Flood v. Wilk , 430 Ill. Dec. 96 ( 2019 )

2019 IL App (1st) 172792
No. 1-17-2792
Fourth Division
February 7, 2019
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
)
ERIC FLOOD, ) Appeal from the Circuit Court
) of Cook County.
Petitioner-Appellee, )
) No. 2017 OP 020404
v. )
) The Honorable
CHESTER WILK, ) Callie Lynn Baird,
) Judge Presiding.
Respondent-Appellant. )
)
______________________________________________________________________________
JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices Burke and Ellis concurred in the judgment and opinion.
OPINION
¶1 The instant appeal arises from certain relief awarded to petitioner Eric Flood in
connection with a stalking no contact order entered by the trial court pursuant to the Stalking
No Contact Order Act (Act) (740 ILCS 21/1 et seq. (West 2016)) against respondent Chester
Wilk. Specifically, respondent challenges the trial court’s entry of an injunction preventing
him 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,” where petitioner is the pastor. Respondent argues that
such a restriction violates his constitutional right to free speech; respondent is not
No. 1-17-2792
challenging any other portion of the order. 1 For the reasons set forth below, we agree with
respondent that the order as drafted is overly broad and runs afoul of constitutional concerns,
and we vacate that portion of the trial court’s order in paragraph (b)(5) that states the
following: “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.”
¶2 BACKGROUND
¶3 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.
¶4 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.
1
The order further prohibited respondent “from knowingly coming within, or knowingly
remaining within, 500 feet of Petitioner’s residence” or the church where he is employed. Respondent
does not contest that portion of the order in this appeal.
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¶5 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.”
¶6 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.”
¶7 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
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Christianity” because he refused to suggest marital counseling when respondent’s wife left
him after 40 years of marriage.
¶8 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.”
¶9 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.”
¶ 10 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
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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.)
¶ 11 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.)
¶ 12 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.
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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.”
¶ 13 On the same day, the trial court entered an emergency stalking no contact order,
prohibiting respondent from threatening to commit stalking or committing stalking; from
having any contact with petitioner; and from knowingly coming within, or knowingly
remaining within, 150 feet of petitioner’s residence or place of employment. The trial court
also set the petition for a plenary stalking no contact order for hearing on September 12,
2017.
¶ 14 Respondent filed a pro se appearance and, on August 22, 2017, filed an answer in which
he faulted petitioner for failing to recommend to respondent’s estranged wife 10 years ago
that she engage in marital counseling with respondent. Attached to the answer was a letter
drafted by respondent addressed to the trial court. In the letter, respondent claimed that
petitioner would not explain to him petitioner’s refusal to recommend marital counseling
other than telling him that it was “ ‘personal and confidential.’ ” Respondent claimed that
petitioner also complimented respondent’s wife “for ‘having the courage to do what she
did.’ ” Respondent claimed that he had contacted petitioner “numerous times over the past
ten years and he refused to budge. I told him 10 years ago I would never cease contacting
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No. 1-17-2792
him and I meant every word. I am doing now what I said I would do over the past ten years.”
Respondent claimed that he had written a book entitled “ ‘The Devil’s Intervention’ ” and
included a chapter on churches “because of [petitioner] and South Park Church and their
wrongful conduct.” (Emphasis omitted.) Respondent claimed that “[e]nough was enough.
Now he has the audacity to take me to court and try to stop me from showing to the world
what he did wrong. Unless he renounces what he did wrong in the strongest possible terms[,]
I will continue.” Respondent admitted in his answer to printing fliers and distributing them
throughout the neighborhood and alleged that “after I get on talk shows I will bring up
[petitioner] and South Park Church as an example on radio and TV.” Respondent claimed
that “[petitioner] is worried about his reputation in Park Ridge but refuses to acknowledge
that he contributed to destroying a 40 year old marriage and stone-walled me for ten years.
This deserves to be made public nationwide and I do not intend to stop unless he renounces
what he did wrong in the strongest possible terms. I want the entire world to know about
[petitioner] and South Park Church did [sic] because the message is more important that the
messenger. This should have never happened.” (Emphasis omitted.) Respondent also
attached a copy of a polygraph exam that he had undertaken in 2011, claiming that its results
were in support of his answer.
