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

The trial judge concluded the Tweet was “harassment by defamation.”

Yesterday'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 Debra A. Seaton), though without reaching the First Amendment question.

The quick factual backstory: McClellan and Hull met on Facebook, and then met twice in person and had sex on the second time. McClellan says it was consensual, Hull says that McClellan raped her. Four weeks after that, in April 2021, Hull Tweeted "that she was raped 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 "harassment" that entitled 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 sexual assault; under the statute, it had to decide the relationship 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 harassment prong of the Domestic Violence Act for defamation based on the accusations of rape 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 against 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 against McClellan, and the court refused to issue such an order:

At the hearing on Hull's petition, 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 oral sex. The court further found that based on the testimony presented, when Hull pushed McClellan away during vaginal sex, he stopped, they got dressed and McClellan took Hull home.

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 sex 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 authorizes such orders only when they stem from a family relationship, a shared household, or a "dating relationship," and the interaction between Hull and McClellan didn't qualify as a dating relationship:

The Domestic Violence Act added the phrase "dating relationship" in 1993, and explains that it does not include a casual acquaintanceship 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 relationships and that the legislature intended for a "dating relationship" to refer to a serious courtship, one that was more serious and intimate than casual. The second district further clarified that it was not enough to establish an intimate relationship; there must be a dating relationship. In People v. Howard, a domestic battery case, the third district of this court concluded that although the defendant had numerous sexual encounters, it was not enough to show that defendant and the victim had an intimate relationship. The Howard court noted a dating relationship means a serious courtship which must be, at minimum, an established relationship with a significant romantic focus. The parties' numerous sexual encounters were an established relationship that was physical in nature but was not a romantic dating relationship.

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

We also take issue with the circuit court's finding that sending nude photos, kissing and engaging in oral sex established the existence of a dating relationship….

My thought on the First Amendment question: Courts have generally held that the First Amendment allows narrow injunctions 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 injunction categorically banning someone from posting about another person online (even when it's a mutual injunction applied to both people) is unconstitutionally overbroad (see Overbroad Injunctions Against Speech (Especially in Libel and Harassment 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 injunctions, issued before a trial on the merits, are unconstitutional prior restraints—even if limited to repetition of statements that the judge thinks are likely defamatory—because they are issued prior to a final determination that the speech is indeed unconstitutionally 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) injunctions against libel,

In determining whether an injunction restraining defamation may be issued, … it is crucial to distinguish requests for preventive relief prior to trial and post-trial remedies to prevent repetition 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 constitutional prohibitions against prior restraints on free speech and press…. In contrast, an injunction against continued distribution of a publication which a jury has determined to be defamatory may be more readily granted.

Likewise, when the Kentucky Supreme Court authorized permanent injunctions against libel, it expressly rejected preliminary injunctions:

[T]he speech 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 speech be ascertained to be constitutionally unprotected, and therefore subject to injunction against future repetition …. [W]hile the rule may temporarily delay relief for those ultimately found to be innocent victims of slander and libel, it prevents the unwarranted suppression of speech of those who are ultimately shown to have committed no defamation, and thereby protects important constitutional values.

The Nebraska 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 injunction restraining Sullivan's speech, constitute unconstitutional 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 speech, based on one judge's determination of likelihood of success on the merits, is consistent with the First Amendment.

Finally, it's true that under Illinois law, "harassment" is defined as "knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the petitioner," and that's broad enough to include false and defamatory statements. But relabeling speech as "harassment" or "harassment by defamation" rather than just defamation shouldn't avoid the First Amendment constraints on such orders. I've observed this tendency of "harassment" bans unduly restricting speech before, and the trial court order illustrates that; I'm sorry that the court didn't discuss the First Amendment problems here, which can easily recur in other cases.