Posted July 21, 2014 2:52 PM
   

Defamation lawsuit thrown out

Leo Melamed, chairman and CEO of Melamed & Associates Inc. and chairman emeritus of the Chicago Mercantile Exchange, invented the financial futures market. The John Marshall Law School graduate said he “came to the conclusion that an education in law is the finest education anyone can get, because it teaches you to think.” Here, he stands in the 40,000-square-foot Globex Control Center.
Michael R. Schmidt
Leo Melamed, chairman and CEO of Melamed & Associates Inc. and chairman emeritus of the Chicago Mercantile Exchange, invented the financial futures market. The John Marshall Law School graduate said he “came to the conclusion that an education in law is the finest education anyone can get, because it teaches you to think.” Here, he stands in the 40,000-square-foot Globex Control Center.
By Marc Karlinsky
Law Bulletin staff writer

After a Northwestern University professor made headlines when a former student accused him of sexual assault, he went after the newspaper that made the headlines.

But a Cook County judge last week dismissed the professor’s defamation case against Sun-Times Media LLC and two other media outlets, saying that the use of the word “rape” in a headline fairly and accurately summarized the sexual assault allegations in the student’s federal complaint against Northwestern.

Philosophy professor Peter Ludlow’s lawsuit in Cook County Circuit Court followed the student’s federal Title IX complaint filed on Feb. 10, alleging it discriminated and retaliated against her for filing an internal report complaining of sexual assault and sexual harassment by an unnamed professor.

In her federal suit against the school, the student alleged that Ludlow sexually assaulted her in 2012 after the two went to dinner and an art show downtown.

She alleged that Ludlow kissed and fondled her, bought her alcohol and took her to his apartment despite her requests to return to Evanston. She also alleged that after she lost consciousness, she woke up the next morning in Ludlow’s bed.

The same day the federal complaint was filed, the Sun-Times Media-owned Evanston Review published a story and a tweet with the headline, “Student allegedly raped by professor suing Northwestern University.”

The same headline and story went out on the Sun-Times’ wire service and was published on the websites of TV station WFLD Channel 32 and radio station WLS-AM 890.

On Feb. 11, an attorney representing Ludlow demanded that the Sun-Times remove the reference to rape in its headline, contending the federal complaint did not use that word in its allegations.

Though the corrected headline — which instead referenced sexual assault — made it onto all three websites, Ludlow alleged that the WFLD article’s Web address still included the word “rape” and that WLS left the old copy of the story online.

Ludlow filed counts of per se defamation and false light against Sun-Times Media, WLS owner Cumulus Broadcasting LLC and WFLD owner Fox Television Stations Inc., alleging that the headline accused him of committing a felony and impugned his professional ability.

The media outlets contended that the headline was not “of and concerning” Ludlow because his name was not mentioned anywhere. They also argued that any implication the headline was about him would require knowledge of other facts.

Ludlow contended there were enough facts published that a reader could identify him as the accused professor, even if he was never mentioned by name.

In her ruling, Circuit Judge Kathy M. Flanagan wrote that the headline could reasonably refer to someone other than Ludlow, therefore barring his claim by innocent construction.

Even when considering the entire news article, Flanagan wrote, Ludlow’s identity was not readily obvious.

“The only way to discover the [p]laintiff’s identity was to investigate the federal filing mentioned in the article,” she wrote. “However, these extrinsic facts were not pled in the complaint.”

But Flanagan wrote that even if the reference to Ludlow was easily seen, the defamation and false light claims would still fail on the basis of the fair-report privilege.

That privilege protects a publisher of defamatory matter when the matter fairly and accurately summarizes statements in public documents or proceedings at official public meetings, such as court documents or hearings.

“There is a fair abridgment of a proceeding where the sting of the defamatory statement in the proceeding is the same as a sting of the defamatory report,” Flanagan wrote. “The hallmark of the privilege is the accuracy of the summary, not the truth or falsity of the information being summarized.”

Ludlow did not take issue with the accuracy of the article and conceded that it accurately summarized the federal complaint. But since the word “rape” was not used in the article or in the complaint, the headline was not a fair representation of the complaint, he argued.

Flanagan disagreed, ruling that the terms “rape” and “sexual assault” are interchangeable.

“In common usage and in dictionaries, the terms ‘rape’ and ‘sexual assault’ are synonymous,” she wrote. “The Merriam-Webster definition of ‘rape’ cited by the [p]laintiff has ‘assault’ listed as a synonym, and the definition of ‘sexual assault’ has ‘rape’ listed as a synonym.”

Flanagan also wrote that the federal complaint included allegations of unwanted sexual advances and conduct.

“Thus, the use of the word ‘rape’ in the headline of the article has the same gist or sting as the allegations of sexual assault and other allegations in the federal complaint,” Flanagan wrote. “Therefore, the headline, as well as the article, is a fair abridgement of the federal complaint and the fair reporting privilege applies.”

Cumulus and Fox also argued that because they shared a story verbatim written by a reputable news service, claims against them should be barred by the wire-service defense.

In her order, Flanagan wrote that Illinois courts do not recognize such a defense. But since the defamation and false light counts failed, she wrote there was no need to apply the argument.

Ludlow was represented by Kristin M. Case and Kate Sedey of the Case Law Firm LLC. They could not be reached for comment.

Sun-Times Media was represented by Damon E. Dunn and Seth Stern of Funkhouser, Vegosen, Liebman & Dunn Ltd.

Dunn said his client is pleased with the ruling. He said that news reporters who use conversational language have leeway in how they characterize proceedings and public documents.

Cumulus was represented by Floyd A. Mandell, Carolyn M. Passen and Eugene E. Endess of Katten, Muchin, Rosenman LLP. Passen declined to comment.

Fox was represented by Steven P. Mandell and Natalie A. Harris of Mandell, Menkes LLC. Mandell declined to comment.

The case is Peter Ludlow v. Sun-Times Media LLC, et al., 14 L 1529. The student’s federal case against the school is still pending.

 

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