Ciolino v. Simon ( 2021 )

2021 IL 126024IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 126024)
PAUL J. CIOLINO, Appellee, v. ALSTORY SIMON et al.
(Terry A. Ekl, Appellant).
Opinion filed March 18, 2021.
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Justices Theis, Neville, Overstreet, and Carter concurred in the judgment and
opinion.
Chief Justice Anne M. Burke and Justice Michael J. Burke took no part in the
decision.
OPINION
¶1 Plaintiff, Paul J. Ciolino, filed suit against several defendants, including Terry
A. Ekl, for defamation, false light invasion of privacy, intentional infliction of
emotional distress (IIED), and civil conspiracy. Pursuant to section 2-619 of the
Code of Civil Procedure (735 ILCS 5/2-619 (West 2016)), the circuit court of Cook
County dismissed the claims as barred by the statute of limitations. Except as
against one defendant, the appellate court reversed the trial court’s determination
that the claims were time-barred. See 2020 IL App (1st) 190181, ¶ 3. We allowed
Ekl’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Oct. 1, 2019).
¶2 BACKGROUND
¶3 The facts underlying this case are quite extensive. See, e.g., 2020 IL App (1st)
190181, ¶¶ 4-34. We strive to relate only those facts necessary to an understanding
of the issue on appeal, which is whether Ciolino’s complaint is barred by the statute
of limitations.
¶4 Northwestern University’s Medill School of Journalism (the Innocence Project)
sought to exonerate Anthony Porter for the 1982 murders of Jerry Hillard and
Marilyn Green. The Innocence Project suspected that a different individual—
Alstory Simon—had committed the murders. Ciolino, a private investigator who
did work with the Innocence Project, obtained a videotaped confession from Simon.
¶5 Ultimately, Porter’s conviction was vacated. Simon pleaded guilty to the
murders and was sentenced to 37 years in prison. Porter’s exoneration generated a
great deal of publicity and is regarded as the impetus for former Governor George
Ryan calling for a moratorium on the death penalty in Illinois.
¶6 Some people, however, remained unconvinced that Simon was responsible for
the murders. The tactics Ciolino used to obtain Simon’s confession came under
heavy scrutiny. Among other things, it was alleged that Ciolino promised Simon
that he would secure an attorney, Jack Rimland, to represent him in his murder case.
Rimland shared office space with Ciolino and is said to have convinced Simon to
plead guilty. He did not challenge Simon’s confession to Ciolino or present other
evidence to the court.
¶7 Simon unsuccessfully filed a pro se petition for postconviction relief.
Thereafter, Ekl and James Sotos began representing Simon and filed a successive
postconviction petition asserting actual innocence. New evidence in support of the
successive petition provided that two witnesses who had implicated Simon had
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recanted their statements. Those witnesses explained that their statements were
induced by promises to them made by David Protess of the Innocence Project.
¶8 Following an internal investigation into the Innocence Project’s journalistic and
investigative practices, Anita Alvarez, the Cook County State’s Attorney at that
time, revisited Simon’s case and formally abandoned all charges against him. The
circuit court granted the motion and vacated Simon’s convictions. By this time,
Simon had served 15 years in prison. Simon filed a federal civil rights lawsuit on
February 17, 2015, for malicious prosecution against Ciolino, Northwestern
University, Protess, and Rimland.
¶9 In 2011, defendant William Crawford authored a document, “Chimera,” which
contended that the Innocence Project had framed Simon. On June 9, 2015,
Crawford published a book titled Justice Perverted: How the Innocence Project of
Northwestern University’s Medill School of Journalism Sent an Innocent Man to
Prison, which sets forth the theory that Simon was framed by Ciolino and others to
secure Porter’s release to ultimately end the death penalty in Illinois. It was this
book that inspired the documentary at issue—Murder in the Park (Transition
Studios 2014).
¶ 10 Murder in the Park was created by defendants Andrew Hale and Whole Truth
Films. Like Justice Perverted, Murder in the Park propounds the theory that Protess
and the Innocence Project undertook an ends-justified-the-means approach to
getting the death penalty abolished in Illinois. Murder in the Park contains
interviews and commentary from defendants Simon, Hale, Ekl, Sotos, Delorto,
Crawford, and Alvarez. The claim is advanced that Ciolino engaged in criminal
behavior in his efforts to obtain a false confession from Simon.
