                                                    FIRST DIVISION
                                                    May 19, 2008




No. 1-06-2885

THOMAS A. ROSE,                          )     Appeal from the
                                         )     Circuit Court of
     Plaintiff-Appellant,                )     Cook County.
                                         )
          v.                             )
                                         )
HOLLINGER INTERNATIONAL, INC., CHICAGO   )
SUN-TIMES, INC., JERUSALEM POST, and     )
BRET STEPHENS,                           )     Honorable
                                         )     Lee Preston,
     Defendants-Appellees.               )     Judge Presiding.



     JUSTICE WOLFSON delivered the opinion of the court:

     In this defamation case we are required to explore the

indistinct line between fact and opinion.    Where we land

determines the outcome of this appeal.

     Plaintiff Thomas A. Rose (Rose) appeals the trial court’s

order dismissing with prejudice his action against the defendants

Hollinger International, Inc. (Hollinger), Chicago Sun-Times,

Inc. (Sun-Times), Jerusalem Post, and Bret Stephens (Stephens).

Count V of plaintiff’s Second Amended Complaint alleged Stephens

made defamatory statements against Rose in an email sent to

Jerusalem Post employees.

     The trial court found the alleged defamatory statements--

Rose "wrought damage to" the Jerusalem Post’s finances,

reputation, business relationships, morale, and quality of its
1-06-2885

editorial product--were not actionable because they were

protected expressions of Stephens’ opinions.      Rose appeals the

court’s dismissal of Count V.    We affirm.1

FACTS

     At the time of the complaint, Hollinger was the owner of the

Sun-Times and the Jerusalem Post.      Rose began working for

Hollinger and the Chicago Sun-Times in 1997.      In June 1998, Rose

became the publisher and chief executive officer (CEO) of the

Jerusalem Post.    He moved to Israel and worked in that position

until he was fired on May 25, 2004.      On May 27, 2004, Stephens,

the editor-in-chief of the Jerusalem Post, sent an email to the

editorial staff in Israel and New York.      The content of the

email, in its entirety, is as follows:

            "Subject: memo from Bret Stephens to

            editorial staff

            Dear Colleagues,

                  As some of you may have heard already,

            Tom Rose was this Tuesday terminated as

            Publisher and CEO of The Jerusalem Post.    CFO


     1
      On March 26, 2008, our supreme court, under its supervisory
authority, directed us to vacate our opinion and reconsider it in
light of its decision in Imperial Apparel, Ltd. v. Cosmo’s
Designer Direct, Inc., 227 Ill. 2d 381, 882 N.E.2d 1011 (February
7, 2008). We have reviewed the Imperial opinion and find it
supports our original decision. We have vacated our opinion and
now file this opinion in its stead.

                                   2
1-06-2885

            Mark Ziman has taken his place as publisher

            on an interim basis.

                 For those of us who have seen up close

            the damage Tom did to this newspaper, this is

            a happy event indeed.    For those Tom damaged

            personally, with his abusive behavior and

            bizarre management style, it is happier

            still.   So good riddance, Tom, good riddance.

            You will not be missed.

                 So many of us have been waiting for this

            day, and fighting for it, that we may be

            forgiven for thinking that Tom’s departure

            brings our problems to an end.       It does not.

            It will be some time before we can undo the

            damage he has wrought:       To our finances, to

            our reputation, to our business

            relationships, to our morale, to the quality

            of our editorial product.

                 What we can say is that, with Tom gone,

            we can begin to address our problems in a

            rational and purposeful way.       Improvements

            will not necessarily come quickly.       But I’m

            confident they will, in time, come.


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1-06-2885

                    I hope each of you had a pleasant

            holiday.    I look forward to seeing you next

            week.

            Yours, Bret."

     Rose alleges Stephens took no steps to ensure the email was

not forwarded beyond its original recipients.      He says the email

was sent to several freelance journalists around the world and

forwarded to other people in Illinois and New York.      Excerpts

from the email were published in at least two newspaper articles

available on the Internet.      He alleges Stephens made the

defamatory statements in the course of his employment, "with the

intent to injure Rose personally and to interfere with Rose’s

efforts to obtain employment following his termination."

