COUNSEL:
Ronald H. Balson, Law Office Ronald H. Balson, Chicago, Illinois, Attorney for Plaintiff.

Edward W. Feldman, Northwestern Univ. Law Clinie, Chicago, Illinois, Attorney for Defendant.

OPINION (EASTERBROOK):

Dorothy Stevens was the principal of Mollison Elementary School in Chicago between 1962, when it opened, and 1981. Her career at Mollison ended unpleasantly. In December 1980 Dorothy Tillman was elected president of the Mollison School Local Advisory Council, a parent-teacher association sponsored by Chicago's Board of Education. Tillman launched the Council on a crusade to remove Stevens as principal. Tillman and supporters occupied Stevens's office at the school for three days running and served her with an "eviction notice"; they organized a boycott that (they claimed) kept more than 80% of the students out of school; they distributed handbills, picketed the school, and delivered tirades against Stevens at meetings of the Board of Education. In the spring of 1981 Stevens took five months' paid leave and was replaced as principal by Edith Dervin, whereupon the Local Advisory Council declared victory. When she returned to Chicago from her recuperation in Florida, Stevens was posted to another elementary school as principal. Tillman, by then a well-known figure, was elected to Chicago's City Council; Stevens retired at age 65 in 1985.

This case presents a claim under 42 U.S.C. 1985(3) and two pendent claims under state law, defamation being the leading one. We shall need to decide some difficult questions concerning the difference between "facts" and "opinions" in the law of defamation and the scope of liability under section 1985(3) for conspiracies that violate state but not federal law.

The sit-in was illegal as trespass, and the boycott was a violation of the state's mandatory-attendance laws. Although the police arrested the parents for trespass in order to clear Stevens's office, the state's attorney chose not to prosecute them, and Stevens is not entitled to enforce these laws herself. The sit-in, during which Stevens was placed in fear for her person, was most likely an assault under Illinois law. An episode in which Tillman, backed by a crowd, shouted "Get her out of here or we are going to come and get her. We are going to come and get her ourselves" would put many a person in fear. For reasons she has kept to herself, Stevens chose not to complain about this; instead she filed suit under 42 U.S.C. 1985(3). Stevens is white. Tillman and her aides, like almost all of the students at Mollison, are black, as is Edith Dervin. Stevens contends that Tillman campaigned to get rid of her on the basis of race, which Stevens believes violates section 1985(3) because in the process Tillman violated rights secured by state law. Tillman insists, to the contrary, that Stevens was dictatorial, condescending, and ineffectual; defects in her performance, and not her race, were the basis of the campaign against her. This attack on Stevens's fitness for her position led Stevens to present two state-law claims under the court's pendent jurisdiction: defamation and inducement to breach of contract.

During the pretrial proceedings, the district court held that all three claims presented triable issues. 568 F. Supp. 289 (N.D. Ill. 1983), modified in part by order of November 2, 1984. The section 1985(3) claim is sufficient, the court believed, because it alleges that the defendants (Tillman and other members of the Local Advisory Council) conspired on racial grounds to influence the Board of Education, a governmental body. The libel and inducement claims, the court thought, depend on factual issues that only a jury may resolve. Before the trial got under way, the case was assigned to another judge, who took a different view of things.

After Stevens had presented her case to the jury, the court granted judgment for the defendants on the inducement count under Fed. R. Civ. P. 50(a), finding that the Board of Education had not broken its contract with Stevens, so that the defendants could not be liable for inducing a breach. 661 F.Supp. 702, 712-13 (N.D. Ill. 1986). The court pared back the number of statements the jury would be allowed to consider under the defamation claim, holding that some were not clearly "of and concerning" Stevens and that most of the others to which Stevens objected are constitutionally protected as opinion. Id. at 708-11. And although the court allowed the trial of the section 1985(3) claim to continue, id. at 705-07, it concluded that only proof of violent or unlawful acts would be sufficient to make out a case; to the extent the section 1985(3) claim rested on public statements and lobbying, the constitutional right to petition the government for redress of grievances prevented liability. Even this allowance was withdrawn at the end of the defendants' case, when the court dismissed the section 1985(3) claim after concluding that Stevens had not been deprived of a federally-protected right.

