Rosner v. Field Enterprises, Inc. (205 Ill. App. 3d 769, 1990)

JUSTICE MANNING

delivered the opinion of the court:

The present matter comes before this court as a permissive interlocutory appeal filed by defendants, Field Enterprises, Inc., former publisher of the Chicago Sun-Times, and several of its employees: Pamela Zekman, Larry Cose, Gilbert Jimenez, Gene Mustain, Pat Smith, Norma Sosa, John H. White and Chris Bockelmann (defendants), pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308). The appeal primarily concerns the issue of whether or not the actual malice standard applies to the underlying libel action. In the libel suit, plaintiff, Mitchell M. Rosner, a podiatrist, seeks damages against defendants, maintaining that he has been defamed in his profession as a result of a series of newspaper articles and photographs which were published by defendants in February 1980. The relevant facts are as follows.

Commencing in 1979, the defendants, Chicago Sun-Times, along with WLS-TV, conducted an eight-month investigation on automobile accident insurance fraud. Reporters and investigators from the two news organizations, with the cooperation of the Chicago police department and Allstate Insurance Company, posed as noninjured or only slightly injured accident victims and sought the treatment and services of various “accident chasers,” doctors, lawyers, clinics, chiropractors and hospitals.

On October 25, 1979, as part of the investigation, defendants Pat Smith and Larry Cose, posing as victims of an automobile accident, went to the law offices of Harold Pope. Mr. Pope referred them to Dr. B. E. Graham, who was located at 71st and Crandon — The Holy Name Medical Center.

Later that day, Cose and Smith visited the Holy Name Medical Center. The receptionist gave them some medical forms to complete and then led the reporters to the clinic’s waiting area. Next, they went one at a time into Dr. Rosner’s office, who reviewed the forms, tested their reflexes and inquired if they had any foot problems. Rosner then told the reporters that another doctor would see them shortly. The reporters were thereafter called individually into a separate examination room by Dr. Betty Graham, where she examined and sent them to the office of Dr. Patrick Maloney. Allegedly, Dr. Maloney examined the reporters, instructed them to take time off from work and prescribed heat treatments for them.

On December 3, 1979, Gilbert Jimenez accompanied Willie Chriesman and Gene Mustain, who was using the pseudonym “John White,” to the law offices of Basil Elias to see John Rusniak. Mr. Rusniak interviewed the reporters and then purportedly telephoned Dr. Graham and told her that Chriesman, Mustain and two other persons had been involved in a car accident.

Later that afternoon, Chriesman went to the Holy Name Medical Center. First, he completed a medical form. After a brief wait, Dr. Rosner called him into an examination room, reviewed his chart and tested his reflexes. Then, Dr. Graham examined Chriesman and advised him to come in every day for treatments. Dr. Maloney then called Chriesman into his office and told him to come in every day for treatments.

The next day, December 4, 1979, Mustain and Pat Smith, who had altered her appearance and used the pseudonym “Ann Connor,” visited Holy Name Medical Center. After a few minutes, Dr. Rosner called Mustain into his examination room. Rosner asked Mustain about the accident and his injuries, tested his reflexes and told him that Dr. Graham would see him next.

Then, Dr. Rosner called Smith into his examination room. He inquired if she had hurt her feet or legs and tested her reflexes. Allegedly, “Dr. Rosner felt Pat Smith’s foot through her boot during this ‘examination.’ ” He then told Smith that she would see Dr. Graham next. Dr. Graham and Dr. Maloney conducted the examinations on Smith and prescribed treatments.

Following the investigation, the defendants published a series of their findings on automobile accident insurance fraud in the newspaper between February 10, 1980, and February 27, 1980. The entire series of text and photographs, along with additional material, was then published by the Chicago Sun-Times as a special reprint booklet on March 11, 1980.

The newspaper articles and photograph upon which the complaint was based appeared in the Chicago Sun-Times newspapers on February 15 and 19, 1980. The February 15, 1980, article described the result of “an eight-month investigation of automobile insurance fraud, part of a series known as ‘The Accident Swindlers.’ ” Although there was no specific mention of plaintiff in this article, next to the article was published a photograph in which a portion of the plaintiff’s name and specialty were prominently displayed on a building in the background. The photograph itself pictures two men standing next to the building and the caption thereunder reads:

“SHOP TALK? Jack Curtin (right) talks with Lloyd Washington outside Holy Name Medical Center, 7101 S. Crandon. Curtin runs a lawyer’s accident office on the South Side and this series has already reported how he coaches accident ‘victims’ to exaggerate injuries in order to inflate insurance settlements. Washington is a known ambulance chaser.”

The February 19, 1980, article, inter alia, made the following references to plaintiff:

(1) “Things weren’t any more professional at Holy Name Medical Center, 71st and Crandon, where a podiatrist ‘examined’ one reporter’s feet by feeling through her boots.”

(2) “All were either examined or asked about foot problems by a podiatrist, Dr. Mitchell M. Rossner [sic]. He sent each along to chiropractor Betty E. Graham, a 30-year-old Haitian who performs the actual examinations.”

(3) “The Rossner [sie]-Graham-Maloney triple threat went into action again when Chriesman, Smith and Mustain returned to Holy Name more than a month later.”

(4) “When Sun-Times and WLS reporters visited Holy Name several weeks later, Maloney refused to see them. Graham, Dekens, and Rossner [sic] were said to be unavailable.”

Plaintiff filed an original and first amended complaint. After motions to strike and dismiss were sustained, plaintiff filed his second amended complaint, which is currently pending before the court below. In response thereto, defendants filed an answer, affirmative defenses, and thereafter, a motion for judgment on the pleadings. Both parties filed memoranda in support of and in response to the motion for judgment on the pleadings.

After the briefings, Judge O’Brien in a December 1982 opinion, denied the motion for judgment on the pleadings as to all publications, excepting the February 15, 1980, publication, as of the date of its original publication.

In August 1986, after the close of discovery, defendants moved for summary judgment. In support of their motion, they filed a memorandum of law, affidavits of six reporters and portions of deposition transcripts. Defendants argued that this case is governed by the actual malice standard and that the record disclosed that plaintiff could not, as a matter of law, prove actual malice. In January 1987, plaintiff filed his memorandum of law in response to the summary judgment motion. However, no affidavits or other materials were filed in support of the response. In February 1987, the circuit court denied defendants’ motion for summary judgment, finding that the actual malice standard did not apply to this case and that there was a genuine issue of material fact as to whether or not defendants had reasonable grounds to believe that the publications as to plaintiff were true. On April 9, 1987, the circuit court denied defendants’ motion for reconsideration of the order denying summary judgment but granted their alternative motion for a finding pursuant to Rule 308. The proceedings in the circuit court were stayed pending resolution of this matter on appeal.

