People v. Alexander

• Decision Date: 22 May 2003
• Docket Number: No. 93952.,93952.
• Citation: 274 Ill.Dec. 414,204 Ill.2d 472,791 N.E.2d 506
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Kenneth ALEXANDER, Appellee.
• Court: Illinois Supreme Court

791 N.E.2d 506

204 Ill.2d 472

274 Ill.Dec. 414

The PEOPLE of the State of Illinois, Appellant, v. Kenneth ALEXANDER, Appellee.

No. 93952.

Supreme Court of Illinois.

May 22, 2003.

James E. Ryan, Lisa Madigan, Attorneys General, Springfield, Michael J. Waller, State's Attorney, Waukegan (Joel D. Bertocchi, Solicitor General, William L. Browers, David P. Haslett, Mary Beth Burns and Lisa Anne Hoffman, Assistant Attorneys General, Chicago, of counsel), for the People.

Morrison & Morrison, P.C., Waukegan (Donald J. Morrison, of counsel), for appellee.

Justice FITZGERALD delivered the opinion of the court:

The sole issue in this case is whether our state's prohibition of so-called virtual child pornography suffers from the same constitutional infirmity that doomed the federal prohibition of virtual child pornography in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). We hold that it does, but that it is severable from the remainder of the child pornography statute. Accordingly, we reverse and remand for further proceedings.

BACKGROUND

On February 27, 2002, the defendant was indicted in the circuit court of Lake County on 45 counts of child pornography under section 11-20.1(a)(1)(ii) and 9 counts of child pornography under section 11-20.1(a)(6) of the Criminal Code of 1961. See 720 ILCS 5/11-20.1(a)(1)(ii), (a)(6) (West Supp.2001). The indictment charged that the defendant possessed and intended to distribute computer depictions of children that he knew or reasonably should have known to be under 18 years of age engaged in various sexual activities.

The defendant entered a guilty plea to the first five counts in exchange for a seven-year sentence, but later withdrew his plea after the United States Supreme Court decided Ashcroft. He then filed a motion to dismiss the indictment, asserting that sections 11-20.1(a)(1) and 11-20.1(a)(6) facially violated the federal and state constitutions. The defendant argued that the "depict by computer" language in section 11-20.1(a)(1) and the "depiction by computer" language in section 11-20.1(a)(6) prohibit virtual child pornography protected by Ashcroft. According to the defendant, "These Illinois statutes extend Illinois' prohibition against child pornography to sexually explicit images that appear to depict minors but were produced by computer without using any real children."

On May 15, 2002, the trial court granted the defendant's motion, finding sections 11-20.1(a)(1) and 11-20.1(a)(6) unconstitutional. The court stated:

"In as far as the Illinois statute is concerned, the statute was, of course, created before the pronouncements of the Supreme Court in the Ashcroft case. I find the Illinois statute to be * * * as overbroad as the federal statute because it allows for someone possessing a computer-generated image to be convicted as if he were to have possessed a real child's picture, and that's something that the Constitution does not allow. That's something that the U.S. Supreme Court does not allow.

I read the Illinois statute to be similar to the federal statute, where a computer-generated picture might show someone that appears as a minor or conveys the impression that the material is a minor. * * * [B]ecause the Illinois statute allows someone to be prosecuted and convicted because he possesses a depiction by computer of any child and does not make the distinction of real child or live child or an identifiable child; thus, the Illinois statute constitutionally fails gravely.

* * *

Therefore, insofar as this indictment pertains to those two sections of the statute that involve virtual children, that involve computer-generated images or children depicted by computer, this motion to dismiss will be granted." (Emphases added.)

The State appealed directly to this court. See 134 Ill.2d R. 603.

ANALYSIS

In an appeal from an order declaring a statute unconstitutional, our review is de novo. In re Adoption of K.L.P., 198 Ill.2d 448, 453, 261 Ill.Dec. 492, 763 N.E.2d 741 (2002).

