Statements imputing gang membership not actionable as defamation per se

Recently, the Illinois Appellate Court, First District, clarified a point of defamation law which had created confusion over the years:  Whether a false statement imputing an association with a criminal enterprise, such as a street gang, can support a cause of action for defamation per se (statements that are so obviously and naturally harmful on their face that they are actionable without proof of special damages). In Hardiman v. Aslam, 2019 IL App (1st) 173196, an on-air “teaser” for a television newscast stated, “A former gang member who was once accused of beating his wife wants to be your governor.” As it turned out, then-candidate Tio Hardiman was not a former gang member. He had, however, once pled guilty to domestic violence but claimed that his record had been expunged. Hardiman sued for defamation per se and other torts, alleging that the broadcast falsely charged him with the commission of crimes, both with respect to the “gang member” and domestic violence components of the teaser.

The court first disposed of the domestic violence portion of Hardiman’s claims, finding that it was substantially true. Truth is a complete defense to a charge of defamation.  Even if Hardiman had expunged his prior record, which was not shown in the record, he had, in fact, been convicted of domestic violence. Therefore, the domestic violence component of the statement was not a basis for a defamation action.

The court then examined the “former gang member statement” and found that it did not fit into any per se category of defamation. The court recognized that a statement is actionable as defamation per se when it falsely imputes that the plaintiff committed a crime.  Although the court did not elucidate, a statement that one is a “former gang member” merely charges that the individual formerly associated with people who may commit crimes, not that he, in fact, committed a crime. This is an important distinction. Several years ago, I represented a not-for-profit corporation which was charged in three separate cases with defamation per se for publishing a book which identified certain individuals as “leaders” of various Chicago street gangs. In motions to dismiss, we argued that saying that someone was “in a gang,” or a “gang leader,” was not the equivalent of stating that he had, in fact, committed a crime.  In two out of three of the cases, the judges readily agreed and dismissed the cases with prejudice. In the third case, however, the judge found that the attribution of “gang leadership” necessarily implied on its face that the plaintiff gave orders to gang members to commit crimes notwithstanding that no actual crimes by any person were set forth in the publication, and no “responsibilities” of gang leadership were identified.  Significantly, in a defamation per se case, extrinsic evidence cannot be considered to find a defamatory meaning - - the defamatory meaning and its basis must appear on the face of the statement. Still, the judge was not moved. He did, however, rule that the Complaint failed to state causes of action for injunctive relief, intentional infliction of emotional distress and negligent infliction of emotional distress. The case settled soon thereafter.

There are multiple reasons why a statement charging a mere association with criminals or a criminal enterprise cannot support an action for defamation per se.  To be actionable, the statement must not only falsely charge the plaintiff with the commission of a crime - - the crime must be indictable, involve moral turpitude, and be punishable by death or imprisonment. Alleging that someone associates with criminals, without more, does not meet this threshold. In addition, Illinois is one of a handful of jurisdictions that applies the innocent construction rule. That doctrine provides that if a statement is reasonably capable of an innocent (nondefamatory) interpretation, the innocent construction precludes a per se cause of action. Therefore, in “criminal association” cases, a reasonable, innocent construction should result in the dismissal of the Complaint. Similarly, a false statement that someone had been “arrested” for an offense cannot support a per se cause of action, since it merely asserts that the individual was accused of committing a crime, not that he committed one. Likewise, a statement that an individual was “under investigation” for a crime cannot satisfy the threshold for a per se cause of action. Analogously, a news story describing a subject as being “in the mafia”, without more, will not support a defamation per se action. Like the “former gang member” statement at issue in Hardiman, an “in the mafia” statement charges the subject with associating with a group, not of engaging in criminal conduct.

Several years ago, I defended a member of a professional society who, in a public statement, had referred to a political rival as being part of the “Irving Park mafia”. The rival, who practiced in the Irving Park neighborhood, filed a defamation per se action, claiming that the speech falsely charged him with having committed a crime. In moving to dismiss the Complaint, I argued that associating with a group was not the equivalent of the commission of a crime and that “mafia” could reasonably be innocently construed to refer to a group having a particular and controlling interest on a subject.  The judge, who was well regarded and experienced, denied the motion, remarking, “you shouldn’t be able to say things like that”.  This should serve as a reminder to litigators that the law often isn’t as clear as one would think.  With Hardiman, at least with respect to the criminal association issue, that clarity has been provided.

If you have questions or comments, please contact Phil Zisook at (312) 853-8451 or by e-mail.

A version of this article was published by the Chicago Daily Law Bulletin. To view that article, please click here.