                             2014 IL App (2d) 130489
                                  No. 2-13-0489
                             Opinion filed May 8, 2014
                   Modified upon denial of rehearing June 10, 2014
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

BILL HADLEY,                           ) Appeal from the Circuit Court
                                       ) of Stephenson County.
      Plaintiff-Appellee,              )
                                       )
v.                                     )
                                       ) No. 12-L-24
SUBSCRIBER DOE, a/k/a Fuboy,           )
Whose Legal Name is Unknown,           ) Honorable
                                       ) David L. Jeffrey,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

        JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
        Justices Zenoff concurred in the judgment and opinion.
        Justice Birkett dissented, with opinion.

                                            OPINION

¶1      Pursuant to Illinois Supreme Court Rule 224 (eff. May 30, 2008), the trial court granted the

     motion of plaintiff, Bill Hadley, requesting the court to direct Comcast Cable

     Communications, LLC, to provide the identity and last known address of defendant, subscriber

     Doe, a/k/a “Fuboy.”     Hadley wished to pursue a defamation claim against Fuboy for

     statements posted on an Internet message board. Fuboy appealed the order that Comcast

     provide the information. We affirm.

¶2                                         I. BACKGROUND

¶3      The backdrop of this Rule 224 case concerns Fuboy’s allegedly defamatory remarks about
2014 IL App (2d) 130489


Hadley, who was a candidate for the Stephenson County board (the Board). On December 28,

2011, the Freeport Journal Standard published an online newspaper article regarding Hadley’s

2012 candidacy for the Board. The article discussed Hadley’s fiscal positions. As is common

with online articles, members of the public could read and anonymously post comments (after

completing a basic registration process). On December 29, 2011, amidst four “on-topic” posts

concerning Hadley’s candidacy, Fuboy posted the following comment: “Hadley is a Sandusky

waiting to be exposed. Check out the view he has of Empire from his front door.”

¶4      Based on this comment, on January 10, 2012, Hadley filed in state court a defamation suit

against the Freeport Journal Standard’s parent company, Gatehouse Media. In part because

Gatehouse was a New York company, the case was removed to federal court. In July 2012,

following proceedings we will not detail here, Gatehouse was removed as the defendant, and the

federal court dismissed the suit for lack of jurisdiction and directed Hadley to refile the case in

state court.

¶5      Accordingly, on August 7, 2012, Hadley again filed his defamation suit in state court, this

time against “Subscriber Doe, a.k.a. Fuboy, whose legal name is unknown.” That same day, in

conjunction with the suit, Hadley issued a subpoena to Comcast, requesting Fuboy’s legal identity.

Comcast notified Fuboy. Fuboy hired an attorney, Robert Fagan, and, through Fagan, Fuboy

sought to quash the subpoena.

¶6      On January 11, 2013, at a hearing with Hadley’s and Fuboy’s attorneys present, the trial

court directed the parties that the subpoena and the motion to quash would be better addressed

within the context of Rule 224. That rule provides a mechanism for discovery to identify initial

defendants before suit, and it states:

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



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2014 IL App (2d) 130489


       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 ***.

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

       the person 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

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

       examined ***.” Ill. S. Ct. R. 224 (eff. May 30, 2008).

The court found instructive Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386, which

set forth standards for applying Rule 224 to a defamation case. The Stone court held that a Rule

224 petitioner seeking to discover an individual’s identity before suit has the burden to provide

allegations in the proposed defamation case sufficient to overcome a motion to dismiss pursuant to

section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)), regardless

of whether the unidentified individual actually files such a motion to dismiss. Stone, 2011 IL App

(1st) 093386, ¶ 18.    The Stone court explained that this standard adequately balances the

petitioner’s interest in seeking redress for alleged defamation and the unidentified individual’s

first-amendment right to engage in nondefamatory anonymous speech. Id. Thus, the court here

granted Hadley leave to file an amended complaint and a Rule 224 petition.

¶7     On January 24, 2013, based on the trial court’s direct instructions, Hadley filed an amended

two-count complaint. In the first count, Hadley reiterated his defamation claim against Fuboy (as



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2014 IL App (2d) 130489


the sufficiency of that pleading would control the trial court’s Rule 224 decision). In the second

count, Hadley named Comcast as the respondent and sought, pursuant to Rule 224, for Comcast to

provide him with the identity and last known address of Fuboy. Fuboy, through his attorney,

participated in the Rule 224 proceedings and the court rejected Hadley’s argument that Fuboy did

not have standing to do so.

¶8     After hearing argument, the trial court took the matter under advisement. On April 11,

2013, it entered a written order. In the order, the court recapped that it had ordered Hadley to

proceed under Rule 224. It then stated that it performed a Rule 224 analysis in evaluating

Hadley’s discovery request.    The court, citing Stone and Maxon v. Ottawa Publishing Co., 402

Ill. App. 3d 704 (2010), granted Hadley’s requested relief pursuant to Rule 224 and directed

Comcast to release Fuboy’s identity and address. The court noted that, while anonymous speech

is a constitutionally protected right, there is no constitutional right to defame someone. The

complained-of comment— “Hadley is a Sandusky waiting to be exposed. Check out the view he

has of Empire from his front door”—imputed the commission of a criminal offense and was,

therefore, defamatory per se. The court explained:

       “The reference to Sandusky as being a Penn State coach convicted of being a sexual abuser

       of young boys is obvious to any reasonable person. So is the reference to Empire Grade

       School located in Freeport, Illinois. *** In the Court’s view, this is not capable of

       innocent construction, nor is it capable of being considered an opinion. It is a statement of

       fact.”

The court found that, as a matter of law, neither of two potential bars precluded Hadley from

pursuing a defamation claim, as: (1) the statement was not reasonably capable of an innocent

construction; and (2) the statement could reasonably be interpreted as stating an actual fact (not



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2014 IL App (2d) 130489


opinion). The trial court referred to Fuboy’s objections as motions to quash subpoenas, and it

denied those motions.

¶9         At a very brief hearing that same day, the trial court referred back to its written order,

stating:

           “The Court has entered a written ruling in which I have denied the motion to quash the

           subpoena and ordered that Comcast Cable be directed to provide the plaintiff’s counsel

           with the identity and last known address of the account number with the specified IP

           address.”

¶ 10       On May 6, 2013, the trial court conducted a hearing on Fuboy’s motion to reconsider,

which he brought, in part, “to solidify the basis for [appeal].” Fuboy asked the court whether this

was a standard Rule 224 order, which would be immediately appealable, or whether this was an

order on one count of a two-count complaint, which would require a finding pursuant to Illinois

Supreme Court Rule 304(a) (eff. Feb. 26, 2010). Hadley explained that Rule 224 orders are

considered final and appealable (citing to Beale v. EdgeMark Financial Corp., 279 Ill. App. 3d

242, 246 (1996) (Rule 224 orders finally adjudicate the rights of the parties in an independent

action)).       The court stated:

                  “*** [T]he court believes that there must be some avenue by which the defendant

           can seek relief without disclosure from a higher court than this one. And, thus, the real

           issue before the Court in my view is how to best accomplish that.

                  [The order] is a bit different than a normal Rule 224 order because *** it was

           brought as [part of] a civil complaint. And then because of my rulings and with the

           [c]ourt’s direction or, at least, allowance, that 224 petition was filed.

                  So from my standpoint, it’s how [do] we best get this matter before the Appellate



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2014 IL App (2d) 130489


       Court ***. ***

               And, in terms of that *** I think it is a final ruling under Rule 303 [(Ill. S. Ct. R. 303

           (eff. June 4, 2008))] for the disposition of the Rule 224 petition because of what it does

           is [that] it orders the disclosure of the Rule 224.”