¶ 11 Ciolino’s position, however, is that defendants’ goal has been to discredit the
Innocence Project and the wrongful conviction movement. On April 27, 2016,
Ciolino filed a counterclaim in Simon’s federal case. Ciolino countersued Simon
and interposed claims against several defendants, including Ekl, for defamation,
false light, IIED, and conspiracy. On January 3, 2017, Ciolino’s counterclaim was
dismissed because the court concluded that the counterclaim was not compulsory
and the district court did not have supplemental jurisdiction. Simon v. Northwestern
University, No. 15-cv-1433, 2017 WL 25173, at *5 (N.D. Ill. Jan. 3, 2017).
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¶ 12 On January 2, 2018, Ciolino filed a complaint in the circuit court of Cook
County. Count I is for defamation against several defendants, including Ekl,
ultimately stemming from Murder in the Park’s content and statements. Ciolino
attributes three allegedly defamatory statements to Ekl. Count IV is for false light
publicity against all defendants based on the allegedly defamatory statements
identified in counts I, II, and III, including the three statements attributed to Ekl in
count I. Count V is for IIED against all defendants. Finally, count VI is for civil
conspiracy. The circuit court granted defendants’ motions to dismiss. Ekl filed a
motion to dismiss pursuant to section 2-619.1 of the Code of Civil Procedure (735
ILCS 5/2-619.1 (West 2016)) asserting that Ciolino’s claims were untimely
because he did not file suit in federal court before the expiration of the one-year
statute of limitations (id. § 13-201).
¶ 13 In support of their motions to dismiss, Ekl and Christopher Rech, a manager of
Whole Truth Films, attested to the following information. Per Ekl’s affidavit, Ekl
attended a public showing of Murder in the Park in November 2014 in New York
City, at the 2014 DOC NYC film festival. The film festival was open to the public.
Rech additionally declared that DOC NYC is America’s largest documentary film
festival; that, prior to its premiere, Murder in the Park was advertised and
mentioned in several different media outlets; that from March 24-26, 2015, Murder
in the Park was played to sold-out audiences at the Cleveland International Film
Festival after being advertised in a manner similar to that for DOC NYC; and that
“[a]t no time did Whole Truth hide the Documentary or its contents from the
public” but it was instead “actively advertised *** so people would go see it.”
Referencing several exhibits in example, Rech’s declaration asserted that Murder
in the Park was advertised, referenced, or mentioned in varying capacities by the
following outlets: the Chicago Sun-Times, the Jacksonville Journal-Courier
(Illinois), the Chicago Tribune, Fox News, IndieWire, Variety, the Villager, and
Twitter. The articles were published between October 30, 2014, and March 24,
2015.
¶ 14 Ciolino attached his own affidavit to his response, attesting that he was not
aware of Murder in the Park’s existence as it was being shown in New York City
or any of the attendant articles and media promoting Murder in the Park. He also
attested that he was unaware that Murder in the Park was shown in Cleveland in
March 2015. Furthermore, Ciolino asserted that he did not learn of Murder in the
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Park’s existence until after it was shown in Chicago at the Gene Siskel Film Center
in or around July 2015.
¶ 15 The circuit court granted the motions to dismiss, ruling that the claims were
time-barred because Murder in the Park premiered more than a year before Ciolino
filed suit. The court did not address defendants’ arguments that Ciolino’s claims
were not actionable as a matter of law (id. § 2-615).
¶ 16 The appellate court affirmed in part, reversed in part, and remanded to the
circuit court for further proceedings. 2020 IL App (1st) 190181, ¶ 101. Relevant
here, the appellate court reversed the circuit court’s ruling that Ciolino’s claims
against Ekl were time-barred. Id. ¶ 100. Although the New York City premiere of
Murder in the Park took place more than a year before the operative filing date of
Ciolino’s complaint, the court analyzed whether the discovery rule applied to
Ciolino’s claims for defamation and false light publicity such that the one-year
statute of limitations was tolled until Ciolino knew or should have known of the
publication of the allegedly defamatory material in Murder in the Park. See id.
