# Same Condition, LLC v. Codal, Inc.

> Appellate Court of Illinois · June 21, 2021 · 453 Ill. Dec. 409

URL: https://www.frixlaw.com/law-library/cases/9971337

## Case

- **Court:** Appellate Court of Illinois
- **Decided:** June 21, 2021
- **Citations:** 453 Ill. Dec. 409; 187 N.E.3d 1147; 2021 IL App (1st) 201187
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 7 later opinions in the Frix Law Library

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## Opinion text

Digitally signed
by Reporter of
Decisions
Reason: I attest
Illinois Official Reports to the accuracy
and integrity of
this document
Appellate Court Date: 2022.04.08
15:28:45 -05'00'

Same Condition, LLC v. Codal, Inc., 2021 IL App (1st) 201187

Appellate Court SAME CONDITION, LLC, an Illinois Limited Liability Company,
Caption Plaintiff and Counterdefendant-Appellant, v. CODAL, INC., an
Illinois Corporation, Defendant and Counterplaintiff-Appellee
(Munish Kumar, a/k/a Munish Kumar Raizada, Counterdefendant-
Appellant).

District & No. First District, Third Division
No. 1-20-1187

Filed June 21, 2021

Decision Under Appeal from the Circuit Court of Cook County, No. 19-L-5407; the
Review Hon. Diane M. Shelley, Judge, presiding.

Judgment Order vacated.

Counsel on Munish Kumar, of Chicago, appellant pro se.
Appeal
Bryan Sugar, William Mauke, and Siobhán M. Murphy, of Lewis
Brisbois Bisgaard & Smith LLP, of Chicago, for appellee.

Panel JUSTICE BURKE delivered the judgment of the court, with opinion.
Justices McBride and Ellis concurred in the judgment and opinion.
OPINION

¶1 After a business relationship between Codal, Inc. (Codal), and Same Condition, LLC
(Same Condition), soured, Same Condition sued Codal for breach of contract, among other
claims. Codal then countersued Same Condition and its president, Munish Kumar, raising
various claims, including ones sounding in defamation based on critical comments and reviews
that Same Condition and Kumar had posted online. As the litigation progressed, Same
Condition and Kumar continued posting critical comments and reviews online about Codal
and its chief executive officer, Keval Baxi, which resulted in Codal filing motions for a
preliminary injunction and temporary restraining order to have Same Condition and Kumar
cease their online campaign. Although the circuit court denied those motions, it utilized its
inherent authority to manage its cases and prohibited Same Condition and Kumar from making
any additional posts online about Codal.
¶2 Same Condition and Kumar have appealed the circuit court’s order as an unconstitutional
abridgment on their right to free speech under both the first amendment of the United States
Constitution (U.S. Const., amend. I) and article I, section 4, of the Illinois Constitution (Ill.
Const. 1970, art. I, § 4). Because we agree that the court’s order is unconstitutional, we vacate
that order.

¶3 I. BACKGROUND
¶4 Codal is a corporation that provides personnel with expertise in the fields of systems
integration, information technology consulting, and systems development. Same Condition is
a company that intended on creating a web-based, medical patient-centered software
application. In June 2017, Same Condition hired Codal to develop that software application.
According to Same Condition’s interpretation of their agreement, Codal was supposed to
deliver the software application to it by January 2018. But, by January 2018, Codal had failed
to deliver the application. And, in July 2018, when Codal had delivered the software
application, Same Condition believed the application was incomplete, substandard, rife with
errors and bugs, and inadequate to be released publicly. According to Same Condition, by
October 2018, Codal indicated that it needed at most 100 more hours of work to complete the
application to Same Condition’s specifications.
¶5 Eventually, in May 2019, after the software application allegedly did not meet Same
Condition’s standards, it sued Codal for breach of contract, fraud, and unjust enrichment. Two
months later, Codal answered Same Condition’s complaint and denied the chief allegations
therein. Codal also raised several affirmative defenses and brought counterclaims, including
breach of contract for Same Condition’s failure to pay an invoice of $30,750.
¶6 In August 2019, Codal, with leave from the circuit court, filed its first amended
counterclaims. Codal added claims for defamation per se, defamation per quod, a violation of
the Uniform Deceptive Trade Practices Act (Deceptive Practices Act) (815 ILCS 510/1 et seq.
(West 2018)) and commercial disparagement against Same Condition and Kumar, Same
Condition’s president. All four counterclaims were based on online posts from Kumar and
Same Condition about Codal’s performance and business integrity. Codal attached these posts
as exhibits to its first amended counterclaims.

