investigation against her. Insinuating that
Madison lied referred to Madison’s actions or omissions
in response to the events that had taken place, in particu-
lar, the conversation with Frazier that ended the relation-
ship. Frazier was making the case that she was in posses-
sion of objectively verifiable facts—that she called Madison
first—and therefore his assertions were false.
We are willing to accept the fact that Frazier referred to
Madison as a liar, and even to accept that under this
specific context, the statement was defamatory per se. But
even assuming the same, Madison cannot prevail. Madison
concedes that he is a public figure, therefore he cannot
maintain a suit for defamation unless he can prove that the
Defendants’ acted with “actual malice.” A public figure
plaintiff may hold a speaker liable for the damage to
reputation caused by publication of defamatory state-
ments only if he establishes actual malice, that is, he must
show that (1) the utterance was false, and (2) it was made
with knowledge of its falsity or in reckless disregard of
whether it was false or true. Hustler Magazine v. Falwell, 485
U.S. 46, 56, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988); Piersall, 172
Ill. Dec. 40, 595 N.E.2d at 105. Reckless disregard “is not
measured by whether a reasonably prudent man would
have published, or would have investigated before pub-
lishing.” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct.
1323, 20 L. Ed. 2d 262 (1968); Costello v. Capital Cities Commu-
No. 07-1944 19
nications, Inc., 125 Ill. 2d 402, 126 Ill. Dec. 919, 532 N.E.2d
790, 798 (1988). This inquiry is a subjective one—there
must be sufficient evidence to permit the conclusion that
the defendant published defamatory statements despite a
high degree of awareness of probable falsity or entertaining
serious doubts as to its truth. St. Amant, 390 U.S. at 731, 88
S. Ct. 1323; Chicago Dist. Counsel of Carpenters Pension Fund
et al. v. Reinke Insulation Co., 464 F.3d 651, 655 (7th Cir.
2006); Piersall, 172 Ill. Dec. 40, 595 N.E.2d at 105. Where a
factual dispute concerns actual malice, the appropriate
question on summary judgment is whether the evidence
in the record could support a reasonable jury finding
that a plaintiff has shown actual malice by clear and
convincing evidence. Saenz v. Playboy Enterprises, Inc., 841
F.2d 1309, 1317 (7th Cir. 1988) (citing Anderson v. Liberty
Lobby, 477 U.S. 242, 255-56, 106 S. Ct. 2505, 91 L. Ed. 2d 202
(1986)).
Madison believes that the conversation did not occur,
and he was the one that severed ties with Frazier first, due
to her lack of cooperation with the NAACP and their
lawyers. In support of his argument, Madison points to
circumstantial evidence. He posits that other statements
made in the Book were factually inaccurate. For instance,
Frazier gave the wrong hometown of her lawyer, and she
admitted in her deposition that she “may get conversa-
tions mixed up because I talked to [Madison] a lot.”
This evidence does not persuade us, for we fail to see how
it establishes that Frazier lied or acted with reckless
disregard for its truth or falsity, about the particular
conversation in question. Frazier testified that she may
have been unclear as to the order in which her conversa-
20 No. 07-1944
tions with Madison took place, but as far as the content
of the conversation she had when she “dropped” him,
she did not indicate that she was confused or “mixed up”
about that specific conversation.
According to Madison, Frazier “very obvious[ly]
dislike[d]” Madison and her “personal animosity” towards
him supports an inference that she disregarded the accu-
racy of her memory. The Book does not attempt to mask
Frazier’s dislike for Madison; however, without some-
thing more concrete, ill will towards a public plaintiff
cannot provide a sufficient basis for a finding of actual
malice. See Harte-Hanks Commc’ns, Inc. v. Connaughton, 491
U.S. 657, 666-67, 109 S. Ct. 2678, 105 L. Ed. 2d 562 (1989);
Chicago Dist. Council of Carpenters Pension Fund, 464 F.3d at
656; Martin v. State Journal Register, 244 Ill.App.3d 955, 184
Ill. Dec. 197, 612 N.E.2d 1357, 1363 (1993).
