Meanith Huon v. Nick Denton ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3049
MEANITH HUON,
Plaintiff-Appellant,
v.
NICK DENTON, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CV 3054 — John J. Tharp, Jr. Judge.
____________________
ARGUED MAY 31, 2016 — DECIDED NOVEMBER 14, 2016
____________________
Before EASTERBROOK and WILLIAMS, Circuit Judges, and
YANDLE, District Judge. ∗
WILLIAMS, Circuit Judge. Meanith Huon sued the website
Above the Law for implying that he was a rapist in an article
published on the same day he was acquitted of rape. When
∗ Of the Southern District of Illinois, sitting by designation.
2 No. 15-3049
another website, Jezebel (which was owned by Gawker at
the time), reported on the lawsuit in an article entitled, “Ac-
quitted Rapist Sues Blog for Calling Him Serial Rapist,” Hu-
on added Gawker to the lawsuit. He accused Gawker of def-
amation, false light invasion of privacy, and intentional in-
fliction of emotional distress with regard to (i) the article’s
headline, (ii) its description of Huon’s criminal trial and sub-
sequent complaint against Above the Law, and (iii) certain
comments posted by a number of anonymous third-party
users (at least some of whom Huon claimed were Gawker
employees). The district judge granted Gawker’s motion to
dismiss as to all of Huon’s claims, and later denied him
leave to file a fifth amended complaint. Huon appeals both
decisions.
We conclude that the district judge correctly rejected Hu-
on’s defamation claim as to the article. The title can be con-
strued innocently when viewed with the rest of the article as
a whole, and the article’s text fairly reported on both Huon’s
criminal trial and his initial complaint against Above the
Law. In addition, the district judge did not err in denying
Huon leave to file a fifth amended complaint, since Huon
had ample opportunity to cure any deficiencies.
However, we reverse and remand the district judge’s re-
jection of Huon’s defamation claim as to the third-party user
comments. Huon adequately alleged that Gawker helped
create and develop at least some of the comments, and one
of the comments constitutes defamation under Illinois law.
We also reverse and remand the district judge’s rejection of
Huon’s false-light and intentional-infliction claims, which
were dismissed against Gawker based solely on the rejection
of his defamation claims. Since part of his defamation claim
No. 15-3049 3
can proceed, so too can his false-light and intentional-
infliction claims.
I. BACKGROUND
In July 2008, Plaintiff Meanith Huon was charged with
criminal sexual assault in connection with a sexual encoun-
ter he had with Jane Doe. Huon pleaded not guilty, claimed
that the encounter was consensual, and was acquitted by a
jury. On the day Huon was acquitted, the legal website
Above the Law (ATL) published an article entitled, “Rape
Potpourri” (ATL article). The article discussed two “rape
stories,” one of which concerned Jane Doe’s allegations and
Huon’s opening statement at his criminal trial. At some
point after its initial publication, the ATL article was updat-
ed to note that Huon was acquitted.
One year after publication of the ATL article, Huon filed
suit against ATL, alleging defamation, intentional infliction
of emotional distress, and false light invasion of privacy.
Several days later, the website Jezebel published an article
entitled, “Acquitted Rapist Sues Blog for Calling Him Serial
Rapist” (Jezebel article). The article superimposed Huon’s
2008 mugshot onto the ATL article and briefly explained the
circumstances of Huon’s criminal trial and subsequent law-
suit against ATL. The article’s title was later changed to read,
“Man Acquitted of Sexual Assault Sues Blog for Calling Him
Serial Rapist” (emphasis added), but otherwise remained the
same. The Jezebel article generated over 80 comments from
anonymous third-party users.
Huon amended his complaint in response to the publica-
tion of the Jezebel article, adding several new allegations
and nearly a dozen new defendants, including Irin Carmon,
4 No. 15-3049
the Jezebel article’s author; Gawker Media, Jezebel’s then-
owner; and Nick Denton, Gawker’s founder (Gawker De-
fendants 1). After Huon amended his complaint several addi-
tional times to cure certain jurisdictional defects, the Gawker
Defendants moved to dismiss Huon’s fourth amended com-
plaint.