Fuboy again reminded the court of the pending defamation claim. Fuboy, Hadley, and the court

further discussed the proper vehicle for appeal. The court continued to “believe it [was] a final

order under Rule 303.” However, to ease the parties’ concerns, it stated that it would enter a

written Rule 304(a) finding as an alternative jurisdictional basis for appeal. That same day, it

entered the written order as promised. This appeal followed.

¶ 11                                       II. ANALYSIS

¶ 12   As a threshold matter, Hadley argues that Fuboy did not have standing to challenge the

Rule 224 discovery request, because the subpoena was issued to Comcast. We disagree. In

Stone, the court noted that an unidentified defendant is not required to challenge a Rule 224

discovery request. Stone, 2011 IL App (1st) 093386, ¶ 18. Rather, it remains the petitioner’s

burden to show that his proposed complaint supports a cause of action. Id. This standard was

created to protect the rights of the unidentified defendant.           Id.   Therefore, although the

unidentified defendant is not required to participate in the proceedings, he certainly has an interest

in them. See, e.g., Talley v. California, 362 U.S. 60, 64-65 (1960) (the author of an anonymous

statement has a first-amendment interest in preserving his anonymity). The cases cited by

Hadley, Malibu Media, LLC v. Reynolds, No. 12 C 6672, 2013 WL 870618 (N.D. Ill. Mar. 7, 2013)

(not reported), and Sunlust Pictures, LLC v. Does 1-75, No. 12 C 1546, 2012 WL 3717768 (N.D.

Ill. Aug. 27, 2012) (not reported), are inapposite. Those cases involved defendants who had

allegedly committed copyright infringement, not a defendant who wished to remain anonymous in



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2014 IL App (2d) 130489


his speech. In any case, in Sunlust, the court found that the unidentified defendant did have

standing, because his privacy interests, however minimal, were at stake. Id. at *2. The trial

court did not err here in determining that Fuboy had standing to participate in the Rule 224

proceedings. We now address the merits of the appeal.

¶ 13   At the heart of his appeal, Fuboy challenges the trial court’s application of Rule 224 in the

context of a potential defamation per se claim, arguing that Hadley’s defamation per se claim

would not survive a section 2-615 motion to dismiss. For the reasons that follow, we disagree.

And, by way of explanation, we first address the application of Rule 224 to defamation cases, as

set forth in Stone and Maxon and as adopted herein, and we then address what is needed to plead a

cause of action for defamation per se.

¶ 14                             A. Rule 224 and Defamation Cases

¶ 15   Rule 224 is intended to assist a petitioner in seeking redress against an unidentified

individual who might be liable, but the rule also requires the petitioner to demonstrate that the

proposed discovery of the individual’s identity is necessary. Stone, 2011 IL App (1st) 093386, ¶

14. The Stone and Maxon courts (First and Third Districts, respectively) found that, to show

necessity, the petitioner must present against the unidentified individual a potential defamation

claim that would survive a section 2-615 motion. Id. ¶ 18; Maxon, 402 Ill. App. 3d at 712.

Ordinarily, the grant of a Rule 224 petition is reviewed for an abuse of discretion. Maxon, 402 Ill.

App. 3d at 709. However, where, as here, a trial court’s exercise of discretion relies on a

conclusion of law, our review is de novo. Id. at 710. Although Fuboy does not dispute these

standards, we explain their rationale.

¶ 16   Anonymous speech is a long-protected right of citizenship. Stone, 2011 IL App (1st)

093386, ¶ 15; Maxon, 402 Ill. App. 3d at 712. Anonymous speech has enabled individuals to



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2014 IL App (2d) 130489


speak constructively regarding important public matters without the sort of fear of reprisal that

might deter even peaceful discussions.       Id. at 712-13 (citing Talley, 362 U.S. at 64-65).

Discussion of public issues as well as debate regarding a candidate’s qualifications are “integral to

the government established by our Constitution.” Stone, 2011 IL App (1st) 093386, ¶ 15 (citing

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346 (1995)).                “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.” Id. (citing McIntyre, 514 U.S. at

357). Additionally, it is well established that these first-amendment principles apply to speech on

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

“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.” Id.

(citing McIntyre, 514 U.S. at 357). This being said, there is no constitutional right to defame, and

the right of anonymity in public discourse does not apply to defamatory speech. Id. ¶ 16; Maxon,

402 Ill. App. 3d at 713.

¶ 17   Therefore, in ordering the disclosure of a potential defendant’s identity pursuant to Rule

224, a court must balance the potential plaintiff’s right to redress for unprotected defamatory

language against the danger of setting a standard for disclosure that is so low that it effectively

chills or eliminates the right to speak anonymously and fails to adequately protect the chosen

anonymity of those engaging in nondefamatory public discourse. Stone, 2011 IL App (1st)

093386, ¶ 16. This balance is reached by ensuring that the Rule 224 petition: “(1) is verified; (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



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2014 IL App (2d) 130489


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.”

(Internal quotation marks omitted.) Id. ¶ 17; see also Maxon, 402 Ill. App. 3d at 711. Section

2-615 of the Code provides a mechanism by which to determine whether the petitioner stated a

cause of action. Stone, 2011 IL App (1st) 093386, ¶ 17; see 735 ILCS 5/2-615 (West 2012). A

plaintiff in an ordinary defamation case is required to plead facts to show that the allegedly

defamatory statements are not constitutionally protected. Stone, 2011 IL App (1st) 093386, ¶ 17.

In this way, subjecting a Rule 224 petition to the scrutiny provided by section 2-615 guards against

constitutional concerns arising from disclosing a potential defendant’s identity. Id.

¶ 18           B. Adequately Pleading a Cause of Action for Defamation Per Se

¶ 19   To state a claim for defamation, a plaintiff must allege facts demonstrating that the

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

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

plaintiff. Stone, 2011 IL App (1st) 093386, ¶ 24. A statement is defamatory if it harms an

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

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

can be considered defamatory per se or per quod. Id. A statement is defamatory per se if its

defamatory character is obvious and apparent on its face and injury to the plaintiff’s reputation can

be presumed. Id. A statement is defamatory per quod if the defamatory character is not obvious

and apparent on its face; in that case, damage to the plaintiff’s reputation cannot be presumed and

the plaintiff must plead and prove special damages in order to recover. Id. Here, Hadley alleges

only a claim of defamation per se.

¶ 20   There are five categories of defamation per se: (1) statements imputing the commission of



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2014 IL App (2d) 130489


a crime; (2) statements imputing an infection with a loathsome communicable disease; (3)

statements imputing an inability to perform or want of integrity in performing employment duties;

(4) statements imputing a lack of ability or that otherwise prejudice a person in his or her

profession or business; and (5) statements imputing adultery or fornication. Id. Here, Hadley

argues that the statement at issue imputes the commission of a crime (child molestation).

¶ 21    However, even if a statement falls into one of the five categories of defamation per se, it

will not be actionable if it: (1) is reasonably capable of an innocent construction (id. at 502); or (2)

cannot reasonably be interpreted as stating an actual fact and is therefore protected by the first

amendment as opinion. Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 14-15 (1992);

Maxon, 402 Ill. App. 3d at 716; Hopewell v. Vitullo, 299 Ill. App. 3d 513 (1998). We proceed to

address each of these two requirements. We hold that the statement at issue is not reasonably

capable of an innocent construction and that it can reasonably be interpreted as stating an actual

fact.

¶ 22                           i. Innocent-Construction Rule

¶ 23    In construing a statement under the innocent-construction rule, a court must give the

allegedly defamatory words their natural and obvious meaning and interpret them as they appear to

have been used and according to the idea they were intended to convey to the reasonable reader.

Tuite, 224 Ill. 2d at 510. The context of a statement is critical to its meaning, and, therefore, the

court must read any allegedly defamatory words in the context of the entire document. Id. at 512.

