ILLINOIS OFFICIAL REPORTS

Appellate Court

Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386

Appellate Court

Caption

LISA STONE, as Mother and Next Friend of Jed Stone, PetitionerAppellee, v. PADDOCK PUBLICATIONS, INC., Respondent (John

Doe, Intervenor-Appellant).

 District & No. First District, Fourth Division

Docket No. 1-09-3386

Filed November 17, 2011

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

In an action on a petition filed under Supreme Court Rule 224 seeking the

disclosure of the true identity of the person who posted anonymous

statements on a newspaper’s comment board concerning a local election,

the orders granting the petition were reversed where the petition failed to

allege facts sufficient to support a cause of action for defamation as

required by section 2-615 of the Code of Civil Procedure in orderto show

that disclosure of the person’s identity was necessary.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 09-L-5636; the

Hon. Jeffrey Lawrence, Judge, presiding.

Judgment Reversed.
Counsel on

Appeal

Michael D. Furlong and Peter M. Trobe, both of Trobe, Babowice &

Associates LLC, of Waukegan, and Charles Mudd, Jr., of Mudd Law

Offices, of Chicago, for appellant.

Stephen L. Tyma and William A. O’Connor, both of Tyma O’Connor,

P.C., of Chicago, for appellee.

Panel PRESIDING JUSTICE LAVIN delivered the judgment of the court, with

opinion.

Justice Sterba concurred in the judgment and opinion.

Justice Salone specially concurred, with opinion.

OPINION

¶ 1 This appeal has its genesis in online chat on a suburban newspaper’s comment board

between two individuals (one later identified as a minor) who posted various sarcastic

comments about a local election under anonymous screen names. The minor’s mother, a

candidate in the election, was the subject of much of the chatter and she ultimately filed a

petition pursuant to Supreme Court Rule 224 (Ill. S. Ct. R. 224 (eff. May 30, 2008)) on her

son’s behalf, seeking the discovery of John Doe’s identity due to his comments, which were

allegedly defamatory of her child. Ultimately, the trial court ordered that the identity of the

subscriber to the internet protocol (IP) address used by Doe when posting on the website

would be revealed to petitioner. Doe now appeals, asserting that the trial court erred by

applying an improper standard in determining whether petitioner was entitled to discover his

identity and by granting petitioner relief where the challenged comments do not constitute

defamation. Doe also contends that the challenged comments were immunized bythe Citizen

Participation Act (735 ILCS 110/1 (West 2008)). We reverse.

¶ 2 I. BACKGROUND

¶ 3 Petitioner Lisa Stone, acting as mother and next friend for her minor son Jed Stone, filed

petitions for discovery pursuant to Rule 224 naming Paddock Publications, Inc., as

respondent. These petitions indicated that respondent published an article that was made

available on its Daily Herald website on April 6, 2009. Like virtually all online newspaper’s

sites, the online version of this article allowed the public to post and read comments without

specifically identifying themselves. On April 9, 2009, an individual with the user name

“Hipcheck16” posted an allegedly defamatory comment regarding Jed, who went by the

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screen name “Uncle W” on this message board. Petitioner urges that “[i]t is necessary to 1

ascertain the identity of Hipcheck16, as he is a potential defendant for his defamatory

remarks.” Petitioner sought an order to obtain discovery from respondent, whom petitioner

believed possessed the name and address of Hipcheck16. Although the posted comments

were not recited in or attached to the petition, petitioner provided the challenged comments

as well as additional dialogue between Jed and Hipcheck16 in later filings.

¶ 4 The record shows that on April 4, 2009, Hipcheck16 had made the following comments

in response to a letter in support of petitioner’s campaign for Buffalo Grove Village trustee,

which was published on the Daily Herald’s website:

“Here we go again–another brainwashed adolescent who can’t form an opinion on

their own. Lou–you’re probably not old enough to vote, and I’m certain all you know

about this election is what your mommy told you. I’ll bet you’ve never been to a village

board meeting and couldn’t find village hall even if they were giving away free iPods

there.

Do some of your own research on your wonderful candidate and you’ll quickly

discover that she is NOT QUALIFIED to be a trustee. She knows little about finance,

NOTHING about business or village operations and can’t seem to form a coherent

thought–at least not ones that find their way out of her mouth.

Your parents should teach you the importance of having good community leaders,

and a lesson on independent thinking would probably be beneficial too. While you’re at

it, perhaps you should work on that spelling and grammar stuff, as it seems to be an

ongoing challenge for you, as well as other Stone supporters.

Now go watch MTV and quit inserting yourself into conversations for which you’re

not prepared. If you’re 16, go take your Rottweiler for a nice long walk. And don’t do

heroin–it’s bad for you.”

On the same day, Hipcheck16 posted the following comments:

“Ooops–my previously post was directed at our little pal UncleW, not Lou. My

apologies Lou!

I’m not perfect. But at least I know what a Home Rule Tax is. :)”

¶ 5 In response to an article which was primarily about candidate Joanne Johnson, the

following colloquy ensued on April 8, 2009:

“HIPCHECK16: UncleW–funny how you suddenly surface again to gloat about

Stone’s win, and do so like the ill-informed punk that you really are. Didn’t you learn last

week that you should stay out of things you don’t understand? Can you really be proud

of a candidate who stood idly by while people claiming to be her supporters made antiSemitic allegations about two of her opponents?

Whether or not Stone actually condoned the use of anti-Semitism is really not the

While both protagonists in this cyber drama posted anonymously, at some point, it became 1

apparent that Hipcheck16 thought that Uncle W was, in fact, the son of petitioner, and later on,

stated such on the website.

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issue. She was aware that people who were in some way associated with her campaign

were calling voters all over the village falsely accusing Johnson and Terson of running

anti-Semitic campaigns. If she did not believe that Johnson and Terson were antiSemitic, she could have made a public statement denouncing those calls and

disassociating herself from the actions of what may have been a few overzealous

supporters.

Instead, she took no action, allowing those rumors to spread. By not speaking out

against such hate speech, she tacitly condoned it, knowing that it would work to her

advantage in the election.

Now, that’s something you can really be proud of, isn’t it UncleW? Would you be

down for a conversation about that?

UNCLEW: Yes Hipcheck, and like I said show yourself in person. With all your

resources I’m sure you could navigate your way over to the Stone confines. Then I’ll be

glad to have this conversation with you, however, I will not continue to comment on

these blogs where anyone can be anyone.

And HAPPY PESACH Hipcheck. Hopefully you will find the afikoman tonight.