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¶7 One exhibit showed a comment on a post from Codal’s LinkedIn page, where Kumar stated
that he hired Codal to build an “ambitious” software platform and “gave them a huge sum” but
the project was not completed on time and the platform that was completed was defective.
Kumar added that he had to hire a third-party quality assurance tester to test Codal’s platform
and remarked that it was:
“more than clear that Codal lacks the technical expertise to build the software or our
specifications. It was not a small platform (technically, but then we hired Codal because
they assured that have the required skill sets to accomplish the kind of work it requires.
And they asked is premium cost, which we kept paying as bills kept coming). But Codal
has not been able to hand over the platform to us now. Harassed and frustrated by
Codal’s highly unethical business practices, we had to drag them to court in Chicago
in 2019.”
¶8 Another exhibit showed that, in July 2019, Same Condition’s Twitter account replied to
various tweets from Codal’s Twitter account. In some of these replies, Same Condition
remarked that Codal had “cheated” the company, delivered a “half-cooked buggy platform,”
provided a “nightmare experience,” and overall exhibited “[v]ery unethical business
practices.” In addition to Codal being tagged in the replies, other companies’ Twitter accounts
were as well. Additional exhibits showed that, in July 2019, Kumar left similarly negative
reviews on Codal’s Google page, its Better Business Bureau page, and its Clutch page.
¶9 Same Condition and Kumar subsequently filed their own answer and affirmative defenses
to Codal’s counterclaims. In that filing, Same Condition and Kumar admitted that the
referenced social media posts had been posted by them, but they denied that any of the posts
contained false statements. As the litigation proceeded from 2019 to 2020, the parties
conducted discovery.
¶ 10 In February 2020, Same Condition and Kumar filed a motion for an extension of time to
answer Codal’s requests to admit. The next month, Codal filed a response opposing their
motion for an extension of time and to expedite the circuit court’s ruling on the motion. In
Codal’s response, it observed that Same Condition and Kumar had “embarked on an extensive
campaign of posting new defamatory content on social media.” Codal highlighted that Same
Condition changed its Twitter biography to state that it was “[a] Global Health Community
that failed to start because @GoCodal messed up our software product. Seeking justice from
Chicago-based #Codal and its CEO @kevalbaxi.” Additionally, Codal asserted that Same
Condition and Kumar had contacted Codal’s former clients, potential clients, past employees,
and current employees in order to defame Codal and Baxi, its chief executive officer. Codal
attached to its response a declaration from Baxi, who averred to the various actions allegedly
taken by Same Condition and Kumar. Baxi pointed out that Same Condition and Kumar’s
social media campaign included them “making negative and disparaging comments on all of
Codal’s online postings.” Baxi noted that Codal’s “online presence [was] critical” to its
business and asserted that Same Condition and Kumar’s “actions have prevented Codal and
[him]self from maintaining said online presence as we are unable to issue necessary press
release, important marketing materials, or post even unrelated social media content as [Same
Condition and Kumar] respond to any online post with negative and defaming comments.”
Baxi further highlighted a chronological list of the social media posts and comments from
Same Condition and Kumar directed at Codal and Baxi that he and his company had created.

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According to that list, Same Condition and Kumar had commented about Codal and Baxi 69
times from February 17, 2020, to March 2, 2020, on Twitter, LinkedIn, and Google.
¶ 11 For example, in a two-day stretch from February 17 to February 18, 2020, Same Condition
tweeted the following from its account:
“@gocodal @mobileappdaily We had a very bad experience with @Gocodal. They
charged us hefty amounts and 3 years have passed, wanted to dump a buggy half cooked
website on us. We refused and dragged them to court. #Codal”
“@gocodal @AppDevFirms Codal did not complete our project, whatever the software
they built for us, was half cooked and full of problems. We had a horrible experience
with them. #Codal”
“@AppDevFirms @gocodal @hyperlinkinfo @hashrocket @palantir @orbiteers
@myplanet @prometsource @Realnets @educoweb @cre8inc Codal NOT only failed
to develop our software platform properly, they usurped our money and refused to
listen to our concerns. Left with no option, we had to drag #Codal to a Chicago court.
Now Codal playing legal games rather than addressing the issues.”
“@AppDevFirms @gocodal @hyperlinkinfo @hashrocket @palantir @orbiteers
@myplanet @prometsource @Realnets @educoweb @cre8inc See how #Codal is
playing out now! They Blocked us on Twitter. Sir @gocodal, you need to listen to the
grievances of your customer rather than blocking. Bad business ethics!”
“My struggle with @goCodal company. They have failed to deliver my product. Codal
is technically incompetent. @BuiltinChicago @CrainsChicago @Midwest_loT
@1871Chicago @BigTimeSoftware Note: #Codal has blocked our twitter handle.” 1
“@gocodal @Ontraport @buffer @SproutSocial @ahrefs @convertflow
@GMktgPlatform @semrush @hotjar @ActiveCampaign Months have passed since
we wrote this, but #Codal company of Chicago (@gocodal) refuses to accept that they
were not able to provide IT solutions that agreed scope of work required. Surprised that
unfair business practices continue. @ExecClubChicago @AnnCDwyer @ChiTribBiz”
Also on February 18, 2020, Kumar posted a Google Review about Codal stating the following:
“We are having a very bad experience with Codal company. We hired Codal about 3
years back to develop a healthcare platform. Time has passed, but Codal has not been
able to develop our product so far in a satisfying manner. They were just interested in
getting money from us, but in return tried to dump a faulty, buggy and half cooked
software on us. Naturally, we refused to accept that. They do not have technical skills
to complete our product. Codal has not been a good company to work with as they kept
promising one thing, but delivered something else. At some stage, they stopped
communicating with us. We had to drag Codal to the court.”
Similarly, on February 18, 2020, Kumar posted on LinkedIn stating the following:
“Our Bad experience with Codal (Codal Inc.) Codal is a Chicago-based I.T. company,
headed by Keval Baxi [@kevalbaxi]. Our health startup had a really bad experience
with Codal. They have usurped our money, but failed to develop the software platform.