Various courts’ applications of the innocent-construction rule “spawned a morass of case law in

which consistency and harmony have long ago disappeared.” (Internal quotation marks omitted.)

Id. at 504. Because of this, the supreme court has clarified that the innocent-construction rule

does not require a court to strain to find an unnatural innocent meaning for a statement when a



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2014 IL App (2d) 130489


defamatory meaning is far more reasonable, nor does it require a court to “espouse a naïveté

unwarranted under the circumstances.” (Internal quotation marks omitted.) Id. at 505.

¶ 24   Having explained the innocent-construction rule, the Tuite court applied the rule to the

allegedly defamatory statements in that case. One of the defendants in Tuite wrote a nonfiction

book about organized crime entitled, “The Inside Story of Murder, Unbridled Corruption, and the

Cop Who Was a Mobster.” The book discussed the plaintiff, Tuite, an attorney who allegedly

represented a mafia boss. The book said of Tuite:

       “[The mafia were] desperate to walk away from those charges and wanted to bring in Pat

       Tuite, an attorney who’d represented mob cases in the past. *** Supposedly, the

       big-shot lawyer told Aiuppa that he’d need a million-dollar retainer before he’d even walk

       in the door.

       ***

               *** They decided to go to Las Vegas *** and let their skim pay Tuite.

               [The book then described how Corbitt and others traveled to Utah, picked up duffel

       bags containing $1 million in $100 bills, and delivered the bags to an individual in

       Chicago. The book states, ‘I understand Tuite got his retainer later that night.’]

               After Tuite was on the case, all the guys were sort of semijubilant. Everybody

       figured Tuite had it all handled. To Aiuppa and his codefendants, it was like a done deal,

       like they were all going to be acquitted. So you can imagine their reaction when they were

       all found guilty ***. *** [T]hat’s why, for the life of me, I’ve never understood why Pat

       Tuite didn’t get whacked.” (Internal quotation marks omitted.) Id. at 496-97.

Tuite filed a claim for defamation per se, alleging that the statements were untrue, that they

imputed to him the commission of a criminal offense, and that they imputed a want of integrity and



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an inability to perform his professional duties.         Tuite asserted that he merely served as a

consultant to one of Aiuppa’s attorneys. He did not demand or receive a $1 million cash retainer.

To his knowledge, his payment for consulting services did not come from illegally obtained funds.

Tuite argued that “the statements falsely imply that he would use all or a portion of the cash

retainer to commit bribery or other criminal conduct to ensure that he ‘had it all handled’ and that

acquittal was ‘a done deal.’ ” Id. at 497.

¶ 25    The supreme court held that the statements were not reasonably capable of an innocent

construction. Id. at 514-15. It noted that the statements were made in the context of a book that

recounted “story after story of corruption, including within the judicial system.” (Internal

quotation marks omitted.) Id. at 512. Given this, it was “not reasonable to believe defendants

intended to convey a story about Tuite’s trial skills,” nor could a reasonable reader infer that Tuite

was hired on the basis of his legal skills. Id. at 514. In fact, the book did not discuss Tuite’s legal

skills as a basis for his clients’ confidence in their acquittals. Id. Rather, the reasonable reader

would infer that Tuite was expected to engage in bribery or payoffs to secure the acquittals: “[T]he

clear message is that Tuite was ready and able to fix the case, that he was paid to fix it, and that he

did not deliver, something that should have caused a premature end to his life.” (Internal

quotation marks omitted.) Id. at 513.

¶ 26    The court acknowledged that the defendants never explicitly accused Tuite of bribing

officials.   However, the court would not strain to find an innocent construction where a

defamatory construction was far more reasonable. Id. at 514-15. In its view, in the context of a

story about corruption, the reasonable reader would conclude that the delivery of $1 million cash,

obtained under dubious circumstances, was not solely for legitimate legal fees but was, at least in

part, to be used for bribes and payoffs to ensure acquittals. Id.



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¶ 27   Applying the innocent-construction rule to the instant case, we determine that the idea

intended to be conveyed to the reasonable reader by the words at issue—“Hadley is a Sandusky

waiting to be exposed. Check out the view he has of Empire from his front door”—is that Hadley

is a pedophile. Neither party disputes that, when the statement was posted, the Sandusky sexual

abuse scandal had dominated the national news for weeks. Sandusky was a football coach for the

famed Penn State football program. Over the course of years, Sandusky allegedly sexually

abused young boys. The degree to which Sandusky’s coaching colleagues knew of and failed to

alert the appropriate authorities of Sandusky’s criminal activities became part of the scandal. To

ignore the reference to a national story of this magnitude would be to “espouse a naïveté

unwarranted under the circumstances.” (Internal quotation marks omitted.) Id. at 505. It is

natural and obvious that calling someone “a Sandusky” while the scandal dominated the national

news showed an intent to convey the idea that the “Sandusky” had engaged in yet-to-be discovered

sexual acts with children.

¶ 28   The context of the surrounding text further supports the comparison to the Penn State

Sandusky. Just as Sandusky’s alleged actions went undetected for years, Fuboy asserted that

Hadley was “waiting to be exposed.” Additionally, while the reference to “Empire” would not

constitute defamatory language by itself, it is likely known by those in Hadley’s Freeport

community as an elementary school. To say that Hadley is “a Sandusky” while referring to

surreptitious behavior and schoolchildren is, in context, to impute that Hadley has committed a

crime. Words that impute the commission of a crime are defamatory per se in that, as a matter of

law, such words lower the subject in the eyes of his or her community.

¶ 29   It makes no difference that Fuboy did not expressly state that Hadley is a pedophile or has

engaged in sexual acts with children, just as it made no difference in Tuite that the author did not



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expressly state that Tuite committed acts of bribery. Rather, as we have stated, it is dispositive

that the words, when read in context and as intended to be conveyed to the reasonable reader,

impute the commission of a crime.

¶ 30   Likewise, it makes no difference that Sandusky had yet to be convicted when Fuboy made

the comparison. To constitute defamation per se based on imputing the commission of a crime,

the crime must be an indictable one, involving moral turpitude and punishable by death or

imprisonment, not by a fine. Jacobson v. Gimbel, 2013 IL App (2d) 120478, ¶ 27. Indeed,

words are defamatory per se if they impute the commission of a crime, regardless of whether the

subject was charged or convicted. Conviction is not a critical element. The words, “Hadley is a

Sandusky waiting to be exposed,” conveyed the same idea whether Sandusky had been convicted

or not. Although Sandusky had not yet been convicted, numerous boys, now grown, were

beginning to testify to the abuse they had allegedly suffered. The public was aware that Sandusky

was, at that point, associated with the sexual abuse of many young boys. Fuboy capitalized on

that association when he posted his statement.

¶ 31   We also reject Fuboy’s two remaining arguments, appearing throughout his brief, as to

why the statement is entitled to an innocent construction. First, Fuboy argues that the word

“Sandusky” is innocuous. According to Fuboy, the name “Sandusky” could be read to be an

ordinary last name or an Ohio port on Lake Erie. The weakness of Fuboy’s offered alternate

readings of the word “Sandusky” further convinces us that the only reasonable reading is the Penn

State Sandusky. There is no reasonable alternative.

¶ 32   Second, Fuboy argues that, even if the reasonable reader would first think of the Penn State

Sandusky, the phrase “waiting to be exposed” neutralizes the statement. Again according to

Fuboy, the phrase “waiting to be exposed” could be read to mean that Hadley has “never engaged



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in the activities such as those [of] which Mr. Sandusky had been accused, but has, in the

two[-]cents[-]worth opinion of the statement’s author, the potential for doing so in the future.”