The district judge granted the motion in full. He rejected
Huon’s defamation claims as to the third-party user com-
ments, finding insufficient allegations that Gawker employ-
ees had actually authored the comments, and concluding
that the Communications Decency Act protects online pub-
lishers like Gawker from third-party comments. The judge
also dismissed Huon’s defamation per se claim, finding that
the Article’s headline was protected by the innocent con-
struction rule and its text by the fair report privilege, and
concluded that Huon had failed to plead the requisite special
damages to maintain his defamation per quod claim. In addi-
tion, the judge dismissed Huon’s false-light and intentional-
infliction claims, noting that the failure of his defamation
claims was dispositive. The district judge later denied Hu-
on’s motion to reconsider and for leave to file a fifth amend-
ed complaint. This appeal followed. 2
1 Following oral argument, we were notified that Defendants Gawk-
er Media LLC and Nick Denton had separately filed petitions for bank-
ruptcy protection under Chapter 11. Counsel for both Defendants tells us
that the automatic stays in both bankruptcy proceedings have been mod-
ified so as to permit us to render a decision. We proceed accordingly.
2The ATL Defendants separately moved to dismiss Huon’s fourth
amended complaint. After the district judge granted their motion in part
and denied it in part, the ATL Defendants and Huon settled. The ATL
Defendants are not parties on appeal.
No. 15-3049 5
II. ANALYSIS
We review de novo the district judge’s grant of the
Gawker Defendants’ motion to dismiss for failure to state a
claim. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.
2008). A complaint need only contain enough factual content
to “state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2009). While “de-
tailed factual allegations” are not required, the complaint
must contain more than mere “labels and conclusions” and
“a formulaic recitation of the elements of a cause of action.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal
quotation marks omitted). We review the complaint in the
light most favorable to Huon and accept all well-pleaded
facts as true. Tamayo, 526 F.3d at 1081.
A. Jezebel Article’s Title and Content Defamation
Claim Properly Dismissed
A statement is defamatory under Illinois law if “it tends
to harm a person’s reputation to the extent that it lowers that
person in the eyes of the community or deters others from
associating with that person.” Tuite v. Corbitt, 866 N.E.2d
114, 121 (Ill. 2006). The per se designation applies if the
statement’s “defamatory character is obvious and apparent
on its face and injury to the plaintiff’s reputation may be
presumed.” Id. A statement will usually constitute defama-
tion per se if it falls into one of five categories; the only one at
issue here concerns “statements imputing the commission of
a crime.” Id.On appeal, Huon contends that two aspects of the Jezebel
article constituted defamation per se: (1) the headline and ad-
jacent graphic containing his mug shot, to which the district
6 No. 15-3049
judge applied the innocent construction rule; and (2) the ar-
ticle’s description of the criminal trial and subsequent civil
suit, to which the judge applied the fair report privilege. We
consider each issue in turn. 3
1. Innocent Construction Rule Applies to Headline
and Graphic
A statement that is defamatory per se will not be actiona-
ble “if it is reasonably capable of an innocent construction.”
Green v. Rogers, 917 N.E.2d 450, 463 (Ill. 2009). Under this
rule, a court must give the defendant’s words their natural
and obvious meaning, after having considered “both the
substance of defendant’s alleged statements and the context
in which they allegedly were made.” Id. at 464. “[I]f a state-
ment is capable of two reasonable constructions, one defam-
atory and one innocent, the innocent one will prevail.”
Muzikowski v. Paramount Pictures Corp., 322 F.3d 918, 925 (7th
Cir. 2003) (citing Anderson v. Vanden Dorpel, 667 N.E.2d 1296,
1302 (Ill. 1996)). Nevertheless, “when the defendant clearly
intended and unmistakably conveyed a defamatory mean-
ing, a court should not strain to see an inoffensive gloss on
the statement.” Green, 917 N.E.2d at 463.
