In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-1944

CARL MADISON,

Plaintiff-Appellant,

v.

RENATTA FRAZIER, KOURTNEY W. MITCHELL,

RENATTA’S HEART, INCORPORATED, an

Illinois corporation, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 05 C 3283—Richard Mills, Judge.

____________

ARGUED MAY 30, 2008—DECIDED AUGUST 22, 2008

____________

Before BAUER, RIPPLE and WOOD, Circuit Judges.

BAUER, Circuit Judge. In late 2001, Renatta Frazier, an

African-American police officer with the Springfield

Police Department, became the subject of an internal

affairs investigation when she was accused of failing to

prevent a rape while on duty. The incident occurred on

October 31, 2001, when Frazier allegedly failed to re-
2 No. 07-1944

spond to a dispatch call. She left the Department in November 2001 on a medical leave and apparently never

returned due to the allegations that surrounded her

conduct that day. That same year, she approached

the Black Guardians, a group that advocates for the

interests of American-American police officers, who

directed her to Carl Madison, an African-American and

president of the local National Association for the Advancement of Colored People (“NAACP”) chapter

in Springfield, Illinois (the “City”), for assistance in

addressing the allegations. Madison recommended

legal counsel to Frazier and discussed the investigation

of Frazier’s job performance with City representatives.

After frequent discussions, Frazier and Madison disagreed as to the appropriate course of action regarding

the dispute and parted ways. Frazier was eventually

cleared of the allegations surrounding the dispatch call

and subsequently joined a lawsuit against the City that

claimed racial discrimination in its hiring practices. See

Frazier et al. v. Harris, 266 F.Supp.2d 853 (C.D.Ill. 2003). The

parties reached a financial settlement in 2004.

On March 13, 2002, an article was published in a City

newspaper, the State Journal Register, stating that

Madison and the NAACP “dropped Frazier’s case” due

to her lack of cooperation. On March 18, 2002, the Black

Guardians sent Madison and the NAACP a letter, indicating that they no longer needed the NAACP’s assistance

in the discrimination cases (including Frazier’s) pending

against the City.

In 2003, Frazier began to write about her experiences

with the Department. These writings evolved into a book
No. 07-1944 3

titled The Enemy in Blue: The Renatta Frazier Story (the

“Book”), which was co-authored by Frazier’s son, Kourtney

Mitchell, and published in 2005 by Renatta’s Heart, Inc., an

Illinois corporation. The prologue describes the story as

“one woman’s fight against the enemy of racial and gender

discrimination in the system of a police department.” The

beginning chapters of the Book describe Frazier’s background, including her childhood, family, and life as a

probationary officer with the Department.

Relevant to this appeal, Chapter Seven, titled “Almost

Buried Alive,” relates the events surrounding October 31,

2001, Frazier’s perplexity at the accusations that swirled

around her conduct on that day, and the aftermath,

including her medical and financial difficulties. The end

of the chapter, also known as the “fantasy sequence,”

begins with the words “[d]uring this time of turmoil in

my life, one day in my imagination I fantasized the following scenario” and describes Frazier’s imaginary

interaction with various people. She imagined that she

was lying in the streets of Springfield, bleeding:

As I looked up, I thought I saw a lot of people standing

in the distance. I wasn’t sure; I had been beaten so

badly, I felt dizzy and my vision was blurred. I began

to yell as loudly as I could: “HELP! HELP!” I thought

maybe they couldn’t hear me. Perhaps the pain had

limited my ability to yell. Even so, I began to drag my

body with all the strength that remained. My faint yell

for help seemed to go undetected. I decided to approach the man closest to me. He was standing with

his back to me, and he appeared to have his arms
4 No. 07-1944

folded across his chest. “Mister,” I said, “can you help

me please, I’ve been hurt and they left me for dead.”

As the man turned around to reveal his face, I was

astonished and confused to see that he was black. He

didn’t say anything. He just shook his head in a

right-to-left motion. He turned his head and began to

walk away. I approached other people one by one—

prominent people, leaders in the community, political

figures, pastors, preachers, business owners. All black,

and all too selfish, too afraid, and too complacent to

“practice what they preach.” God forbid that they risk

their comfortable homes to help me. So once again

I was left for dead.

* * * *

[I]n my mind, this imaginary experience was equivalent to a physical attack, a brutal beating. As I shared

this imaginary account with my husband he made a

profound statement: “That this was a modern day

lynching.”

