Costello v. Capital Cities Communications, Inc. , 153 Ill. App. 3d 956 ( 1987 )

JUSTICE JONES

delivered the opinion of the court:

Defendants, Capital Cities Communications, Inc., and Richard Hargraves, appeal a judgment of the circuit court of St. Clair County rendered in a trial before the court sitting without a jury in the amount of $1,050,000. The judgment encompassed an award of actual damages in the amount of $450,000 and punitive damages in the amount of $600,000. Plaintiff’s action was for libel. The defendant Capital Cities Communications, Inc. (Capital Cities), is the owner of the Belleville News-Democrat (News-Democrat), a newspaper of general circulation in St. Clair County. The defendant Richard Hargraves was the editor of the editorial page of the News-Democrat. The plaintiff, Jerry Costello, was, at the time of the publication of the article in question, the elected chairman of the St. Clair County board. The case is before us for a second time, a fact we will detail later in this opinion.

In 1980 there was an issue before the residents of St. Clair County regarding funding for the Metro East Mass Transit District, an instrumentality of the Bi-State Development Agency. That agency was created by a compact entered into between the States of Illinois and Missouri to afford a joint approach to concerns of mutual interest to the municipalities and counties of the metropolitan St. Louis area. The counties of St. Clair, Madison, and Monroe are Illinois counties encompassed by the compact. (Cf. Ill. Rev. Stat. 1979, ch. 127, par. 63s — 1 et seq.) The Bi-State Development Agency (Bi-State) furnished public transportation to the urban areas of the St. Louis metropolitan area, including the three Illinois counties associated with the agency.

The method of funding for the mass transit system became a much debated subject, and various proposals were advanced to accomplish the purpose. In the summer of 1980 the Illinois legislature enacted an amendment to the Local Mass Transit District Act (Ill. Rev. Stat. 1979, ch. 1112/3, par. 351 et seq.) that gave to the county boards of Madison, Monroe, and St. Clair counties the authority to create transit districts that would be governed by a board of trustees appointed by the respective chairmen of the county boards. Among the powers conferred upon the trustees was the power to impose a sales tax of up to 1/4 of 1%, the proceeds of which would be used to subsidize public transportation. (Ill. Rev. Stat. 1979, ch. 1112/3, par. 355.) The News-Democrat was adamantly opposed to the imposition of any tax for the public transportation system unless and until such tax was approved by the voters in an advisory referendum. An editorial in the issue of September 15,1980, expressed this viewpoint.

In the general election in the fall of 1980, the plaintiff was a candidate for the office of chairman of the county board of St. Clair County. Sometime in September 1980 the plaintiff was invited to an interview with the editorial board of the News-Democrat. The purpose of the interview was stated to be for consideration of an endorsement of the plaintiff’s candidacy. The meeting was held at the office of the paper. Present were plaintiff, defendant Hargraves, Steven Pounds, a reporter, and, at times, Darwin Wile, publisher of the News-Democrat. The parties’ accounts of what transpired at the meeting differ. The discussions were apparently wide-ranging but were within the ambit of local governmental concerns and plaintiff’s position regarding taxation. Plaintiff testified:

“There was a general discussion about my position on a need for new taxes for any purpose; and my position was at that time, as I told the Editorial Board, Mr. Hargraves and whoever was present when the topic came up, that I was not in favor of any new tax for any reason during my first term of office without a referendum.”

Defendant Hargraves gave testimony regarding his impression of the content of the meeting. He related that plaintiff told them that the new county chairman had to be a different type “because the law had been changed and the incoming county board chairman would not have a vote on the board.” (Emphasis added.) He then stated that plaintiff had told them that he had political clout and influence in St. Clair County to get things done:

“He [plaintiff] was opposed to the imposition of a transit tax without a referendum of the people. He said that — no new taxes without a referendum of the people. *** He was going to vigorously use the political clout that he would have as County Board Chairman and personally to oppose that — the imposition of that tax without a referendum. He left that impression with us, and we believed him.”

The testimony of Darwin Wile was similar to that of Hargraves. He stated that plaintiff had told them

“he would do everything he could to oppose any tax increases without some kind of public referendum. When he said that, it became very important to me. And in my mind, he was stating a position, he was making a commitment to do everything he could to oppose tax increases.”

Wile also stated that plaintiff had told them that he was going to be a strong county board leader and that “he not only had the will to oppose taxes, he had the ability to deliver on that.”

In an editorial on October 19, 1980, the News-Democrat strongly endorsed plaintiff as the candidate for chairman of the county board, citing, among other things, his opposition to any new taxes without a referendum.

