In light of a fourth defamation lawsuit filed in response to a series of campaign flyers that were distributed ahead of the March 2018 primary election, questions linger about the space for anonymous and political speech in a local election.
Former McHenry County Board member Michael Rein is the fifth person to file a defamation lawsuit naming an anonymous money source – the Illinois Integrity Fund – and its alleged members as defendants.
County Board member Chuck Wheeler also has filed a lawsuit, and former County Board candidates Ersel Schuster and Orville Brettman have filed a joint suit.
The lawsuits come on the heels of a months-long court battle between McHenry County Clerk and Recorder Joe Tirio and the anonymous group that paid for what Tirio called defamatory campaign flyers.
Like Tirio and the plaintiffs who followed, Rein argued that the cartoon-like flyers and their “salacious” claims threatened his good reputation and caused him “mental suffering” and “personal humiliation.” Furthermore, the flyers’ creator or creators should have known that allegations, including Rein’s alleged violation of the Open Meetings Act, were false, he wrote in the suit.
In 2016, Rein was one of 18 County Board members who voted to rescind the county’s resolution backing former Gov. Bruce Rauner’s “Turnaround Agenda.” In exchange, the International Union of Operating Engineers Local 150 dropped its lawsuit alleging that board members met with Rauner before the vote in a violation of the Illinois Open Meetings Act.
The settlement included paying $25,000 to cover Local 150’s legal fees.
Rein is seeking $50,000 in damages for campaign flyers that accused him of billing the county $100,000 for health care and mileage reimbursements, and generally not “play[ing] by the rules.”
The former County Board member originally was believed to have won his race in the November midterm election. Once the county’s election website updated its results to include early voting numbers, however, it turned out that Rein lost to District 5 candidate Carlos Acosta.
Neither Rein nor his attorney, Charles Philbrick, could be reached for comment Tuesday. Rein denied each allegation in his complaint.
At the heart of the four defamation lawsuits filed since January are two issues that extend beyond McHenry County politics: Republican scrutiny of libel laws and a Democratic push for improved transparency in campaign finance reporting.
President Donald Trump has been vocal about his administration taking “a strong look at our country’s libel laws,” blasting the current standards as “a sham and a disgrace,” The Associated Press reported.
Former Republican U.S. Rep. Randy Hultgren of the 14th Congressional District even lamented during an Oct. 30 debate with his Democratic successor, Lauren Underwood, that “free speech, especially in political speech, is the least regulated of anything, so it is what it is.”
In the arena of campaign finance reporting, both Wheeler and Rein have said that the cost of printing the flyers likely exceeded $5,000, making their distribution a campaign violation because the Illinois Integrity Fund is not registered with the Illinois State Board of Elections.
McHenry County Board Chairman Jack Franks is named as either a defendant or a respondent in each suit.
Facing jail time on a contempt charge at a December hearing, Richard Lewandowski, president of Breaker Press – the Chicago-based union mail-order house that printed the mailers against Tirio before the March primary – named Michael Noonan, Franks’ former campaign director; former Illinois Attorney General Lisa Madigan; and Sean Tenner, a former aide of Barack Obama and owner of KNI Communications, as the people behind the Illinois Integrity Fund.
Tenner and Noonan, who also are named in each lawsuit, could not be reached for comment Tuesday.
Franks said he supports campaign reform but believes those who filed lawsuits are using the argument as a red herring.
“They’re just bullies,” Franks said. “They’re mean people. Extremists. And in some cases, they are violent people.”
In July 1975, Brettman told a Cook County grand jury that he took part in illegal activities with the “Legion of Justice,” which was suspected of partnering with the Chicago Police Department to burglarize left-wing groups. More recently, police traced the IP address tied to an apparent online threat against Franks’ life back to Schuster’s home. McHenry County State’s Attorney Patrick Kenneally did not prosecute.
Depending on the facts of the case, defamation suits filed by public figures can discourage residents from speaking up when they have concerns, said Brad Smith, chairman of the Institute for Free Speech and a James Madison fellow at Princeton University.
“I think the danger that you have is that politicians start filing complaints whenever you start criticizing them, and people can’t afford that, so they start to say, ‘OK I’m not going to criticize them,’ ” he said.
Public officials are tasked with a higher standard of proof in defamation cases for that reason.
Each of the public figures who filed defamation suits against the Illinois Integrity Fund must show that whoever was responsible for the flyers knew the accusations were false or ignored outstanding reasons to doubt the validity of the accusations.
Defamation suits such as those filed in McHenry County usually do not make it far, but if they were successful, other elements of free speech could be at risk, Smith said.
Tirio, whose efforts to file his defamation suit have had kind of a domino effect, said he doesn’t want to stifle free speech.
“I would like to think that what it has done is cause people to think more carefully about what they say,” Tirio said. “I think it has certainly caused some greater discussion among politicians and politics in general about what is good campaigning and what isn’t.”
Consolidated elections will be April 2 in McHenry County.
Although opposing campaign flyers can be offensive, it comes with the territory of being a politician, Smith said.
“These kind of mailings go on all the time, and it kind of goes along with being a public official,” he said.