¶¶ 39, 42, 50-68. Defendants argued that the discovery rule should not even be
considered because the film was not hidden and its existence was not inherently
unknowable. Id. ¶ 61. Nonetheless, the court noted that a “litany of factual issues”
remained unresolved and precluded dismissal. Id. ¶¶ 61-62, 68. Additionally, the
court concluded that defendants failed to present evidence on all points to
counteract the inferences that must be drawn in Ciolino’s favor. Id. ¶ 61.
Accordingly, the court remanded the case for further proceedings. Id. ¶ 100.
¶ 17 This court allowed Ekl’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Oct.
1, 2019).
¶ 18 ANALYSIS
¶ 19 At issue is whether Ciolino’s defamation and false light publicity claims are
time-barred. Section 13-201 of the Code of Civil Procedure provides that a cause
of action for defamation or false light publicity must be filed within one year of the
cause of action’s accrual. See 735 ILCS 5/13-201 (West 2016) (“Actions for
slander, libel or for publication of matter violating the right of privacy, shall be
commenced within one year next after the cause of action accrued.”); Tom
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Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 61 Ill. 2d 129,
131-32 (1975); Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 227 Ill. 2d
381, 393 (2008) (referencing the interdependency of defamation and false light
claims). The cause of action for defamation accrues on the date that an allegedly
defamatory statement is published. Tom Olesker’s, 61 Ill. 2d at 131-32. “Any act
by which defamatory matter is communicated to someone other than the person
defamed is a publication.” Missner v. Clifford, 393 Ill. App. 3d 751, 763 (2009).
Also, “ ‘[a]ll persons who cause or participate in the publication of [defamatory]
matters are responsible for such publication.’ ” Van Horne v. Muller, 185 Ill. 2d
299, 308 (1998) (quoting 33A Ill. L. & Prac. Slander and Libel § 83 (1970)).
¶ 20 A motion to dismiss pursuant to section 2-619(a) of the Code of Civil Procedure
“admits the legal sufficiency of the plaintiff’s claim, but asserts certain defects or
defenses outside the pleading that defeat the claim.” Solaia Technology, LLC v.
Specialty Publishing Co., 221 Ill. 2d 558, 579 (2006). The running of the statute of
limitations is one such defense serving to bar a claim from proceeding further. See
735 ILCS 5/2-619(a)(5) (West 2016); Moore v. People for the Ethical Treatment of
Animals, Inc., 402 Ill. App. 3d 62, 73 (2010). A dismissal pursuant to section 2-619
presents a question of law subject to de novo review. DeLuna v. Burciaga, 223 Ill.
2d 49, 59 (2006).
¶ 21 Here, by virtue of the Illinois savings statute, Ciolino is deemed to have filed
his complaint on April 27, 2016. See 735 ILCS 5/13-217 (West 1994); 1 2020 IL
App (1st) 190181, ¶ 39; Bryson v. News America Publications, Inc., 174 Ill. 2d 77,
105 (1996) (“Section 13-217 gave the plaintiff an absolute right to refile the same
cause of action in the circuit court after that action was dismissed in the federal
district court for lack of diversity jurisdiction.”). Ciolino urges application of the
discovery rule because, when Murder in the Park was first shown in New York
City on November 17, 2014—outside the one-year statute of limitations—he did
not and could not have known about the allegedly defamatory statements contained
therein. See Rozny v. Marnul, 43 Ill. 2d 54, 70 (1969) (the discovery rule permits a
plaintiff “to sue within the statutory period computed from the time at which he
knew or should have known of the existence of the right to sue”).
1
The subsequent version of this statute was held unconstitutional in its entirety in Best v. Taylor
Machine Works, 179 Ill. 2d 367 (1997).
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¶ 22 Ekl asserts that the discovery rule does not apply and thus Ciolino’s complaint
is untimely. Ekl posits that the discovery rule’s application to this circumstance
would undermine the legislature’s enactment of the Uniform Single Publication Act
(single-publication rule). See 740 ILCS 165/1 (West 2016); Weber v. Cueto, 253
Ill. App. 3d 509, 522 (1993) (noting that “[t]he Act prohibits more than one cause
of action for the same means of publication, no matter how many times that
publication is reproduced”); see also Founding Church of Scientology of
Washington, D.C. v. American Medical Ass’n, 60 Ill. App. 3d 586, 588-89 (1978)
(stating “the subsequent distribution of existing copies of an original publication
neither creates a fresh cause of action nor tolls the applicable statute of
limitations”).