1
This Tweet appeared to include a video, as well.

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Their technical incompetence was such that when things came to a passe, they even
tried to dump a half cooked buggy website on us. We refused to accept that. We had to
drag Codal to a local Chicago court. Here too, rather than accepting pitfalls and trying
to fix them, Codal is playing legal tactics.
I spoke to one of the employees at Codal (and the recording is with us, our attorney
will present that in court at appropriate time), and the guy said: ‘You are not alone.
Codal has played unfairly with some other clients too. They take up the project and
when faced with technical roadblocks, they start buying time and become non
responsive.’
All that glitters is not gold. Codal is a classical example. Located in downtown
office, they look big, but then indulge in unfair business practices. Another company
in Chicago area contacted me recently when they came to know about we filing a
lawsuit against Codal.
If any other person/firm had similar experience, pl mail@samecondition.com.”
¶ 12 On March 24, 2020, the circuit court granted Same Condition and Kumar’s motion for an
extension of time to answer Codal’s requests to admit but did not discuss any of their online
posts. Four months later, Codal sought a preliminary injunction against Same Condition and
Kumar to prohibit them from harassing Codal and its employees as well as to require them to
remove all defamatory content they had posted on social media since the lawsuit began. In the
motion, Codal asserted that Same Condition and Kumar had continued posting “harassing and
disparaging comments” to Codal’s Twitter account and the accounts of Codal’s employees.
Additionally, Codal stated that they had created a website—codalsucks.blogspot.com—
wherein Same Condition and Kumar further posted defamatory content about Codal and Baxi.
¶ 13 Codal attached to its motion an updated chronological list of the social media posts and
comments from Same Condition and Kumar directed at Codal and Baxi and multiple posts
from the blog. In one, titled “Codal Sucks,” which was apparently written by Kumar because
the post begins “[m]y name is Kumar,” the post said that “Codal company and its CEO Keval
Baxi are very unethical,” that they “did not realize that he and his company essentially bled
our start up to death,” and that they were “playing tactics” in court. According to the post, “this
show[ed] their business values and ethics. Will not an ethical business try to address the client’s
grievance rather than playing mischief? So, this is Codal for you all to see.”
¶ 14 In another post, titled “Codal works with United, Yet Deceived A Start up-Why and
How?”, the post stated: “Readers familiar with our story must be wondering that Chicago-
based Codal company that boasts of working with the giants like United Airlines, Pepsi,
Motorola and Quickbooks, how come it dumped and cheated a very small start up enterprise
like ours!” Codal also attached an affidavit from Clare Bittourna, one of its employees, who
averred that she had answered a question on the website Quora in April 2019. But Bittourna
asserted that, in June 2020, Kumar responded to that same question with a “lengthy rant” about
Codal and that, later in the day, Kumar posted from Same Condition’s Twitter account and
tagged Bittourna in the post with her legal given and surname. Bittourna stated that these
actions made her feel “extremely uncomfortable.” Lastly, Codal attached an affidavit from
Baxi, who recounted Kumar’s actions and asserted:
“At this point, I feel as if I am being personally monitored and tracked. As ridiculous
as this may sound, having every post, press release, and blog article from my business
attacked, our clients being contacted at all hours of the day, and my staff harassed, it is

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not only becoming exhausting to monitor, but it is now moving into the territory of a
security concern.”
¶ 15 On July 10, 2020, the parties appeared before the circuit court on multiple motions of
Codal’s, including its motion for a preliminary injunction. Following the hearing, the court
struck Codal’s motion without prejudice. The hearing was conducted via Zoom
videoconference, and there is no report of proceedings in the record on appeal from that
hearing. However, Codal claimed in a later filing that, although the court denied its motion,
the court nevertheless “instructed” Same Condition and Kumar’s attorney “to request that
[they] refrain from their defamatory and disparaging practices.”
¶ 16 Two weeks later, Codal filed a motion for a temporary restraining order against Same
Condition and Kumar to enjoin them from harassing Codal and Codal’s employees and from
repeating their defamatory, disparaging, and deceptive practices against Codal. In the motion,
Codal observed that, in the July 10, 2020, hearing, the circuit court instructed Same Condition
and Kumar’s attorney to warn Kumar that his behavior would not be tolerated. Yet, according
to Codal, no more than two hours later, Kumar posted another defamatory tweet about Codal.
In that tweet, a copy of which was attached to Codal’s motion, Same Condition, whose Twitter
name was now “Startup cheated by Codal,” stated: “Credibility is the most important thing in
business. Codal may boast of serving big clients like @pepsi, @united, @QuickBooks and
@MotorolaUS, but we know @gocodal ruined us by eating away our money and leaving us
on the street. Codal’s CEO @Kevalbaxi! we need justice.” The timestamp from the tweet was
July 10, 2020, at 4:18 p.m.
¶ 17 On October 2, 2020, the circuit court entered an order that, in part, denied Codal’s motion
for a temporary restraining order. But in paragraph 6 of that order, the court ordered that
“Pursuant to the Court’s inherent authority to manage its cases, Counter-Defendant, Same
Condition and Munish Kumar, are prohibited from making any additional posts online
regarding Codal. This order is final and appealable pursuant to [Illinois Supreme Court Rule
304(a)].” There is no report of proceedings in the record on appeal from that court date and
nothing in the record showing the court made any factual findings when prohibiting Same
Condition and Kumar in this manner. In the order, the court also granted Codal leave to file
second amended counterclaims.
¶ 18 Codal’s second amended counterclaims against Same Condition and Kumar now included
10 counts, including the previous 4 counts for defamation per se, defamation per quod, a
violation of the Deceptive Practices Act (815 ILCS 510/1 et seq. (West 2018)), and commercial
disparagement against Same Condition and Kumar but also added 3 additional counts of
defamation per se against Kumar and Same Condition. Among Codal’s requested relief was a
permanent injunction barring Same Condition and Kumar from publishing additional false
statements about Codal’s performance under their agreement and, generally, Codal’s goods,
services, and business. Codal attached to its second amended counterclaims an updated
chronological list of the social media posts and comments from Same Condition and Kumar
directed at Codal and Baxi. Seven posts, all from Same Condition’s Twitter account, were
posted after the parties’ July 10, 2020, hearing. In Same Condition and Kumar’s answer to
Codal’s second amended counterclaims, they admitted the social media posts were genuine but
denied that any of the statements were false.
¶ 19 On October 28, 2020, Same Condition and Kumar filed a notice of interlocutory appeal
pursuant to Illinois Supreme Court Rule 307(a) (eff. Nov. 1, 2017) to challenge the circuit

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court’s order that “imposed an injunction” prohibiting them from exercising their right to free
speech indefinitely. Although Same Condition and Kumar conceded the court did not
technically grant a preliminary injunction, they argued the court’s order was the functional
equivalent.

