Flyer in Judicial Race Disgusting But Not Libelous

A flyer in a judicial race “full of disparagement and innuendo unbefitting a campaign for judicial office” cannot support a claim for libel or tortuous interference with a prospective economic advantage, an Illinois appellate court found.

The flyer was distributed by the Illinois Coalition for Jobs, Growth and Prosperity and was mailed to voters in 2004. The flyer was directed against Gordon Maag, who was running for retention in the Fifth Judicial District of the Illinois Appellate Court and the Illinois Supreme Court.

“We understand plaintiff’s outrage with the flyer,” the court wrote in its opinion.”The flyer is full of disparagement and innuendo unbefitting a campaign for judicial office. Disagreement with a judge’s decisions is acceptable and criticism is to be expected. Expressing such disagreement and criticism in an inflammatory and unreasonable manner is unseemly and unproductive and has no placed in what should be a reasoned debate on differing judicial philosophies.” Judge Magg contended the flyer was defamatory per se. He later amended his claim to include defamation per quod. The court found that when a person runs for political office he puts his character in issue in so far as it relates to his fitness and qualifications for office. The court found that the statements in the flyer were mere opinions.

“The hysterical hyperbole in the flyer is insulting to the judicial and electoral process,” the court said. “It devalues the intelligence of voters and seeks to make us afraid and cast blame. The flyer is the product of a mindset that believes voter manipulation can be accomplished by resort to phrases that evoke emotion rather than thought. However, ill-informed, mean-spirited hyperbole is not necessarily defamatory per se.”

Concerning the issue of defamation per quod, the court found that plaintiff did not allege any pecuniary damages, which is necessary for defamation per quod. As to the tortuous interference claim, the court said an elected office “is not a property interest or contractual right with which an officeholder has a recognizable ‘reasonable expectancy’ of continued employment as one might in an employment setting.”

Gordon Maag v. Illinois Coalition for Jobs, Growth and Prosperity, et al., Ill. App. Fifth Dist. No. 05-06-0048, opinion filed Nov. 2, 2008.