¶ 23 Ekl also notes that the legislature did not write a discovery rule into section 13-
201 and thus did not intend for its application. Ekl principally relies on this court’s
decision in Tom Olesker’s, which, according to Ekl, holds that defamation claims
premised on statements in mass-media publications are not subject to the discovery
rule because they are readily accessible to the general public. Tom Olesker’s, 61 Ill.
2d at 137-38. Ekl contends, relying on Tom Olesker’s, that subsequent case law
more clearly articulated that the discovery rule will only apply where the
publication was “ ‘hidden, inherently undiscoverable, or inherently unknowable.’ ”
See Peal v. Lee, 403 Ill. App. 3d 197, 207 (2010) (quoting Blair v. Nevada Landing
Partnership, 369 Ill. App. 3d 318, 326 (2006)). For example, in Winrod v. Time,
Inc., the appellate court held that the statute of limitations began to run on the date
a magazine was first disseminated to the general public. 334 Ill. App. 59, 60-61, 72
(1948). In Winrod, Ekl stresses that the appellate court did not examine whether the
plaintiff received a copy of the magazine or was otherwise made aware of the
publication of the defamatory material. See id.¶ 24 According to Ekl, the appellate court below should have only considered
whether the New York City showing was concealed from the public or inherently
undiscoverable or unknowable. Although the showing in November 2014 at the
DOC NYC film festival may not have been easily discoverable, Ekl maintains that
it was far from being inherently undiscoverable.
¶ 25 Ciolino counters that Ekl seeks “to overrule long-standing precedent that the
discovery rule may apply to defamation and false light claims when the defamatory
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material has not been made available to a mass sector of the public.” Ciolino
contends that general issues of material fact exist as to whether he knew or should
have known of the defamatory statements in Murder in the Park prior to its Chicago
screening on July 15, 2015. It is Ciolino’s position that his defamation and false
light claims accrued when Murder in the Park was mass-published on Showtime
on February 17, 2016, or, at the earliest, when it was screened in Chicago on July
15, 2015. Ciolino asserts that Tom Olesker’s distinguished between defamatory
material published through mass-media that is generally available to the public and
that which is only available to a small subset of people and generally inaccessible
to the public. Ciolino disputes certain averments offered by Ekl. Specifically,
Ciolino contends that none of the screenings were advertised to a general audience,
that the contents were not reported in any media publications, and that, other than
the isolated showings, the film was not available to or accessible by the general
public until it began airing on Showtime.
¶ 26 Having set forth the parties’ respective arguments, we turn to the issue of
whether application of the discovery rule would undermine the single-publication
rule.
¶ 27 Single-Publication Rule
¶ 28 Ekl, Ciolino, and the appellate court all appear to assume that the single-
publication rule applies. Numerous cases note that application of the discovery rule
in the defamation context would undermine the single-publication rule. Thus, it is
necessary to begin our analysis by examining that rule.
¶ 29 The foremost Illinois case examining the single-publication rule is Winrod.
There, the appellate court examined the propriety of the single-publication rule in
the context of whether a libel 2 action was barred by the one-year statute of
limitations. Id. at 60. The plaintiff filed suit on April 13, 1943, in connection with
an alleged libel that was printed and published in an issue of Life magazine. The
defendant moved to strike the complaint because, although the date “April 13,
1942,” appeared on the magazine, the magazine had been published at least two
days earlier. Id. Affidavits attached to the defendant’s motion demonstrated that
2
Illinois no longer distinguishes between libel and slander. See Bryson, 174 Ill. 2d at 89.
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Life magazine subscribers received the copy of the April 13, 1942, issue on or prior
to April 11, 1942. Id. Also, by April 11, 1942, newsstand sale copies of that issue
appeared for sale throughout the country. Id. The trial court allowed the motion to
strike and entered judgment in favor of the defendant. Id. at 60-61.