Here, Huon maintains that the Jezebel article’s headline,
“Acquitted Rapist Sues Blog For Calling Him Serial Rapist,”
is defamatory because it imputes to him the commission of a
crime (rape), and is not subject to an innocent construction.
3 Huon’s fourth amended complaint also alleges defamation per
quod. But since Huon does not press this claim on appeal, we consider it
forfeited. See, e.g., Milligan v. Bd. of Trs. of S. Ill. Univ., 686 F.3d 378, 386
(7th Cir. 2012); United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir.
1991).
No. 15-3049 7
According to Huon, the most reasonable meaning of the
headline is that Huon has committed rape at least once, and
that the word “acquitted,” by itself, does not controvert this
false insinuation.
We need not decide whether the headline itself defamed
Huon because, even if it did, it is subject to an innocent con-
struction. As the Gawker Defendants correctly note, head-
lines must be considered alongside the accompanying article
and not in isolation. See, e.g., Harrison v. Chi. Sun-Times, Inc.,
793 N.E.2d 760, 772 (Ill. App. Ct. 2003) (“As a general rule in
applying the innocent construction rule, a newspaper head-
line and the text of the article to which it refers are to be con-
sidered as one document and read together as a whole.”);
accord Solaia Tech., LLC v. Specialty Pub. Co., 852 N.E.2d 825,
846 (Ill. 2006); Seith v. Chi. Sun-Times, Inc., 861 N.E.2d 1117,
1127 (Ill. App. Ct. 2007); cf. Tuite, 866 N.E.2d at 127–28 (ex-
amining allegedly defamatory statements in the context of
the entire book in which they were published); Bryson v.
News Am. Publ’ns, Inc., 672 N.E.2d 1207, 1217 (Ill. 1996) (ex-
amining allegedly defamatory word in magazine article
alongside the adjacent sentences).
Huon argues that “[h]eadlines alone may be enough to
make libelous per se an otherwise innocuous article,” but the
small handful of cases he relies on are unhelpful. All of them
involve the laws of states other than Illinois, and many are
distinguishable on their facts insofar as the allegedly defam-
atory front-page headline was not next to the underlying ar-
ticle. See Solano v. Playgirl, Inc., 292 F.3d 1078, 1083–84 (9th
Cir. 2002) (emphasizing that “the magazine is displayed for
sale in plastic wrapping, making the cover the key to what a
reader can expect to find inside the magazine”); Kaelin v.
8 No. 15-3049
Globe Commc’ns Corp., 162 F.3d 1036, 1041 (9th Cir. 1998)
(concluding that a reasonable jury could find that the maga-
zine article “was too far removed [17 pages] from the cover
headline to have the salutary effect that [defendant]
claims”). Here, in contrast, the complaint indicates that the
headline and article were directly adjacent to one another.
The content of the underlying Jezebel article makes clear
that the only instance of alleged rape was the one Huon was
acquitted of. Indeed, one need only read the first sentence to
see that this is so: “A Chicago man who was acquitted on a
sexual assault charge is suing the legal blog Above The Law
for implying that he’s a serial rapist.” And two paragraphs
later, after having discussed Huon’s acquittal, the article ex-
plains that ATL “mistakenly believes that news accounts of
the same incident are different incidents that should have
tipped the woman off that Huon was a serial offender.”
(emphasis added).
Huon also contends the graphic containing his mugshot
and the phrases “Above the Law” and “Rape Potpourri”
constitutes defamation per se. We disagree. Above the Law
was the name of the website that Huon had sued, “Rape
Potpourri” was the headline of the ATL article, and the
mugshot illustrated the subject matter at issue. So the inno-
cent construction rule applies to the Jezebel article’s headline
and graphic.
2. Fair Report Privilege Applies to Discussion of
Criminal Trial and Civil Lawsuit
Under Illinois law, a defamatory statement is not action-
able if it falls within the fair report privilege, which applies
to statements that are “complete and accurate or a fair
No. 15-3049 9
abridgment of [an] official proceeding.” Solaia Tech., LLC v.
