The Relationship of Retraction to Malice in Defamation Cases

In Illinois defamation cases, it is practically, strategically and tactically wise for putative plaintiffs to seek the retraction of a defamatory statement before filing what can be a protracted and expensive defamation lawsuit. Likewise, when accused of defamation, it can be equally wise for a putative defamation defendant to eschew pride and issue the requested retraction.

If the plaintiff requests and is refused a retraction, the refusal can be pleaded as malice and go to a jury to recover punitive damages. Conversely, if the plaintiff does request and receives a retraction before filing suit, this is not a bar to a defamation suit, since retraction is not legal exoneration. But the retraction can substantially ameliorate the sting of a defamation, and thereby mitigate actual and thus compensatory damages, and can possibly eliminate the category of punitive damages as a remedy for reputational harm.

The evidentiary role of retraction became extremely important after the United States Supreme Court’s decision in New York Times Co. v Sullivan, in which the Supreme Court determined that the First Amendment to the United States Constitution “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;” – knowledge that the defamatory statement was false or made with reckless disregard for the truth or falsity of the statement. In Curtis Publishing Co. v Butts, the Supreme Court expanded the actual malice requirement to suits brought by any public figure (as distinct from the narrower classification of public “official” in New York Times v Sullivan).

Whether a defamation case involves a public or private figure, and although the “actual malice” required by New York Times v Sullivan, i.e., knowledge of falsity or a reckless indifference to truth, substantially differs from common law malice (spite or ill will), Illinois courts generally consider retraction or its absence as evidence of malice without necessarily parsing categories of malice.

In New York Times v Sullivan, which did involve a public figure, the plaintiff followed an Alabama statute and requested a retraction of the defamatory statement before filing suit. Although the New York Times did not print the requested retraction, the U.S. Supreme Court found the Times’s refusal inadequate evidence of malice, because the newspaper had in fact responded to the plaintiff’s retraction request by indicating it believed that the allegedly defamatory item could not be read as referring specifically to the plaintiff.

Significantly, however, in New York Times v. Sullivan, the US Supreme Court also declined to rule on “whether or not a failure to retract may ever constitute [evidence of malice].” Illinois courts, however, have since proved absolutely and consistently willing to find the failure to retract probative of malice, and academic authorities suggest that a failure to retract, in conjunction with other circumstances, surely can establish malice.

If you believe you are the victim of defamation, or especially a defamation with malice, contact the Chicago defamation attorneys at Lubin Austermuehle. We are knowledgeable regarding the changes and complexities of this evolving area of the law, and committed to fighting for our clients’ rights in the courtroom and at the negotiating table. To schedule a consultation with one of our skilled attorneys, you can contact us online or give us a call at 630-333-0333. Conveniently located in Chicago Elmhurst and Wilmette, Illinois.