¶ 30 The Winrod court observed that, “[h]istorically, each delivery and sale of an
article containing defamatory material was considered a publication that, defenses
aside, gave rise to a separate cause of action.” Id. at 61 (citing Duke of Brunswick
v. Harmer (1849) 117 Eng. Rep. 75; 14 Q.B. 185). However, the court noted that
this rule had recently been tempered by the growing recognition that such a rule
was outdated. See id. (stating “this ancient rule ‘is ill-suited to the needs of a culture
demanding mass publication’ ” (quoting Libel and Slander—Publication—Sale of
Replacement Copies Within Statutory Period Held Republication Resulting in New
Cause of Action, 59 Harv. L. Rev. 136, 136 (1945))). This was because the rule
espoused in Harmer would lead to a multiplicity of suits and render the statute of
limitations meaningless. Id.¶ 31 The Winrod court surveyed numerous cases and arrived at the conclusion that
“ ‘the decided weight of authority in this country is, where large distributions of
published matter are involved, that the cause of action accrues, for the purpose of
the statute of limitations, upon the first publication, when the issue goes into
circulation generally.’ ” Id. at 64. Further, as to whether “certain miscellaneous
copies [that] were circulated to the general public up to and including April 18 and
for some time thereafter” could constitute republications to retrigger the statute of
limitations, the court dispensed with this assertion by relying on authority holding
that, “where any distribution takes place after the original sale, no new cause of
action will accrue if the subsequent distribution is reasonably connected, by trade
practice relating to the type of printed matter involved, to the original distribution.”
Id. at 65.
¶ 32 Finally, the Winrod court favorably cited Seelman on the Law of Libel and
Slander’s articulation of the test for distinguishing between when a republication
of an article has occurred or simply a repetition of the defamatory material. See id.
at 68-69 (describing the reliance thereon by Wolfson v. Syracuse Newspapers, Inc.,
4 N.Y.S.2d 640 (App. Div. 1938)); see also Ernest P. Seelman, The Law of Libel
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and Slander § 130, at 120 (1933). Relevant here, Winrod cited the test from
Seelman as follows:
“ ‘The test of whether the article is a republication or a repetition should not
depend on an interval of time, or a separate sale but upon the answer to the
question. Was the act of the defendant a conscious independent one? The
individual who sends the same letter to different persons at the same or another
time, consciously and intentionally and independently does so. Each separate
mailing is a separate conscious act. Each would then be provable as showing
conscious intent. Whereas, in the case of a newspaper, as the circulation is
considered one of the chief items of damage, and plaintiff recovers for all the
distribution, no conscious intent arises until the defendant consciously as a
second edition republishes the article. In each case it is the conscious act which
determines.’ ” (Emphases in original.) Winrod, 334 Ill. App. at 70 (quoting
Seelman, supra, § 130, at 120).
¶ 33 The Winrod court concluded that “Seelman’s test of the conscious act appeals
to us as more rational, and in the case of a newspaper or magazine ‘no conscious
intent arises until the defendant consciously as a second edition republishes the
article.’ ” (Emphases in original.) Id. at 72 (quoting Seelman, supra, § 130, at 120).
For that reason, the court held that the miscellaneous copies of Life magazine
received on April 13, 1942, and thereafter did not constitute separate publications
giving rise to separate causes of actions with different accrual dates. Id. at 61-62,
72. Instead, those copies were held to be subject to the single-publication rule. Id.
at 72. Accordingly, the plaintiff’s cause of action accrued on April 11, 1942, and
was time-barred. Id. at 60, 72.
¶ 34 In 1959, the Illinois legislature codified the single-publication rule by adopting
the Uniform Single Publication Act, which provides in pertinent part:
“No person shall have more than one cause of action for damages for libel or
slander or invasion of privacy or any other tort founded upon any single
publication or exhibition or utterance, such as any one edition of a newspaper
or book or magazine or any one presentation to an audience or any one
broadcast over radio or television or any one exhibition of a motion picture.”
740 ILCS 165/1 (West 2016).
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¶ 35 Ciolino maintains that, consistent with the single-publication rule, he is not
attempting to bring multiple lawsuits against Ekl for each time Murder in the Park
was broadcast but, rather, a single lawsuit. Thus, Ciolino asserts that application of
the discovery rule would not run afoul of the single-publication rule.