Specialty Pub. Co., 852 N.E.2d 825, 843–44 (Ill. 2006). Illinois
courts have repeatedly stressed the importance of a robust
privilege, as it “promotes our system of self-governance by
serving the public’s interest in official proceedings, includ-
ing judicial proceedings.” Id. at 842; see also, e.g., Lulay v. Peo-
ria Journal-Star, Inc., 214 N.E.2d 746, 747–48 (Ill. 1966) (“The
right to speak and print about such actions of government is
well established; denial of this right would be a serious in-
fringement of both State and Federal constitutional guaran-
tees of free speech and press.”).
A report constitutes a fair abridgment if it conveys “a
substantially correct account” to readers. Solaia Tech., 852
N.E.2d at 844–45 (citation omitted). Because the summary of
a legal proceeding “is bound to convey a somewhat different
impression than the … proceeding itself,” an abridgment is
typically unfair only if it “significantly change[s] the defa-
mation appearing in the governmental or public proceed-
ing.” O’Donnell v. Field Enters., Inc., 491 N.E.2d 1212, 1217
(Ill. App. Ct. 1986). A determination “is made by comparing
the gist or sting of the alleged defamation in the official re-
port or proceedings with the gist or sting in the news ac-
count.” Harrison v. Chi. Sun-Times, Inc., 793 N.E.2d 760, 773
(Ill. App. Ct. 2003). Contrary to Huon’s contention, the fair
report privilege typically raises a question of law, not a ques-
tion of fact, and is not concerned with the defendant’s al-
leged subjective intent. E.g., Solaia Tech., 852 N.E.2d at 842–
43; Missner v. Clifford, 914 N.E.2d 540, 551 (Ill. App. Ct. 2009).
Huon argues that the privilege should not apply to the
following sentence from the Jezebel article concerning his
criminal trial: “Huon’s version was that it was a consensual
10 No. 15-3049
encounter, and partly on the strength of the bartender’s tes-
timony that the woman had been drinking and asked where
to go to have fun, the jury believed him.” It bears noting,
however, that the district judge did not apply the fair report
privilege to this sentence, concluding instead that it did not
amount to defamation. See Huon v. Breaking Media, LLC, 75 F.
Supp. 3d 747, 768 (N.D. Ill. 2014) (statement “bolster[ed] ra-
ther than defame[d] his reputation” because it suggested
that “the jury found reason to discredit Jane Doe’s claims
and therefore acquitted Huon of the charges”).
We agree with the Gawker Defendants that the fair re-
port privilege applies to the Article’s references to consent
and the bartender’s testimony, since they appear to accurate-
ly capture the gist of what occurred at the trial. Huon’s
counsel emphatically and repeatedly referenced consent
during opening statements, and the multiple facts that Huon
points to as grounds for his acquittal, taken together, dove-
tail with a consent-focused defense strategy. In addition,
Huon makes no attempt to explain how the statement about
the bartender’s testimony mischaracterizes what she actually
said at trial.
We cannot, however, easily dismiss Huon’s argument
about the Article’s statement about the jury’s beliefs—
especially since there is no indication as to what swayed any
particular juror’s vote. The Gawker Defendants insist that
the statement is nothing more than a non-actionable opinion,
but we are dubious. The statement does not appear to be the
kind of subjective claim that courts applying Illinois law
have typically viewed as non-actionable, see, e.g., Wynne v.
Loyola Univ., 741 N.E.2d 669, 676 (Ill. App. Ct. 2000) (explain-
ing that non-actionable statements typically contain no “ob-
No. 15-3049 11
jectively verifiable factual assertion”), and the article’s con-
text more closely resembles a news article than an editorial.
However, we need not decide the issue, since we agree with
the district judge that the statement could not have injured
Huon’s reputation in the eyes of the public. (If anything, the
statement improved it.)