¶ 20 II. ANALYSIS
¶ 21 A. Jurisdiction
¶ 22 Initially, before addressing the merits of Same Condition and Kumar’s contention on
appeal, we must discuss our jurisdiction. As we just noted, in Same Condition and Kumar’s
notice of appeal, they appealed pursuant to Rule 307(a). See id. Moreover, in the jurisdictional
statement of their appellants’ brief, they assert that this is an interlocutory appeal as of right
pursuant to Rule 307(a)(1) (Ill. S. Ct. R. 307(a)(1) (eff. Nov. 1, 2017)). Under Rule 307(a)(1),
an interlocutory appeal as of right may be taken from an order “granting, modifying, refusing,
dissolving, or refusing to dissolve or modify an injunction.” Id. Same Condition and Kumar
acknowledge that, in paragraph 6 of the circuit court’s order from October 2, 2020, it never
used the word “ ‘injunction,’ ” but they assert that the order, which enjoined their online
speech, is akin to an injunction. And therefore, they posit that the order was immediately
appealable under Rule 307(a)(1).
¶ 23 Codal, however, argues that the circuit court did not enter an injunction appealable under
Rule 307(a)(1), as the court had denied its request for a preliminary injunction. Rather, Codal
posits that the court entered a limited order pursuant to its inherent authority to facilitate the
efficient administration of litigation and so that Same Condition and Kumar’s conduct did not
give rise to additional claims associated with the case. Codal highlights that the court’s order
expressly stated that it was final and appealable pursuant to Illinois Supreme Court Rule 304(a)
(eff. Mar. 8, 2016). As such, Codal posits that jurisdiction in this appeal is pursuant to Rule
304(a), which, in an action involving multiple parties or multiple claims for relief, permits an
appeal “taken from a final judgment as to one or more but fewer than all of the parties or claims
only if the trial court has made an express written finding that there is no just reason for
delaying either enforcement or appeal or both.” Id.
¶ 24 “To determine what constitutes an appealable injunctive order under Rule 307(a)(1)[,] we
look to the substance of the action, not its form.” In re A Minor, 127 Ill. 2d 247, 260 (1989).
“Actions of the circuit court having the force and effect of injunctions are still appealable even
if called something else.” Id. Among other things, an injunctive order demands that a party
refrain from doing a specific thing, “ ‘the most common sort of which operate as a restraint
upon the party in the exercise of his real or supposed rights.’ ” Id. at 261 (quoting Wangelin v.
Goe, 50 Ill. 459, 463 (1869)). However, orders that could be characterized as “ ‘ministerial’ ”
or “ ‘administrative,’ ” such as discovery orders and subpoenas, are not interlocutory orders
that are appealable as of right because they regulate procedural aspects of a case. Id. at 262.
“Such orders may be considered noninjunctive because they did not form part of the power
traditionally reserved to courts of equity, but, instead, were part of the inherent power
possessed by any court to compel witnesses to appear before it and give testimony.” Id. These
orders “do not affect the relationship of the parties in their everyday activity apart from the
litigation, and are therefore distinguishable from traditional forms of injunctive relief.” Id.
¶ 25 In the present case, the circuit court’s order prohibits Same Condition and Kumar from
doing a specific thing, i.e., posting online about Codal, which operates as a restraint upon them

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in the exercise of their real or supposed first amendment rights. See id. at 261, 263 (because
the circuit court ordered a newspaper “to refrain from ‘doing a particular thing’—from
publishing the minor’s name,” “[t]he order operated as a restraint upon the [newspaper] in the
exercise of its first amendment rights, real or imagined” and was appealable under Rule
307(a)(1)). Furthermore, because the order restricts what Same Condition and Kumar can do
online, it affects the relationship of the parties in their everyday activities apart from the
litigation. See id. at 262. Although the court used Rule 304(a) language in the order, it was
substantively injunctive in nature, and consequently, the order was appealable under Rule
307(a)(1). 2 Practically speaking, however, whether or not we review this case under Rule
304(a) or Rule 307(a)(1), our scope of review of the appeal remains the same, and we must
determine whether the court’s order was constitutional.

¶ 26 B. The Circuit Court’s Order
¶ 27 We now turn to Same Condition and Kumar’s contention on appeal that the circuit court’s
order that prohibits them from posting anything online about Codal constitutes a prior restraint
in violation of their right to free speech under the United States and Illinois Constitutions.
¶ 28 The first amendment of the United States Constitution provides in part that “Congress shall
make no law *** abridging the freedom of speech ***.” U.S. Const., amend. I. Despite the
first amendment’s reference to “Congress,” the judiciary is also subject to scrutiny under the
first amendment. See Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 765-66 (1994).
The first amendment applies to the states through the fourteenth amendment (People v. Austin,
2019 IL 123910, ¶ 30), and generally, it prohibits “the government from dictating what we see
or read or speak or hear.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245 (2002). More
specifically, the first amendment precludes the government from “ ‘restrict[ing] expression
because of its message, its ideas, its subject matter, or its content.’ ” United States v. Alvarez,
567 U.S. 709, 716 (2012) (quoting Ashcroft v. American Civil Liberties Union, 535 U.S. 564,
573 (2002)).
¶ 29 Article I, section 4, of the Illinois Constitution provides in pertinent part that “[a]ll persons
may speak, write and publish freely, being responsible for the abuse of that liberty.” Ill. Const.
1970, art. I, § 4. Although the free speech clause of the first amendment of the United States
Constitution and of the Illinois Constitution are similar, our supreme court has concluded that
the Illinois Constitution may afford greater free speech rights than its federal counterpart,
though not in every situation. City of Chicago v. Pooh Bah Enterprises, Inc., 224 Ill. 2d 390,
446-47 (2006). That is to say, if we find that the circuit court’s order in this case is a proper
limitation on free speech and thus constitutional under the first amendment, we would then
have to analyze the order under the free speech clause of the Illinois Constitution and determine
whether, in this case, the Illinois Constitution provides greater free speech rights than the first
amendment and barred the order. But we begin with the traditional first amendment principles.

We note that, during the briefing stage of this appeal, Same Condition and Kumar sought to file a
2

supplemental brief. In responding to that motion, we observed that the circuit court’s order being
appealed from contained final and appealable language pursuant to Rule 304(a) and thus should proceed
as an appeal under Rule 304(a) rather than being considered an interlocutory appeal under Rule
307(a)(1). However, further research of the record and relevant case law dictates that this appeal
proceed under Rule 307(a)(1).

