Illinois Appellate Court Overturns a Stop-Posting-About-Plaintiff Order

Trial court: "I understand that you have a first amendment privilege, but sometimes the first amendment privilege contravenes certain statutes that are enacted by the State ...." Appellate court: That's "a misunderstanding of the relationship between statutes and constitutions."

From Thursday's Appellate Court of Illinois decision in Pokorny v. DeBolt, written by Justice Joseph Birkett and joined by Justices Susan Hutchinson and Donald Hudson:

A plenary order of protection barring respondent from disseminating on social media any information identifying petitioner in any way, was improper. The petitioner failed to meet her burden to show that the first amendment did not protect respondent's communications that were the basis for the order.

Respondent, Lori W. DeBolt, appeals a judgment issuing a plenary order of protection under the Stalking No Contact Order Act … and an injunction in favor of petitioner, Amber Pokorny, and her daughters, A. Z. and A.V….

[P]etitioner listed the following seven writings as justifying the requested order. On June 28, 2020, respondent "post[ed]" that she was praying for "Billy," who had not seen his daughter for a year. On July 4, 2020, respondent posted on Facebook that petitioner had alienated the father of A.Z. and had abducted A.V. and taken her out of state. She also went into detail about a "claimed Rape." On July 7, 2020, respondent posted on Facebook that petitioner repeatedly lied to alienate her daughters from their fathers.

On December 23, 2020, she posted on Facebook petitioner's "victim statement" and wrote that "Amber lies" were "destroying our men." On December 31, 2020, she posted on Facebook that petitioner had (1) falsely accused respondent's son of a crime, (2) falsely accused the father of one of petitioner's daughters of abusing the girl, and (3) forced her daughter to accuse petitioner's ex-husband of sexual assault. On January 2, 2021, she posted on Facebook, urging "Amber" to stop lying and let her daughter see her father, even though the father had never contested the matter in court. Finally, on January 5, 2021, respondent posted petitioner's "police Report" on Facebook and stated that petitioner was alienating her daughter from her father.

Petitioner also alleged that, in the summer of 2020, respondent contacted A.Z.'s father and spoke to him about the custody issue. Further, respondent attended the trial in petitioner's custody case against A.V.'s father and had been helping him. Finally, respondent contacted another man and his ex-wife on Facebook and shared details about a 2013 custody order in A.V.'s custody case.

On February 10, 2021, the trial court held an evidentiary hearing. Both parties appeared pro se. For petitioner, A.Z. testified as follows. Her father had contacted her about the Facebook posts. Going through social media, she had seen false information about her and petitioner. These posts had made A.Z. very nervous and had traumatized her by "bringing up a lot of back story" and leading to considerable contact with her father. A.Z. did not want contact with him, because they had "no relationship" and he was abusive when there was contact.

A.Z. testified that she had seen petitioner's full name displayed on some posts. One document was posted on Twitter. A.Z. pointed out the document from a group of documents shown to her. Nothing in the record identifies this document more specifically. However, two exhibits are consistent with A.Z.'s description of the document. The first was later placed into evidence as petitioner's exhibit B. On April 12, 2020, respondent posted on Twitter:

"She has her two daughters believing she was raped all so the fathers and Family Services wouldn't take the girls away from her. Amber Pokorny has 2 DNA [sic] and the court covered up her lies for a fast win. False Accusers are done lying in court."

The second was shorter and less specific. It was later admitted as petitioner's exhibit A. On September 11, 2020, one Arunder Sigh posted on Twitter, "Write your horror story in two words." On September 12, 2020, respondent replied, in full, "Amber pokorny [sic]."

Petitioner testified in narrative form that she had no personal relationship with respondent. After a court case involving respondent's son and petitioner, respondent (1) made personal information public; (2) contacted petitioner's ex-husband, family members, and friends; and (3) "post[ed] many things all over social media," much of it false, using petitioner's full name. {The case was People v. DeBolt, 2022 IL App (2d) 200784-U, in which petitioner was the complaining witness. The jury found the defendant, Kevin DeBolt, guilty of one count of criminal sexual assault of someone who was unable to give knowing consent to sexual penetration. The trial court sentenced him to seven years' imprisonment. We affirmed the judgment.} …

The trial court issued a restraining order:

The trial court explained that respondent had engaged in advocacy, but "when it becomes personal, you cross the line." Respondent's contention that she never identified petitioner in her social media posts was false; she had "consistently and repeatedly ma[de] reference to Amber Pokorny." In her April 12, 2020, post, she stated, "'Amber Pokorny had two DNA [sic], and the court covered up her lies for a fast [win].'"

The court continued:

"I understand that you have a first amendment privilege, but sometimes the first amendment privilege contravenes certain statutes that are enacted by the State of Illinois, and this is one of those cases.

And again, it's the old adage, you have a first amendment right, but you can't yell fire in a crowded theater. And that's what you're doing.

You are making allegations that the court specifically finds that [sic] the material that you're printing has the intended effect to cause emotional distress to [petitioner]. And it's going to stop.

And I'm entering an order extending this order of protection for two years. And this order of protection indicates … that you're prohibited from threatening to commit or committing stalking personally or through a third-party [sic]. That you may not contact the petitioner or other protected persons in any way, directly or indirectly through third parties, okay, in any manner.

And I'm also adding … injunctive relief that says, you shall not disseminate any information on social media identifying the petitioner in any way." …

The appellate court reversed:

Section 10 of the Act states, "Stalking does not include an exercise of the right to free speech or assembly that is otherwise lawful." …

Here, the trial court's finding that respondent committed stalking is against the manifest weight of the evidence. Petitioner introduced no evidence that any of respondent's communications fell outside the protection of the first amendment. Petitioner did not even argue that anything respondent said was either a true threat or integral to the commission of a crime, but she relied entirely on the allegation that what respondent said would cause emotional distress to a reasonable person. The only suggestion of defamation was the unsupported assertion that some of what respondent said was false, but the trial court did not accept this assertion anyway.

{Indeed, the trial court failed to recognize that petitioner was required to prove that respondent's acts were unprotected by the first amendment. The court also explicitly stated that the Act prevailed over respondent's first-amendment rights. Thus, the judgment was based on insufficient evidence, a misreading of the Act, and a misunderstanding of the relationship between statutes and constitutions.} …

Respondent argues third that the injunction against her was an unconstitutional prior restraint. We do not address the constitutional issue. With no valid finding that respondent committed stalking, there was no basis for the stalking-no-contact order; a fortiori, there was no basis for the equally broad restriction on respondent's future speech. Thus, we reverse the injunction….