In the November election that followed, plaintiff was elected by a wide margin. The first meeting of the county board that was presided over by plaintiff as the newly elected chairman was held on December 29, 1980. A proposition to create the transit district and direct the appointment of trustees was on the agenda. A committee of the board, designated by plaintiff’s predecessor in office to study the advisability of creating the district, had recommended its adoption. The record details the considerable efforts of plaintiff to defeat the motion for adoption or, at least, to forestall board action on the motion until an advisory referendum could be held. His efforts included lobbying with board members and various local officials and influential politicians. On the day of the December 29 board meeting, plaintiff met with another vocal opponent of the measure, board member Hickey, to prepare a motion to table any action on the measure until April 1981 to afford time to submit the measure to the voters in an advisory referendum. At the meeting of the board that evening, a proponent of the measure made a motion for adoption of a resolution creating the district. By prearrangement plaintiff then recognized Hickey, who presented the motion to table. Also by prearrangement, plaintiff’s brother, another member of the board, seconded Hickey’s motion to table. Upon vote being taken, the motion to table was defeated 22 to 6. The motion to create the district was then called for a vote, and it was adopted by the same margin, 22 to 6. Plaintiff did not speak to the board in opposition to the measure, and he did not vote against it. As presiding officer, he was prevented from doing so by the code that governed the conduct of the board’s business. Plaintiff’s position as chairman of the board limited him to serving as presiding officer and parliamentarian. Reporter Pound of the News-Democrat was present throughout the meeting.

In a section of the News-Democrat of December 31, 1980, designated as “Opinions,” two editorials addressed the December 29 creation of the Metropolitan Transportation System by the county board of St. Clair County. The editorials were carried under the subtitle of “Our Viewpoint.” The first to appear was bitterly and sarcastically critical of the action of the board for its adoption of the resolution creating the district. This editorial furnished some of the background events that led to the adoption of the resolution and gave some indication of the momentum behind the proposal as it was presented to the board for action. The second of the editorials is the one that gave rise to this case:

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As appears, this editorial was signed by defendant Richard Hargraves. Hargraves testified that he had consulted with publisher Wile in the writing. They had, Hargraves stated, decided to criticize the board

“who did not choose to give the people a vote in the creation-in the imposition of this tax; and the second one Mr. Wile and I decided needed to criticize Mr. Costello for not providing the effective vigorous leadership he had promised to provide.”

Hargraves then testified that he had written an editorial regarding plaintiff and had submitted a draft of it to Wile.

“And then he [Wile] — He said that — that that wasn’t strong enough, that he thought that Mr. Costello had lied to us and that we had to take a much more vigorous criticism of him, that he didn’t want Mr. Costello to think that he could — that he could get away with this type of thing and get the newspaper’s support again.”

Hargraves also stated that he had talked to four people before writing the item: reporter Pound, Wile, and, by telephone, board members Hickey and Anderson.

In his testimony on direct examination as part of defendants’ case, Wile testified that he had participated in the drafting of the editorial critical of plaintiff. He was then asked this question and gave this reply:

“Q. Do you recall specifically any conversation pertaining to the use of the word ‘lie’ in the editorial?

A. Yes, I do. Mr. Hargraves brought a draft of the editorial back to me, and I read it; and I thought that it was very important that we point out that Mr. Costello had lied to us. I instructed Mr. Hargraves to include that in the editorial, and he subsequently did.”

On January 4, 1981, plaintiff wrote a letter “To the Editor” of the News-Democrat. It stated that it was in response to the December 31, 1980, editorial and that because of the shrill, personal attack upon his integrity he would direct his response to the readers, not to Mr. Hargraves. The content of the letter was a review of his often-stated opposition to the creation of the mass transit district and the imposition of a tax without an advisory referendum. It was highly critical of the treatment he had received at the hands of the News-Democrat and of the misrepresentation of what had transpired at the endorsement meeting on September 15, 1980. The letter closed by stating that the law does not permit knowing, false assaults upon a person’s integrity and that “it is through the law I will seek-my redress.” Plaintiff’s response to the editorial was never published by the News-Democrat. Wile stated that the reason it was not published was its concluding threat of a lawsuit over the editorial.