HIPCHECK16: Thanks UncleW, ya little nebish. You have a nice little Pesach

yourself. I may stop by tonight–have room for me at the Seder?

Some days I’m really ashamed of my fellow tribesmen, and today is one of them.

You’ll do anything to justify your actions, and your sense of entitlement sickens me.

Your holier than thou attitude and arrogance is disgusting, but what’s even worse is that

just like your mommy and all her buddies, you think you’re smarter than you really are.

And there is nothing more dangerous than someone who is not nearly as smart as they

think they are.

Hope you and daddy are in the front row at the board meetings so you can mouth

answers to her, just like you did at the forum. Otherwise she’ll be completely lost, and

I don’t think she should count on the other trustees for help, since she’s already alienated

herself from most of them. She’s not qualified to carry the other trustee’s briefcases–they

know it and she knows it. Can’t wait to watch her ummm and uhhh her way through the

meetings–I’m in need of a good laugh.

Now go help mommy prepare her Seder so she doesn’t break one of her acrylic nail

extensions or accidentally wash off her fake tan.

UNCLEW: Ya got a name Mr. Hipcheck?”

¶ 6 The next day, Hipcheck16 posted the following comments, including the emphasized

comments being challenged by petitioner:

“And as for you, UncleW...

Thanks for the invitation to visit you.. but I’ll have to decline. Seems like you’re very

willing 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?

Plus, now that you have stupidly revealed yourself, you may want to watch what you

say here–and consider the damage you’ve done by attacking sitting trustees and other

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municipal officials that your mommy will now have to work with. Too bad she’ll have

to begin her tenure with apologies. These people are way too smart to just accept her

outright. Their obligation is to the village, not to your mommy. If she thinks she’s

entitled to their respect simply because she got herself elected, she needs to think again.

If I were her, I’d be working on some apologies and learning something about finance

before she’s sworn in.

Now quit gloating, you’re looking as silly as your mommy did accosting voters at the

polls.” (Emphasis added.)

¶ 7 On April 13, 2009, after petitioner was elected as trustee, the Daily Herald’s website

published an article titled “Buffalo Grove trustees move forward after contentious

campaign.” In his comment posted below the article, Hipcheck16 stated as follows:

“The lies continue. In a blog under a previous article related to the election[,] Stone’s

son, writing under them [sic] name UncleW claims that his family received one of the

robo calls. Now Stone claims they never got one. The least they could do is get their lies

straight.”

¶ 8 The trial court entered a written order permitting petitioner to engage in limited discovery

to obtain the information necessaryto identifyHipcheck16. Respondent apparentlyanswered

petitioner’s discovery requests by informing petitioner that Hipcheck16’s IP address was

24.1.3.203 and his e-mail address was hipcheck16@yahoo.com, but did not reveal

Hipcheck16’s name. In addition, it was determined that this IP address belonged to a

Comcast Cable user or subscriber. Notwithstanding petitioner’s failure to add Comcast as

a Rule 224 respondent, petitioner then filed a motion seeking an order compelling Comcast

to respond to a subpoena and provide the identity of the subscriber to the pertinent IP

address. The trial court ordered Comcast to notify its subscriber that his identity was being

sought by petitioner and to inform the subscriber that he could contest the subpoena. On

August 5, 2009, Doe, user of the aforementioned IP address, filed a motion to quash

petitioner’s subpoena, arguing, in pertinent part, that petitioner failed to comply with Rule

224. The trial court denied Doe’s motion and apparently ordered Comcast to produce the 2

information about the subscriber’s identity in camera. Comcast notified Doe and petitioner

of its compliance.

¶ 9 On October 9, 2009, Doe filed a “motion in opposition to turnover of identity,” arguing

that his first amendment rights would be jeopardized by disclosing his identity to petitioner

and that petitioner should be required to allege with specificity the comments that were

allegedly defamatory. Doe argued that petitioner’s conclusoryallegation that Doe had posted

a defamatory comment was insufficient. On the same day, petitioner filed a motion to

disclose Comcast’s response to the subpoena. Petitioner identified the challenged statement,

which she argued was not constitutionally protected speech.

¶ 10 Following a hearing on November 9, 2009, the trial court entered a written memorandum

We note that the name “John Doe” has been used with respect to both Hipcheck16 and the 2

Comcast subscriber with the aforementioned IP address. Although an IP address subscriber and user

can be different individuals, we refer to both in this instance as “John Doe.”

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opinion and order, essentially finding that when balancing Doe’s constitutional rights and

petitioner’s right to redress, the identity of the subscriber with the aforementioned IP address

should be disclosed. Nine days later, the trial court entered a written order stating that on

December 18, 2009, it would turn over to petitioner’s counsel the documents and information

delivered to the court by Comcast. The court also restricted the individuals to whom Doe’s

identity could be revealed thereafter. On December 7, 2009, Doe filed a notice of appeal

from those two trial court orders. It appears that the trial court subsequently stayed the

enforcement of the latter order, pending resolution of this appeal.

¶ 11 II. THE RULE 224 STANDARD

¶ 12 On appeal, Doe first asserts the trial court applied the wrong standard to determine

whether petitioner was entitled to discover Doe’s identity pursuant to Rule 224. This court

generally reviews the trial court’s ruling pursuant to Rule 224 for an abuse of discretion.

Maxon v. Ottawa Publishing Co., 402 Ill. App. 3d 704, 711 (2010). Nonetheless, statutory

construction constitutes a question of law, which we review de novo. Sardiga v. Northern

Trust Co., 409 Ill. App. 3d 56, 61 (2011); see also Maxon, 402 Ill. App. 3d at 710 (the

decision regarding what standard must be satisfied as to petitioner’s potential defamation

claim presents a question of law, which we review de novo). In determining what standard

a petitioner must satisfy under Rule 224, we begin with the statute itself.

¶ 13 The primary rule of statutory construction is to effectuate the drafter’s intent. Barragan

v. Casco Design Corp., 216 Ill. 2d 435, 441 (2005). The best evidence of such intent is the

statutory language itself, which is to be given its plain meaning. Johnston v. Weil, 241 Ill. 2d

169, 175 (2011). Where the meaning is unclear, courts may consider the law’s purpose and

the evils the law was intended to remedy. Johnston, 241 Ill. 2d at 175-76. A statute’s

language is ambiguous where capable of being understood by reasonably well-informed

individuals in multiple ways. MD Electrical Contractors, Inc. v. Abrams, 228 Ill. 2d 281, 288

(2008). Furthermore, we are required to construe a statute in a constitutional manner where

reasonably possible. Wade v. City of North Chicago Police Pension Board, 226 Ill. 2d 485,

510 (2007).