     Count V of Rose’s Second Amended Complaint alleges the

statements in the email were defamatory per se because they

imputed an inability to perform, or a lack of integrity in the

discharge of, Rose’s employment duties, and imputed he lacked

ability in his trade, profession, or business.

     The defendants filed a motion to dismiss pursuant to section

2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615

(West 2004)), contending: (1) the statements constitute

expressions of opinion; (2) the statements are subject to a

qualified privilege; (3) Rose failed to sufficiently allege


                                     4
1-06-2885

"actual malice;" (4) defendants are not liable for statements

made by Stephens outside the scope of his employment; and (5)

Rose cannot state a claim against Hollinger or the Sun-Times as

those companies were not Rose’s employers at the time the

statements were made.

     The trial court dismissed the defamation count with

prejudice, holding the alleged defamatory statements were

expressions of Stephens’ opinions.    The court did not address

defendants’ other arguments.   The court subsequently entered an

order finding no just reason to delay appeal of the dismissal

order.   155 Ill. 2d R. 304(a).

DECISION

     A section 2-615 motion to dismiss challenges the legal

sufficiency of a complaint based on defects apparent on its face.

735 ILCS 5/2-615 (West 2004); Marshall v. Burger King Corp., 222

Ill. 2d 422, 429, 856 N.E.2d 1048 (2006).    Our review is de novo.

Wakulich v. Mraz, 203 Ill. 2d 223, 228, 785 N.E.2d 843 (2003).

     A statement is considered defamatory "if it tends to cause

such harm to the reputation of another that it lowers that person

in the eyes of the community or deters third persons from

associating with him."   Kolegas v. Heftel Broadcasting Corp., 154

Ill. 2d 1, 10, 607 N.E.2d 201 (1992), citing Restatement (Second)

of Torts § 559 (1977).   "Statements are considered defamatory per


                                  5
1-06-2885

se when the defamatory character of the statement is apparent on

its face; that is, when the words used are so obviously and

materially harmful to the plaintiff that injury to his reputation

may be presumed."     Kolegas, 154 Ill. 2d at 10.

     Rose alleges Stephens’ statements add up to imputation he is

unable to perform his professional duties, thus per se

defamation.    The posture of this appeal does not call on us to

decide whether Stephens’ email contains defamatory words.    We

will assume, as the parties apparently do in this appeal, there

is at least some defamation.    The question we must answer is

whether the defamatory words are actionable.    See Bryson v. News

America Publications, Inc., 174 Ill. 2d 77, 99-100, 672 N.E.2d

1207 (1996).   That is, statements that are defamatory per se may

enjoy constitutional protection as expressions of opinion.

Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d

558, 581, 852 N.E.2d 825 (2006); U.S. Const., amend. I.

     First, we look at some of the decisions that have brought us

to the fact versus opinion contest we must resolve.

     Before 1990, courts perceived a fundamental distinction

between statements of fact and statements of opinion for first

amendment purposes.    Bryson, 174 Ill. 2d at 99.   The distinction

was grounded in dictum contained in Gertz v. Robert Welch, Inc.,

418 U.S. 323, 339-40, 41 L. Ed. 2d 789, 805, 94 S. Ct. 2997,


                                   6
1-06-2885

3006-07 (1974):

            "Under the First Amendment there is no such

            thing as a false idea.       However pernicious an

            opinion may seem, we depend for its

            correction not on the conscience of judges

            and juries but on the competition of other

            ideas.   But there is no constitutional value

            in false statements of fact."

     In Milkovich v. Lorain Journal Co., 497 U.S. 1, 18, 111 L.