As promised in his letter to the editor, plaintiff brought this action in libel against Capital Cities and Hargraves. The circuit court sustained a motion to dismiss the complaint and entered judgment for the defendants. Plaintiff appealed, and we considered as the sole issue in the case whether the complaint was sufficient to state a cause of action. Resolution of that issue turned upon whether the editorial published on December 31, 1980, constituted libel per se. We held that it did, and we reversed the judgment dismissing the complaint and remanded the case for further proceedings. (Costello v. Capital Cities Media, Inc. (1982), 111 Ill. App. 3d 1009, 445 N.E.2d 13.) (The name of Capital Cities was changed after the decision in the first appeal.) The trial upon remand and the resulting judgment for $1,050,000 occurred as we have described above, and we now consider the defendants’ appeal. Defendants raise four issues: (1) whether the statement that “Costello lied to us” was protected opinion, (2) whether, in any event, the evidence failed to show a clear and convincing case of actual malice or falsity, (3) whether, considering the evidence, the editorial was not libelous per se, and (4) whether the damages awarded were excessive and violative of constitutional precepts.

Recovery for a defamatory statement concerning a public official may be allowed only if it is established by clear and convincing evidence both that the utterance is false and that it was made with knowledge of its falsity or in reckless disregard of whether it was false or true. New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710; Wanless v. Rothballer (1986), 115 Ill. 2d 158, 503 N.E.2d 516.

In St. Amant v. Thompson (1968), 390 U.S. 727, 20 L. Ed. 2d 262, 88 S. Ct. 1323, the Supreme Court restated the New York Times test to be that the plaintiff in a defamation action must prove that the defamatory publication was made with actual malice — that is, "with knowledge that it was false or with reckless disregard for whether it was false or not. (Tunnell v. Edwardsville Intelligencer, Inc. (1969), 43 Ill. 2d 239, 252 N.E.2d 538.) The reckless disregard for the truth that is requisite to a proof of malice is described in terms of the subjective frame of mind of the actor, and recklessness is said to exist only where a defendant in fact entertained serious doubts as to the truth of his publication. (St. Amant v. Thompson (1968), 390 U.S. 727, 20 L. Ed. 2d 262, 88 S. Ct. 1323; Wanless v. Rothballer (1986), 115 Ill. 2d 158, 503 N.E.2d 516; Catalano v. Pechous (1980), 83 Ill. 2d 146, 419 N.E.2d 350; cf. Tunnell v. Edwardsville Intelligencer, Inc. (1969), 43 Ill. 2d 239, 247, 252 N.E.2d 538, 541.) We are aware, too, that “[¡Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of actual malice.” Bose Corp. v. Consumers Union of United States, Inc. (1984), 466 U.S. 485, 499-500, 80 L. Ed. 2d 502, 516, 104 S. Ct. 1949, 1959; Wanless v. Rothballer (1986), 115 Ill. 2d 158, 503 N.E.2d 516.

In the first appeal of this case, the defendants argued that under the “innocent construction” rule the language of the editorial should be found to be not libelous. In the instant appeal defendants only mention the innocent-construction rule, preferring to place their emphasis upon the claim that the editorial is constitutionally protected expression of an opinion. Defendants state:

“In determining whether such protection exists, the Court must be guided by the innocent construction rule which requires that the statement ‘be considered in context, with the words and the implications therefrom given their natural and obvious meaning ***.’ [Citations.] If, as so construed, the statement may reasonably be interpreted as opinion, then it is not actionable.”

Defendants’ position is based principally upon the case of Ollman v. Evans (D.C. Cir. 1984), 750 F.2d 970, cert. denied (1985), 471 U.S. 1127, 86 L. Ed. 2d 278, 105 S. Ct. 2662. In the Oilman case the court developed four factors to serve as guidelines for use in determining whether alleged defamatory statements were privileged expressions of opinion or actionable statements of fact. The Oilman court found justification for its “privileged expression of opinion” approach to determine whether alleged defamatory statements were libelous in the Supreme Court case of Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2977. The Ollman court stated:

“In Gertz, the Supreme Court in dicta seemed to provide absolute immunity from defamation actions for all opinions and to discern the basis for this immunity in the First Amendment.” (Emphasis added.) (Ollman v. Evans (D.C. Cir. 1984), 750 F.2d 970, 974.)

The four factors adopted in Oilman are: (1) the statement’s precision, (2) the statement’s verifiability, (3) the literary context in which the statement was made, and (4) the public context in which the statement was made.