¶ 15 On September 12, 2017, the trial court entered another emergency stalking no contact
order and, on October 3, 2017, the matter came before the trial court for an evidentiary
hearing. At the hearing, petitioner was represented by counsel, while respondent proceeded
pro se; the record reflects that the trial court had previously continued the hearing sua sponte
so that respondent would have the opportunity to retain an attorney but that respondent had
not done so. At the hearing, petitioner testified that he was the senior pastor at South Park
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No. 1-17-2792
Church and had been a clergy member at the church for 13 years. In 2006, respondent’s wife,
who was a member of the church, sought counsel with petitioner. Petitioner testified that
respondent’s wife “was afraid of her safety, so she left her home” and called petitioner
afterwards; petitioner attempted to provide her with pastoral support. Several days later,
respondent visited petitioner “to express his side of the issue.” Respondent wanted petitioner
to tell his wife to return, but petitioner “felt like what was more advantageous was to help
him, and [petitioner] referred [respondent] to a professional counselor.” After visiting the
counselor, respondent returned and “demanded that [petitioner] tell his wife to return.”
¶ 16 Petitioner testified that respondent began repeatedly sending letters to church leadership
claiming that petitioner did not support marriage and was “a tool of the devil.” The church
leadership requested that respondent cease these communications, but he did not; petitioner
also complained to the police, but that also had no effect on respondent’s behavior. Petitioner
identified a February 3, 2007, letter that was sent to respondent in which petitioner, who was
an associate pastor at the time; the senior pastor; and the chairman of the board requested that
there be no more visits from respondent with respect to petitioner or the church. Petitioner
testified that respondent continued contacting them multiple times a year; petitioner testified
that “I’ve honestly lost track” of the number of times and that “[t]here are multiple e-mails
that have been sent to staff, letters sent to our church directory, to neighbors of the church, to
local businesses, to other churches and pastors in the community.”
¶ 17 Petitioner identified a number of letters sent by respondent and testified that “[i]t creates
anxiety. It’s a distraction from the ministry of the day, and it’s an ongoing uncertainty as to
where this is leading.” Petitioner further testified that he “felt threatened throughout the years
with this issue.” Petitioner identified a letter dated May 22, 2010, to the chief of the Park
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No. 1-17-2792
Ridge police, which contained a handwritten note on top from respondent stating:
“[Petitioner], by now you should realize that I’m not walking away from this matter. I hope
you realize your mistake and do the right thing. Signed [respondent].” Petitioner testified that
he felt “[t]roubled” when he read that document, and was concerned about “[n]ot only my
safety but our congregation’s safety and my family’s safety.” Petitioner received another
letter dated July 29, 2010, which was addressed to him and to the church board and “strongly
urge[d]” a meeting with respondent, which left him with “[a] growing concern of what needs
to be done to resolve it and ongoing concern that this is an unpredictable threatening
situation.” Petitioner also testified that respondent had entered the church offices without
permission several times and had also distributed fliers on the windshields of automobiles in
the church parking lot.
¶ 18 Petitioner testified that he filed the petition for a stalking no contact order because “I
feared for my safety, the safety of my family, and the safety of our congregation.” Petitioner
further testified that respondent’s actions caused him emotional distress, as well as
“[r]epeatedly” causing distress to his staff. Petitioner testified that respondent’s actions also
distressed his congregation and that “I have parents asking is it safe to bring their family to
our church.”
¶ 19 When it came time for respondent to cross-examine petitioner, respondent stated: “I agree
with everything that he said. I don’t disagree.” Respondent asked petitioner why he did not
listen to respondent’s version of events with respect to his issues with his wife, and petitioner
responded that he had met with respondent twice and had “listened to your story
extensively.” Petitioner admitted that he complimented respondent’s wife for leaving him,
testifying that “[i]f a parishioner approaches me and says that they feel unsafe, they’re
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No. 1-17-2792
fearing their physical safety, I’m going to encourage them to get to a safe place.” After
petitioner’s testimony, all of petitioner’s exhibits were admitted into evidence, and petitioner
rested.
¶ 20 Respondent testified on his own behalf concerning his wife leaving him and petitioner’s
refusal to suggest that she attend marital counseling. Respondent testified that he attempted
to meet with the church board and the pastors but that church staff refused to allow him to do
so. Respondent further testified that, at one point, one of petitioner’s assistant told him to
“[m]ove on, get another wife.” Respondent testified that “[t]his kind of dialogue, this belongs
in the gutter but not in the church. And then they told me to leave or they would call the
police. This is disgraceful. In my mind, the devil was firmly in trench [sic] in South Park
Church.” On cross-examination, respondent admitted that he was the author of all of the
documents submitted as exhibits by petitioner.
