## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

Ston e v. P

addock Publications, I

nc. , 2011 IL App (1st) 093386

Appellate Court Caption L I SA STONE, as Mother and Next Friend of J ed Stone, Pe t i t i o n erAppellee
, v. PADDOCK PUBLI CATI ONS, I NC., Respondent (John Doe, Interve nor-Appe llant).

District & N o. First District, F ourth Division Docke t No. 1-09-3386

Filed November 17, 2011

Held ( Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) I n an action on a petition filed under Supreme Court Rule 224 seeking the disclosure of the true identity of the person who p o sted anonymous statements on a newspa

per’ s comment board conce rning a local elec tion, the order s g ranting the petition wer e reve rsed wher e the petition failed to alleg e fac ts sufficie nt to su pport a cause of action for defamation as require d by section 2-615 of the Code of Civil Procedur e in order to show that disclosure of the person’ s identitywas ne cessa ry

.

Dec ision Under Review Appea l from the Circuit Court of Cook County , No. 09-L -5636; the Hon. J eff rey L awr ence , J udg e, pre siding.

J udg ment Reverse d.Counsel on

Appea l Michae l D. Fur long and Peter M. Trobe, both of Trobe, Ba bowice & Associates LL C, of Waukeg an, and Charles Mudd, J r., of M u d d L aw Offic es, of Chica g o, for a ppellant.

Stephen L

. Ty ma an d Wil liam A. O’Connor, both of Ty ma O’Connor, P.C., of Chi cag o, for a

ppellee.

Panel PRES IDING J USTI CE L AVIN delivere d the judgme nt of the court, with opinion.
J ustice Sterba c oncurr ed in the judg ment and opinion.
J ustice Salone spec ially

concur red, w ith opinion.

OP INION

¶ 1 This appea l has its g enesis in online chat o n a suburban newspa per’ s comment boar d b et we en two individuals (one later identified as a minor) who posted various sarc as t i c

co m ments about a local elec tion under anony mous scre en names. The minor’s mother, a candidate i n the election, was the subject of much of t h e ch at t er and she ultimately filed a petition pur suant to Supre me Court Rule 224 (I ll. S. Ct. R. 224 (ef f. May 30, 2008)) on her son’s behalf

, seeking the discovery of J ohn Doe’ s identity due to his comments, which wer e alleg edly defa matory of her child. Ultimately
, the trial court order ed that the identity of the

s u b s cr i b er to the internet protocol (I P) addre ss used by Doe when posting on the websit e would be reve aled to petitioner. Doe now appea ls, asserting that the trial court err ed by apply ing an improper standard in determining whether petitioner was entitled to discover his identity and by g ranting petitioner re lief whe re the challeng ed comments do not constitute defa mation. Doe also contends th a t the challeng ed comments wer e immuniz ed by the Citi zen Participation Act (735 I

L CS 110/ 1 (West 2008)). We re verse

.

¶ 2 I . BA CKGROUND ¶ 3 Petitioner L isa Stone, acting as mother and next friend for her minor son J ed Stone, filed petitions for discovery pursuant to Rule 224 naming Paddock Publications, I nc., as responde nt. These p et itions indicated that responde nt published an article that was made available on its Daily Her ald website on April 6, 2009. L ike virtually all online newspa per’ s sites, the online version of this article allowed the public to post and rea d comments without

s p ec ifically identify ing themselves. On April 9, 2009, an individual with the user name “Hipche ck16” posted an alleg edly defa matory comment reg arding J ed
, who went by the

-2-scre en name “Unc le W” on this messag e board. Petitioner urg es that “[i] t is nece s s ary to 1

asce rtain the identity of Hipchec k16, as he is a potential d ef en d an t for his defa matory

rema rks.” Petitioner soug ht an order to obtain discovery from responde nt, whom petitioner believed possessed the name and addre ss o f Hi p chec k16. Although the posted comments

wer e not rec ited in or attache d to the petition, petitioner provided the challeng ed comments

as we ll as additional dialog ue betwe en Jed and Hipche ck16 in later filings. ¶ 4 The rec ord shows that on April 4, 2009, Hipchec k16 had made the following comments in response to a letter in support of petitioner’s campa ign for Buf falo Grove Villag e trustee, which wa s published on the Daily Her ald’s we bsite:
“H er e we g o ag ain–another brainwa shed adolescent who can’ t form an opinion on their own. L ou–y ou’re probably not old enoug h to vote, and I ’m cert ai n al l y ou know about this elec tion is what y our mommy told y ou. I ’ll bet y ou’ve never been to a village board meeting and couldn’t find village hall even if they wer e giving away fre e iPods there

. Do some of y our o wn re s earch on y our wonder ful candidate and y ou’ll quickly discover that sh e i s NO T QU AL I FIED to be a trustee. She knows littl e about financ e, NOTHING about business or village oper at ions and can’ t seem to form a coher ent thought–at least not ones that find their way out of her mouth.
Your pare nts should teac h y ou the importance of having g ood community leade rs, and a lesson on independe nt thinking would probably be benef icial too. Whil e y ou’re at i t, perha ps y ou should work on that spelling and g rammar stuff, as it seems to be an ong oing c halleng e for

y ou, as we ll as other Stone supporter s. Now g o watch MTV and quit inserting y ourself into conver sations for which y ou’re
not prepa red. I f y o u ’r e 1 6
, go t ake y our R ottweiler for a nice long walk. And don’t do heroin–it’s bad f

or y ou.” On the same day , Hipchec k16 posted the following comments: “Ooops–my previously post was direc ted at o u r l i t t l e pal UncleW, not L ou. My apolog ies L ou!
I ’m not perf

ect. B ut at least I

know what a

Home Rule Tax is. :)” ¶ 5 I n respo n s e t o an ar t i cl e which was primarily about candidate J oanne J ohnson, the following colloquy

ensued on A pril 8, 2009:
“HIPC HE C K1 6: UncleW–funny how y ou suddenly surfa ce ag ain to g loat about Stone’s win, and do so like the ill-informed punk that y ou rea lly are

. Didn’t y ou learn last

wee k that y ou should stay out of things y ou don’t understand? Can y ou rea lly be proud of a candidate who stood idly by while people claiming to be her supporters made antiSemitic alleg ations about two of her opponents? Whether or not Stone actua lly condoned the use of an t i -S em i t ism is rea lly not the

Wh il e bot h pro ta gonist s in thi s cyber dra m a pos te d ano nym ous ly, at some poi nt, it bec ame 1
app ar ent tha t Hipc hec k16 t h o u g h t t h a t Uncl e W was, in fa ct , the son of pet it ion er , and la te r on, st at ed s uch on t he we bsi te

.
-3-issue. She was a war e that people who wer e in some way associate d with her c ampaig n

wer e ca lling voter s all over the village falsely acc using J ohnson and Te rson of running anti-Semitic campa igns. I f she did no t believe that J ohnson and Terson wer e antiSemitic, she could have made a p u b l ic statement denouncing those calls and disassociating herse lf from the actions of what may have been a few overzea lous supporters. I n s tead, she took no action, allowing those rumors to sprea d. By not speaking out against such hate speec h, she tacitly condoned it, knowing that it would wo rk t o h er advanta g e in the ele ction. Now, that’s something y ou can rea l l y b e p roud of, isn’t it UncleW? Would y ou be down for a

conver sation about that? UNC L E W : Ye s Hipchec k, and like I said show y ourself in person. Wit h all y our

resour ces I ’m sure y ou could navig ate y our way over to the Stone confine s. Then I ’ll be
g lad to have this conver satio n wi t h y o u , howeve r, I will not continue to comment on these blog s where any one can be any one. And HAPPY PESACH Hipcheck. Hope fully y ou will find the afikoman tonig ht.
HI PCHECK16: Thanks UncleW, y a littl e nebish. You have a nice littl e Pesach
y ourself. I

may stop by tonight–have room for me at the Seder ?
Some day s I ’m rea lly ashame d of my fellow tribesmen
, an d today is one of them. You’ll do anything to justify y our actions, and y o u r s ense of entitlement sickens me. Your holier than thou attitude and arr og ance is disgusting
, but what’s even worse is that just like y our mommy and all her buddies, y ou think y ou’re smarter than y ou rea lly are

