Hadley v. Doe ( 2014 )

Illinois Official Reports
Appellate Court
Hadley v. Subscriber Doe, 2014 IL App (2d) 130489Appellate Court BILL HADLEY, Plaintiff-Appellee, v. SUBSCRIBER DOE, a/k/a
Caption Fuboy, Whose Legal Name Is Unknown, Defendant-Appellant.
District & No. Second District
Docket No. 2-13-0489
Filed May 8, 2014
Modified upon
denial of rehearing June 10, 2014
Held The trial court properly ordered the disclosure of defendant’s identity
(Note: This syllabus as the anonymous poster of allegedly defamatory comments about
constitutes no part of the plaintiff, a candidate for a seat on a county board, on a newspaper’s
opinion of the court but Internet message board pursuant to Supreme Court Rule 224 as part of
has been prepared by the plaintiff’s defamation action, since plaintiff’s action claiming
Reporter of Decisions defamation per se was sufficient to withstand dismissal, the statement
for the convenience of at issue was not reasonably capable of an innocent construction but,
the reader.) rather, it imputed the commission of a crime, and it could reasonably
be construed as making a factual assertion.
Decision Under Appeal from the Circuit Court of Stephenson County, No. 12-L-24;
Review the Hon. David L. Jeffrey, Judge, presiding.
Judgment Affirmed.
Counsel on Robert M. Fagan, of Law Offices of Robert M. Fagan, Ltd., of
Appeal Freeport, for appellant.
Andrew T. Smith and Ronald A. Barch, both of Cicero, France, Barch
& Alexander, P.C., of Rockford, for appellee.
Panel JUSTICE JORGENSEN delivered the judgment of the court, with
opinion.
Justices Zenoff concurred in the judgment and opinion.
Justice Birkett dissented, with opinion.
OPINION
¶1 Pursuant to Illinois Supreme Court Rule 224 (eff. May 30, 2008), the trial court granted
the motion of plaintiff, Bill Hadley, requesting the court to direct Comcast Cable
Communications, LLC, to provide the identity and last known address of defendant,
subscriber Doe, a/k/a “Fuboy.” Hadley wished to pursue a defamation claim against Fuboy
for statements posted on an Internet message board. Fuboy appealed the order that Comcast
provide the information. We affirm.
¶2 I. BACKGROUND
¶3 The backdrop of this Rule 224 case concerns Fuboy’s allegedly defamatory remarks
about Hadley, who was a candidate for the Stephenson County board (the Board). On
December 28, 2011, the Freeport Journal Standard published an online newspaper article
regarding Hadley’s 2012 candidacy for the Board. The article discussed Hadley’s fiscal
positions. As is common with online articles, members of the public could read and
anonymously post comments (after completing a basic registration process). On December
29, 2011, amidst four “on-topic” posts concerning Hadley’s candidacy, Fuboy posted the
following comment: “Hadley is a Sandusky waiting to be exposed. Check out the view he has
of Empire from his front door.”
¶4 Based on this comment, on January 10, 2012, Hadley filed in state court a defamation suit
against the Freeport Journal Standard’s parent company, Gatehouse Media. In part because
Gatehouse was a New York company, the case was removed to federal court. In July 2012,
following proceedings we will not detail here, Gatehouse was removed as the defendant, and
the federal court dismissed the suit for lack of jurisdiction and directed Hadley to refile the
case in state court.
¶5 Accordingly, on August 7, 2012, Hadley again filed his defamation suit in state court, this
time against “Subscriber Doe, a.k.a. Fuboy, whose legal name is unknown.” That same day,
in conjunction with the suit, Hadley issued a subpoena to Comcast, requesting Fuboy’s legal
-2-
identity. Comcast notified Fuboy. Fuboy hired an attorney, Robert Fagan, and, through
Fagan, Fuboy sought to quash the subpoena.
¶6 On January 11, 2013, at a hearing with Hadley’s and Fuboy’s attorneys present, the trial
court directed the parties that the subpoena and the motion to quash would be better
addressed within the context of Rule 224. That rule provides a mechanism for discovery to
identify initial defendants before suit, and it states:
“(i) A person or entity who wishes to engage in discovery for the sole purpose of
ascertaining the identity of one who may be responsible in damages may file an
independent action for such discovery.
(ii) The action for discovery shall be initiated by the filing of a verified petition in
the circuit court of the county in which the action or proceeding might be brought
***. The petition shall be brought in the name of the petitioner and shall name as
respondents the person or entities from whom discovery is sought and shall set forth:
(A) the reason the proposed discovery is necessary and (B) the nature of the discovery
sought and shall ask for an order authorizing the petitioner to obtain such discovery.
The order allowing the petition will limit discovery to the identification of responsible
persons and entities and where a deposition is sought will specify the name and
address of each person to be examined ***.” Ill. S. Ct. R. 224 (eff. May 30, 2008).
The court found instructive Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386,
which set forth standards for applying Rule 224 to a defamation case. The Stone court held
that a Rule 224 petitioner seeking to discover an individual’s identity before suit has the
burden to provide allegations in the proposed defamation case sufficient to overcome a
motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (Code) (735
ILCS 5/2-615 (West 2012)), regardless of whether the unidentified individual actually files
such a motion to dismiss. Stone, 2011 IL App (1st) 093386, ¶ 18. The Stone court explained
that this standard adequately balances the petitioner’s interest in seeking redress for alleged
defamation and the unidentified individual’s first-amendment right to engage in
nondefamatory anonymous speech. Id. Thus, the court here granted Hadley leave to file an
amended complaint and a Rule 224 petition.
¶7 On January 24, 2013, based on the trial court’s direct instructions, Hadley filed an
amended two-count complaint. In the first count, Hadley reiterated his defamation claim
against Fuboy (as the sufficiency of that pleading would control the trial court’s Rule 224
decision). In the second count, Hadley named Comcast as the respondent and sought,
pursuant to Rule 224, for Comcast to provide him with the identity and last known address of
Fuboy. Fuboy, through his attorney, participated in the Rule 224 proceedings and the court
rejected Hadley’s argument that Fuboy did not have standing to do so.
¶8 After hearing argument, the trial court took the matter under advisement. On April 11,
2013, it entered a written order. In the order, the court recapped that it had ordered Hadley to
proceed under Rule 224. It then stated that it performed a Rule 224 analysis in evaluating
Hadley’s discovery request. The court, citing Stone and Maxon v. Ottawa Publishing Co., 402
Ill. App. 3d 704 (2010), granted Hadley’s requested relief pursuant to Rule 224 and directed
Comcast to release Fuboy’s identity and address. The court noted that, while anonymous
speech is a constitutionally protected right, there is no constitutional right to defame
someone. The complained-of comment–“Hadley is a Sandusky waiting to be exposed. Check
out the view he has of Empire from his front door”–imputed the commission of a criminal
offense and was, therefore, defamatory per se. The court explained:
-3-
“The reference to Sandusky as being a Penn State coach convicted of being a sexual
abuser of young boys is obvious to any reasonable person. So is the reference to
Empire Grade School located in Freeport, Illinois. *** In the Court’s view, this is not
capable of innocent construction, nor is it capable of being considered an opinion. It
is a statement of fact.”
The court found that, as a matter of law, neither of two potential bars precluded Hadley from
pursuing a defamation claim, as: (1) the statement was not reasonably capable of an innocent
construction; and (2) the statement could reasonably be interpreted as stating an actual fact
(not opinion). The trial court referred to Fuboy’s objections as motions to quash subpoenas,
and it denied those motions.
¶9 At a very brief hearing that same day, the trial court referred back to its written order,
stating:
“The Court has entered a written ruling in which I have denied the motion to quash
the subpoena and ordered that Comcast Cable be directed to provide the plaintiff’s
counsel with the identity and last known address of the account number with the
specified IP address.”
