The Volokh Conspiracy
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In Flood v. Wilk, decided Thursday by the Appellate Court of Illinois, a trial court had found that respondent Wilk had engaged in stalking of petitioner Flood—who had been Wilk's pastor at South Park Church—and issued an injunction under the Illinois Stalking No-Contact Order Act. That injunction, among other things, barred respondent from
communicating, publishing or communicating in any form any writing naming or regarding [petitioner], his family or any employee, staff or member of the congregation of South Park Church in Park Ridge.
The Appellate Court held—in my view, correctly—that this provision violates the First Amendment:
"[C]ontent-based laws, which target speech based on its communicative content, are presumed to be invalid." People v. Relerford, 2017 IL 121094, ¶ 32. When they silence protected speech, as this one does, they must survive the rigors of strict scrutiny. Few content-based restrictions ever do. "Government regulation of speech is content-based if a law applies to particular speech because of the topic discussed or the idea or message conveyed."
Since the trial court's order in the instant case targeted respondent's speech based on its subject matter—the church or its members—it would be considered a content-based restriction and presumptively prohibited. An injunction that prohibits respondent from writing anything at all about his pastor or any other member of his church congregation—whether flattering or unflattering, fact or opinion, innocuous or significant, and regardless of the medium of communication—certainly would not be that rare case that survives strict scrutiny. It is all but impossible to imagine a factual record that would justify this blanket restriction on respondent's speech. Paragraph (b)(5) of the order is substantially and obviously overbroad, and it violates respondent's first-amendment right to free speech.
Our supreme court has noted that "the United States Supreme Court has recognized that certain 'historic and traditional' categories of expression do not fall within the protections of the first amendment, and content-based restrictions with regard to those recognized categories of speech gave been upheld." … For instance, defamatory statements concerning petitioner would not be protected.
Similarly, threats made by respondent against the church or its congregants clearly would not be protected speech. "'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." …
In the case at bar, respondent's writings directed at petitioner and his church demonstrated that he viewed himself as the recipient of "Divine Intervention" and had a "responsibility to use [his] accurate and supernatural information" to prove that "there is a God in heaven and a devil in hell." Respondent's writings also established that he viewed petitioner as "influenced by the devil" and as a "tool of the devil" and further established that he believed there was "spiritual warfare between good and evil" (emphases omitted) and that he was "compelled to fulfill [his] destiny which was predicted since [he] was a child."
Respondent also included handwritten notes on several of his writings, telling petitioner on one: "By now you should realize that I am not walking away from this matter. I hope you realize your mistake and do the right thing" and stating on another: "Do you realize that what you did was 9 years ago and I still have not given up on what you did?" Petitioner testified that these communications had occurred for 10 years and were increasing in frequency and that, when he received these communications, he feared for his safety and for the safety of his congregants. While the language used by respondent may not have been an explicit threat to harm petitioner, the context of respondent's communications shows the passage of a long period of time since the perceived slight; an escalation in the communications; references to "spiritual warfare between good and evil," where respondent was identifying himself as "good" and petitioner as "evil"; respondent's belief that he was "compelled to fulfill" his prophesied "destiny"; and the fact that petitioner—the listener—had a reaction of fear for his safety and for the safety of his congregants.
"[S]peech or writing used as an integral part of conduct in violation of a valid criminal statute" is [also] not constitutionally protected. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949). " 'Where speech is an integral part of unlawful conduct, it has no constitutional protection.' " [But t]o fit within this narrow exception, this prohibited speech must be in furtherance of a separate crime—a crime other than the speech itself and one that the constitution allows the legislature to punish. An example would be a ban on advertising child pornography. The advertising itself is speech, but it is an "integral part" of the act of child pornography, a separate crime that may be validly prohibited, and because of that proximate link between the advertising speech and the separate crime, that speech may be prohibited, as well.
Here, the prohibited speech must be an integral part of the unlawful stalking in order to be unprotected. However, in this case, the trial court did not expressly find that respondent's comments rose to the level of posing a "true threat" to the physical safety of petitioner and his congregants. But without this link between the unprotected speech and a separate crime, the exception would swallow the first amendment whole: it would give the legislature free rein to criminalize protected speech, then permit the courts to find that speech unprotected simply because the legislature criminalized it. Our supreme court rejected exactly this misuse of the exception in Relerford, when the court found that the exception does not permit the legislature (or a court) to prohibit speech simply because it is distressing….