¶ 14 Rule 224, entitled “DiscoveryBefore Suit to IdentifyResponsible Persons and Entities,”

states as follows:

“(i) A person or entity who wishes to engage in discovery for the sole purpose of

ascertaining the identity of one who may be responsible in damages may file an

independent action for such discovery.

(ii) The action for discovery shall be initiated by the filing of a verified petition in the

circuit court of the county in which the action or proceeding might be brought or in

which one or more of the persons or entities from whom discovery is sought resides. The

petition shall be brought in the name of the petitioner and shall name as respondents the

persons or entities from whom discovery is sought and shall set forth: (A) the reason the

proposed discovery is necessary and (B) the nature of the discovery sought and shall ask

for an order authorizing the petitioner to obtain such discovery. The order allowing the

petition will limit discovery to the identification of responsible persons and entities and

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where a deposition is sought will specify the name and address of each person to be

examined, if known, or, if unknown, information sufficient to identify each person and

the time and place of the deposition.” (Emphasis added.) Ill. S. Ct. Rs. 224(a)(1)(i),

(a)(1)(ii) (eff. May 30, 2008).

Accordingly, the rule is intended to assist a potential plaintiff in seeking redress against a

person who may be liable but the plain language of the rule also requires a petitioner to

demonstrate the reason why the proposed discovery seeking the individual’s identity is

“necessary.” The question before us is what standard a petitioner must satisfy to show that

the proposed discovery is necessary. In determining what is required by this language, we

keep in mind that Rule 224 applies not only to petitioner’s potential defamation claim, but

to any instance in which an unknown individual may be liable under any cause of action. We

also adhere to our aforementioned duty to construe a statute in a constitutional manner where

reasonably possible. Wade, 226 Ill. 2d at 510. This is consistent with the committee

comments providing that Rule 224 “is not intended to modify in any way any other rights

secured or responsibilities imposed bylaw.” Ill. S. Ct. R. 224, Committee Comments (1989).

Here, Doe contends that too low a standard will violate individuals’ constitutional right to

engage in anonymous speech and deter the political speech that ensues via the Internet.

¶ 15 As this court has recognized, while anonymous speech is a long-protected right of

citizenship, there is no constitutional right to defame. Maxon, 402 Ill. App. 3d at 713.

Nonetheless, the Supreme Court has recognized the important role that anonymous speech

has played throughout history and that individuals sometimes choose to speak anonymously

for the most constructive purposes. See Talley v. California, 362 U.S. 60, 64-65 (1960). In

addition, identification and fear of reprisal may deter even peaceful discussions regarding

important public matters. See Talley, 362 U.S. at 65; People v. White, 116 Ill. 2d 171, 177

(1987). “Anonymity is a shield from the tyrannyof the majority.” McIntyre v. Ohio Elections

Comm’n, 514 U.S. 334, 357 (1995). Thus, an author is generally free to decide whether he

wishes to disclose his true identity and his decision not to do so is an aspect of the freedom

of speech provided in the first amendment. McIntyre, 514 U.S. at 341-42. Furthermore,

discussion of public issues as well as debate regarding candidates’ qualifications are integral

to the government established by our Constitution. McIntyre, 514 U.S. at 346. Political

speech will occasionally have unpalatable consequences but our society gives greater weight

to the value of free speech than the danger that free speech will be misused. McIntyre, 514

U.S. at 357. That the first amendment applies to speech via the Internet is also clear. See

Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997).

¶ 16 In light of the foregoing, we recognize a plaintiff’s right to seek redress for unprotected

defamatory language 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 engaging in protected

speech and effectively chill or eliminate the right to speak anonymously. We find that the

Third District of this court has adopted the appropriate standard to achieve this balance while

giving appropriate meaning to the language of Rule 224.

¶ 17 In the Third District’s decision in Maxon, which was rendered after the judgment on

appeal, this court held that where the trial court must rule on a Rule 224 petition based on

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

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(2) states with particularity facts that would demonstrate a cause of action for defamation;

(3) seeks only the identity of a potential defendant, rather than information necessary to

demonstrate a cause of action for defamation; and (4) “is subjected to a hearing at which the

court determines that the petition sufficiently states a cause of action for defamation against

the unnamed potential defendant, i.e., the unidentified person is one who is responsible in

damages to the petitioner.” Maxon, 402 Ill. App. 3d at 711. The Maxon court also found that

section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2006)) provided a

mechanism to determine whether the petition stated a cause of action. Maxon, 402 Ill. App.

3d at 711-12. The court observed that section 2-615 motions attack the legal sufficiency of

the complaint based on defects appearing on the face of the complaint. Maxon, 402 Ill. App.

3d at 712. In considering whether to grant or deny a motion to dismiss, the court must

determine whether the complaint standing alone has stated sufficient facts to demonstrate a

cause of action pursuant to which relief may be granted. Maxon, 402 Ill. App. 3d at 712. The

Maxon court further observed that defamation litigation is routinely addressed in the context

of section 2-615 motions and that constitutional protections are considered as part of the

prima facie case so that a plaintiff is required to plead facts to show that the allegedly

defamatory statements are not constitutionally protected. Maxon, 402 Ill. App. 3d at 712.

Accordingly, the Maxon court concluded that subjecting a Rule 224 petition to the scrutiny

provided in section 2-615 would satisfyanyconstitutional concernsthat arise from disclosing

a potential defendant’s identity. Maxon, 402 Ill. App. 3d at 712.

¶ 18 We agree that requiring a Rule 224 petitioner to provide allegations sufficient to

overcome a section 2-615 motion to dismiss adequately balances the rights of a petitioner

and the unidentified individual. We clarify, however, that an unidentified individual is not

required to file such a motion, but rather, it remains the petitioner’s burden to show that the

discovery is necessary, i.e., that petitioner can allege facts supporting a cause of action.

While the Maxon court correctly found that this standard protects an anonymous individual’s

constitutional rights in the context of a defamation claim, we add that the appropriateness of

this standard is not limited to speech-based claims. Section 2-615 does not permit the

dismissal of a claim unless no set of facts can possibly be proved that would entitle the

plaintiff to relief. Iseberg v. Gross, 227 Ill. 2d 78, 86 (2007). Thus, if a petitioner cannot

satisfythe section 2-615 standard, it is clear that the unidentified individual is not responsible

for damages and the proposed discovery is not “necessary.” Ill. S. Ct. Rs. 224(a)(1)(i),

(a)(1)(ii) (eff. May 30, 2008).