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¶ 30 This case involves a prior restraint, which is a “ ‘judicial order[ ] forbidding certain
communications when issued in advance of the time that such communications are to occur.’ ”
(Emphasis in original.) Alexander v. United States, 509 U.S. 544, 550 (1993) (quoting Melville
B. Nimmer, Nimmer on Freedom of Speech: A Treatise on the Theory of the First Amendment,
§ 4.03, p. 4-14 (1984)). We review whether a court-ordered prior restraint is constitutional for
an abuse of discretion. In re J.S., 267 Ill. App. 3d 145, 147-48 (1994). Within the context of a
pending judicial proceeding, prior restraints “ordinarily refer[ ] to a court order (or statute) that
limits the press’s freedom to publish information about the proceeding.” In re Jawan S., 2018
IL App (1st) 172955, ¶ 56. But there are instances where a court has imposed a prior restraint
on a party to the litigation. See Kemner v. Monsanto Co., 112 Ill. 2d 223, 242 (1986)
(prohibiting one party in the litigation from communicating with the media about the case);
Flood v. Wilk, 2019 IL App (1st) 172792, ¶¶ 34-35 (prohibiting a critic of a church from
publishing any written communication about the church’s employees, staff, and congregants).
Prior restraints of speech have long been condemned by courts as “the most serious and the
least tolerable infringement on First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427
U.S. 539, 559 (1976). To this end, while prior restraints are not unconstitutional per se, there
is a “heavy presumption” against their constitutional validity. (Emphasis omitted.) Kemner,
112 Ill. 2d at 243. And the proponent of such a restraint “carries a heavy burden of showing
justification for the imposition of such a restraint.” Organization for a Better Austin v. Keefe,
402 U.S. 415, 419 (1971).
¶ 31 Illustrative is Keefe, a seminal case on free speech rights and an individual’s right to
criticize the business practices of another. In the case, a community organization targeted a
real estate broker, who allegedly used racially divisive tactics, by distributing leaflets detailing
the broker’s practices in Westchester, Illinois, the town in which the broker resided. Id. at 415-
17. The broker sought and obtained an injunction that prohibited the organization from passing
out pamphlets, leaflets, or other literature of any kind and from picketing anywhere in
Westchester. Id. at 417. The case reached the United States Supreme Court, who observed an
elementary tenet “that in a case of this kind the courts do not concern themselves with the truth
or validity of the publication.” Id. at 418. The Court noted that the organization’s activities
“plainly intended to influence [the broker’s] conduct” and “engaged openly and vigorously in
making the public aware of [his] real estate practices.” Id. at 419. Even though the
organization’s activities might have been offensive to the broker and others, the Court
concluded that “[n]o prior decisions support the claim that the interest of an individual in being
free from public criticism of his business practices in pamphlets or leaflets warrants use of the
injunctive power of a court.” Id. Accordingly, the Court held that the injunction violated the
first amendment and had to be vacated. Id. at 420.
¶ 32 While in the past, the expression of speech occurred predominantly in person, in
newspaper, in pamphlet, on television, or on radio, today, the expression of speech lives
substantially online through social media platforms such as Twitter, Facebook, and Instagram;
video streaming websites such as YouTube; message boards such as Reddit; blogs; and others
of the like. Although the flow of communication and speech in this case involves the Internet
and social media, the principles of the first amendment remain the same. See Citizens United
v. Federal Election Comm’n, 558 U.S. 310, 326, 364 (2010) (observing the “[r]apid changes
in technology” and “the creative dynamic inherent in the concept of free expression” and
concluding that “[c]ourts, too, are bound by the First Amendment” such that “[w]e must

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decline to draw, and then redraw, constitutional lines based on the particular media or
technology used” to disseminate speech); Reno v. American Civil Liberties Union, 521 U.S.
844, 870 (1997) (concluding there is “no basis for qualifying the level of First Amendment
scrutiny that should be applied to [the Internet]”). When a court orders a prior restraint on
speech, our supreme court has concluded that to be constitutional, “the restraint must either
contain certain specified procedural safeguards” or it “must fall within one of several narrowly
defined exceptions to the doctrine.” In re A Minor, 127 Ill. 2d at 265.
¶ 33 The first step in analyzing a prior restraint is determining whether the restraint was content
based or content neutral. See Flood, 2019 IL App (1st) 172792, ¶ 35. A content-based
restriction of speech is presumptively unconstitutional and is reviewed under strict scrutiny.
Reed v. Town of Gilbert, 576 U.S. 155, 163-64 (2015). “Government regulation of speech is
content based if” it restricts “particular speech because of the topic discussed or the idea or
message expressed.” Id. at 163. Conversely, a content-neutral restriction of speech limits the
time, place, or manner of speech and is reviewed under intermediate scrutiny. City of Chicago
v. Alexander, 2017 IL 120350, ¶ 66.
¶ 34 In this case, the circuit court’s order prohibits Same Condition and Kumar “from making
any additional posts online regarding Codal.” The court’s order clearly intended to regulate the
content of Same Condition and Kumar’s speech, namely any online speech involving Codal.
In other words, in order to determine whether Same Condition and Kumar violated the court’s
order, one would have to examine the content of their online posting. See McCullen v. Coakley,
573 U.S. 464, 479 (2014) (observing that a content-based restriction requires “ ‘enforcement
authorities’ to ‘examine the content of the message that is conveyed to determine whether’ a
violation has occurred” (quoting Federal Communications Comm’n v. League of Women
Voters of California, 468 U.S. 364, 383 (1984))). As such, the court imposed a content-based
prohibition on Same Condition and Kumar’s speech. See Bey v. Rasawehr, 161 Ohio St. 3d
79, 2020-Ohio-3301, 161 N.E.3d 529, ¶¶ 5, 33 (finding that a trial court order that prohibited
a party “ ‘from posting about [the petitioners] on any social media service, website, discussion
board, or similar outlet or service’ ” to be a content-based restriction because “[a] regulation
of speech that is ‘about’ [the petitioners] is necessarily a regulation of the subject matter of that
speech”).
¶ 35 Although we have concluded that the circuit court ordered a content-based restriction on
Same Condition and Kumar’s speech, the first amendment nevertheless allows “restrictions
upon the content of speech in a few limited areas.” R.A.V. v. City of St. Paul, 505 U.S. 377,
382-83 (1992). These areas include, among others, restrictions on obscenity, defamation,
advocacy intended and likely to incite imminent criminal conduct, speech essential to criminal
conduct, fighting words, child pornography, and true threats. Alvarez, 567 U.S. at 717. Even
though a content-based restriction on speech is permissible for a few recognized categories,
the restriction still must survive strict scrutiny (Flood, 2019 IL App (1st) 172792, ¶¶ 36, 43),
meaning it must be “necessary to serve a compelling governmental interest and narrowly drawn
to achieve that end.” People v. Jones, 188 Ill. 2d 352, 358 (1999). In other words, the content-
based restriction must be “the least restrictive means consistent with the attainment of its goal.”
In re D.W., 214 Ill. 2d 289, 310 (2005).
¶ 36 In the present case, assuming arguendo that there is a compelling government interest in
prohibiting Same Condition and Kumar from posting online about Codal, the circuit court’s
blanket order that they indefinitely refrain from making any additional posts online about

