Court Upholds Order Barring Man from Naming Three School Officials in Social Media Posts

The officials alleged that he had “sent repeated harassing and threatening emails” to them, and the trial court issued a stalking no contact order, apparently in part because of that. But the “no naming” order covered all speech about the officials (to the public and to third parties), not just threatening speech. And the officials’ concerns were apparently in part about the man’s “unsupported and outlandish allegations,” and his “smearing the name[s]” of the officials, not just about threats.

An excerpt from the long Skertich v. Luffman, decided last week by the Illinois Appellate Court (Justice Michael McHaney, joined by Justices Mark Boie and Mark Clarke):

Mark B. Skertich (Petitioner) … filed a verified petition for stalking no contact order (petition), against the Respondent on behalf of Petitioner and two other protected parties: Laura Bauer and Brad Hyre…. In an attachment to the petition, Petitioner alleged that Respondent had “engaged in escalating and repeated harassing communication and videos towards” Petitioner, Bauer, and Hyre, all of whom were employees of Collinsville CUSD No. 10 (school district), with Petitioner serving as Superintendent, Bauer serving as Principal, and Hyre serving as Assistant Superintendent….

The attachment alleged that Respondent’s behavior “caus[ed] extreme concern for [the] safety” of the protected parties and caused “emotional distress.” The attachment alleged that on December 16, 2024, Respondent was barred from school district property “for aggressive, intimidating and harassing behavior towards” the protected parties. The attachment specified “aggressive and harassing language” found in “at least 75 emails” sent by Respondent to the protected parties, and detailed the language allegedly used by Respondent in a phone call with Bauer.

The attachment alleged Respondent had “sent repeated harassing and threatening emails totaling 1465 email exchanges on 262 threads to” the protected parties. The attachment further alleged Respondent had (1) sent “repeated emails to multiple federal and state agencies filing complaints with unsupported and outlandish allegations;” (2) sent multiple “emails with harassing allegations” to school district legal counsel, “smearing the name[s]” of the protected parties “and causing significant distress;” and (3) sent copies of the emails to media outlets, elected officials, and others…. The attachment alleged Respondent had received two citations from Collinsville police, one “for online harassment through electronic communications,” and one for trespassing on school district property after Respondent was barred from being present on that property.

The attachment alleged Respondent posted “multiple videos” on YouTube and Instagram “asserting the same harassing allegations” and using “threatening language.” … The attachment alleged that the language in the videos demonstrated Respondent was “not contacting [the protected parties] in good faith as a parent or community member,” but was instead “clearly sending communications to harass them.” …

[T]he circuit court entered a plenary [two-year] stalking no contact order …. The order listed the names of all three protected parties, and found Respondent had been properly served with process and with notice of the hearing and was “in default.” The order stated … that “[u]pon examination of the Verified Petition, Petitioner under oath, and other evidence, Petitioner is a victim of two or more acts of following, monitoring, observing, surveilling, threatening, communicating or interfering or damaging property or pets by Respondent.”

The order {(1) prohibited Respondent “from threatening to commit or committing stalking personally or through third party;” (2) stated that Respondent could not contact the protected parties “in any way, directly, indirectly or through third parties including but not limited to, phone, written notes, mail, email, or fax[,]” … (3) required Respondent “to stay at least 100 feet away from” the protected parties “residence, school daycare, employment and any other specified place,” including all school district property and all school district events “wherever located[,]”} [4] “prohibited [Respondent] from contacting [the protected parties] on work or personal phones, email, or other communication platforms,” and … [5] “prohibited [Respondent] from naming [the protected parties] in social media and emails to third parties.” …

The court upheld the order, including the “no naming” condition:

Petitioner is correct that this court has upheld a circuit court ruling that online postings that are part of a course of unlawful conduct of stalking under the Act are not protected free speech, and that in such situations, prohibitions on future online postings are permissible. In Piester v. Escobar (Ill. App. 2015), the plenary stalking no contact order prohibited the respondent from, inter alia, posting anything on social media about the petitioner. In the appeal that followed, one of the claims of the respondent was that the order violated her free speech rights.  When evaluating the respondent’s free speech challenge, this court first noted that “[a] party’s exercise of free speech is expressly excluded from the [Act] and may provide a defense.”