¶ 36 However, we need not reach the parties’ arguments regarding the interplay
between the single-publication rule and the discovery rule because the July 15,
2015, screening of Murder in the Park in Chicago is a separate publication that
does not fall within the ambit of the single-publication rule. The parties discuss
Tom Olesker’s at length, but that case involved a one-time publication of the
defamatory credit report by a credit reporting agency to its subscribers, a group of
which the plaintiff was not a member. Tom Olesker’s, 61 Ill. 2d at 131-32. The
single-publication rule was not at issue nor discussed. See generally id.Accordingly, Tom Olesker’s has no real bearing on the instant case.
¶ 37 The single-publication rule does not gather under its umbrella all repetitions of
allegedly defamatory material appearing in the same medium. See 740 ILCS 165/1
(West 2016) (qualifying that the rule only applies to any “one” publication,
exhibition, utterance, presentation to an audience, broadcast over radio or
television, or “any one exhibition of a motion picture” (emphasis added)); see also
id. § 3 (“This Act shall be so interpreted as to effectuate its purpose to make uniform
the law of those states or jurisdictions which enact it.”). Multiple publications 3 of
the defamatory material may still exist. See, e.g., Winrod, 334 Ill. App. at 70, 72;
Blair, 369 Ill. App. 3d at 325-26; Founding Church, 60 Ill. App. 3d at 588-89;
Shively v. Bozanich, 80 P.3d 676, 682-85, 685 n.7 (Cal. 2003) (providing a detailed
discussion of the single-publication rule); see also Shively, 80 P.3d at 685(observing the “qualification that repetition of the defamatory statement in a new
edition of a book or newspaper constitutes a new publication of the defamation that
may give rise to a new cause of action, with a new accrual date” (emphasis in
original)); Restatement (Second) of Torts § 577A (1977) (covering “Single and
Multiple Publications”).
¶ 38 The single-publication rule certainly applies where defamatory material is
mass-published to the public in a medium where the delayed receipt of the
3
Varying terms are used to identify this situation.
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defamatory material is incidental to the medium’s mode of distribution. See
Winrod, 334 Ill. App. at 65 (providing that, “where any distribution takes place
after the original sale, no new cause of action will accrue if the subsequent
distribution is reasonably connected, by trade practice relating to the type of printed
matter involved, to the original distribution”); see, e.g., Pippen v. NBCUniversal
Media, LLC, 734 F.3d 610, 615 (7th Cir. 2013) (noting that the single-publication
rule “protects speakers and writers from repeated litigation arising from a single,
but mass-produced, defamatory publication”). The clearest example is where the
defamatory material is contained in a book or a magazine of nationwide
distribution. The publisher will not be subject to a separate suit for each individual
who reads the defamatory material following the release of the first edition or
particular issue. This is true, as demonstrated by Winrod, even where certain copies
are delivered after the general public has received the copy of the edition or issue.
See generally Winrod, 334 Ill. App. 59. As a result, there is only one accrual date.
¶ 39 Section 577A of the Restatement (Second) of Torts, “Single and Multiple
Publications,” is particularly illuminating. This section provides, in relevant part:
“(1) Except as stated in Subsections (2) and (3), each of several
communications to a third person by the same defamer is a separate publication.
(2) A single communication heard at the same time by two or more third
persons is a single publication.
(3) Any one edition of a book or newspaper, or any one radio or television
broadcast, exhibition of a motion picture or similar aggregate communication
is a single publication.” Restatement (Second) of Torts § 577A (1977).
Of note, comment d on subsection (3) states in pertinent part:
“So far as the cases heretofore decided indicate, the single publication rule
stated in Subsection (3) does not include separate aggregate publications on
different occasions. Thus if the same defamatory statement is published in the
morning and evening editions of a newspaper, each edition is a separate single
publication and there are two causes of action. The same is true of a rebroadcast
of the defamation over radio or television or a second run of a motion picture
on the same evening. In these cases the publication reaches a new group and the
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repetition justifies a new cause of action. The justification for this conclusion
usually offered is that in these cases the second publication is intended to and
does reach a new group.” (Emphases added.) Id. § 577A cmt. d, at 210.
¶ 40 Unlike, for example, an edition of a newspaper or magazine that was, upon its
first publication, distributed to the general public, Murder in the Park was first
screened to a limited audience in New York City on November 14, 2014. This
certainly constituted a publication of the allegedly defamatory material, and the
premiere itself would be subject to the single-publication rule. Id. § 577A cmt. c.
