The Relationship of Retraction to Malice in Defamation Cases

In Illinois defamation cases, it is practically, strategically and tactically wise for putative plaintiffs to seek the retraction of a defamatory statement before filing what can be a protracted and expensive defamation lawsuit. Likewise, when accused of defamation, it can be equally wise for a putative defamation defendant to eschew pride and issue the requested retraction.

If the plaintiff requests and is refused a retraction, the refusal can be pleaded as malice and go to a jury to recover punitive damages. Conversely, if the plaintiff does request and receives a retraction before filing suit, this is not a bar to a defamation suit, since retraction is not legal exoneration. But the retraction can substantially ameliorate the sting of a defamation, and thereby mitigate actual and thus compensatory damages, and can possibly eliminate the category of punitive damages as a remedy for reputational harm.

The evidentiary role of retraction became extremely important after the United States Supreme Court's decision in New York Times Co. v Sullivan, in which the Supreme Court determined that the First Amendment to the United States Constitution "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice;” - knowledge that the defamatory statement was false or made with reckless disregard for the truth or falsity of the statement. In Curtis Publishing Co. v Butts, the Supreme Court expanded the actual malice requirement to suits brought by any public figure (as distinct from the narrower classification of public “official” in New York Times v Sullivan).

Whether a defamation case involves a public or private figure, and although the "actual malice" required by New York Times v Sullivan, i.e., knowledge of falsity or a reckless indifference to truth, substantially differs from common law malice (spite or ill will), Illinois courts generally consider retraction or its absence as evidence of malice without necessarily parsing categories of malice.

In New York Times v Sullivan, which did involve a public figure, the plaintiff followed an Alabama statute and requested a retraction of the defamatory statement before filing suit. Although the New York Times did not print the requested retraction, the U.S. Supreme Court found the Times's refusal inadequate evidence of malice, because the newspaper had in fact responded to the plaintiff’s retraction request by indicating it believed that the allegedly defamatory item could not be read as referring specifically to the plaintiff.

Significantly, however, in New York Times v. Sullivan, the US Supreme Court also declined to rule on "whether or not a failure to retract may ever constitute [evidence of malice].” Illinois courts, however, have since proved absolutely and consistently willing to find the failure to retract probative of malice, and academic authorities suggest that a failure to retract, in conjunction with other circumstances, surely can establish malice.

If you believe you are the victim of defamation, or especially a defamation with malice, contact the Chicago defamation attorneys at Lubin Austermuehle. We are knowledgeable regarding the changes and complexities of this evolving area of the law, and committed to fighting for our clients' rights in the courtroom and at the negotiating table. To schedule a consultation with one of our skilled attorneys, you can contact us online or give us a call at 630-333-0333. Conveniently located in Chicago Elmhurst and Wilmette, Illinois.

Client Reviews
I was referred to Peter Lubin from someone in the car business to handle a law suit. From the moment I made the appointment Peter and his staff were outstanding. This wasn't an easy case, most lawyers had turned me down. However, Peter took the time to meet with me and review everything. He took on the case, and constantly communicated with me about updates and case information. We beat this non-compete agreement case in record time. I would use him again and recommend him to my closest family and friends. 5 stars is not enough to thank him for his service. Sebastian R.
I worked on two occasions with Peter Lubin and his staff. They took their time with me and discussed each and every item in detail. The group makes you feel like you are part of the family and not just another hourly charge. I recommend Peter to anyone who asks me for a referral. If you are looking for a top notch attorney at a reasonable rate, look no further than Lubin Austermuehle. Kurt A.
Excellent law firm. My case was a complicated arbitration dispute from another state. Was handled with utmost professionalism and decency. Mr. Peter Lubin was able to successfully resolve the case on my behalf and got me a very favorable settlement. Would recommend to anyone looking for a serious law firm. Great staff and great lawyers! Albey L.
I have known Peter Lubin for over 30 years. He has represented me on occasion with sound legal advice. He is a shrewd and tough negotiator leading to positive outcomes and averting prolonged legal hassles in court. He comes from a family with a legal pedigree and deep roots in Chicago's top legal community. You want him on your case. You need him on your opponents case. He won't stop fighting until he wins. Christopher G.
Peter was really nice and helpful when I came to him with an initial question about a non-compete. Would definitely reach out again, recommended to everyone. Johannes B.