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Codal was not narrowly tailored to achieve that interest. There is no doubt from Codal’s
vantage point that Same Condition and Kumar engaged in a relentless and obnoxious social
media campaign against it and Baxi on various platforms, where they not only vocalized their
criticisms to the whole world about Codal but also tagged other accounts such as Crain’s
Chicago Business and the Chicago Tribune’s business news account. Yet, as upsetting as these
posts were to Codal and Baxi, a court may not enjoin a party from criticizing others “even
though [they] find[ ] that criticism distressing.” Flood, 2019 IL App (1st) 172792, ¶ 42. As this
court observed in Flood, a business owner could be distressed by an individual complaining
about the business’s environmental pollution, fearing that such criticism could lead to the
business losing money. Id. “However, that does not permit the legislature or a court to silence
his critics.” Id.
¶ 37 In Flood, this court addressed the constitutionality of a circuit court stalking no-contact
order that a pastor of a church obtained against an individual who had made repeated unwanted
appearances at the church and repeatedly passed out disparaging leaflets around the church. Id.
¶¶ 1-5. As part of the no-contact order, the court prohibited the individual from
“ ‘communicating, publishing or communicating in any form any writing naming or regarding
[the pastor], his family, or any employee, staff or member of the [pastor’s church]
congregation.’ ” Id. ¶ 24. This court concluded that the restriction was content based and
observed that it thus was presumptively invalid. Id. ¶ 35. We then found that:
“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.” Id.
This court therefore held that this part of the no-contact order violated the church critic’s first
amendment right to free speech, and accordingly, we vacated that part of the order. Id. ¶ 46.
¶ 38 Like Flood, the circuit court’s order in the present case operates as a blanket content-based
prior restraint on Same Condition and Kumar’s online activity insofar as it relates to Codal,
and therefore, there is a heavy presumption that it is unconstitutional. See Reed, 576 U.S. at
163-64; Kemner, 112 Ill. 2d at 243. In attempting to rebut this heavy presumption, Codal has
presented several arguments as to why the restriction is necessary, including that it is needed
to ensure an expedient judicial process by preventing additional posts that could result in
further claims by against Same Condition and Kumar. As Codal notes in its brief, Same
Condition and Kumar’s posts were the basis for many of its counterclaims—the most common
cause being defamation—the common theme of which was that Same Condition and Kumar’s
social media posts contained false statements that injured Codal’s business and reputation.
¶ 39 Generally, defamatory statements are not constitutionally protected. See Alvarez, 567 U.S.
at 717. But see Hadley v. Doe, 2015 IL 118000, ¶ 33 (discussing narrow exceptions). Despite
this, the general rule is that an injunction is “not available to prevent actual or threatened
publications of a defamatory character.” Montgomery Ward & Co. v. United Retail, Wholesale
& Department Store Employees of America, C.I.O., 400 Ill. 38, 42 (1948). This general
principle of law holds true even if the allegedly defamatory statements could cause a business
to suffer financially because “[t]he private litigants’ interest in protecting their vanity or their
commercial self-interest simply does not qualify as grounds for imposing a prior restraint.”

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Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 225 (6th Cir. 1996). The ordinary
recourse for the publication of defamatory statements is not a prior restraint but rather civil or
criminal proceedings. See CBS, Inc. v. Davis, 510 U.S. 1315, 1318 (1994) (“Subsequent civil
or criminal proceedings, rather than prior restraints, ordinarily are the appropriate sanction for
calculated defamation or other misdeeds in the First Amendment context.”). And indeed, Codal
is pursuing claims in civil court to redress the alleged defamatory statements made by Same
Condition and Kumar.
¶ 40 Despite these general principles, there are very limited exceptions in which an injunction
is available to prevent actual or threatened publications of defamation. In Montgomery Ward,
400 Ill. at 47-48, our supreme court highlighted two of them. One exception was so-called
“trade libel” involving a business defaming the character of a competitor’s business, the
essence of which “requires some statement of a competitor or business rival, which will take
away business and give it to another.” Id. at 51. The other exception involved “ ‘constructive
coercion’ ” or “ ‘effect of force words,’ ” which involved picketing by labor unions aimed at
physically and morally coercing their employers’ actions. Id. at 47-48. Neither of these
exceptions apply, and in particular, the trade libel exception does not apply because there is no
evidence that Same Condition and Codal are business competitors. Rather, just the opposite,
Codal was in the business of systems integration, information technology consulting and
systems development, whereas Same Condition was a start-up creating a web-based, medical
patient-centered software application who relied on software development by Codal. And
perhaps just as importantly, insofar as the record on appeal shows, the circuit court never made
any findings that Same Condition and Kumar’s conduct fell within one of these limited
exceptions. See id. at 45; Flood, 2019 IL App (1st) 172792, ¶ 37. With no applicable
exceptions to the rule that an injunction is unavailable to prevent actual or threatened
publications of defamatory statements, the mere fact that Same Condition and Kumar’s further
online posting about Codal could lead to additional defamation-like claims by Codal did not
justify the court’s blanket prohibition of Same Condition and Kumar’s online speech in this
case.
¶ 41 But imagine this case’s procedural posture was different, and the circuit court’s injunctive
order occurred after a trial on the merits and a judicial determination that Same Condition and
Kumar’s conduct was defamatory. Could the court then enjoin them from further online speech
about Codal? Imagine a scenario where Individual A says that Individual B never graduated
from Harvard. Individual B sues Individual A for defamation and wins after a judicial
determination that Individual B did graduate from Harvard. A court-ordered prior restraint that
Individual A can no longer say in any medium that Individual B never graduated from Harvard
could potentially pass constitutional muster. Otherwise, an absurd scenario could follow
whereby Individual A could repeat his defamation, forcing Individual B into a never-ending
cycle of litigation over the defamatory statements. In this scenario, some remedy beyond suing
for defamation might be necessary to deter such a defamer. See McCarthy v. Fuller, 810 F.3d
456, 462 (7th Cir. 2015) (observing the problem with a rule that defamation can never be
enjoined “is that it would make an impecunious defamer undeterrable”).
¶ 42 But there is an important difference between a prior restraint as a preventative measure
before trial, as occurred in this case, and a prior restraint as a posttrial remedy to prevent the
repetition of statements judicially adjudicated to be defamatory. See Hill v. Petrotech
Resources Corp., 325 S.W.3d 302, 313 (Ky. 2010); Balboa Island Village Inn, Inc. v. Lemen,