Madison argues that Frazier admits that she wrote
the Book “mostly” from memory, failing to review any
source material. But a failure to investigate before pub-
lishing, even when a reasonably prudent person would
have done so, is not sufficient to establish reckless disre-
gard. Harte-Hanks, 491 U.S. at 667, 109 S. Ct. 2678. Instead,
there must be “sufficient evidence to permit the con-
clusion that the defendant in fact entertained serious
doubts as to the truth of his publication.” Id. (quoting St.
Amant, 390 U.S. at 731, 88 S. Ct. 1323).
Madison submits that while Frazier has not admitted
that she doubts her memory of whether or not Frazier
initiated the separation from Madison, these are facts that
have not yet been established because the district court
No. 07-1944 21
granted summary judgment before Madison had an
adequate opportunity to determine the truth of the state-
ments. It is true that a defendant in a defamation action
cannot “automatically insure a favorable verdict by
testifying that he published with a belief that the state-
ments were true.” Catalano v. Pechous, 83 Ill. 2d 146, 50
Ill. Dec. 242, 419 N.E.2d 350, 360 (1981) (citing St. Amant,
390 U.S. at 732, 88 S. Ct. 1323). However, we must first
independently decide whether the evidence in the
record is sufficient to cross the constitutional threshold
that bars the entry of any judgment that is not supported
by clear and convincing proof of “actual malice.” Chicago
Dist. Council of Carpenters Pension Fund, 464 F.3d at 655;
Bose Corp. v. Consumers Union of United States Inc., 466
U.S. 485, 510-11, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984).
After reviewing the entire record, including depositions
of the Defendants and affidavits offered by both parties
and assuming “real men don’t lie” in this particular
context is defamatory per se, we conclude that Madison has
failed to show any genuine issue of material fact as
to whether Frazier doubted her belief that she—not
Madison—initiated the “separation” between the two,
which prompted her to imply that Madison was a liar.
“Charged as we believe we are with considering
the ‘quantum’ of proof required and . . . whether the
evidence is of sufficient ‘caliber or quality’ to meet that
‘quantum,’ ” we find that a reasonable jury would not
find that Madison established actual malice with con-
vincing clarity. See Saenz, 841 F.2d at 1319 (internal cita-
tions omitted).
22 No. 07-1944
Madison also argues that the statements in the Book
support a cause of action for false-light invasion of privacy.
However, because Madison’s unsuccessful defamation
per se claim is the basis of his false-light claim, his
false-light invasion of privacy claim fails as well. See
Muzikowski v. Paramount Pictures Corp., 477 F.3d 899, 907
(7th Cir. 2007).
II.
For the reasons stated above, we A FFIRM the district
court’s grant of the Defendants’ motion for summary
judgment.
W OOD , Circuit Judge, dissenting. Summary judgment
is a procedure that requires strict mental discipline on
the part of both trial and appellate judges. We are not
supposed to evaluate the parties’ evidence to see whose
is the more persuasive. Instead, we must ask only whether
a hypothetical trier of fact—a jury, or a court in a bench
trial—could find in favor of the non-moving party. This
necessarily means that both trial judges and appellate
judges must sometimes reject summary judgment in
favor of a party who (they think) will probably win in
No. 07-1944 23
the final analysis. The line between a case that ought to be
thrown out on summary judgment because there are no
disputed issues of material fact, and one in which material
facts are disputed but that seems like a long shot, can
be blurry.
Here, my colleagues have decided that plaintiff Carl
Madison’s case falls on the former side of that line. See
ante, at 18-21. With respect, I cannot agree with that
assessment. For the reasons that I outline briefly here,
I believe that Madison has introduced evidence of actual
malice that, if believed by the trier of fact, would support
a verdict in his favor. I would therefore reverse the sum-
mary judgment in favor of the defendants and remand
the case for a trial on Madison’s defamation claim.
I focus on actual malice because I agree with much of
the rest of the majority’s analysis. Most of the statements
that Madison challenges in defendant Renatta Frazier’s
book, The Enemy in Blue, could not support a recovery for
him. As the majority explains, the “fantasy sequence” is
just that—an account of an imaginary beating and
its aftermath. No one is identified either by name or
description, and thus it is saved by Illinois’s “innocent
construction” rule. Similarly, the statements in Chapter
Eight of Frazier’s book wondering whose side Madison
was really on, or whether he might run for public office,
are merely statements of opinion. But, as the majority
concedes, the statements accusing Madison of lying (and
perhaps, I would add, even those that blast him for
“selling out”) impugn his integrity, his character, and his
fitness to serve as the head of the local NAACP. The
24 No. 07-1944
majority “accept[s] the fact that Frazier referred to
Madison as a liar,” and it accepts “that under this specific
context, the statement was defamatory per se.” Ante, at 18.