To take an appeal under Rule 308, which governs permissible interlocutory appeals, it is necessary for the trial court to make a written finding that its order involves a question of law as to which there is substantial ground for a difference of opinion and that an immediate appeal would materially advance the ultimate termination of litigation. (See 107 Ill. 2d R. 308(a); Moore v. Mankowitz (1984), 127 Ill. App. 3d 1050, 469 N.E.2d 1133.) The circuit court having made the requisite finding, this court accepted the interlocutory appeal to review the questions certified to us.

The two questions of law certified by the circuit court pursuant to Rule 308 for our review are:

(1) “Whether Farnsworth v. Tribune Co. (1969), 43 Ill. 2d 286, 253 N.E.2d 408 and Chapski v. The Copley Press (1982), 92 Ill. 2d 344, 422 N.E.2d 195, require the application of the ‘actual malice’ standard to this libel suit on the ground that it concerns a newspaper story about Dr. Rosner’s professional practicef,]” and

(2) “If the actual malice standard does not apply, whether there is a genuine issue of material fact presented as to whether the defendants had reasonable grounds for their belief in the truth of their publication where the defendants have filed uncontradicted affidavits and deposition transcripts in support of their motion for summary judgment, and the plaintiff has rested on the contrary allegations of his second amended complaint!.]’’

For the following reasons, we affirm the trial court’s order denying the defendants’ motion for summary judgment. The stay of proceeding heretofore entered is lifted, and the cause is remanded to the trial court for further proceedings.

We note from the outset that our analysis and decision in this matter, to a great extent, begin with the United States Supreme Court’s decision in Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997, and concern the inquiry of “what degree of fault a private person bringing a defamation action against a media defendant must prove in order to recover actual damages under [Illinois] State constitutional and [common] law, given the fact that the Supreme Court left to the States the choice of which staiidard of fault was to be imposed in defamation actions by private persons seeking actual damages from media defendants.” (Annot., State Constitutional Protection of Allegedly Defamatory Statements Regarding Private Individual, 33 A.L.R. 4th 212, 215-16 (1984); see also Gertz, 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997.) As outlined in the annotation, this question has arisen on several occasions in the various jurisdictions; and while the standards of fault which have evolved fall into two or three classes, the rationales relied upon by the various courts for using such standards have been diverse.

Thus, in order to address properly the questions of law certified to this court on appeal, it is necessary that we first preface our analysis with a brief historical discussion on the law of defamation. We will review our Federal court decisions and then comment on the law of defamation in other State jurisdictions in general and, in particular, the law of defamation in Illinois. Next, we will analyze the Supreme Court decision in Gertz (418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997) and the Illinois Supreme Court decisions in Farnsworth v. Tribune Co. (1969), 43 Ill. 2d 286, and Chapski v. Copley Press (1982), 92 Ill. 2d 344. We will review these cases in conjunction with the other cases relied upon by the parties and the circuit court in rendering its decision denying summary judgment on behalf of defendants. In so doing, we expect to shed some light upon the confused state of the law of defamation in Illinois as it relates to the applicable standard of fault required in libel actions brought by private individuals wherein the subject matter involves an issue of public concern. Moreover, we hope to clarify and reconcile the recent divergent holdings of this court in defamation cases as they relate to the interrelated issues of public person versus private person, the application of the actual malice standard versus a negligence standard, the applicability and relevance of conditional privileges, especially that of “fair comment” after Gertz, and the application of the innocent construction rule.

Finally, we must review the appropriateness and efficacy of the summary judgment order entered by the circuit court. Regardless of which standard of fault and proof governs this case, i.e., negligence or actual malice, we still must determine whether or not there exists a genuine issue of material fact to support the circuit court’s denial of the motion. We then will be able to conclude whether the circuit court’s decision was proper under the circumstances.

I. HISTORICAL BACKGROUND

A. FEDERAL CASES

Initially, the United States Supreme Court took the view that statements which were considered libelous under State law were not protected under the first amendment to the United States Constitution. (See Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 86 L. Ed. 2d 1031, 62 S. Ct. 766. See also Beauharnais v. Illinois (1952), 343 U.S. 250, 96 L. Ed. 919, 72 S. Ct. 725.) The libel laws of the States traditionally had consisted of common-law principles. In most States, an alleged defamatory statement was actionable, subject only to the defenses of truth or privilege, and thus, it was understood that the common law provided strict liability to defamatory falsehoods. See generally Beauharnais, 343 U.S. 250, 96 L. Ed. 919, 72 S. Ct. 725.

However, in the landmark decision of New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710, the Court for the first time, in departing from the common law, determined that State defamation actions were governed and limited by the freedom of the press guarantees of the first amendment. Plaintiff there, a police commissioner for Montgomery, Alabama, had alleged that the New York Times libeled him in relation to his official conduct. He was awarded a $500,000 judgment. The Supreme Court reversed the award and held that pursuant to the first and fourteenth amendment, “[t]he Constitutional guarantees require *** a Federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” (New York Times, 376 U.S. at 279, 11 L. Ed. 2d at 706, 84 S. Ct. at 726.) Hence, the Supreme Court limited the reach of State defamation laws to bring them in line with the goal of the free speech provision of the first amendment because the Court feared that the common-law standard of strict liability would have a chilling effect on protected speech. The Court created what is now known as a constitutional standard of liability for libel actions brought by public officials. Accordingly, a public official, in order to recover damages in a defamation action, is required to prove constitutional malice, i.e., that the defendant either knew his statement was false, or recklessly disregarded whether the statement was false or not.

In Curtis Publishing Co. v. Butts and Associated Press v. Walker (1967), 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975, the Federal rule of proof of actual malice was extended to include libel actions brought by persons who were “public figures.” The Court there expressed the view that the purpose behind the first amendment’s guarantees of free speech and free press was to protect robust discussion of “all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.” (Butts, 388 U.S. at 147, 18 L. Ed. 2d at 1106, 87 S. Ct. at 1987.) The Court there determined that a public figure is one who “may have attained that status by position alone *** [or] by his purposeful activity amounting to a thrusting of his personality into the ‘vortex’ of an important public controversy.” (Butts, 388 U.S. at 155, 18 L. Ed. 2d at 1111, 87 S. Ct. at 1991.) The Court found that a college football coach and a retired army general were public figures based upon the rationale that any person who had voluntarily embroiled him or herself in the public debate of an issue of public interest was to be considered a public figure.

