Matters of Public Concern

In the early years of our country into the early part of the twentieth century, politicians at both the federal and state level passed numerous laws aimed at stopping individuals and the press from discussing the salacious details of the latest political scandal or criticizing a politician’s stance on a controversial piece of legislation. To combat these laws and their chilling effect on speech, the Supreme Court provided special protection from defamation liability for statements concerning matters of public concern.

The Supreme Court explained that the freedom to discuss matters of public concern is fundamental to a healthy democracy because it promotes an informed electorate and keeps politicians accountable to their constituents. Without protecting this category of speech, the press would be forced to censor what it wrote depriving people of much-needed information.

Courts take two considerations into account when determining whether and to what extent the Constitution constrains state defamation law: whether the plaintiff is a public or private figure and whether the speech at issue is a matter of public concern.

Under Illinois law, the first consideration—whether the plaintiff is a public or private figure—bears on the burden of proof for establishing liability while the second consideration—whether the speech is a matter of public concern—bears on the standard that must be satisfied in order to recover punitive damages. As the Illinois Supreme Court explained in Imperial Apparel v. Cosmo's Designer Direct, where a claim of defamation is based on statements concerning a matter of public concern, punitive damages may not be awarded unless the plaintiff proves that the defendant acted with actual malice.

The Supreme Court first articulated the concept of protecting speech concerning matters of public interest in the early twentieth century and reiterated the concept in a number of seminal First Amendment cases such as New York Times Co. v. Sullivan (1964) and Time, Inc. v. Hill (1967).

These opinions acknowledged that matters of public concern receive heightened protection under the First Amendment without elaborating on what constitutes a “public concern” (or the phrase “of public interest” is used interchangeably in numerous opinions). The Supreme Court sought to define the line between matters of public concern and matters of private concern in a series of cases in the early seventies into the early eighties. These cases include Rosenbloom v. Metromedia Inc. (1971), Gertz v. Robert Welch, Inc. (1974), Connick v. Myers (1983), and Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985).

Ultimately the Supreme Court decided that speech addresses a matter of public concern if it is “relating to any matter of political, social, or other concern to the community" or “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” The determination of whether speech addresses a matter of public concern “must be determined by the content, form, and context of a given statement, as revealed by the whole record.” It is a question of law not of fact, meaning that the determination is made by the judge and not the jury.

Lubin Austermuehle’s Chicago area defamation and slander lawyers near Evanston and Schaumburg have concentrated in this area of law for many decades. From offices in Elmhurst and Wilmette, near Park Ridge and Highland Park, we serve clients throughout Illinois and the Midwest. You can contact us online here.

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