Ed. 2d 1, 17, 110 S. Ct. 2695, 2705 (1990), the United States

Supreme Court held the above passage from Gertz was not intended

to create a "wholesale defamation exemption" for anything labeled

an "opinion."    Rejecting what it called "the creation of an

artificial dichotomy between ‘opinion’ and fact," the Court held

there is no separate first amendment privilege for statements of

opinion.    Milkovich, 497 U.S. at 18-19, 111 L. Ed. 2d at 18, 110

S. Ct. at 2706.      A false assertion of fact can be libelous even

though couched in terms of an opinion.         For example, simply

couching the statement "Jones committed perjury" in terms of

opinion--"In my opinion Jones committed perjury"--does not dispel

the factual implications contained in the statement.         Milkovich,

497 U.S. at 18-19, 111 L. Ed. 2d at 17-18, 110 S. Ct. at 2706.

     The statement at issue in Milkovich appeared in a newspaper


                                     7
1-06-2885

column that said the petitioner "lied at the hearing after ***

having given his solemn oath to tell the truth."       Milkovich, 497

U.S. at 5, 111 L. Ed. 2d at 9, 110 S. Ct. at 2698.      The Court

said the dispositive question was "whether a reasonable

factfinder could conclude that the statements in the [column]

imply an assertion that petitioner Milkovich perjured himself in

a judicial proceeding."       Milkovich, 497 U.S. at 21, 111 L. Ed. 2d

at 19, 110 S. Ct. at 2707.      The Court answered the question in

the affirmative, holding:

            "This is not the sort of loose, figurative,

            or hyperbolic language which would negate the

            impression that the writer was seriously

            maintaining that petitioner committed the

            crime of perjury.    Nor does the general tenor

            of the article negate this impression.    We

            also think the connotation that petitioner

            committed perjury is sufficiently factual to

            be susceptible of being proved true or

            false."     Milkovich, 497 U.S. at 21, 111 L.

            Ed. 2d at 19, 110 S. Ct. at 2707.

     The Illinois Supreme Court has adopted and applied the

Milkovich test.       Bryson, 174 Ill. 2d at 100; Kolegas, 154 Ill. 2d

at 100.   Calling it a "restrictive" test, the court held a


                                     8
1-06-2885

statement is protected by the first amendment only if it cannot

be "reasonably interpreted as stating actual facts" about the

plaintiff.   Bryson, 174 Ill. 2d at 100; Kolegas, 154 Ill. 2d at

14-15, citing Milkovich, 497 U.S. at 20, 111 L. Ed. 2d at 19, 110

S. Ct. at 2706.    The determination is a matter of law for the

court to decide.    Hopewell v. Vitullo, 299 Ill. App. 3d 513, 518,

701 N.E.2d 99 (1998).

     Courts consider several factors in determining whether a

statement is actionable: (1) whether the statement has a precise

and readily understood meaning; (2) whether the statement is

objectively verifiable as true or false; and (3) whether the

statement’s literary or social context signals that it has

factual content.    Solaia, 221 Ill. 2d at 581-82; Bryson, 174 Ill.

2d at 100-01; Mittelman v. Witous, 135 Ill. 2d 220, 243, 552

N.E.2d 973 (1989) (adopting factors announced in Ollman v. Evans,

750 F.2d 970, 984-85 (D.C. Cir. 1984)).    Statements made in the

form of insinuation, allusion, irony, question, ridicule, or

sarcasm may be considered defamatory as positive assertions of

fact.   Solaia, 221 Ill. 2d at 581; Kolegas, 154 Ill. 2d at 16.

     Courts evaluate the totality of the circumstances in each

case, but the emphasis is on whether the statement is capable of

objective verification.    Imperial Apparel, Ltd. v. Cosmo’s

Designer Direct, Inc., 367 Ill. App. 3d 48, 53, 853 N.E.2d 770


                                  9
1-06-2885

(2006), appeal allowed, 222 Ill. 2d 572, 861 N.E.2d 655 (November

29, 2006); Hopewell, 299 Ill. App. 3d at 519.

     To aid our analysis of whether the statements at issue are

constitutionally protected opinion or actionable factual

assertions, we examine the ways various courts have analyzed

similar statements.

Cases Finding Non-Actionable Opinion

     In Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc.,

227 Ill. 2d 381, 882 N.E.2d 1011 (2008), the defendant placed a

newspaper ad disparaging the plaintiffs’ competing discount men’s

clothing business.     The ad stated, in part:

            "It is laughable how with all the integrity

            of the ‘Iraq Information Minister,’ they

            brazenly attempt pulling polyester over your

            eyes by conjuring up a low rent 3 for 1

            imitation that has the transparency of a

            hookers come on. . . but no matter how they

            inflate prices and compromise quality, much

            to their dismay, Cy and his son Paul the

            plagiarist still remain light years away from

            delivering anything close to our ‘3 for 1'

            values."   Imperial Apparel, 227 Ill. 2d at

            386.