¶ 19 Doe suggests a summary judgment standard, relying on Mobilisa, Inc. v. Doe, 170 P.3d

712 (Ariz. Ct. App. 2007). In Mobilisa, Inc., the Court of Appeals of Arizona examined an

Arizona rule of civil procedure that permitted the plaintiff to file an application seeking the

identity of an anonymous individual after the complaint had been filed. Mobilisa, Inc., 170

P.3d at 715-16. After discussing the need to balance the first amendment rights of

anonymous Internet speakers and the rights of those seeking redress for improper

communications, the court held that a partyrequesting an anonymous speaker’s identitymust

(1) show that such person has received adequate notice and a reasonable opportunity to

respond to the plaintiff’s discovery request; (2) demonstrate that the requesting party would

survive a motion for summary judgment filed by the anonymous speaker as to all elements

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within the control of the requesting party, i.e., “all elements not dependent upon knowing the

identity of the anonymous speaker”; and (3) show that a balance of the parties’ competing

interests weighs in favor of disclosure. Mobilisa, Inc., 170 P.3d at 717-20. We note that in

finding that a motion to dismissstandard “would set the bar too low,” the court observed that

Arizona was a notice-pleading state, and thus, a complaint was merely required to provide

a short and plain statement establishing that the plaintiff was entitled to relief. Mobilisa, Inc.,

170 P.3d at 720.

¶ 20 Whilewe agreewith the important objective of protecting anonymous speech, a summary

judgment standard cannot be harmonized with the specific procedural posture of a Rule 224

petition. In Mobilisa, Inc., a complaint had already been filed at the time the application to

discover the anonymous person’s identity was filed pursuant to the Arizona statute. In

contrast, the petition set forth in Rule 224 is filed prior to the filing of a complaint.

Accordingly, a Rule 224 petitioner has not had the benefit of discovery. Indeed, the language

of the rule itself prohibits seeking any discovery pertaining to the merits of the petitioner’s

cause of action. Ill. S. Ct. R. 224(a)(1)(ii) (eff. 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 Ill. App. 3d 428, 432 (1993) (finding that discovery

pursuant to Rule 224 is limited to obtaining the identities of potential defendants). In

assessing a motion for summary judgment, however, we must consider the depositions,

affidavits, exhibits, admissions and pleading on file and strictly construe them against the

moving party. F.H. Paschen/S.N. Nielsen, Inc. v. Burnham Station, L.L.C., 372 Ill. App. 3d

89, 93 (2007). Thus, a partyresponding to a summary judgment motion may rely on evidence

obtained in discovery to defeat the motion. If the summary judgment standard were to be

applied strictly to Rule 224 petitions, petitioners seeking redress for even meritorious claims

may be denied relief because they lack evidence that they have no means to obtain until

discovery ensues. Assuming that Mobilisa, Inc.’s language limiting the applicant’s burden

to support “all elements not dependent upon knowing the identityof the anonymous speaker”

means all elements not dependent on evidence within the anonymous person’s control, such

a modified summary judgment standard may provide the anonymous speaker with less

protection than the standard required for a motion to dismiss in Illinois.

¶ 21 In contrast to Arizona, Illinois is a fact-pleading jurisdiction, requiring plaintiff to allege

facts, rather than mere conclusions, to demonstrate that his claim constitutes a viable cause

of action. Iseberg, 227 Ill. 2d at 86. To survive a motion to dismiss, the plaintiff must allege

specific facts supporting each element of his cause of action and the trial court will not admit

conclusory allegations and conclusions of law that are not supported by specific facts.

Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corp., 406 Ill. App. 3d 325, 336 (2010).

In contrast, the modified summary judgment standard would permit a petitioner to obtain the

anonymous person’s identity without even providing allegations in support of certain

elements where the evidence pertaining to such elements was in control of the anonymous

person. Because the motion to dismiss standard best balances the need to protect the

anonymous party’s rights and the interests of the party seeking redress, we find that Maxon,

rather than Mobilisa, Inc., sets forth the correct standard.

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¶ 22 III. DEFAMATION

¶ 23 We now examine the Rule 224 petition before us. As stated, the petition and amended

petition, both of which were filed prior to the Maxon decision, failed to identify the allegedly

defamatory statements. See Green v. Rogers, 234 Ill. 2d 478, 492 (2009) (a complaint for

defamation per se is not required to state the allegedly defamatory words in haec verba but

the substance of the statement must be pled with precision and particularity sufficient to

allow an initial review of its defamatory content). Nonetheless, even when considering the

statements subsequently provided by petitioner, she cannot establish a cause of action for

defamation against Doe.

¶ 24 To state a claim for defamation, a plaintiff must present facts demonstrating that the

defendant made a false statement about the plaintiff, that the defendant made an unprivileged

publication of the subject statement to a third party, and that the publication caused damages

to the plaintiff. Green, 234 Ill. 2d at 491. A statement is defamatory if it harms an

individual’s reputation by lowering the individual in the eyes of his community or deters the

community from associating with him. Tuite v. Corbitt, 224 Ill. 2d 490, 501 (2006). There

are two forms of defamation: defamation per se and defamation per quod. Moore v. People

for the Ethical Treatment of Animals, Inc., 402 Ill. App. 3d 62, 68 (2010).

¶ 25 A statement is defamatory per se if the resulting harm is apparent and obvious on the face

of the statement. Tuite, 224 Ill. 2d at 501. If a statement is defamatory per se, the plaintiff is

not required to plead actual damage to his reputation but, rather, the statement is considered

to be so obviously and materially harmful that injuryto the plaintiff’s reputation is presumed.

Moore, 402 Ill. App. 3d at 68. Because defamation per se relieves a plaintiff of his obligation

to prove actual damages, this claim must be pled with a heightened level of particularity and

precision. Green, 234 Ill. 2d at 495. There are five categories of statements that are deemed

to be defamation per se: (1) words imputing the commission of a criminal offense; (2) words

that impute infections with a loathsome communicable disease; (3) words that impute an

individual is unable to perform his employment duties or otherwise lacks integrity in

performing those duties; (4) words that prejudice an individual in his profession or otherwise

impute a lack of ability in his profession; and (5) words that impute an individual has

engaged in fornication or adultery. Tuite, 224 Ill. 2d at 501. Here, petitioner contends that the

challenged statement suggests Jed solicits men for sex and, thus, falls within the first and last

categories.

