First Amendment Protects Allegedly Defamatory Statements in Men’s Clothing Advertisement, Illinois Supreme Court Rules


Statements in an advertisement for a men’s clothing retailer may have been in poor taste, but they are still protected by the First Amendment to the U.S. Constitution, the Illinois Supreme Court has ruled. In Imperial Apparel Ltd. v. Cosmo’s Designer Direct Inc., Ill., No. 103331 (Feb. 7, 2008), retailer Imperial Apparel sued Cosmo’s after the latter retailer ran an advertisement insulting a competitor that was widely understood to be Imperial. Objecting to Imperial’s appropriation of Cosmo’s signature “3 for 1” sales policy, the Cosmo’s ad disparaged Imperial’s quality and business practices. The ad also used references to the Jewish heritage of the family that owned Imperial, the Rosengartens.

The Rosengartens and Imperial sued Cosmo’s and the Chicago Sun-Times, the newspaper that ran the advertisement. They made claims against both defendants for defamation per se, defamation per quod, false light invasion of privacy, commercial disparagement and violations of the Illinois Consumer Fraud Act. The Cook County trial court in the case dismissed all of their complaints, with prejudice, on the grounds that the advertisement was protected free speech under the First Amendment to the U.S. Constitution. That court used a fact versus opinion test — were the statements intended as opinion? It concluded yes.

The Rosengartens appealed and had better luck with the appellate court, which reversed the false light, consumer fraud and commercial disparagement claims as to all plaintiffs. It also reversed the defamation per quod claim as to the Rosengartens personally, but not Imperial, because the Rosengartens could not show that they personally were financially harmed. However, it upheld the dismissal of the defamation per se count. Citing a paragraph in which Cosmo’s accused Imperial and the Rosengartens of “inflat[ing] prices and compromis[ing] quality,” it found that a reasonable reader could interpret those statements as facts. Cosmo’s and the Sun-Times then made the instant appeal.

The Supreme Court started its analysis of the case by saying the trial court used the wrong test. Whether a statement deserves First Amendment protection is not a question of opinion versus fact, the court said, but the trial court was right that the type of speech at issue matters. Instead, the justices wrote, the test is whether the statements in the ad could reasonably be interpreted as fact. In addition, because the Sun-Times is a media defendant with special protections, Imperial would also have to prove that the statements were actually false.

In any case, the court found, the Cosmo’s ad could not be reasonably interpreted as stating facts:

The text is artless, ungrammatical, sophomoric and sometimes nonsensical. It is also a shameless appeal to ethnic prejudice, extolling, as it does, the supposed superiority of Italians over those of Jewish ancestry, at least “when it comes to fine clothing.” We do not believe, however, that an ordinary reader would perceive it as making objectively verifiable assertions about plaintiffs’ business.

Even racial and religious epithets qualify for First Amendment protection. This issue is fatal to all of Imperial’s claims, the Supreme Court said, and thus there is no need to address other legal issues at hand. Thus, the trial court was upheld and the case was dismissed with prejudice in its entirety.

Lubin Austermuehle’s Chicago commercial and business trial attorneys have a growing practice in commercial disparagement and false defamation of businesses and their products. We handle Illinois commercial disparagement lawsuits for businesses of all sizes, both plaintiffs and defendants. Based in Oakbrook Terrace, near Wheaton, and Chicago, we represent clients throughout Illinois and the Midwest. To speak to our Chicago commercial defamation lawyers about your own case, please contact us through our Web site to set up a confidential consultation.

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