However, since Butts and Walker, the Supreme Court has narrowed the definition of “public figure” to two classes. Those classes include: (1) persons who achieve such a degree of general fame and notoriety in the community that they are considered public figures for all purposes and in all contexts; and (2) persons who either have voluntarily injected themselves into a public controversy in order to influence the resolution of the issues involved, or have been drawn into such a controversy, thus becoming public figures for a limited range of issues. Gertz, 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997.

Four years after the Butts case, in Rosenbloom v. Metromedia, Inc. (1971), 403 U.S. 29, 29 L. Ed. 2d 296, 91 S. Ct. 1811, a plurality of the United States Supreme Court expressed the view that the actual malice standard should be extended to “all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.” (Rosenbloom, 403 U.S. at 44, 29 L. Ed. 2d at 312, 91 S. Ct. at 1820.) The Court rationalized that the actual malice standard should apply to all suits if the allegedly libelous statement related to a plaintiff’s involvement in a matter of public or general interest.

However, a few years later, the Rosenbloom view was criticized and, in essence, overturned by a majority of the Supreme Court in Gertz (418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997), wherein the Court found that the “general or public interest” test adopted by Rosenbloom need not be applied to defamation actions brought by private individuals. The principal issue there was whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor public figure may claim a constitutional privilege against liability for the injury inflicted by the statements.

In Gertz, plaintiff, a well-known lawyer locally, represented the family of a youth who had been killed by a policeman. Defendant published a magazine article charging that plaintiff was a communist and that he helped to frame the officer. The United States District Court for the Northern District of Illinois found that privilege protected discussion of any public issue without regard to the status of the person defamed. That conclusion anticipated the reasoning of a plurality of the Supreme Court in Rosenbloom. The Court of Appeals for the Seventh Circuit agreed with the district court that the respondent could assert this constitutional privilege because the article concerned a matter of public interest, again relying on Rosenbloom. However, the United States Supreme Court reversed the decision.

The Gertz Court begins with an explanation of the dichotomy faced by courts in its statement that “[t]his Court has struggled for nearly a decade to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment.” (Gertz, 418 U.S. at 325, 41 L. Ed. 2d at 797, 94 S. Ct. at 3000.) The Court recognized the competing interests of the freedom of the press and the consideration not to become involved in media self-censorship on the one hand, and the States’ interest of protecting private persons in their good names and reputations on the other hand.

However, in the final analysis Gertz not only rejected the Rosenbloom rationale but also developed new standards of liability and rules of damages for libel actions brought by private persons against media defendants. By establishing two levels of constitutional protection, Gertz provided for some reduction of safeguards. The Court expressly affirmed the New York Times’ actual malice rule as it applied to public officials and public figures but held that the “state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them.” (Gertz, 418 U.S. at 343, 41 L. Ed. 2d at 807, 94 S. Ct. at 3009.) The Court further commented that the States should retain substantial latitude in their efforts to enforce a legal remedy for defamation which injured the reputation of a private person (Gertz, 418 U.S. at 345, 41 L. Ed. 2d at 808, 94 S. Ct. at 345-46), and concluded that “the extension of the New York Times test proposed by the Rosenbloom plurality would abridge this legitimate State interest to a degree that we find unacceptable.” (Gertz, 418 U.S. at 346, 41 L. Ed. 2d at 809, 94 S. Ct. at 3010.) Accordingly, the Court stated:

“We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual. This approach provides a more equitable boundary between the competing concerns involved here. It recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation. At least this conclusion obtains where, as here, the substance of the defamatory statement ‘makes substantial danger to reputation apparent.’ ” Gertz, 418 U.S. at 347-48, 41 L. Ed. 2d at 809-10, 94 S. Ct. at 3010, quoting Butts, 388 U.S. at 155, 18 L. Ed. 2d at 1111, 87 S. Ct. at 1991.

Hence, Gertz holds that with respect to private persons, the strict rule of New York Times does not apply, and the States are free to define the standard of liability, provided it involves some degree of fault. (Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735, 752, 415 N.E.2d 434 (an analysis of this court’s interpretation of Gertz).) However, the private individual who does not prove actual malice is limited to compensation for actual injury. Gertz, 418 U.S. at 350, 41 L. Ed. 2d at 811, 94 S. Ct. at 3012.

Consequently, the Gertz “decision stands today as the Court’s most complete treatment of libel actions brought by private individuals against media defendants. Its significance cannot be overstated.” (Newell, 91 Ill. App. 3d at 753.) In addition, as will be more fully discussed below, the conclusion that defendants ask us to reach in the present case is precisely the conclusion of Rosenbloom, which was rejected by Gertz. We believe that Gertz stands for the proposition that the public interest privilege advocated by defendants here is required by neither the constitution nor State common-law principles of defamation law.

In the recent decision of Philadelphia Newspapers, Inc. v. Hepps (1986), 475 U.S. 767, 89 L. Ed. 2d 783, 106 S. Ct. 1558, the Supreme Court expanded upon the Gertz analysis and found that where a newspaper publishes speech involving public concern about a private person, the plaintiff cannot recover damages without also showing that the statements at.issue are false. (Hepps, 475 U.S. at 778, 89 L. Ed. 2d at 793, 106 S. Ct. at 1564.) The Court further held that “the common law’s rule on falsity — that the defendant must bear the burden of proving truth — must similarly fall here to a constitutional requirement that the plaintiff bear the burden of showing falsity.” (Hepps, 475 U.S. at 776, 89 L. Ed. 2d at 792, 94 S. Ct. at 1563.) However, since 1975, our United States Supreme Court has not overruled or rejected those principles enunciated in Gertz which concern rules of liability and damages in defamation actions brought by private individuals.

As a result of these Supreme Court decisions, the common-law principles of our States have been reshaped in two specific areas in order to conform to the goals of the first amendment. The first area involves whether the plaintiff is a public official or public figure or a private person. The second area is whether the alleged defamatory statement is of public concern or interest. In the first situation, the constitution supplants the standard of the common law and requires that the plaintiff prove actual malice. However, when the speech is of public concern or importance and the plaintiff is a private person, as in Gertz, the constitution still supplants the principle of the common law, but, the constitutional requirements are less forbidding than when the plaintiff is a public figure and the speech is of public concern. Hepps, 475 U.S. at 775, 89 L. Ed. 2d at 792, 106 S. Ct. at 1563.