Chapter Eight, entitled “Integrity Is: Who You Are When

No One’s Looking,” describes how Frazier contacted

Madison, the NAACP, and the Black Guardians, in late

2001, for insight on how to defend herself against the

City’s accusations:

In the weeks that followed, I began to feel that the

president of the local NAACP branch was not working

in my best interest. I spoke to him daily over the

phone, and his conversation seemed more centered

around my letting this matter go than fighting for the

truth. “Let’s forget it, and sweep it under the rug.”
No. 07-1944 5

I repeated, “Man, whose side are you on, mine or

theirs?” “I’m trying to get you back to work and put

this behind you,” he said. I replied, “I know damn well

they are all wrong and they are trying to destroy my

life.” He said, “Renatta, they’re willing to make this

go away, but I need your cooperation.” I replied, “Oh,

yeah? Tell them it’s not going away and neither am I.

As a matter of fact, tell them that when they start

talking dollars, then we can talk.”

Later in Chapter Eight, Frazier writes that she met with

a NAACP lawyer to discuss a possible lawsuit against the

City. After the meeting Frazier decided not to hire the

lawyer: 

It was then that I made my decision to sever my ties

with the local NAACP branch. I spoke with Carl

Madison on the phone and said, to him, “I do not

believe you are acting in my best interest.” “I am

notifying you at this time that I will no longer consult

with you concerning my case.” Later, I read and heard

that Mr. Madison had decided to drop me. I couldn’t

believe what I was reading and hearing. The Guardians

were outraged. We knew as well as he did that it didn’t

happen like that at all. The severing of the ties had

been done long before he made this statement. Maybe

he planned to run for some political office or was

trying to obtain a politically connected employment

opportunity. Whatever the reason, my respect for

him diminished to nothing.

Following this alleged phone call to Madison, Frazier

“had many other brushes or encounters with him, mostly
6 No. 07-1944

from a distance. However close or far away the encounters

may have been, I couldn’t bring myself to speak to him or

even recognize his presence. ‘Real men don’t lie.’ I thought,

‘real men don’t sell out.’ ”

In 2005, Madison, now a citizen of Ohio, filed this

diversity action against Frazier, Mitchell and Renatta’s

Heart, Inc. (collectively the “Defendants”), complaining

that the fantasy section and above-mentioned statements

in Chapter Eight of the Book amounted to libel and portrayed him in a false light. Defendants filed a motion to

dismiss the complaint (or alternatively, for summary

judgment). After reviewing the facts on the record (such

as the respective parties’ affidavits and Frazier’s deposition testimony), the district court granted summary

judgment for the Defendants, finding that (1) the fantasy

section was fictional and capable of innocent construction,

(2) the descriptions of the events in Chapter Eight were

judgmental opinions, and (3) the phrase “real men

don’t lie,” in the context in which it was used, was per se

defamatory, but not actionable because Madison failed

to establish that the Defendants acted with actual malice. Madison filed this timely appeal.

I.

Madison argues that (1) the district court erred in finding

that the “imaginary black man” in the fantasy sequence

was capable of innocent construction; (2) statements in

Chapter Eight accuse Madison of “selling out” and lying

for purely selfish reasons (“to run for some sort of political

office or was trying to obtain a politically connected
No. 07-1944 7

employment opportunity”), and that these statements

have injured his reputation within the African-American

community; (3) the statement that Madison was a liar was

not an opinion, but a factual statement concerning Madison; and (4) defamatory statements about Madison, who

is a public figure, were made with actual malice, where

Defendants failed to review any source material while

writing the Book, and Frazier’s purported recollection

of the events was inaccurate.

We review de novo the district court’s decision to grant

summary judgment, construing all the facts and inferences

in favor of Madison. See Republic Tobacco Co. v. North

Atlantic Trading Co., 381 F.3d 717, 726 (7th Cir. 2004).

Summary judgment is appropriate when the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with any affidavits, show that there is

no genuine issue of material fact and the movant is

entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c). “The initial burden is on the moving party . . . to

demonstrate that there is no material question of fact with

respect to an essential element of the non-moving party’s

case.” Cody v. Harris, 409 F.3d 853, 860 (7th Cir. 2005). If the

moving party meets this burden, the non-moving party

must submit evidence that there is a genuine issue for

trial. Fed. R. Civ. P. 56(e); Ptasznik v. St. Joseph Hosp., 464

F.3d 691, 694 (7th Cir. 2006). The existence of merely a

scintilla of evidence in support of the non-moving party’s

position is insufficient; there must be evidence on which

the jury could reasonably find for the non-moving party.

Id. We apply the substantive law of Illinois, the state

in which this diversity case was filed. See Global Relief
8 No. 07-1944

Found., Inc. v. New York Times Co., 390 F.3d 973, 981 (7th

Cir. 2004).

Defamation is the publication of any statement that

“tends to cause such harm to the reputation of another

that it lowers that person in the eyes of the community

or deters third persons from associating with [him].” Seith

v. Chicago Sun-Times, Inc., 371 Ill.App.3d 124, 308 Ill.Dec.