                                  10
1-06-2885

     While the court found the language in the ad was "artless,

ungrammatical, sophomoric, and sometimes nonsensical," the court

said it did not believe "an ordinary reader would perceive it as

making objectively verifiable assertions about plaintiffs’

business."    Imperial Apparel, 227 Ill. 2d at 401.   The terms in

the ad--"rags," "flea market style warehouse," "dried cream

cheese," "low rent," "a hookers come on"--were "merely subjective

characterizations lacking precise and readily understood

meaning."    Imperial Apparel, 227 Ill. 2d at 401.

     In Schivarelli v. CBS, Inc., 333 Ill. App. 3d 755, 776

N.E.2d 693 (2002), a segment in a 30-second promotional

commercial for a television station depicted investigative

reporter Pamela Zekman saying to the plaintiff, " ‘Let’s sum this

up for a second, the evidence seems to indicate that you’re

cheating the city.’ "    Schivarelli, 333 Ill. App. 3d at 758.    The

ad did not provide any further detail, although the context of

the ad "trumpeted the reporter’s ability to dig up hidden

corruption, abuse, and unethical or illegal conduct."

Schivarelli, 333 Ill. App. 3d at 760.

     The court held the statement was not objectively verifiable

because it was not made in any specific factual context.    The

reporter did not explain the evidence, state why she thought the

plaintiff was cheating, or even explain what she meant by


                                 11
1-06-2885

"cheating."    Schivarelli, 333 Ill. App. 3d at 762.   It was not

actionable.

     In Wynne v. Loyola University of Chicago, 318 Ill. App. 3d

443, 741 N.E.2d 669 (2000), the court held the statements about a

professor in a memorandum authored by a university employee did

not constitute actionable defamation.   The memorandum stated the

plaintiff "made bizarre telephone calls" to other colleagues

about her fertility injections; she "appeared to wheedle,

persuade, nag, and domineer" for changes in the university’s

special education program; nothing ever seemed to satisfy her;

meetings with her were "uniformly unpleasant"; and she began

"striking various deals" with the dean.    Wynne, 318 Ill. App. 3d

at 452.

     The court held none of the words and phrases was capable of

objective verification; it was clear the employee was merely

expressing her opinions in the memorandum.    Wynne, 318 Ill. App.

3d at 452.    The court found, "[w]hile in one sense all opinions

imply facts, the question of whether a statement of opinion is

actionable as defamation is one of degree; the vaguer and more

generalized the opinion, the more likely the opinion is

nonactionable as a matter of law."    Wynne, 318 Ill. App. 3d at

452, citing Hopewell, 299 Ill. App 3d at 521.

     In Dubinsky v. United Airlines Master Executive Council, 303


                                 12
1-06-2885

Ill. App. 3d 317, 708 N.E.2d 441 (1999), the plaintiffs alleged

the defendants falsely accused them of criminal conduct related

to the employee purchase of United Airlines.    Specifically,

plaintiff Dubinsky alleged defendant Richards defamed him by

calling him a "crook" in front of 30 to 40 pilots and their

wives.   Dubinsky, 303 Ill. App. 3d at 329.    The court held the

statement was not actionable because it was not made in any

specific factual context.   The court said, "[o]ne cannot rely on

an assumption that those who heard the statement were completely

apprised of all the developments in the ESOP controversy so as to

create a definitive factual context for the use of the word

‘crook.’ "   Dubinsky, 303 Ill. App. 3d at 329-30.

     In Doherty v. Kahn, 289 Ill. App. 3d 544, 556-57, 682 N.E.2d

163 (1997), the court held statements made by plaintiff’s former

employer to clients were non-actionable opinion.     Defendants told

potential customers plaintiff was "incompetent," "lazy,"

"dishonest," "cannot manage a business," and/or "lacks the

ability to perform landscaping services."     Doherty, 289 Ill. App.

3d at 554.   The court held the statements were not actionable

defamation because there were no specific facts at the root of

the statements capable of being objectively verified as true or

false.   Doherty, 289 Ill. App. 3d at 557.