I, too, reach that point in the analysis. Where our paths
diverge is on the final step that Madison must take:
because he is a public figure, he must show that the
defendants acted with actual malice. I believe that he can
do so.
First, Madison points to the four-year gap between the
events recounted in the book and the publication of the
book. Frazier and Mitchell (her son and co-author) both
stated in their depositions that they did no fact-checking
when writing the book and used no outside source mate-
rial. They relied only on Frazier’s memory and did nothing
to ensure the accuracy of her recollections, nor did they
follow up on her assumptions to find out if what she
suspected had come to pass. Somewhat inconsistently,
Frazier also stated that she made phone calls to certain
people to verify certain pieces of information, but she
admitted that she never did anything of the sort with
respect to what she published about Madison. A jury
could consider it reckless disregard of the truth to allow
four years to elapse without ever checking to see
whether this kind of inflammatory statement about
another person is indeed true. See Catalano v. Pechous,
419 N.E.2d 350, 360-61 (Ill. 1980) (finding liability where
the defendant was himself “the original source of the
defamatory statement” and where the defendant “made
no inquiry to ascertain whether it was his inference
rather than another which was the correct one to draw”).
No. 07-1944 25
The fact that Frazier had the presence of mind to check
facts relating to certain people, but not Madison, only
increases the reasonableness of an inference that she
recklessly disregarded the truth in what she wrote
about Madison.
Second, Frazier stated in her deposition that she did not
recall the details of her conversations with Madison
(such as who said what or when), yet she said at other
points in the deposition that she used direct quotes when
recounting those conversations in the book and that her
intent was to convey the conversations just as they had
happened. In other words, her testimony was contra-
dictory, both professing doubt about the accuracy and
completeness of her memory and claiming that her
memory was good enough to summon up direct quotes
from her talks with Madison. The most frequent phrases
that Frazier uttered during her deposition were that she
“can’t remember” or “can’t recall” something. This is odd
for a woman who claims to have written an entire book
based solely on her recollection. Her inconsistency about
what she remembered could lead a jury to infer that she
was lying about her ability to remember the conversations
completely and accurately, or that she recklessly disre-
garded whether her recollections were true.
Third, the book contains several inaccuracies. For
example, Madison calls our attention to incorrect informa-
tion in the book about a lawyer whom the NAACP hired
to assist Frazier. More significantly, a book reviewer
(who, as it happens, was treated favorably in Frazier’s
book) pointed out in a published review a litany of mis-
26 No. 07-1944
statements in the book, which ranged from careless
errors to vindictive mischaracterizations. The reviewer
wrote, “I know for a fact that Frazier got some of her
facts wrong—most by accident but a few because of her
belief that she was the victim of a grand conspiracy.” She
added that the book “could have benefited [sic—and irony
noted] from a spell check, a grammar check, and, espe-
cially, a reality check. People she likes get special treat-
ment (in her book, I’m young and skinny; in real life, I’m
aged and gelatinous), and people she dislikes get body-
slammed (Carl Madison left town just in time).” This, too,
supports an inference that Frazier knew that she was
distorting the truth in a way that was malicious toward
her “enemies.”
Fourth, and as the majority points out, Frazier had a
“very obvious dislike” for Madison, ante, at 20, and her
personal animosity toward him is painfully apparent,
both in the book and in the rest of the record. While not
dispositive, the extent of Frazier’s negative feelings
toward Madison buttresses the other available evidence
and lends further support to an inference that Frazier
recklessly disregarded the truth about him when
writing her memoir.
When everything is taken together (as a trier of fact
would be required to view it), Madison has produced
enough evidence to support a reasonable inference that
the defendants acted with actual malice when writing
and publishing The Enemy in Blue. This is a classic jury
issue, and the record before us contains sufficient evi-
dence to allow a jury to decide it. I respectfully dissent
No. 07-1944 27
from my colleagues’ decision to end Madison’s case at
this juncture.
8-22-08