¶ 26 In addition to the aforementioned requirements, our supreme court has recognized that

there are three types of actions in which an allegedly defamatory statement has been held to

be protected by the first amendment in the absence of a showing that the statement is factual:

(1) actions brought by public officials; (2) actions brought by public figures; and (3) actions

brought against media defendants by private individuals. Imperial Apparel, LTD v. Cosmo’s

Designer Direct, Inc., 227 Ill. 2d 381, 398-99 (2008); see also Moore, 402 Ill. App. 3d at 68

(a defamation action cannot be based on statements that do not contain factual assertions, as

such statements are protected by the first amendment). In those circumstances, the first

amendment prohibits actions for defamation based on loose and figurative language that no

person would reasonably believe presented a fact. Imperial Apparel, LTD, 227 Ill. 2d at 397;

see also Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990) (the first amendment

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protects statements that cannot be reasonably construed as stating actual facts regarding an

individual). To determine whether a statement is protected by the first amendment from

defamation claims, the test is whether the statement can reasonably be interpreted as stating

a fact, considering (1) whether the statement has a readily understood and precise meaning;

(2) whetherthe statement can be verified; and (3) whetherits social or literarycontext signals

that it has factual content. Imperial Apparel, LTD, 227 Ill. 2d at 398. Although we evaluate

the statement from an ordinary reader’s perspective, the court itself must determine as a

question of law whether the statement is a factual assertion that could support a defamation

claim. Imperial Apparel, LTD, 227 Ill. 2d at 398.

¶ 27 Our supreme court has also observed that it remains unsettled whether this first

amendment privilege extends to statements made by one private individual about another

regarding a private concern. Imperial Apparel, LTD, 227 Ill. 2d at 399; see also Milkovich,

497 U.S. at 20 n.6 (reserving judgment on cases involving nonmedia defendants). The court

observed that the benefits of extending this privilege to private individuals included

achieving consistent outcomes where an individual seeks recovery from both private

individuals and a media defendant. Imperial Apparel, LTD, 227 Ill. 2d at 400. In addition,

the court observed this approach recognizes that the status of the defendant who publishes

the speech does not dictate its inherent worth as it relates to the ability to inform the public.

Imperial Apparel, LTD, 227 Ill. 2d at 400. The court further observed that this approach

reduces ambiguity, which can otherwise foster fear of liability as well as self-censorship and

inhibit the free flow of protected expression. Imperial Apparel, LTD, 227 Ill. 2d at 400.

Nonetheless, the court determined that it need not resolve this unsettled matter because the

parties had not challenged the assumption of the trial court and appellate court that this

privilege applied. Imperial Apparel, LTD, 227 Ill. 2d at 400.

¶ 28 Similarly, here, the parties have not questioned whether a statement must assert a fact in

order to support a claim for defamation where one private individual, Doe, has made a

statement against another private individual, Jed. We are persuaded by the policies set forth

by the supreme court that this requirement should not be limited by the status of the speaker

or the person being spoken about. In support of our determination, we also observe it appears

that another district of this court has intuitively applied the factual assertion requirement to

a claim brought by a private individual and entity against a nonmedia defendant. See J. Maki

Construction Co. v. Chicago Regional Council of Carpenters, 379 Ill. App. 3d 189, 190-91,

199-202 (2d Dist. 2008) (where nonunion construction company and its owner brought a

defamation action against the carpenters’ union and three of its organizers, the Second

District found that the allegedlydefamatorystatements failed to include an actionable factual

assertion).

¶ 29 Here, we find that no reasonable person would find the challenged statement presented

a fact regarding Jed, let alone a factual assertion that Jed, a minor, solicits men for sex over

the Internet. Jed invited Doe to speak face to face for the purposes of political discussion. It

was in response to this invitation that Doe made the following statements: “Thanks for the

invitation to visit you.. but I’ll have to decline. Seems like you’re very willing 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 language presents a

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question to Jed. Doe has not affirmatively represented that Jed has previously invited men

over or that men have invited Jed over. In addition, the dialogue between Jed and Doe shows

that they have never met and indicates that their knowledge of each other is limited to the

confines of their exchanges in this forum. Thus, Doe has not given readers any reason to

believe that he would have the ability to know of any such conduct. The challenged comment

lacks a readily understood and precise meaning that can be verified and contains no factual

content whatsoever. Even assuming the challenged comment had made a factual assertion,

we find it is subject to an innocent construction.

¶ 30 A statement will not be actionable per se if it can easily and reasonably be subjected to

an innocent construction. Green, 234 Ill. 2d at 500. Pursuant to this principle, a court must

consider the alleged statement in context, giving the words and any resulting implications

their natural and obvious meaning. Green, 234 Ill. 2d at 499. If the actual words do not alone

denote criminal or unethical conduct and have a broader meaning in common usage than the

meaning ascribed by the plaintiff, the words are not actionable as defamation per se. Moore,

402 Ill. App. 3d at 70. Whether a statement is entitled to an innocent construction presents

a question of law which we review de novo. Moore, 402 Ill. App. 3d at 70.

¶ 31 Even assuming Doe’s question constitutes a factual representation, at best, it is merely

a factual assertion that Jed has invited men over or that men have invited Jed over. Given the

context of Doe declining Jed’s invitation to meet for a political discussion, we do not agree

that a sexual connotation is inherent in Doe’s statement. In addition, inviting anonymous

individuals on the Internet to meet in person, regardless of the purpose, involves inherent

risks. While many anonymous individuals genuinely seek intellectual discourse, others have

more devious purposes, sexual, violent, or otherwise. Thus, even if a sexual connotation can

be read into Doe’s comment, his comment may represent nothing more than an

admonishment that Jed’s conduct in inviting Doe to meet in person was unwise, not that Jed

actually solicits or has been solicited for sex with anonymous men on the internet.

Accordingly, Doe’s statement is entitled to an innocent construction.

¶ 32 We further find petitioner has not alleged facts sufficient to show that Doe may be

responsible in damages for defamation per quod. Statements are defamatory per quod where

either (1) the statement’s defamatory character is not apparent on its face so that examining

extrinsic circumstances is necessary to show its injurious meaning; or (2) the statement is

defamatory on its face but does not fall within the enumerated categories of per se actions.

