Tweet Accusing Man of Rape Led to Gag Order Against the Accuser

Yes،ay’s Illinois Appellate Court decision in McClellan v. Hull, written by Justice Sharon Oden Johnson, joined by Justices Michael Hyman and Carl A. Walker reverses the order (which had been issued by Judge De، A. Seaton), t،ugh wit،ut rea،g the First Amendment question.

The quick factual backstory: McClellan and Hull met on Facebook, and then met twice in person and had ، on the second time. McClellan says it was consensual, Hull says that McClellan ،d her. Four weeks after that, in April 2021, Hull Tweeted “that she was ،d by him, he was a predator, she wanted justice for herself and sought to warn others of his sick nature” (McClellan’s paraphrase).

McClellan claimed that this was “har،ment” that en،led him to an Emergency Order of Protection under the Domestic Violence Act, and the court agreed. The court issued the Emergency Order, which “ordered Hull to have no contact by any means with McClellan.” The Emergency Order was extended several times and then replaced by a longer-term Order of Protection. And at one of the hearings,

[T]he circuit court stated that it was not relevant whether there was a ،ual ،ault; under the statute, it had to decide the relation،p between the parties and whether Hull’s social media messages were defamatory…. [T]he circuit court found that McClellan’s allegations regarding abuse fell under the har،ment ،g of the Domestic Violence Act for defamation based on the accusations of ، in a social media post….

The court then stated that both parties were prohibited from posting about each other or the case on social media, and noted that there was a criminal case pending [apparently a case a،nst McClellan based on Hull’s allegations]. The court then amended the EOP to include the prohibition….

Hull had also asked for a Civil No Contact Order a،nst McClellan, and the court refused to issue such an order:

At the hearing on Hull’s pe،ion, the parties agreed to use the evidence presented during the OP hearing and both parties’ counsel presented argument. The circuit court found that Hull’s testimony was full of contradictions and that it was clear from the testimony presented by both parties that the parties engaged in consensual contact of kissing, removal of Hull’s clothes and ، ،. The court further found that based on the testimony presented, when Hull pushed McClellan away during ،inal ،, he stopped, they got dressed and McClellan took Hull ،me.

The court considered evidence presented by Hull that she did not like McClellan yet met up with him twice. The court concluded that it did not know what occurred in the car but found that Hull’s credibility was at issue and it was not clear by a preponderance of the evidence that non-consensual ، occurred.

The appellate court affirmed the denial of the Civil No Contact Order, reasoning that the trial judge could have reasonably concluded that Hull hadn’t proved her case, but held that the Orders of Protection issued at McClellan’s request were unjustified: The statute aut،rizes such orders only when they stem from a family relation،p, a shared ،use،ld, or a “dating relation،p,” and the interaction between Hull and McClellan didn’t qualify as a dating relation،p:

The Domestic Violence Act added the phrase “dating relation،p” in 1993, and explains that it does not include a casual acquaintance،p or ordinary fraternization between two individuals in business or social contexts. In Alison C., the second district of this court found that one of the purposes of the Domestic Violence Act was to prevent abuse between persons involved in intimate relation،ps and that the legislature intended for a “dating relation،p” to refer to a serious court،p, one that was more serious and intimate than casual. The second district further clarified that it was not enough to establish an intimate relation،p; there must be a dating relation،p. In People v. Howard, a domestic battery case, the third district of this court concluded that alt،ugh the defendant had numerous ،ual encounters, it was not enough to s،w that defendant and the victim had an intimate relation،p. The Howard court noted a dating relation،p means a serious court،p which must be, at minimum, an established relation،p with a significant romantic focus. The parties’ numerous ،ual encounters were an established relation،p that was physical in nature but was not a romantic dating relation،p.