We disagree and are of the view that the phrase “waiting to be exposed” connotes that the subject

has already acted and is presently “getting away with something.” In our view, when considering

the statement as a whole, one would need to unreasonably strain to read the statement in any of the

manners suggested by Fuboy.

¶ 33   We distinguish this case from Stone, where the court found that a statement was capable of

an innocent construction. Stone, 2011 IL App (1st) 093386, ¶ 31. There, in the context of a

heated, political Internet conversation, one poster asked the other:

       “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 and internal

       quotation marks omitted.) Id. ¶ 29.

The court ruled that a sexual connotation was not inherent in the statement, given that the poster

made it in declining an invitation to meet for political discussion. Id. ¶ 31. Here, in contrast, for

all the reasons we have discussed, no benign characterization is plausible.

¶ 34   In sum, we hold that the statement at issue is defamatory per se in that it imputes the

commission of a crime and further that it cannot reasonably be innocently construed. We reject

Fuboy’s argument, implicit throughout his brief, that defamation per se somehow requires express

accusations. Rather, as discussed, “per se” in this analysis simply means that, to the reasonable

reader, the words impute the commission of a crime. Tuite, 224 Ill. 2d at 514-15. We hold that

they do. However, our analysis does not end here.

¶ 35                               ii. Factual-Assertion Analysis



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¶ 36   We have determined that the statement in question has an obvious defamatory character in

that it imputes the commission of a crime. It cannot reasonably be innocently construed. We

must now consider, however, if the statement is nevertheless protected by the first amendment as a

statement so loose, figurative, and hyperbolic in tone and substance that no reasonable reader

would interpret it as an assertion of fact. A statement will receive first-amendment protection

from a defamation suit if it cannot be reasonably interpreted as stating actual facts about the

plaintiff. Kolegas, 154 Ill. 2d at 14-15. The factual-assertion test is therefore a restrictive one.

Id. To determine whether the statement is intended to present a fact (as opposed to an opinion)

about the plaintiff, we look to three factors: (1) whether the language of the statement has a precise

and readily understood meaning; (2) whether the context of the statement negates the impression

that the speaker intended to convey a fact; and (3) whether the statement can be objectively

verified as true or false. Maag v. Illinois Coalition for Jobs, Growth & Prosperity, 368 Ill. App.

3d 844, 851 (2006). Whether a statement is of an opinion or a fact is a question of law.

Jacobson, 2013 IL App (2d) 120478, ¶ 35.

¶ 37   Fuboy focuses a great deal of his appellate argument on this question, with particular

attention to the second factor. He contends that the forum or medium of an Internet message

board so lowers the intended seriousness of a statement that, combined with his statement’s

vagueness (which makes it difficult to prove true or false), no reasonable reader would interpret his

statement as an assertion of fact. He argues that “anonymous contributions to blogs like the one

here *** take *** vitriol to extremes and in the process undermine *** credibility” and that it is

unlikely that “any disinterested person reading the commentary is likely to take it any more

seriously than he would an anonymous scrawl on the wall of a public restroom.”

¶ 38   To make the point that certain forums or mediums of communication are not amenable to



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the transmission of factual assertions, Fuboy cites to Hustler Magazine, Inc. v. Falwell, 485 U.S.

46 (1988). In that case, Hustler magazine published a cartoon parody of an ad that played off the

phrase “first times.” Id. at 48. Hustler’s parody depicted Jerry Falwell, a nationally known

minister and political commentator, having a drunken, incestuous rendezvous with his mother in

an outhouse. Id. In small print at the bottom of the cartoon, Hustler printed the disclaimer “ ‘ad

parody—not to be taken seriously.’ ” Id. The table of contents listed the cartoon as “ ‘Fiction;

Ad and Personality Parody.’ ” Id. Falwell sued for, inter alia, defamation and for intentional

infliction of emotional distress. The jury found for Hustler on the defamation claim and for

Falwell on the claim for intentional infliction of emotional distress. Id. On appeal, the Hustler

Court did not address the defamation claim. As to the claim for intentional infliction of emotional

distress, the Court noted that Falwell was a “ ‘public figure’ ” for first-amendment purposes, and it

discussed the political cartoon’s role in public discourse and the common understanding that

caricatures were, by their nature, “ ‘deliberately distorted.’ ” Id. at 53-54, 57. The Court,

therefore, reversed the jury’s ruling on the claim for intentional infliction of emotional distress,

stating that it was not prepared to find that the state’s interest in protecting public figures from

emotional distress is sufficient to deny first-amendment protection to speech where that speech

could not be reasonably interpreted as stating actual facts. Id. at 50.

¶ 39   Fuboy’s reliance on Hustler is problematic for the obvious reason that the Court did not

address the defamation claim. Hustler is therefore helpful only for its discussion of a medium’s

role, there, a cartoon’s, in conveying political parody or hyperbole versus fact.

¶ 40   Certainly, case law across jurisdictions supports the proposition that the forum or medium

of an Internet message board, chat room, or blog is a factor that weighs in favor of finding that a

reasonable reader would not read a statement as a factual assertion. However, we must be clear



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from the beginning that there is no special factual-assertion test for statements posted on such

casual Internet forums. It is merely one factor to consider. For support, we turn to existing case

law.

¶ 41   As other courts have recognized, the Internet is a unique forum. It is certainly capable of

hosting comments meant to be taken seriously as fact, but, depending on a multitude of factors to

be considered case by case, it is also susceptible to hosting statements of hyperbole, exaggeration,

and rhetoric that were never intended to be assertions of fact. In an article later cited by many of

the leading Internet defamation cases, such as Chaker v. Mateo, 147 Cal. Rptr. 3d 496, 503 (Cal.

Ct. App. 2012), professor Lyrissa Barnett Lidsky writes:

       “First Amendment doctrine *** cannot hold ordinary John Does to the standards of

       professional journalists with regard to factual accuracy, because part of what gives the

       Internet such widespread appeal is the fact that it allows ordinary citizens to have

       informational conversations about issues of public concern. Although any approach to the

       problems posed by the new Internet libel actions must respond to the unique culture of

       message boards, the law cannot allow that culture to degenerate into a realm where

       anything goes, where any embittered and malicious speaker can lash out randomly at

       innocent targets. *** [A]ny solution to the problems posed by these new suits must be

       tuned finely enough to distinguish incivility that must be tolerated for the good of public

       discourse from the incivility that destroys public discourse.” Lyrissa Barnett Lidsky,

       Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke L.J. 855, 903-04

       (2000).

Courts have provided interesting applications and commentaries on Lidsky’s article:

       “We reject the argument [that, as a matter of law, no reasonable person would take an



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2014 IL App (2d) 130489


       Internet posting as a statement of fact]. First, we assume that one reason people use ***

       boards *** is to seek information ***. [Citation.] Even if the exchange that takes place

       on these message boards is typically freewheeling and irreverent, we do not agree that it is

       exempt from established legal and social norms. *** We would be doing a great

       disservice to the Internet audience if we were to conclude that all speech on Internet

       message boards was so suspect that it could not be defamatory as a matter of law. In

       effect, such a conclusion could extinguish any potential the forum might have for the

       meaningful exchange of ideas.” Varian Medical Systems, Inc. v. Delfino, 6 Cal. Rptr. 3d

       325, 337 (Cal. Ct. App. 2003), rev’d on other grounds, 106 P.3d 958 (Cal. 2005) (lack of

       jurisdiction).

Further:

       “Internet posts where the tone and content is serious, where the poster represents himself as

       unbiased and having specialized knowledge, or where the poster claims his posts are

       Research Reports or bulletins or alerts, may indeed be reasonably perceived as containing

       actionable assertions of fact.     [Citation.]    And while generalized comments on the

       Internet that lack any specificity as to the time and place of alleged conduct may be a

       further signal to the reader [that] there is no factual basis for the accusations, specifics, if

       given, may signal the opposite and render an Internet posting actionable. [Citations.]”