. An d t here is nothing more dang erous than someone who is not nearly as sm art as they think they are

. Ho p e y o u and daddy are in the front row at the board meeting s so y ou can mouth

answe rs t o her, just like y ou did at t he for um. Otherwise she ’ll be complete ly lost, and I don’t think she should count on the other trustees for help, since she’s alre ady alienate d herse lf from most of them. She’s not qualified to car ry the other trustee’ s briefc ases–they know it and she knows it. Can’t wait to watch her ummm and uhhh her way throug h the meeting s–I ’m in need of

a g ood laug h.
Now g o help mommy prepa re her Seder so she doesn’t brea k one of her acry lic nail extensions or accide ntally wash off her f ake ta n. UNCLEW: Ya g ot a name Mr . Hipchec k? ” ¶ 6 T h e n ex t day
, Hipchec k16 posted the following comments, including the emphasiz ed comments being challeng ed by petitioner: “And a s for y ou, UncleW... Thanks for the invitation to visit you.. but I’ll have to decline. Seem s like you’re very wi l l i n g t o i n vite a man you only know from the internet over to your house–have you done it before, or do they usually invite you to their house? Plus, now that y ou have stupidly reve aled y ourself, y ou may want to watch what y ou say here –and consider the damag e y ou’ve done by att ac king sitti ng trustees and other

-4-municipal officia ls that y our mommy will now have to work with. T oo bad she’ll have
t o b egin her tenure with apolog ies. These people are way too smart to just accep t h er outrig ht. Their obligation is to the village
, not t o y our mommy

. I f she thinks she’s entitled to their respe ct simply beca use she g ot herse lf elec ted, she needs to think ag ain. I f I wer e her, I ’d be working on s o m e ap o l o gies and learning something about financ e befor e she’ s sworn in.
Now quit g loating, y ou’re looking as silly as y our mommy did acc osting voters at the polls.” (Emphasis adde d.) ¶ 7 On April 13, 2009, after p et i t i o n er wa s elec ted as trustee, the Daily Her ald’s we bsite published an article titled “B uffalo Grove trustees move forwa rd afte r contentious
campa ign.” I n his comment posted below the a rticle, Hipc heck16 stated as follows: “The lies continue. I n a blog under a previous article related to the elec tion[ ,] Stone’s
son, writing under them [ sic ] name Uncl eW cl aim s that his family rec eived one of t he robo calls. Now Stone claims they never g ot one. The least they could do is g et their lies straig ht.” ¶ 8 The trial court enter ed a written order permitting petitioner to eng ag e in limit ed discove ry to obtain the information nece ssary to identify Hipchec k16. Respond e n t a p p a r e n tl y answere d
p et i t i o n er’ s discovery reque sts by informing petitioner that Hipchec k16’s I P addre ss was 24.1.3.203 and his e-ma il addre ss was hipchec k16@y ahoo.com, but did n o t reve al Hipchec k16’s name. In addition, it was determined that this I P addre s s b el o n g ed to a Comcast Cable user or subscriber

. Notwithstanding petitioner’s failure to add Comcast as

a Rule 224 responde nt, petitioner then filed a motion seeking an order compelling Comcast
to respond to a subpoen a an d provide the identity of the subscriber to the pertinent I P addre ss. T he trial court order ed Comcast to notify its subscriber that his ide ntity was being
soug ht by petitioner and to inform t h e s u b s cr iber that he could contest the subpoena. On Aug ust 5, 2009, Doe, user of the afor ementioned I P addre ss, filed a motion t o quash petitioner’s subpoena , arg uing, in pe rtinent part, that pe titioner failed to comply with Rule 224

. T h e t ri al court denied Doe’s mot ion and appare ntly order ed C omcast t o produce the 2 information about the subscriber ’s identity in came ra

. Comcast notified Doe and petitioner of its compliance. ¶ 9 On October 9, 2009, Doe filed a “motion in opposition to turnover of identity ,” arg uing that his first amendment rig hts would be jeopar dized by disclosing his identity to petitioner and that petitioner should be req u i re d to alleg e with specific ity the comments that wer e alleg edly defamatory

. Doe arg ued that petitioner’s conclusory alleg ation that Doe had posted

a defa matory co mment was insufficient. On the same day
, petitioner filed a motion to disclose Comcast’s response to the subpoena. Petitioner identified the challeng ed statement, which she a

rg ued wa s not constituti onally protec ted spee ch. ¶ 10 Following a hearing on November 9, 2009, the trial court enter ed a written memora ndum

We not e tha t the name “J ohn Doe” has bee n use d wit h re spe ct to bot h Hipc hec k16 and the 2 Com cas t sub scr ibe r wit h the af ore m ent ion ed I P add re ss. Alt hough an I P add re ss sub scr ibe r and use r

can be dif fe re nt ind ividu al s, we re fe r t o bo th in thi s i nst anc e a s “ J ohn Doe.”

-5-opinion and order
, essentially finding that when balanc ing Doe’ s co n stitut ional rig hts and

petitioner’s rig ht to redr ess, the identity of the subscriber with the afor ementioned I P addre ss should be disclosed. Nine day s later, the trial court enter ed a wr i t t en o rd er stating that on Dec ember 18, 2009, it would turn over to p e ti tione r’s counsel the documents and information delivere d to the court by Comcast. The court also restric ted the individuals to whom Doe’ s identity could be reve aled there afte r. On Dec ember 7, 2009, Doe filed a n o t i ce of appea l from those two trial court order s. I t appea rs that th e t ri al court subsequently stay ed the enfor ceme nt of the latter or der, pe nding r esolution of this appeal.

¶ 11 I I . THE RULE 224 STANDARD ¶ 12 On ap p ea l
, Do e first asserts the trial court applied the wrong standard to deter m i n e whether petitioner was entitled to disc over Doe’ s identity pursuant to Rule 224. This c ourt g ener ally revie ws the trial court’s ruling pursuant to Rule 224 for an abuse o f d i scre tion. Maxon v. Ottawa Publis hing Co. , 402 I ll. App. 3d 704, 711 (2010). None theless, statutory construction constit utes a question of l aw, which we review d e n o vo

. Sardiga v. N orthern Trust Co.
, 409 I ll. App. 3d 56, 61 (2011); s ee also Maxon
, 402 I ll. App. 3d at 710 (the decision reg arding what standard must be sat i s fi ed as to petitioner’s potential defa mation claim pre sents a question of law, which we revie w de novo ). I n determining what standard a petitioner must satisfy

under Rule 224, we beg in with the statute itself. ¶ 13 The primary rule of statutory construction is to eff ectuate the draf

ter’s intent. Barragan v. Casco De sign Corp.
, 216 I ll. 2d 435, 441 (2005). The best evidenc e of such intent is the statutory lang uag e itself, which is to be g iven its plain meaning

. Johnston v. W eil
, 241 I ll. 2d 169, 175 (2011). Where the meaning is unclea r, courts may consider the law’s purpose and the evils the law wa s i ntended to reme dy