We added, however, that the Act “prohibits speech that includes threats of violence or intimidation, which are not constitutionally protected,” and that “[w]ords concerning surveilling, interfering, or harassing a person are not entitled to protection as free speech.”  We concluded that the “social media postings and other online comments” at issue in that case “were part of a course of conduct of stalking” because they included “threatening and harassing comments about [the petitioner].”  Accordingly, the social media postings and other online comments were “not protected under the first amendment,” and the circuit court’s order—including its prohibition against the respondent posting anything on social media about the petitioner—was upheld.

Likewise, in McNally v. Bredemann (Ill. App. 2015), this court noted that although the Act is civil in nature, the Act itself recognizes that “‘[s]talking is a serious crime'” for which victims need an adequate remedy. We noted that [w]hile stalking does contain an element of speech, that speech does not fall within the protections of the first amendment” if it is comprised of “words surrounding surveilling, interfering, or harassing a person to intimidate,” because such words “are not constitutionally protected.”  We held that the online postings in question in McNally “were a transparent part of [the] stalking conduct,” and we reiterated a longstanding holding of the Illinois Supreme Court that “‘[w]here speech is an integral part of unlawful conduct, it has no constitutional protection.'” Id. (quoting People v. Bailey (Ill. 1995)); see e.g., Wright v. County of DuPage (Ill. App. 2000) (because activities occurring at massage spas did not constitute expression protected under the first amendment, court did not need to consider spas’ claim that ordinance governing spas was unconstitutional as overly restrictive and a prior restraint on freedom of speech); Same Condition, LLC v. Codal, Inc. (Ill. App. 2021) (the post-adjudication remedy of prior restraint of unprotected speech has been approved by multiple courts where the purpose of the remedy was to prevent additional unlawful conduct by the restrained party).

In this case, as described in detail above, the allegations in the petition and its attachment, and the findings in the order, were comprised in part of social media postings that the circuit court determined were part of Respondent’s course of unlawful conduct of stalking. Accordingly, the section of the order that prohibited Respondent “from naming [the protected parties] in social media” was consistent with this court’s ruling in Piester, as well as with the general principles about unprotected speech found in McNally, Bailey, Wright, and Codal.

Nevertheless, it is certainly true, as Respondent contends, that as a general rule content-based prior restraints on protected speech “are highly disfavored, subject to strict scrutiny, and must be narrowly tailored to serve compelling state interests.” A content-based restriction is one that regulates “speech based on ‘the topic discussed or the idea or message expressed.'”

In this case, even if we were to assume, arguendo, that the speech in question is protected speech, there is no content-based restriction in the order, because the order does not prohibit Respondent from posting on social media about any topic Respondent chooses, and does not prohibit Respondent from expressing any idea or message Respondent chooses. To the contrary, the order simply prohibits Respondent “from naming [the protected parties] in social media.”

Moreover, even if we were to further assume, again arguendo, that the order does contain a content-based restriction on protected speech, we would conclude under a strict scrutiny analysis that the order is narrowly tailored, and uses the least restrictive means possible, with regard to its curtailment of Respondent’s social media speech, prohibiting only the naming of the protected parties in social media, and that it serves a compelling state interest, which is the prevention of additional violations of the Act by the Respondent against the protected parties via Respondent’s social media posts. See, e.g., In re R.H. (Ill. App. 2017) (state had compelling interest in restricting minor probationer’s social media activity that was closely related to minor’s crimes, as a means of preventing minor from engaging in additional criminal acts)….

Seems wrong to me, for the reasons I discussed in my Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases). Among other things, an injunction forbidding naming a particular person is content-based. A total ban on naming them (not just on threats) seems not to be “narrowly tailored” to any concern about forbidding such threats. And the fact that speech restrictions can be imposed as part of a sentence following the conviction of a crime doesn’t mean that such restrictions can be imposed following a civil stalking order proceeding—where there’s no trial by jury, no requirement of proof beyond a reasonable doubt, and no provision of a public defender (to oversimplify slightly).

Still, as my Overbroad Injunctions observed, lots of trial courts have issued such “stop talking about plaintiffs” orders; and while most appellate courts have reversed them, when the matter has gone up on appeal, some appellate courts, such as this one, seem to approve of such orders.