Huon also maintains that the Jezebel article failed to cap-
ture the gist of his lawsuit against the ATL Defendants in
two ways. First, he faults the article for omitting the fact that
the ATL Defendants called him a rapist on the same day he
was acquitted. However, we fail to see how omitting this
fact, by itself, caused the gist to be inaccurate. The Jezebel
article accurately conveyed the crux of Huon’s complaint
against the ATL Defendants—that ATL erroneously indicat-
ed Huon had committed multiple sexual assaults, and that
he was acquitted in the only case brought against him—and
Huon makes no attempt to explain why omitting the tem-
poral relationship between Huon’s acquittal and publication
of the ATL article misrepresents the nature of his lawsuit. In
essence, Huon complains that the Jezebel article omitted a
factual allegation of only modest significance; yet without
such omissions, abridgments of legal proceedings could
never occur.
Second, Huon faults the Jezebel article for republishing
the ATL article’s defamatory comments. See Brennan v. Kad-
ner, 814 N.E.2d 951, 970 (Ill. App. Ct. 2004) (“The republisher
of a defamatory statement made by another is himself liable
for defamation even if he gives the originator’s name.”). But
the Jezebel Article did not simply parrot the rape-based alle-
gations in the ATL article; rather, it summarized Huon’s crit-
icism of these allegations, and, if anything, indicated that the
12 No. 15-3049
criticism was founded, insofar as it noted that Huon was
“acquitted” and that the ATL article was based on a “mis-
taken[] belie[f].” So the fair report privilege applies to the
Jezebel article’s statements regarding Huon’s criminal trial
and subsequent lawsuit against ATL.
B. District Judge Erred in Dismissing Defamation
Claim Involving Third-Party User Comments
1. Communications Decency Act Not Applicable
The Communications Decency Act states, “[n]o provider
or user of an interactive computer service shall be treated as
the publisher or speaker of any information provided by an-
other information content provider.” 47 U.S.C. § 230(c)(1); see
also id. § 230(f)(3) (defining “information content provider”
as “any person or entity that is responsible, in whole or in
part, for the creation or development of information provid-
ed through the Internet or any other interactive computer
service”). This means that for purposes of defamation and
other related theories of liability, a company like Gawker
cannot be considered the publisher of information simply
because the company hosts an online forum for third-party
users to submit comments. See, e.g., Chi. Lawyers’ Comm. for
Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666,
671–72 (7th Cir. 2008) (concluding that Craigslist “is not the
author of the ads and could not be treated as the ‘speaker’ of
the posters’ words, given § 230(c)(1)”); Doe v. GTE Corp., 347
F.3d 655, 658–59 (7th Cir. 2003) (explaining that “entities that
know the information’s content do not become liable for the
sponsor’s deeds,” and noting that § 230(c) preempts contrary
state law).
No. 15-3049 13
A company can, however, be liable for creating and post-
ing, inducing another to post, or otherwise actively partici-
pating in the posting of a defamatory statement in a forum
that that company maintains. See Chi. Lawyers’ Comm., 519
F.3d at 671; see also Fair Hous. Council of San Fernando Valley v.
Roommates.Com, LLC, 521 F.3d 1157, 1166–67 (9th Cir. 2008)
(en banc) (concluding that a website was not a “passive
transmitter of information provided by others” but instead
helped develop the information by “requiring subscribers to
provide the information as a condition of accessing its ser-
vice, and by providing a limited set of pre-populated an-
swers”); FTC v. Accusearch Inc., 570 F.3d 1187, 1199–1200
(10th Cir. 2009) (concluding that a website developed the in-
formation by “solicit[ing] requests” for the information and
then “pa[ying] researchers to obtain it”).
Huon argues that the Act is inapplicable here because
Gawker’s comments forum was not a mere passive conduit
for disseminating defamatory statements. Rather, Gawker
itself was an information content provider, insofar as the
Gawker Defendants: (1) “encouraged and invited” users to
defame Huon, through selecting and urging the most defa-
mation-prone commenters to “post more comments and con-
tinue to escalate the dialogue”; (2) “edited,” “shaped,” and
“choreographed” the content of the comments that it re-
ceived; (3) “selected” for publication every comment that
appeared beneath the Jezebel article; and (4) employed indi-
viduals who authored at least some of the comments them-
selves.