552, 861 N.E.2d 1117, 1126 (2007) (quoting Bryson v. News

America Publications, Inc., 174 Ill.2d 77, 220 Ill.Dec. 195, 672

N.E.2d 1207, 1214 (1996)). To prove a defamation claim, the

evidence must show that a defendant made a false statement concerning the plaintiff, that there was an

unprivileged publication of the defamatory statement to

a third party by the defendant, and that the plaintiff

suffered damages as a result. Seith, 308 Ill.Dec. 552, 861

N.E.2d at 1126. Some statements are considered defamatory per se because they are “so obviously and materially

harmful” to a plaintiff that his injury may be presumed and

he does not need to prove actual damages to recover,

Bryson, 220 Ill.Dec. 195, 672 N.E.2d at 1214, while other

statements are considered defamatory per quod, which

“requires the plaintiff to allege both extrinsic facts to

establish that the statement is defamatory and special

damages with particularity.” Myers v. Levy, 348 Ill.App.3d

906, 283 Ill.Dec. 851, 808 N.E.2d 1139, 1147 (2004). Madison

relies on the theory of defamation per se.

Illinois recognizes five categories of statements which

are considered actionable per se; two are pertinent to this

case: (1) those imputing an inability to perform or want

of integrity in the discharge of one’s duties of office or
No. 07-1944 9

employment; and (2) those that prejudice a party, or

impute lack of ability, in his or her trade, profession or

business. Bryson, 220 Ill.Dec. 195, 672 N.E.2d at 1214-15.

Although a statement may fit into one of these categories,

this fact, standing alone, “has no bearing on whether

the alleged defamatory statement is actionable,” Hopewell

v. Vitullo, 299 Ill.App.3d 513, 233 Ill.Dec. 456, 701 N.E.2d 99,

102 (1998), because certain factors may render defamatory

statements nonactionable as a matter of law. For example, if a defendant’s statements are capable of an

innocent, nondefamatory construction, a plaintiff cannot

maintain an action for defamation per se. See Bryson, 220

Ill.Dec. 195, 672 N.E.2d at 1221. Further, the First Amendment affords protection from liability to a speaker expressing an opinion that does not misstate actual facts. See

Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S.Ct. 2695,

111 L.Ed.2d 1 (1990); Moriarty v. Greene, 315 Ill.App.3d 225,

247 Ill.Dec. 675, 732 N.E.2d 730, 739 (2000). Madison

believes that various statements made in the Book impute

a want of integrity on his part, that as the president of

the local NAACP chapter, he is involved with many

issues of racial equality within the City’s businesses and

public offices, and that the statements prejudiced his

reputation as a hard working advocate for the AfricanAmerican community.

A. Fantasy Sequence

Madison argues that the district court erred in finding

that the fantasy sequence was subject to innocent construction because (1) the sequence directly precedes the next
10 No. 07-1944

chapter which names Madison, and therefore “sets the

stage” for the discussion of Madison’s relationship with

Frazier; and (2) Madison is the only African-American

in the Book portrayed in an unfavorable light. Defendants

argue that the sequence was clearly identified as “fantasy,”

Madison was never identified by name in the fantasy

sequence, and Frazier presented the sequence as fiction

from the outset.

“The so-called ‘innocent construction rule’ in Illinois

requires a court to consider the statement in context and

give the words of the statement, and any implications

arising from them, their natural and obvious meaning.”

Solaia Tech., LLC v. Speciality Publ’g Co., 221 Ill.2d 558, 304

Ill.Dec. 369, 852 N.E.2d 825, 839 (2006). A statement

that may innocently or reasonably be construed as referring to a person other than the plaintiff cannot be actionable per se. Salamone v. Hollinger Int’l, Inc., 347 Ill.App.3d

837, 283 Ill.Dec. 245, 807 N.E.2d 1086, 1089 (2004). While

this rule favors a defendant because a tougher standard

is warranted where damages are presumed, it “does

not require courts to strain to find an unnatural innocent

meaning for a statement when a defamatory meaning is

far more reasonable.” Tuite v. Corbitt, 224 Ill.2d 490, 310

Ill.Dec. 303, 866 N.E.2d 114, 123 (2007). Our court, as well

as Illinois courts, have said that “[w]hether a statement

is reasonably capable of an innocent construction is a

question of law for the court to decide.” Knafel v. Chicago

Sun-Times, Inc., 413 F.3d 637, 640 (7th Cir. 2005); Kolegas v.