¶ 10 On May 6, 2013, the trial court conducted a hearing on Fuboy’s motion to reconsider,
which he brought, in part, “to solidify the basis for [appeal].” Fuboy asked the court whether
this was a standard Rule 224 order, which would be immediately appealable, or whether this
was an order on one count of a two-count complaint, which would require a finding pursuant
to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). Hadley explained that Rule 224
orders are considered final and appealable (citing to Beale v. EdgeMark Financial Corp., 279
Ill. App. 3d 242, 246 (1996) (Rule 224 orders finally adjudicate the rights of the parties in an
independent action)). The court stated:
“[T]he court believes that there must be some avenue by which the defendant can
seek relief without disclosure from a higher court than this one. And, thus, the real
issue before the Court in my view is how to best accomplish that.
[The order] is a bit different than a normal Rule 224 order because *** it was
brought as [part of] a civil complaint. And then because of my rulings and with the
[c]ourt’s direction or, at least, allowance, that 224 petition was filed.
So from my standpoint, it’s how [do] we best get this matter before the Appellate
Court ***. ***
And, in terms of that *** I think it is a final ruling under Rule 303 [(Ill. S. Ct. R.
303 (eff. June 4, 2008))] for the disposition of the Rule 224 petition because of what
it does is [that] it orders the disclosure of the Rule 224.”
Fuboy again reminded the court of the pending defamation claim. Fuboy, Hadley, and the
court further discussed the proper vehicle for appeal. The court continued to “believe it [was]
a final order under Rule 303.” However, to ease the parties’ concerns, it stated that it would
enter a written Rule 304(a) finding as an alternative jurisdictional basis for appeal. That same
day, it entered the written order as promised. This appeal followed.
¶ 11 II. ANALYSIS
¶ 12 As a threshold matter, Hadley argues that Fuboy did not have standing to challenge the
Rule 224 discovery request, because the subpoena was issued to Comcast. We disagree. In
Stone, the court noted that an unidentified defendant is not required to challenge a Rule 224
-4-
discovery request. Stone, 2011 IL App (1st) 093386, ¶ 18. Rather, it remains the petitioner’s
burden to show that his proposed complaint supports a cause of action. Id. This standard was
created to protect the rights of the unidentified defendant. Id. Therefore, although the
unidentified defendant is not required to participate in the proceedings, he certainly has an
interest in them. See, e.g., Talley v. California, 362 U.S. 60, 64-65 (1960) (the author of an
anonymous statement has a first-amendment interest in preserving his anonymity). The cases
cited by Hadley, Malibu Media, LLC v. Reynolds, No. 12 C 6672, 2013 WL 870618 (N.D. Ill.
Mar. 7, 2013) (not reported), and Sunlust Pictures, LLC v. Does 1-75, No. 12 C 1546, 2012
WL 3717768 (N.D. Ill. Aug. 27, 2012) (not reported), are inapposite. Those cases involved
defendants who had allegedly committed copyright infringement, not a defendant who
wished to remain anonymous in his speech. In any case, in Sunlust, the court found that the
unidentified defendant did have standing, because his privacy interests, however minimal,
were at stake. Id. at *2. The trial court did not err here in determining that Fuboy had
standing to participate in the Rule 224 proceedings. We now address the merits of the appeal.
¶ 13 At the heart of his appeal, Fuboy challenges the trial court’s application of Rule 224 in
the context of a potential defamation per se claim, arguing that Hadley’s defamation per se
claim would not survive a section 2-615 motion to dismiss. For the reasons that follow, we
disagree. And, by way of explanation, we first address the application of Rule 224 to
defamation cases, as set forth in Stone and Maxon and as adopted herein, and we then address
what is needed to plead a cause of action for defamation per se.
¶ 14 A. Rule 224 and Defamation Cases
¶ 15 Rule 224 is intended to assist a petitioner in seeking redress against an unidentified
individual who might be liable, but the rule also requires the petitioner to demonstrate that
the proposed discovery of the individual’s identity is necessary. Stone, 2011 IL App (1st)
093386, ¶ 14. The Stone and Maxon courts (First and Third Districts, respectively) found
that, to show necessity, the petitioner must present against the unidentified individual a
potential defamation claim that would survive a section 2-615 motion. Id. ¶ 18; Maxon, 402
Ill. App. 3d at 712. Ordinarily, the grant of a Rule 224 petition is reviewed for an abuse of
discretion. Maxon, 402 Ill. App. 3d at 709. However, where, as here, a trial court’s exercise
of discretion relies on a conclusion of law, our review is de novo. Id. at 710. Although Fuboy
does not dispute these standards, we explain their rationale.
¶ 16 Anonymous speech is a long-protected right of citizenship. Stone, 2011 IL App (1st)
093386, ¶ 15; Maxon, 402 Ill. App. 3d at 712. Anonymous speech has enabled individuals to
speak constructively regarding important public matters without the sort of fear of reprisal
that might deter even peaceful discussions. Id. at 712-13 (citing Talley, 362 U.S. at 64-65).
Discussion of public issues as well as debate regarding a candidate’s qualifications are
“integral to the government established by our Constitution.” Stone, 2011 IL App (1st)
093386, ¶ 15 (citing McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346 (1995)).
“Political speech will occasionally have unpalatable consequences[,] but our society gives
greater weight to the value of free speech than the danger that free speech will be misused.”
Id. (citing McIntyre, 514 U.S. at 357). Additionally, it is well established that these
first-amendment principles apply to speech on the Internet. Id. (citing Reno v. American Civil
Liberties Union, 521 U.S. 844, 870 (1997)). “Thus, an author is generally free to decide
whether he wishes to disclose his true identity and his decision not to do so is an aspect of the
freedom of speech provided in the first amendment.” Id. (citing McIntyre, 514 U.S. at 357).
-5-
This being said, there is no constitutional right to defame, and the right of anonymity in
public discourse does not apply to defamatory speech. Id. ¶ 16; Maxon, 402 Ill. App. 3d at
713.
¶ 17 Therefore, in ordering the disclosure of a potential defendant’s identity pursuant to Rule
224, a court must balance the potential plaintiff’s right to redress for unprotected defamatory
language against the danger of setting a standard for disclosure that is so low that it
effectively chills or eliminates the right to speak anonymously and fails to adequately protect
the chosen anonymity of those engaging in nondefamatory public discourse. Stone, 2011 IL
App (1st) 093386, ¶ 16. This balance is reached by ensuring that the Rule 224 petition: “(1)
is verified; (2) states with particularity facts that would demonstrate a cause of action for
defamation; (3) seeks only the identity of a potential defendant, rather than information
necessary to demonstrate a cause of action for defamation; and (4) is subjected to a hearing at
which the court determines that the petition sufficiently states a cause of action for
defamation against the unnamed potential defendant, i.e., the unidentified person is one who
is responsible in damages to the petitioner.” (Internal quotation marks omitted.) Id. ¶ 17; see
also Maxon, 402 Ill. App. 3d at 711. Section 2-615 of the Code provides a mechanism by
which to determine whether the petitioner stated a cause of action. Stone, 2011 IL App (1st)
093386, ¶ 17; see 735 ILCS 5/2-615 (West 2012). A plaintiff in an ordinary defamation case
is required to plead facts to show that the allegedly defamatory statements are not
constitutionally protected. Stone, 2011 IL App (1st) 093386, ¶ 17. In this way, subjecting a
Rule 224 petition to the scrutiny provided by section 2-615 guards against constitutional
concerns arising from disclosing a potential defendant’s identity. Id.¶ 18 B. Adequately Pleading a Cause of Action for Defamation Per Se
¶ 19 To state a claim for defamation, a plaintiff must allege facts demonstrating that the
defendant made a false statement about the plaintiff, that the defendant made an unprivileged
publication of the statement to a third party, and that the publication caused damages to the
plaintiff. Stone, 2011 IL App (1st) 093386, ¶ 24. A statement is defamatory if it harms an
individual’s reputation by lowering the individual in the eyes of the community or deters the
community from associating with him. Tuite v. Corbitt, 224 Ill. 2d 490, 501 (2006).