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156 P.3d 339, 349 (Cal. 2007). As a posttrial remedy to prevent the repetition of statements
judicially adjudicated to be defamatory, this necessarily means that the statements have already
been found to be defamatory and thus are not constitutionally protected. See Alvarez, 567 U.S.
at 717; Beauharnais v. Illinois, 343 U.S. 250, 266 (1952). “The special vice of a prior restraint
is that communication will be suppressed, either directly or by inducing excessive caution in
the speaker, before an adequate determination that it is unprotected by the First Amendment.”
Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 390 (1973).
And so, multiple courts have concluded that a court may constitutionally enjoin defamation
but only the repetition of speech already adjudicated to be defamatory. See Bey, 2020-Ohio-
3301, ¶ 44 (holding that “a court may enjoin the future publication of allegedly defamatory
statements based on their content” constitutionally under the first amendment but “there must
first be a judicial determination that the subject statements were in fact defamatory”); Hill, 325
S.W.3d at 313 (holding that “an injunction against false, defamatory speech” is constitutional
under the Kentucky constitution “but only upon a final judicial determination that the speech
is false”); Balboa Island, 156 P.3d at 349 (holding that “an injunction prohibiting the defendant
from repeating the statements determined to be defamatory” is constitutional under the first
amendment and the California Constitution “following a trial at which it is determined that the
defendant defamed the plaintiff”).
¶ 43 But not everyone agrees that an injunction to bar the repetition of speech already
adjudicated to be defamatory is constitutional. See Kinney v. Barnes, 443 S.W.3d 87, 99 (Tex.
2014) (holding that “injunctions against future speech following an adjudication of
defamation” are unconstitutional under the Texas Constitution and observing “a legally cogent
division between mandatory injunctions calling for the removal of speech that has been
adjudicated defamatory and prohibitive injunctions disallowing its repetition” as “[t]he latter
impermissibly chills protected speech; the former does not”); see also Sindi v. El-Moslimany,
896 F.3d 1, 30-35 (1st Cir. 2018) (expressing skepticism that, but ultimately not answering if,
a court could constitutionally enjoin the repetition of statements judicially adjudicated to be
defamatory); Fuller, 810 F.3d at 464-66 (Sykes, J., concurring) (expressing deep skepticism
that a court could constitutionally enjoin the repetition of statements judicially adjudicated to
be defamatory). Indeed, there are many problems with attempting to craft a narrow, permanent
injunction to prohibit the repetition of statements judicially adjudicated to be defamatory. See,
e.g., Sindi, 896 F.3d at 33 (observing the challenges with “[a]n injunction that prevents in
perpetuity the utterance of particular words and phrases after a defamation trial” because “[b]y
its very nature, defamation is an inherently contextual tort”); Oakley, Inc. v. McWilliams, 879
F. Supp. 2d 1087, 1091 (C.D. Cal. 2012) (“Here, for instance, Plaintiffs seek to enjoin
McWilliams from stating that Plaintiffs ‘sent thugs, Blackwater operatives, or military special
forces to intimidate him.’ But this injunction would be worthless if McWilliams could instead
simply claim that Plaintiffs had hired the mafia or a street gang to threaten him.”); Kinney, 443
S.W.3d at 98 (“[g]iven the inherently contextual nature of defamatory speech, even the most
narrowly crafted of injunctions risks enjoining protected speech because the same statement
made at a different time and in a different context may no longer be actionable,” as “[u]ntrue
statements may later become true”).

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¶ 44 The United States Supreme Court has never addressed this precise issue (see Kinney, 443
S.W.3d at 94), and we are likewise unaware of an Illinois case addressing this precise issue. 3
Although there is an open question about the constitutional validity of a posttrial injunction
barring the repetition of statements judicially adjudicated to be defamatory, the present case
only concerns a prior restraint used as a preventative measure before trial, where there has been
no judicial determination that any of Same Condition and Kumar’s past statements are
defamatory. In such cases, the right to free speech trumps allegations that statements are
defamatory. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975) (“[A] free
society prefers to punish the few who abuse rights of speech after they break the law than to
throttle them and all others beforehand.” (Emphasis omitted.)). As conceded by Codal, when
the circuit court entered its injunctive order against Same Condition and Kumar, it had not
addressed the truth or falsity of their online posts. As such, there was no basis for the circuit
court to enter such a blanket order prohibiting Same Condition and Kumar from any further
online postings about Codal based only on allegations of defamation, commercial
disparagement, and the like.
¶ 45 We recognize the constitutionality of posttrial prior restraints are not at issue in this case.
However, we highlighted the difference between them and pretrial prior restraints to
underscore the constitutional infirmity of a court order prohibiting further speech by a party or
parties to litigation based only on allegations of defamation and because Codal has requested
such relief in its counterclaims.
¶ 46 In addition to Codal’s claim that the circuit court’s order barring Same Condition and
Kumar from further posting online about it was necessary to avoid further defamation-like
claims, Codal also observes that the posts have caused its clients and employees to question
their continued association with the company. To this end, Codal asserts that, in the event the
litigation proceeds to a trial on the breach of contract and defamation claims, these individuals
may be asked to testify as fact witnesses. And Codal argues that Same Condition and Kumar’s
posts have the demonstrated effect of intimidating these potential trial witnesses. As previously
discussed, content-based restrictions of speech may be constitutional to prohibit the expression
of speech such as that integral to criminal conduct. Alvarez, 567 U.S. at 717. Codal’s argument
implies that Same Condition and Kumar’s online posts were speech integral to criminal
conduct, i.e., witness intimidation and harassment. See 720 ILCS 5/32-4(b) (West 2018)
(describing the offense of witness harassment).
¶ 47 Even if it could be argued that Same Condition and Kumar’s posts have the consequence
of intimidating potential trial witnesses, there are multiple issues with this argument. First, as
with the posts being potentially defamatory, there has been no judicial determination to this
effect yet. See Flood, 2019 IL App (1st) 172792, ¶ 39 (rejecting that a church critic’s speech
was integral to criminal conduct where, in part, the circuit court made no express findings on
the matter). And second, merely because past posts could have had that consequence, that is
not a justification to suppress all future speech by Same Condition and Kumar about Codal.
“Ordinarily, the State’s constitutionally permissible interests are adequately served by criminal
penalties imposed after freedom to speak has been so grossly abused that its immunity is