. Johnston
, 241 I ll. 2d at 175-76. A statute’s lang uag e is ambig uous wher e capa ble of b ei n g understood by rea sonably well-informed individuals in multipl e way s. MD Electrical Contractors, Inc. v. Abrams
, 228 I ll. 2d 281, 288 (2008). Furthermore
, we are require d to construe a statute in a constitutional manner wher e

rea sonably possible. W

ade v. City of North Chicago Police Pension Board
, 226 I ll. 2d 485, 510 (2007). ¶ 14 Rule 224, entitled “Discove ry Be fore Suit to I dentify Responsible Persons and Entities,” states as follows: “(i) A person or entity who wishes to eng ag e in dis co very for the sole purpose of

asce rtaining the identity of one who may be res p o n s i ble in damag es may file an independe nt action for suc h discovery

. (ii) The action for discovery shall be initiated by the filing of a verifie d petition in the circuit court of the county in which the action or proce eding might be brough t o r i n which one or more of the persons or entities from whom discovery is soug ht resides. The petition shall be broug ht in the name of the petitioner and shall name as responde nts the
persons or entities from whom discovery is soug ht and shall set forth: (A) the reason the proposed discove ry is nece ssary and (B ) the nature of the discovery soug ht and shall ask for an order authorizing the petitioner to obta in suc h discovery

. The orde r allowing the petition will limit discovery to the identification of responsible persons and entities and

-6-whe re a d eposition is soug ht will specify the name and addre ss of eac h person to be examined, if known, or, if unknown, information sufficie nt to identify eac h person and the t i m e and place of the deposition.” (Emphasis added.) I ll. S. Ct. Rs. 224(a) (1)( i), (a) (1)( ii) (ef

f. May 30, 2008).
Acc o rd i n gl y , t h e rule is intended to assist a potential plaintiff in seeking redr ess ag ainst a person who may be liable but the plain lang uag e of the rule also requires a p et i t ioner to demon s t ra t e the rea son why the proposed discovery seeking the individual’s identity is “nec essary .” The question befor e us is what standa rd a petitioner must satisfy to show that the proposed discovery is nece ssary

. I n determining what is require d b y this lang uag e, we keep in mind that Rule 224 applies not only to petitioner’s potential def amation claim, but
to any instance in which an unknown individual may be liable under any cause of action. We also adher e to our afor ementioned duty to construe a statute in a constitutional manner wher e

rea sonably p o s s i ble. W

ade
, 226 I ll. 2d at 510. This is consistent with the committee
comments providing t h at Rule 224 “is not intended to modify in any way any other rig hts

secur ed or responsibilities imposed by law.” I ll. S. Ct. R. 224, Commi ttee Comments (1989). Her e, Doe contends that too l ow a standa rd wil l violate i ndividuals’ constitutional rig ht to eng ag e in anonymous speech and deter the political speec h that ensues via the I nterne t. ¶ 15 As this court has rec og nized, while anony mous speec h is a long- prot ec t ed ri gh t o f citizenship, there is no constitutional rig ht to defa me. Maxon
, 402 I l l

. Ap p. 3d at 713. Nonethele ss, the Supreme Court ha s rec og nized the important role that anony mous speech has play ed throug hout history and that individuals sometimes choose to speak anonymously for the most c onstructive purposes. See Talley v. Calif ornia
, 362 U.S. 60, 64-65 (1960). I n addition, identification and fea r of reprisal may det er ev en peac eful discussions reg arding important public matters. See Talley
, 362 U.S. at 65; People v . W hite , 116 I ll. 2d 171, 177 (1987). “Anonymity is a shield from the tyranny of the majority .” McI ntyre v. Ohio Elections Comm’n , 514 U.S. 334, 357 (1995). Thus, an author is g ener ally fre e to dec ide whethe r he wishes to disclose his true identity and his decision not to do so is an aspec t of the fre edom of speec h provided in the first amendment. McI ntyre , 514 U.S. at 341 -4 2

. Fu rt hermore
, discussion of public issues as well as debate reg arding candidates’ qualifications are integ ral
to the g overnme nt es t ab l i s h ed by our Constit ution. McI ntyre , 514 U.S. at 346. Polit ical
speec h will occa sionally have unpalatable conseque nces but our society g ives g reater weig ht to the value of fre e speec h than the dang er that fre e spee ch will be misused. McI ntyre , 514 U.S. at 357. That the first amendment applies to s p ee ch via the I nterne t is also clea r. See Reno v . American Civil Liberties Union , 521 U.S. 844, 870 (1997). ¶ 16 I n light of the fore g oing, we rec og nize a plaintiff’s rig ht to seek redr ess for unpr otected d efam at o ry lang uag e but also avoid a construction of Rule 224 that would set forth a standard so low as to permit individuals to obtain the identity of those eng ag ing in protec ted

s p ee ch and eff

ectively chill or eliminate the rig ht to speak anony mously

. We find that the Third District of this court has adopted the appropr iate standard to achie ve this balanc e while
g iving a ppropriate meaning to the lang uag e of Rule 224. ¶ 17 I n the Third District’s decision in Maxon
, which was rende red af t er t h e j u dg ment on appea l, this court held that wher e the trial court must rule on a R ule 224 petition base d on

a potential defamation cause of action, the court must ensure that the petition (1) is verifie d;

-7-(2) states with particula rity fac ts that would demonstrate a cause of action for defa mation; (3) s ee k s only the identity of a potential defe ndant, rathe r than information nece ssary to demonstrate a cause of action for defa mation; and (4) “is subjected to a hear ing at which the
court determines that the petition sufficie ntly states a cause of action for defa mation ag ainst the unnamed potential defe ndant, i.e.
, the uni dentified person is o n e who i s responsible in damag es to the petitioner.” Maxon
, 402 I ll. App. 3d at 711. The Maxon court also found that section 2-615 of t he C ode of Civil Procedur e (735 I L CS 5/2-615 (Wes t 2 0 06)) provided a mecha nism to determine whether the petition stated a cause of action. Maxon
, 402 I ll. App. 3d at 711-12. The court observe d that section 2-615 motions attac k the leg al sufficie ncy of the complaint based on defe cts appea ring on the fac e of the complaint. Maxon
, 402 I ll. App. 3d at 712. I n considering whether to g rant or deny a motion to dismiss
, the court must determine whether the complaint standing alone has stated sufficie nt fac ts to demonstrate a

cause of action pursuant to which relief may be g rante d. Maxon, 402 I ll. App. 3d at 712. The Maxon court further observe d that defa mation litigation is routinely addre ssed in the context of secti o n 2 -6 1 5 motions and that constitutional protec tions are considere d as part of the prima facie case so that a plaintif f i s re q u i red to plead fac ts to show that the alleg edly defa matory s t at em ents are not constitutionally protec ted. Maxon
, 402 I ll. App. 3d at 712. Acc ording ly
, the Maxon court conclude d that subjecting a Rule 224 petition to the scrutiny provided in section 2-615 would satisfy any constituti o n a l c o n c e rn s that arise from disclosing a potential def

endant’ s identity

. Maxon , 402 I ll. App. 3d at 712. ¶ 18 We ag ree that requiring a R u l e 2 2 4 p et i t i o n er t o p rovide alleg ations sufficie nt to

ov ercome a section 2-615 motion to dismiss adequately balanc es the rig hts of a petitioner and the unidentified individual. We clarify , howeve r, that an unide ntified individual is not require d to file such a motion, but rathe r, it rema ins the petitioner’s burden to show that the discovery is nece ssary , i.e.
, that p et i t i o n er can alleg e fac ts supporting a cause of action. Whil e the Maxon court corr ectly found that this standard protec ts an anony mous individual’s constitutional rig hts in the context of a defa mation claim, we add that the appropriateness of this standard is not limit ed to speec h-base d claims. Section 2-615 does no t p er m i t the dismiss al of a claim unless n o s et of fac ts can possibly be proved that would entitle the plaintiff to relief