Statements can be considered defamatory per se or per quod. Id. A statement is defamatory
per se if its defamatory character is obvious and apparent on its face and injury to the
plaintiff’s reputation can be presumed. Id. A statement is defamatory per quod if the
defamatory character is not obvious and apparent on its face; in that case, damage to the
plaintiff’s reputation cannot be presumed and the plaintiff must plead and prove special
damages in order to recover. Id. Here, Hadley alleges only a claim of defamation per se.
¶ 20 There are five categories of defamation per se: (1) statements imputing the commission
of a crime; (2) statements imputing an infection with a loathsome communicable disease; (3)
statements imputing an inability to perform or want of integrity in performing employment
duties; (4) statements imputing a lack of ability or that otherwise prejudice a person in his or
her profession or business; and (5) statements imputing adultery or fornication. Id. Here,
Hadley argues that the statement at issue imputes the commission of a crime (child
molestation).
¶ 21 However, even if a statement falls into one of the five categories of defamation per se, it
will not be actionable if it: (1) is reasonably capable of an innocent construction (id. at 502);
or (2) cannot reasonably be interpreted as stating an actual fact and is therefore protected by
-6-
the first amendment as opinion. Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 14-15
(1992); Maxon, 402 Ill. App. 3d at 716; Hopewell v. Vitullo, 299 Ill. App. 3d 513 (1998). We
proceed to address each of these two requirements. We hold that the statement at issue is not
reasonably capable of an innocent construction and that it can reasonably be interpreted as
stating an actual fact.
¶ 22 i. Innocent-Construction Rule
¶ 23 In construing a statement under the innocent-construction rule, a court must give the
allegedly defamatory words their natural and obvious meaning and interpret them as they
appear to have been used and according to the idea they were intended to convey to the
reasonable reader. Tuite, 224 Ill. 2d at 510. The context of a statement is critical to its
meaning, and, therefore, the court must read any allegedly defamatory words in the context
of the entire document. Id. at 512. Various courts’ applications of the innocent-construction
rule “spawned a morass of case law in which consistency and harmony have long ago
disappeared.” (Internal quotation marks omitted.) Id. at 504. Because of this, the supreme
court has clarified that the innocent-construction rule does not require a court to strain to find
an unnatural innocent meaning for a statement when a defamatory meaning is far more
reasonable, nor does it require a court to “espouse a naïveté unwarranted under the
circumstances.” (Internal quotation marks omitted.) Id. at 505.
¶ 24 Having explained the innocent-construction rule, the Tuite court applied the rule to the
allegedly defamatory statements in that case. One of the defendants in Tuite wrote a
nonfiction book about organized crime entitled, “The Inside Story of Murder, Unbridled
Corruption, and the Cop Who Was a Mobster.” The book discussed the plaintiff, Tuite, an
attorney who allegedly represented a mafia boss. The book said of Tuite:
“[The mafia were] desperate to walk away from those charges and wanted to bring in
Pat Tuite, an attorney who’d represented mob cases in the past. *** Supposedly, the
big-shot lawyer told Aiuppa that he’d need a million-dollar retainer before he’d even
walk in the door.
***
*** They decided to go to Las Vegas *** and let their skim pay Tuite.
[The book then described how Corbitt and others traveled to Utah, picked up
duffel bags containing $1 million in $100 bills, and delivered the bags to an
individual in Chicago. The book states, ‘I understand Tuite got his retainer later that
night.’]
After Tuite was on the case, all the guys were sort of semijubilant. Everybody
figured Tuite had it all handled. To Aiuppa and his codefendants, it was like a done
deal, like they were all going to be acquitted. So you can imagine their reaction when
they were all found guilty ***. *** [T]hat’s why, for the life of me, I’ve never
understood why Pat Tuite didn’t get whacked.” (Internal quotation marks omitted.)
Id. at 496-97.
Tuite filed a claim for defamation per se, alleging that the statements were untrue, that they
imputed to him the commission of a criminal offense, and that they imputed a want of
integrity and an inability to perform his professional duties. Tuite asserted that he merely
served as a consultant to one of Aiuppa’s attorneys. He did not demand or receive a $1
million cash retainer. To his knowledge, his payment for consulting services did not come
-7-
from illegally obtained funds. Tuite argued that “the statements falsely imply that he would
use all or a portion of the cash retainer to commit bribery or other criminal conduct to ensure
that he ‘had it all handled’ and that acquittal was ‘a done deal.’ ” Id. at 497.
¶ 25 The supreme court held that the statements were not reasonably capable of an innocent
construction. Id. at 514-15. It noted that the statements were made in the context of a book
that recounted “story after story of corruption, including within the judicial system.” (Internal
quotation marks omitted.) Id. at 512. Given this, it was “not reasonable to believe defendants
intended to convey a story about Tuite’s trial skills,” nor could a reasonable reader infer that
Tuite was hired on the basis of his legal skills. Id. at 514. In fact, the book did not discuss
Tuite’s legal skills as a basis for his clients’ confidence in their acquittals. Id. Rather, the
reasonable reader would infer that Tuite was expected to engage in bribery or payoffs to
secure the acquittals: “[T]he clear message is that Tuite was ready and able to fix the case,
that he was paid to fix it, and that he did not deliver, something that should have caused a
premature end to his life.” (Internal quotation marks omitted.) Id. at 513.
¶ 26 The court acknowledged that the defendants never explicitly accused Tuite of bribing
officials. However, the court would not strain to find an innocent construction where a
defamatory construction was far more reasonable. Id. at 514-15. In its view, in the context of
a story about corruption, the reasonable reader would conclude that the delivery of $1 million
cash, obtained under dubious circumstances, was not solely for legitimate legal fees but was,
at least in part, to be used for bribes and payoffs to ensure acquittals. Id.¶ 27 Applying the innocent-construction rule to the instant case, we determine that the idea
intended to be conveyed to the reasonable reader by the words at issue–“Hadley is a
Sandusky waiting to be exposed. Check out the view he has of Empire from his front
door”–is that Hadley is a pedophile. Neither party disputes that, when the statement was
posted, the Sandusky sexual abuse scandal had dominated the national news for weeks.
Sandusky was a football coach for the famed Penn State football program. Over the course of
years, Sandusky allegedly sexually abused young boys. The degree to which Sandusky’s
coaching colleagues knew of and failed to alert the appropriate authorities of Sandusky’s
criminal activities became part of the scandal. To ignore the reference to a national story of
this magnitude would be to “espouse a naïveté unwarranted under the circumstances.”
(Internal quotation marks omitted.) Id. at 505. It is natural and obvious that calling someone
“a Sandusky” while the scandal dominated the national news showed an intent to convey the
idea that the “Sandusky” had engaged in yet-to-be discovered sexual acts with children.
¶ 28 The context of the surrounding text further supports the comparison to the Penn State
Sandusky. Just as Sandusky’s alleged actions went undetected for years, Fuboy asserted that
Hadley was “waiting to be exposed.” Additionally, while the reference to “Empire” would
not constitute defamatory language by itself, it is likely known by those in Hadley’s Freeport
community as an elementary school. To say that Hadley is “a Sandusky” while referring to
surreptitious behavior and schoolchildren is, in context, to impute that Hadley has committed
a crime. Words that impute the commission of a crime are defamatory per se in that, as a
matter of law, such words lower the subject in the eyes of his or her community.
¶ 29 It makes no difference that Fuboy did not expressly state that Hadley is a pedophile or
has engaged in sexual acts with children, just as it made no difference in Tuite that the author
did not expressly state that Tuite committed acts of bribery. Rather, as we have stated, it is
dispositive that the words, when read in context and as intended to be conveyed to the
reasonable reader, impute the commission of a crime.
-8-
¶ 30 Likewise, it makes no difference that Sandusky had yet to be convicted when Fuboy
made the comparison. To constitute defamation per se based on imputing the commission of
a crime, the crime must be an indictable one, involving moral turpitude and punishable by
death or imprisonment, not by a fine. Jacobson v. Gimbel, 2013 IL App (2d) 120478, ¶ 27.