(noting that the single-publication rule applies to an “aggregate communication that
reaches a large number of persons at the same time”). However, we find that the
subsequent screenings of Murder in the Park to “sold-out audiences” at the
Cleveland International Film Festival and, critically, at the Gene Siskel Film Center
in Chicago were separate publications. Each of these screenings was shown to new
and distinct audiences at different locations, dates, and times. See Blair, 369 Ill.
App. 3d at 326 (finding the use of the same photo was not a republication in part
because it was targeted at the same audience and locations); Lehman v. Discovery
Communications, Inc., 332 F. Supp. 2d 534, 539 (E.D.N.Y. 2004) (holding that,
even though the subsequent re-airing of the defamatory broadcast was in a format
identical to the original broadcast, the rebroadcast was considered to be a separate
publication where it was “intended to reach a new audience”); see also id.(commenting that, “[i]f the decision maker has sustained her maximum liability
when she first broadcasts the television program, she has no motivation to limit the
injury”).
¶ 41 We note that, in the cases holding that the publications at issue therein were
subject to the single-publication rule, the publications were “mass-published” to a
general or national audience. See Winrod, 334 Ill. App. at 60 (noting that the issue
of Life magazine was distributed “throughout the United States”); Blair, 369 Ill.
App. 3d at 326 (finding that the photo was “delivered to a mass sector of the
public”); see, e.g., Shively, 80 P.3d at 689 (holding that the single publication rule
applied to book that had been “generally distributed to the public”); Long v. Walt
Disney Co., 10 Cal. Rptr. 3d 836, 842 (Ct. App. 2004) (explaining that, “like a
publication in a nationally distributed book, newspaper, or magazine, the
broadcasts on national television over a period of many months meant that plaintiffs
had access to them, if only as members of the general public”); see also Long, 10
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Cal. Rptr. 3d at 841 (“The [single-publication rule] was intended to protect
defamation-like claims, implicating First Amendment values and arising from mass
communications.”); see also Restatement (Second) of Torts § 577A cmt. c, illus. 3,
4 (1977) (illustrations to the comment on subsection (3) provide examples of single
publications that involve an article published in a magazine of national circulation
and a broadcast over television on a national network). As mentioned, ours is the
reverse situation, where Murder in the Park’s premiere occurred in a far more
constrained way. It was accessible on November 17, 2014, only in New York City
at a certain time and at the DOC NYC film festival. Stated differently, by instead
“starting small” and publishing Murder in the Park to a limited audience in New
York City, it cannot follow that the audiences in Cleveland or Chicago were part of
the same audience.
¶ 42 In a similar vein, the subsequent screenings in Cleveland and Chicago are not
akin to the situation where, for example, miscellaneous copies of a magazine issue
containing defamatory material incidentally make their way into the hands of third
parties on a later date. See Winrod, 334 Ill. App. at 63-65; see also Wolfson, 4
N.Y.S.2d at 642 (determining that defendants’ conduct of maintaining bound
copies of its prior issues in its library and making such copies available upon
request by a third party was “passive in character, with nothing to indicate a
conscious intent to induce the public or any individual to read the alleged libels”
and thus did not amount to a republication). Had the premiere in New York City
been the only time Murder in the Park was shown, there would not have been any
other incidental disseminations of the documentary. Accordingly, the additional
screenings in Cleveland and Chicago cannot be characterized as passive.
¶ 43 We observe also that the single-publication rule would not serve its purpose if
it were applied to encompass the subsequent screenings in Cleveland and Chicago.
Specifically, application of the rule would not prevent “ungovernable piecemeal
liability and [a] potentially endless tolling of the statute of limitations.” See, e.g.,
Long, 10 Cal. Rptr. 3d at 841. For example, in Blair, 369 Ill. App. 3d at 320-21, the
defendants used the same photo of the plaintiff to promote its restaurant in several
ways from 1995 until 2004. Blair specifically analyzed and rejected the argument
that the repeated use of the photo constituted separate publications. Id. at 324-25.