Heftel Broad. Corp., 154 Ill.2d 1, 180 L.E.2d 307, 607 N.E.2d

201, 207 (1992).
No. 07-1944 11

It is reasonable to read the statements made in the

fantasy sequence and not call into question Madison’s

integrity or his reputation. In the fantasy, Frazier is beaten

and left “to die,” and she approached other people for

help, who were “all black, and all too selfish, too afraid,

and too complacent to ‘practice what they preach.’ ” The

“imaginary scenario” fails to identify Madison, or anyone

else, by name, and therefore is very capable of innocent

construction.

Furthermore, statements that cannot “reasonably [be]

interpreted as stating actual facts” are protected under

the First Amendment. These statements (or “opinions”)

cannot give rise to a cause of action for defamation in the

interest of “provid[ing] assurance that public debate will

not suffer for lack of ‘imaginative expression’ or the

‘rhetorical hyperbole’ which has traditionally added much

to the discourse of our Nation.” Milkovich, 497 U.S. at 20,

110 S.Ct. 2695; see Lifton v. Bd. of Educ. of the City of Chicago,

416 F.3d 571, 579 (7th Cir. 2005) (holding that Illinois law

requires that an allegedly defamatory statement must

contain an objectively verifiable factual assertion); Pease v.

Int’l Union of Operating Engineers Local 150, et al., 208

Ill.App.3d 863, 153 Ill.Dec. 656, 567 N.E.2d 614, 619 (1991)

(“Words that are mere name calling or found to be rhetorical hyperbole or employed only in a loose, figurative

sense have been deemed nonactionable.”). The Illinois

Supreme Court considers several nonexclusive factors

in determining whether a statement constitutes an opinion or factual assertion: (1) whether the statement has a

precise and readily understood meaning; (2) whether the

statement is verifiable; and (3) whether the statement’s
12 No. 07-1944

literary or social context signals that it has factual content.

J. Maki Constr. Co. v. Chicago Reg’l Council of Carpenters, 379

Ill.App.3d 189, 318 Ill.Dec. 50, 882 N.E.2d 1173, 1183 (2008)

(citing Tuite, 310 Ill.Dec. 303, 866 N.E.2d at 121). Whether

a statement is an opinion or fact is a question of law.

Moriarty, 247 Ill.Dec. 675, 732 N.E.2d at 740.

The fantasy sequence purports to be a symbolic representation of Frazier’s frustration and contempt for the events

that had consumed her life over the previous years. Illinois

law is clear that allegedly defamatory words are to be

interpreted as they appear to be used and according to

the idea they were intended to convey to the reasonable

reader. Bryson, 220 Ill.Dec. 195, 672 N.E.2d at 1217. Clearly

the statements convey to the reasonable reader that Frazier

imagined she had been beaten and needed someone to

come to her assistance; a reasonable reader would perceive

that the “imaginary” event was a reference to her reality—

that she believed she was being persecuted because of

her race and had no one to turn to for help. No reasonable

reader would construe Frazier’s fantasy to have specific

factual content. Frazier did not claim to have been actually

beaten and left for dead. The literary context and setting

in which the fantasy sequence was published leads easily

to the conclusion that the sequence was a dream without

factual support.

We are cognizant that prefatory language does not

control whether statements labeled as “fiction” may be

actionable, Republic Tobacco, 381 F.3d at 729; Bryson, 220

Ill.Dec. 195, 672 N.E.2d at 1221; however even the most

careless reader must perceive that this “fantasy” was no
No. 07-1944 13

more than rhetorical hyperbole. We find that the fantasy

sequence cannot be actionable per se.

B. Chapter Eight

Next, Madison argues that the district court erred in

finding that the statements made in Chapter Eight were not

actionable assertions of fact and were constitutionallyprotected opinions. Madison points to the statements such

as “who’s side are you on, mine or theirs,” and “[m]aybe

he planned to run for some sort of political office or was

trying to obtain a politically connected employment

opportunity,” and argues that these statements are

factual assertions that he was acting on behalf of interests

that did not include Frazier, and thus could not be opinions. We disagree, and find these statements to be vague

and unprovable allegations which do not give rise to a

defamation claim. See Hopewell, 233 Ill.Dec. 456, 701 N.E.2d

at 105 (“[w]e note that in one sense all opinions imply

facts; however the question of whether a statement is

actionable is one of degree . . . [t]he vaguer and more

generalized the opinion the more likely the opinion is nonactionable as a matter of law.”). Clearly, Frazier was

frustrated that she had parted ways with Madison, however, as the district court noted, she “wondered about

his motives; she did not state that Madison was in fact

motivated by political concerns.” The very word “maybe”

implicates subjective judgment. Frazier’s speculations fail

to amount to verifiable assertions of fact, lacking precise

and readily understood meaning. See Wilkow v. Forbes, Inc.,

241 F.3d 552, 555 (7th Cir. 2001) (applying Illinois law
14 No. 07-1944

and finding that “[i]f it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession

of objectively verifiable facts, the statement is not actionable.”) (quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d

1222, 1227 (7th Cir. 1993)).