Schivarelli v. CBS, Inc., 333 Ill. App. 3d 755, 759 (2002). Prejudice is not presumed,

however, and the plaintiff must plead special damages. Tuite, 224 Ill. 2d at 501. Here,

petitioner has not alleged special damages. Accordingly, she has not shown that Doe’s

identity is necessary for Jed to pursue a cause of action for defamation per quod against Doe. 

¶ 33 For the foregoing reasons, we hold that a Rule 224 petition must allege facts sufficient

to support a cause of action, as required by section 2-615 of the Code, in order to

demonstrate that the discovery of an anonymous individual’s identity is necessary. We also

find that, here, petitioner failed to satisfy that standard and thus, was not entitled to discover

Doe’s identity. In light of our determination, we need not consider the parties’ remaining

arguments. Accordingly, we reverse the trial court’s orders permitting Doe’s identity to be

turned over to petitioner and her counsel.

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¶ 34 IV. CONCLUSION

¶ 35 Our nation has long prized a citizen’s right to speak anonymously. With the proliferation

of the seemingly limitless vehicles for such speech on the Internet and the various forms of

social media, our citizens now have outlets for anonymous free speech that were quite simply

unimaginable only a decade ago. While the law is clear that there is no right to defame

another citizen, we cannot condone the inevitable fishing expeditionsthat would ensue were

the trial court’s orderto be upheld. Encouraging those easily offended by online commentary

to sue to find the name of their “tormenters” would surely lead to unnecessary litigation and

would also have a chilling effect on the many citizens who choose to post anonymously on

the countless comment boards for newspapers, magazines, websites and other information

portals. Putting publishers and website hosts in the position of being a “cyber-nanny” is a

noxious concept that offends our country’s long history of protecting anonymous speech.

¶ 36 Reversed.

¶ 37 JUSTICE SALONE, specially concurring:

¶ 38 I concur with the result reached by the majority, that petitioner has not shown a potential

defamation claim. I write separately, however, because I do not agree that the majority has

chosen the proper standard to analyze petitioner’s claim. In my view, the appropriate

standard of proof for Rule 224 petitions is probable cause. I reject the majority’s standard

because it (1) contravenes the drafter’s intent; (2) places an undue burden on petitioners; (3)

encourages unnecessary litigation; and (4) fails to protect anonymous speech.

¶ 39 As the majority properly states, the purpose of statutory and rule construction is to give

effect to the intent of the drafters. Cinkus v. Village of Stickney Municipal Officers Electoral

Board, 228 Ill. 2d 200, 217 (2008). The intent of the drafters is best ascertained through

analysis of the plain language of the rule and any comments made by the drafters. Cinkus,

228 Ill. 2d at 218. Since the majority has already quoted the rule, I begin my interpretation

with the committee comments.

¶ 40 The committee comments explain that the purpose of Illinois Supreme Court Rule 224

(eff. May 30, 2008) is to “provide[ ] a tool by which a person or entity may, with leave of

court, compel limited discovery before filing a lawsuit in an effort to determine the identity

of one who may be liable in damages.” Ill. S. Ct. R. 224, Committee Comments (Aug. 1,

1989). It further states that it “provides a mechanism for plaintiffs to ascertain the identity

of potential defendants in a variety of civil cases, including Structural Work Act, products

liability, malpractice and negligence claims. *** The rule facilitates the identification of

potential defendants through discovery depositions or through any of the other discovery

tools set forth in Rules 201 through 214.” Ill. S. Ct. R. 224, Committee Comments (Aug. 1,

1989).

¶ 41 Based on these comments, I believe that Rule 224 was drafted to aid potential plaintiffs

in obtaining discovery in civil actions where the identity of the potential defendant is

unknown. The rule also seeks to prevent the evil of parties escaping liability in civil actions

by intentionally or unintentionally remaining anonymous. As a practical matter, the rule

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combats the practice of naming a multitude of defendants due to a plaintiff’s uncertainty

regarding who may be liable in damages. Unfortunately, the committee comments do not

address the standard of proof required for petitioner to succeed with any additional

specificity. Therefore, our analysis must go outside of the rule itself. Cinkus, 228 Ill. 2d at

218. This court is not without direction, however, as our supreme court has instructed us that

the supreme court rules, to the extent that they are not regulated by another statute, are to be

read together with article II of the Code of Civil Procedure because they both apply to all

proceedings in the trial court. Rodriguez v. Sheriff’s Merit Comm’n, 218 Ill. 2d 342, 354

(2006).

¶ 42 In Pari Materia and Probable Cause

¶ 43 The doctrine of in pari materia may properly be employed where, in the course of

construction, a related provision of a separate enactment aids in determining the meaning of

an otherwise ambiguous rule. Cinkus, 228 Ill. 2d at 218. In pari materia permits the court to

read two enactments with reference to each other, so as to give effect to all of the provisions

of each where possible. Cinkus, 228 Ill. 2d at 218. In 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 compare Rule 224 and article II, section 2-402, of the Code of Civil Procedure

(Code) (735 ILCS 5/2-402 (West 2008)) because they are both governed by a single policy

and one spirit. Cinkus, 228 Ill. 2d at 218.

¶ 44 Article II, section 2-402, of the Code, entitled “Respondents in Discovery,” provides a

mechanism for plaintiffs in a civil action to name as respondents in discovery individuals

who are believed “to have information essential to the determination of who should be

properly named as additional defendants in the action.” 735 ILCS 5/2-402 (West 2008). It

further permits plaintiff to add such respondents as named defendants “if the evidence

discloses the existence of probable cause for such action.” 735 ILCS 5/2-402 (West 2008).

This court has determined that probable cause exists under section 2-402 “where a person

of ordinary caution and prudence would entertain an honest and strong suspicion that the

purported [conduct] of the respondent in discovery was a proximate cause of plaintiff’s

injury.” Jackson-Baker v. Immesoete, 337 Ill. App. 3d 1090, 1093 (2003). Such evidence

“need not rise to the level of a high degree of likelihood of success on the merits or the

evidence necessary to defeat a motion for summary judgment in favor of the respondents in

discovery, nor is the plaintiff required to establish a prima facie case against the respondent

in discovery.” Jackson-Baker, 337 Ill. App. 3d at 1093.

¶ 45 Section 2-402 provides for the use of discovery to identify “who should be properly

named as *** defendants in the action” (735 ILCS 5/2-402 (West 2008)), while Rule 224

seeks to “facilitate[ ] the identification of potential defendants through discovery” (Ill. S. Ct.