Accordingly, it is against this backdrop of Federal decisions that the common-law rules of defamation have substantially changed in the past quarter of a century. As noted previously, Gertz left it up to the States to impose their own standard of liability. Consequently, we are well aware of the fact that we are governed by the law of Illinois. However, in the interest of shedding some light upon the diversity of opinions in Illinois, and especially those of our own court, we will briefly review the law of the various jurisdictions.

B. OTHER JURISDICTIONS

In our review of " the law of the several jurisdictions, we will limit our consideration to the course of the decisions and law since Gertz. Accordingly, our research has revealed the following. Immediately after Gertz was decided, two States extended the “actual malice” standard to cover private plaintiffs involved in matters of public concern. See Walker v. Colorado Springs Sun, Inc. (Colo. 1975), 188 Colo. 86, 538 P.2d 450; AAFCO Heating & Air Conditioning Co. v. Northwest Publications, Inc. (1974), 162 Ind. App. 671, 321 N.E.2d 580.

At least one jurisdiction, New York, adopted a “grossly irresponsible conduct” standard of liability. (See Chapadeau v. Utica Observer-Dispatch, Inc. (1975), 38 N.Y.2d 196, 341 N.E.2d 569, 379 N.Y.S.2d 61.) The court in Chapadeau held that a private person suing a media defendant for statements arguably within the sphere of legitimate public interest could recover only if he established, by a preponderance of the evidence, that the media defendant acted in a “grossly irresponsible” manner. The court reasoned that under Rosenbloom, it had previously extended the constitutional privilege, which required that a plaintiff who was involved in a matter of public interest had to prove actual malice, in order to recover from a publisher of a libelous statement concerning him. However, the court further noted that inasmuch as Gertz had decided that a less demanding standard than actual malice was permissible, the New York court would now adopt the “gross irresponsibility” standard.

During the 1970’s, the majority of the State courts to rule on the issue, however, in light of Gertz, chose some type of middle ground and adopted negligence as the standard of fault or liability in a defamation action brought by a private person.

For example, in Foster v. Laredo Newspapers, Inc. (Tex. 1976), 541 S.W.2d 809, the supreme court of Texas was afforded the oppor-

i tunity to interpret the rulings of the United States Supreme Court which established that differing standards of care were applicable to various classes of defamation plaintiffs. The court there initially found that the summary judgment evidence failed to establish that plaintiff was a “public figure” or that the allegedly libelous statements related to his official conduct. The court then went on to determine whether the plaintiffs right of recovery against the media defendant as a private person depended upon the New York Times standard. In deciding that the actual malice standard did not apply, the Foster court reviewed Gertz and concluded that the effect of the ruling was to sanction a simple negligence standard as being in compliance with the minimum requirements of the first and fourteenth amendments.

The trend which began in the 1970’s immediately following Gertz continued into the next decade. Based upon our research, we found that only a couple of States chose to join with Colorado and Indiana in applying the actual malice standard to defamation actions against media defendants where the libelous statements involved a matter of public or general concern and the plaintiff was a private person. (See Gay v. Williams (D.C. Alaska 1979), 486 F. Supp. 12 (applying Alaska law); Sisler v. Gannett Co. (1986), 104 N.J. 256, 516 A.2d 1083.) We also determined that other States have vacillated on the issue. Compare Bichler v. Union Bank & Trust Co. (6th Cir. 1984), 745 F.2d 1006 (applying Michigan law), with Rouch v. Enquirer & News (1984), 137 Mich. App. 39, 357 N.W.2d 794; compare Gazette, Inc. v. Harris (1985), 229 Va. 1, 325 S.E.2d 713, with Great Coastal Express, Inc. v. Ellington (1985), 230 Va. 142, 334 S.E.2d 846.

New York has continued to apply the “gross irresponsibility” standard in such cases. See Karaduman v. Newsday, Inc. (1980), 51 N.Y.2d 531, 416 N.E.2d 557; Ortiz v. Valdescatilla (N.Y. App. Div. 1984), 102 A.D.2d 513, 478 N.Y.S.2d 895.

However, like earlier decisions, the great majority of the States either have chosen to continue to use the negligence standard or have since adopted the negligence standard of fault in a defamation action involving a private plaintiff against a media defendant. The State courts generally have found that such a plaintiff is entitled to recover if he establishes that the defendant was negligent in publishing false and defamatory statements about him. See, e.g., Antwerp Diamond Exchange of America, Inc. v. Better Business Bureau of Maricopa County, Inc. (1981), 130 Ariz. 523, 637 P.2d 733; Little Rock Newspapers, Inc. v. Dodrill (1983), 281 Ark. 25, 660 S.W.2d 933; Brown v. Kelly Broadcasting Co. (1989), 48 Cal. 3d 711, 257 Cal. Rptr. 708, 771 P.2d 406; Gannett Co. v. Re (Del. 1985), 496 A.2d 553; Phillips v. Eve ning Star Newspaper Co. (D.C. 1980), 424 A.2d 78; Miami Herald Publishing Co. v. Ane (Fla. 1984), 458 So. 2d 239; Diamond v. American Family Corp. (1988), 186 Ga. App. 681, 368 S.E.2d 350; Triangle Publications, Inc. v. Chumley (1984), 253 Ga. 179, 317 S.E.2d 534; Kohn v. West Hawaii Today, Inc. (1982), 65 Haw. 584, 656 P.2d 79; Jones v. Palmer Communications, Inc. (Iowa 1989), 440 N.W.2d 884; Vinson v. Linn-Mar Community School District (Iowa 1984), 360 N.W.2d 108; McCall v. Courier-Journal & Louisville Times Co. (Ky. 1981), 623 S.W.2d 882; Schrottman v. Barnicle (1982), 386 Mass. 627, 437 N.E.2d 205; Rouch v. Enquirer & News (1986), 427 Mich. 157, 398 N.W.2d 245; Jadwin v. Minneapolis Star & Tribune Co. (Minn. 1985), 367 N.W.2d 476; Brewer v. Memphis Publishing Co. (5th Cir. 1980), 626 F.2d 1238 (applying Mississippi law); Hyde v. City of Columbia (Mo. Ct. App. 1982), 637 S.W.2d 251; Madison v. Yunker (1978), 180 Mont. 54, 589 P.2d 126; McCusker v. Valley News (1981), 121 N.H. 258, 428 S.E.2d 493; Marchiondo v. Brown (1982), 98 N.M. 394, 649 P.2d 462; Walters v. Sanford Herald, Inc. (1976), 31 N.C. App. 233, 228 S.E.2d 766; Lansdowne v. Beacon Journal Publishing Co. (1987), 32 Ohio St. 3d 176, 512 N.E.2d 979; Anson v. Erlanger Minerals & Metals, Inc. (Okla. App. 1985), 702 P.2d 393; Bank of Oregon v. Independent News, Inc. (1985), 298 Or. 434, 693 P.2d 35, rehearing denied, en banc (1985), 298 Or. 819, 696 P.2d 1095; Rutt v. Bethlehems’ Globe Publishing Co. (1984), 335 Pa. Super. 163, 484 A.2d 72; Jones v. Sun Publishing Co. (1982), 278 S.C. 12, 292 S.E.2d 23; Memphis Publishing Co. v. Nichols (Tenn. 1978), 569 S.W.2d 412; Seegmiller v. KSL, Inc. (Utah 1981), 626 P.2d 968; Great Coastal Express, Inc. v. Ellington (1985), 230 Va. 142, 334 S.E.2d 846; Caruso v. Local Union No. 690 (1987), 107 Wash. 2d 524, 730 P.2d 1299; Crump v. Beckley Newspapers, Inc. (W. Va. 1983), 320 S.E.2d 70; Denny v. Mertz (1982), 106 Wis. 2d 636, 318 N.W.2d 141.

