A lawyer sued a blogger, and now my head is spinning. When a Connecticut blogger published an allegedly defamatory post about a Chicago lawyer, the ND ILL faced questions whether a blogger is a reporter and whether to apply Illinois or Connecticut’s reporter’s privilege to protect the blogger’s source.
It applied Illinois’ privilege, but narrowly, and answered important conflict-of-laws and blogger/reporter questions. Ribbeck v. Negroni, 2019 WL 6894400 (ND Ill. Dec. 18, 2019). You may read the court’s opinion here.
Now, let’s examine it.
Lawyer Manuel von Ribbeck represents victims of aviation disasters and is involved with families of victims from the Lion Air crash involving the much-criticized Boeing 737 Max. Christine Negroni is a Connecticut-based, self-styled journalist, author, speaker, and broadcaster “specializing in aviation and travel.”
Negroni published a blog post that criticized Ribbeck and “his equally mendacious sister,” for, among other things, “ambulance chasing” airline crash victims. She also wrote about an alleged sexual assault by Ribbeck. See this hard copy or Lion Air Lawyer Accused of Sexual Assault in 2010.
Ribbeck sued Negroni in Illinois for defamation.
Negroni claimed she had not resided in Illinois since 1993 and otherwise had insufficient Illinois contacts to hale her into a Chicago courtroom. Ribbeck sought jurisdictional discovery to prove otherwise.
Negroni refused to answer deposition questions about whether she visited with United Airlines or Boeing; whether she received payment for blog posts; whether she visited certain websites to write her posts; and the identity of Illinois lawyers that she contacted.
Connecticut’s reporter’s privilege protects those answers from discovery, Negroni claimed. But the blog post concerned Illinois residents and the lawsuit was pending there.
So, did Illinois or Connecticut privilege law apply?
Doctrine of Depecage
Ah yes, the old doctrine of depecage. On my list of all-time favorite legal doctrines, it is a close second to the Rule in Shelley’s Case.
The doctrine allows a court to carve up various issues in a lawsuit and apply separate conflict-of-laws analyses to each. Negroni said that, regardless of whether Illinois defamation law applied, Connecticut’s reporter’s privilege protected her sources from disclosure.
Connecticut’s reporter’s privilege, Conn. Gen. Stat. § 52-146t, protects information, such as sources, “obtained by news media.” Illinois’s reporter’s privilege, 735 ILCS 5/8-901, similarly protects a reporter’s sources with some exceptions.
Is a Blogger a Reporter?
A conflict exists between the two state-law privileges. Connecticut’s privilege applies to “news media,” but this phrase does not include “internet blog sites.” See State v. Buhl, 2012 WL 4902683 (Conn. Super. Ct. Sept. 25, 2012). By contrast, Illinois courts interpret the phrase “news medium” to include blogs that contain content acquired from “actual news gathering activity.” See Johns-Byrne Co. v. Technobuffalo LLC, 2012 WL 7746968 (Ill. Cir. Ct. July 13, 2012).
So, it’s curious why Negroni sought application of Connecticut’s more limiting law and Ribbeck wanted Illinois’ law.
To resolve the conflict, the Illinois federal court applied Illinois’ choice-of-law rules. It found that Illinois courts apply the “most significant contacts” test to determine the state with the “strongest relationship with the occurrence.” Courts then weigh the contacts “in light of the general principles outlined in the Restatement (Second) of Conflict of Laws, Section 6.”
The court said that Illinois law applies to the privilege issue because, in defamation cases, the law of the place of the injury—here Ribbeck’s Illinois domicile—applies.
The court applied Illinois’ tort-action choice-of-law rules to the privilege choice-of-law question. It did not apply choice-of-law rules specific to evidentiary privileges. The Restatement of Conflict of Laws, upon which the court relied, devotes a specific section to choice-of-privilege laws. See § 139.
This section offers the most prominent choice-of-privilege-law analysis. But commentators have criticized the analysis as favoring disclosure in all instances. You should read my post, Important Article on Interstate Litigation and Conflict-of-Privilege Laws, for a more detailed analysis. Or my article explaining §139, The Application of Conflict of Laws to Evidentiary Privileges.
Would application of §139 have resulted in application of Connecticut’s reporter’s privilege? Likely not.
Application of Reporter’s Privilege
The court held that the blogger Negroni was a reporter under Illinois’ reporter’s privilege largely because her affidavit, available here, went uncontradicted.
The court applied the privilege narrowly. The privilege did not cover whether Negroni contacted United Airlines, Boeing, or other Illinois residents for her blog post. Nor did it cover whether Negroni received payments for her blog posts or visited certain websites to post about Ribbeck’s “equally mendacious sister.”
But the privilege protected the identities of any Illinois attorneys Negroni contacted for her blog post.