Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County. No. 17 JD 331 The
Honorable William G. Gamboney, Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court, with
opinion. Justice Pucinski concurred in the judgment and
opinion. Presiding Justice Neville dissented, 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. We asked the parties to submit
supplemental briefs on Omar F.'s relevance to
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
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.)
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 (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 (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 (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 (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 ...