The majority of these jurisdictions have adopted the negligence standard employed by section 580B of the Restatement (Second) of Torts, which states:

“One who publishes a false and defamatory communication concerning a private person, or concerning a public official or public figure in relation to a purely private matter not affecting his conduct, fitness or role in his public capacity, is subject to liability, if, but only if, he

(a) knows that the statement is false and that it defames the other,

(b) acts in reckless disregard of these matters, or

(c) acts negligently in failing to ascertain them.” (Restatement (Second) of Torts §580B (1977).)

In comment c to section 580B, the Restatement notes that while the Supreme Court’s decision in Gertz requires some showing of fault with respect to private persons, the Gertz decision also states that a showing of negligence would be sufficient. The Restatement postulates that in view of the fact that the common-law rule had been one of strict liability, most State courts would adopt the least burdensome standard of fault permissible, i.e., negligence. Restatement (Second) of Torts §580B, comment c (1977).

The rationale for adopting the negligence standard falls into four general areas. “The first, and most common theme, is that ‘reputational interests command constitutional protection.’ The second is that nothing in the state law requires a stricter standard. The third [rationale] *** is that the private person who has been defamed should be allowed recovery as easily as constitutionally permissible. The fourth theme is that the press can be demogogic and ought not be given additional power.” KARK-TV v. Simon (1983), 280 Ark. 228, 238, 656 S.W.2d 702, 707.

Having reviewed the law of defamation in other jurisdictions, we now turn to the law of defamation in Elinois. Unlike our discussion above, we will review the common-law principles prior to Gertz and as modified by the constitutional limitations and rules announced therein.

II. ILLINOIS LAW

In Illinois, a statement is considered defamatory if it impeaches a person’s integrity, human decency, respect for others or reputation and thereby lowers that person in the eyes of the community (see Cerveny v. Chicago Daily News Co. (1891), 139 Ill. 345, 354, 28 N.E.2d 692), as the gravamen of an action for defamation is damage to the plaintiff’s reputation in the eyes of other persons. (See Harris Trust & Savings Bank v. Phillips (1987), 154 Ill. App. 3d 574, 578, 506 N.E.2d 1370.) Each case must be decided upon its own facts because there is no clear rule for determining whether language is defamatory. See generally Bruck v. Cinotta (1977), 56 Ill. App. 3d 260, 371 N.E.2d 874. See also Van Duyn v. Smith (1988), 173 Ill. App. 3d 523, 527 N.E.2d 1005.

All distinctions between libel and slander for the most part have been abolished, and the rules which apply to slander likewise apply to libel. Defamatory statements are classified as either libel per se or per quod. (See Cook v. East Shore Newspapers, Inc. (1945), 327 Ill. App. 559, 64 N.E.2d 751.) Libel per se is generally defined as words which are so obviously and naturally harmful to the person that proof of their injurious character is unnecessary. See Reed v. Albanese (1966), 78 Ill. App. 2d 53, 223 N.E.2d 419.

Under Illinois common law, our courts have determined that there are four categories of words which constitute libel per se: (1) those imputing the commission of a criminal offense; (2) those imputing infection with a communicable disease of any kind which, if true, would tend to exclude one from society; (3) those imputing inability to perform or want of integrity in the discharge of duties of office or employment; and (4) those prejudicing a party in his profession or trade. (See Bontkowski v. Chicago Sun-Times (1969), 115 Ill. App. 2d 229, 252 N.E.2d 689.) Once it is determined that written or printed words are actionable per se or libelous per se, plaintiff has the right to a cause of action for defamation without proof of malice and without a showing of special damages, as both malice and damages are presumed. (Lorillard v. Field Enterprises, Inc. (1965), 65 Ill. App. 2d 65, 78, 213 N.E.2d 1. Accord Fried v. Jacobson (1983), 99 Ill. 2d 24, 457 N.E.2d 392.) A writing constitutes libel per quod if it requires an innuendo to give it a libelous meaning, in which case plaintiff must allege and prove special damages to sustain the cause of action. See Whitby v. Associates Discount Corp. (1965), 59 Ill. App. 2d 337, 207 N.E.2d 482.

However, an exception has been carved out wherein words that would otherwise be actionable may be considered as privileged. (See Larson v. Doner (1961), 32 Ill. App. 2d 471, 178 N.E.2d 399.) A privileged communication is one which because of the occasion on which or the circumstances under which it is made is not regarded as defamatory and actionable. (Judge v. Rockford Memorial Hospital (1958), 17 Ill. App. 2d 365, 376-77, 150 N.E.2d 202.) Privileged communications are divided into two classes: (1) absolutely privileged communications and (2) conditionally or qualified privileged communications. See Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345, 243 N.E.2d 217.

The classification of absolutely privileged communications is narrow and is almost exclusively limited to legislative and judicial proceedings and other acts of the State. (See Cook v. East Shore Newspapers, Inc. (1945), 327 Ill. App. 559, 64 N.E.2d 751.) Conditionally or qualified privileged communications are recognized under the Illinois common law where there is a showing: (1) of good faith by the defendant; (2) of an interest to be protected or upheld; (3) that the statement is limited in its scope to that purpose; (4) that the publication is made on a proper occasion; and (5) that the publication is made in the proper manner and to the proper parties only. See Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345, 243 N.E.2d 217.