. Isebe rg v. Gross
, 227 I ll. 2d 78, 86 (2 0 0 7 ). T h u s, if a petitioner cannot satisfy the section 2-615 standard, it is clea r that the unidentified individual is not responsible fo r damag es and the proposed discovery is not “nec essary .” I ll. S. Ct. Rs. 224(a) (1)( i ), (a) (1)( ii) (ef

f. May 30, 2008). ¶ 19 Doe sug g ests a summary judgme nt standard, relying on Mobilisa, Inc. v. Doe
, 170 P.3d 712 (Ariz. Ct. App. 2007). I n Mobilisa, I nc. , the Court of Appea ls of Arizona examined an Arizona rule of civil proce dure that permitted the plaintiff to file an application seeking the identity of an anony mous individual after the complaint had been filed. Mobilisa, Inc.
, 170 P.3d at 715-16. After d i s cu s s i n g the need to balanc e the first amendment rig hts of
anony mous I nterne t speake rs and the rig hts of t h o s e s eeking redr ess for improper communications, the court held that a party reque sting a n anony mous speake r’s identity must (1 ) s h ow that such person has rec eived adequate notice and a rea sonable opportunity t o respond to the plaintiff’s discovery reque st; (2) demonstrate that the reque sting party would survive a motion for summary judgme nt f iled by the anonymous spe aker as to a ll e lements

-8-within the control of the reque sting party , i.e.
, “all elements not depende nt upon knowing the

identity of t he anony mous speake r”; and (3) show that a balance of the parties’ competing interests weighs in fa vor of disclosure

. Mobilisa, Inc. , 170 P.3d at 717-20. We note that in finding that a motion to dismiss standard “would set the bar too low,” the court observe d that Arizona was a

notice-ple ading state, and thus, a c omplaint was mere ly require d to provide

a short and plain statement establishing that the plaintiff was entitled to relief

. Mobilisa, Inc.
, 170 P.3d at 720. ¶ 20 Wh il e w e a g ree with the important objective of protec ting anony mous speec h, a s u mm a r y judgme nt standard cannot be harmonized with the specific proce dural posture of a Rule 224 petition. In Mobilisa, I

nc., a complaint had a lrea dy been f iled at the time the application to discover the anony mous person’ s identity was fi led pursuant to the Arizona statute. I n contra st, the petition set forth in Rule 224 is filed prior to the fi l i n g o f a complaint. Acc ording ly
, a Rule 224 petitioner has not had the benef it of discovery

. I ndeed, the lang uag e of the rule itself prohibits se eking any discovery perta ining to the merits of the pe titioner’s

cause of action. I ll. S. Ct. R

. 2 2 4 (a )( 1)(ii) (ef f. May 30, 2008) (“The order allowing the petition will limit discovery to the identification of responsible persons and entities ***.”);

see also Malmberg v. Smith
, 241 I ll. App. 3d 428, 432 (1993) (f i n d i n g that discovery pursuant to Rule 2 2 4 i s limit ed to obtaining the identities of potential defe ndants). I n assessin g a m o t ion for summary judgme nt, howeve r, we must consider the depositions, affidavits, exhibi ts, admissions and pleading on file and strictly construe them ag ainst t h e moving party

. F.H. Paschen/S.N. Nielsen, Inc. v. Burnham Station, L.L.C

. , 372 I ll. App. 3d 89, 93 (2007). Thus, a party responding to a summary judgme nt motion may rely on evidenc e obtained in discovery to defe at the motion. I f the summary judgme nt standard wer e to be applied strictly to Rule 224 petitions, petitioners seeking redr ess for even meritorious claims
may be denied relief beca use they lack evidenc e that they have no means to obtain until discovery ensues. Assuming that Mobilisa, Inc. ’s lang uag e limiting t he applicant’s burde n to support “all elements not depende nt upon knowing the identity of the anony mous speake r”

means all elements not depende nt on evidenc e within the anony mous person’ s control, such

a modified summary judgme nt standard may p ro v i d e the anony mous speake r with less protec tion than the standard r equire d for a motion to di smiss i n I llinois

. ¶ 21 I n contra st to Arizona, I llinois is a fac t-pleading jurisdiction, requiring plaintiff to alleg e fac ts, rathe r than mere conclusions, to demonstrate that his claim constitutes a viable cause of action. Isebe rg , 227 I ll. 2d at 86. To survive a motion to dismiss
, the plaintiff must alleg e specific fac ts supporting each eleme nt of his cause of action and the trial court will not admit

co n cl u s o ry alleg ations and conclusions of law that are not supported by specific fac ts

. Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corp.
, 406 I ll. App. 3d 325, 336 (2010). I n contra st, the modified summary judgme nt standard would permit a petitioner to obtain the
anony mous person’ s identity without even prov i d i ng alleg ations in support of certain elements whe re the evidenc e pertaining to such eleme nts was in control of the anony mous person. Be cause the motion t o d i smiss standard best balanc es the need to protec t the
anony mous party ’s rig hts and the interests of the party seeking redr ess, we find that Maxon
, rathe r than Mobilisa, Inc ., sets forth the c orre ct standar d.

-9-¶ 22 I I I . DEF AMATI ON

¶ 23 We now examine the R ule 224 petition befor e us. As stated, t he petiti on and ame nded petition, both of which wer e filed prior to the Maxon decision, failed to identify the alleg edly defa matory statements. See Gree n v. R o g er s , 234 I ll. 2d 478, 492 (2009) (a complaint for defa mation per se is not require d to state the alleg edly defa matory words in haec verba but the substance of the statement must be pled with p re ci s i o n and particula rity sufficie nt to allow an initial re view of its def amatory content). N onetheless, e ven when considering the
statements sub s eq u entl y provided by petitioner, she cannot establish a cause of action for defa mation ag ainst Doe. ¶ 24 To state a claim for defa mation, a plaintiff must prese n t fa ct s demonstrating that the defe ndant made a false statement about the plaintiff, that the defe ndant made an unprivileg ed publication of the subject statement to a third party , and that the publication cause d damag es t o t he plaintiff. Gree n , 234 I ll. 2d at 491. A statement is defa matory if it harms an individual’s reputation by lowering the individual in the ey es of his community or deter s the community

from assoc iating w ith him. Tuite v. Corbitt , 224 I ll. 2d 490, 501 (2006). Ther e

are two forms of defa mation: defa mation per se and defa mation per quod

. Moore v. People for the Ethical Treatment of Animals, Inc. , 402 I ll. App. 3d 62, 68 (2010). ¶ 25 A statement is defa matory per se if the resulting harm is appar ent and obvious on the fac e of the statement. Tuite
, 224 I ll. 2d at 501. I f a statement is defa matory per se , the plaintiff is
not require d to plead actua l damag e to his reputation but, rathe r, the statement is considere d
to be so obviously and materia lly harmful that injury to the plaintiff’s reputation is presumed. Moore
, 402 I ll. App. 3d at 68. Be cause defa mation per se relieve s a plaintiff of his obligation
to prove actua l damag es, this claim must be pled with a heig htened level of particula rity and
prec ision. Gree n , 234 I ll. 2d at 495. There are five cate g ories of statements that are deeme d
to be defa mation per se : (1) words imputing the commission of a criminal offe nse; (2) words that impute infec tions with a loathsome communicable dise as e; (3 ) words that impute an individual is unable to perf orm his employ ment duties or o t h erwise lacks integ rity in perf orming those duties; (4) words that prejudice an individual in his profe ssion or otherwise impute a l ack of ability in his profe ssion; and (5) words that impute an individual has
eng ag ed in fornication or adultery