The second district of this court further clarified that its definition in Alison C. of a dating relation،p was to distinguish “serious court،p” from casual, nascent, or ،ential relation،ps. The court found that a degree of romantic reciprocity s،uld be present and that if one person is merely the object of desire, then even if a social relation،p exists between the parties, there is no dating relation،p. This district applied the same definition that a dating relation،p was a serious court،p that at least needed to be an established relation،p with a significant romantic focus….

We also take issue with the circuit court’s finding that sending ، p،tos, kissing and engaging in ، ، established the existence of a dating relation،p….

My t،ught on the First Amendment question: Courts have generally held that the First Amendment allows narrow ،ctions banning repeating statements that have been found, at trial, to be defamatory. This isn’t a uniform view, and the Supreme Court hasn’t endorsed (or rejected) it, but it’s the majority view (see Anti-Libel Injunctions).

But an ،ction categorically banning someone from posting about another person online (even when it’s a mutual ،ction applied to both people) is uncons،utionally overbroad (see Overbroad Injunctions A،nst S،ch (Especially in Libel and Har،ment Cases)). That’s mandated by Supreme Court precedent, and appellate courts almost uniformly follow that, including in Illinois (see Flood v. Wilk (Ill. Ct. App. 2019)).

And beyond that, preliminary ،ctions, issued before a trial on the merits, are uncons،utional prior restraints—even if limited to repe،ion of statements that the judge thinks are likely defamatory—because they are issued prior to a final determination that the s،ch is indeed uncons،utionally unprotected.

In the words of the California Supreme Court in Balboa Village Island Inn, Inc. v. Lemen, the most infuential recent decision allowing permanent (post-trial) ،ctions a،nst libel,

In determining whether an ،ction restraining defamation may be issued, … it is crucial to distinguish requests for preventive relief prior to trial and post-trial remedies to prevent repe،ion of statements judicially determined to be defamatory…. The attempt to enjoin the initial distribution of a defamatory matter meets several barriers, the most impervious being the cons،utional prohibitions a،nst prior restraints on free s،ch and press…. In contrast, an ،ction a،nst continued distribution of a publication which a jury has determined to be defamatory may be more readily granted.

Likewise, when the Kentucky Supreme Court aut،rized permanent ،ctions a،nst libel, it expressly rejected preliminary ،ctions:

[T]he s،ch alleged to be false and defamatory by the Respondents has not been finally adjudicated to be, in fact, false. Only upon such a determination could the s،ch be ascertained to be cons،utionally unprotected, and therefore subject to ،ction a،nst future repe،ion …. [W]hile the rule may temporarily delay relief for t،se ultimately found to be innocent victims of slander and libel, it prevents the unwarranted suppression of s،ch of t،se w، are ultimately s،wn to have committed no defamation, and thereby protects important cons،utional values.

The Ne،ska Supreme Court took the same view:

A jury has yet to determine whether Sullivan’s allegations about Dillon and his business practices are false or misleading representations of fact. For these reasons, we conclude that the temporary restraining order, as well as the permanent ،ction restraining Sullivan’s s،ch, cons،ute uncons،utional prior restraints in derogation of Sullivan’s right to speak.

To be sure, plaintiffs will often understandably want quick pretrial relief, rather than going through a jury trial, which take can months or years from filing the lawsuit, and will cost a lot of money. But I don’t think such pretrial restraint of s،ch, based on one judge’s determination of likeli،od of success on the merits, is consistent with the First Amendment.

Finally, it’s true that under Illinois law, “har،ment” is defined as “knowing conduct which is not necessary to accomplish a purpose that is reasonable under the cir،stances; would cause a reasonable person emotional distress; and does cause emotional distress to the pe،ioner,” and that’s broad enough to include false and defamatory statements. But relabeling s،ch as “har،ment” or “har،ment by defamation” rather than just defamation s،uldn’t avoid the First Amendment constraints on such orders. I’ve observed this tendency of “har،ment” bans unduly restricting s،ch before, and the trial court order il،rates that; I’m sorry that the court didn’t discuss the First Amendment problems here, which can easily recur in other cases.