People v. R.H. (In re R.H.)

• Decision Date: 29 December 2017
• Docket Number: No. 1–17–1332,1–17–1332
• Parties: IN RE R.H., a Minor (The People of the State of Illinois, Petitioner–Appellee, v. R.H., Respondent–Appellant).
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 171332

99 N.E.3d 29

IN RE R.H., a Minor(The People of the State of Illinois, Petitioner–Appellee,

v.R.H., Respondent–Appellant).

No. 1–17–1332

Appellate Court of Illinois, First District, Second Division.

Opinion filed December 29, 2017

Rehearing denied January 25, 2018

Michael J. Pelletier, Patricia Mysza, and Patrick F. Cassidy, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg and Annette Collins, Assistant State’s Attorneys, of counsel), for the People.

JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 When an adolescent's behavior crosses the legal line from imprudent and irresponsible to criminal conduct, the State steps into the role of the parent and, through the doctrine of parens patriae and the juvenile court system, attempts to set the adolescent on a more productive path through life. Toward this end, juvenile courts have had to grapple with adjudicated delinquent minors' use of social media in the context of conditions of probation.

¶ 2 Here, a juvenile court, as a condition of probation for an adjudicated delinquent minor's own protection, required the removal of any references to gangs, guns, or drugs on the minor's social media accounts. The minor asserts that this condition of probation violates constitutionally-protected free speech.

¶ 3 R.H. is not the only juvenile who has received a similar probation restriction. Just after we heard oral argument, another division of this court issued a decision striking the restriction as unconstitutional. In re Omar F. , 2017 IL App (1st) 171073, 418 Ill.Dec. 189, 89 N.E.3d 1023. We asked the parties to submit supplemental briefs on Omar F. 's relevance to R.H.'s case.

¶ 4 We disagree with Omar F. We hold that this content-based restriction on speech passes strict scrutiny, as it is narrowly tailored. And, given the State's responsibility to its juvenile probationers, the State has a compelling interest in restricting social media and related activity to protect adjudicated delinquent minors from destructive and antisocial influences and prevent reoffending.

¶ 5 Background

¶ 6 The State filed a petition for adjudication of wardship for 16–year-old R.H., charging him with aggravated unlawful use of a weapon, unlawful possession of cannabis, and unlawful possession of cannabis with the intent to deliver.

¶ 7 R.H. admitted gang membership. His social media accounts included photographs of R.H. with a gun, making "gang signs" with fellow gang members, and smoking cannabis. In his social media postings, R.H. wrote about his own gang and denigrated members of rival gangs. In 2016, after someone shot R.H., he refused to cooperate with police. Later, he dropped out of school fearing harm for his gang affiliation.

¶ 8 The trial court found R.H. guilty of the offenses and placed him on two years of probation. Among the conditions of probation, the trial court ordered that R.H. have no contact with "any gangs, guns, or drugs which means it looks to me, [R.H.], you need to get some new friends." The trial court also ordered that R.H. delete from his social media accounts "all references to gangs, guns, or drugs." (The parties at oral argument agreed that the order encompasses both deleting posts and refraining from posting new items as he was ordered to have no "contact" with gangs, guns, or drugs.)

¶ 9 Analysis

¶ 10 R.H. contends that the probation condition restricting him from posting about gangs, guns, or drugs on social media is an unconstitutional content-based restriction that fails for lack of sufficiently narrow tailoring. (R.H. does not challenge the separate condition prohibiting him from "contact" with gang members, guns, or drugs.) The State responds that delinquent minors do not possess unlimited first amendment rights and the probation condition narrowly focused on R.H.'s rehabilitation.

¶ 11 Strict Scrutiny

¶ 12 First, we need to determine under what level of review we should examine the restriction. R.H. argues that this is a content-based restriction and thus requires strict scrutiny.

¶ 13 A government regulation of speech is content-based if the regulation applies to particular speech due to "the topic discussed or the idea or message expressed." Reed v. Town of Gilbert , 576 U.S. ––––, ––––, 135 S.Ct. 2218, 2227, 192 L.Ed.2d 236 (2015). A regulation targeting specific subject matter is content-based even if it does not discriminate among viewpoints within that subject. Id. at ––––, 135 S.Ct. at 2230. R.H.'s order qualifies as a content-based restriction because it restricts his social media postings on three express topics (gangs, guns, and drugs), even without specifying whether the content is pro- or anti-gangs, guns, or drugs. Courts review content-based restrictions under a strict scrutiny standard, and the regulation must be "narrowly tailored to serve compelling state interests." Id. at ––––, 135 S.Ct. at 2226 ; United States v. Playboy Entertainment Group, Inc. , 529 U.S. 803, 804, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000).