. Tuite
, 224 I ll. 2d at 501. Her e, petitioner contends that the challeng ed statement sug g ests J ed solicits men for sex and, thus, falls within the first and last
cate g ories. ¶ 26 I n addition to the afore mentioned re quirements, our supreme c ourt has re cog nized that there are three ty

pes of actions in which an alleg edly defa matory statement has been held to be protec ted by the first amendment in the absenc e of a showing that the statement is factual : (1) actions broug ht by public officia ls; (2) actions broug ht by public fig ures; and (3) actions broug ht ag ainst media defe ndants by private individuals. Impe rial Apparel, LTD v. Cosmo’s Designer Direct, Inc.
, 227 I ll. 2d 381, 398-99 (2008); see also Moore
, 402 I ll. App. 3d at 68 (a defa mation action cannot be based on statements that do not contain fac tual assertions, as such statements are protec ted by the first amendment). I n those circ umstances, the first amendment prohibits actions for defa mation based on loose and fig urative lang uag e that no person would rea sonably believe prese nted a fac t. Impe rial Apparel, LTD
, 227 I ll. 2d at 397;

see also Mi l ko vi ch v. Lorain Journal Co.
, 497 U.S. 1, 20 (1990) (the first amendment

-10-protec ts state ments that cannot be rea sonably construed as stating actual f acts reg arding an individual). To determine whether a statement is protec ted by the first amendmen t from defa mation claims, the test is whether the statement can rea sonably be interpre ted as stating

a fac t, considering (1) whether the statement has a rea dily understood and prec ise meaning ; (2) whether the statement can be verifie d; and (3) whether its social or literary context signa ls that it has fac tual content. Impe rial Apparel, LTD
, 227 I ll. 2d at 398. Although we evaluate the statement from an ordinary rea der’ s perspe ctive, the court itself must dete rm i n e as a question of law whether the statement is a fac tual assertion that could support a defa mation claim. Impe rial Apparel, LT D , 227 I ll. 2d at 398. ¶ 27 Our supreme court has also obs er v ed t h at i t re m ai n s u nsettled whether this first amendment privileg e extends to statements made b y one private individual about another
reg arding a private conce rn. Impe rial Appare l, LTD
, 227 I ll. 2d at 399; se e also Milkovic h
, 497 U.S. at 20 n.6 (re serving judgme nt on case s involving nonmedia defe ndants). The court observe d that the benef

its of extending this privileg e t o p rivate individuals included achie ving consistent outcomes wher e an individual seeks rec overy from bo t h p ri vate individuals and a media defenda nt. Impe rial Apparel, L TD
, 227 I ll. 2d at 400. I n addition, the court observed this appr oach r ecog nizes that the status of t he defenda nt who publishes the speec h does not dictate its inhere nt worth as it relates to the ability to inform the public. Impe rial Apparel, LTD
, 227 I ll. 2d at 400. The co u rt further observe d that this approa ch reduc es ambig uity
, which can otherwise foster fea r of liability as well as self-c ensorship and inhibit the fre e flow of protec ted expression. Impe rial Apparel, LTD
, 227 I ll. 2d at 400. Nonethele ss, the court determined that it need not resolve this unsettled matter beca use the parties had not challeng ed the assumption of the trial court and appellate court that this privileg e applied. Impe rial Apparel, LT D , 227 I ll. 2d at 400. ¶ 28 Simi larly
, here
, the parties have not questioned whether a statement must assert a fac t in ord er t o s u p p ort a claim for defa mation wher e one private individual, Doe, has made a statement ag ainst another private individual, J ed. We are persua ded by the policies set forth by the supreme court that this require ment should not be limit ed by the status of the speake r

or the person being spoken about. I n support of our determination, we also observe it appea rs that another district of this court has intuiti vely applied the fac tual assertion require ment to

a claim broug ht by a private individual and entity ag ainst a nonmedia defe ndant. See J. Maki Construction Co. v. Chicago Regional Council of Carpenters
, 379 I ll. App. 3d 189, 190-91, 199-202 (2d Dist. 2008) (whe re nonunion con s t ru ct ion company and its owner broug ht a defa mation action ag ainst the car penter s’ union and three of its org anizers, the Second District found that the alleg edly defamatory statements failed to include an actionable fac tual

assertion). ¶ 29 Her e, we find that no rea sonable person would find the challeng ed statement prese nted

a fact reg arding J ed, let alone a fac tual asser tion that J ed, a minor, solicits men for sex over the I nterne t. J ed invited Doe to speak fac e to fac e for the purposes of political discussion. I t

was in response to this invitation that Doe made the following statements: “Tha nks for the invitation to visit y ou.. but I ’ll have to decline. Seem s like you’re very will ing to invite a man you only know from the internet over to your house–have you done it before, or do they usually invite you to their house? ” (Emphasis added)

. The emphasized lang uag e prese nts a

-11-question to J ed. Doe has not aff irmatively

repr esente d that J ed has previously invited men

over or that men have invited J ed over. I n addition, the dialog ue betwee n J ed and Doe shows that they have never met and indicates that their knowledg e of eac h other is limit ed to the confine s of their exchang es in this forum. Thus, Doe has not g iven rea ders any rea son to believe that he would have the ability to know of any such conduct. The challeng ed comment lacks a rea dily understood and precise meaning that can be verifie d and contains no fac tual
content whatsoeve r. Even a ssuming the challeng ed comment had made a fac tual assertion, we f ind it is subject to an innoce nt construction. ¶ 30 A statement will not be actionable per se if it c an easily and rea sonably be subjected to

an innocent construction. Gree n , 234 I ll. 2d at 500. Pursuant to this princ iple, a court must consider t h e al l eged statement i n context, g iving the words and any resulting implications their natura l and obvious meaning

. Gree n , 234 I ll. 2d at 499. I f the actua l words do not alone denote criminal or unethical conduct and have a broade r meaning in common usag e than the meaning ascribed by the plaintiff, the words are not actionable as defa mation per se

. Moore
, 402 I ll. App. 3d at 70. Whether a state ment is entitled to an innocent construc tion pr esents a question of law which we revie w de novo

. Moore , 402 I ll. App. 3d at 70. ¶ 31 Even a ssuming Doe’s questi on constitutes a fa ctual re prese ntation, at best, it is merely

a fac tual assertion that J ed has invited men over or that men have invited J ed over. Given the
context of Doe declining J ed’s invitation to meet for a political discussion, we do not ag ree that a sexual connotation is inhere nt in Doe’ s statement. I n ad d i tion, inviting anonymous i n d ividuals on the I nterne t to meet in person, reg ardle ss of the purpose, involves inheren t risks. Whil e many anony mous individuals g enuinely seek intellectual discourse, others have

more devious purposes, sexual, violent, or otherwise. Thus, even if a sexual connotation can be rea d into Doe’ s comment, his comment may repr esent nothing mo re than an admonishment that J ed’s conduct in inviting Doe to meet in person was unwise, not that J ed
actua lly solicits or has been solicited for sex with anonymous men on the internet. Acc ording ly , Doe’ s statement is entitled to an innocent c onstruction. ¶ 32 We further fin d p et i t i o n er h as n o t alleg ed fac ts sufficie nt to show that Doe may be responsible in damag es for defamation per quod

. Statements are defa matory per quod wher e either (1) the statement’s defa matory char acte r is not appar ent on its fac e so that examining extrinsi c circ umst an ce s is nece ssary to show its injurious meaning ; or (2) the statement is defa matory on its fa ce but doe s not f all within the enumerated categ ories of per se actions. Schivare lli v. CBS, Inc.
, 3 3 3 I l l

. App. 3d 755, 759 (2002). Prejudice is not presumed, howeve r, and the plaintiff must plead specia l damag es. Tuite
, 224 I ll. 2d at 5 0 1

. He re, petitioner has not alleg ed specia l damag es. Acc ording ly
, she has not shown that Doe’ s identity is nece ssary for J ed to pursue a cause of action for defa mation per quod ag ainst Doe. ¶ 33 For

the fore g oing r easons, we hold that a Rule 224 petition must allege fac ts sufficient
to support a cause of action, as require d by section 2-615 of the Code, in order to demonstrate that the discovery of an anony mous individual’s identity is nece ssary

. We also find that, here
, petitioner failed to satisfy that standard and thus, was not entitled to discover Doe’ s identity

. I n l ight of our determination, we need not consider the parties’ rema ining
arg uments. Acc ording ly , we r ever se the trial c ourt’s orde rs permitti ng Doe’ s identity to be turned ove r to petitioner and he r counse l.

