Illinois Court Rejects Claim for Group Libel of Poles Living During World War II Era

People may be able to successfully sue based on allegedly false and defamatory statements about themselves, or about very small groups of people that include themselves—but not based on statements about whole countries or ethnic groups.

From Otto v. Chicago Public Media, Inc., decided Friday by the Appellate Court of Illinois, in an opinion by Justice Mathias Delort, joined by Justices Freddrenna Lyle and David Navarro:

The factual allegations of the complaint, which we take as true for the purposes of this appeal, are straightforward. Plaintiffs alleged that in 2021, defendant Neil Steinberg wrote an article published in the Chicago Sun-Times. The piece contrasts Black History Month with recent Polish governmental censorship of certain historical perspectives of atrocities committed against Jews in Poland in World War II. The key language in the article at issue in this appeal reads:

"Poland has a long history of anti-Semitism. It was anti-Semitic before World War II…. During the war, while there was certainly heroism — the unprepared Polish Army did charge German tanks on horseback — there was widespread collaboration in the form of killing off Jews, including my grandfather's entire family and his brother Zalman. The above paragraph is true, and the whole truth is far worse. Poles were killing Jews after the war, out of habit, when they tried to return to their villages."

In response to this piece, plaintiffs filed a two-count complaint which contained detailed factual allegations of brave and valiant acts taken by Poles to fight against Nazi Germany and prevent the genocide of Jews in World War II. Count I was a claim for defamation per se, focusing on this sentence: "[P]oles were killing Jews after the war, out of habit, when they tried to return to their villages."

The plaintiffs alleged that they lived in Poland during World War II and did not take part in any atrocities against Jews. In fact, they claimed, they witnessed Poles taking heroic actions to help Jews during that time. Accordingly, they contend, Steinberg's article defamed them in their roles as Polish nationals living in Poland during the relevant time period. The second count was a claim of false light based on the same operative facts….

Under Illinois law, to state a defamation per se claim, a plaintiff must present sufficient facts establishing 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) the publication caused damages…. Here, the plaintiffs take issue with the statement's generalized notion of Polish people…. [But] we cannot construe Steinberg's generalizations to specifically [be about] the three named plaintiffs. The article does not mention them anywhere. Unlike the cited cases dealing with publications referring to a very small discrete group of persons, the article refers in general terms to an entire nation of millions of people. Therefore, plaintiffs did not state a valid defamation per se claim under Illinois law….

[T]he article did not refer to emigrants from Poland who grew up in Poland during World War II, and it does not mention the city of Chicago in any context, other than in the name of the newspaper itself on the masthead. Accordingly, we struggle to find exactly how a reader could connect a historical article that deals with Poland, Polish internal politics, and potential atrocities after World War II, as specifically referring to three local Polish emigrants out of a pool of millions of potential actors….

This court has [also] held … that where the plaintiff has failed to state a cause of action for defamation per se, the false light count must fail as well….

We have no reason to doubt the plaintiffs' claim that they did not personally participate in atrocities committed in Poland against Jews in World War II. We also recognize that they take great offense at the assertions Steinberg made in his article. Historical conflicts have not only villains, but heroes, as well.

Historians, and those who comment on history, often make generalizations about nations involved in those conflicts. These generalizations emanate from the writer's creative expression and the need for brevity. In adopting this writing style, an author does not individually impugn each citizen of a nation for brutal actions taken by their government.

In fact, as illustrated by the case law cited above, a tort claims so grounded would undoubtedly be barred by … the First Amendment ….