C. “Real Men Don’t Lie”

We reach the last statements of the Book that Madison

believes to be defamatory. He contends that the statement

“[r]eal men don’t lie . . . real men don’t sell out” refers to

Madison, and it imputes that (1) he was acting on behalf

of the City instead of Frazier’s; (2) he was incapable

of performing his role at the NAACP with competence

and integrity; and (3) the statements lowered him

in the eyes of the African-American community. Frazier

concedes that she was referring to Madison (and all men

in general) when she made the statement. 

In Illinois, to succeed under the relevant categories of

defamation per se in this case, a plaintiff must have been

accused of lacking ability in his trade or doing something

bad in the course of carrying out his job. Cody, 409 F.3d at 857;

Clarage v. Kuzma, 342 Ill.App.3d 573, 276 Ill.Dec. 995, 795

N.E.2d 348, 356 (2003). We have found that statements

deemed to be defamatory per se in Illinois under these

categories have been related to job performance, as opposed to attacks related to personal integrity and character.

Cody, 409 F.3d at 856-57; Clarage, 276 Ill.Dec. 995, 795

N.E.2d at 356 (finding accusations of lying to govern-
No. 07-1944 15

ment officials were defamatory per se, where the plaintiff

was not accused of lying to family and friends, but rather

to government officials with whom it was his job to communicate honestly); Heying v. Simonaitis, 126 Ill.App.3d 157,

81 Ill.Dec. 335, 466 N.E.2d 1137, 1143 (1984) (statements

made by doctors regarding personality conflicts between

the plaintiff nurse and her fellow employees did not

impugn her ability as a nurse). However, sometimes

personal integrity is so intertwined with job skills, that an

attack upon it could constitute defamation per se. See

Kumaran v. Bortman, 247 Ill.App.3d 216, 186 Ill.Dec. 952,

617 N.E.2d 191, 199 (1993) (holding that a newspaper

article accusing a teacher of filing “scam” lawsuits was

defamatory per se because part of a teacher’s job is to set

a good example and serve as a role model for her students).

Calling Madison a liar and a sell-out to the African-American community, in the context of an ongoing public

battle with the City and its discrimination policies,

imputes a lack of integrity in his duties as NAACP president, specifically his involvement with issues of racial

equality within the city’s businesses and public offices.

So to determine whether the statement can be reasonably

interpreted as stating actual facts protected under the

First Amendment, we look at whether the statement has

a precise and readily understood meaning; whether the

statement is objectively verifiable as true or false; and

whether the statement’s literary, social, or public context

signals that it has factual content. Bryson, 220 Ill.Dec. 195,

672 N.E.2d at 1220.

In this context, referring to someone as one who “lies”

has a clearly precise meaning—“to create a false or mis-
16 No. 07-1944

leading impression” or “to make an untrue statement

with intent to deceive.” Merriam–Webster Collegiate

Dictionary (11th ed. 2008) (online at http://www.m-w.com).

In addition, referring to someone as a “sell out” in

this context refers to one who “betrays one’s cause or

associates especially for personal gain.” Id. Frazier’s

statements were made within the context of accusing

Madison of failing to tell the truth about who “dropped”

whom first, and the overall literary context of the Book

represents a professional and personal struggle about false

allegations of misconduct as a police officer, as told

through the eyes of the woman who experienced the

accusations first hand. The Book’s accusations and accounts were directed at the Department and its allegedly

discriminatory hiring practices, Frazier’s involvement in

that controversy, and her belief that Madison and the

NAACP failed to come to her assistance.

The question, however, is whether these statements are

objectively verifiable as true or false. A false assertion of a

fact can be defamatory even when couched within an

apparent opinion or rhetorical hyperbole. Solaia, 304

Ill.Dec. 369, 852 N.E.2d at 840; Dubinsky v. United Airlines

Master Executive Council, 303 Ill.App.3d 317, 236 Ill.Dec.

855, 708 N.E.2d 441, 451 (1999) (finding that calling someone a “crook” was not an actionable statement because

it was not made in any specific factual context, and “[o]ne

cannot rely on an assumption that those who heard the

statement were completely apprised of all the developments in the . . . controversy so as to create a definitive

factual context for the use of the word ‘crook’ ”); see also

Milkovich, 497 U.S. at 18-19, 110 S.Ct. 2695 (finding that
No. 07-1944 17

the phrase “[i]n my opinion, [plaintiff] is a liar” may still

imply a false assertion of fact if the facts on which the

speaker bases his opinion are either incorrect or incomplete, or if his assessment of them is erroneous).