Most often, the qualified privileges are raised as affirmative defenses by defendants and are exerted in defense of reports of legislative and judicial and other official proceedings. (See generally Windsor Lake, Inc. v. WROK (1968), 94 Ill. App. 2d 403, 236 N.E.2d 913.) In particular, Illinois courts have held that under the common-law privilege to report on judicial proceedings, such communication is privileged, if it is accurate and complete as a fair summary of the proceedings and is not made solely for the purpose of causing harm to the person defamed. (See Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735, 415 N.E.2d 434.) Similarly, a newspaper defendant is privileged to report executive and legislative activities if such report is a fair abridgment of such proceedings and is not made solely for the purpose of causing harm to the person defamed. (See Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill. 2d 257, 239 N.E.2d 837.) In all such cases, the publications are deemed privileged as a matter of law (see Lulay v. Peoria Journal-Star, Inc. (1966), 34 Ill. 2d 112, 214 N.E.2d 746); however, the qualified or conditionally privileged publication loses its character as such upon proof of actual malice. See Zeinfeld, 41 Ill. 2d 345, 243 N.E.2d 217.

It is also well settled that Illinois courts have traditionally recognized that where matters of public interest and concern were legitimate subjects of comment and criticism by a newspaper, publications of these matters were to be considered privileged, as long as fairly done and with an honest purpose. (Kulesza v. Chicago Daily News, Inc. (1941), 311 Ill. App. 117, 123-24, 35 N.E.2d 517.) This privilege, also known as the privilege of “fair comment,” is the basis upon which the Farnsworth decision was decided. Further, defendants here rely extensively on the privilege of “fair comment” and Farnsworth as the crux of their argument. We will discuss the case in more detail below.

We have discussed and reviewed the development of defamation law in Illinois, in other jurisdictions since Gertz, and on the Federal level. In light of that review and discussion, we now look to the specific questions of law on this appeal as to which there are substantial grounds for differences in opinion.

III. ISSUES

Although there are only two questions of law certified to us by the circuit court, we believe this appeal raises several subissues within those questions of law. The first question involves whether Farnsworth (43 Ill. 2d 286, 253 N.E.2d 408) and Chapski (92 Ill. 2d 344, 422 N.E.2d 195) require application of the “actual malice” standard to these facts. As noted previously, Farnsworth primarily involves the qualified privilege of “fair comment.” However, Chapski almost exclusively concerns the application of the “innocent construction rule.” Accordingly, we believe that each of those cases must be treated and analyzed separately.

A. FARNSWORTH V. TRIBUNE CO.

In 1969, the Illinois Supreme Court decided the case of Farnsworth v. Tribune Co. (1969), 43 Ill. 2d 286, 253 N.E.2d 408. In Farnsworth, defendants, the Tribune Co., had published a report to the general public which described plaintiff, an osteopathic physician, as a “quack.” The court there found that the plaintiff was required to prove actual malice because “[i]n our judgment the conclusion is inescapable from Times, Garrison, Butts and other cases previously cited that the defendants in this case must be accorded at least the same degree of immunity accorded the defendant in Butts. Medical quackery is an area of critical public concern *** ‘about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.’ ” Farnsworth, 43 Ill. 2d at 291, quoting Butts, 388 U.S. at 147, 18 L. Ed. 2d at 1106, 87 S. Ct. at 1987.

Defendants assert that Farnsworth established a common-law privilege for publications concerning public health and medical quackery. They argue that by creating this qualified privilege in Farnsworth, the Illinois Supreme Court balanced the competing interests involved in most libel actions: the right of a person defamed to recover for injury to his or her reputation and the need for vigorous and uninhibited debate and discussion on matters of public concern. However, plaintiff asserts that the entire basis for defendants’ argument that he is required to prove actual malice to overcome the qualified privilege established in Farnsworth is predicated upon the supposition that the Farnsworth principle remains valid, and that it does not.

Defendants maintain that the basis of the Farnsworth holding is not that a doctor is a “public figure” or “public official”; rather, the controlling question is whether a public issue is involved. However, as asserted by plaintiff, the Farnsworth court reached its conclusion, in part, by reference to the public figure analysis of New York Times, and in part by reference to the analysis of the Supreme Court in Rosenblatt v. Baer (1966), 383 U.S. 75, 15 L. Ed. 2d 597, 86 S. Ct. 669 (concurring opinion). Rosenblatt later formed the basis for the reasoning in Rosenbloom (403 U.S. 29, 29 L. Ed. 2d 296, 91 S. Ct. 1811), where it was stated:

“If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual *** did not ‘voluntarily’ choose to become involved.” (Rosenbloom, 403 U.S. at 43, 29 L. Ed. 2d at 311, 91 S. Ct. at 1819.)

However, as noted above, the Gertz court expressly rejected the Rosenbloom “public issue” analysis when it commented:

“The extension of the New York Times test proposed by the Rosenbloom plurality would abridge this legitimate state interest to a degree that we find unacceptable. And it would occasion the additional difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of ‘general or public interest’ and which do not — to determine, in the words of MR. JUSTICE MARSHALL, ‘what information is relevant to self-government.’ [Citation.]” (Gertz, 418 U.S. at 346, 41 L. Ed. 2d at 809, 94 S. Ct. at 3010.)

Moreover, the Court went on to state:

“The ‘public or general interest’ test for determining the applicability of the New York Times standard to private defamation actions inadequately serves both of the competing values at stake. On the one hand, a private individual whose reputation is injured by defamatory falsehood that does concern an issue of public or general interest has no recourse unless he can meet the rigorous requirements of New York Times. *** On the other hand, a publisher or broadcaster of a defamatory error which a court deems unrelated to an issue of public or general interest may be held liable in damages even if it took every reasonable precaution to ensure the accuracy of its assertions.” Gertz, 418 U.S. at 346, 41 L. Ed. 2d at 809, 94 S. Ct. at 3010.

Accordingly, we preliminarily would find that the Gertz Court in rejecting Rosenbloom likewise rejected the Farnsworth analysis. We reach this result by looking to the rationale in Gertz that a “public or general interest” test is not constitutionally necessary and is inadequate for deciding the legitimate interest of the State in protecting the private individual against defamatory falsehoods. Furthermore, we look to the language in Gertz which establishes that a private individual need not prove actual malice and that to extend the New York Times standard to private persons whenever an issue of general or public interest is involved would abridge to an unacceptable degree the legitimate State interest in compensating private individuals for apparent injury to reputation. (See generally Gertz, 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997.) Consequently, we are inclined to agree with the plaintiff’s contention that because Farnsworth has relied on the very basis which Gertz said was no longer necessary, the Farnsworth decision no longer has any validity, unless it has been reaffirmed as a matter of Illinois law.

