On October 30, in Goral v. Kulys, the Illinois First District Appellate Court affirmed dismissal of a defamation suit pursuant to the Illinois Citizen Participation Act, 735 ILCS 110/1 et seq. (the “Act”). The Goral decision confirms that, for defendants sued for government-related speech, the Act offers a potent strategic weapon that can lead not only to dismissal but also reimbursement of a defendant’s attorneys’ fees. The Act provides for dismissal of strategic lawsuits against public participation, or SLAPPs, which Illinois courts have limited to suits that are “meritless” and “retaliatory.” The recent court decision offers a road map for defendants that seek to satisfy these requirements in several helpful ways.
In Goral v. Kulys, a candidate for a Chicago alderman position sued a blogger for defamation. The defendant’s blog posts constituted “participation in government” under the Act because they questioned the candidate’s qualifications for office based on alleged home ownership records and potential tax violations. The complaint sought modest monetary damages as well as an injunction barring future posts that would harm the candidate’s reputation. When the blogger moved for dismissal and fees under the Act based on information from preliminary discovery, the trial court dismissed and the appellate court affirmed in an opinion that addresses several factors that defendants considering an anti-SLAPP defense should evaluate.
First, the decision as to whether the suit was “meritless” hinged, among other things, on the court’s assessment of evidence about the traditional defamation defense of truth. Such evidence-based defenses are more commonly raised at the summary judgment stage, after full discovery, which can be expensive to complete. Goral helps clarify that, when the allegedly defamatory speech is government related, substantive legal defenses can be addressed earlier in the litigation process through a motion under the Act, which can both reduce litigation expense and result in a fee award that would otherwise not be recoverable.
Second, to determine whether the lawsuit was “retaliatory” (i.e., intended to chill participation in government rather than genuinely seek damages for personal harm) the Court gauged the plaintiff-alderman candidate’s intent by looking beyond the pleadings and considering her discovery responses. The Court determined that the suit was retaliatory because (1) plaintiff’s interrogatory responses listed more than $1 million in damages, (2) she sought injunctive relief to prevent defendant’s future speech, and (3) the suit was filed only a few weeks after defendant’s statements and before an upcoming election in which the plaintiff planned to run for a different office.
Third, the procedural history in Goral illustrates strategic options available to defendants as to when to raise the anti-SLAPP defense. The blogger-defendant initially sought dismissal under Section 2-615 of the Illinois Code of Civil Procedure, claiming that the complaint’s allegations failed to state a viable defamation claim. Even though that motion was denied, the anti-SLAPP defense was raised and prevailed on a subsequent motion pursuant to Section 2-619, which admits the sufficiency of the complaint but asserts affirmative matter defeating it. The court allowed this sequence of arguments and found the entire suit “meritless” under the Act, even though it had survived the initial 2-615 motion.
Last, the Goral decision is significant because after an Illinois Supreme Court 2013 opinion in Sandholm v. Kuecker, courts have been reluctant to dismiss defamation claims pursuant to the Act. The Goral opinion confirms that where appropriate, an anti-SLAPP motion can be a valuable tool to defeat meritless defamation claims and can provide defendants with a means to recover their attorneys’ fees.