     In Hopewell, 299 Ill. App. 3d at 515-16, a former paid


                                13
1-06-2885

officer on a United States senator’s election committee brought a

defamation action against another committee member who told a

newspaper the plaintiff was "fired because of incompetence."      The

court found the statement did not have a "precise and readily

understood meaning" because of its broad scope and lack of

detail.    Hopewell, 299 Ill. App. 3d at 519.   "[O]ne person’s idea

of when one reaches the threshold of incompetence will vary from

the next person’s."    Hopewell, 299 Ill. App. 3d at 519.   The

tenor and context of the article in which the statement appeared

further justified finding the statement was an opinion.     The

article was riddled with allegations concerning the senator’s

campaign finances, which easily could lead readers to conclude

the statements were efforts at posturing before an ensuing legal

battle between the plaintiff and the senator.      Hopewell, 299 Ill.

App. 3d at 520.   Finally, the veracity of the statement could not

be verified because the statement was so ambiguous and indefinite

that any number of possible facts might support the conclusion

that Hopewell was "incompetent."      Hopewell, 299 Ill. App. 3d at

520.

       For other examples of nonactionable opinions, see also Maag

v. Illinois Coalition for Jobs, Growth & Prosperity, 368 Ill.

App. 3d 844, 851-52, 858 N.E.2d 967 (2006) (flyer aimed at

judicial candidate stating: “What was he thinking?,” “Letting a


                                 14
1-06-2885

Murderer Back on the Streets,” “A Mistake with Consequences,”

“Questionable Judgment,” “ ‘Technicality’ Justice?,” and

“Overturning the Conviction of a Sexual Predator”); Brennan v.

Kadner, 351 Ill. App. 3d 963, 968, 814 N.E.2d 951 (2004)

(statement in newspaper column that "the election board could

refer [plaintiff’s] case to the U.S. attorney’s office, claiming

that he used the U.S. mail in perpetrating a fraud"); Quinn v.

Jewel Food Stores, Inc., 276 Ill. App. 3d 861, 866-67, 658 N.E.2d

1225 (1995) (statements made in an evaluation in employee’s

personnel file: “very aggressive, to the point of being cocky,”

“A con artist!! Watch out for the bullshit!”); Piersall v.

Sportsvision of Chicago, 230 Ill. App. 3d 503, 510, 595 N.E.2d

103 (1992) (plaintiff was a "liar"); Horowitz v. Baker, 168 Ill.

App. 3d 603, 607, 523 N.E.2d 179 (1988) (plaintiff “secretly” and

“cheaply” sold city property); Kakuris v. Klein, 88 Ill. App. 3d

597, 600, 410 N.E.2d 984 (1980) (employer’s statements that

employee exhibited a "[l]ack of achievement in basic goals" and

"did not have the qualifications needed to achieve the objectives

of the profession.")

Cases Finding Actionable Factual Statements

     In Solaia, 221 Ill. 2d at 583, the court examined several

statements in a magazine article discussing the plaintiffs’

patent infringement claims against various well-known companies

                               15
1-06-2885

and reached a split decision.    The court held the article’s

characterization of the plaintiffs as “deeply greedy people”

victimizing "the innocent companies who are being forced to

defend themselves in this debacle" fell within the bounds of

constitutionally protected opinion.     Solaia, 221 Ill. 2d at 583.

The phrase had “no precise meaning” and was “not verifiable.”

Solaia, 221 Ill. 2d at 583.    But a reprinted comment in the

article from an industry veteran describing the plaintiffs’

patent as “ ‘essentially worthless,’ *** being used to generate

settlement proceeds *** filing claims ‘to make a lot of money,’

regardless of the means” was actionable fact.     Solaia, 221 Ill.

2d at 583-84.    Though the phrase “essentially worthless” had no

precise meaning in the abstract, it had a very precise meaning in

the context of the letter.     Solaia, 221 Ill. 2d at 584.   Although

the letter “undoubtedly employs hyperbole,” the court held the

statement was not an opinion.    “Under its metaphorical chaff

hides a kernel of fact: Solaia Technology secured a worthless

patent and filed infringement claims with the sole aim of

extracting settlements.”     Solaia, 221 Ill. 2d at 584.