Plaintiff asserts that Farnsworth no longer has any validity after Gertz. He maintains that his position is further supported by our supreme court decision in Troman v. Wood (1975), 62 Ill. 2d 184, 340 N.E.2d 292. Conversely, defendants contend that the Troman court did not cite, much less distinguish or overrule, Farnsworth and that Troman contains a limitation which states the “holding in the present case is, of course, not intended to remove any of the absolute or qualified privileges which have heretofore been recognized in this State.” (62 Ill. 2d at 198.) Thus, defendants argue that the qualified privilege established in Farnsworth remains valid. Defendants further maintain that Farnsworth has been expressly reaffirmed by the Illinois Supreme Court on three occasions since Troman was decided (see Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195; Colson v. Stieg (1982), 89 Ill. 2d 205, 433 N.E.2d 246; People v. Heinrich (1984), 104 Ill. 2d 137, 470 N.E.2d 966), and thus, Farnsworth continues to require doctors to prove actual malice, at least when the news reports of which they complain are linked to their services or fees. We will begin with a review of Troman.

In the case of Troman, the court enunciated that the central issue on appeal concerned “the standard of liability which should be imposed for libel in the light of the recent decision of the Supreme Court of the United States in Gertz v. Robert Welch, Inc. [citation.]” (Troman, 62 Ill. 2d at 188.) Following a discussion of the “applicable constitutional limitations laid down by the Supreme Court” prior to Gertz, the court then commented that “[t]he opinion in Gertz rejected the proposition advanced in Rosenbloom that actual malice must be proved even as to a defamatory falsehood about a private individual, if the statement related to matters which a court deemed of public or genera] interest. [Citation.]” (Troman, 62 Ill. 2d at 192.) The court further stated that the Federal Constitution did not require Illinois to apply the actual malice standard of liability of New York Times, and that the adoption of such a standard could not be justified on the theory that such a requirement furthered some overriding public policy of Illinois, since prior to the New York Times rule, it was not considered that liability for defamation required any showing of fault at all, let alone proof of actual malice.

The court further noted that the Constitution of Illinois provided for the right of protecting reputation as a fundamental right. In reviewing the balance to be reached in light of the competing interest of freedom of speech, the court opined that provision likewise recognized the interest of the individual in the protection of his reputation, in that “the exercise of the right to speak freely shall not relieve the speaker from responsibility for his abuse of that right.” Troman, 62 Ill. 2d at 195.

Defendant had urged the court to adopt the actual malice standard as a matter of State policy. In rejecting such a standard, the court discussed at some length the difficulty of courts in deciding whether a matter was one of public interest. The court further commented that “[o]ur adoption of negligence rather than actual malice as a standard is in accord with several decisions in other States which were rendered since Gertz. [Citations.]” Troman, 62 Ill. 2d at 198.

The Troman court then concluded:

“We hold, therefore, that in a suit brought by a private individual to recover actual damages for a defamatory publication whose substantial danger to reputation is apparent, recovery may be had upon proof that the publication was false, and that the defendant either knew it to be false, or, believing it to be true, lacked reasonable grounds for that belief. We hold further that negligence may form the basis of liability regardless of whether or not the publication in question related to a matter of public or general interest.” (Emphasis added.) Troman, 62 Ill. 2d at 198.

However, as noted previously, the court added a limitation that its holding was not intended to remove any absolute or qualified privileges formerly recognized in Illinois. It is precisely this language which has caused some of the problems among the Illinois courts in determining which standard applies where the plaintiff is considered to be a private person, and the alleged defamatory statement relates to a matter of public or general interest, and which privilege, if any, is applicable under such circumstances as a matter of law.

Thus, a plain reading of both Farnsworth and Troman raises some conflicting and contradictory concerns. For example, does Troman stand for the general proposition that all private plaintiffs are required to prove mere negligence in defamation actions brought against (media) defendants, even where a public matter is involved? We answer this question in the affirmative with the caveat that no privilege applies therein to defeat the rule. The next question then becomes what privilege(s) will defeat the Troman rule; and if the privilege so defeats the rule, whether a private plaintiff is then required to prove actual malice or some other standard to overcome the privilege^). The last question is whether the Farnsworth privilege is included in this category, and whether that privilege remains one of “fair comment,” or is more narrow in scope and limited only to the subject matter of medical treatment. Before we reach a conclusion, we must look to the law in Illinois after Farnsworth and Troman.

1. POST-FARNSWORTH CASES

Our research has found 15 references to the Farnsworth case where it was cited in either a majority, concurring or dissenting opinion. In two instances, it was cited to in related cases. See, e.g., Berkos v. National Broadcasting Co. (1987), 161 Ill. App. 3d 476, 515 N.E.2d 668 (modified on denial of rehearing on November 5, 1987); Davis v. Keystone Printing Service, Inc. (1987), 155 Ill. App. 3d 309, 507 N.E.2d 1358 (second appeal following remand (1982), 111 Ill. App. 3d 427, 444 N.E.2d 253).

In J.L.S. Snead v. Forbes, Inc. (1971), 2 Ill. App. 3d 22, 275 N.E.2d 746, the court agreed that under the New York Times rule, constitutional guarantees of freedom of speech and press extended to “matters of public interest.” The court quoted from Farnsworth and concluded based thereon that “the challenged articles describing a prominent business executive in a vitally important industry were fair comment on ‘matters of public interest’ dealing with a ‘public figure.’ ” (Forbes, 2 Ill. App. 3d at 27.) In Basarich v. Rodeghero (1974), 24 Ill. App. 3d 889, 321 N.E.2d 739, the court commented that Illinois courts had brought such people as doctors within the parameter of the New York Times rule. Thus, in reliance upon the Rosenblatt analysis, the court found that public school teachers and coaches, and the conduct of such persons and their policies, were of as much concern to the community as were other public officials and public figures. Basarich, 24 Ill. App. 3d at 892.

The remaining appellate court cases that we reviewed were decided after Gertz. Five of these cases which we will discuss shortly cite to both Farnsworth and Troman. The remaining cases either distinguish Farnsworth or discuss it in a very limited context or for a relatively minor proposition. For example, in Welch v. Chicago Tribune Co. (1975), 34 Ill. App. 3d 1046, 340 N.E.2d 539, the first district distinguished Farnsworth when it concluded that the case “at bar does not concern public figures or issues, rather it concerns an employer’s publication of a memorandum explaining the termination of his employee — a private person.” (Welch, 34 Ill. App. 3d at 1053.) Similarly, the court in Korbar v. Hite (1976), 43 Ill. App. 3d 636, 357 N.E.2d 135, interpreted the Farnsworth plaintiff as a “limited public figure” because the publication there concerned a matter of vital importance. By using such a rationale, the court concluded it was justified in finding its plaintiff, an elected president of a credit union, to be a limited public figure. Korbar, 43 Ill. App. 3d at 641.

