October 25, 2012 9:27am PT by Eriq Gardner
Fox TV Can't Escape $28 Million Defamation Lawsuit Brought by Judge
An Illinois appeals court has rejected an attempt by Fox Television Stations to escape a $28 million lawsuit alleging defamation, false light, infliction of emotional distress and invasion of privacy by intrusion.
The lawsuit comes from James Ryan, a circuit court judge who was reassigned after being featured as part of a four-part expose by WFLD Fox News Chicago on the lazy work habits of Illinois judges. The Fox investigation included logs from the sheriff's office showing that courtrooms were closing earlier than they should have been, hidden cameras showing judges leaving early, an on-scene reporting, such as one reporter who found a judge sunbathing outside of her home at 2 pm.
But the report also had an error.
The Fox station identified Judge Ryan as being one of the judges who left work earlier. In the report, the station showed his house and car in the driveway during work hours. Unfortunately, the house and car belonged to his neighbor.
Ryan sued Fox, which attempted to strike the lawsuit as an impingement of free speech.
That paved the way to an appellate ruling on Tuesday wherein Justice Maureen Elizabeth Connors explores the state's anti-SLAPP statute.
Anti-SLAPP laws -- short for "strategic lawsuit against public participation" -- are an increasingly popular way to cut short litigation intended to be bullying. A plaintiff, for example, might bring a $100 million defamation claim against a filmmaker without any chance of victory but the idea that it will force consideration of the legal cost to defend such a lawsuit. Lest plaintiffs use courts to stifle First Amendment rights, nearly 30 states have enacted such laws to give defendants a quick out from meritless litigation.
The problem, as Justice Connors observes in her ruling, is that bad lawsuits "are very hard to distinguish from normal lawsuits."
In Illinois' version of the anti-SLAPP statute, judges are supposed to analyze whether claims arise from a party's right to speech, petition or association -- dismissing such lawsuits unless the plaintiff has produced "clear and convincing evidence" of immunity from liability. Further guidance from previous appellate decisions in the state say that dismissal is warranted only in the instances of being meritless and retaliatory.
In the lawsuit against Fox, Justice Connors finds Ryan's lawsuit arose from protected activities -- the furtherance of free speech -- and that the claims qualify as retaliatory.
"Plaintiff filed his original complaint less than three days after the initial segment of the report aired," she writes, adding that "it is difficult to see how such a high demand (of $28 million) can be factually justified."
But Justice Connors agrees with a lower court and says that the anti-SLAPP motion should fail because it wasn't meritless.
Fox presented the case that their report was "substantially true" except for one detail that the station later corrected on the air. However, perhaps because Justice Connors has some personal knowledge of the habits of judges, she won't accept this.
"A judge's official duties do not require a constant presence in the courtroom itself at all times, or even in the courthouse," writes the judge. "Substantial truth is an affirmative defense that requires a defendant to show that the 'gist' or 'sting' of the defamatory material is true. The gist of the report was that plaintiff was neglecting his official duties because he habitually left the courthouse and went home during business hours, but the sheriff's logs prove only that plaintiff was not in his courtroom at certain times."
Thus, Fox's attempts to escape a $28 million lawsuit fails. Anti-SLAPPs work in theory, until judges think they go too far, or when they work at the disadvantage of other judges.
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