¶ 21 After the parties had testified, the court issued its findings, noting that “there’s really not
much at dispute here.” The court found that petitioner testified “very credibly, very
consistently” about the circumstances under which petitioner had come into contact with
respondent, namely, through respondent’s wife, who was a parishioner. The court found:
“[A]s the respondent has testified to very clearly and unequivocally, ever since his
wife left him in 2006, he has held [petitioner] directly and solely responsible. And, as
a result of [respondent’s] belief that [petitioner] was responsible and as [respondent]
testified to, he was responsible for the destruction of his life for the past ten years.
You testified that [petitioner] destroyed your family; destroyed your marriage of
40 years; and that, for 10 years, you’ve been without a wife, without a family, and the
last 10 years have been sad and painful.”
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¶ 22 The court recounted the letters that respondent sent to petitioner, to the church, and even
to other churches, noting:
“[A]ll of these documents bear your signature. And the respondent admits that he
authored these letters and he did disseminate them. And the language in—really—
basically all of the letters, *** [petitioner] testified that this letter created anxiety,
caused him distraction from his ministry. And the most important thing he said was
that he was not sure—as far back as 2009, he was not sure where this was leading. It
was clear that the letters continued. And they—if you look at the letters, they become
longer, double-sided, and more lengthy.
RESPONDENT: Yes.
THE COURT: And ultimately continued until as recently as this summer.
There was also the incident in 2014 where you were uninvited and the church was
under renovation so their security features were not the same and you came into the
office looking for [petitioner]. [Petitioner] said he went into another room, and you
were escorted out. It caused quite a scene. And that, again, he suffered emotional
distress. He wasn’t sure what was happening. He was concerned for his safety, for the
safety of his family. He has daughters. He was concerned for their safety and for the
safety of the members of his church.
He said that the summer of 2017, this summer, there was a document left on the
church members’ automobiles. It was in the parking lot. And in that letter, again, you
talked about the same things, how [petitioner] was responsible for the destruction of
the church, how he was a tool of the devil, and said critical things of him. He said,
again, that that caused him emotional distress.
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No. 1-17-2792
Sir, *** the problem here is that you believe—because you believe that
[petitioner] is responsible for the destruction of your marriage, that you can send
these letters, that you can disseminate this information, that you can engage in a
course of conduct directed at [petitioner], because you think he’s responsible, that you
can engage in that. But the law is clear. The law says that you cannot do that. Because
sending letters to someone since 2006, coming to his church on several occasions,
writing a book about him, disseminating information, sending letters to other
pastors—
RESPONDENT: Yes, that’s true.
THE COURT:—saying that he’s responsible for the destruction of your marriage
is conduct which would cause a reasonable person to suffer emotional distress.
RESPONDENT: Mm-hmm.
THE COURT: And [petitioner] testified that he has suffered emotional distress
since 2007 and continues to suffer emotional distress up until this very day because
he has no idea where this is leading. And to hear you testify in court, sir, that you still
believe that there’s absolutely nothing wrong with what you did because you believe
that he is in fact responsible for the destruction of your marriage is unacceptable. You
cannot continue this.
I find that the petitioner has established, by a preponderance of the evidence, that
the respondent has engaged in stalking; and there is a need for a plenary stalking/no
contact order.”
¶ 23 The trial court asked petitioner’s counsel what specific remedies petitioner was seeking,
and counsel responded:
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No. 1-17-2792
“I am asking for him to refrain from coming within—and I want to make this easy
on everybody—two blocks of the church. I want him to refrain from disseminating
written materials about [petitioner] or the church. I want him to stop sending
materials to the church or church members by any means whatsoever. And obviously
he can’t come near [petitioner’s] home, although that has not been a problem to date
to my understanding.”
¶ 24 On the same day, the trial court entered the stalking no contact order at issue on this
appeal. Similar to the other orders, the October 3 order prohibited respondent from
threatening to commit stalking or committing stalking; from having any contact with
petitioner; from knowingly coming within, or knowingly remaining within, 500 feet of
petitioner’s residence or place of employment; and from possessing a firearm owner’s
identification card or possessing or buying firearms. In addition, in paragraph (b)(5), the
order set forth the relief challenged on appeal:
“The following other injunctive relief is ordered: 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.”