The other references are minor. See, e.g., Rozier v. St. Mary’s Hospital (1980), 88 Ill. App. 3d 994, 1008, 411 N.E.2d 50 (Farnsworth cited to in dissenting opinion for proposition that a “constitutional guarantee is not limited expressly to politics or matters of public concern”); American International Hospital v. Chicago Tribune Co. (1985), 136 Ill. App. 3d 1019, 1022, 483 N.E.2d 965 (quoting from Farnsworth, 43 111. 2d at 293, inter alia, that although truth is a defense to a defamation action, only substantial truth is required for this defense); Berkos v. National Broadcasting Co. (1987), 161 Ill. App. 3d 476, 494, 515 N.E.2d 668 (plaintiff required to plead and prove the falsity of the alleged defamatory statements made about him by NBC and Karl); Mittelman v. Witous (1988), 171 Ill. App. 3d 691, 705, 525 N.E.2d 922 (statement not a constitutionally protected opinion because the subject of the statement was not an area of critical concern within the meaning of Farnsworth).

Similarly, contrary to defendants’ assertions, two of the three Illinois Supreme Court references to Farnsworth do not affirm the principles articulated therein. First, neither Chapski nor Heinrich fully discusses the qualified privilege at issue in Farnsworth. Chapski generally cites to Farnsworth within the context of “the availability of privileges and broader protections that now exist to protect first amendment interests,” as part of its rationale to modify the innocent construction rule. (Chapski, 92 Ill. 2d at 351.) Defendants urge that this reference alone demonstrates the supreme court’s intention of reaffirming the privilege. However, we do not agree with this blanket statement and conclude that such reference adds little to the discussion of the distinctions which we believe are relevant here. Heinrich, which involves criminal defamation, refers to Farnsworth for the proposition that where the Times standard applies, the burden of proving truth must not be placed upon the defendant. Heinrich, 104 Ill. 2d at 146.

However, we did find two cases which significantly impact our discussion here. One of the cases is an Illinois Supreme Court case (Colson v. Stieg (1982), 89 Ill. 2d 205, 433 N.E.2d 246), and the other was rendered by the Second District of the Illinois Appellate Court (Davis v. Keystone Printing Service, Inc. (1987), 155 Ill. App. 3d 309, 507 N.E.2d 1358). Defendants urge that the Illinois Supreme Court in Col-son has solved the Farnsworth and Troman dilemma and has concluded that Farnsworth is applicable in situations where a public issue or concern is involved. However, we are not so inclined to accept this proposition. We believe that the defendants’ reliance on Colson is misplaced. Further, we believe that Colson contains several limitations and exceptions, as pointed out in Davis, which distinguish that case factually and analytically from the case at bar. We will analyze both of these cases in greater detail following our discussion of the trend of the post-Troman cases.

2. POST-TROMAN CASES

Our research has found that the majority of the appellate court cases which cite to Troman refer to particular propositions that can be grouped into five general areas as follows: (1) libel counts in the complaint were or were not legally sufficient (Wilson v. Hunk (1977), 51 Ill. App. 3d 1030, 1035-36, 367 N.E.2d 478; Millsaps v. Bankers Life Co. (1976), 35 Ill. App. 3d 735, 744, 342 N.E.2d 329); (2) Troman is not a departure from the “innocent construction rule” (Berkos v. National Broadcasting Co. (1987), 161 Ill. App. 3d 476, 485, 515 N.E.2d 668; American International Hospital v. Chicago Tribune Co. (1983), 120 Ill. App. 3d 435, 441, 458 N.E.2d 1305; Levinson v. Time, Inc. (1980), 89 Ill. App. 3d 338, 343, 411 N.E.2d 1118; Vee See Construction Co. v. Jensen & Halstead, Ltd. (1979), 79 Ill. App. 3d 1084, 1087, 399 N.E.2d 278; Makis v. Area Publications Corp. (1979), 77 Ill. App. 3d 452, 459, 395 N.E.2d 1185 (refers to a comment in the dissenting opinion that the “innocent construction rule” is no longer needed now that strict liability has been ruled unconstitutional); Cooper v. Rockford Newspapers, Inc. (1977), 50 Ill. App. 3d 247, 248-49, 365 N.E.2d 744); (3) Troman adopts the Gertz definition of actual damages (Brown v. Farkas (1986), 158 Ill. App. 3d 772, 779, 511 N.E.2d 1143; Matviuw v. Johnson (1979), 70 Ill. App. 3d 481, 486, 388 N.E.2d 795; Halpern v. News-Sun Broadcasting Co. (1977), 53 Ill. App. 3d 644, 653, 368 N.E.2d 1062 (further notes that a private plaintiff can’t recover punitive damages absent a showing of actual malice); (4) states the definition of actual malice (Erickson v. Aetna Life & Casualty Co. (1984), 127 Ill. App. 3d 753, 764, 469 N.E.2d 679; Angelo v. Brenner (1980), 84 Ill. App. 3d 594, 597, 406 N.E.2d 38; see also Ware v. Carey (1979), 75 Ill. App. 3d 906, 394 N.E.2d 690); and (5) Illinois follows Gertz or has chosen the standard of negligence in cases involving private individuals, but entertains little or no discussion (Owens v. CBS, Inc. (1988), 173 Ill. App. 3d 977, 994, 527 N.E.2d 1296; Dauw v. Field Enterprises, Inc. (1979), 78 Ill. App. 3d 67, 71, 397 N.E.2d 41; see also Van Duyn v. Smith (1988), 173 Ill. App. 3d 523, 533, 527 N.E.2d 1005 (court found although Troman had been somewhat eroded in limited circumstances (e.g., Colson, 89 Ill. 2d 205, 433 N.E.2d 246), the negligence standard, rather than actual malice, was applicable therein); Tunney v. American Broadcasting Co. (1982), 109 Ill. App. 3d 769, 776-77, 441 N.E.2d 86 (court adopted the negligence standard and further commented that “reasonable grounds” is generally a question of fact)).

Other appellate court cases have discussed Troman more fully. In Nagib v. News-Sun (1978), 64 Ill. App. 3d 752, 755, 381 N.E.2d 1014, the court first acknowledged Gertz