A newspaper advertisement harshly criticizing a competitor for a discount sale might have been distasteful and juvenile but also was constitutionally protected free speech, the Illinois Supreme Court ruled Thursday.
Chicago men’s clothing store Imperial Apparel took competitor Cosmo’s Designer Direct to court after Cosmo’s ran an ad in October 2004 in the Chicago Sun-Times.
Cosmo’s ran the ad to notify customers that it was unhappy that Imperial was touting a new 3-for-1 sale, which Cosmo’s was known for offering.
The wide-ranging ad did not mention Imperial by name, but did refer to “Empire rags center.” It said the competitor had the integrity of the “Iraq information minister” and that the 3-for-1 was an imitation offer that “has the transparency of a hooker’s come on.”
Imperial’s owners responded by suing Cosmo’s and the Sun-Times for running the ad, saying it was defamatory and damaged the company’s reputation.
An appellate court partially agreed with Imperial’s argument.
But the Supreme Court determined that the ad wasn’t defamatory because its statements couldn’t be viewed as facts about Imperial.
“The text is artless, ungrammatical, sophomoric and sometimes nonsensical,” Justice Lloyd Karmeier wrote in the court’s opinion.
“We do not believe, however, that an ordinary reader would perceive it as making objectively verifiable assertions about [Imperial’s] business.”
Imperial lawyer Edward Feldman said Thursday he hadn’t talked with Imperial’s owners about the next step in the case. The company changed its name to Suits 20/20 in recent years in an unrelated business decision, Feldman said.
“We think this was a vicious and intentional libel and that the ad contained facts that are defamatory and not mere opinion,” Feldman said.
Cosmo’s lawyer James Wolf said the company was pleased with the outcome.
“The law is offensive speech does not render it defamatory,” Wolf said.
Wolf and Sun-Times lawyer Damon Dunn agreed that advertisers and newspapers can breathe easier with Thursday’s ruling.
Advertisers could have been scared away from aggressive competition and newspapers could have been forced to screen ads and even letters to the editor for factual accuracy if the ruling had been different, they said.
“We think that this means that we won’t have all these lawyers and judges and juries all looking over our shoulders,” Dunn said.
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