The approach to determining whether an utterance constituted a statement of fact or merely a protected expression of opinion expressed in Ollman v. Evans has been adopted in a number of cases that need not be mentioned here. However, we would observe that the implementation of the Oilman approach has not made a court’s task in a defamation case any more simple or the decision any less susceptible of error. For instance, in Janklow v. Newsweek, Inc. (8th Cir. 1986), 788 F.2d 1300, 1302, the court stated: “Opinion is absolutely protected under the First Amendment. Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 329, 41 L. Ed. 2d 789, 799, 94 S. Ct. 2997, 3001. But is is hard to draw a bright line between ‘fact’ and ‘opinion.’ ”

Although the Illinois Supreme Court has mentioned Oilman v. Evans and the “protected expression of opinion” rule, it has never followed it, choosing instead to adhere to the “innocent construction rule.” The Illinois innocent-construction rule was adopted in the case of John v. Tribune Co. (1962), 24 Ill. 2d 437, 181 N.E.2d 105, cert. denied (1962), 371 U.S. 877, 9 L. Ed. 2d 114, 83 S. Ct. 148, and modified in Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352, 442 N.E.2d 195,199. As modified, the rule states:

“We therefore hold that a written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se. This preliminary determination is properly a question of law to be resolved by the court in the first instance; whether the publication was in fact understood to be defamatory or to refer to the plaintiff is a question for the jury should the initial determination be resolved in favor of the plaintiff.”

The innocent-construction rule has since been followed by the supreme court in Fried v. Jacobson (1983), 99 Ill. 2d 24, 457 N.E.2d 392, and Owen v. Carr (1986), 113 Ill. 2d 273, 497 N.E.2d 1145. Not only has the Illinois Supreme Court not adopted the “privileged expression of opinion rule,” they had occasion to criticize it (although not the Oilman case in particular since it had not yet been decided) in the case of Catalano v. Pechous (1980), 83 Ill. 2d 146, 159, 419 N.E.2d 350, 356-57:

“So stated, the contention that Pechous’ statement was not defamatory reduces to the claim that when a charge of crime is based only on an inference drawn by the speaker, it must be treated as no more than an expression of opinion and thus ceases to be defamatory. We do not believe that such a position is supported by the language from Gertz on which the defendants rely. The passage, in its entirety, reads:

‘Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust, and wide-open” debate on public issues. New York Times Co. v. Sullivan, 376 U.S. at 270.’ 418 U.S. 323, 339-40, 41 L. Ed. 2d 789, 805, 94 S. Ct. 2997, 3007.

The argument made here would give a defendant in a defamation suit an absolute immunity rather than the limited immunity conferred by New York Times on a person whose defamatory statement was made without actual malice.” (Emphasis added.)

In Owen v. Carr the supreme court referred again, in dicta, to the “protected expression of opinion” rule and cited the Oilman case. After deciding the case on the basis of the innocent-construction rule (see Owen v. Carr (1986), 113 Ill. 2d 273, 279, 497 N.E.2d 1145, 1148), the court stated in dicta:

“We observe, too, that the Supreme Court has recognized a constitutional privilege for expressions of opinion. [Citation.] Whether a statement is to be judged to be one of fact or one of opinion is a matter of law [citation], and the involved language must be considered in context to determine whether the statement should be construed to be an expression of opinion [citations]. As stated, the statements may reasonably be viewed as an expression of Carr’s opinion regarding his client’s allegations against Owen.” (Owen v. Carr (1986), 113 Ill. 2d 273, 280-81, 497 N.E.2d 1145, 1148.)

In the recent case of Stewart v. Chicago Title Insurance Co. (1987), 151 Ill. App. 3d 888, the court followed the dicta in Owen v. Carr and Ollman v. Evans in deciding a libel case. We, however, believe that it is not in accord with the decisions of our supreme court on the point.

In our resolution of the issue of whether the December 31, 1980, editorial was libelous, we have followed the Illinois innocent-construction rule rather than the protected-expression-of-opinion rule of Ollman v. Evans. Our assessment is that the “four factors” of Ollman, which we have set out above, seem to be but another modification of the innocent-construction rule. They are lacking in any objective specificity. We, as apparently our supreme court does, deem the innocent-construction rule to be more easily applied and certainly more easily understood. Any defendant in any defamation suit, no matter how shrill, acerbic, profane, or accusatorial the utterance may be, can always say, “Why, I was only expressing an opinion, and that’s privileged.” We do not believe the law of defamation should digress so far, as could happen if the “protected expression of opinion” rule is given full sway. The innocent-construction rule does not permit such an extreme digression.

We considered the first appeal of this case upon the pleadings and determined that the editorial in question constituted libel per se. We stated:

“As the plaintiff points out, the editorial in the instant case repeatedly attacked him as a liar and also included an explicit reference to ‘two more years of the Costello brand of lying leadership.’ The language of the editorial makes it quite apparent that it was an actionable assault on the plaintiff’s character in general, not mere criticism of his conduct in a particular instance. Accordingly, we find that the editorial constituted libel per se because it imputed to the plaintiff an inability to perform his duties and a want of integrity or lack of honesty in performing the duties of his office.” (Costello v. Capital Cities Media, Inc. (1982), 111 Ill. App. 3d 1009, 1014, 445 N.E.2d 13, 17.)