Indeed, words are defamatory per se if they impute the commission of a crime, regardless of
whether the subject was charged or convicted. Conviction is not a critical element. The
words, “Hadley is a Sandusky waiting to be exposed,” conveyed the same idea whether
Sandusky had been convicted or not. Although Sandusky had not yet been convicted,
numerous boys, now grown, were beginning to testify to the abuse they had allegedly
suffered. The public was aware that Sandusky was, at that point, associated with the sexual
abuse of many young boys. Fuboy capitalized on that association when he posted his
statement.
¶ 31 We also reject Fuboy’s two remaining arguments, appearing throughout his brief, as to
why the statement is entitled to an innocent construction. First, Fuboy argues that the word
“Sandusky” is innocuous. According to Fuboy, the name “Sandusky” could be read to be an
ordinary last name or an Ohio port on Lake Erie. The weakness of Fuboy’s offered alternate
readings of the word “Sandusky” further convinces us that the only reasonable reading is the
Penn State Sandusky. There is no reasonable alternative.
¶ 32 Second, Fuboy argues that, even if the reasonable reader would first think of the Penn
State Sandusky, the phrase “waiting to be exposed” neutralizes the statement. Again
according to Fuboy, the phrase “waiting to be exposed” could be read to mean that Hadley
has “never engaged in the activities such as those [of] which Mr. Sandusky had been
accused, but has, in the two[-]cents[-]worth opinion of the statement’s author, the potential
for doing so in the future.” We disagree and are of the view that the phrase “waiting to be
exposed” connotes that the subject has already acted and is presently “getting away with
something.” In our view, when considering the statement as a whole, one would need to
unreasonably strain to read the statement in any of the manners suggested by Fuboy.
¶ 33 We distinguish this case from Stone, where the court found that a statement was capable
of an innocent construction. Stone, 2011 IL App (1st) 093386, ¶ 31. There, in the context of a
heated, political Internet conversation, one poster asked the other:
“Thanks for the invitation to visit you.. but I’ll have to decline. Seems like you’re
very willing to invite a man you only know from the internet over to your house–have
you done it before, or do they usually invite you to their house?” (Emphasis and
internal quotation marks omitted.) Id. ¶ 29.
The court ruled that a sexual connotation was not inherent in the statement, given that the
poster made it in declining an invitation to meet for political discussion. Id. ¶ 31. Here, in
contrast, for all the reasons we have discussed, no benign characterization is plausible.
¶ 34 In sum, we hold that the statement at issue is defamatory per se in that it imputes the
commission of a crime and further that it cannot reasonably be innocently construed. We
reject Fuboy’s argument, implicit throughout his brief, that defamation per se somehow
requires express accusations. Rather, as discussed, “per se” in this analysis simply means
that, to the reasonable reader, the words impute the commission of a crime. Tuite, 224 Ill. 2d
at 514-15. We hold that they do. However, our analysis does not end here.
¶ 35 ii. Factual-Assertion Analysis
-9-
¶ 36 We have determined that the statement in question has an obvious defamatory character
in that it imputes the commission of a crime. It cannot reasonably be innocently construed.
We must now consider, however, if the statement is nevertheless protected by the first
amendment as a statement so loose, figurative, and hyperbolic in tone and substance that no
reasonable reader would interpret it as an assertion of fact. A statement will receive
first-amendment protection from a defamation suit if it cannot be reasonably interpreted as
stating actual facts about the plaintiff. Kolegas, 154 Ill. 2d at 14-15. The factual-assertion test
is therefore a restrictive one. Id. To determine whether the statement is intended to present a
fact (as opposed to an opinion) about the plaintiff, we look to three factors: (1) whether the
language of the statement has a precise and readily understood meaning; (2) whether the
context of the statement negates the impression that the speaker intended to convey a fact;
and (3) whether the statement can be objectively verified as true or false. Maag v. Illinois
Coalition for Jobs, Growth & Prosperity, 368 Ill. App. 3d 844, 851 (2006). Whether a
statement is of an opinion or a fact is a question of law. Jacobson, 2013 IL App (2d) 120478,
¶ 35.
¶ 37 Fuboy focuses a great deal of his appellate argument on this question, with particular
attention to the second factor. He contends that the forum or medium of an Internet message
board so lowers the intended seriousness of a statement that, combined with his statement’s
vagueness (which makes it difficult to prove true or false), no reasonable reader would
interpret his statement as an assertion of fact. He argues that “anonymous contributions to
blogs like the one here *** take *** vitriol to extremes and in the process undermine ***
credibility” and that it is unlikely that “any disinterested person reading the commentary is
likely to take it any more seriously than he would an anonymous scrawl on the wall of a
public restroom.”
¶ 38 To make the point that certain forums or mediums of communication are not amenable to
the transmission of factual assertions, Fuboy cites to Hustler Magazine, Inc. v. Falwell, 485
U.S. 46 (1988). In that case, Hustler magazine published a cartoon parody of an ad that
played off the phrase “first times.” Id. at 48. Hustler’s parody depicted Jerry Falwell, a
nationally known minister and political commentator, having a drunken, incestuous
rendezvous with his mother in an outhouse. Id. In small print at the bottom of the cartoon,
Hustler printed the disclaimer “ ‘ad parody–not to be taken seriously.’ ” Id. The table of
contents listed the cartoon as “ ‘Fiction; Ad and Personality Parody.’ ” Id. Falwell sued for,
inter alia, defamation and for intentional infliction of emotional distress. The jury found for
Hustler on the defamation claim and for Falwell on the claim for intentional infliction of
emotional distress. Id. On appeal, the Hustler Court did not address the defamation claim. As
to the claim for intentional infliction of emotional distress, the Court noted that Falwell was a
“ ‘public figure’ ” for first-amendment purposes, and it discussed the political cartoon’s role
in public discourse and the common understanding that caricatures were, by their nature,
“ ‘deliberately distorted.’ ” Id. at 53-54, 57. The Court, therefore, reversed the jury’s ruling
on the claim for intentional infliction of emotional distress, stating that it was not prepared to
find that the state’s interest in protecting public figures from emotional distress is sufficient
to deny first-amendment protection to speech where that speech could not be reasonably
interpreted as stating actual facts. Id. at 50.
¶ 39 Fuboy’s reliance on Hustler is problematic for the obvious reason that the Court did not
address the defamation claim. Hustler is therefore helpful only for its discussion of a
medium’s role, there, a cartoon’s, in conveying political parody or hyperbole versus fact.
- 10 -
¶ 40 Certainly, case law across jurisdictions supports the proposition that the forum or
medium of an Internet message board, chat room, or blog is a factor that weighs in favor of
finding that a reasonable reader would not read a statement as a factual assertion. However,
we must be clear from the beginning that there is no special factual-assertion test for
statements posted on such casual Internet forums. It is merely one factor to consider. For
support, we turn to existing case law.
¶ 41 As other courts have recognized, the Internet is a unique forum. It is certainly capable of
hosting comments meant to be taken seriously as fact, but, depending on a multitude of
factors to be considered case by case, it is also susceptible to hosting statements of
hyperbole, exaggeration, and rhetoric that were never intended to be assertions of fact. In an
article later cited by many of the leading Internet defamation cases, such as Chaker v. Mateo,
147 Cal. Rptr. 3d 496, 503 (Cal. Ct. App. 2012), professor Lyrissa Barnett Lidsky writes:
“First Amendment doctrine *** cannot hold ordinary John Does to the standards of
professional journalists with regard to factual accuracy, because part of what gives
the Internet such widespread appeal is the fact that it allows ordinary citizens to have
informational conversations about issues of public concern. Although any approach to
the problems posed by the new Internet libel actions must respond to the unique
culture of message boards, the law cannot allow that culture to degenerate into a
realm where anything goes, where any embittered and malicious speaker can lash out
randomly at innocent targets. *** [A]ny solution to the problems posed by these new
suits must be tuned finely enough to distinguish incivility that must be tolerated for
the good of public discourse from the incivility that destroys public discourse.”
