Case Testing Illinois' New Anti-SLAPP Law Settles Before Court Can Clarify Reach of Citizen Participation Act

In what would have been the first case to test Illinois' newly enacted Citizen Participation Act, which provides immunity for speech related to certain matters of government and public concern, the parties settled before a court could interpret this important addition to the growing list of state anti-SLAPP laws. (SLAPP stands for "Strategic Lawsuit Against Public Participation" and refers to lawsuits filed in retaliation against the target's speaking out on a public issue or controversy. ) SLAPPs are typically brought by corporations, developers, or government officials against individuals or community organizations that oppose their actions. To guard against the chilling effect of SLAPPs, twenty-five states have anti-SLAPP laws.

The Illinois case, Jaeger et al. v. Okon, involved bloggers Joy and Tom Okon, operators of North Center Neighbors, a blog that covers happenings in the North Center neighborhood of Chicago. In May 2007, the Okons were sued by James Jaeger and his development company for defamation. Jaeger's complaint alleges that the Okons defamed him by posting statements on their blog (and sending emails) that implied that he had bribed government officials and engaged in dishonest business practices.

The dispute arose in the context of a controversial building project led by Jaeger's company in the North Center neighborhood. Tom Okon, voicing his frustration with the development project, organized community opposition to the project and published several blog posts in May 2007 that were critical of Jaeger. According to Jaeger's amended complaint, Okon made the following false and defamatory statements on the blog:

  • Our meeting with the chamber that we thought would be friendly and amicable turned out to be a sham. Based on prior meetings and statements, I thought we had support from key members of the Chamber. That support now appears to be non—existent. The Chamber seems to have swallowed Jim Jaegers [sic] BS hook line and sinker. I guess the large $3,500 donation he gave them really did the trick.

  • Well it seems [the Chamber of Commerce] only care about how much money and power they have. Perhaps Mr. Jaeger also personally wrote them each a check... who knows for sure...

  • This comes down now to business against residents. The businesses want more density and more people on Irving Park Road so they can line their pockets. They care nothing about our safety or quality of life. They would be happy to see Irving Park Road so crowded you can not even walk down it, as long as those people are waiting in line to patronize the businesses. [...] This developer is one of the worst offender’s [sic] of that practice.

In July 2007, the Okons filed a motion to dismiss on the basis that their statements were matters of opinion protected by the First Amendment and therefore not actionable as defamation. On October 5, 2007, the judge denied the motion to dismiss without explanation and ordered the parties to proceed to discovery. After a limited period of discovery, the Okons filed a second motion to dismiss under Illinois' newly enacted Citizen Participation Act (CPA), 735 Ill. Comp. Stat. 110 (2007).

The CPA, the first law of its kind in Illinois, provides immunity for speech related to certain matters of government and public concern. The preamble to the CPA leaves little doubt as to the legislature's purpose in passing the Act:

[I]t is declared to be the public policy of the State of Illinois that the constitutional rights of citizens and organizations to be involved and participate freely in the process of government must be encouraged and safeguarded with great diligence. The information, reports, opinions, claims, arguments, and other expressions provided by citizens are vital to effective law enforcement, the operation of government, the making of public policy and decisions, and the continuation of representative democracy. The laws, courts, and other agencies of this State must provide the utmost protection for the free exercise of these rights of petition, speech, association, and government participation.

To effectuate this policy, the CPA allows a party who has been sued as a result of the exercise of the aforementioned rights to file a motion to dispose of the lawsuit which a court must grant unless it finds "that the responding party has produced clear and convincing evidence that the acts of the moving party are not immunized from, or are not in furtherance of acts immunized from, liability by this Act." 735 Ill. Comp. Stat. 110/20. Under the CPA, all actions "in furtherance of the constitutional rights to petition, speech, association, and participation in government are immune from liability, regardless of intent or purpose, except when not genuinely aimed at procuring favorable government action, result, or outcome." 735 Ill. Comp. Stat. 110/15. The Act also requires that all discovery must be suspended pending a decision on a motion under the CPA, and that the movants are entitled to attorney’s fees and costs if they prevail.

So how would Jaeger's lawsuit against the Okons fare under the CPA? Not well, I should think. Unfortunately, we won't get the chance to find out. While the Okons' motion was pending, the case settled. According to a report in the Chicago Journal, the parties settled sometime in April 2008:

[Tom Okon] said he learned on Saturday that the case had been settled out of court in an agreement reached by both his and Jaeger's attorneys. The details, of course, "are confidential," Okon said. He added, though that "it only cost me $20,000." The original lawsuit, according to the Okons, demanded $100,000 from them.

Nevertheless, based on the clear language in the CPA, its legislative history, and the allegations in Jaeger's complaint, it would appear that the lawsuit against the Okons should have been dismissed under the CPA.

First, the statements at issue were directed at arousing community interest in the development project and influencing the local zoning board's decision on Jaeger's request for a zoning variance. Indeed, the footer under each page of the blog makes this quite clear:

We were founded in April of 2007 to make everyone aware of a proposed zoning change that would have allowed construction of a mammoth 7-story building at 1820-42 W. Irving Park Road. A small group decided that there was an urgent need for us to band together and help the North Center community speak as one voice. . . .

Second, this type of speech -- petitioning against a zoning change -- is precisely the type of speech the CPA was intended to immunize. According to Illinois state senator John Cullerton, the CPA was passed in order to provide immunity to community residents in situations where they are being sued by a "landowner" for statements they make in connection with opposing "a zoning change." 2007 Legis. Bill Hist., IL S.B. 1434, Senate Presentation, April 20, 2007.

Finally, although Illinois' courts have not yet interpreted the CPA, courts in jurisdictions with similar legislation have been consistent in dismissing lawsuits based on speech like that at issue in the Okon case. For example, in Melius v. Keiffer, the owner of neighborhood bar sued two members of a neighborhood association in New Orleans that had opposed the construction of a new bar across the street. The defendants in the case spoke out on the group’s website, Maple Area Residents, Inc., at city council meetings, in letters to officials, and in an appeal to the Board of Zoning Adjustments.

As a result of the neighborhood association's efforts opposing the construction of the bar, the bar's owner filed suit claiming, among other things, defamation based on the defendants’ statements that he "had received special treatment from the City[,] had made a ‘backroom deal’ with City officials," and "had broken various promises." Melius v. Keiffer, 2008 WL 659582 at *2-3 (La. App. 4 Cir., March 12, 2008). In throwing out the lawsuit, the Louisiana Court of Appeal affirmed the trial court’s grant of the defendants' motion to dismiss pursuant to Louisiana’s anti-SLAPP statute, La. C.C.P. art. 971, finding that the defendants' statements "fall under the purview of protected free speech [regarding a public issue]." Id. at *4.

Illinois' Citizen Participation Act would seem to mandate the same result for the Okons. Unfortunately, we will just have to wait for an Illinois court to provide its take on the CPA. With the growing number of lawsuits being filed against citizen media, I don't think we will have to wait long.

(Thanks to J.B. for alerting us to the Okon case.)


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