We reversed and remanded for further proceedings to determine whether plaintiff could establish actual malice by clear and convincing evidence. The evidence and proof in the case are now before us, and our consideration of that evidence and proof compels us to reaffirm our previous determination that the editorial before us is libelous per se and that it was indeed published with the requisite actual malice. We are fully cognizant that there is a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open (New York Times, Inc. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710) and that candidates for public office, having “thrust themselves to the forefront of particular public controversies *** have voluntarily exposed themselves to increased risk of *** defamatory falsehood.” (Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 345, 41 L. Ed. 2d 789, 808, 94 S. Ct. 2997, 3010.) However, that said and considered, we have determined that the defendants cannot claim the protection afforded by the first amendment as a defense to plaintiff’s action, for the editorial in question goes well beyond the bounds of protected criticism.

In our consideration of this case in the first appeal, we discussed the case of Fried v. Jacobson (1982), 107 Ill. App. 3d 780, 438 N.E.2d 495, and from it listed the four categories of words constituting libel per se. The supreme court granted leave to appeal in the Fried case and affirmed as to the categories of words that constitute libel per se in Illinois:

“An action for defamation based on libel per se requires that the words used are in and of themselves so obviously and naturally harmful that proof of special damages is unnecessary. (Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345, 348.) In Illinois, under the common law, four classes of words, if falsely communicated, give rise to a cause of action for defamation without a showing of special damages. They are:

‘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;

4. Those prejudicing a particular party in his profession or trade.’ Whitby v. Associates Discount Corp. (1965), 59 Ill. App. 2d 337, 340, cited with approval in Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill. 2d 257, 261.” (Fried v. Jacobson (1983), 99 Ill. 2d 24, 26, 457 N.E.2d 392, 394.)

We held in the first appeal that in labeling the plaintiff a liar in its editorial, not once, but five times, and in concluding with “Just think, we’ve got two more years of the Costello brand of lying leadership,” the defendants imputed an “inability to perform or want of integrity in the discharge of duties of office or employment.”

As we have stated above, actual malice is established by proof that the defamatory publication was made with knowledge that it was false or with reckless disregard of whether it was false or not. Those standards have been met by the plaintiff in the case by clear and convincing evidence. It is evident that plaintiff had not lied to either the defendants or the public. Inserted between the repeated assertions that plaintiff was a liar were several charges leveled at the plaintiff that defendants either knew were untrue or showed a reckless disregard for whether they were true or false. As to those charges where defendants might profess a lack of knowledge, the truth was easily and readily ascertainable by defendants had truth been one of their concerns. The defendants stated in the editorial that plaintiff

“said he was going to be a tough county board chairman, especially when board members wanted to spend taxpayers’ money. He said he would militan tly oppose the implementation of any new tax without first seeking the voters’ approval through a referendum. He said he would lead the County Board down the proper paths, protecting the rights of the taxpayers. Well, he lied.”

Even when stripped of its overdrawn and exaggerated verbiage, the statement was false. Plaintiff’s evidence showed that he in fact exerted every effort to defeat the creation of the mass transit district and its ensuant tax until the proposition could be submitted to the voters in an advisory referendum. Plaintiff talked to many people of political prominence and to other members of the county board, both those known to favor the proposition and those opposed to it. He lobbied with the leader of the black coalition of county board members, to no avail because the black community needed public transportation. The response from others was similar — many people were in need of public transportation and favored the creation of the mass transit district. David Hickey, a member of the St. Clair County board, during his testimony was asked whether plaintiff’s position on the creation of the transit district was well known before December 29, 1980. He answered that it was “well known and widely known,” that

“[h]e was avidly, vigorously opposed to the creation of any transit district without a vote in the townships, an advisory referendum in the townships affected.”

Plaintiff testified that he had worked to advance his opposition to the creation of a transit district and the imposition of a tax.

“Both prior to and after the election I made my position well known through the news media. I believe as I stated in an exhibit that is here, back in January of 1980 that articles were carried in the News-Democrat. They were carried in other newspapers, through the radio stations and St. Louis television stations, that I was opposed to the creation of the transit district until after a referendum. In addition to that, I made my position very clear to members of the County Board, to public officials throughout the county and to my constituents who elected me to office.”

Despite the language of the December 31, 1980, editorial, the defendants were well aware of plaintiff’s activities in opposition to the transit proposition. An editorial that appeared in the November 9, 1980, issue of the News-Democrat addressed the transit issue. The editorial was under the banner “St. Clair County Board to face Bi-State bus crisis.” It noted that if the transit system did not receive approval of the local funding plan by January 1, 1981, the transit systern would drastically reduce service to the East Side (including St. Clair County). The editorial mentioned plaintiff:

“Costello said he opposes any form of new tax increase without a countywide referendum. During his campaign, Costello said he would favor not abiding by the Jan. 1 deadline if a vote on the issue could be taken.