The order provided that it would be in effect until October 3, 2019.
¶ 25 This appeal follows.
¶ 26 ANALYSIS
¶ 27 On appeal, respondent raises one issue: whether the portion of paragraph (b)(5) in which
respondent is prohibited from communicating or publishing any writing regarding petitioner
and the other parties specified in the order violates respondent’s constitutional right to free
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speech. “Recognizing that ‘[s]talking is a serious crime,’ the legislature passed the civil Act
in 2010 to provide a remedy for victims who have safety fears or emotional distress as a
result of stalking.” McNally v. Bredemann, 2015 IL App (1st) 134048, ¶ 10 (quoting 740
ILCS 21/5 (West 2012)). “ ‘Stalking’ ” is defined under the Act to mean “engaging in a
course of conduct directed at a specific person, and he or she knows or should know that this
course of conduct would cause a reasonable person to fear for his or her safety or the safety
of a third person or suffer emotional distress.” 740 ILCS 21/10 (West 2016). A “ ‘[c]ourse of
conduct’ ” is defined, in relevant part, as “2 or more acts, including but not limited to acts in
which a respondent directly, indirectly, or through third parties, by any action, method,
device, or means, *** threatens, or communicates to or about, a person, [or] engages in other
contact.” 740 ILCS 21/10 (West 2016). “ ‘Contact,’ ” in turn,
“includes any contact with the victim, that is initiated or continued without the victim’s
consent, or that is in disregard of the victim’s expressed desire that the contact be avoided
or discontinued, including but not limited to being in the physical presence of the victim;
appearing within the sight of the victim; approaching or confronting the victim in a public
place or on private property; appearing at the workplace or residence of the victim;
entering onto or remaining on property owned, leased, or occupied by the victim; or
placing an object on, or delivering an object to, property owned, leased, or occupied by
the victim.” 740 ILCS 21/10 (West 2016).
“Stalking” expressly “does not include an exercise of the right to free speech or assembly
that is otherwise lawful.” 740 ILCS 21/10 (West 2016).
¶ 28 In the case at bar, respondent does not challenge the trial court’s finding that he had
engaged in stalking petitioner and does not appear to challenge the relief granted that was
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No. 1-17-2792
directed specifically at petitioner or his family. Instead, respondent challenges the broader
relief granted that prohibited him from any written communication or publication about
South Park Church’s employees, staff, or congregants. Under the Act, if a trial court finds a
respondent has engaged in stalking, it may enter an order including one or more of the
following types of relief:
“(1) prohibit the respondent from threatening to commit or committing stalking;
(2) order the respondent not to have any contact with the petitioner or a third
person specifically named by the court;
(3) prohibit the respondent from knowingly coming within, or knowingly
remaining within a specified distance of the petitioner or the petitioner’s residence,
school, daycare, or place of employment, or any specified place frequented by the
petitioner; ***
(4) prohibit the respondent from possessing a Firearm Owners Identification Card,
or possessing or buying firearms; and
(5) order other injunctive relief the court determines to be necessary to protect the
petitioner or third party specifically named by the court.” 740 ILCS 21/80(b) (West
2016).
The relief challenged by respondent falls under the last category—“other injunctive relief the
court determines to be necessary to protect the petitioner or third party specifically named by
the court.” 740 ILCS 21/80(b) (West 2016).