In doing so, the court noted that “a republication of the plaintiff’s likeness can
constitute a new cause of action if the publication is altered so as to reach a new
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audience or promote a different product.” Id. at 325. As an example, the court cited
Lehman, 332 F. Supp. 2d 534, where 17 rebroadcasts of a program that defamed an
orthopaedic surgeon were each held to constitute a republication such that the
statute of limitations began anew with each broadcast. Blair, 369 Ill. App. 3d at
325. The Blair court concluded that the continued use of the plaintiff’s image was
not considered to be a republication because the picture was used to promote a
single product, the “image remained constant and was not significantly altered to
reach a new audience” and “was displayed predominantly within the casino and to
existing casino customers.” Id. at 326. Only after examining whether the repeated
use of the photo constituted a republication did the appellate court consider and
reject the plaintiff’s argument that the discovery rule should be applied. Id.
¶ 44 Critically, in Blair, the appellate court cited Founding Church for the broad
proposition that the single-publication rule provides that “ ‘any subsequent
appearances or distributions of copies of the original publication are of no
consequence to the creation or existence of a cause of action.’ ” Id. at 324-25
(quoting Founding Church, 60 Ill. App. 3d at 588). A closer examination of
Founding Church reveals that that court was not referring to all subsequent
appearances or distributions of an original publication but of a mass-published
article. There, the court considered whether three copies of an allegedly defamatory
article could constitute a “second edition or new publication.” Founding Church,
60 Ill. App. 3d at 589. The allegedly defamatory article was “published generally
and released in 1968.” Id. Although the three copies were released several years
later in 1975, the court relied on Winrod and held that the three copies “were mailed
on an isolated basis and were nothing more than miscellaneous copies incidental to
the general publication of the article 7 years earlier.” Id.; see also id. at 588 (noting
that, “[u]nder the Uniform Single Publication Act, no person is given more than
one cause of action for damages for libel founded on any single publication, such
as one edition of a newspaper or magazine, or one printing of a book” (emphases
added)). The court commented that it would be unjust and unrealistic to deem the
three copies a republication because “the article in question might well be on file
in libraries, and so open to the public anyway.” Id. at 589.
¶ 45 Again, here there were but several distinct and limited screenings of Murder in
the Park. Once Murder in the Park was shown in New York City, there was no
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possibility, like in Founding Church, that a copy of its contents “might well be on
file” and thus “so open to the public anyway.” See id.
¶ 46 Accordingly, because Murder in the Park was republished in Chicago on July
15, 2015, thus retriggering the statute of limitations, Ciolino’s complaint is timely
filed. As a result, we need not address whether the discovery rule applies to the
earlier screenings in New York City and Cleveland. See In re Alfred H.H., 233 Ill.
2d 345, 351 (2009) (“As a general rule, courts in Illinois do not decide moot
questions, render advisory opinions, or consider issues where the result will not be
affected regardless of how those issues are decided.”).
¶ 47 Because the defamation and false light claims are timely, Ekl’s arguments that
Ciolino’s civil conspiracy claim and IIED claim are time-barred because they are
derivative and thus subject to the same one-year statute of limitations fail.
¶ 48 Finally, Ekl asserts that reversal of the appellate court’s decision is warranted
for the additional reason that it wrongly declined to rule on whether the statements
attributed to Ekl were actionable as a matter of law. Like the trial court and the
appellate court, we decline to reach these arguments. See 2020 IL App (1st)
190181, ¶¶ 79-86. We make clear that we express no opinion beyond the issue of
whether the claims were timely filed.
¶ 49 CONCLUSION
¶ 50 Because the screenings of Murder in the Park each constituted a separate
publication of the allegedly defamatory material, the single-publication rule does
not apply. Following the screening of Murder in the Park in Chicago, Ciolino filed
his complaint within the one-year statute of limitations. Because the complaint is
timely filed, we need not consider whether the discovery rule would apply to toll
the statute of limitations.
¶ 51 Accordingly, the judgment of the appellate court, reinstating Ciolino’s claims
against Ekl, is affirmed. We remand the cause to the trial court for further
proceedings.
¶ 52 Appellate court judgment affirmed.
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¶ 53 Circuit court judgment reversed.
¶ 54 Cause remanded.
¶ 55 CHIEF JUSTICE ANNE M. BURKE and JUSTICE MICHAEL J. BURKE
took no part in the consideration or decision of this case.
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