He was critical of Bi-State during the campaign, calling it ‘a candidate for the most mismanaged agency.’

But some areas of the county, like East St. Louis, are big users of the bus service. Drastic cuts in service could be a hardship on East St. Louis residents who are well-represented on the County Board. ***

Costello will meet with County Board Member Darius Monken of O’Fallon and Madison County Board Chairman Nelson Hagnauer to determine if the three Illinois counties have an alternative to funding Bi-State through the sales tax.

Monken is the chairman of a County Board committee that has studied the Bi-State funding controversy.”

The editorial of December 31,1980, continued:

“He didn’t do any of those things Monday night, thereby breaking his most sacred campaign promise at his very first meeting.

The County Board had an opportunity to conduct a binding referendum asking you if you wanted to pay a new sales tax to support the Bi-State bus system. That’s the very thing Costello had pledged he would do. He had promised, in the strongest possible terms, that he would let the voters decide.”

These statements are false. The defendants well knew that the county board did not have the authority either to impose a tax for support of the transit system or to call for a binding referendum by the voters as a method of determining whether the “new sales tax” should be imposed. Plaintiff patently never promised to defendants or anyone else that he “would let the voters decide.” Such a decision was beyond not only his authority but that of the county board as well. The testimony of both Hargraves and Wile shows the above statement to be false. Moreover, editorials appearing in the News-Democrat show defendants had knowledge that, if exercised, would have prevented the December 31, 1980, attack upon plaintiff’s character. There were two editorials in the “Opinions” column of the December 31, 1980, issue of the News-Democrat. The second was the attack upon plaintiff. The first was one carried under the banner “St. Clair County Board refuses to give you a chance to decide,” and it contained the following:

“While it [the proposal for creating the transit district for St. Clair County] didn’t give taxing powers directly to Bi-State it did the next best thing: It let County boards create a taxing district to do the taxing for Bi-State.”

This remark shows contemporary knowledge by defendants that the county board could not itself impose a tax to support the transit district.

In an “Opinions” column editorial appearing on September 15, 1980, under the banner “The voters should decide,” a succinct statement was given by defendants of the method and processes to be followed in creating a mass transit district and authorizing a tax to support it:

“The people of St. Clair, Madison and Monroe counties deserve to decide for themselves if they wish a one-quarter cent sales tax imposed upon them for transit services.

But the General Assembly has denied them that right to decide.

So has Gov. James R. Thompson.

The only remaining hope is the county boards of the counties involved.

Gov. Thompson Thursday signed a measure establishing a Bi-State transit system, otherwise known as the Bi-State Bus Bail-out Bill.

The bill gives the transit district, if formed, the right to impose as much as a quarter cent sales tax in the counties. To form the district, and levy the tax, the county boards must vote to join.

Many, including State Rep. Frank Watson, R — Greenville, wanted the measure to include a referendum to let voters decide if they wanted to join and be taxed or stay out and do with limited bus service.

That’s what we recommended. We still believe the voters alone should decide if they are to deal with a new tax.

Unfortunately, a majority in the General Assembly and the governor disagree.

* * *

We wouldn’t be surprised if the three county board chairmen, and their fellows, went ahead and implemented the plan without asking the people for their direction.”

Another “Opinions” column editorial appearing on December 21, 1980, under the banner “Bi-State isn’t going our way” contained this:

“The comity boards in Madison and Monroe counties have given in. They’ve given up the fight and agreed to create Bi-State’s taxing district. But St. Clair County remains uncommitted. It is the taxpayers’ only hope.”

All of the foregoing editorials appeared over the signature of defendant Richard Hargraves.

The attack upon defendant in the December 31, 1980, editorial continued by saying:

“But when the time came to make a decision he was up there sitting on his gavel.

Some leader!

You couldn’t tell him from any other politician in the bunch. He did absolutely nothing to protect your interests.

* * *

Just think, we’ve got two more years of the Costello brand of lying leadership.”

As we have already stated, under the rules governing the conduct of meetings of the St. Clair County board, the chairman could not speak to the issues and resolutions presented for board action; his authority was limited to serving as presiding officer and parliamentarian. Plaintiff’s position before the board was established by law and was of common knowledge in the community.