We find that the phrase “sell out” is incapable of being

verified as a statement of fact; it is merely an opinion that

Madison betrayed his race. “Free speech is not restricted

to compliments. . . . [M]embers of a free society must be

able to express candid opinions and make personal judgments. And those opinions and judgments may be harsh

or critical—even abusive—yet still not subject the speaker

or writer to civil liability.” Van Duyn v. Smith, 173

Ill.App.3d 523, 123 Ill.Dec. 367, 527 N.E.2d 1005, 1014 (1988)

(citing Sloan v. Hatton, 66 Ill.App.3d 41, 22 Ill.Dec. 783, 383

N.E.2d 259, 260 (1978)).

At first blush, the statement at issue, “real men don’t

lie” seems to be nothing more than a difference of opinion.

Frazier believes Madison lied when he said he cut off ties

with her first; Madison believes he did not lie in making

this statement. However, we must determine whether

the context behind the phrase “real men don’t lie” makes

the statement defamatory per se. In Piersall v. SportsVision of

Chicago, the plaintiff, a well-known sports announcer,

accused the defendant of calling him a liar. The court held

that the general statement that someone is a “liar” without

being put in a context of specific facts, is merely opinion.

230 Ill.App.3d 503, 172 Ill.Dec. 40, 595 N.E.2d 103, 107

(1992). The court reasoned that in order to determine

whether a statement is fact or opinion, a court must

evaluate the totality of the circumstances and should
18 No. 07-1944

consider whether the statement is capable of objective

verification as true or false. Id. Here, the context of the

statement was clear—Frazier stated that she called Madison weeks before the article was published to tell him

that she was no longer interested in his help in the Department’s investigation against her. Insinuating that

Madison lied referred to Madison’s actions or omissions

in response to the events that had taken place, in particular, the conversation with Frazier that ended the relationship. Frazier was making the case that she was in possession of objectively verifiable facts—that she called Madison

first—and therefore his assertions were false.

We are willing to accept the fact that Frazier referred to

Madison as a liar, and even to accept that under this

specific context, the statement was defamatory per se. But

even assuming the same, Madison cannot prevail. Madison

concedes that he is a public figure, therefore he cannot

maintain a suit for defamation unless he can prove that the

Defendants’ acted with “actual malice.” A public figure

plaintiff may hold a speaker liable for the damage to

reputation caused by publication of defamatory statements only if he establishes actual malice, that is, he must

show that (1) the utterance was false, and (2) it was made

with knowledge of its falsity or in reckless disregard of

whether it was false or true. Hustler Magazine v. Falwell, 485

U.S. 46, 56, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988); Piersall, 172

Ill.Dec. 40, 595 N.E.2d at 105. Reckless disregard “is not

measured by whether a reasonably prudent man would

have published, or would have investigated before publishing.” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct.

1323, 20 L.Ed.2d 262 (1968); Costello v. Capital Cities Commu-
No. 07-1944 19

nications, Inc., 125 Ill.2d 402, 126 Ill.Dec. 919, 532 N.E.2d

790, 798 (1988). This inquiry is a subjective one—there

must be sufficient evidence to permit the conclusion that

the defendant published defamatory statements despite a

high degree of awareness of probable falsity or entertaining

serious doubts as to its truth. St. Amant, 390 U.S. at 731, 88

S.Ct. 1323; Chicago Dist. Counsel of Carpenters Pension Fund

et al. v. Reinke Insulation Co., 464 F.3d 651, 655 (7th Cir.

2006); Piersall, 172 Ill.Dec. 40, 595 N.E.2d at 105. Where a

factual dispute concerns actual malice, the appropriate

question on summary judgment is whether the evidence

in the record could support a reasonable jury finding

that a plaintiff has shown actual malice by clear and

convincing evidence. Saenz v. Playboy Enterprises, Inc., 841

F.2d 1309, 1317 (7th Cir. 1988) (citing Anderson v. Liberty

Lobby, 477 U.S. 242, 255-56, 106 S.Ct. 2505, 91 L.Ed.2d 202

(1986)).

Madison believes that the conversation did not occur,

and he was the one that severed ties with Frazier first, due

to her lack of cooperation with the NAACP and their

lawyers. In support of his argument, Madison points to

circumstantial evidence. He posits that other statements

made in the Book were factually inaccurate. For instance,

Frazier gave the wrong hometown of her lawyer, and she

admitted in her deposition that she “may get conversations mixed up because I talked to [Madison] a lot.”

This evidence does not persuade us, for we fail to see how

it establishes that Frazier lied or acted with reckless

disregard for its truth or falsity, about the particular

conversation in question. Frazier testified that she may

have been unclear as to the order in which her conversa-
20 No. 07-1944

tions with Madison took place, but as far as the content

of the conversation she had when she “dropped” him,

she did not indicate that she was confused or “mixed up”

about that specific conversation.