¶ 14 Compelling Government Interest

¶ 15 The State's interest in restricting R.H.'s social media activity stems from its relationship with him as a juvenile probationer who has engaged in illicit, self-destructive activities. Under parens patriae , Illinois courts have more latitude in their approach toward disciplining juvenile offenders. In re O.H. , 329 Ill. App. 3d 254, 260, 263 Ill.Dec. 718, 768 N.E.2d 799 (2002). Parens patriae represents the "general power and obligation of the government as a whole to protect minors and the infirm." (Internal quotation marks omitted.) In re D.S. , 198 Ill. 2d 309, 328, 261 Ill.Dec. 281, 763 N.E.2d 251 (2001). Parens patriae power is codified in the Juvenile Court Act of 1987 (Juvenile Court Act or Act) ( 705 ILCS 405/1–1 et seq. (West 1998)), which explicitly "charges the circuit court with the duty to act in the best interests of the minor and for the minor's own protection." D.S. , 198 Ill. 2d at 328, 261 Ill.Dec. 281, 763 N.E.2d 251. Delinquency proceedings seek to protect and rehabilitate, not punish, minors. In re B.S. , 192 Ill. App. 3d 886, 891, 140 Ill.Dec. 44, 549 N.E.2d 695 (1989).

¶ 16 The Juvenile Court Act contains a nonexhaustive list of conditions juvenile courts may impose. One of these is that the minor "refrain from having any contact, directly or indirectly, with certain specified persons or particular types of persons, including but not limited to members of street gangs and drug users or dealers." 705 ILCS 405/5–715(2)(s) (West 2016). The trial court imposed this condition and ordered R.H. to have no contact with gangs, guns, or drugs. Though it implicates R.H.'s first amendment right to free assembly, he does not challenge this condition, nor does he address whether "contact" includes the type of social media activity that he does challenge.

¶ 17 The trial courts have considerable deference in fashioning probation conditions intended to rehabilitate. People v. Kimbrell , 291 Ill. App. 3d 605, 607, 225 Ill.Dec. 758, 684 N.E.2d 443 (1997). Courts may impose restrictions outside those the statute lists so long as the condition (i) is reasonable and (ii) has some connection between it "and either (a) the underlying crime or (b) the behavior or attitude of the defendant that the trial court thinks needs adjusting." In re M.P. , 297 Ill. App. 3d 972, 977, 232 Ill.Dec. 223, 697 N.E.2d 1153 (1998).

¶ 18 In ascertaining the reasonableness of the social media probation condition imposed on R.H., we need to examine the behavior that led R.H. to be adjudicated delinquent. People v. Stocke , 212 Ill. App. 3d 547, 554, 156 Ill.Dec. 605, 571 N.E.2d 192 (1991). R.H. was arrested for possession with intent to deliver cannabis, possession of cannabis, and unlawful use of a weapon. R.H. has a history of criminal behavior, dropped out of school fearing gang retaliation, and had been shot. The gang information report indicated that R.H. was affiliated with the Unknown Vice Lords, a criminal street gang operating on Chicago's southwest side. Particularly relevant, R.H. used his social media accounts to taunt rival gang members and posted a number of pictures of himself displaying gang signs, posing with guns, and smoking what appears to be cannabis. R.H.'s past actions demonstrate the reasonableness of the probation condition. Id.

¶ 19 R.H.'s past postings of pictures of himself displaying gang signs, holding guns, and smoking cannabis foment and glorify criminal behavior. The postings also communicate to members of his gang and other gangs an endorsement of and a willingness to engage in criminal activities. Indeed, the implications of R.H.'s posts do not simply affect his chances of future employment; they put R.H., his family, and anyone else in his vicinity, in danger of bodily harm. We are mindful that social media postings like R.H.'s do not exist in a vacuum but sometimes, sadly, spill out into real-world violence. We conclude from all this that the State has a compelling interest in restricting R.H.'s social media activity on these three related and insidious topics, closely related to his crimes, as a means of preventing him from further criminal acts.

¶ 20 Our conclusion is supported by case law allowing restrictions of speech by minors not on probation. Minors are entitled to some, but not all, of the constitutional protections traditionally afforded to adults. Bellotti v. Baird , 443 U.S. 622, 633, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (plurality op.). Different constitutional standards apply to minors because of "the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing." Id. at 634, 99 S.Ct. 3035.

¶ 21 This distinction between minors and adults manifests in several obvious ways. Most relevant here, the creation of a separate court system for juveniles shows...