Illinois Official Reports

Appellate Court

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

Appellate Court 

Caption

SAME CONDITION, LLC, an Illinois Limited Liability Company, 

Plaintiff and Counterdefendant-Appellant, v. CODAL, INC., an 

Illinois Corporation, Defendant and Counterplaintiff-Appellee 

(Munish Kumar, a/k/a Munish Kumar Raizada, CounterdefendantAppellant).

District & No. First District, Third Division 

No. 1-20-1187

Filed June 21, 2021

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 19-L-5407; the 

Hon. Diane M. Shelley, Judge, presiding.

Judgment Order vacated.

Counsel on

Appeal

Munish Kumar, of Chicago, appellant pro se.

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.
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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 Chicagobased 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. 

2

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

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 contentbased 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, 
- 13 -

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-Ohio3301, ¶ 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.
- 15 -

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.
- 16 -

¶ 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.