According to Madison, Frazier “very obvious[ly]

dislike[d]” Madison and her “personal animosity” towards

him supports an inference that she disregarded the accuracy of her memory. The Book does not attempt to mask

Frazier’s dislike for Madison; however, without something more concrete, ill will towards a public plaintiff

cannot provide a sufficient basis for a finding of actual

malice. See Harte-Hanks Commc’ns, Inc. v. Connaughton, 491

U.S. 657, 666-67, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989);

Chicago Dist. Council of Carpenters Pension Fund, 464 F.3d at

656; Martin v. State Journal Register, 244 Ill.App.3d 955, 184

Ill.Dec. 197, 612 N.E.2d 1357, 1363 (1993).

Madison argues that Frazier admits that she wrote

the Book “mostly” from memory, failing to review any

source material. But a failure to investigate before publishing, even when a reasonably prudent person would

have done so, is not sufficient to establish reckless disregard. Harte-Hanks, 491 U.S. at 667, 109 S.Ct. 2678. Instead,

there must be “sufficient evidence to permit the conclusion that the defendant in fact entertained serious

doubts as to the truth of his publication.” Id. (quoting St.

Amant, 390 U.S. at 731, 88 S.Ct. 1323). 

Madison submits that while Frazier has not admitted

that she doubts her memory of whether or not Frazier

initiated the separation from Madison, these are facts that

have not yet been established because the district court
No. 07-1944 21

granted summary judgment before Madison had an

adequate opportunity to determine the truth of the statements. It is true that a defendant in a defamation action

cannot “automatically insure a favorable verdict by

testifying that he published with a belief that the statements were true.” Catalano v. Pechous, 83 Ill.2d 146, 50

Ill.Dec. 242, 419 N.E.2d 350, 360 (1981) (citing St. Amant,

390 U.S. at 732, 88 S.Ct. 1323). However, we must first

independently decide whether the evidence in the

record is sufficient to cross the constitutional threshold

that bars the entry of any judgment that is not supported

by clear and convincing proof of “actual malice.” Chicago

Dist. Council of Carpenters Pension Fund, 464 F.3d at 655;

Bose Corp. v. Consumers Union of United States Inc., 466

U.S. 485, 510-11, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984).

After reviewing the entire record, including depositions

of the Defendants and affidavits offered by both parties

and assuming “real men don’t lie” in this particular

context is defamatory per se, we conclude that Madison has

failed to show any genuine issue of material fact as

to whether Frazier doubted her belief that she—not

Madison—initiated the “separation” between the two,

which prompted her to imply that Madison was a liar.

“Charged as we believe we are with considering

the ‘quantum’ of proof required and . . . whether the

evidence is of sufficient ‘caliber or quality’ to meet that

‘quantum,’ ” we find that a reasonable jury would not

find that Madison established actual malice with convincing clarity. See Saenz, 841 F.2d at 1319 (internal citations omitted).
22 No. 07-1944

Madison also argues that the statements in the Book

support a cause of action for false-light invasion of privacy.

However, because Madison’s unsuccessful defamation

per se claim is the basis of his false-light claim, his

false-light invasion of privacy claim fails as well. See

Muzikowski v. Paramount Pictures Corp., 477 F.3d 899, 907

(7th Cir. 2007).

II.

For the reasons stated above, we AFFIRM the district

court’s grant of the Defendants’ motion for summary

judgment.

WOOD, Circuit Judge, dissenting. Summary judgment

is a procedure that requires strict mental discipline on

the part of both trial and appellate judges. We are not

supposed to evaluate the parties’ evidence to see whose

is the more persuasive. Instead, we must ask only whether

a hypothetical trier of fact—a jury, or a court in a bench

trial—could find in favor of the non-moving party. This

necessarily means that both trial judges and appellate

judges must sometimes reject summary judgment in

favor of a party who (they think) will probably win in
No. 07-1944 23

the final analysis. The line between a case that ought to be

thrown out on summary judgment because there are no

disputed issues of material fact, and one in which material

facts are disputed but that seems like a long shot, can

be blurry.

Here, my colleagues have decided that plaintiff Carl

Madison’s case falls on the former side of that line. See

ante, at 18-21. With respect, I cannot agree with that

assessment. For the reasons that I outline briefly here,

I believe that Madison has introduced evidence of actual

malice that, if believed by the trier of fact, would support

a verdict in his favor. I would therefore reverse the summary judgment in favor of the defendants and remand

the case for a trial on Madison’s defamation claim.

