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In re R.H.

Court of Appeals of Illinois, First District, Second Division

December 29, 2017

In re R.H., a Minor
R.H., Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

         Appeal 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.


          HYMAN JUSTICE.

         ¶ 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 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 (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 ...

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