* Some good background is here and here on Glorioso v. Sun-Times Media Holdings. The state statute in question is here. The Sandholm case referenced below is here.

* Illinois Supreme Court Justice David Overstreet wrote the opinion, with all justices concurring except Justice Rochford, who took no part in the decision…

Defendants, Sun-Times Media Holdings, LLC, and Tim Novak, appeal the judgment of the appellate court, which affirmed an order of the circuit court of Cook County that denied their second motion to dismiss the defamation complaint filed by plaintiff, Mauro Glorioso. On appeal, defendants contend the complaint is subject to dismissal as a “Strategic Lawsuit Against Public Participation (SLAPP)” pursuant to section 15 of the Citizen Participation Act (Act). 735 ILCS 110/15 (West 2022). For the following reasons, we find the lawsuit is not a SLAPP and affirm. […]

The [appellate] court noted precedent finding that a newspaper’s investigatory reporting on the activities of government fell into the activities protected by the Act but found major distinctions between those activities and the publication of the articles. Because the articles were published as news, rather than editorial or opinion pieces presenting the thoughts or stance of the writer, and had no bearing on any election, the court found that whether procuring favorable governmental action was the purpose of the articles remained an unsettled issue of fact.

That’s just ridiculous reasoning. Facts can clearly have as much or more bearing on governance and elections than opinion. But the top court bought it…

As we have stated, the first prong of the post-Sandholm test requires defendants to show that the movants’ acts were in furtherance of their rights to petition, speak, associate, or otherwise participate in government to obtain favorable government action. Defendants argue that, because the articles are “investigative reports” about the activities of a public official within a government agency, they address a matter of public concern and thus constitute “acts in furtherance of [defendants’] right to petition, speak, associate, or otherwise participate in government” within the meaning of section 15 of the Act. Plaintiff disagrees, arguing that an act of petition, speech, or association is not in furtherance of the right to participate in government within the meaning of section 15 unless it is aimed at procuring favorable government action or outcome. We agree with plaintiff. The Act’s plain language encompasses acts of “participation in government” and does not contain language extending such protection to speech regarding matters of public concern that do not amount to “government” participation.

* More…

The declared policy of the Act is to protect “the constitutional rights of citizens and organizations to be involved and participate freely in the process of government.” While section 5 speaks to the vitality of “[t]he information, reports, opinions, claims, arguments, and other expressions provided by citizens”, nowhere in section 5, or anywhere else in the language of the Act, is there any mention of news media or the freedom of the press. This is not to minimize or understate the importance of the press and other news media in our democracy. Our jurisprudence is replete with privileges and other protections designed to protect these concerns, many of which remain at issue in this lawsuit. We are simply holding that the Act specifically protects government participation and does not encompass all media reports on matters of public concern as advocated by defendants.

The Illinois General Assembly needs to add the news media to the SLAPP Act post-haste…

[Appellate] Justice Hyman dissented [in the appellate ruling], asserting that appellate decisions since Sandholm have strayed from its reasoning and erroneously required that a lawsuit be “ ‘meritless and retaliatory’ ” in order to be dismissed as a SLAPP. The dissent painstakingly outlined the origins of the test and its application by the appellate court in order to show that the retaliatory requirement has no basis, will encourage the filing of SLAPPs, and is unworkable. In Justice Hyman’s view, the articles were clearly published in sole furtherance of government participation because they reported on government malfeasance and were “undeniably newsworthy and of interest to the public,” which could lead to reform.

Hyman is exactly right. But there’s nothing to be done about it now except change the law.

* It’s important to note that even if the news media was explicitly included in the statute, that still might not have saved the Sun-Times because of another aspect of the court’s reasoning…

Turning to the second element of the Sandholm test, the appellate court agreed that whether plaintiff’s complaint is filed solely based on defendant’s exercise of political rights requires a showing that the suit is both meritless and retaliatory. With regard to lack of merit, the appellate court agreed with the circuit court, finding as follows:

“We find that [defendants’] reporting could reasonably be read as not fair, accurate, or truthful by creating the implication that [plaintiff] was more culpable in the alleged activity than the anonymous complaint claimed, both in terms of his supposed actions and his supposed authority over PTAB employees. These are questions of fact that allow [plaintiff’s] complaint to survive the pleading stage. Defendants have failed to meet their burden of proving that [plaintiff’s] lawsuit is meritless.”

Turning to the issue of whether defendants showed that plaintiff’s complaint is retaliatory, the appellate court noted that this issue concerns whether plaintiff’s goal in filing the lawsuit was to seek damages for the harm caused to his reputation and character or whether the sole intent was to chill defendants’ rights of petition and speech related to participation in government. The court noted precedent that identified two factors considered on this issue: (1) the timing of the lawsuit and (2) the relationship between damages requested and the injury. In evaluating these factors, the appellate court concluded that defendants failed to show plaintiff’s lawsuit is retaliatory.

In my opinion, this case should never have been brought to the Supreme Court. What a mess.

…Adding… I talked to one of the lead lobbyists on the original SLAPP bill, who said there was no perceived need to mention news media in the language at the time, “because - until this decision today - no court had ever drawn a distinction regarding who was doing the speaking. Speech is speech. It didn’t matter if the speaker was part of the news media or not.”