Lyrissa Barnett Lidsky, Silencing John Doe: Defamation and Discourse in
Cyberspace, 49 Duke L.J. 855, 903-04 (2000).
Courts have provided interesting applications and commentaries on Lidsky’s article:
“We reject the argument [that, as a matter of law, no reasonable person would take an
Internet posting as a statement of fact]. First, we assume that one reason people use
*** boards *** is to seek information ***. [Citation.] Even if the exchange that takes
place on these message boards is typically freewheeling and irreverent, we do not
agree that it is exempt from established legal and social norms. *** We would be
doing a great disservice to the Internet audience if we were to conclude that all speech
on Internet message boards was so suspect that it could not be defamatory as a matter
of law. In effect, such a conclusion could extinguish any potential the forum might
have for the meaningful exchange of ideas.” Varian Medical Systems, Inc. v. Delfino,
6 Cal. Rptr. 3d 325, 337 (Cal. Ct. App. 2003), rev’d on other grounds, 106 P.3d 958(Cal. 2005) (lack of jurisdiction).
Further:
“Internet posts where the tone and content is serious, where the poster represents
himself as unbiased and having specialized knowledge, or where the poster claims his
posts are Research Reports or bulletins or alerts, may indeed be reasonably perceived
as containing actionable assertions of fact. [Citation.] And while generalized
comments on the Internet that lack any specificity as to the time and place of alleged
conduct may be a further signal to the reader [that] there is no factual basis for the
accusations, specifics, if given, may signal the opposite and render an Internet posting
actionable. [Citations.]” (Internal quotation marks omitted.) Bently Reserve L.P. v.
Papaliolios, 160 Cal. Rptr. 3d 423, 433 (Cal. Ct. App. 2013).
- 11 -
¶ 42 On balance, however, we appreciate the idea that, when potentially defamatory
statements are published in a setting in which the audience might anticipate attempts at
persuasion by the use of epithets, fiery rhetoric, or hyperbole, the statements might well
assume the character of opinion even where, in other settings, they would be considered
statements of fact. Summit Bank v. Rogers, 142 Cal. Rptr. 3d 40, 60 (Cal. Ct. App. 2012)
(quoting Gregory v. McDonnell Douglas Corp., 552 P.2d 425 (Cal. 1976)). Again,
“[c]omments that are no more than ‘rhetorical hyperbole,’ ‘vigorous epithet[s],’ ‘lusty and
imaginative expression[s] of *** contempt,’ and language used in a ‘loose, figurative sense’
have all been accorded constitutional protection.” (Internal quotation marks omitted.) Id. at
62 (quoting Ferlauto v. Hamsher, 88 Cal. Rptr. 2d 843, 849 (Cal. Ct. App. 1999)).
Consequently, courts have found certain types of name calling, exaggeration, or ridicule to be
nonactionable opinion. Id.¶ 43 With these principles in mind, we look to Maxon, an Illinois Rule 224 case that turned on
the application of the factual-assertion test to Internet comments. In Maxon, the Ottawa
Publishing Company published an Internet article about the Ottawa Planning Commission’s
consideration of a proposed ordinance to allow bed-and-breakfast establishments in
residential areas. Maxon, 402 Ill. App. 3d at 707. Various pseudonymous posters responded
to the article, in the comment section. Among the allegedly defamatory comments by the
same poster (known as “FabFive”) were:
“ ‘Way to pass the buck Plan Commission!! You have dragged this garbage out
for over a YEAR now and despite having the majority tell you to NOT change the
ordinance you suggest the exact opposite! How dare you! How dare you waste the
time of the townspeople who have attended EVERY single one of these meetings to
speak out against any changes!! But, hey, you don’t have the final word so just pass
the buck and waste even MORE TIME. How much is Don and Janet from another
Planet paying you for your betrayal???? Must be a pretty penny to rollover and play
dead for that holy roller ... IF this gets anywhere NEAR being passed in favor for the
Maxon CULT, you can bet your BRIBED BEHINDS there will be a mass exodus of
homeowners from this town ... who will you tax then if noone [sic] lives here?’ ” Id.
And:
“ ‘Here’s another tidbit to consider folks, Ann brought up how it is possible that
the Maxon’s [sic] would take the B&B and turn it into some non [sic] for profit
church business. Well as it is the Maxon’s [sic] plan for the addition were to include a
LARGE meeting room ... Now since when did a B&B require a meeting room?
The Maxon’s [sic] haven’t played this straight from the day they filed it. The OPC
has not played it straight from any of the meetings regarding this. The plan should
never had [sic] been pushed to the Town Council when several members of the
[commission] were not even present to vote on it in the new terms that the BRIBED
members had created ... AND now noone [sic] wants to get caught actually voting on
it. This has become a hot potato and the music is about to stop. So who gets burned?
The MANY people who have spoken out AGAINST these changes, or the FEW
individuals who are behind it?’ ” Id. at 707-08.
¶ 44 The plaintiffs (the Maxons) filed a Rule 224 petition naming Ottawa Publishing as a
respondent and seeking to determine the identity of FabFive. The trial court denied the
petition, finding that the literary and social context of the statements rendered them
nonactionable opinions as a matter of law. Id. at 708-09.
- 12 -
¶ 45 The appellate court reversed. It acknowledged the casual forum and it acknowledged that
the allegedly defamatory representations of bribery were surrounded by rhetorical hyperbole.
Id. at 716. However, it reasoned that the “mere fact” that a statement is made on the Internet
does not render it hyperbole. Id. The court noted that a false assertion of fact can be
defamatory even when couched within apparent opinion or hyperbole. Id. at 715 (quoting
Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 581 (2006)). It further
noted that statements made in the form of insinuation, allusion, irony, or question may be
considered as defamatory assertions of fact. Id. It held that the allegation that the Maxons
could have gotten the ordinance passed only by bribery could reasonably be interpreted as
stating an actual fact. Id. at 716.
¶ 46 We also look to Stone, which addressed the factual-assertion test as a part of its overall
determination that the statements at issue could not support a cause of action for defamation.
Stone, 2011 IL App (1st) 093386, ¶ 29. Again, in Stone, in the forum of an Internet message
board, the poster inquired via innuendo whether the plaintiff solicits men for sex over the
Internet (though the court held that the statement was also capable of an innocent
construction). Id. However, the context of their conversation showed that they had never met
and that their knowledge of each other was limited to their exchanges on the forum. Id. The
poster had not given the readers any reason to believe that he was capable of making a
factual assertion on the matter. Id. Therefore, the court ordered that the plaintiff was not
entitled to discovery of the poster’s identity. Id.¶ 47 The statement in the instant case is more like those in Maxon than those in Stone. Unlike
the statements in Stone, it is not clear from the context that Fuboy has no knowledge of
Hadley. To the contrary, Fuboy knows where Hadley lives. Although here, as in Maxon, the
statement at issue uses figurative language akin to name calling, the question is whether a
reader could reasonably take the allegation as an assertion of fact. Again, the test is
restrictive.
¶ 48 In this vein, we note that it is not fatal to Hadley’s claim that portions of Fuboy’s
statement carry the tone of opinion. While “pure opinions” are not actionable, “mixed
opinions” can be actionable. Mittelman v. Witous, 135 Ill. 2d 220, 241-42 (1989) (citing
Restatement (Second) of Torts § 566 (1977)), abrogated on other grounds by Kuwik v.
Starmark Star Marketing & Administration, Inc., 156 Ill. 2d 16 (1993). A “pure opinion” is an
opinion in form and context that is based on (true) disclosed facts. Id. A “mixed opinion” is
an opinion in form and context that appears to have been based on (defamatory or untrue)
facts that have not been stated. Id. As explained in comment c of the Restatement:
“A simple expression of opinion based on disclosed or assumed nondefamatory facts
is not itself sufficient for an action of defamation, no matter how unjustified and
unreasonable the opinion may be or how derogatory it is. But an expression of
opinion that is not based on disclosed or assumed facts and therefore implies that
there are undisclosed facts on which the opinion is based, is treated differently. The
difference lies in the effect upon the recipient of the communication. In the first case,
the communication itself indicates to him that there is no defamatory factual
statement. In the second, it does not, and if the recipient draws the reasonable
conclusion that the derogatory opinion expressed in the comment must have been
based on undisclosed defamatory facts, the defendant is subject to liability.”