Our independent review of the evidence has led to the unavoidable conclusion that the editorial attack upon the plaintiff was made with actual malice in that it was made with actual knowledge of its untruthfulness or with a reckless disregard for whether it was true or not. Articles in their own paper established the fact that the accusations leveled at the plaintiff were untrue. Defendant Hargraves talked to only four people before preparing the editorial. Of these, Hickey and Anderson were members of the county board, and they told him nothing that could serve as a factual background for the article. Hargraves did not talk to the plaintiff between the December 29 meeting of the board and the appearance of the editorial on December 31. Hargraves testified that he called plaintiff’s office on December 30, was told he was “not in,” and left word for plaintiff to return the call. Plaintiff testified that he was in his office all day on December 30. In either event, Hargraves made no further effort to reach plaintiff. Hargraves also talked to News-Democrat reporter Pound, who had attended the December 29 meeting. Pound did not testify at the trial. Hargraves finally talked to publisher Wile. As we have stated, Wile told Hargraves to rewrite an editorial critical of plaintiff that had been submitted by Hargraves in order to make it stronger and to call plaintiff a liar. That was done with devastating language that constituted a vicious and unwarranted attack upon plaintiff’s character.

Defendants’ final argument relates to damages. They concede that damages may be presumed upon a finding that a writing is libelous per se. (Britton v. Winfield Public Library (1981), 101 Ill. App. 3d 546, 428 N.E.2d 650; cf. 53 C.J.S., Libel & Slander sec. 262 (1948).) Having granted as much, they contend that the award of compensatory damages in the amount of $450,000 was wholly unwarranted and without any support in the evidence. Citing Bloomfield v. Retail Credit Co. (1973), 14 Ill. App. 3d 158, 302 N.E.2d 88, and Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2977, they assert that ‘‘substantial damages” may not be presumed. With such assertion we agree. With regard to punitive damages, defendants contend that it was an abuse of discretion for the court to award punitive damages, especially in the amount of $600,000, and, further, they contend that punitive damages in a libel action violate article I, section 4, of the Illinois Constitution of 1970 (“All persons may speak, write and publish freely, being responsible for the abuse of that liberty”). We agree with defendants that punitive damages were improperly awarded in this case, although for reasons different from those they advance. Cf. Schutzenhofer v. Granite City Steel Co. (1982), 93 Ill. 2d 208, 443 N.E.2d 563; Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 456 N.E.2d 958; Supreme Court Rule 366(a)(5) (87 Ill. 2d R. 366(a)(5)).

Proceeding in inverse order, we will consider first the issue of punitive damages. In Fopay v. Noveroske (1975), 31 Ill. App. 3d 182, 196-97, 334 N.E.2d 79, 91-92, we considered the propriety of an award of punitive damages in a defamation action. There we observed:

“The defendant further argues that an award of punitive damages is precluded by the first amendment in libel actions governed by the New York Times rule. This argument has been consistently advanced and just as consistently rejected by the Supreme Court of the United States. (Curtis Publishing Co. v. Butts, 388 U.S. 130, 159, 18 L. Ed. 2d 1094, 87 S. Ct. 1975, 1994 (1967).) ***

While the recent decision of Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974), will have wide-ranging impact on the law of defamation of private plaintiffs and their inability to recover punitive damages under a negligence standard, we do not read the decision as retreating from the Court’s previous holdings that punitive damages are properly recoverable under the actual malice text of New York Times. ***

So far as first amendment rights are concerned, a plaintiff who satisfies the New York Times rule may recover punitive damages; however, this is not to say that the States may not impose greater or additional tests as a condition to the recovery of punitive damages. (Cantrell v. Forest Publishing Co., 419 U.S. 465, 42 L. Ed. 2d 419, 95 S. Ct. 465 (1974); Davis v. Schuchat, 510 F.2d 731 (D.C. Cir. 1975); see also Buckley v. Littell, 394 F. Supp. 918 (S.D.N.Y. 1975).)”

It is well established in Illinois that punitive damages may be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression, or when a defendant acts wilfully or with such gross negligence as to indicate a wanton disregard of the rights of others. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353; Warren v. Le May (1986), 142 Ill. App. 3d 550, 491 N.E.2d 464.) While the purpose of punitive damages is punishment and deterrence, the initial question to be answered is whether the facts and circumstances of the particular case justify their imposition; this is a question of law. (Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 454 N.E.2d 210.) Nevertheless, because of their penal nature, punitive damages are not favored in the law, and the courts must take caution to see that punitive damages are not improperly or unwisely awarded. Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 454 N.E.2d 210; Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353; Warren v. Le May (1986), 142 Ill. App. 3d 550, 491 N.E.2d 464.