I focus on actual malice because I agree with much of

the rest of the majority’s analysis. Most of the statements

that Madison challenges in defendant Renatta Frazier’s

book, The Enemy in Blue, could not support a recovery for

him. As the majority explains, the “fantasy sequence” is

just that—an account of an imaginary beating and

its aftermath. No one is identified either by name or

description, and thus it is saved by Illinois’s “innocent

construction” rule. Similarly, the statements in Chapter

Eight of Frazier’s book wondering whose side Madison

was really on, or whether he might run for public office,

are merely statements of opinion. But, as the majority

concedes, the statements accusing Madison of lying (and

perhaps, I would add, even those that blast him for

“selling out”) impugn his integrity, his character, and his

fitness to serve as the head of the local NAACP. The
24 No. 07-1944

majority “accept[s] the fact that Frazier referred to

Madison as a liar,” and it accepts “that under this specific

context, the statement was defamatory per se.” Ante, at 18.

I, too, reach that point in the analysis. Where our paths

diverge is on the final step that Madison must take:

because he is a public figure, he must show that the

defendants acted with actual malice. I believe that he can

do so.

First, Madison points to the four-year gap between the

events recounted in the book and the publication of the

book. Frazier and Mitchell (her son and co-author) both

stated in their depositions that they did no fact-checking

when writing the book and used no outside source material. They relied only on Frazier’s memory and did nothing

to ensure the accuracy of her recollections, nor did they

follow up on her assumptions to find out if what she

suspected had come to pass. Somewhat inconsistently,

Frazier also stated that she made phone calls to certain

people to verify certain pieces of information, but she

admitted that she never did anything of the sort with

respect to what she published about Madison. A jury

could consider it reckless disregard of the truth to allow

four years to elapse without ever checking to see

whether this kind of inflammatory statement about

another person is indeed true. See Catalano v. Pechous,

419 N.E.2d 350, 360-61 (Ill. 1980) (finding liability where

the defendant was himself “the original source of the

defamatory statement” and where the defendant “made

no inquiry to ascertain whether it was his inference

rather than another which was the correct one to draw”).
No. 07-1944 25

The fact that Frazier had the presence of mind to check

facts relating to certain people, but not Madison, only

increases the reasonableness of an inference that she

recklessly disregarded the truth in what she wrote

about Madison.

Second, Frazier stated in her deposition that she did not

recall the details of her conversations with Madison

(such as who said what or when), yet she said at other

points in the deposition that she used direct quotes when

recounting those conversations in the book and that her

intent was to convey the conversations just as they had

happened. In other words, her testimony was contradictory, both professing doubt about the accuracy and

completeness of her memory and claiming that her

memory was good enough to summon up direct quotes

from her talks with Madison. The most frequent phrases

that Frazier uttered during her deposition were that she

“can’t remember” or “can’t recall” something. This is odd

for a woman who claims to have written an entire book

based solely on her recollection. Her inconsistency about

what she remembered could lead a jury to infer that she

was lying about her ability to remember the conversations

completely and accurately, or that she recklessly disregarded whether her recollections were true.

Third, the book contains several inaccuracies. For

example, Madison calls our attention to incorrect information in the book about a lawyer whom the NAACP hired

to assist Frazier. More significantly, a book reviewer

(who, as it happens, was treated favorably in Frazier’s

book) pointed out in a published review a litany of mis-
26 No. 07-1944

statements in the book, which ranged from careless

errors to vindictive mischaracterizations. The reviewer

wrote, “I know for a fact that Frazier got some of her

facts wrong—most by accident but a few because of her

belief that she was the victim of a grand conspiracy.” She

added that the book “could have benefited [sic—and irony

noted] from a spell check, a grammar check, and, especially, a reality check. People she likes get special treatment (in her book, I’m young and skinny; in real life, I’m

aged and gelatinous), and people she dislikes get bodyslammed (Carl Madison left town just in time).” This, too,

supports an inference that Frazier knew that she was

distorting the truth in a way that was malicious toward

her “enemies.”

Fourth, and as the majority points out, Frazier had a

“very obvious dislike” for Madison, ante, at 20, and her

personal animosity toward him is painfully apparent,

both in the book and in the rest of the record. While not

dispositive, the extent of Frazier’s negative feelings

toward Madison buttresses the other available evidence

and lends further support to an inference that Frazier

recklessly disregarded the truth about him when

writing her memoir.

When everything is taken together (as a trier of fact

would be required to view it), Madison has produced

enough evidence to support a reasonable inference that

the defendants acted with actual malice when writing

and publishing The Enemy in Blue. This is a classic jury

issue, and the record before us contains sufficient evidence to allow a jury to decide it. I respectfully dissent
No. 07-1944 27

from my colleagues’ decision to end Madison’s case at

this juncture.

8-22-08