Restatement (Second) of Torts § 566 cmt. c (1977).
- 13 -
The rationale behind the Restatement is this: when the facts underlying a statement of
opinion are disclosed, readers will understand that they are getting the author’s interpretation
of those facts and are therefore unlikely to construe the statement as insinuating the existence
of additional, undisclosed facts. Standing Committee on Discipline of the United States
District Court for the Central District v. Yagman, 55 F.3d 1430, 1439 (9th Cir. 1995).
¶ 49 Here, to whatever degree Fuboy’s comment can be thought of as an opinion, it is a
“mixed opinion.” That is, it implies the existence of defamatory facts but does not disclose
them. Fuboy calls Hadley a “Sandusky,” a figurative term for a child molester. He then states
that Hadley is “waiting to be exposed.” This phrase, “waiting to be exposed,” implies the
existence of undisclosed facts. Fuboy’s position that Hadley is a child molester appears to be
derived from Hadley’s past conduct, but Fuboy does not disclose what this conduct was.
¶ 50 Prior to oral argument, we asked the parties to submit similar cases from other
jurisdictions. In two of those cases, In re Application of Cohen, 887 N.Y.S.2d 424 (N.Y. Sup.
Ct. 2009), and Doe I v. Individuals, 561 F. Supp. 2d 249 (D. Conn. 2008), the courts held that
figurative, loose, or hyperbolic allegations of promiscuity, such as “skank,” “whore,” and
“gay lover,” made on Internet blogs and message boards (albeit, in Cohen, with supporting
pictures) could reasonably be interpreted as allegations of fact. The Cohen and Doe courts
ordered the presuit disclosure of the anonymous posters’ identities. Cohen, 887 N.Y.S.2d at
429; Doe, 561 F. Supp. 2d at 257. Our holding is therefore consistent with other
jurisdictions’ holdings in presuit disclosure cases weighing the viability of defamation claims
against first amendment rights to anonymity, even where those cases involved figurative
language in casual forums.
¶ 51 Fuboy asks this court to look to Gilbrook v. City of Westminster, 177 F.3d 839, 862 (9th
Cir. 1999). There, the court reversed a jury verdict that the defendant had defamed the
plaintiff by calling him a “Jimmy Hoffa.” The plaintiff, like Jimmy Hoffa, was a colorful
union leader and the comment was made in the context of a heated political debate. The court
held that this was colorful, figurative rhetoric that reasonable minds would not take to be a
factual assertion that the plaintiff had committed a crime. Id.¶ 52 Gilbrook does not persuade us to change our holding. Although on point in other ways,
Gilbrook did not involve the presuit disclosure of a potential defendant’s identity.
Additionally, because the plaintiff in Gilbrook was a colorful union leader, the allusion to
Hoffa was a natural, nondefamatory association. In contrast, in our case, we are aware of no
natural, nondefamatory association between Hadley and Sandusky.
¶ 53 We do not herein intend to guide or predict the outcome of the underlying defamation
case. We rule only that Hadley has met his discovery burden. His proposed defamation claim
would survive a section 2-615 motion to dismiss. The complained-of statement is not
reasonably capable of an innocent construction, and it can be reasonably construed as a
factual assertion.
¶ 54 C. Fuboy’s Alternative Argument
¶ 55 Fuboy argues that, even if Hadley’s underlying defamation claim could survive a section
2-615 motion to dismiss, the trial court should not have granted the Rule 224 petition
because, for practical purposes, Hadley will not be able to bring his defamation suit within
the one-year statute of limitations. Thus, if the underlying defamation suit would be barred
by the statute of limitations, there would be no point in revealing Fuboy’s identity. Fuboy
- 14 -
asserts that the limitations period began to run, at the latest, on January 10, 2012, the date on
which Hadley filed his first complaint and therefore was certainly aware of the claim. More
than a year passed before Hadley filed his January 24, 2013, amended complaint with his
Rule 224 petition.1 In Fuboy’s view, the complaint failed to toll the limitations period
because, by referring to the defendant as “Doe/Fuboy,” the complaint was addressed to “a
fictitious person” and was therefore a nullity.
¶ 56 Though no Rule 224 case has directly addressed this argument, we find guidance in the
recent supreme court decision of Santiago v. E.W. Bliss Co., 2012 IL 111792. In Santiago, the
plaintiff intentionally brought a suit under a fictitious name (Juan Ortiz, as opposed to his
legal name, Rogasciano Santiago). After the two-year limitations period had run, the plaintiff
filed an amended complaint using his legal name. The defendants moved to dismiss, arguing
that the plaintiff’s use of a fictitious name rendered the first complaint null and void such that
the amended complaint could not relate back to the initial filing. The trial court denied the
motion to dismiss, and the appellate court reversed. The supreme court agreed with the trial
court, noting that the purpose of the relation-back provision of section 2-616(b) of the Code
(735 ILCS 5/2-616(b) (West 2010)) is to preserve causes of action against loss due to
technical pleading rules. Santiago, 2012 IL 111792, ¶ 25. Due to the satisfaction of section
2-616(b)’s requirements that the original complaint be timely filed and that the cause of
action asserted in the amended complaint grew out of the same transaction or occurrence, the
court concluded that “nothing in section 2-616(b) would support a determination that a
complaint filed using a fictitious name is a nullity, or that a subsequently filed complaint
amending the name of a plaintiff would not relate back to the date of the filing of the original
complaint.” Id. ¶ 26. The court criticized the appellate court’s reliance on Alton Evening
Telegraph v. Doak, 11 Ill. App. 3d 381 (1973), as being off-point because that case never
addressed whether a fictitious name may be used for a natural person. Santiago, 2012 IL
111792, ¶ 27. In other words, as expanded upon by Justice Karmeier in his special
concurrence, a fictitious name is not the same as a fictitious person. Id. ¶ 39. The latter does
not actually exist; the former does. Filing suit as the latter (or against the latter) renders the
complaint null and void; filing suit as the former (or against the former) does not. Id.
¶ 57 We decline Fuboy’s request that we reach the same result as Bogseth v. Emanuel, 166 Ill.
2d 507 (1995), which held that a suit filed against a fictitious person was a nullity. The
Santiago majority passed on the opportunity (expressly presented by the dissent (Santiago,
2012 IL 111792, ¶ 80 (Thomas, J., dissenting, joined by Garman, J.)) to apply Bogseth. As
noted in Justice Karmeier’s special concurrence, the Bogseth John Doe served as a
“placeholder to represent someone [plaintiffs] thought might exist.” (Emphasis omitted.) Id.
¶ 39. That John Doe was “a complete legal fiction.” Id.
¶ 58 In contrast, Fuboy is a real person. He has hired an attorney and has mounted a defense to
the Rule 224 petition. He is not a legal fiction. It makes sense that a suit brought against a
real person (who is participating in proceedings) but brought against a fictitious name would
not be a nullity. There are certain circumstances under which a court may allow for a real,
existing party to proceed under a fictitious name. For example, section 2-401(e) of the Code
(735 ILCS 5/2-401(e) (West 2010)) authorizes the court to allow a party to proceed under a
1
Pursuant to section 13-217 of the Code, it could be argued that Hadley had one year to refile from
the date the federal court dismissed the case for lack of jurisdiction, which was July 2012 (not January
2012). 735 ILCS 5/13-217 (West 2012).