¶ 29 Respondent argues that the trial court’s order represents a prior restraint on his speech in
violation of his constitutional right to free speech. As an initial matter, petitioner claims that
respondent has forfeited his right to assert this claim on appeal, since he did not raise it
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No. 1-17-2792
before the trial court. It is well established that issues not raised in the trial court are forfeited
and may not be raised for the first time on appeal. Susman v. North Star Trust Co., 2015 IL
App (1st) 142789, ¶ 41. This applies even to constitutional questions, where “[t]he general
rule in civil cases is that constitutional arguments which are not raised by objection at trial
are considered waived for purposes of appeal.” Werner v. Botti, Marinaccio & DeSalvo, 205
Ill. App. 3d 673, 677 (1990) (citing In re Liquidations of Reserve Insurance Co., 122 Ill. 2d
555, 567-68 (1988)); see also Sherman v. Indian Trails Public Library District, 2012 IL App
(1st) 112771, ¶ 21 (finding a challenge to the petitioners’ “first amendment civil rights,
including their right to free speech and to associate for political purposes” to be forfeited
because they were raised for the first time on appeal). In the case at bar, respondent has failed
to preserve this issue for review by raising it for the first time on appeal. However, “waiver
and forfeiture rules serve as an admonition to the litigants rather than a limitation upon the
jurisdiction of the reviewing court,” and “courts of review may sometimes override
considerations of waiver or forfeiture in the interests of achieving a just result and
maintaining a sound and uniform body of precedent.” Jackson v. Board of Election
Commissioners, 2012 IL 111928, ¶ 33. While our supreme court has cautioned that this
principle “is not and should not be a catchall that confers upon reviewing courts unfettered
authority to consider forfeited issues at will” (Jackson, 2012 IL 111928, ¶ 33), in the case at
bar, the issue has been fully briefed by the parties and concerns an important constitutional
right; while not excusing respondent’s failure to previously raise the issue, we also note that
respondent was pro se during the hearing on the order. While a party’s pro se status does not
relieve him from complying with procedural rules, “[w]e believe there ought to be some
consideration” for the fact that respondent was unrepresented by counsel. Dombrowski v.
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City of Chicago, 363 Ill. App. 3d 420, 425 (2005). Accordingly, we choose to overlook
respondent’s technical forfeiture of this issue and proceed to consider the merits of his
arguments on appeal.
¶ 30 We note that several courts have found that the Act itself does not violate a respondent’s
free speech rights, as the only speech that is prohibited by the Act are threats of violence or
intimidation, “which are not constitutionally protected in any event.” Nicholson v. Wilson,
2013 IL App (3d) 110517, ¶ 20; McNally, 2015 IL App (1st) 134048, ¶ 17. According to
Webster’s Third New International Dictionary, to intimidate means to frighten, among other
things. Webster’s Third New International Dictionary (1986). Although respondent called the
church a “corrupt church” and its pastor “a tool of the devil” and stated “that this is spiritual
warfare between GOOD and EVIL” (emphasis in original), there is nothing in the record of
this case that shows that this conduct constituted a threat of violence. Although the pastor
testified that respondent’s conduct caused him to fear for his and his congregants’ safety,
there was no finding by the trial court that the written or spoken conduct of respondent
constituted intimidation or that his written or spoken conduct constituted threats of violence.
Respondent’s written and spoken conduct was continuous for a long period of time and the
written word was ultimately placed in a published book.
¶ 31 The trial court has made no finding that anything he said in his written words constitutes
a threat of violence or that the words written illustrate intimidation or would put fear of
violence in the mind of a reasonable person. Certainly, the conduct of respondent annoys and
bothers the pastor and is not pleasant for the church. The trial court has restricted respondent
from coming within 500 feet of the pastor, his residence, or the church, so respondent is
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No. 1-17-2792
basically restricted from using only the written word in his war against the pastor and the
church.
¶ 32 “When words are a component of the stalking behavior, then the speech does not fall
within constitutional protections.” Henby v. White, 2016 IL App (5th) 140407, ¶ 26. Certain
statements on social media postings concerning a stalking victim similarly have been found
to fall outside the purview of protected speech. See Piester v. Escobar, 2015 IL App (3d)
140457, ¶ 19 (finding that the respondent’s social media postings “making degrading,
threatening and harassing comments about” the victim was not speech protected by the first
amendment). However, in the case at bar, the trial court made no findings that any of the
writings authored by respondent were threats of violence or statements of intimidation.
¶ 33 We also note, however, that our supreme court has recently invalidated a portion of the
criminal stalking statute on first amendment grounds and that the definition of stalking
contained in the criminal statute is nearly identical to the definition contained in the Act at
issue in the instant appeal. See People v. Relerford, 2017 IL 121094, ¶ 63 (finding “the
portion of subsection (a) of the stalking statute that makes it criminal to negligently
‘communicate[ ] to or about’ a person, where the speaker knows or should know the
communication would cause a reasonable person to suffer emotional distress, is facially
unconstitutional”). We have no need to determine the impact of the supreme court’s decision
on the civil Act, however, since respondent does not challenge the constitutionality of the Act
itself but solely challenges the constitutionality of the injunctive relief the trial court
awarded. 2
2
We note that the terms of the injunctive relief are not dictated by the language of the statute but
were handwritten into the preprinted form order.