[There is] much conduct that is prohibited under the trial court's order that would be considered constitutionally protected. For instance, a letter to the editor that was published in the local newspaper would be prohibited under the order, yet it would be constitutionally protected. The trial court may not enjoin respondent from criticizing petitioner or his church, even though petitioner finds that criticism distressing. That criticism, circulated in respondent's leaflets, books, and other written media, is the principal target of the speech injunction in paragraph (b)(5) of the order. Respondent's speech, however, is protected by the first amendment, and any written criticism by respondent would be constitutionally protected.
Respondent's speech does not lose its protected status simply because it is distressing to petitioner. As Relerford emphasized, distressing speech is ubiquitous and unavoidable, both in everyday social interactions and when we are debating the topics of public concern at the core of the first amendment's protections. A business owner, for example, may well be distressed by speech criticizing his environmental practices, fearing that the speech could lead to a financially devastating boycott. However, that does not permit the legislature or a court to silence his critics.
Respondent has every right to criticize petitioner's ministry and his church more broadly. He has every right to argue that they have betrayed their commitments to marriage and family that the Christian faith requires of them. Respondent has every right to voice his opinion that his marriage would have survived if those commitments had been in place to support the marriage.
While the Act itself contains an exemption providing that "[s]talking does not include an exercise of the right to free speech or assembly that is otherwise lawful," the injunctive relief drafted by the trial court does not make clear that it applies only to otherwise unprotected speech, and by its broad terms, it would therefore prohibit constitutionally protected speech. Such content-based regulation "will be upheld only if necessary to serve a compelling governmental interest and narrowly drawn to achieve that end."
In the case at bar, as noted, the injunctive relief awarded by the trial court was broadly drafted to cover situations that would encompass constitutionally protected speech without any obvious rationale or factual basis for its scope. We therefore vacate that portion of the trial court's order in paragraph (b)(5) that states: "Respondent is prohibited from communicating, publishing or communicating in any form any writing naming or regarding [petitioner], his family, or any employee, staff or member of the congregation of South Park Church in Park Ridge, IL."
Respondent's proselytizing has no doubt distressed petitioner. Petitioner alleged in his petition that it has "raise[d] questions" among some of the letters' recipients about his own "credibility" and that of the church and that responding to their concerns has been, in his view, "an unwanted distraction and excessive waste of time." However, we cannot silence respondent when he is voicing protected criticism, no matter how much time, energy, or distress it costs petitioner. Even less can we silence respondent on the ground that his criticisms of petitioner may have gained some traction—as if we can shield petitioner from the need to answer allegations that, in the minds of some individuals, really do demand answers. That is viewpoint discrimination. See McCullen v. Coakley, 134 S. Ct. 2518, 2532-33 (2014) (speech prohibition that "favors one side in [a] *** debate" is viewpoint discrimination, "an egregious form of content discrimination" (Internal quotation marks omitted.)).
If you're interested in more details about respondent's past speech, which led to the order, here's an excerpt, though you might want to read the whole opinion:
On August 17, 2017, petitioner filed a petition alleging that there had been a significant increase in unwanted contact in the last two months by respondent towards petitioner that had caused increased anxiety to the staff of the church, the congregation, and the neighborhood. The petition set forth details of three separate incidents occurring between June 27 and August 6, 2017, all of which occurred at South Park Church. The first incident occurred on June 27, 2017, and consisted of respondent visiting the office of the church, where the staff "had previously been advised not to allow [him] entrance to the building." The receptionist notified a staff member, who went outside and asked respondent to leave. After giving the staff member a copy of his book, respondent left.
The second incident occurred on Sunday, July 2, 2017, and consisted of respondent distributing disparaging letters on the windshields of automobiles in the parking lot of South Park Church during one of its morning services. The next morning, petitioner reported the incident to the Park Ridge police.
The third incident occurred on Sunday, August 6, 2017, and consisted of respondent again distributing disparaging letters on the windshields of automobiles in the parking lot of South Park Church during its second worship service. A church member observed respondent distributing these letters and informed a staff member, who asked respondent to leave. In response, respondent "declared he had a right to be there until the staff person said she would call police."