-12-¶ 34 I V. CONCLUSI ON

¶ 35 Our nation has long prized a citizen’s rig ht to speak anony mously

. Wit h the prolifer ation of the seeming ly limit less vehicles for such speec h on the I nterne t and the various forms of social media, our citizens now have outlets for anony mous fre e speec h that wer e quite simply

un i m aginable only a deca de ag o. Whil e the law is clea r that there is no rig ht to defa me another citizen, we cannot condone the inevitable fishing expeditions that would ensue wer e the trial court’s order to be upheld. Encoura g ing those easily offe nded by online commentar y to sue to find the name of their “tormente rs” would surely lead to unnece ssary litigation and would also have a chilling eff ect on the many citizens who choose to post anony mously on the countless comment boa rds for ne wspape rs, mag azines, websites and othe r i nformation portals. Putti ng publishers and website hosts in the position of bein g a “c y ber- nanny ” is a

nox ious conce pt that offends our country ’s long history

of protec ting anony mous speech.

¶ 36 Reverse d.

¶ 37 J USTI CE SAL ONE, spec ially concur ring : ¶ 38 I concur with the result rea ched by the majority
, that petitioner has not shown a potential defa mation claim. I

write separ ately
, howeve r, beca use I do not ag ree that the majority has chosen the proper standard to analy z e petitioner’s claim. I n my view, the appropriate standard of proof for R u le 224 petitions is probable cause

. I reje ct the majority ’s standard beca use it (1) contra venes the draf ter’s intent; (2) place s an undue burden on petitioners; (3)

encour ag es unnec essary

litigation; and (4) fails to protec t anony mous speech. ¶ 39 As the majority proper ly states, the purpose of statutory and rule construction is to give eff ect to the intent of the draf ters. Cinkus v. Village of Stickney Municipal Officers Electoral B o a rd
, 228 I ll. 2d 200, 217 (2008). The intent of the draf ters is best asce rtained throug h analy sis of t he plain lang uag e of the rule and any comments made by the drafters. C i n kus
, 228 I ll. 2d at 218. Since the majority has alre ady

quoted the rule, I

beg in my interpre tation with the committee comments. ¶ 40 The committee comments explain that the purpose of I llinois Supreme Court Rule 224 (ef f. May 30, 2008 ) i s t o “p ro v ide[ ] a tool by which a person or entity may , with leave of court, compel limit ed discovery befor e filing a lawsuit in an eff ort to determine the identity

o f o n e wh o may be liable in damag es.” I ll. S. Ct. R. 224, Commi ttee Comments (Aug

. 1, 1989). I t further states t hat i t “provide s a mechanism for plaintiffs to asce rtain t he identity of pot ential def

endants in a va

riety of civil ca ses, i ncluding Structural W ork Act, products l i ability
, malprac tice and neg lige nce claims. *** The rule fac ilitates the identification o f potential defe ndan t s t h rough discovery depositions or throug h any of the other discovery tools set forth in Rules 201 throug h 214.” I ll. S. Ct. R. 224, Commi ttee Comments (Aug

. 1, 1989). ¶ 41 Ba sed on these comments, I believe that Rule 224 was draf ted to aid potential plaintiffs in obtaining discovery in civil actions wher e the identity of the potent i al defe ndant is unknown. The rule also seeks to preve nt the evil of parties esca ping liability in civil actions by intentionally or unintentionally remainin g an o n y m ous. As a prac tical matter, the rule

-13-co mbats the prac tice of naming a multit ude of defe ndants due to a plaintiff’s uncer t ai n t y

reg arding who may be liable in dam age s

. Un fortunately
, the committee comments do not addre ss the standard of proof require d for petitioner to succe ed wi t h an y ad d itional specific ity

. There fore
, our analy sis must g o outside of t he rule itself. Cinkus , 228 I ll. 2d at 218. This court is not without direc tion, howeve r, as our supreme court has instructed us that the supreme court rules, to the extent that they are not reg ulated by another statute, are to be

rea d toge ther with article I I of the Code of Civil Procedur e beca use they both apply to all
proce eding s in the t ri al co u rt. Rodriguez v. Sheriff’s Merit Comm’n
, 218 I ll. 2d 342, 354 (2006).

¶ 42 In Pari Materia and Probable Cause ¶ 43 T h e d o ct ri n e of in pari materia may proper ly be employ ed wher e, in the co u rs e o f construction, a related provision of a separ ate enac tment aids in determining the meaning of

an otherwise ambig uous rule. Cinkus
, 228 I ll. 2d at 218. In pari materia permits the court to

rea d two enac tments with ref ere nce to eac h other, so as to g ive eff ect to all of the provisions of eac h wher e possible. Cinkus
, 228 I ll. 2d at 218. I n my view, the best solution to the question of the appropriate standard of proof for Rule 224 is to employ the doctrine of in pari materia and compar e Rule 224 and article I I
, section 2-402, of the Code of Civil Procedur e (Code) (735 I L CS 5/2-402 (West 2008) ) beca use they are both g overne d by a single policy and one spirit. Cinkus , 228 I ll. 2d at 218. ¶ 44 Article II , section 2-402, of the C ode, entitl ed “Respondents in Discovery ,” provides a mecha nism for plaintiffs in a ci v i l action to name as responde nts in discovery individuals who are believed “to have informatio n essential to the determination of who should be
prop erly named as additional defe ndants in the action.” 735 IL CS 5/2-402 (West 2008). I t further permits plaintiff to add such responde nts as n amed defe ndants “if the evidenc e discloses the exis tence of probable cause for such action.” 735 I L CS 5/2-402 (West 2008). This co u rt h as determined t hat probable cause exis ts under section 2-402 “where a person of ordinary caution and prudenc e wou l d entertain an honest and strong suspicion that the purported [conduct] of the responde n t i n d i s covery was a proxi mate cause of plaintiff’s injury .” Jack

son-Bake r v. Imme soete , 3 3 7 I ll. App. 3d 1090, 1093 (2003). Such evidenc e “nee d not ri s e t o the level of a high deg ree of likelihood of succe ss on the merits or the evidenc e nece ssary to defe at a motion for summary judgme nt in favor of the responde nts in discovery
, nor is the plaintiff require d to establish a prima facie case ag ainst the responde nt in discovery .” Jack

son-Bake r , 337 I ll. App. 3d at 1093. ¶ 45 Section 2-402 provides for the use of discovery t o i d en t i fy “who should be prope rly named as *** defe ndants in the action” (735 I L CS 5/2-402 (West 2 0 0 8)), while Rule 224 seeks to “fa cilitate[ ] the identification of potential defe ndants throug h discovery ” (I ll. S. Ct. R. 224, Commi ttee C o m m en t s (A u g. 1, 1989)). I n addition to providing a means for an injured party to name the proper party who may be liable, both se ction 2-402 and Rule 224 seek to minimi ze unnece ssary litigation cause d by naming e v e r y potential party and requiring

eac h to individually challeng e his or her culpabi l i t y

. I n deed, our supreme court has determined that one purpose of this statute is to provide plaintiff attorney s with a means of