The district judge concluded that these arguments failed
to plausibly state a claim for relief. But we see nothing
farfetched about Huon’s factual allegations—in particular,
14 No. 15-3049
his contention that one or more of the comments were au-
thored by Gawker employees. Rather than asserting one or
two standalone factual allegations concerning Gawker’s con-
trol over comments, Huon’s fourth amended complaint de-
votes over four pages to detailing Gawker’s alleged activi-
ties. Critically, the complaint hints at why Gawker employ-
ees might have anonymously authored comments, alleging
that increasing the defamatory nature of comments can in-
crease traffic to Gawker’s websites, which can in turn en-
hance the attractiveness of Gawker’s commenting system for
prospective advertisers. In doing so, the complaint quotes
several passages from a Reuters article that explains precise-
ly how Gawker was planning to “monetize” comments, and
why advertisers might find this commenting system appeal-
ing.
The Gawker Defendants may well be correct in contend-
ing that none of Huon’s various allegations actually oc-
curred, but this doesn’t mean that the allegations are so im-
plausible as to warrant dismissal under Rule 12(b)(6). See
Twombly, 550 U.S. at 555 (explaining that a complaint need
only plead enough facts to “raise a right to relief above a
speculative level, on the assumption that all the allegations
in the complaint are true (even if doubtful in fact)” (footnote
and citations omitted)); id. at 556 (“[A] well-pleaded com-
plaint may proceed even if it strikes a savvy judge that actu-
al proof of those facts is improbable, and that a recovery is
very remote and unlikely.” (citation and internal quotation
marks omitted)). Discovery is the proper tool for Huon to
use to test the validity of his allegations, and if he is unable
to marshal enough facts to support his claim the Gawker De-
fendants can move for summary judgment. Moreover, to the
extent Gawker and other publishers are concerned that our
No. 15-3049 15
ruling will result in a flood of frivolous lawsuits, we remind
them that sanctions are available under Federal Rule of Civil
Procedure 11 if it is determined that a plaintiff’s factual alle-
gations were plead with improper purpose, are frivolous, or
were known by plaintiff’s counsel to be lacking any factual
basis.
The Gawker Defendants proffer several arguments in
support of the Act’s application here, but none are availing.
For example, they argue that Huon’s allegations amount to
the kind of “traditional publishing activities” that other
courts of appeals have found warrant protection under the
Act. See, e.g., Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th
Cir. 1997) (Under § 230, “lawsuits seeking to hold a service
provider liable for its exercise of a publisher’s traditional ed-
itorial functions—such as deciding whether to publish,
withdraw, postpone or alter content—are barred.”); accord
Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 18–20 (1st
Cir. 2016); Jones v. Dirty World Entm’t Recordings LLC, 755
F.3d 398, 407 (6th Cir. 2014). But we need not wade into that
debate, since Huon has adequately pleaded that at least
some of the allegedly defamatory comments were authored
by Gawker employees—thus making Gawker an “infor-
mation content provider” under § 230(f).
In addition, the Gawker Defendants argue that Huon’s
allegation that the Defendants induced the comments is be-
lied by Gawker’s terms of use for commenters, which,
among other things, prohibited the posting of “harassing,
defamatory or libelous material.” But the mere fact that a
terms-of-use statement exists does not establish that all
comments complied with it.
16 No. 15-3049
The Gawker Defendants also argue that Huon failed to
plead facts plausibly establishing that Gawker authored the
allegedly defamatory comments. As discussed above, how-
ever, there is nothing implausible about this allegation, and
we reject the Gawker Defendants’ invitation to interpret
Rule 8, Twombly, and Iqbal as requiring more. Indeed, poten-
tially meritorious claims could be prematurely and improp-
erly dismissed if we were to accept the Gawker Defendants’
position, since the information necessary to prove or refute
allegations like Huon’s is typically available only to defend-
ants. Cf. Brown v. Budz, 398 F.3d 904, 914 (7th Cir. 2005)
(“Where pleadings concern matters peculiarly within the
knowledge of the defendants, conclusory pleading on ‘in-
formation and belief’ should be liberally viewed.” (citation
and internal quotation marks omitted)).