       (Internal quotation marks omitted.) Bently Reserve L.P. v. Papaliolios, 160 Cal. Rptr. 3d

       423, 431 (Cal. Ct. App. 2013)

¶ 42   On balance, however, we appreciate the idea that, when potentially defamatory statements

are published in a setting in which the audience might anticipate attempts at persuasion by the use

of epithets, fiery rhetoric, or hyperbole, the statements might well assume the character of opinion



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2014 IL App (2d) 130489


even where, in other settings, they would be considered statements of fact. Summit Bank v.

Rogers, 142 Cal. Rptr. 3d 40, 60 (Cal. Ct. App. 2012) (quoting Gregory v. McDonnell Douglas

Corp., 552 P.2d 425 (Cal. 1976)).      Again, “[c]omments that are no more than ‘rhetorical

hyperbole,’ ‘vigorous epithet[s],’ ‘lusty and imaginative expression[s] of *** contempt,’ and

language used in a ‘loose, figurative sense’ have all been accorded constitutional protection.”

(Internal quotation marks omitted.) Id. at 62 (quoting Ferlauto v. Hamsher, 88 Cal. Rptr. 2d 843,

849 (Cal. Ct. App. 1999)). Consequently, courts have found certain types of name calling,

exaggeration, or ridicule to be nonactionable opinion. Id.

¶ 43   With these principles in mind, we look to Maxon, an Illinois Rule 224 case that turned on

the application of the factual-assertion test to Internet comments.      In Maxon, the Ottawa

Publishing Company published an Internet article about the Ottawa Planning Commission’s

consideration of a proposed ordinance to allow bed-and-breakfast establishments in residential

areas. Maxon, 402 Ill. App. 3d at 707. Various pseudonymous posters responded to the article,

in the comment section. Among the allegedly defamatory comments by the same poster (known

as “FabFive”) were:

              “ ‘Way to pass the buck Plan Commission!! You have dragged this garbage out

       for over a YEAR now and despite having the majority tell you to NOT change the

       ordinance you suggest the exact opposite! How dare you! How dare you waste the

       time of the townspeople who have attended EVERY single one of these meetings to

       speak out against any changes!! But, hey, you don’t have the final word so just pass

       the buck and waste even MORE TIME. How much is Don and Janet from another

       Planet paying you for your betrayal???? Must be a pretty penny to rollover and play

       dead for that holy roller...IF this gets anywhere NEAR being passed in favor for the



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2014 IL App (2d) 130489


       Maxon CULT, you can bet your BRIBED BEHINDS there will be a mass exodus of

       homeowners from this town...who will you tax then if noone [sic] lives here?’ ” Id.

And:

               “ ‘Here’s another tidbit to consider folks, Ann brought up how it is possible that the

       Maxon’s [sic] would take the B&B and turn it into some non [sic] for profit church

       business. Well as it is the Maxon’s [sic] plan for the addition were to include a LARGE

       meeting room...Now since when did a B&B require a meeting room?

               The Maxon’s [sic] haven’t played this straight from the day they filed it. The OPC

           has not played it straight from any of the meetings regarding this. The plan should

           never had [sic] been pushed to the Town Council when several members of the

           [commission] were not even present to vote on it in the new terms that the BRIBED

           members had created...AND now noone [sic] wants to get caught actually voting on it.

           This has become a hot potato and the music is about to stop. So who gets burned?

           The MANY people who have spoken out AGAINST these changes, or the FEW

           individuals who are behind it?’ ” Id. at 707-08.

¶ 44   The plaintiffs (the Maxons) filed a Rule 224 petition naming Ottawa Publishing as a

respondent and seeking to determine the identity of FabFive. The trial court denied the petition,

finding that the literary and social context of the statements rendered them nonactionable opinions

as a matter of law. Id. at 708-09.

¶ 45   The appellate court reversed. It acknowledged the casual forum and it acknowledged that

the allegedly defamatory representations of bribery were surrounded by rhetorical hyperbole. Id.

at 716. However, it reasoned that the “mere fact” that a statement is made on the Internet does not

render it hyperbole. Id. The court noted that a false assertion of fact can be defamatory even



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when couched within apparent opinion or hyperbole. Id. at 715 (quoting Solaia Technology, LLC

v. Specialty Publishing Co., 221 Ill. 2d 558, 581 (2006)). It further noted that statements made in

the form of insinuation, allusion, irony, or question may be considered as defamatory assertions of

fact. Id. It held that the allegation that the Maxons could have gotten the ordinance passed only

by bribery could reasonably be interpreted as stating an actual fact. Id. at 716.

¶ 46   We also look to Stone, which addressed the factual-assertion test as a part of its overall

determination that the statements at issue could not support a cause of action for defamation.

Stone, 2011 IL App (1st) 093386, ¶ 29.       Again, in Stone, in the forum of an Internet message

board, the poster inquired via innuendo whether the plaintiff solicits men for sex over the Internet

(though the court held that the statement was also capable of an innocent construction). Id.

However, the context of their conversation showed that they had never met and that their

knowledge of each other was limited to their exchanges on the forum. Id. The poster had not

given the readers any reason to believe that he was capable of making a factual assertion on the

matter. Id. Therefore, the court ordered that the plaintiff was not entitled to discovery of the

poster’s identity. Id.

¶ 47   The statement in the instant case is more like those in Maxon than those in Stone. Unlike

the statements in Stone, it is not clear from the context that Fuboy has no knowledge of Hadley.

To the contrary, Fuboy knows where Hadley lives. Although here, as in Maxon, the statement at

issue uses figurative language akin to name calling, the question is whether a reader could

reasonably take the allegation as an assertion of fact. Again, the test is restrictive.

¶ 48   In this vein, we note that it is not fatal to Hadley’s claim that portions of Fuboy’s statement

carry the tone of opinion. While “pure opinions” are not actionable, “mixed opinions” can be

actionable. Mittelman v. Witous, 135 Ill. 2d 220, 241-42 (1989) (citing Restatement (Second) of



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2014 IL App (2d) 130489


Torts § 566 (1977)), abrogated on other grounds, Kuwik v. Starmark Star Marketing &

Administration, Inc., 156 Ill. 2d 16 (1993). A “pure opinion” is an opinion in form and context

that is based on (true) disclosed facts. Id. A “mixed opinion” is an opinion in form and context

that appears to have been based on (defamatory or untrue) facts that have not been stated. Id. As

explained in comment c of the Restatement:

       “A simple expression of opinion based on disclosed or assumed nondefamatory facts is not

       itself sufficient for an action of defamation, no matter how unjustified and unreasonable

       the opinion may be or how derogatory it is. But an expression of opinion that is not based

       on disclosed or assumed facts and therefore implies that there are undisclosed facts on

       which the opinion is based, is treated differently. The difference lies in the effect upon the

       recipient of the communication. In the first case, the communication itself indicates to

       him that there is no defamatory factual statement. In the second, it does not, and if the

       recipient draws the reasonable conclusion that the derogatory opinion expressed in the

       comment must have been based on undisclosed defamatory facts, the defendant is subject

       to liability.” Restatement (Second) of Torts § 566 cmt. c (1977).

The rationale behind the Restatement is this: when the facts underlying a statement of opinion are

disclosed, readers will understand that they are getting the author’s interpretation of those facts and

are therefore unlikely to construe the statement as insinuating the existence of additional,

undisclosed facts. Standing Committee on Discipline of the United States District Court for the

Central District of California v. Yagman, 55 F.3d 1430, 1439 (9th Cir. 1995).

