Posted on April 7, 2024

Social Media And Free Speech In An Illinois Divorce

For most people, divorce is embarrassing. Some people, however, love talking about their divorce on social media where everyone can see the posts.

It is colossally stupid to post about your divorce on social media. Screenshots will be taken of the posts and used as evidence. A social media post is automatically admissible in an Illinois court as it is a “statement of a party opponent.”

A statement is not hearsay if….The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy, or (F) a statement by a person, or a person on behalf of an entity, in privity with the party or jointly interested with the party.” Ill. R. Evid. 801(d)(2)

Despite this possibility some people cannot stop themselves from discussing their case, their ex and their kids on social media during and after a divorce.

Can an Illinois court stop someone from posting on social media?

Court Orders To Restrain A Party From Posting On Social Media

During an Illinois divorce “[e]ither party may petition or move for:…other appropriate temporary relief” 750 ILCS 5/501(a)(3)

This may appear to allow a court to order almost anything but a prohibition on social media posting is actually a temporary restraining order or a preliminary injunction. These kinds of orders are only allowed in certain circumstances.

“[A] temporary restraining order or preliminary injunction, accompanied by affidavit showing a factual basis for any of the following relief:

 (iii) enjoining a party from striking or interfering with the personal liberty of the other party or of any child; or

(iv) providing other injunctive relief proper in the circumstances” 750 ILCS 5/501(a)(2)

A temporary restraining order (TRO) is merely an emergency 10-day preliminary injunction.

“A TRO is an emergency remedy,” (Bradford v. Wynstone Property Owners’ Ass’n, 355 Ill. App. 3d 736, 739 (2005))

All temporary restraining orders turn into preliminary injunctions in short order. Preliminary injunctions should only be granted by an Illinois court if they satisfy four tests.

“Generally, a party seeking a preliminary injunction must demonstrate that it: (1) has a clearly ascertainable right that needs protection; (2) will suffer irreparable harm without the protection; (3) has no adequate remedy at law; and (4) is likely to succeed on the merits.” In re Marriage of Centioli, 781 NE 2d 611 – Ill: Appellate Court, 1st Dist., 4th Div. 2002

In regards to an ex’s social media posts, perhaps references to oneself is a “clearly ascertainable right that needs protection.”

If the post is defamtory one may “suffer irreparable harm without protection.”

Because of the first amendment (we’ll get to that later), there is certainly no adequate remedy at law to prevent social media posting.

“Succeeding on the merits” is not difficult. Courts don’t like people aggravating eachother on social media.

So far, it doesn’t look like a court can easily issue a blanket order against social media posting.

The Illinois Marriage and Dissolution of Marriage Act’s language provides clarity that injunctions can be granted “enjoining a party from…interfering with the personal liberty of the other party or of any child.” 750 ILCS 5/501(a)(2)(iii)

Can a social media post “interfere with the personal liberty of the other party or of any child?”

“’Interference with personal liberty’ means committing or threatening physical abuse, harassment, intimidation or willful deprivation so as to compel another to engage in conduct from which she or he has a right to abstain or to refrain from conduct in which she or he has a right to engage.” 750 ILCS 103(9)

Social media posts could, perhaps, be seen as intimidation.

Wait a minute! Isn’t this America? Can’t you say, write or post anything you want?

Social Media Posting And Free Speech In An Illinois Divorce

Both the United States and the Illinois constitutions have enshrined free speech as a right.

“Congress shall make no law…abridging the freedom of speech” U.S. Const. amend. I

“All persons may speak, write and publish freely, being responsible for the abuse of that liberty. In trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense.” Illinois Const. Art. 1, Sec. 4

Any Illinois court should be very wary of trying to control any person’s speech.

“[A]ny prior restraint upon speech, while not unconstitutional per se, bears a heavy presumption against its validity…In the context of pending judicial proceedings, a judicial order restraining speech will not be held invalid as a prior restraint if it is: (1) necessary to obviate a “serious and imminent” threat of impending harm, which (2) cannot adequately be addressed by other, less speech-restrictive means.” In re a Minor, 127 Ill. 2d 247, 265 (Ill. 1989)

Intimidating speech is not protected by the first amendment.

“[T]hreats of violence or intimidation, which are not constitutionally protected in any event.” Nicholson v. Wilson, 2013 IL App (3d) 110517

Therefore, a court can restrict social media posts that can be construed as intimidating…but probably not much else.

Any mention of an ex on social media is probably intimidation…but what about mentioning kids or posting pictures of kids?

Preventing Children From Being Posted On Social Media In An Illinois Divorce

Half of all social media posts seem to of and about people’s children. If one parent objects to the other parent posting their children on social media, that parent can ask the court to restrain the other parent from posting anything about the children social media for the sake of the children’s privacy.

“[T]he State has a compelling interest in protecting the minors’ privacy…in its role as parens patriae. The doctrine of parens patriae recognizes the general power and obligation of the government to protect minors from abuse and neglect” In re Mar. S., 2023 IL App (1st) 231349

If your ex cannot stop talking about you and your divorce on social media, take screenshots. When the court determines parenting time, there is no better evidence than a parent’s own caustic words of “the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child” 750 ILCS 5/602.7(b)(13)

The counter argument to social media as proof of anything related to parenting is that the child is not on social media and cannot see this commentary. “In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)

Either way, social media is here to stay and parties must be conscientious of their social media accounts and the social media accounts of their exes during an Illinois divorce.

To learn more, contact my Chicago, Illinois family law firm today to speak with an experienced Illinois divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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