Defamation law in Illinois could be on the verge of being rewritten, as the Illinois Supreme Court prepares to weigh in on the question of whether the state’s longstanding deadlines for libel lawsuits can be reinterpreted to take into account the explosion of online content in the 21st Century.
On Jan. 14, the justices of the Illinois Supreme Court heard arguments in a defamation case brought by Paul Ciolino, a private investigator at the center of the Alstory Simon story, one of Chicago’s most prominent alleged wrongful murder conviction cases.
Simon had been cleared in 2013 of double homicide after Ciolino and Northwestern University journalism professor David Protess, working through Northwestern’s Medill School of Journalism’s Innocence Project, were accused of framing Simon to get another man off death row.
Paul Ciolino
Simon has since settled a lawsuit he brought against many involved in his alleged wrongful conviction.
However, at the same time, filmmakers Andrew Hale and Whole Truth Films produced a documentary film about Simon’s story, “A Murder in the Park.” The film premiered in November 2014 at a film festival in New York City.
The film cast aspersions of Ciolino’s and Protess’ actions in the Simon case. Specifically, in the film, Terry Ekl, an attorney who represented Simon in his action to overturn his murder sentence, asserted Ciolino and Protess used various techniques to pressure and persuade people to testify, recant or confess to achieve the result they are seeking.
In this case, that result was the exoneration of Anthony Porter, who had been convicted in 1983 of a double homicide on Chicago’s southeast side. In 1998, Ciolino, Portess and the Northwestern students working within the Innocence Project, sought to clear Porter’s name. Simon and his lawyers alleged Ciolino and his partners accomplished this goal by allegedly coercing Simon into confessing to those same murders, sparing Porter from his death sentence.
Porter’s exoneration later became instrumental in persuading the state of Illinois to ban the death penalty.
According to court documents, Ekl allegedly said the following statements in the documentary:
“They (Ciolino and Protess) stay on people to try to finally get something out of them that fits their theory of who they think did the case;”
“So that seems to me to be part of their M.O. They'd go to impoverished people who don't have a lot of money, make them promises and basically get them to recant;” and
“Ciolino got the confession and then handed him over to his office mate and his own personal attorney to represent him and tell him that he had to plead guilty.”
Those statements from the documentary landed Ekl among a list of defendants named in a $25 million defamation lawsuit filed by Ciolino in Cook County court in 2018.
That filing date now lies at the center of the appeal that has brought the case to the Illinois Supreme Court.
According to Ekl’s attorney, Jeremy N. Boeder, of the firm of Tribler Orpett & Meyer, of Chicago, Ciolino waited years too long to file the defamation lawsuit over anything said in the documentary.
Boeder and Ekl argued Illinois law establishes a “bright line rule” that limits defamation cases to a one-year statute of limitations. That means, plaintiffs almost always have only one year after an alleged defamatory media statement is published to bring their lawsuits.
The only exception, they said, is under a discovery rule, which allows plaintiffs to file lawsuits one year from the date the plaintiffs learn of potential defamatory statements – but only if those statements had in some way been hidden, or otherwise “inherently unknowable.”
That argument was backed by Cook County Judge Christopher Lawler, who dismissed Ciolino’s lawsuit for arriving four years after the documentary was released.
However, Ciolino won a reversal at the Illinois First District Appellate Court, as justices there determined the exception should apply in this case.
They backed the arguments of Ciolino’s lawyer, Jennifer Bonjean, of Chicago.
Bonjean asserted Ciolino did not learn of the existence of the documentary until it was televised on cable network Showtime. It was later also made available for streaming on Netflix.
Bonjean argued, and the appellate court agreed, that the discovery rule should apply in this case, giving Ciolino an additional three years after the film first premiered at the New York film festival, to press his claims against those involved in the documentary who allegedly accused him of framing Simon.
Ekl, in turn, appealed the First District court’s decision, asking the Illinois Supreme Court to back Judge Lawler’s finding that the lawsuit was filed too late.
Before the state high court, in a streamed remote proceeding, Ekl attorney Boeder argued allowing the appellate decision to stand would flip the time limits rules on their head, essentially turning a “very limited exception” to the statute of limitations into the rule itself.
Allowing plaintiffs to use the discovery rule to claim years after a potential defamatory statement is published that they are only now learning of the defamation, would allow “incredibly stale claims” to be turned into potentially ruinous lawsuits, “with no recourse for the defense.”
On the other side, Bonjean argued the longstanding rules applied in a world in which the internet, and its array of assorted blogs, social media and other publishing platforms, did not exist. Now, she said, plaintiffs could go years before they learn they may have been defamed in a published post, or documentary released in a film festival thousands of miles away from their home.
In this case, she said, Ciolino was not put on notice concerning the existence of the documentary until it aired on Showtime.
She said today’s technology raises “questions of what ‘mass published’ means anymore.”
“It’s much harder to draw bright line rules,” Bonjean said.
Boeder argued, however, it is up to lawmakers in the state’s legislative branch, not the courts, to rewrite the laws to fit changing times and technology.
Justices questioned both positions.
Justice Mary Jane Theis, for instance, questioned whether Ekl’s and Boeder’s perspective means people living in the 21st Century must constantly monitor a burgeoning array of publishing platforms, if they wish to preserve their right to sue for defamation.
“Do we have an obligation to search, to protect our reputations?” Theis asked Boeder.
On the other side, Justice Robert Carter questioned the limits of Bonjean’s arguments. He challenged the assertion that notice to the plaintiff should be key to when the statute of limitations should start.
“If they saw the film 10 years later, is that when the statute of limitations starts?” Carter asked.