¶ 49   Here, to whatever degree Fuboy’s comment can be thought of as an opinion, it is a “mixed

opinion.” That is, it implies the existence of defamatory facts but does not disclose them. Fuboy

calls Hadley a “Sandusky,” a figurative term for a child molester. He then states that Hadley is



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“waiting to be exposed.”      This phrase, “waiting to be exposed,” implies the existence of

undisclosed facts. Fuboy’s position that Hadley is a child molester appears to be derived from

Hadley’s past conduct, but Fuboy does not disclose what this conduct was.

¶ 50   Prior to oral argument, we asked the parties to submit similar cases from other

jurisdictions. In two of those cases, In re Application of Cohen, 887 N.Y.S.2d 424 (N.Y. Sup. Ct.

2009), and Doe I v. Individuals, 561 F. Supp. 2d 249 (D. Conn. 2008), the courts held that

figurative, loose, or hyperbolic allegations of promiscuity, such as “skank,” “whore,” and “gay

lover,” made on Internet blogs and message boards (albeit, in Cohen, with supporting pictures)

could reasonably be interpreted as allegations of fact. The Cohen and Doe courts ordered the

presuit disclosure of the anonymous posters’ identities. Cohen, 887 N.Y.S.2d at 429; Doe, 561 F.

Supp. 2d at 257. Our holding is therefore consistent with other jurisdictions’ holdings in presuit

disclosure cases weighing the viability of defamation claims against first amendment rights to

anonymity, even where those cases involved figurative language in casual forums.

¶ 51   Fuboy asks this court to look to Gilbrook v. City of Westminster, 177 F.3d 839, 862 (9th

Cir. 1999). There, the court reversed a jury verdict that the defendant had defamed the plaintiff by

calling him a “Jimmy Hoffa.” The plaintiff, like Jimmy Hoffa, was a colorful union leader and

the comment was made in the context of a heated political debate. The court held that this was

colorful, figurative rhetoric that reasonable minds would not take to be a factual assertion that the

plaintiff had committed a crime. Id.

¶ 52   Gilbrook does not persuade us to change our holding. Although on point in other ways,

Gilbrook did not involve the presuit disclosure of a potential defendant’s identity. Additionally,

because the plaintiff in Gilbrook was a colorful union leader, the allusion to Hoffa was a natural,

nondefamatory association. In contrast, in our case, we are aware of no natural, nondefamatory



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association between Hadley and Sandusky.

¶ 53   We do not herein intend to guide or predict the outcome of the underlying defamation case.

We rule only that Hadley has met his discovery burden. His proposed defamation claim would

survive a section 2-615 motion to dismiss. The complained-of statement is not reasonably

capable of an innocent construction, and it can be reasonably construed as a factual assertion.

¶ 54                               C. Fuboy’s Alternative Argument

¶ 55   Fuboy argues that, even if Hadley’s underlying defamation claim could survive a section

2-615 motion to dismiss, the trial court should not have granted the Rule 224 petition because, for

practical purposes, Hadley will not be able to bring his defamation suit within the one-year statute

of limitations.   Thus, if the underlying defamation suit would be barred by the statute of

limitations, there would be no point in revealing Fuboy’s identity.        Fuboy asserts that the

limitations period began to run, at the latest, on January 10, 2012, the date on which Hadley filed

his first complaint and therefore was certainly aware of the claim. More than a year passed before

Hadley filed his January 24, 2013, amended complaint with his Rule 224 petition. 1 In Fuboy’s

view, the complaint failed to toll the limitations period because, by referring to the defendant as

“Doe/Fuboy,” the complaint was addressed to “a fictitious person” and was therefore a nullity.

¶ 56   Though no Rule 224 case has directly addressed this argument, we find guidance in the

recent supreme court decision of Santiago v. E.W. Bliss Co., 2012 IL 111792. In Santiago, the

plaintiff intentionally brought a suit under a fictitious name (Juan Ortiz, as opposed to his legal

name, Rogasciano Santiago). After the two-year limitations period had run, the plaintiff filed an

       1
           Pursuant to section 13-217 of the Code, it could be argued that Hadley had one year to

refile from the date the federal court dismissed the case for lack of jurisdiction, which was July

2012 (not January 2012). 735 ILCS 5/13-217 (West 2012).



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2014 IL App (2d) 130489


amended complaint using his legal name. The defendants moved to dismiss, arguing that the

plaintiff’s use of a fictitious name rendered the first complaint null and void such that the amended

complaint could not relate back to the initial filing. The trial court denied the motion to dismiss,

and the appellate court reversed. The supreme court agreed with the trial court, noting that the

purpose of the relation-back provision of section 2-616(b) of the Code (735 ILCS 5/2-616(b)

(West 2010)) is to preserve causes of action against loss due to technical pleading rules.

Santiago, 2012 IL 111792, ¶ 25. Due to the satisfaction of section 2-616(b)’s requirements that

the original complaint be timely filed and that the cause of action asserted in the amended

complaint grew out of the same transaction or occurrence, the court concluded that “nothing in

section 2-616(b) would support a determination that a complaint filed using a fictitious name is a

nullity, or that a subsequently filed complaint amending the name of a plaintiff would not relate

back to the date of the filing of the original complaint.” Id. ¶ 26. The court criticized the

appellate court’s reliance on Alton Evening Telegraph v. Doak, 11 Ill. App. 3d 381 (1973), as

being off-point because that case never addressed whether a fictitious name may be used for a

natural person. Santiago, 2012 IL 111792, ¶ 27. In other words, as expanded upon by Justice

Karmeier in his special concurrence, a fictitious name is not the same as a fictitious person. Id. ¶

39. The latter does not actually exist; the former does. Filing suit as the latter (or against the

latter) renders the complaint null and void; filing suit as the former (or against the former) does

not. Id.

¶ 57   We decline Fuboy’s request that we reach the same result as Bogseth v. Emanuel, 166 Ill.

2d 507 (1995), which held that a suit filed against a fictitious person was a nullity. The Santiago

majority passed on the opportunity (expressly presented by the dissent (Santiago, 2012 IL 111792,

¶ 80 (Thomas, J., dissenting, joined by Garman, J.)) to apply Bogseth. As noted in Justice



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Karmeier’s special concurrence, the Bogseth John Doe served as a “placeholder to represent

someone [plaintiffs] thought might exist.” (Emphasis omitted.) Id. ¶ 39. That John Doe was “a

complete legal fiction.” Id.

¶ 58   In contrast, Fuboy is a real person. He has hired an attorney and has mounted a defense to

the Rule 224 petition. He is not a legal fiction. It makes sense that a suit brought against a real

person (who is participating in proceedings) but brought against a fictitious name would not be a

nullity. There are certain circumstances under which a court may allow for a real, existing party

to proceed under a fictitious name. For example, section 2-401(e) of the Code (735 ILCS

5/2-401(e) (West 2010)) authorizes the court to allow a party to proceed under a fictitious name

upon application and for good cause. Santiago, 2012 IL 111792, ¶ 56 (Burke, J., specially

concurring, joined by Freeman, J.). There is no basis to render a complaint null and void for a

litigant’s failure to make such an application when an identical complaint that had received the

court’s authorization to proceed under a fictitious name could be wholly viable. Id. ¶ 57.

Additionally, section 2-401(b) provides that the misnomer of a party is not a ground for a dismissal

of the case. Id. ¶¶ 42, 47 (Karmeier, J., specially concurring) (citing Goodkind v. Bartlett, 153 Ill.

419, 423 (1894) (in the case of a misnomer, if the summons is served on the party intended, and he

fails to appear, the judgment against him will be binding)). It would seem especially unfair in the

context of this case to render Hadley’s complaint a nullity for its use of the fictitious name of

Subscriber Doe/Fuboy, when it is Hadley who would like to ascertain the true name.