2. One Comment Is Defamatory
The fact that Huon has plausibly alleged that Gawker
employees created the defamatory comments, by itself, does
not allow him to press forward with his defamation per se
claim; the comments must actually constitute defamation.
We have already discussed the general principles of defama-
tion per se under Illinois law. But given the fact that the
statements at issue were shared in a comments forum, a brief
discussion of the distinction between actionable factual as-
sertions and non-actionable opinions is in order.
Opinions that do not misstate actual facts are protected
by the First Amendment and thus non-actionable. E.g., Madi-
son v. Frazier, 539 F.3d 646, 653 (7th Cir. 2008) (citing Milko-
vich v. Lorain Journal Co., 497 U.S. 1, 20 (1990)); Moriarty v.
Greene, 732 N.E.2d 730, 739 (Ill. App. Ct. 2000)). Illinois
courts consider the following three factors in differentiating
No. 15-3049 17
between factual assertions and opinions: “(1) whether the
statement has a precise and readily understood meaning; (2)
whether the statement is verifiable; and (3) whether the
statement’s literary or social context signals that it has factu-
al content.” J. Maki Const. Co. v. Chi. Reg’l Council of Carpen-
ters, 882 N.E.2d 1173, 1183 (Ill. App. Ct. 2008). Notably,
“[w]ords that are mere name calling or found to be rhetorical
hyperbole or employed only in a loose, figurative sense have
been deemed nonactionable.” Pease v. Int’l Union of Operating
Eng’rs Local 150, 567 N.E.2d 614, 619 (Ill. App. Ct. 1991); see
also Milkovich, 497 U.S. at 20 (statements that are not reason-
ably understood as stating actual facts should not be action-
able, in order to ensure 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”).
Here, most—but not all—of the comments do not consti-
tute defamation per se. Some comments are not defamatory
because they do not directly concern Huon himself, but in-
stead relate to acquittal and guilt more generally. For exam-
ple:
SarahMc:
Just because a man is acquitted of rape does
not mean he did not commit rape. That a
jury would decide “not guilty” does not
magically erase what he did--if he did, in
fact, rape someone. The vast majority of
rapists are never convicted of rape. Does
that make them not rapists?
Dinosaurs and Nachos, girlfriend!:
18 No. 15-3049
Innocent until proven guilty is a widely
misunderstood concept. It basically means
that the mere fact that someone is charged
with a crime is not itself evidence that the
person committed a crime.
Then you go to court. In court, there will be
evidence presented. This evidence is where
an actual, legal determination is made. No-
body is declared “innocent” in a court of
law, they are found guilty or not guilty.
“Not guilty” is absolutely not the same
thing as “innocent” from a legal standpoint.
Those words do not mean the same thing in
the world of law. “Innocent until proven
guilty” is merely a concept for laymen to
try to keep their non-lawyer brains from
jumping to (nonlegal) conclusions.
Other comments amount to hyperbole that cannot be rea-
sonably understood as asserting objectively verifiable facts.
For example:
SorciaMacnasty:
Nevermind [sic] “serial rapist,” he sounds
like a foreal [sic] crazy person.
Still other comments, while referencing certain alleged facts
surrounding Huon’s criminal trial, do not directly accuse
him of committing a crime and are better classified as non-
actionable opinions—specifically, a rhetorical decrying of
general notions of “rape culture” and “victim blaming.” For
example:
No. 15-3049 19
cool_as_KimDeal:
Well shit! I didn’t know kicking back at a
bar and asking where I should go to have
fun meant that I hereby consent to any and
all sexual activity, with anybody, with this
bartender here as my witness. Can I sign
away my right to consent here on my bar
tab? Okay, great.
JadeSays:
Weird. I didn’t know “where do I go to
have fun” meant the same thing as “where
do I go to get raped.” It’s great that that ju-
ry made that clear to me, otherwise I could
get myself in some sticky situations like
apparently accidentally begging to be
raped.
