The Silencing of a Rape Accuser: How a Tweet Led to a Gag Order

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,

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

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:

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,

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

The Nebraska Supreme Court took the same view:

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.