R. 224, Committee Comments (Aug. 1, 1989)). In addition to providing a means for an

injured party to name the proper party who may be liable, both section 2-402 and Rule 224

seek to minimize unnecessarylitigation caused bynaming everypotential partyand requiring

each to individually challenge his or her culpability. Indeed, our supreme court has

determined that one purpose of this statute is to provide plaintiff attorneys with a means of

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filing suits without “naming everyone in sight as a defendant.” Bogseth v. Emanuel, 166 Ill.

2d 507, 514 (1995). Thus, the language of both enactments shows that they are governed by

a single policy of limiting unnecessary litigation, and by a single spirit of facilitating redress

for injured parties.

¶ 46 The jurisprudence of both enactments also evinces that they should be considered in pari

materia, because they both: (1) share the purpose of deterring frivolous actions without

depriving an injured party of a trial on the merits (Coley v. St. Bernard’s Hospital, 281 Ill.

App. 3d 587, 592 (1996); Maxon v. Ottawa Publishing Co., 402 Ill. App. 3d 704, 711

(2010)); (2) contemplate the same causes of action (Bogseth, 166 Ill. 2d at 515; Ill. S. Ct. R.

224, Committee Comments (Aug. 1, 1989)); (3) operate using the mechanism of discovery

(Murphy v. Aton, 276 Ill. App. 3d 127, 129 (1995); Kamelgard v. American College of

Surgeons, 385 Ill. App. 3d 675, 686 (2008)); and (4) require leave of the court (Kamelgard,

385 Ill. App. 3d at 686; Medjesky v. Cole, 276 Ill. App. 3d 1061, 1064 (1995)). Although

Rule 224 and section 2-402 provide for their common purpose at separate stages in civil

proceedings, this is a distinction without a difference, where both provisions serve the same 3

policy and spirit of providing aggrieved persons with a means to ascertain who may be

properly named as defendants. Thus, the jurisprudence of Rule 224 and section 2-402

supports requiring the same standard of proof for both potential and actual plaintiffs.

¶ 47 In order to meet our mandate of interpreting both enactments consistently and

harmoniously (Cinkus, 228 Ill. 2d at 218; Rodriguez, 218 Ill. 2d at 354), this court should

adopt the standard that a petitioner need only establish probable cause to establish the

requisite “reason the proposed discovery is necessary” as stated in Illinois Supreme Court

Rule 224. Rule 224 is silent regarding the applicable standard of proof required in such

actions, while section 2-402 provides that a plaintiff may add as a defendant, a respondent

in discovery, where the evidence discloses the existence of probable cause to do so. 735

ILCS 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 person who is a Rule 224 petitioner than we require from a person who is

an actual plaintiff.

¶ 48 The majority’s prima facie standard narrows the possibility of redress for meritorious

claims without justification and in contravention of the stated purpose and jurisprudence of

Rule 224. Unlike the majority, I find no justification, either in the language of Rule 224 or

applicable case law, for requiring a higher standard of proof for potential plaintiffs who are

unaware of the identity of a single potential defendant than plaintiffs who purport to know

the identity of a single defendant. In addition, our supreme court held in Bogseth that a

plaintiff may not file a suit against a fictitiously named defendant and seek to ascertain the

identityof proper defendants bynaming them as respondents in discoverypursuant to section

Section 2-402 is to be used after a suit has been filed for the purpose of discovering 3

additional potential defendants (Bogseth, 166 Ill. 2d at 513), while Rule 224 provides for presuit

discovery (Kamelgard, 385 Ill. App. 3d at 684).

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2-402. Bogseth, 166 Ill. 2d at 514. Therefore, only Rule 224 provides an injured party with

a means of redress where the identity of the potential defendant is unknown. In my view, the

majority’s holding, which creates a distinction between actual and potential plaintiffs based

on their ability to identify a single defendant, instead of the merits of their claims,

contravenes the basic tenet of Illinois jurisprudence, which favors having controversies

determined according to the substantive rights of the parties. Jackson-Baker, 337 Ill. App.

3d at 1095.

¶ 49 Holding Contravenes Purpose of Rule 224

¶ 50 By requiring prima facie evidence, the majority’s holding is contrary to the drafters’

intent for Rule 224 because it requires petitioners to seek to establish actual liability. For

nearly a century our supreme court has maintained that “[i]f there is no evidence to

[contradict] a prima facie case, it becomes conclusive and justifies a verdict.” Vischer v.

Northwestern Elevated R.R. Co., 256 Ill. 572, 578 (1912). Indeed the verydefinition of prima

facie evidence is, “evidence which is sufficient to authorize a finding on the matter in issue

unless contradicted or explained.” Johnson v. Pendergast, 308 Ill. 255, 261 (1923). As such,

the majority’s holding is contrary to this court’s holding in Beale v. EdgeMark Financial

Corp., 279 Ill. App. 3d 242, 252 (1996), wherein this court held that “[w]hen in the trial

court’s discretion the petitioner seeks to establish actual liability or responsibility rather

than potentiality for liability, discovery should be denied.” (Emphasis added.)Beale, 279 Ill.

App. 3d at 253. Thus, by requiring prima facie evidence in a Rule 224 petition, the majority

is requiring a petitioner to provide evidence sufficient to establish actual liability, which

would then justify the denial of a petition under Beale. Beale, 279 Ill. App. 3d at 253.

Because the majority does not overturn or distinguish Beale, its holding requires petitioner

to provide prima facie evidence which does not establish actual liability. Reading the

majority’s holding and Beale together, a petition can be denied for alleging both insufficient

and excessive evidence. Such a standard goes beyond contradicting the purpose of Rule 224

and enters the realm of legal fiction.

¶ 51 Undue Burden on Petitioners

¶ 52 In addition to being contrary to the purpose of Rule 224, the majority’s holding places

an undue burden on petitioners. While recognizing that Rule 224 extends beyond the limited

context of defamation, the majority fails to address how a petitioner’s claim, and, e.g., the

proof required for that claim, may depend upon the relationship between the petitioner and

the potential defendant. A published statement against a petitioner may give rise to claims

of defamation, if made by a stranger; or breach of fiduciary duty, if made by a fiduciary; or

tortuous interference with a business expectancy, if made by a competitor. Each claim is

composed of separate and distinct elements, requiring separate factual allegations to satisfy

the prima facie requirement. Thus, a petitioner who is legally entitled to recover would be

denied because the burden created by the majority’s holding is insurmountable, absent the

identity of the speaker. Indeed, the majority cites this very same reason for rejecting the

summary judgment standard advanced by Doe, stating, “petitioners seeking redress for even

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meritorious claims may be denied relief because they lack evidence which they have no

means to obtain until discovery ensues.” Supra ¶ 20.