- 15 -
fictitious name upon application and for good cause. Santiago, 2012 IL 111792, ¶ 56 (Burke,
J., specially concurring, joined by Freeman, J.). There is no basis to render a complaint null
and void for a litigant’s failure to make such an application when an identical complaint that
had received the court’s authorization to proceed under a fictitious name could be wholly
viable. Id. ¶ 57. Additionally, section 2-401(b) provides that the misnomer of a party is not a
ground for a dismissal of the case. Id. ¶¶ 42, 47 (Karmeier, J., specially concurring) (citing
Goodkind v. Bartlett, 153 Ill. 419, 423 (1894) (in the case of a misnomer, if the summons is
served on the party intended, and he fails to appear, the judgment against him will be
binding)). It would seem especially unfair in the context of this case to render Hadley’s
complaint a nullity for its use of the fictitious name of Subscriber Doe/Fuboy, when it is
Hadley who would like to ascertain the true name.
¶ 59 As an offshoot of the nullity argument, the parties debate whether the filing of a Rule 224
petition tolls the limitations period in the defamation case. We leave this question, as well as
the question of whether a defendant’s participation in the Rule 224 proceedings matters, for
another day.
¶ 60 D. Remaining Matters
¶ 61 Hadley points to comments in a 2012 email written by Fagan to Hadley’s attorney, which
“warns” that, if the case proceeds and can survive a motion to dismiss, Hadley’s “sexual
reputation” will be at issue in the case. Hadley suggests that this email is an improper motion
and therefore is subject to sanctions under Illinois Supreme Court Rule 137 (eff. Feb. 1,
1994). The trial court denied the sanctions, but Hadley does not expressly appeal this ruling
and cites no case law. Hadley has forfeited any opportunity to seek direct relief for these
comments. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). Moreover, these comments are not part
of the context of the allegedly defamatory statement at issue in this case–they were not even
publicly made. While the email is uncivil, it has no bearing on the issue before us.
¶ 62 Finally, we address the dissent’s position that we do not have jurisdiction to review the
trial court’s order directing Comcast to provide Fuboy’s identity. The parties did not raise
this issue on review, but establishing our own jurisdiction is an affirmative duty. See, e.g.,
Bloom Township High School v. Illinois Commerce Comm’n, 309 Ill. App. 3d 163, 172
(1999).
¶ 63 The dissent would find that: (1) the appealed-from order did not result from Rule 224
proceedings and therefore did not result from an independent action so as to be appealable
under Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994); and (2) the appealed-from order is
an ordinary discovery order and therefore is not final and is not amenable to Rule 304(a). In
the dissent’s view, neither Rule 301 nor the court’s written Rule 304(a) finding provides this
court with jurisdiction.
¶ 64 A consideration of the dissent’s position requires a discussion of Rule 224 and its
counterpart, section 2-402 of the Code (735 ILCS 5/2-402 (West 2012)), which is known as
the “respondents in discovery” statute. These are the two mechanisms by which a plaintiff
may petition a third-party respondent for the identity of a potential defendant. See, e.g., Roth
v. St. Elizabeth’s Hospital, 241 Ill. App. 3d 407, 416 (1993) (citing Shutes v. Fowler, 223 Ill.
App. 3d 342, 345-46 (1991) (Rule 224 is meant to supplement section 2-402)). Section
2-402, which, by default, is the procedural posture under which the dissent must believe the
court entered its “ordinary discovery order,” is used after at least one defendant has been
- 16 -
named in an existing suit and the plaintiff seeks the identities of other defendants. 735 ILCS
5/2-402 (West 2012).
¶ 65 Whatever the procedural irregularities with the Rule 224 petition at issue here, which we
will address below, it does not follow that the petition then must be a section 2-402 petition.
Pursuit of Fuboy’s identity under section 2-402 would be problematic. As noted, section
2-402 is meant to discover the identity of defendants other than the defendant named in the
underlying complaint. 735 ILCS 5/2-402 (West 2012); Bogseth, 166 Ill. 2d at 513. In our
case, Hadley is trying to discover the identity of the same defendant (pseudonymously)
named in the underlying defamation complaint. Comcast is not a defendant in the defamation
claim. Fuboy is the initial defendant in the defamation claim.
¶ 66 Rule 224 is the mechanism for discovering the identity of an initial defendant, as Hadley
seeks to do. It authorizes a plaintiff to file for discovery to learn the identities of potential
defendants before filing the lawsuit. Shutes, 223 Ill. App. 3d at 345. The rule itself states that
petitions brought under it are “independent action[s].” Ill. S. Ct. R. 224 (eff. May 30, 2008).
As such, Rule 224 orders have been appealed as final judgments (presumably under Rule
301). See, e.g., Stone, 2011 IL App (1st) 093386; Maxon, 402 Ill. App. 3d 704. Although
Rule 224 was adopted in 1989 with anticipated use in product-liability, malpractice, and
negligence cases (see committee comments), it has become the vehicle used to ascertain the
legal identities of anonymous posters in defamation cases. See, e.g., id. at 709. It is helpful
that Rule 224 orders are considered final for purposes of appeal, because then the defendant
can challenge a trial court’s denial of his or her first-amendment right to anonymity. This
might otherwise be difficult for a defendant, because Illinois has not adopted the federal
collateral-order doctrine, which allows the appeal of an order, which might not otherwise be
considered final, where the order finally determines claims of right that are separate from,
and collateral to, rights asserted in the action and are too important to be denied review and
too independent of the cause itself to require that appellate jurisdiction be deferred until the
whole case is adjudicated. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546
(1949); In re Estate of French, 166 Ill. 2d 95, 104 (1995) (did not reach the question of
whether to adopt the doctrine). A challenge to a ruling on a party’s right to anonymity could
not be deferred until an adjudication of the entire case, because anonymity, once lost, cannot
be regained.
¶ 67 This brings us to the obvious irregularities in Hadley’s Rule 224 petition: (1) Hadley did
not file it prior to filing suit; and (2) he filed it as part of a two-count complaint (rather than
as an independent action) (thus removing Rule 301 as a means by which to establish our
appellate jurisdiction). Although Rule 224 likely envisioned a one-count action, we note that,
in the abstract, there is nothing wrong with two claims being set forth in a single complaint
(think of a two-count complaint with one claim for defamation and one claim for intentional
infliction of emotional distress). Therefore, the conundrum in our case is that, although a
Rule 224 order is ordinarily a final order appealable under Rule 301, here we have a final
order with a remaining claim pending. Therefore, a written Rule 304(a) finding is necessary.
We have this. Accordingly, we have jurisdiction.2
2
We acknowledge our recent holding in AT&T v. Lyons & Pinner Electric Co., 2014 IL App (2d)
130577, where we held that the trial court abused its discretion in failing to consider the Geier factors
(Geier v. Hamer Enterprises, 226 Ill. App. 3d 372, 383 (1992)), which are used to determine whether
there is no just reason for delaying the appeal under Rule 304(a). AT&T, 2014 IL App (2d) 130577,
- 17 -
¶ 68 We disagree with the dissent that the trial court entered a section 2-402 order as opposed
to a Rule 224 order. As we have already discussed, section 2-402 is not meant to be used to
uncover the identity of the same defendant named in an existing complaint. And, in our view,
the trial court’s oral and written pronouncements come together to clarify that it intended to
enter a Rule 224 order. In its April 2013 ruling, the court noted that it had instructed Hadley
to restructure his discovery request as a Rule 224 petition. In its oral finding, the court
referenced its written ruling, which presents as a Rule 224 order. Finally, at the hearing on
the motion to reconsider, the parties asked the court to clarify its holding. The court
suggested both orally and in writing that the primary basis for appeal would be Rule 301 (i.e.,
the traditional mechanism by which to appeal a Rule 224 order) and that the alternative basis
would be Rule 304(a) (i.e., if this court were to determine that the ruling resulted from Rule
224 proceedings in which another claim was pending, which we did). The court’s reference
to the motion to quash the subpoena was to Fuboy’s motion, not Hadley’s.
