On Thursday the Illinois Supreme Court gave journalists what they wanted, handing down an opinion that keeps alive the state’s innocent construction rule. That’s the rule that lets judges decide defamation cases at the outset in favor of the defendants by declaring that the language at issue could reasonably be interpreted — that is, interpreted without abusing common sense — in a way that’s not defamatory.

But the journalists who were the defendants in the case at hand, Tuite v. Corbitt, got  nothing — except, possibly, grounds for a rehearing.  Overturning an appellate court decision, the supreme court announced that the innocent construction rule offered no protection to the authors and publisher of Double Deal, a 2003 book about the mob. In seeming violation of its own explanation of how the rule should be applied, the majority opinion also makes it clear the court thinks the plaintiff, Patrick Tuite, was defamed. 

Tuite’s a prominent Chicago defense attorney. Double Deal was written by the late Michael Corbitt, a mobbed-up cop, and San Giancana, godson of the late Chicago don. According to the book, the 77-year-old mob boss Joe Aiuppa, sick and facing federal charges, sent Corbitt to Salt Lake City to pick up a couple duffel bags stuffed with a million dollars, and with that money Aiuppa hired Tuite to get him off. “All the guys were sort of semijubilant,” Corbitt wrote. “Everybody figured Tuite had it all handled. To Aiuppa and his codefendants, it was like it was a done deal, like they were all going to be acquitted. So you can imagine their reaction when they were all found guilty…. I’ve never understood why Pat Tuite didn’t get whacked.”

Tuite sued, arguing that no one had paid him a million dollars, that he’d done nothing criminal to get Aiuppa off, and that he hadn’t even represented Aiuppa. The trial judge and then a split appellate court ruled against him — on the grounds that an innocent construction of the book’s language would have it as no more than a tribute to Tuite’s legal skills. Tuite asked the court not merely to overturn these lower-court opinions but to abandon the innocent construction rule itself as an “anachronism” that had been rejected by almost all other states. The Reader, the Sun-Times, the Tribune, and other media outlets joined in a friend-of-the-court brief advising the supreme court that to dump the rule would be “profoundly ill-advised.”

Five justices heard Tuite’s appeal — chief justice Robert Thomas and newcomer Anne Burke abstained — and they unanimously reversed the appellate court. Justice Charles Freeman wrote a separate opinion arguing that the innocent construction rule had worn out its welcome, but the other four justices decided to hang on to it.

Their opinion, written by Justice Thomas Kilbride, explains how the rule should work:

The threshold question, under Illinois law, is whether a “statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff.” That’s a question for a judge to answer, and if the answer’s yes, then the statement isn’t defamatory.

“If the initial determination is resolved in the plaintiff’s favor” — if the judge’s answer is no — then the case continues to trial. “Whether the statement was in fact understood to be defamatory or to refer to the plaintiff is a question for the jury.”

In other words, to the question “Is there an innocent construction?” the judge can answer one of two ways: “yes” or “I don’t think so.” Only the jury can answer “no.”

But that’s not how the supreme court handled Tuite’s appeal. Possibly out of a desire to protect the innocent construction rule while also giving Tuite his due, the court answered no —  instead  of leaving that decision to a jury. As Kilbride wrote, “Given the overwhelming focus on corruption in this book, these statements cannot reasonably be given an innocent construction…. There is simply no basis for a reasonable reader to believe that defendants implicitly intended to compliment Tuite’s trial skills…. We conclude that a defamatory construction of the disputed statements is far more reasonable than any innocent construction…. Any innocent construction of these statements would be strained and unreasonable.”

Tuite had argued that the innocent construction rule gives a jury no say in the matter. Four of the five justices disagreed with him on that, yet their opinion leaves a jury — the case was sent back to the trial court — with nothing to decide on the subject of defamation. If a trial judge had rejected an innocent construction defense in language so categorical and ringing, it would probably be grounds for appeal.