¶ 59   As an offshoot of the nullity argument, the parties debate whether the filing of a Rule 224

petition tolls the limitations period in the defamation case. We leave this question, as well as the

question of whether a defendant’s participation in the Rule 224 proceedings matters, for another

day.



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¶ 60                                   D. Remaining Matters

¶ 61    Hadley points to comments in a 2012 email written by Fagan to Hadley’s attorney, which

“warns” that, if the case proceeds and can survive a motion to dismiss, Hadley’s “sexual

reputation” will be at issue in the case. Hadley suggests that this email is an improper motion and

therefore is subject to sanctions under Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994). The

trial court denied the sanctions, but Hadley does not expressly appeal this ruling and cites no case

law. Hadley has forfeited any opportunity to seek direct relief for these comments. Ill. S. Ct. R.

341(h)(7) (eff. Feb. 6, 2013). Moreover, these comments are not part of the context of the

allegedly defamatory statement at issue in this case—they were not even publicly made. While

the email is uncivil, it has no bearing on the issue before us.

¶ 62    Finally, we address the dissent’s position that we do not have jurisdiction to review the trial

court’s order directing Comcast to provide Fuboy’s identity. The parties did not raise this issue

on review, but establishing our own jurisdiction is an affirmative duty.            See, e.g., Bloom

Township High School v. Illinois Commerce Comm’n, 309 Ill. App. 3d 163, 172 (1999).

¶ 63    The dissent would find that: (1) the appealed-from order did not result from Rule 224

proceedings and therefore did not result from an independent action so as to be appealable under

Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994); and (2) the appealed-from order is an ordinary

discovery order and therefore is not final and is not amenable to Rule 304(a). In the dissent’s

view, neither Rule 301 nor the court’s written Rule 304(a) finding provides this court with

jurisdiction.

¶ 64    A consideration of the dissent’s position requires a discussion of Rule 224 and its

counterpart, section 2-402 of the Code (735 ILCS 5/2-402 (West 2012)), which is known as the

“respondents in discovery” statute. These are the two mechanisms by which a plaintiff may



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2014 IL App (2d) 130489


petition a third-party respondent for the identity of a potential defendant. See, e.g., Roth v. St.

Elizabeth’s Hospital, 241 Ill. App. 3d 407, 416 (1993) (citing Shutes v. Fowler, 223 Ill. App. 3d

342, 345-46 (1991) (Rule 224 is meant to supplement section 2-402)). Section 2-402, which, by

default, is the procedural posture under which the dissent must believe the court entered its

“ordinary discovery order,” is used after at least one defendant has been named in an existing suit

and the plaintiff seeks the identities of other defendants. 735 ILCS 5/2-402 (West 2012).

¶ 65   Whatever the procedural irregularities with the Rule 224 petition at issue here, which we

will address below, it does not follow that the petition then must be a section 2-402 petition.

Pursuit of Fuboy’s identity under section 2-402 would be problematic. As noted, section 2-402 is

meant to discover the identity of defendants other than the defendant named in the underlying

complaint. 735 ILCS 5/2-402 (West 2012); Bogseth, 166 Ill. 2d at 513. In our case, Hadley is

trying to discover the identity of the same defendant (pseudonymously) named in the underlying

defamation complaint. Comcast is not a defendant in the defamation claim. Fuboy is the initial

defendant in the defamation claim.

¶ 66   Rule 224 is the mechanism for discovering the identity of an initial defendant, as Hadley

seeks to do. It authorizes a plaintiff to file for discovery to learn the identities of potential

defendants before filing the lawsuit. Shutes, 223 Ill. App. 3d at 345. The rule itself states that

petitions brought under it are “independent action[s].” Ill. S. Ct. R. 224 (eff. May 30, 2008). As

such, Rule 224 orders have been appealed as final judgments (presumably under Rule 301). See,

e.g., Stone, 2011 IL App (1st) 093386; Maxon, 402 Ill. App. 3d 704. Although Rule 224 was

adopted in 1989 with anticipated use in product-liability, malpractice, and negligence cases (see

committee comments), it has become the vehicle used to ascertain the legal identities of

anonymous posters in defamation cases. See, e.g., id. at 709. It is helpful that Rule 224 orders



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2014 IL App (2d) 130489


are considered final for purposes of appeal, because then the defendant can challenge a trial court’s

denial of his or her first-amendment right to anonymity.        This might otherwise be difficult for a

defendant, because Illinois has not adopted the federal collateral-order doctrine, which allows the

appeal of an order, which might not otherwise be considered final, where the order finally

determines claims of right that are separate from, and collateral to, rights asserted in the action and

are too important to be denied review and too independent of the cause itself to require that

appellate jurisdiction be deferred until the whole case is adjudicated.           Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541, 546 (1949); In re Estate of French, 166 Ill. 2d 95, 104 (1995)

(did not reach the question of whether to adopt the doctrine). A challenge to a ruling on a party’s

right to anonymity could not be deferred until an adjudication of the entire case, because

anonymity, once lost, cannot be regained.

¶ 67    This brings us to the obvious irregularities in Hadley’s Rule 224 petition: (1) Hadley did

not file it prior to filing suit; and (2) he filed it as part of a two-count complaint (rather than as an

independent action) (thus removing Rule 301 as a means by which to establish our appellate

jurisdiction). Although Rule 224 likely envisioned a one-count action, we note that, in the

abstract, there is nothing wrong with two claims being set forth in a single complaint (think of a

two-count complaint with one claim for defamation and one claim for intentional infliction of

emotional distress). Therefore, the conundrum in our case is that, although a Rule 224 order is

ordinarily a final order appealable under Rule 301, here we have a final order with a remaining

claim pending.      Therefore, a written Rule 304(a) finding is necessary.              We have this.

Accordingly, we have jurisdiction. 2

        2
            We acknowledge our recent holding in AT&T v. Lyons & Pinner Electric Co., 2014 IL

App (2d) 130577, where we held that the trial court abused its discretion in failing to consider the



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¶ 68   We disagree with the dissent that the trial court entered a section 2-402 order as opposed to

a Rule 224 order. As we have already discussed, section 2-402 is not meant to be used to uncover

the identity of the same defendant named in an existing complaint. And, in our view, the trial

court’s oral and written pronouncements come together to clarify that it intended to enter a Rule

224 order. In its April 2013 ruling, the court noted that it had instructed Hadley to restructure his

discovery request as a Rule 224 petition. In its oral finding, the court referenced its written ruling,

which presents as a Rule 224 order. Finally, at the hearing on the motion to reconsider, the parties

asked the court to clarify its holding. The court suggested both orally and in writing that the

primary basis for appeal would be Rule 301 (i.e., the traditional mechanism by which to appeal a

Rule 224 order) and that the alternative basis would be Rule 304(a) (i.e., if this court were to

determine that the ruling resulted from Rule 224 proceedings in which another claim was pending,

which we did). The court’s reference to the motion to quash the subpoena was to Fuboy’s motion,



Geier factors (Geier v. Hamer Enterprises, 226 Ill. App. 3d 372, 383 (1992)), which are used to

determine whether there is no just reason for delaying the appeal under Rule 304(a). AT&T, 2014

IL App (2d) 130577, ¶ 27. This case is distinguishable because the trial court’s motivation to “get

the case before the appellate court” was based on a consideration of a Geier factor, i.e., the

possibility that the need for review might be mooted by future developments in the trial court.

See Geier, 226 Ill. App. 3d at 383. Again, the trial court here stated: “[T]here must be some

avenue by which the defendant can seek relief without disclosure from a higher court than this

one.” (Emphasis added.) In other words, the trial court considered that the loss of anonymity

could not be undone; the issue would become moot if the case proceeded against a named

defendant.




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not Hadley’s.