AWE. SOME.
rachel723 (in reply to JadeSays’s comment):
you know it’s women like you who don’t
understand the rules that make the rest of
us ladies look bad.
I’m glad you learned before you actually
got raped not to complain now if you do,
you were asking for it!!
/sarcasm
HeartRateRapid:
Yea, all those crazy bitches going to the
cops and lying about being raped. Except
20 No. 15-3049
that false reports for stolen cars are more
common. False rape reports make up less
than 3% of all reported rapes, and as I’m
sure you know, it horrendously underre-
ported.
Only the following comment qualifies as defamation per
se under Illinois law:
vikkitikkitavi:
She jumped out of a moving car, leaving
her shoes and purse behind and ran bare-
foot through a cornfield and pounded on a
stranger’s door to help her?
Fuck this “he’s been acquitted” noise. He’s
a rapist alright, so we may as well call him
one.
This comment unequivocally accuses Huon of committing a
crime (rape), and nothing in its context suggests it is more
appropriately viewed as mere name-calling or stylistic exag-
geration. So Huon’s defamation per se claim as to this com-
ment may proceed.
C. False Light Invasion of Privacy and Intentional In-
fliction of Emotional Distress Claims Improperly
Rejected
The district judge rejected Huon’s false-light and inten-
tional-infliction claims based solely on the dismissal of Hu-
on’s defamation claims. It appears that this tethering is con-
sistent with Illinois law. See Madison v. Frazier, 539 F.3d 646,
659 (7th Cir. 2008) (When an “unsuccessful defamation per se
claim is the basis of [a plaintiff’s] false-light claim, his false-
No. 15-3049 21
light invasion of privacy claim fails as well.”). But that rea-
soning no longer holds, since Huon’s defamation per se claim
as to one third-party user comment was improperly dis-
missed. And because the false-light and intentional-infliction
claims have not been adequately briefed on appeal, we re-
verse the dismissal of those claims and remand for further
proceedings.
D. No Error in Denying Motion for Leave to File Fifth
Amended Complaint
Finally, Huon argues that the district judge erred in
denying him leave to file a fifth amended complaint to cure
certain alleged deficiencies relating to his defamation per
quod claim. Federal Rule of Civil Procedure 15(a)(1) instructs
that courts should freely give plaintiffs leave to amend their
complaints “when justice so requires.” However, district
judges have “broad discretion” to deny leave to amend,
“where there is undue delay, bad faith, dilatory motive, re-
peated failure to cure deficiencies, undue prejudice to the
defendants, or where the amendment would be futile.” Arre-
ola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008). “We review a
district court’s denial of leave to amend for abuse of discre-
tion and reverse only if no reasonable person could agree
with that decision.” Schor v. City of Chi., 576 F.3d 775, 780
(7th Cir. 2009).
Huon has not satisfied this high bar. The district judge
explained that in each of his previously amended com-
plaints, Huon had added new factual and legal allegations,
added or removed defendants, or revised certain statements
in an attempt to cure jurisdictional deficiencies. In addition,
the judge emphasized that the modifications in the proposed
complaint could have been made earlier, since they purport
22 No. 15-3049
to cure deficiencies highlighted in the Defendants’ motions
to dismiss Huon’s second amended complaint. Why Huon
did not modify his third or fourth amended complaints ac-
cordingly remains a mystery. So the district judge did not err
in finding that Huon had ample opportunity to plead his
claims, and justice does not require an additional bite of the
apple. See Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d
328, 347–48 (7th Cir. 2012) (finding no abuse of discretion in
denying leave to amend where plaintiffs had already had
three opportunities to state a claim); Emery v. Am. Gen. Fin.,
Inc., 134 F.3d 1321, 1322–23 (7th Cir. 1998) (same).
III. CONCLUSION
The judgment of the district court is AFFIRMED in part and
REVERSED in part, and the case is REMANDED for proceedings
consistent with this opinion.