“[C]ontent-based laws, which target speech based on its communicative content, are presumed to be invalid.” People v. Relerford, 2017 IL 121094, ¶ 32. When they silence protected speech, as this one does, they must survive the rigors of strict scrutiny. 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.”

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.

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.” … For instance, defamatory statements concerning petitioner would not be protected.

Similarly, threats made by respondent against the church or its congregants clearly would not be protected speech. “‘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.” …

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?” 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 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,” 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.

“[S]peech or writing used as an integral part of conduct in violation of a valid criminal statute” is [also] 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.’ ” [But t]o 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. 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.

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 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, when the court found that the exception does not permit the legislature (or a court) to prohibit speech simply because it is distressing….

[There is] 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 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. 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. 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.

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,” 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.”

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.”

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, 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.)).