¶ 69   The procedural irregularities here do not defeat jurisdiction. And Fuboy has cited no case

law suggesting that these procedural irregularities are fatal, and therefore he has forfeited any such

argument. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013); Vancura v. Katris, 238 Ill. 2d 352, 369-70

(2010). Forfeiture aside, we note that Fuboy has in no way been prejudiced by the procedural

irregularities at issue here. Rule 224 proceedings in defamation cases may proceed without any

involvement from the pseudonymous defendant. See, e.g., Stone, 2011 IL App (1st) 093386,

¶ 18. Courts have found that the pseudonymous defendant’s first-amendment right to anonymity

is sufficiently protected simply by the petitioner’s burden to show that he or she can set forth a

cause of action in a defamation suit. Id. Here, of course, Fuboy, through his attorney, did fully

participate in the proceedings and had an opportunity to argue that Hadley would not be able to set

forth a viable defamation claim.

¶ 70                                    III. CONCLUSION

¶ 71   For the aforementioned reasons, we affirm the trial court’s order.

¶ 72   Affirmed.

¶ 73   JUSTICE BIRKETT, dissenting.

¶ 74   I respectfully dissent. I would dismiss this appeal because we lack jurisdiction. We have

an obligation to independently determine whether we have jurisdiction. Department of Health

Care & Family Services v. Cortez, 2012 IL App (2d) 120502, ¶ 7. In his jurisdictional statement,

Fuboy states that jurisdiction exists “pursuant to Illinois Supreme Court Rule 303 because of the

final and appealable nature of relief granted pursuant to Supreme Court Rule 224 and also because

of the trial court’s finding pursuant to Supreme Court Rule 304(b) [sic] ***.”

¶ 75   This case was not brought as an independent action under Illinois Supreme Court Rule 224



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(eff. May 30, 2008). The trial court, after hearing arguments on Fuboy’s motion to quash the

subpoena served on Comcast for information on Fuboy’s true identity, told Hadley that it would

allow him to “amend your pleading to add a count requesting a procedure under Rule 224, and then

we’ll have to determine whether or not the pleading passes muster under a 2-16—2-615 standard.”

The trial court informed the parties that it found Stone v. Paddock Publications, Inc., 2011 IL App

(1st) 093386, to be “very instructive in the court’s decision here.”

¶ 76   Rule 224 “provides 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.” (Emphasis added.) Ill. S. Ct. R. 224, Committee Comments (Aug. 1, 1989).

¶ 77   An order authorizing presuit discovery of identification of potential defendants is final and

appealable because it adjudicates the rights of the parties and terminates the litigation. Beale v.

EdgeMark Financial Corp., 279 Ill. App. 3d 242, 245 (1996). That is clearly not the case here.

There is a pending viable complaint, which the majority acknowledges. See supra ¶¶ 55-58.

When interpreting a supreme court rule, we apply the same principles of construction that apply to

a statute. The goal of this court in interpreting a supreme court rule is to ascertain and give effect

to the intent of the drafters of the rule. In re Estate of Rennick, 181 Ill. 2d 395, 404 (1998). The

most reliable indicator of intent is the language used, which should be given its plain and ordinary

meaning. Rennick, 181 Ill. 2d at 405. Where language is clear and unambiguous, this court must

apply the language used without further aids to construction. Berry v. American Standard, Inc.,

382 Ill. App. 3d 895, 899 (2008). Rule 224 is clear. It applies only to “Discovery Before Suit to

Identify Responsible Persons and Entities.” There is no authority for allowing the plaintiff in a

pending action to use Rule 224 as a vehicle to identify responsible persons. More to the point,

there was no need whatsoever in this case. Hadley knew that Comcast had Fuboy’s identity and



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would provide the information if ordered by a court to do so. Hadley was entitled to proceed by

way of subpoena.

¶ 78   In its ruling on Fuboy’s motion to quash the subpoena and Hadley’s purported Rule 224

petition, the court said, “I have denied the motion to quash the subpoena and ordered that Comcast

Cable be directed to provide the plaintiff’s counsel with the identity and last known address of the

account number with the specified IP address, also a copy to Attorney Fagan.” No matter how

you dress it up, this is a nonfinal discovery order, which is not appealable. Norskog v. Pfiel, 197

Ill. 2d 60, 69 (2001).

¶ 79   The trial court clearly wanted this court to review its decision that disclosure of Fuboy’s

identity was warranted. The trial court remarked, “there must be some avenue by which the

defendant can seek relief without disclosure from a higher court than this one.” It acknowledged

that this case “is a bit different than a normal 224 order ***.” The trial court said that its concern

was “to get this matter before the appellate court, because I think that’s where it belongs.” The

trial court then granted Fuboy’s request to add Illinois Supreme Court Rule 304(a) language to its

order. Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010). Although Rule 304(a) allows an appeal from an

order that does not dispose of an entire proceeding, the mere presence of rule 304(a) language

cannot convert a nonfinal order into a final and appealable order. Elkins v. Huckelberry, 276 Ill.

App. 3d 1073, 1075 (1995). “Preliminary orders in an action pending in this State are not final

and appealable for the reason that they can be reviewed on appeal from the final judgment in the

case.” Eskandani v. Phillips, 61 Ill. 2d 183, 194 (1975). Discovery orders, in both civil and

criminal actions, frequently require parties to disclose relevant matters that might otherwise be

considered private, yet the party challenging such an order must either wait until final judgment to

appeal or test the order by being found in contempt. See J.S.A. v. M.H., 384 Ill. App. 3d 998, 1009



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(2008).

¶ 80      During arguments on Hadley’s amended complaint and Fuboy’s amended motion to quash

the subpoena, the trial court asked Hadley’s counsel whether, assuming “the court orders the

subpoena to be pursued against Comcast and basically grants the Rule 224 petition, do you agree

with [Fuboy’s counsel] that that is an order that is subject to appeal?” Counsel answered that he

did not think that the order was appealable either as a Rule 224 order or under Rule 304(a). The

trial court commented that under “normal circumstances” an order “under 224 would resolve the

controversy concerning 224.” Fuboy’s counsel concluded his arguments by saying, “[b]ut if this

is, indeed, an issue of constitutional dimension as far as my client is concerned, then there has to be

a due process right in order to protect it. And if there’s not, then we’re making new law here.”

Hadley’s counsel responded by saying that Fuboy’s rights had been protected; he had his hearing

and disclosure had been ordered. Counsel noted that Fuboy conceded “that defamation per se is

not speech protected under the First Amendment.”

¶ 81      The fact that there are important rights at stake here, Fuboy’s first-amendment right of

expression and Hadley’s right to a remedy for a perceived wrong, does not justify departure from

well-settled rules of statutory construction. Neither does the fact that the trial court questioned its

own judgment. These same circumstances arise every day in litigation, in both civil and criminal

cases. The majority suggests that I must believe that section 402 is the procedural posture under

which the trial court entered its order. See supra ¶¶ 64-65. Such is not the case. It is clear to me

that the trial court was simply looking for a jurisdictional hook for defendant to have an immediate

appeal.

¶ 82      The supreme court has explained that Rule 304(a) was meant “ ‘to discourage piecemeal

appeals in the absence of a just reason and to remove the uncertainty which existed when a final



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judgment was entered on fewer than all of the matters in controversy.’ ” In re Marriage of

Gutman, 232 Ill. 2d 145, 151 (2008) (quoting Marsh v. Evangelical Covenant Church of Hinsdale,

138 Ill. 2d 458, 465 (1990)). By interpreting Rule 224 to include postsuit appeals, the majority’s

reasoning would encourage more appeals, unnecessarily prolonging litigation and adding expense

to the parties. While I might agree with the majority’s analysis on the issues, we should not have

reached the merits and I therefore respectfully dissent.




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