Since actual.malice is the gist of plaintiff’s libel action against defendants, it would ordinarily be thought to be one of those types of action that, with the proper findings, justifies an award of punitive damages. (Fopay v. Noveroski (1975), 31 Ill. App. 3d 182, 334 N.E.2d 79.) However, Illinois has come to recognize the proposition that if the factors that ordinarily justify an award of punitive damages are themselves the basic elements necessary to be established in order to recover compensatory damages, an award of punitive damages in addition to the compensatory damages constitutes an impermissible double recovery. This principle has been established and developed in the supreme court cases of Dethloff v. Zeigler Coal Co. (1980), 82 Ill. 2d 393, 412 N.E.2d 526, Hammond v. North American Asbestos Co. (1983), 97 Ill. 2d 195, 454 N.E.2d 210, and Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 489 N.E.2d 1374. In Dethloff v. Zeigler Coal Co. (1980), 82 Ill. 2d 393, 412 N.E.2d 526, the defendant was guilty of a wilful trespass to plaintiff’s land in the mining and removal of coal. The supreme court refused to permit the defendant to deduct its costs of production in the assessment of damages “to discourage misconduct of that nature.” The court stated:

“Turning to a contention of the plaintiffs, we hold that the trial court was correct in denying their claim that punitive damages were warranted. As we have observed above, the harsh rule on damages applicable to a wilful trespasser and converter of coal is by its very nature punitive. The plaintiffs were awarded damages far beyond what they would have received through royalty payments, and the defendant should not be liable for what would be in effect punitive damages upon punitive damages.” (82 Ill. 2d 393, 413, 412 N.E.2d 526, 536.)

In Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 454 N.E.2d 210, the result was less direct in its bearing on the proposition before us, but nevertheless we regard it meaningful in its import. There the plaintiff was the wife of a worker who had been injured by the inhalation of asbestos fibers. The husband’s action for damages had been barred by the statute of limitations, but the wife’s action for loss of consortium was viable. In it she sought both compensatory and punitive damages. Compensatory damages were approved but punitive damages were denied because the wife’s injury was derivative in nature. The court did, however, cite cases from the jurisdictions, as well as other authorities, that stood for the proposition that courts will not sanction a second award for punitive damages in a consortium action where a spouse has already received such an award. Such an additional award would serve to punish a defendant a second time and result in a double windfall to the injured party and the spouse. In Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 489 N.E.2d 1374, the plaintiff sought treble damages under section 3 — 602 of the Nursing Home Care Reform Act of 1979 (Ill. Rev. Stat. 1983, ch. 111/2, par. 4153 — 602). A second count of plaintiff’s complaint sought both compensatory and punitive damages based upon defendant’s wilful and wanton misconduct. The supreme court refused to permit the recovery of both treble damages afforded under the statute and common law punitive damages:

“[W]e agree with the parties that the treble-damages provision of the Act is punitive in nature (see Atchison, Topeka & Santa Fe Ry. Co. v. People (1907), 227 Ill. 270, 279; People ex rel. Fahner v. Climatemp, Inc. (1981), 101 Ill. App. 3d 1077, 1080-81), and that recovery of both treble damages and common law punitive damages would, under the circumstances of this case, constitute a double recovery for a single injury.” Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 361, 489 N.E.2d 1374, 1379.

It is with the teaching of the foregoing cases, and with consideration given to the policy regarding punitive damages, that we hold that where actual malice is the gist of an action for libel, as here, both compensatory damages and punitive damages cannot be recovered. In essence and in fact, the nature of the conduct that will justify a recovery of compensatory damages is the same as the conduct that must be shown in order to recover punitive damages. Accordingly, to allow both would constitute a double recovery.

We must agree with defendants that the amount of the award of compensatory damages is excessive. Although we consider defendants’ attack upon plaintiff’s character to be unduly harsh and vicious, the damages assessed must nevertheless bear a reasonable relationship to the harm suffered. We remain mindful, too, that in this case damages are presumed. Plaintiff himself gave no testimony regarding the harm he suffered. In fact, the only witness who testified as to plaintiff’s damages was his wife, who stated that plaintiff was “distraught,” “humiliated,” “incensed,” and “sleepless.” Others testified as to plaintiff’s excellent reputation in the community. We note, too, that the plaintiff was reelected as chairman of the St. Clair County board at the general election in 1982. Having due consideration for the nature of defendants’ publication and for the extent of the suffering caused to the plaintiff, and acting pursuant to the authority of Supreme Court Rule 366(a)(5), we reduce the judgment for compensatory damages to $200,000.

Judgment for punitive damages reversed; judgment for compensatory damages reduced from $450,000 to $200,000 and affirmed.

Affirmed and modified in part; reversed in part.

KASSERMAN, J., concurs.