-14-filing suits without “naming ever y one in sight as a defe ndant.” Bogseth v. Emanuel
, 166 I ll. 2d 507, 514 (1995). Thus, the lang uag e of both enac tments shows that they are g overne d by

a single policy of limit ing unnece ssary litigation, and by a single spirit of fac ilitating redr ess for injure d parties. ¶ 46 The jurisprudenc e of both enac tments also evince s that they should be considere d in pari materia, b ec au s e they both: (1) share the purpose of deter ring frivolous actions without depriving an injured pa

rty of a trial on the m erits ( Coley v. St. Be rnard’s Hospital , 281 I ll. App. 3d 587, 592 (1996); Maxon v. Ottawa Publishing Co.
, 402 I ll. Ap p. 3d 704, 711 (2010)) ; (2) contemplate the same cause s of action ( Bogseth
, 166 I ll. 2d at 515; I ll. S. Ct. R. 224, Commi ttee Comments (A ug

. 1, 1989)); (3) operate using the mechanism of discovery (Murphy v. Aton
, 276 I ll. App. 3d 127, 129 (1995); Kamelgard v. American College of Surgeons
, 385 I ll. App. 3d 675, 686 (2008)) ; and (4) require leave of the court ( Kamelgard
, 385 I ll. App. 3d at 686; Medje sky v. Cole
, 2 7 6 I l l

. Ap p

. 3d 1061, 1064 (1995))

. Although Rule 224 and section 2-402 provide for their common purpose at separ ate stag es in civil
proce eding s, this is a distinction without a differ ence , wher e both provisions serve the same

3 policy and spirit of providing ag g rieve d persons with a means to asce rtain who may be
proper ly named as def

en d an ts. Thus, the jurisprudenc e of Rule 224 and section 2-402 supports requiring the same standa rd of pr oof for

both potential and ac tual plaintiffs. ¶ 47 I n order to meet our mandate of i n t er p re t i n g b o t h en ac t m en t s co n s i s t entl y and harmoniously ( Cinkus
, 228 I ll. 2d at 218; Rodriguez
, 218 I ll. 2 d at 354), this court should adopt the standard that a petitioner need only establish probable cause to establish the requisite “re ason the proposed discovery is nece ssary ” as stated in I l linois Supreme Court Rule 224. Rule 2 2 4 i s silent reg arding the applicable standard of proof require d in such actions, while section 2-402 provides that a plaintiff may add as a defe ndant, a r espondent in discovery
, wher e the evidenc e discloses the exis tence of probable cause t o d o s o. 735 I L CS 5/2-402 (West 2008). Since both Rule 224 and section 2-402 have a common purpose and spirit, I must conclude that the appropriate standard of proof for Rule 224 petitions is the probable cause standard

. As I explain below, I find no basis in law to require more proof from an injured pe rs on who i s a R ule 224 petitioner t han we require from a person who is

an ac tual plaintiff. ¶ 48 The majority ’s prima facie stand ar d n ar ro ws the possibili ty of redr ess for meritorious claims without justification and in contra vention of the stated purpose and jurisprudenc e of Rule 224. Unlike the majority , I find no justification, either in the lang uag e of Rule 224 or applicable case law, for requiring a highe r standard of proof for potential plaintiffs who are

unawa re of the identity

of a sing le potential defe ndant than plaintiffs who pur port to know the identi t y o f a single defe ndant. In addition, our supreme court held in Bogseth that a plaintiff may

not f ile a suit a g ainst a fictitiously named de fenda nt and see k to asce rtain the identity of proper defe ndants by naming them as responde nts in discovery pursuant to section

Sec ti on 2- 402 is to be use d af te r a sui t has bee n fi le d for the pur pos e of dis coveri ng 3 add it ion al pot ent ia l def

end ant s ( Bogs et h
, 166 I ll

. 2d at 513)
, whil e Rule 224 pro vide s f or pre sui t dis covery ( Kamel gard , 385 I ll . App. 3d a t 6 84)

.
-15-2-402. Bogseth
, 166 I ll. 2d at 514. There fore
, only Rule 224 provides an injured party with

a means of redr ess wher e the identity of the potential defe ndant is unknown. I n my view, the majority ’s holding, which cre ates a distinction betwee n actua l and potential plaintiffs based

on their ability to identify a singl e defe ndant, instead of the merits of their claims,
contra venes the basic tenet of I llinois jur i s p rudenc e, which favor s having controve rsies determined acc ording to the s ubstantive rig hts of t he parties. Jack son-Bake r , 337 I ll. App. 3d at 1095.

¶ 49 Holding Contra venes Purpose of Rule 224 ¶ 50 By re quiring prima facie evidenc e, the majority ’s holding is contra ry to the d ra ft er s ’ intent for Rule 224 beca

u s e it require s petitioners to seek to establish actua l liability

. For

nearly a century our su p re m e co u rt has maintained that “[i] f there is no evidenc e to [contradict] a prima facie case , it become s conclusive and justifies a verdic t.” Vischer v. Northw estern Elevate d R.R. Co.
, 256 I ll. 572, 578 (1912). I ndeed the very definition of prima facie evidenc e is, “evide nce which is sufficie nt to authorize a finding on the matter in issue unless contra dicted or explained.” Johnson v. Pende rgast , 308 I ll. 255, 261 (1923). As such, the majority ’s holding is contra ry to this court’s holding in Beale v. EdgeMark Fi n a ncial Corp.
, 279 I ll. App. 3d 242, 252 (1996), wher ein this court held that “[ w] h en in the trial court’s discretion the petiti o n er seeks to establish actual liabili ty or responsibilit y rather than potentiality for liabili ty , discovery should be denied .” (Emphasis added.) Beale
, 279 I ll. App. 3d at 253. Thus, by requiring prima facie evidenc e in a Rule 224 petition, the majority is requiring a petitioner to provide evidenc e suffic i en t t o est ablish actua l liability
, which would then justify the denial of a pet i t i o n u n d er Beale. Beale
, 279 I ll. App. 3d at 253. Be cause the majority does not ove rturn or distinguish Beale
, its holding require s petitioner
to provide prima facie evi d en ce which does not establish actua l liability

. Reading the majority ’s holding and Beale toge ther, a petition can be denied for alleg ing both insufficient and excessive evidenc e. Such a standard g oes bey ond contra dicting the purpose of Rule 224 and ente rs the re alm of leg al fiction.