¶ 53 Not only does the majority’s holding ignore the interdependent nature of certain claims

and the relationship between the parties, it also assumes that the unidentified person would

oppose the Rule 224 petition. The majority’s standard requires the petitioner to be able to

establish facts capable of surviving a motion to dismiss pursuant to section 2-615 of the

Code. Supra ¶ 18. However, neither Rule 224 nor the majority’s holding requires the

unidentified party to be present to oppose the petition. The decision to file a motion to

dismiss and the content of said motion are strategic decisions to be made by trial counsel.

Hytel Group, Inc. v. Butler, 405 Ill. App. 3d 113, 130 (2010). The effect of the majority’s

assumption is that it places the trial court in the position of being both opposing counsel and

judge in cases where the unidentified partyis not represented. Because the majority’s opinion

assumes opposition to the petition, where the unidentified party is not represented, the only

remaining body to perform such a function, which is required under the majority’s holding,

is the trial court. In practice the trial court would have to assume the trial strategy of the

unidentified party, perform that trial strategy by way of creating the substance of the

hypothetical motion in opposition, and then evaluate the hypothetical motion that it created

against plaintiff’s petition, without permitting petitioner to draft a response. This places an

extreme burden on a petitioner with limited information to anticipatorily overcome the

hypothetical motion created by the trial court, without an opportunity to draft a response to

the hypothetical motion. By contrast, the opportunity to respond would be provided if

petitioner simply filed the exact same factual allegations in the form of a complaint in the

circuit court against a suspected defendant.

¶ 54 The majority’s holding also ignores the practical impact that the prima facie standard

would have on statutes of limitations. A Rule 224 petition must claim that the petitioner is

already injured by an unknown person’s conduct. As such, the statute of limitations for

petitioner’s claim will have begun to run no later than the filing date of the petition. In my

view, requiring a petitioner to obtain the level of evidence required in a civil complaint solely

to ascertain the identity of an unknown party, without tolling the statute of limitations, places

the injured petitioner at an extreme disadvantage. The majority ignores the risk of a

meritorious claim lapsing due to petitioner’s required search for prima facie evidence or due

to the trial court’s deliberations in ruling on the petition. This risk is magnified where the

statute of limitations may be less based solely on the identity of the potential defendant, i.e.,

the statute of limitations for a claim against a municipality (745 ILCS 10/8-101 (West 2010))

is less than the statue of limitations for the same conduct against a private person (735 ILCS

5/13-205 (West 2010)). For these reasons, I believe that the majority’s holding places an

undue burden on petitioners.

¶ 55 Encouraging Unnecessary Litigation

¶ 56 The majority’s prima facie standard also encourages unnecessary litigation by requiring

excessive evidence at the pre-suit stage. As described above, the majority’s prima facie

standard requires the same level of evidence required for an unopposed plaintiff to succeed

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on the merits of his claim. Vischer, 256 Ill. at 578. Thus, as a practical matter, there is no

benefit to first filing a Rule 224 petition where petitioner believes he knows the identity of

anyone who many lead him to the party responsible for his injury. To that end, a party may

file suit against a tangentially connected person or entity and use section 2-402 to ascertain

the identity of the proper defendant. Thus, by naming a single party as a defendant a plaintiff

may name additional parties as respondents in discovery, and require them to respond to

subpoenas regarding the identity of the anonymous speaker, based solely on probable cause.

By requiring prima facie evidence, as opposed to probable cause, the majority provides an

incentive to continue the practice our supreme court discouraged in Bogseth of “naming

everyone in sight as a defendant.” Bogseth, 166 Ill. 2d at 514.

¶ 57 In cases such as this one, Stone could have filed suit against Paddock, instead of the Rule

224 petition, and through section 2-402 obtained the identity of Doe, merely by showing

probable cause that Comcast and Yahoo had information regarding who should properly be

named as an additional defendant. Such a suit, once filed, would eliminate the injured party’s

risk of the statute of limitations lapsing, which, as described above, may be incentive enough

to file the suit and learn the necessary details through discovery. Such conduct would not be

barred by res judicata or collateral estoppel, if done after the denial of a petition because a

Rule 224 denial is not a final judgment on the merits of petitioner’s claim. Agolf, LLC v.

Village of Arlington Heights, 409 Ill. App. 3d 211, 218 (2011); Lieberman v. Liberty

Healthcare Corp., 408 Ill. App. 3d 1102, 1109 (2011). Thus, the majority’s holding

encourages unnecessary litigation because it requires the same level of proof as a civil

complaint without abating the risk of meritorious claims lapsing.

¶ 58 Failure to Protect Anonymous Speech

¶ 59 As exhibited above, the prima facie standard can be circumvented in cases of anonymous

public speech simply by filing suit against the publisher of said speech and ascertaining the

identity of the speaker by way of the probable cause standard of section 2-402. Thus, the

majority’s holding does not strike a balance between the interests of the anonymous speaker

and the injured party. Instead, the same types of abusive tactics used for ascertaining a party’s

identity, which the majoritypurportsto protect against, remain available. Moreover, the same

means of discouraging abuse exists, namely, sanctions pursuant to Illinois Supreme Court

Rule 219 (eff. July 1, 2002). Thus, the majority’s standard fails to provide any additional

protection to anonymous speakers beyond that of the probable cause standard.

¶ 60 To the contrary, the increased likelihood of formal litigation the prima facie standard

creates, when combined with no additional protections for anonymous speakers, shows an

increased risk that an anonymous speaker will be identified. Under these circumstances, I

cannot agree that the prima facie standard strikes a proper balance between the

aforementioned interests, where it frustrates the interests of a party seeking redress through

Rule 224, while providing no increased protection from the abusive litigation process for the

anonymous speaker. Even in this case, the majority’s standard does not protect Doe’s

anonymity, because Stone is not precluded from filing suit against Paddock and seeking

Doe’s identity through the lesser probable cause standard, by way of section 2-402.

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¶ 61 I reject the majority’s standard because it contravenes the purpose of Rule 224, creates

an undue burden on the injured, and increases the likelihood of unnecessary litigation,

without achieving the majority’s purported goal of protecting anonymous speech. Ispecially

concur, however, because the facts before us do not establish probable cause that petitioner’s

minor son was defamed. Accordingly, under either standard petitioner failed to meet her

burden and the petition should be denied.

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