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No. 1-17-2792
¶ 34 In the case at bar, respondent argues that the court’s order prohibiting him from any
written communication or publication about South Park Church’s employees, staff, or
congregants represents a prior restraint that violates his right to free speech. “A prior restraint
has been defined as a ‘predetermined judicial prohibition restraining specified expression.’ ”
In re A Minor, 127 Ill. 2d 247, 264 (1989) (quoting Chicago Council of Lawyers v. Bauer,
522 F.2d 242, 248 (7th Cir. 1975)). “[A]ny prior restraint upon speech, while not
unconstitutional per se, bears a heavy presumption against its validity.” In re A Minor, 127
Ill. 2d at 265. In the case at bar, respondent relies on two Illinois Supreme Court cases
concerning prior restraints, claiming that the prohibition entered by the trial court in the
instant case was constitutionally impermissible. However, these two cases are entirely
inapposite to the situation present in the case at bar. In both cases, the restrained speech at
issue was a newspaper’s disclosure of identities during a pending judicial proceeding. See
In re A Minor, 127 Ill. 2d at 251 (prohibiting newspaper from disclosing name of juvenile
charged in criminal proceeding); In re A Minor, 149 Ill. 2d 247, 248 (1992) (prohibiting
newspaper from disclosing names of minor victims of physical and sexual abuse). Indeed,
this type of prohibition is a common scenario in which the prior restraint issue occurs. See
In re Jawan S., 2018 IL App (1st) 172955, ¶ 56 (“ ‘In the context of a pending judicial
proceeding,’ *** a ‘prior restraint’ ordinarily refers to a court order (or statute) that limits the
press’s freedom to publish information about the proceeding.”). Here, by contrast, the trial
court’s order did not concern prohibiting the publication of any information involving a
pending court proceeding.
¶ 35 Nevertheless, respondent’s argument that prior restraints such as those imposed by the
trial court in the instant case are disfavored is well taken. Furthermore, our supreme court has
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noted that, generally, “[c]ontent-based laws, which target speech based on its communicative
content, are presumed to be invalid.” Relerford, 2017 IL 121094, ¶ 32. When they silence
protected speech, as this one does, they must survive the rigors of strict scrutiny. Reed v.
Town of Gilbert, 576 U.S. ___, ___, 135 S. Ct. 2218, 2227 (2015); Relerford, 2017 IL
121094, ¶ 32. 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.” People v. Minnis, 2016 IL 119563, ¶ 32. 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.
¶ 36 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.” Relerford, 2017 IL 121094, ¶ 33. These categories
include (1) advocacy intended, and likely, to incite imminent lawless action; (2) obscenity;
(3) defamation; (4) speech integral to criminal conduct; (5) “ ‘fighting words’ ”; (6) child
pornography; (7) fraud; (8) “true threats”; (9) and speech presenting some grave and
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imminent threat the government has the power to prevent. United States v. Alvarez, 567 U.S.
709, 717 (2012) (plurality opinion).
¶ 37 For instance, defamatory statements concerning petitioner would not be protected. See,
e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974); New York Times Co. v. Sullivan,
376 U.S. 254, 279-80 (1964). Similarly, threats made by respondent against the church or its
congregants clearly would not be protected speech. See, e.g., Watts v. United States, 394 U.S.
705, 707-08 (1969) (per curiam). “ ‘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.” Virginia v. Black, 538 U.S. 343,
359 (2003). “The speaker need not actually intend to carry out the threat. Rather, a
prohibition on true threats ‘protect[s] individuals from the fear of violence’ and ‘from the
disruption that fear engenders,’ in addition to protecting people ‘from the possibility that the
threatened violence will occur.’ ” Black, 538 U.S. at 359-60 (quoting R.A.V. v. City of St.
Paul, 505 U.S. 377, 388 (1992)). In order to determine whether a threat is a “true threat,” it is
important to consider the context in which the threat was made, including the reaction of the
listeners. See Watts, 394 U.S. at 708 (considering “the expressly conditional nature of the
statement” and “the reaction of the listeners”). Generally, the question of whether a particular
statement constitutes a “true threat” is for the finder of fact to decide. United States v.
Roberts, 915 F.2d 889, 891 (4th Cir. 1990). In the case at bar, the trial court made no such
findings here. However, some courts have also applied an independent review of
“constitutional facts,” meaning that a reviewing court defers to the factfinder’s findings on
historical facts, credibility determinations, and elements of statutory liability but then
conducts an independent review of the record “ ‘to determine whether the facts as found by
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the [factfinder] establish the core constitutional fact’ of a true threat.” United States v.