Nine potentially-defamatory statements went to the jury, which was instructed that it could return a verdict for Stevens only if it concluded that the statement is false and that clear and convincing evidence shows that the speaker knew the statement to be false or acted with reckless disregard for the truth. The jury returned special verdicts answering, statement-by-statement, whether the speech is false; if it is, whether clear and convincing evidence showed that the defendant knew of its falsity or was reckless; if it is false and the speaker acted with the necessary scienter, whether Stevens suffered damages; and, if so, the damages attributable to that statement.

The jury found that at a public meeting of the Board of Education, Tillman made these false statements:

One child [in the entire school, covering grades K-8] was doing math at a sixth grade level and he was an eighth grade student, and the rest was below. She [Stevens] called all the parents a bunch of welfare mothers, a bunch of welfare children.

One reason we were able to have an eighty-five to ninety percent effective boycott is because nine out of ten mothers in that school have been told by Miss Stevens that their child needs psychological, not to mention some of the other things that she told them.

We have teachers put in the wrong places. That's one of the reason our children are not learning.

Her testing system was not working, yet she would not change it. The results are: only one child doing math on sixth grade level; and the majority of students are reading below grade level.

The judge gave the jury two other statements from the handbill:

As of today, only half of the students have been tested this year for their levels.

Miss Stevens told several reporters that most of Mollison's parents are on ADC.

The teachers are afraid of her.... They are afraid of Miss Stevens. They have called me one by one and said, "You're absolutely right. We know what's going on, but if we speak up, she will write us up and we will be -- then we'll get dismissed from the school."

Stevens contends on appeal that the jury, having found liability, was required to set damages at $1 million rather than $1.00. This is fanciful. It may be, as Stevens says, that she was humiliated by the campaign, suffered illness as a result of the vilification, and was led to retire earlier than she had planned to do because no other school held for her the attraction of Mollison, which she had helped to found. Still, a single statement in the course of an organized protest movement has almost no effect; a jury trying to value the damages attributable to this statement, on the assumption that everything else that transpired is lawful, had little choice but to return the customary figure of $1.00 as nominal damages. Stevens fares no better on the claim of tortious interference with contract. We agree with the district court that the Board did not break its contract with Stevens, see 661 F.Supp. at 712-13, which dooms this claim; we discuss it no further. Stevens argues weakly that the district judge erred by granting a two-month continuance in mid-trial during the illness of one of defendants' lawyers; such matters are committed to the court's discretion. This leaves several contentions, however, each entailing multiple legal issues. Stevens insists that all of the statements should have been submitted to the jury; that she did not have to prove scienter by clear-and-convincing evidence (or at all); and that the defendants violated section 1985(3).

Stevens has filed two notices of appeal. No. 87-1031 was filed in mid-trial and challenges the grant of judgment on the interference-with-contract claim at the end of plaintiff's case. No. 87-1200 was filed on entry of the final judgment. We dismiss No. 87-1031 as premature; No. 87-1200, however, brings up the entire case.

The district court granted judgment for defendants as a matter of law on two categories of statements: those that did not mention Stevens by name, and those that the court characterized as opinion.

Under Illinois law statements that reasonably may be read as referring to someone other than the plaintiff are not actionable. Chapski v. Copley Press, 92 Ill. 2d 344, 442 N.E.2d 195, 65 Ill. Dec. 884 (1982). The district court apparently believed that under Chapski only statements referring to the plaintiff by name are actionable. No Illinois case supports that proposition; insinuation can be as devastating as name-calling. See Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 267 (7th Cir. 1983) (Illinois law). A statement that logically refers to a particular person may be actionable; Chapski held that "the words and the implications therefrom [should be] given their natural and obvious meaning" (442 N.E.2d at 200), not that every possible inference is to be indulged in the speaker's favor. The first amendment does not contain a direct-reference requirement, Saenz v. Playboy Enterprises, Inc., 841 F.2d 1309, 1313-17 (7th Cir. 1988), so it is unnecessary to read Illinois law that way to avoid unconstitutionality.