¶ 51 Undue B urden on Petitioners ¶ 52 I n addition to being contra ry to the purpose of R ule 224, the m ajority ’s hol ding pla ces

an undue burden on petitioners. Whil e rec og nizi ng that Rule 224 extends bey ond the limit ed
context of defamation, t he majority fails t o addre ss how a petitioner’s claim, and, e.g., the proof require d for that claim, may depend upon the relationship betwe en the petitioner and the potential defendant. A published statement aga inst a petiti oner may g ive rise to cla ims of defa mation, if made by a strang er; or brea ch of fiduciar y duty
, if made by a fiduciary ; or t o rt u o u s i nterfe renc e with a business expectancy , if made by a competitor. Eac h claim is composed of separ ate and distinct elements, requiring separ ate fac tual alleg ations to satisfy the prima facie require ment. Thus, a petiti oner who is leg ally entitled to rec over w ould be denied be cause the burden cre ated by the m ajority ’s hol ding is insurmountable, absent the i d en t ity of the speake r. I ndeed, the majority cites this very same rea son for reje ctin g t h e summary judgme nt standard advanc ed by Doe, stating, “petitioners seeking redr ess for even

-16-meritorious claims may be denied relief beca use they lack evidence wh ich they have no means to obtain until discovery ensues.” Supra ¶ 20. ¶ 53 Not only does the majority ’s holding ignor e the interdepe ndent nature of certain claims and the relationship betwee n the parties, it also assumes that the unidentified person would

o ppose the Rule 224 petition. The majority ’s standard require s the petitioner to be able t o establish fac ts capa

ble of surviving a motion to dismiss pursuant to section 2-615 of the Co d e. Supra ¶ 18. Howeve r, neither Rule 224 nor the majority ’s holding require s the unidentified party to be prese nt to oppos e t h e p et i tion. The decision to file a motion to dismiss and the content of said motion are strateg ic decisions to be made by trial counsel. Hytel Group, Inc. v. Butler
, 405 I ll. App. 3d 113, 130 (2010). The eff ect of the majority ’s assumption is that it place s the trial court in the position of being both opposing counsel and judge in case s wher e the unidentified party is not repr esente d. Be cause the majority ’s opinion

assumes opposition to the petition, wher e the unidentified party is not repr esente d, the only

rema ining body to perf

orm such a function, which is require d under the majority ’s holding, is the trial court. I n prac tice the trial court would have to assume the t ri al s t ra t egy o f the

u n i d entified party , perf

orm that trial strateg y by way of cre ating the substance o f t h e hypothetical motion in opposition, and then evaluate the hypothetical motion that it cre ated
ag ainst plaintiff’s petition, without permitting petitioner to dr aft a response

. This pla ces an extreme burden on a petitioner with limit ed i n fo rm at i on to anticipatorily overc ome the hypothetical motion cre ated by the trial court, without a n opportunity to draf t a response to the hypothetical motion. By contra st, the opportunity to respond woul d be provided if petitioner si mply filed t he ex act same fac tual al l ega t i o n s in the form of a complaint in the circ uit court ag ainst a suspec ted def endant. ¶ 54 The majority ’s holding also ignor es the prac tical imp ac t that the prima facie standard would have on statutes of limit ations. A Rule 224 petition must claim that the petitioner is alre ady injured by an unknown person’ s conduct. As such, the statute of limit ations for petitioner’s claim will have beg un to run no later tha n the filing date of the petition. I n my view, requiring a petitioner to obtain the level of evidenc e require d in a civil complaint solely
to asce rtain the identity of an unknown party , without tolling the statute of limit ations, place s the injured petitioner at an extreme disadvantag e. T h e m aj o rity ignor es the risk of a meritorious claim lapsing due to petitioner’s require d sear ch for prima facie evidenc e or due
to the trial court’s delibera tions i n ru l i n g on the petition. This risk is mag nified wher e the
statute of limit ations may be less based solely on the identity of the potential defe ndant, i.e.
, the statute of limit ations for a claim ag ainst a municipality (745 I L CS 10/8-101 (West 2010)) is less than the statue of limit ations for the same conduct ag ainst a private person (735 I L CS 5/13-205 (West 2010)). For these rea sons, I believe that the majority ’s hold i n g place s an undue burde n on petitioners.

¶ 55 Encoura g ing U nnece ssary L itigation ¶ 56 The majority ’s prima facie standard also encour ag es unnece ssary litigation by requiring excessiv e ev i d ence at the pre- suit stag e. As described above, the majority ’s prima facie standard require s the same level of evidenc e require d for an unopposed plaintiff to succe ed

-17-o n t h e m er i t s of his claim. Vischer
, 256 I ll. at 578. Thus, as a prac tical matter, there is n o

benef it to first filing a Rule 224 petition whe re petitioner believes he knows the identity of
any one who many lead him to the party responsible for his injury

. To that end, a party may file suit a g ainst a tang entially connec ted person or entity and use section 2-402 to a scertain the identity of the proper defe ndant. Thus, by naming a single party as a defe ndant a plaintiff
may name additional parties as responde nts in discovery
, and require them to respond to subpoenas reg arding the identity of the anony mous speake r, based solely on probable cause

. By requiring prima facie evidenc e, as oppose d to probable c ause, themajority provides an incentive to continue the prac tice our supreme co u rt discourag ed in Bogseth of “naming

every one in sig ht as a de fenda nt.” Bogseth , 166 I ll. 2d at 514. ¶ 57 I n case s such as this one, Stone could have filed suit ag ainst Paddock, instead of the Rule 224 petition, and throug h section 2-402 obtai n ed t h e identity of Doe, mere ly by showing probable cause that Comcast and Yahoo had information reg arding who should proper ly be named as an additional defe ndant. Such a suit, once filed, would eliminate the injured party ’s risk of the statute of limit ations lapsing
, which, as described above, may be incentive enoug h
to file the suit and learn the nece ssary details throug h discovery

. Such conduct would not be barr ed by res judicata or collater al estoppel, if done afte r the de nial of a pe tition because a Rule 224 denial is not a fi n al judgme nt on the merits of petitioner’s claim. Agolf, LLC v. Village of Arlington Heights
, 409 I ll. App. 3d 2 1 1
, 2 1 8 (2011); Lieberman v. Liberty Healthc a r e C o rp. , 408 I ll. App. 3d 1102, 1109 (2011). Thus, the majority ’s holding

encour ag es unnece s s ar y l i t i g ation beca use it require s the same level of proof as a civil complaint without abating the risk of meritorious claims lapsing.

¶ 58 Fa ilure to Protect Anonymous Speech ¶ 59 As exhibi ted above, the prima facie standard can be circ umvented in case s of anony mous public speec h simply by filing suit ag ainst the publisher of said speec h and asce rtaining the identity of the speake r by way of the pro b ab l e cause standard of section 2-402. Thus, the majority ’s holding does not strike a balanc e betwee n the interests of the anony mous speake r and the injured party

. Instead, the same types of abusive tactics used for asce rtaining a party ’s identity
, which the majority purpor ts to p r o te c t ag ainst, rema in available

. Moreove r, the same means of discourag ing abuse ex ists, n am el y , sanctions pursuant to I llinois Supreme Court Rule 219 (ef

f. J uly 1, 2002). Thus, the majority ’s standard fails to provide any additional protec tion to anony mous speaker s bey ond that of the proba ble cause standar d. ¶ 60 To the contra

ry , the incre as ed l i k el ihood of formal litigation the prima facie standard

cre ates, whe n combined with no additional protec tions for anony mous speake rs, shows an incre ased risk that an anony mous speake r will be identifi ed

. Un d er these circ umstances, I
cannot ag ree that the prima facie s t an d ar d s trikes a proper balanc e betwee n the afor ementioned interests, wher e it frustrates the interests of a party seeking redr ess throug h Rule 224, while providing no incre ased protec tion from the abusive litigation proce ss for the
anony mous speak er. Even in this case , the majority ’s standard does not protec t Doe’ s anony mity
, beca

use Stone is not prec luded from filing suit ag ainst P ad d o ck and seeking Doe’ s identitythroug h the lesser probable cause standard, by way of sec tion 2-402.

-18-¶ 61 I reje ct the majority ’s standar d beca use it contrave nes the purpose of Rule 224, cr eate s

an undue burden on the injured, and incre ases the likelihood o f u n n ecessary litigation, without achie ving the majority ’s purported g oal of protec ting anony mous speec h. I specia lly

concur , howeve r, beca

use the fac ts befor e us do not establish probable cause that petitioner’s minor son was defa med. Acc ording ly
, under either standard petition er fa iled to meet her burden a nd the petition should be denied.

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