The Volokh Conspiracy
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Accusations of Trying to "Hit on Underage Girls" Aren't Defamatory Without Proof of Actual Damage,
at least under the Illinois "innocent construction" rule, under which "a nondefamatory interpretation must be adopted if it is reasonable"—"a reasonable reading of Lorenz's article is that although Wedgewood communicated with underage girls, he never meant to take things further."
From Judge John Z. Lee (N.D. Ill.) in yesterday's Wedgewood v. Daily Beast Co. LLC decision:
Eric Wedgewood is the creator of Content Zone, a page that collects and distributes memes…. Taylor Lorenz worked as a content journalist for [the Daily Beast].
On April 14, 2018, an anonymous Instagram account began impersonating Wedgewood. For about a week, the account posted false statements accusing Wedgewood of pursuing underage girls. Just eight days after the account was created, Instagram shut it down.At around the same time, Lorenz began investigating Wedgewood. Although Lorenz's research methods remain unclear, she claims to have spoken with several anonymous sources who received improper messages from him. At the end of her investigation, Lorenz invited Wedgewood to comment on her story, but did not interview him or otherwise inform him about the nature of her research.
Soon, The Daily Beast published Lorenz's article on Wedgewood. Titled "'He Started Messaging Me When I was 16': Female Members Slam 'Content Zone's' Creator," the article quoted two anonymous women who criticized Wedgewood for hitting on them when they were underage. With Wedgewood's alleged misconduct as a starting point, Lorenz went on to describe a broader problem with Instagram's meme pages. "[I]t [i]s sadly unsurprising to see an older man [such as Wedgewood] using an anonymous meme account to allegedly pick up young women," Lorenz reported, as "this type of behavior is rampant on [Instagram]."
Wedgewood faults many aspects of Lorenz's reporting. For example, he notes that she does not seem to have corroborated the claims of the anonymous sources quoted in her article. He also chastises Lorenz for failing to investigate the possible connection between those sources and the Instagram account that had targeted him.
Wedgewood sued The Daily Beast, but the court dismissed the case:
Wedgewood argues that The Daily Beast defamed him by reporting that he flirted with underage girls. Under Illinois law, … [t]o state a plausible defamation claim, a plaintiff must show that: (1) "the defendant made a false statement about the plaintiff," (2) "the defendant made an unprivileged publication of that statement to a third party," and (3) "that this publication caused damages." Perfect Choice Exteriors, LLC v. Better Bus. Bureau of Cent. Ill., Inc., 99 N.E.3d 541, 547 (Ill. App. Ct. 2018). Here, The Daily Beast contends that Wedgewood cannot establish the damages element.
In a defamation case, the plaintiff may satisfy the damages requirement in one of two ways. First, "a statement is defamatory per se—meaning that damages are presumed—if its harm is obvious and apparent on its face." As relevant here, "words which impute the commission of a criminal offense" and "words that prejudice a party, or impute lack of ability, in his or her trade, profession or business" amount to defamation per se. In a per quod action, "damage to the plaintiff's reputation is not presumed, and the plaintiff must prove special damages in order to recover." …
Wedgewood's primary argument is that by implying that he had solicited teenage girls—a criminal offense—The Daily Beast committed defamation per se. In her article, Lorenz wrote that Wedgewood "hit[] on underage girls via direct message." The "intended inference[] and imputation[]," Wedgewood warns, "are that [he] engaged in alleged sexual misconduct involving underage girls that is reasonably understood as a crime." The Court agrees that one interpretation of Lorenz's article is that Wedgewood intentionally [and criminally] solicited minors to perform sexual acts.
But that is not the only plausible reading. Under the [Illinois] innocent construction rule, if a "statement may reasonably be interpreted as asserting something other than what is implicated by the [relevant] per se category, it is not actionable per se." Although the allegedly defamatory statements need not "state the commission of a crime … with the particularity of an indictment," "a nondefamatory interpretation must be adopted if it is reasonable."
Here, a reasonable reading of Lorenz's article is that although Wedgewood communicated with underage girls, he never meant to take things further. See 720 Ill. Comp. Stat. 5/11-6(a) (clarifying that indecent solicitation of a minor requires intent to commit sexual assault). Notably, The Daily Beast did not report that Wedgewood asked girls to share inappropriate pictures, meet him in person, or engage in sexual activity. In those circumstances, Lorenz's article can reasonably be read as accusing Wedgewood of what is certainly questionable conduct, but not illegal conduct. As such, Wedgewood has failed to establish defamation per se.
Arguing in the alternative, Wedgewood attempts to fit Lorenz's article into a different category of defamation per se. The allegedly defamatory statements, Wedgewood insists, "prejudice[d] him in his profession." But that is all Wedgewood says. Missing from his response is any explanation as to how the allegedly defamatory statements disrupted his business. Indeed, he does not even state what his profession is. As such, the Court finds that Wedgewood has waived argument as to this issue. In short, Wedgewood cannot state a claim for defamation per se….
Wedgewood's effort to plead defamation per quod fares no better. To make out such a claim, a plaintiff must prepare "a specific accounting of [his] damages or an explanation of how the purported defamation caused them." Wedgewood's vague references to "loss of income [and] loss of reputation" fall short of that high standard…. "General allegations of damages, such as damages to an individual's … reputation or general economic loss, are insufficient to state a claim of defamation per quod." …