     In Bryson, 174 Ill. 2d at 100-102, the court held a short

story’s description of the plaintiff as a “slut” was an assertion

of fact.    The clear impact of the statement was that the

plaintiff was sexually promiscuous.    The court held the assertion


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1-06-2885

was “sufficiently factual to be susceptible of being proven true

or false.”   Bryson, 174 Ill. 2d at 100-01.

     In Mittelman, 135 Ill. 2d at 245, the court examined a

statement by a supervising attorney in a meeting with the law

firm’s board of directors.    The attorney told the directors the

waste of time and money in preparing a case was "not his fault."

He said the plaintiff "sat on the statute of limitations defense

with knowledge of [adverse authority] for three years without

attempting to settle or cut the firm’s probable losses."

Mittelman, 135 Ill. 2d at 245.   The court held the word "fault"

was used to express a non-actionable opinion, but the remainder

of the statement was factual because it had a precise core of

meaning and referred to the plaintiff’s actions or omissions with

respect to events that had taken place.    Mittelman, 135 Ill. 2d

at 245-46.   The words were actionable.

     In Moriarty v. Greene, 315 Ill. App. 3d 225, 232-33, 732

N.E.2d 730 (2000), the statement by a newspaper columnist that a

child psychologist "has readily admitted that she sees her job as

doing whatever the natural parents instruct her to do," was found

to be actionable because it was a factual assertion capable of

being proved true or false.    Moriarty, 315 Ill. App. 3d at 233.

     The court in Kumaran v. Brotman, 247 Ill. App. 3d 216, 228,

617 N.E.2d 191 (1993), held a statement in a newspaper article

                                 17
1-06-2885

was a verifiable assertion of fact.   The court found the gist of

the article--that plaintiff was "working a scam" by filing

frequent, unwarranted lawsuits to procure pecuniary settlements,

concerned plaintiff’s conduct and character, suggesting it was

factual.    Kumaran, 247 Ill. App. 3d at 228, citing Mittelman, 135

Ill. 2d at 241.   The word "scam" had a precise core of meaning

for which a consensus of understanding exists, namely, swindle.

And the statement was verifiable by reviewing the evidence in

plaintiff’s filed lawsuits to determine whether they were bona

fide or bogus.    Kumaran, 247 Ill. App. 3d at 228.

     For other examples of actionable statements, see also

Kolegas, 154 Ill. 2d at 15 (“not for real,” “scamming,” and “no

such show as the classic cartoon festival”); Barakat v. Matz, 271

Ill. App. 3d 662, 672, 648 N.E.2d 1033 (1995) (statements that

defendant “had patients from [plaintiff] before,” that defendant

“found nothing wrong with his patients,” that plaintiff’s

“practice was a joke,” that plaintiff was not “any good as a

doctor,” and that plaintiff’s “opinion wasn’t any good”); Quality

Granite Construction Co. v. Hurst-Rosche Engineers, Inc., 261

Ill. App. 3d 21, 26-27, 632 N.E.2d 1139 (1994) (defendants’

statements that plaintiff’s “failure to complete the project in a

timely manner, substandard workmanship, reluctance to complete

punch list items and inability to correctly interpret the


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contract documents”).

Application to the Instant Case

     Plaintiff’s strongest argument for the presence of

actionable defamatory statements of fact is found in the third

paragraph of the email:

            "It will be some time before we can undo the

            damage he has wrought: To our finances, to

            our reputation, to our business

            relationships, to our morale, to the quality

            of our editorial product."

     We are particularly interested in the reference to damage

"to our finances."    It strikes us that the balance of the

paragraph and the other assertions in the email--"abusive

behavior," "bizarre management style," for example--clearly are

nonactionable opinions and require no further analysis.

     We consider whether a reasonable reader would understand the

"damage to our finances" phrase as Stephens’ opinion or his

factual assertion, bearing in mind "[t]he test is restrictive: a

defamatory statement is constitutionally protected only if it

cannot be reasonably interpreted as stating actual fact."     Solaia

Technology, 221 Ill. 2d at 581.    We look to the three

"considerations" used by the supreme court in Solaia to separate


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fact from opinion.     Solaia Technology, 221 Ill. 2d at 581.