3
The United States Supreme Court almost did address this issue when it granted certiorari in Tory
v. Cochran, 544 U.S. 734 (2005), but the death of one of the parties obviated the Court from resolving
the issue.

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breached.” Carroll v. President & Commissioners of Princess Anne, 393 U.S. 175, 180-81
(1968). The fact that Same Condition and Kumar’s postings could intimidate potential trial
witnesses does not justify the court’s blanket restriction of their speech in this case.
¶ 48 Codal lastly posits that the circuit court’s order is proper where the court used its inherent
authority to manage its cases with the intent of protecting the parties’ right to a fair trial. A
party’s right to a fair trial is guaranteed by the due process clause of the fourteenth amendment.
Kemner, 112 Ill. 2d at 244. And occasionally, one party’s right to free speech may conflict
with another party’s right to a fair trial. See id. When these two constitutional guarantees
collide, the right to free speech occasionally must yield to the right of a fair trial. See
Pennekamp v. Florida, 328 U.S. 331, 347 (1946) (“Freedom of discussion should be given the
widest range compatible with the essential requirement of the fair and orderly administration
of justice.”). In order to balance these occasionally competing interests, the circuit court
“can restrain parties and their attorneys from making extrajudicial comments about a
pending civil trial only if the record contains sufficient specific findings by the trial
court establishing that the parties’ and their attorneys’ conduct poses a clear and
present danger or a serious and imminent threat to the fairness and integrity of the
trial.” (Emphases in original.) Kemner, 112 Ill. 2d at 244.
But “any restraining order which denies parties and counsel their first amendment rights in the
interest of a fair trial must be neither vague nor overbroad.” Id.
¶ 49 Here, insofar as the record on appeal shows, the circuit court never made any specific
findings that Same Condition and Kumar’s conduct posed a clear and present danger or serious
and imminent threat to the fairness and integrity of the parties’ trial. See id. But just as
important, the court’s blanket order prohibiting any online posting by Same Condition and
Kumar about Codal is clearly overbroad. See id. It is conceivable that the court could fashion
a narrow and limited injunction with respect to Same Condition and Kumar’s speech about the
current litigation that could pass constitutional muster. See id. But the court’s order as stated
clearly does not, given that it prohibits speech not yet adjudicated to be not constitutionally
protected and prohibits speech that eminently would be constitutionally protected, such as
(though doubtful based on the parties’ current relationship) something flattering and
complimentary about Codal.
¶ 50 In Keefe, 402 U.S. at 419, the Supreme Court found that “[n]o prior decisions support the
claim that the interest of an individual in being free from public criticism of his business
practices in pamphlets or leaflets warrants use of the injunctive power of a court.” Technology
has enabled our society to move on from pamphlets and leaflets to tweets, Facebook, Instagram
and LinkedIn posts, and Google and Yelp reviews. But the basic principles of the first
amendment remain the same that a content-based prior restraint must use “the least restrictive
means consistent with the attainment of its goal” (In re D.W., 214 Ill. 2d at 310), and the
injunctive power of the judiciary cannot be used to silence critics of the business practices of
another (see Keefe, 402 U.S. at 419). In light of the above, the blanket prior restraint imposed
by the circuit court on Same Condition and Kumar’s speech is clearly not the least restrictive
means possible, and therefore, the court’s order violates Same Condition and Kumar’s right to
free speech and is unconstitutional. Consequently, the court abused its discretion in imposing
the prior restraint on Same Condition and Kumar’s speech, and paragraph 6 of the court’s order
from October 2, 2020, must be vacated.

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¶ 51 Although we have concluded that the circuit court’s prohibition on Same Condition and
Kumar is unconstitutional, we do have sympathy for the mental distress and distraction that
Same Condition and Kumar’s social media campaign has apparently caused Codal, Baxi, and
its employees. But they have civil remedies available to them, which they are currently
pursuing, and there are criminal remedies for certain, more egregious conduct. See, e.g., 720
ILCS 5/26.5-3 (West 2018) (describing the offense of harassment through electronic
communications). As we observed in Flood, 2019 IL App (1st) 172792, ¶ 44, courts “cannot
silence [a critic] when he is voicing protected criticism, no matter how much time, energy, or
distress it costs” another person or other people. Same Condition and Kumar have undertaken
the role of the pamphleteer in Keefe, and under the first amendment, they are entitled to
comment upon the business practices of Codal and their experience with Codal—positive,
negative, or indifferent.

¶ 52 III. CONCLUSION
¶ 53 For the foregoing reasons, we vacate paragraph 6 of the order of the circuit court of Cook
County from October 2, 2020.

¶ 54 Order vacated.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9971337. Public record. Not legal advice.