Innocent Construction Rule

The Illinois innocent construction rule applies only to libel per se actions. Whether a statement has an innocent construction is determined as a matter of law by the Court. The rule favors defendants in a libel per se actions because a tougher standard is warranted since damages are presumed in libel per se cases.

A statement is non-actionable when it has an innocent construction, i.e., the Court must dismiss the plaintiffs’ complaint, if the alleged defamatory statement as published has a reasonable, non-defamatory meaning or if the statement reasonably pertains to someone other than the plaintiff.

Courts need not strain to find an innocent construction but must adopt a non-defamatory interpretation if it is reasonable. If a statement is capable of two reasonable constructions, one defamatory and one innocent, the innocent one must prevail.

Whether an allegedly defamatory per se publication is capable of an innocent construction should only be decided without reference to extrinsic evidence, because extrinsic evidence functions as an improper end-run around the analysis required by the innocent construction rule. A plaintiff who attempts to introduce extrinsic facts is improperly asking a Court to find one particular construction than another more reasonable. The Illinois Supreme Court has ruled that there can be no balancing of reasonable constructions.

Thus, the only issue is whether the alleged defamatory statement when viewed standing on its own - as published - can reasonably be interpreted as referring to someone other than plaintiff or as having a non-defamatory meaning. If so, the Court should dismiss the defamation per se claim, since the actual statements themselves must be held capable of an innocent construction. Plaintiffs often argue that an alleged defamatory statement has a defamatory meaning and that the Court must accept that characterization. But Illinois courts are not required to accept the plaintiff’s interpretation of the disputed statement as defamatory per se, because the meaning of a disputed statement is not a fact that can be alleged and accepted as true.

The attorneys at Lubin Austermuehle have over thirty years of experience defending and prosecuting defamation, slander libel and cyber smear lawsuits. We are knowledgeable regarding the changes and complexities of this evolving area of the law. We have extensive experience defeating and successfully asserting the innocent construction defense in defamation cases. You can view here a federal court decision where our firm defeated a libel per se claim based on an innocent infringer defense. Here is an arbitration decision where are firm prevail following an evidentiary hearing proving that our client's Youtube videos criticizing a used car dealer for committing consumer fraud were truthful, were opinions protected by the First Amendment, or simply involved minor inconsequential factual errors. These cases received extensive media coverage. You can view that coverage on our press page here and here. We required a defendant who publicized an allegedly false and defamatory lawsuit about our diamond wholesaler client to provide an apology and full retraction as part of a confidential financial settlement following our filing of a $16 million libel per se suit in Chicago federal court. This ended defendant's and his attorneys alleged cyber smear campaign against our business client. You can read about that case here.

We are committed to fighting for our clients' rights in the courtroom and at the negotiating table. Conveniently located in Chicago and Elmhurst, Illinois, we have successfully litigated defamation, internet defamation, and cyber smear cases for clients all over the Chicago area. To schedule a consultation with one of our skilled attorneys, you can contact us online or give us a call on our toll-free number at (833) 306-4933 or locally at (630) 333-0333.

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