     First, whether the statement has a precise and readily

understood meaning.     The meaning of "damage" is fairly clear,

when taken in isolation.     Our dictionary defines it as "loss due

to injury; injury or harm to *** property."     Webster’s Third New

International Dictionary 571 (1981).     Webster’s defines

"finances" as: "the pecuniary affairs or resources of a ***

company."    Webster’s Third New International Dictionary 851

(1981).   While the words at issue, when parsed separately, might

be understandable, they do not exist in a vacuum.     They refer to

a business enterprise, the Jerusalem Post.     The company’s

"pecuniary affairs or resources" is a broad term, an outer shape

without an inner core.     The reasonable reader cannot know which

pecuniary affairs or resources are being referred to.       Different

readers will have different views of the meaning of the phrase.

The conclusion we reach is substantially similar to that

expressed by our court in Hopewell:

            "Regardless of the fact that ‘incompetent’ is

            an easily understood term, its broad scope

            renders it lacking the necessary detail for

            it to have a precise and readily understood

            meaning.   There are numerous reasons why one

            might conclude that another is incompetent;

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1-06-2885

            one person’s idea of when one reaches the

            threshold of incompetence will vary from the

            next person’s."     Hopewell, 299 Ill. App. 3d

            at 519-20.

     We do not believe the phrase at issue has a "precise core of

meaning for which a consensus of understanding exists."

Mittelman, 135 Ill. 2d at 243, citing Ollman, 750 F.2d at 979-84.

     Second, whether the statement is verifiable.      That is,

whether the alleged defamatory statement contains an objectively

verifiable assertion.      Schivarelli, 333 Ill. App. 3d at 760.   Is

it objectively capable of proof or disproof?      See Quinn, 276 Ill.

App. 3d at 867.

     Given the broad and shapeless form of Stephens’ accusation,

we do not see how a reasonable person would go about proving or

disproving the assertion.     Where would such a person begin?

     No specific location of injury is provided.      Nor is one

inferred in some undisclosed defamatory manner.      One cannot tell

whether it is a matter of profit and loss.      Or assets and

liabilities.    Or net worth.    And so on.   As in Hopewell, an

attempt to prove or disprove the statement would entail an

"endless analysis of each and every fact connected with" the

plaintiff’s duties.      Hopewell, 299 Ill. App. 3d at 520.



                                    21
1-06-2885

     That an analysis of company records would be difficult is

not dispositive.    It is the fruitlessness of the investigation,

given the sparse information provided, that leads to our

conclusion that the statement is too broad, conclusory, and vague

to be objectively verifiable.

     Third, we look to the statement’s literary or social context

to see whether it signals that it has factual content.    Here,

Stephens’ email represents a mean-spirited sendoff of a

discharged publisher for no apparent institutional purpose.    It

was gloating ("So good riddance, Tom, good riddance.   You will

not be missed.").    Stephens was not making a case or stating an

argument.   He did not claim "to be in possession of objectively

verifiable facts."    Brennan v. Kadner, 351 Ill. App. 3d 963, 969,

814 N.E.2d 951 (2004) (statement in column that a source told

defendant the Election Board could refer plaintiff’s case to the

United State’s Attorney’s office for a mail fraud prosecution was

a subjective judgment, not a verifiable statement of fact).

Here, given the occasion for sending of the email and the

audience it was intended to reach, we do not see how a reasonable

reader would take "wrought damage to our finances" as a factual

assertion that Rose caused some injury to specific, identifiable

pecuniary affairs or resources of the newspaper.

     We recognize this is a close case.    As Professor Graham has

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written: "A clear line between fact and opinion is impossible to

draw."   M. Graham, Cleary & Graham’s Handbook of Illinois

Evidence § 701.1, at 516 (8th ed. 2004).   But draw it we must.

We conclude Stephens’ intemperate words in the email are

constitutionally protected opinions.

CONCLUSION

     For the reasons we have stated, the trial court’s order

dismissing Count V of the plaintiff’s complaint with prejudice is

affirmed.    Because we reach this conclusion, we see no need to

discuss other issues raised by the defendants.

     Affirmed.

     HOFFMAN, P.J., and SOUTH, J., concur.




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