¶ 69 The procedural irregularities here do not defeat jurisdiction. And Fuboy has cited no case
law suggesting that these procedural irregularities are fatal, and therefore he has forfeited any
such argument. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013); Vancura v. Katris, 238 Ill. 2d 352,
369-70 (2010). Forfeiture aside, we note that Fuboy has in no way been prejudiced by the
procedural irregularities at issue here. Rule 224 proceedings in defamation cases may
proceed without any involvement from the pseudonymous defendant. See, e.g., Stone, 2011
IL App (1st) 093386, ¶ 18. Courts have found that the pseudonymous defendant’s
first-amendment right to anonymity is sufficiently protected simply by the petitioner’s
burden to show that he or she can set forth a cause of action in a defamation suit. Id. Here, of
course, Fuboy, through his attorney, did fully participate in the proceedings and had an
opportunity to argue that Hadley would not be able to set forth a viable defamation claim.
¶ 70 III. CONCLUSION
¶ 71 For the aforementioned reasons, we affirm the trial court’s order.
¶ 72 Affirmed.
¶ 73 JUSTICE BIRKETT, dissenting.
¶ 74 I respectfully dissent. I would dismiss this appeal because we lack jurisdiction. We have
an obligation to independently determine whether we have jurisdiction. Department of Health
Care & Family Services v. Cortez, 2012 IL App (2d) 120502, ¶ 7. In his jurisdictional
statement, Fuboy states that jurisdiction exists “pursuant to Illinois Supreme Court Rule 303
because of the final and appealable nature of relief granted pursuant to Supreme Court Rule
¶ 27. This case is distinguishable because the trial court’s motivation to “get the case before the
appellate court” was based on a consideration of a Geier factor, i.e., the possibility that the need for
review might be mooted by future developments in the trial court. See Geier, 226 Ill. App. 3d at 383.
Again, the trial court here stated: “[T]here must be some avenue by which the defendant can seek relief
without disclosure from a higher court than this one.” (Emphasis added.) In other words, the trial court
considered that the loss of anonymity could not be undone; the issue would become moot if the case
proceeded against a named defendant.
- 18 -
224 and also because of the trial court’s finding pursuant to Supreme Court Rule 304(b)
[sic].”
¶ 75 This case was not brought as an independent action under Illinois Supreme Court Rule
224 (eff. May 30, 2008). The trial court, after hearing arguments on Fuboy’s motion to quash
the subpoena served on Comcast for information on Fuboy’s true identity, told Hadley that it
would allow him to “amend your pleading to add a count requesting a procedure under Rule
224, and then we’ll have to determine whether or not the pleading passes muster under a
2-16–2-615 standard.” The trial court informed the parties that it found Stone v. Paddock
Publications, Inc., 2011 IL App (1st) 093386, to be “very instructive in the court’s decision
here.”
¶ 76 Rule 224 “provides a tool by which a person or entity may, with leave of court, compel
limited discovery before filing a lawsuit in an effort to determine the identity of one who may
be liable in damages.” (Emphasis added.) Ill. S. Ct. R. 224, Committee Comments (Adopted
Aug. 1, 1989).
¶ 77 An order authorizing presuit discovery of identification of potential defendants is final
and appealable because it adjudicates the rights of the parties and terminates the litigation.
Beale v. EdgeMark Financial Corp., 279 Ill. App. 3d 242, 245 (1996). That is clearly not the
case here. There is a pending viable complaint, which the majority acknowledges. See supra
¶¶ 55-58. When interpreting a supreme court rule, we apply the same principles of
construction that apply to a statute. The goal of this court in interpreting a supreme court rule
is to ascertain and give effect to the intent of the drafters of the rule. In re Estate of Rennick,
181 Ill. 2d 395, 404 (1998). The most reliable indicator of intent is the language used, which
should be given its plain and ordinary meaning. Rennick, 181 Ill. 2d at 405. Where language
is clear and unambiguous, this court must apply the language used without further aids to
construction. Berry v. American Standard, Inc., 382 Ill. App. 3d 895, 899 (2008). Rule 224 is
clear. It applies only to “Discovery Before Suit to Identify Responsible Persons and Entities.”
There is no authority for allowing the plaintiff in a pending action to use Rule 224 as a
vehicle to identify responsible persons. More to the point, there was no need whatsoever in
this case. Hadley knew that Comcast had Fuboy’s identity and would provide the information
if ordered by a court to do so. Hadley was entitled to proceed by way of subpoena.
¶ 78 In its ruling on Fuboy’s motion to quash the subpoena and Hadley’s purported Rule 224
petition, the court said, “I have denied the motion to quash the subpoena and ordered that
Comcast Cable be directed to provide the plaintiff’s counsel with the identity and last known
address of the account number with the specified IP address, also a copy to Attorney Fagan.”
No matter how you dress it up, this is a nonfinal discovery order, which is not appealable.
Norskog v. Pfiel, 197 Ill. 2d 60, 69 (2001).
¶ 79 The trial court clearly wanted this court to review its decision that disclosure of Fuboy’s
identity was warranted. The trial court remarked, “there must be some avenue by which the
defendant can seek relief without disclosure from a higher court than this one.” It
acknowledged that this case “is a bit different than a normal 224 order.” The trial court said
that its concern was “to get this matter before the appellate court, because I think that’s
where it belongs.” The trial court then granted Fuboy’s request to add Illinois Supreme Court
Rule 304(a) language to its order. Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010). Although Rule
304(a) allows an appeal from an order that does not dispose of an entire proceeding, the mere
presence of rule 304(a) language cannot convert a nonfinal order into a final and appealable
order. Elkins v. Huckelberry, 276 Ill. App. 3d 1073, 1075 (1995). “Preliminary orders in an
- 19 -
action pending in this State are not final and appealable for the reason that they can be
reviewed on appeal from the final judgment in the case.” Eskandani v. Phillips, 61 Ill. 2d
183, 194 (1975). Discovery orders, in both civil and criminal actions, frequently require
parties to disclose relevant matters that might otherwise be considered private, yet the party
challenging such an order must either wait until final judgment to appeal or test the order by
being found in contempt. See J.S.A. v. M.H., 384 Ill. App. 3d 998, 1009 (2008).
¶ 80 During arguments on Hadley’s amended complaint and Fuboy’s amended motion to
quash the subpoena, the trial court asked Hadley’s counsel whether, assuming “the court
orders the subpoena to be pursued against Comcast and basically grants the Rule 224
petition, do you agree with [Fuboy’s counsel] that that is an order that is subject to appeal?”
Counsel answered that he did not think that the order was appealable either as a Rule 224
order or under Rule 304(a). The trial court commented that under “normal circumstances” an
order “under 224 would resolve the controversy concerning 224.” Fuboy’s counsel concluded
his arguments by saying, “[b]ut if this is, indeed, an issue of constitutional dimension as far
as my client is concerned, then there has to be a due process right in order to protect it. And if
there’s not, then we’re making new law here.” Hadley’s counsel responded by saying that
Fuboy’s rights had been protected; he had his hearing and disclosure had been ordered.
Counsel noted that Fuboy conceded “that defamation per se is not speech protected under the
First Amendment.”
¶ 81 The fact that there are important rights at stake here, Fuboy’s first amendment right of
expression and Hadley’s right to a remedy for a perceived wrong, does not justify departure
from well-settled rules of statutory construction. Neither does the fact that the trial court
questioned its own judgment. These same circumstances arise every day in litigation, in both
civil and criminal cases. The majority suggests that I must believe that section 402 is the
procedural posture under which the trial court entered its order. See supra ¶¶ 64-65. Such is
not the case. It is clear to me that the trial court was simply looking for a jurisdictional hook
for defendant to have an immediate appeal.
¶ 82 The supreme court has explained that Rule 304(a) was meant “ ‘to discourage piecemeal
appeals in the absence of a just reason and to remove the uncertainty which existed when a
final judgment was entered on fewer than all of the matters in controversy.’ ” In re Marriage
of Gutman, 232 Ill. 2d 145, 151 (2008) (quoting Marsh v. Evangelical Covenant Church of
Hinsdale, 138 Ill. 2d 458, 465 (1990)). By interpreting Rule 224 to include postsuit appeals,
the majority’s reasoning would encourage more appeals, unnecessarily prolonging litigation
and adding expense to the parties. While I might agree with the majority’s analysis on the
issues, we should not have reached the merits and I therefore respectfully dissent.
- 20 -