Turner, 720 F.3d 411, 419 (2nd Cir. 2013) (quoting United States v. Hanna, 293 F.3d 1080,
1088 (9th Cir. 2002)). However, to enjoin respondent’s speech before any of these remedies
or categories listed is successfully invoked is the canonical example of a “previous” or prior
restraint. Near v. Minnesota ex rel. Olson, 283 U.S. 697, 719 (1931); see also Montgomery
Ward & Co. v. United Retail, Wholesale & Department Store Employees of America, 400 Ill.
38, 45-46 (1948) (injunction generally does not lie merely to prevent allegedly defamatory
speech).
¶ 38 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?” (Emphasis in
original.) 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
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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” (emphases
omitted), 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. Moreover, “speech or writing used as an integral part of conduct in violation of
a valid criminal statute” is 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.’ ” McNally, 2015 IL App (1st) 134048, ¶ 17 (quoting People v.
Bailey, 167 Ill. 2d 210, 227 (1995)).
¶ 39 To 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. Relerford, 2017 IL 121094, ¶¶ 44-45; see Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 249-50 (2002) (speech must have a “proximate link” to other
criminal conduct). 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. New York
v. Ferber, 458 U.S. 747, 761 (1982); see also Osborne v. Ohio, 495 U.S. 103, 109-10 (1990);
United States v. Stevens, 559 U.S. 460, 471 (2010). 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
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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,
2017 IL 121094, ¶¶ 41-45, when the court found that the exception does not permit the
legislature (or a court) to prohibit speech simply because it is distressing.
¶ 40 In the case at bar, the trial court did not make any express findings that some of the
conduct prohibited by the court’s order would fall under this exception. The trial court found
that respondent had engaged in stalking, which, under the Act, means “engaging in a course
of conduct directed at a specific person, and he or she knows or should know that this course
of conduct would cause a reasonable person to fear for his or her safety or the safety of a
third person or suffer emotional distress.” 740 ILCS 21/10 (West 2016). As noted, a “course
of conduct” means two or more acts in which the respondent, either directly or indirectly,
“follows, monitors, observes, surveils, threatens, or communicates to or about, a person,
engages in other contact, or interferes with or damages a person’s property or pet.” 740 ILCS
21/10 (West 2016). “Contact” is further defined as including
“any contact with the victim, that is initiated or continued without the victim’s consent, or
that is in disregard of the victim’s expressed desire that the contact be avoided or
discontinued, including but not limited to being in the physical presence of the victim;
appearing within the sight of the victim; approaching or confronting the victim in a public
place or on private property; appearing at the workplace or residence of the victim;
entering onto or remaining on property owned, leased, or occupied by the victim; or
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placing an object on, or delivering an object to, property owned, leased, or occupied by
the victim.” 740 ILCS 21/10 (West 2016).
¶ 41 At a minimum, the trial court’s findings concerning respondent’s stalking behavior
included findings that respondent had repeatedly visited the church and its offices, that
respondent had mailed letters to petitioner, that respondent had distributed letters to the
members of the church, and that respondent had physically placed letters onto the
automobiles of church members in the church’s parking lot. The court found that respondent
had persisted in these actions after being asked to cease all contact with petitioner and the
church and that he had no intention of ceasing his conduct. Accordingly, there was ample
evidence in the record that respondent had engaged in stalking behavior, and respondent does
not challenge those findings on appeal. Speech that includes threats of violence or
intimidation that is connected to such unlawful behavior would not be constitutionally
protected if it occurs in the future.
¶ 42 Nevertheless, there remains 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
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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. Relerford, 2017
IL 121094, ¶¶ 52-53. 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. Relerford, 2017 IL 121094, ¶ 53. 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.
¶ 43 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” (740 ILCS 21/10
(West 2016)), 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.” People v. Jones, 188 Ill. 2d 352, 358 (1999). 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.”
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¶ 44 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, 573 U.S. ___, ___, 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.)).
¶ 45 CONCLUSION
¶ 46 For the reasons set forth above, we find that the injunctive relief awarded by the trial
court in its stalking no contact order infringed on respondent’s free speech rights, because it
encompassed constitutionally protected speech and was overly broad without any proper
rationale or factual basis for its scope. Accordingly, we vacate paragraph (b)(5) of the order.
¶ 47 Vacated in part.
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