Illinois Appellate Court “Slaps” Down Former Candidates’ Defamation Claims

The Illinois Appellate Court affirmed BHH’s anti-SLAPP victory on behalf of  anonymous political speakers who published political flyers criticizing former McHenry County Board candidates Orville Brettman and Ersel Schuster. Victories under Illinois’ anti-SLAPP statute, the Citizen Pariticpation Act (CPA), have been rare since the Illinois Supreme Court’s 2012 decision in Sandholm v. Kuecker created a nearly insurmountable burden for defendants hoping to nip SLAPP suits in the bud. A SLAPP (strategic lawsuit against public participation) is a lawsuit designed to punish speakers for exercising certain protected rights, including free speech rights protected by the First Amendment.  BHH’s client, the Illinois Integrity Fund, published flyers that included reprinted headlines from late 1970s newspaper articles regarding Brettman’s criminal involvement with the Legion of Justice, a right wing paramilitary group committed to eradicating communism and socialism in the United States. The articles were based on Brettman’s testimony before a Cook County grand jury investigating ties between the Legion of Justice and a division of the Chicago Police Department known as the Red Squad.  BHH tracked down a copy of Brettman’s decades’ old grand jury transcript  (the copy was missing the court reporter’s attestation) and obtained an affidavit from the former prosecutor who questioned Brettman in 1975 attesting to the truth and accuracy of the transcript and Brettman’s statements to the grand jury. Brettman argued that the grand jury transcript was not “authentic” but failed to contradict the facts in the prosecutor’s affidavit. The flyers also included a reprinted headline indicating that a veiled death threat targeting McHenry County Board Chairman (who is Jewish) posted on a conservative McHenry County blog had been traced to Ersel Schuster’s home.  BHH submitted uncontested police department records demonstrating that that the death threat had indeed been traced to Schuster’s home.   The trial court determined that the plaintiffs’ claims were both meritless and retaliatory, and granted the defendants’ motion to dismiss pursuant to the CPA., awarding attorneys fees and additional sanctions against plaintiffs’ counsel. Brettman and Schuster appealed, arguing that their own affidavits created issues of fact precluding dismissal under the CPA.  The Illinois Appellate Court disagreed, noting that neither affidavit conflicted with the evidence submitted by the Illinois Integrity Fund demonstrating the truth of the flyer statements, and concluding that neither Brettman nor Schuster rebutted the Illinois Integrity Fund’s argument that their lawsuit was retaliatory. The appellate victory under the CPA allows the Illinois Integrity Fund to seek an award of additional fees and costs incurred in connection with the appeal.  READ APPELLATE OPINION HERE