In addition to the three specified incidents, the petition contained a "History" section detailing respondent's alleged conduct. In this section, petitioner alleged that "[respondent] has been attacking my reputation and the reputation of South Park Church (among many other people and organizations) for ten years. A letter was sent to [respondent] from the leadership of South Park Church in February, 2007, stating the following: 'Please do not call, visit, or write additional letters to us regarding the issues mentioned above.' Yet erratic contact has persisted for a decade." Petitioner alleged that this activity included (1) "[s]ending letters repeatedly to addresses of current and former members of South Park Church found in an old church directory," (2) "[s]ending unwanted emails to South Park Church staff with content parallel to his letters," (3) "[g]oing door to door to neighbors of South Park Church to deliver letters," (4) "[r]epeatedly asking for appointments with [petitioner] even though he [was] repeatedly told no and asked to cease all contact," and (5) "[d]istributing flyers in the parking lots of Walgreens at Devon/Talcott and Mariano's [at] Cumberland/Higgins."
As an example of one of the fliers in evidence that respondent distributed, one bears the heading "South Park Church and [petitioner] is a corrupt church which needs to be thoroughly exposed. Here's why." The flier claims that petitioner "is a disgrace to Christianity" because he refused to suggest marital counseling when respondent's wife left him after 40 years of marriage.
Respondent repeatedly referred to petitioner and his church as "corrupt" and used petitioner's conduct as an example of "how the devil gets into churches." For instance, in an August 6, 2017, letter, respondent stated that, due to petitioner's actions, respondent "was compelled to write and publish the book entitled, 'The devil's intervention into healthcare, politics, churches, courts and families.' " (Emphasis omitted.) Respondent also stated that petitioner "cannot be that stupid but he sure can be that influenced by the devil according to the Bible."
Respondent also explained how, as a child, "[he] had [his] entire future completely outlined in fine detail with over 20 predictions well over 60 years in advance with 100% accuracy and never once wrong." Respondent believed that the family friend who provided these predictions was his "guardian angel sent by God" and that "God gave [him] a glimpse into [his] future and a responsibility to use [his] accurate and supernatural information so [he] could realize that there is a God in heaven and a devil in hell."
These same sentiments appear in a July 2, 2017, letter, in which respondent also notes, with respect to the predictions: "I could not have gotten such fine detailed predictions without Divine Intervention, and I can back up every word I say here with a polygraph test. *** I received a gift which I can use to destroy any atheist in a debate with scientific proof that should satisfy the most hard-nosed scientist. I will challenge any atheist and I will clean their clock big time. That is if any is willing to challenge me. What I will be using is called the Science of Probability. Unfortunately some of our pastors have blinders on and can't see it. Maybe this message will open their eyes as I am compelled to fulfill my destiny which was predicted since I was a child. And believe me it will happen!" (Emphasis in original.)
On December 13, 2009, respondent sent a letter to "the entire staff at South Park Community Church," which included as enclosures correspondence between respondent and a California court, where respondent was apparently engaged in court proceedings concerning his estranged wife. One enclosure was entitled "Cover Letter" and included bullet points refuting his wife Ardith's claims: "1) Regarding Ardith's concern of my going to California"; "2) Regarding Ardith being fearful of me as having a mental illness"; "3) Regarding Ardith claiming I am talking about fulfilling prophesies"; "4) Ardith alleges that I said she is 'possessed' by the devil"; "5) Ardith alleged that I would 'fix' her"; "6) Ardith and her daughters keep insisting I am egotistical and narcissistic"; "7) Ardith alleges that I am Delusional"; "8) Ardith noted that South Park Church 'banned' me from going there"; "9) Regarding being 'unloved' by [respondent]"; "10) Regarding Ardith's accusations about [respondent] swearing"; and "11) [Respondent] claiming the devil is influencing the family." This communication to the California court also noted that one of respondent's daughters had obtained a restraining order against respondent, claiming that she "could not sleep nights and felt intimidated by her dad." The "family history" portion of the communication ended by stating: "The real message to be gotten here is that this is spiritual warfare between GOOD and EVIL. The facts speak for themselves in the eyes of God and reasonable minded people." (Emphasis in original.)
The petition also contained a section entitled "Effects of the Incidents on Petitioner," which provided that "[s]taff members and church members have expressed increased concern for the reputation of the church and increased anxiety about keeping our congregation safe. My family, our staff, and our church leaders are concerned for their own well-being as well as that of our congregation. The obsessive nature of the criticism makes us fear a future elevated response by [respondent] that could cause disruption of ministry or worse." Petitioner further alleged that "[t]here are many untrue statements made in the letters that discredit me. Though many people disregard the letters due to their bizarre and ranting nature, it also raises questions among others that undermine my credibility." Finally, petitioner alleged that "[e]very letter and visit by [respondent] is an unwanted distraction and excessive waste of time as we answer questions and respond to concerns."