1. The First Amendment, Child Pornography, and Ashcroft

The first amendment (see U.S. Const., amend. I), which applies to state actions through the fourteenth amendment (see U.S. Const., amend. XIV; De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 260, 81 L.Ed. 278, 282 (1937)),¹ prohibits content-based restrictions on speech which do not survive so-called strict scrutiny. Strict scrutiny requires a court to find that the restriction is justified by a compelling government interest and is narrowly tailored to achieve that interest. People v. Sanders, 182 Ill.2d 524, 530, 231 Ill.Dec. 573, 696 N.E.2d 1144 (1998); Tully v. Edgar, 171 Ill.2d 297, 304-05, 215 Ill.Dec. 646, 664 N.E.2d 43 (1996).

The United States Supreme Court has held that content-based restrictions on certain categories of speech satisfy strict scrutiny. The first amendment's "vast and privileged sphere" (Ashcroft, 535 U.S. at 244,122 S.Ct. at 1399,152 L.Ed.2d at 417) does not extend to incitement (see Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969)), fighting words (see Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942)), defamation (see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985)), or obscenity (see Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973)).

In New York v. Ferber, 458 U.S. 747, 763, 102 S.Ct. 3348, 3358, 73 L.Ed.2d 1113, 1126 (1982), the Court added child pornography as another category of speech outside the protection of the first amendment. Content-based restrictions on child pornography satisfy strict scrutiny because child pornography is "intrinsically related" to child sexual abuse, and states have a compelling interest in safeguarding the physical and psychological health of children. Ferber, 458 U.S. at 756-59, 102 S.Ct. at 3354-56, 73 L.Ed.2d at 1122-24. Additionally, the value of child pornography is "exceedingly modest, if not de minimis." Ferber, 458 U.S. at 762, 102 S.Ct. at 3357, 73 L.Ed.2d at 1126. The Court observed that there are parameters on the category of child pornography, and consequently on the states' ability to regulate it: "As with all legislation in this sensitive area, the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed. Here the nature of the harm to be combated requires that the state offense be limited to works that visually depict sexual conduct by children below a specified age." (Emphasis omitted.) Ferber, 458 U.S. at 764, 102 S.Ct. at 3358, 73 L.Ed.2d at 1127.

Today, however, as technological advances test the truth of the old saw that the camera does not lie (see 4 R. Rotunda & J. Nowak, Constitutional Law § 20.61(b), at 79 (3d ed. Supp.2003)), what falls within the category of child pornography has become increasingly unclear. As Congress has recognized, "`new photographic and computer imagining [sic] technologies make it possible to produce by electronic, mechanical, or other means, visual depictions of what appear to be children engaging in sexually explicit conduct that are virtually indistinguishable to the unsuspecting viewer from unretouched photographic images of actual children engaging in sexually explicit conduct.'" 18 U.S.C. § 2251, Congressional Findings, note (5) (2000), quoting Pub.L. 104-208, 110 Stat. 3009. In response, Congress targeted the growing traffic in this virtual child pornography with the Child Pornography Prevention Act of 1996 (CPPA).

In Ashcroft, an adult entertainment industry trade association challenged the facial validity under the first amendment of two definitional sections of the CPPA. Section 2256(8)(B) defined child pornography as "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct where * * * such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct." (Emphasis added.) 18 U.S.C. § 2256(8)(B) (2000). Section 2256(8)(D) defined child pornography as "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct where * * * such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct." (Emphasis added.) 18 U.S.C. § 2256(8)(D) (2000). In short, section 2256(8)(B) addressed virtual child pornography, and section 2256(8)(D) addressed materials pandered or marketed as child pornography. The trade association asserted that these sections were overbroad and had a chilling effect, preventing its members from producing constitutionally protected works. The federal district court granted summary judgment to the government; the court of appeals reversed (Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir.1999)).

The Court affirmed, holding that these sections were overbroad and violative of the first amendment. Ashcroft, 535 U.S. at 256, 258, 122 S.Ct. at 1405, 1406, 152 L.Ed.2d at 425, 426. The Court noted that, unlike actual child pornography, virtual child pornography "do[es] not involve, let alone harm, any children in the production process" (Ashcroft, 535 U.S. at 241, 122 S.Ct. at 1397, 152 L.Ed.2d at 415); virtual child pornography has no link to the crime of child sexual abuse. The Court elaborated:

"In contrast to the speech in Ferber, speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not `intrinsically related' to the sexual abuse of children, as

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