Court Finds Politician Entitled to Presuit Discovery Warranted to Identify Author of Allegedly Defamatory Political Flyers

Politics is an ugly business and campaigns are often littered with smears and negative advertisements. For Joseph J. Tirio, the race for McHenry County Clerk got particularly ugly and resulted in the publishing of three allegedly defamatory flyers in opposition to Tirio’s candidacy leading up to the 2018 primary election.

The first flyer depicted Tirio as a burglar wearing a mask and gloves and alleged that “Crooked Joe Tirio” had a “secret taxpayer-funded slush fund” and that he was “just another crooked politician.” The back of the flyer stated, in part, that Tirio allegedly used the slush fund to hire four employees and pay for a personal vacation to New Mexico.

In the second flyer, Tirio was again depicted wearing a burglar mask and gloves. It went on to allege that “crooked Joe Tirio” and “his Chicago style politics” were “destroying the GOP with Chicago style sleaze.” The flyer contained a number of allegedly defamatory statements including “Slush fund,” “Taxpayer-funded vacations,” and “Moneyman for the racist campaigns of Brettman & Schuster,” and that “Tirio is the moneyman behind the campaign of RACISM & HATE.”

The third flyer again referenced a secret slush fund, patronage hires, and taxpayer-funded vacations. It also claimed that Tirio and his friends were “David Duke Republicans” with extremist views. One of the respondents named as a respondent in the Rule 224 petition later produced a robo-call that used much of the same language as contained in the flyers.

Tirio won the Republican primary for McHenry County Clerk and filed a petition to identify the author of the flyers pursuant to Illinois Supreme Court Rule 224 against Dalton, publisher of the robo-call, and Breaker Press Co., Inc., the company hired to print the flyers. Rule 224 provides that a person can file an “independent action” seeking to engage in pre-suit discovery to ascertain the identity of one who may be responsible in damages. The action is initiated by the filing of a verified petition in the circuit court naming as respondents the persons from whom discovery is sought and identifying the reason the proposed discovery is necessary.

Tirio’s petition incorporated by reference a proposed complaint against the unknown defendants which alleged that the masked image, “crooked” statement, “slush fund” statement, “hiring” statement, and “vacation statement” contained in the three flyers were defamatory per se. The respondents sought to have the petition dismissed arguing that the statements were not defamatory per se, the slush-fund and hiring statements were capable of an innocent construction, all the statements were protected political opinions, the statements were substantially true, and that the petition failed to adequately allege actual malice.

The trial court found that Tirio failed to sufficiently plead actual malice and that the term “crooked” and the masked image were statements of political opinion and thus not actionable. The trial court did find, however, that the references to a slush fund and a secret slush fund were statements of the alleged fact that were arguably defamatory and not capable of being innocently construed. After filing an amended Rule 224 petition with additional facts, the trial court granted the petition for pre-suit discovery to determine the author of the flyers.

On appeal, the appellate court found that the slush-fund and vacation statements were defamatory per se as they impute the commission of the crime of theft. The Court also found that the statements imputed a lack of integrity in the performance of one’s duties as the statements imply a misuse of government funds, which if true would demonstrate a lack of integrity in Tirio’s performing his duties as the McHenry County Recorder.

The Court rejected the argument that the statements concerning a slush fund were subject to an innocent construction. Although the respondents argued that the phrase could simply mean an “unregulated fund,” the Court found that it was not required to accept such an interpretation as it was unreasonable and not the interpretation intended by the author of the flyers. To determine the correct interpretation, the Court explained that it was “required to interpret the allegedly defamatory words in context, ‘according to the idea they were intended to convey to the reasonable reader.’” Pointing to the burglar imagery on the flyer and the references to “Crooked Joe,” the Court concluded that the “idea intended to be conveyed was that Tirio had an unregulated fund that he used for illicit purposes.”

The Court’s full opinion is available here.

Whether you are being accused of harming someone’s reputation or you believe someone else has harmed your reputation by making defamatory statements, it is important to consult an experienced slander law and cyber-smear law attorney.

Our top-rated by Super Lawyers Naperville, Oak Brook, and  Wheaton defamation attorneys defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. You can view here a federal court decision where we prevailed in a libel per se claim asserting the innocent infringer defense. Here is an arbitration decision where we successfully defended our client by presenting evidence that our client’s 20+ YouTube videos containing negative opinions about a used car dealer were substantially true and were protected opinion under the First Amendment. We recently required a defendant who publicized an allegedly false lawsuit regarding our client to provide an apology and full retraction as part of a confidential financial settlement following our filing of a $16 million suit for libel per se in federal district court.

Our Chicago defamation attorneys near Schaumburg also represent and prosecute claims on behalf of businesses throughout the Chicago area including in  Northbrook and Aurora who have been unfairly and falsely criticized by consumers and competitors in defamatory publications in the online and offline media. We have successfully represented businesses who have been the victim of competitors setting up false rating websites in order to publish defamatory content about our business clients. Beyond slander and libel law, our Chicago business, commercial, class-action, and consumer litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. We serve clients throughout Illinois and the Chicagoland area. You can contact us online here or call us on our locally at 630-333-0333.

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