Any error in this respect is harmless, however. Stevens's brief on appeal presses, as her best case of defamation by innuendo, statements Tillman made on December 17, 1980.

We are having quite a few problems at Mollison.

Only one student at Mollison was doing math at a sixth grade level. The rest are below.

The children are endangered.

Our children are not doing math.

Another, much larger, category of statements was removed from the jury's purview as "opinion". Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974), holds that the first amendment prohibits attaching civil liability to statements of opinion. Ever since, courts have wrestled with the question "what's an opinion?" and have come up with buckets full of factors to consider but no useful guidance on what to do when they look in opposite directions, as they always do. E.g., Fudge v. Penthouse International, Ltd., 840 F.2d 1012, 1015-17 (1st Cir. 1988); Dunn v. Gannett New York Newspapers, Inc., 833 F.2d 446, 452-55 (3d Cir. 1987); Potomac Valve & Fitting Inc. v. Crawford Fitting Co., 829 F.2d 1280, 1286-90 (4th Cir. 1987); Janklow v. Newsweek, Inc., 788 F.2d 1300 (8th Cir. 1986) (en banc); Ollman v. Evans, 242 U.S. App. D.C. 301, 750 F.2d 970, 979-84 (D.C. Cir. 1983) (en banc) (plurality opinion). This is hardly a satisfactory state of affairs. See Note, The Fact-Opinion Determination in Defamation, 1988 Colum. L. Rev. 809 (1988).

Gertz requires a court to separate "fact" from "opinion", a task we have carried out when necessary, see Quilici v. Second Amendment Foundation, 769 F.2d 414, 418-21 (7th Cir. 1985); Brown & Williamson Tobacco Corp. v. Jacobson, 827 F.2d 1119, 1129 (7th Cir. 1987), without producing a useful definition of "opinion." The parties press different views on us, but we resist the temptation to come up with a new and "better" definition, in part because fact cannot be separated from opinion by ever-more-elaborate definitions. Every statement of opinion contains or implies some proposition of fact, just as every statement of fact has or implies an evaluative component. Even the statement "I don't like the color blue" implies a proposition about the speaker's sensibilities; he could be lying about his own dislikes or mistaken in the sense that on further reflection he would say something different about the color blue. The statement "mauve is a lousy color" implies "I don't like mauve", with the same difficulties. The statement "socialism is better than capitalism", seemingly an opinion dependent on the speaker's preferences about control of productive assets, could be false in the sense that the speaker, who holds certain values, might conclude after reflection (and access to data) that capitalism serves his own values better than socialism does. Much modern political and ethical philosophy consists in efforts to demonstrate that statements about justice and other hard-to-pin-down terms may be reduced to less contentious statements that will be accepted (with their logical implications) in a way that produces agreement. Statements of "pure" opinion also may imply or depend on facts. One may say "Jones has a tin ear", implying something about his behavior that may be false. One may say "George Stigler did not deserve the Nobel Prize" because one believes that Frank Knight should have received it; but Knight died before Stigler received the prize, and on learning that there are no posthumous Nobel Prizes this person too might favor Stigler. The statement "no one will ever build a heavier-than-air flying machine" is opinion in 1900 and false in 1905. The statement "Paul Morphy was a better composer than Wolfgang Amadeus Mozart" appears to be an egregiously erroneous statement of either opinion or fact -- until you realize that the speaker must have meant "composer of chess puzzles". The statement "2 + 3 = 5", apparently one of "fact", implies something about the speaker's use of "+", particularly that he thinks "+" signifies addition, in base six (or higher). See Saul A. Kripke, Wittgenstein on Rules and Private Language 8-24 (1982), for a brief description of the many opinions and related beliefs underlying something as simple as the use of "+". It could be a statement about a very different kind of math -- or maybe not a statement about any kind of math. Even axiomatic math cannot yield "factual" (logically true) statements about all interesting arithmetical relations, as Godel and Turing established. See Ernest Nagel and James R. Newman, Godel's Proof (1958); Gregory J. Chaitin, Randomness in Arithmetic, 259 Scientific American 80 (July 1988). The reason Fermat's Last Theorem remains unproven (and unrefuted) may be that it is neither true nor false -- just an "opinion" about numbers.