People v. Heinrich

• Citation: 470 N.E.2d 966,83 Ill.Dec. 546,104 Ill.2d 137
• Decision Date: 20 September 1984
• Docket Number: No. 59239,59239
• Parties: , 83 Ill.Dec. 546, 68 A.L.R.4th 1003 The PEOPLE of the State of Illinois, Appellant, v. Paul HEINRICH, Appellee.
• Court: Supreme Court of Illinois

Page 966

470 N.E.2d 966

104 Ill.2d 137, 83 Ill.Dec. 546, 68

A.L.R.4th 1003

The PEOPLE of the State of Illinois, Appellant, v. Paul HEINRICH, Appellee.

No. 59239.

Supreme Court of Illinois.

Sept. 20, 1984.

Rehearing Denied Nov. 30, 1984.

Neil F. Hartigan, Atty. Gen., Springfield, and Ronald C. Dozier, State's Atty., Bloomington (Robert J. Biderman and Linda Welge, of the State's Attorneys Appellate Service Com'n, Springfield, of counsel, and Kenneth R. Baumgarten, law student), for the People.

John Tielsch, Bloomington, and William Marshall and Jeffrey Shaman, Chicago (Donald Burak, Laura Kerton, and Frank Lang, law students), for appellee.

THOMAS J. MORAN, Justice:

Defendant, Paul Heinrich, was charged by information in McLean County with two counts of criminal defamation under the Criminal Code of 1961 (Ill.Rev.Stat.1981, ch. 38, par. 27-1). He moved to dismiss the information, and after a hearing, the circuit court declared the criminal defamation statute unconstitutional and dismissed the charges. The court held the statute contravened the first and fourteenth amendments to the United States Constitution. The State appeals directly to this court pursuant to our Rule 603 (87 Ill.2d R. 603).

This appeal posits three questions to be resolved: (1) Is section 27-1 of the Criminal Code of 1961 overly broad? (2) Is section 27-2 unconstitutional in that it does not allow truth to be an absolute defense in a criminal defamation prosecution? and (3) Can the alleged infirmity be cured by severing section 27-2?

In count I of the information, the State alleged that the defendant, while acting with the intent to defame the complainant, communicated to members of the general public matters which tended to provoke a breach of the peace. The defendant distributed this material by mailing and by posting, in public view, a leaflet. More specifically, the leaflet stated that the complainant was an unfit mother due to her promiscuity, deviate sexual behavior, illicit drug habit, and four pregnancies out of wedlock. The leaflet further stated that the woman's first pregnancy, which resulted in the birth of her daughter, was followed by two clinical abortions and a miscarriage. A picture of the complainant appeared in the upper right-hand corner of the leaflet, with her name in large type underneath it. The leaflet also named the complainant's parents and gave their address. The names of the complainant, both her parents and her daughter were all emphasized in large type wherever they appeared in the leaflet. This leaflet urged concerned citizens to contact their local church groups or the Illinois Department of Children and Family Services in order to help protect the complainant's "bastard child" from her mother's "deviate moral behavior."

In count II of the information the State alleged that defendant, with the intent to defame, communicated to the complainant's mother, by letter, matter which tended to provoke a breach of the peace. The letter described the complainant as a whore, a ruined woman, and a girl who had been excommunicated from the Catholic church for murdering human life. The letter also venomously attacked the complainant's mother, calling her the "mother of a whore" the "grandmother of a bastard," and "white trash." A copy of the leaflet, described in count I, was enclosed with the letter. The defendant signed the letter and in closing stated:

"I hope to God you take me to court for distributing the enclosed newsletter * * *.

Better yet, come after me and you can rot in jail for the rest of your miserable life."

The State contends that section 27-1 of the criminal defamation statute, under which this defendant was charged, is constitutional as it is designed to reach only those words tending to cause a breach of the peace. The State further argues that section 27-2 of the statute (Ill.Rev.Stat.1981, ch. 38, par. 27-2), which provides for the defense of truth when the alleged defamation is published with good motives and for justifiable ends, does not conflict with a defendant's first amendment rights in the discrete area of private defamation. Alternatively, if this court finds section 27-2 objectionable, the State suggests that we sever only that portion and retain section 27-1.

The defendant maintains that the criminal defamation statute is overly broad. He posits that a tendency to breach the peace is a justification for regulating speech only when the resultant breach of the peace is imminent. Since there is no requirement of immediacy in section 27-1, the defendant requests our affirmance of the trial court's dismissal. In the event that we do not find section 27-1 invalid, the defendant submits that section 27-2 renders the entire statute unconstitutional because it does not allow truth to be an absolute defense in a criminal defamation prosecution. According to the defendant, section 27-2 is not severable.

The trial court did not make an explicit finding that the statute was too broad, as defense counsel had urged. Rather, it ruled the statute unconstitutional on the basis of the qualified-truth defense contained in section 27-2. The court further found that the offending portion of the statute could not be severed, thereby saving section 27-1. The court reasoned that to do so would be tantamount to redrafting the criminal defamation statute in accordance with first amendment requirements. Although the trial court ultimately rejected severance as a viable alternative to striking the entire statute, the court's reasoning implies that section 27-1, itself, was not constitutionally overly broad. We agree.

The historical justification for criminal libel has been its tendency to provoke a breach of the peace. (Garrison v. Louisiana (1964), 379 U.S. 64, 67-68, 85 S.Ct. 209, 212, 13 L.Ed.2d 125, 129; Beauharnais v. Illinois (1952), 343 U.S. 250, 254, 72 S.Ct. 725, 729, 96 L.Ed. 919, 926; People v. Spielman (1925), 318 Ill. 482, 489, 149 N.E. 466.) The legislation in question incorporates this rationale as it provides:

"Sec. 27-1. Elements of the Offense.

(a) A person commits criminal defamation when, with intent to defame another, living or dead, he communicates by any means to any person matter which tends to provoke a breach of the peace." (Emphasis added.) Ill.Rev.Stat.1981, ch. 38, par. 27-1.

From the language of the statute itself, as well as the committee comments which follow and explain the statute, it is clear that the legislature intended section 27-1 to apply only to those words having a direct tendency to cause acts of violence.

The committee comments to section 27-1 state:

"The section specifically requires that the defamatory matter tend to provoke a breach of the peace. The utterance need not actually provoke violence or criminal acts, but it is sufficient if it tends to do so. * * * The inclusion of this element removes from the criminal area any defamatory conduct which does not tend to incite crime even though that conduct may seriously injure reputation." (Ill.Ann.Stat., ch. 38, par. 27-1, Committee Comments, at 173 (Smith-Hurd 1977).)

Further, the comments specifically characterize the type of communication that is proscribed by section 27-1 as "fighting words" and refers the reader to Beauharnais v. Illinois (1952), 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919.

In Beauharnais, the defendant was convicted under section 224a of the Criminal Code of 1874 (Ill.Rev.Stat.1949, ch. 38, par. 471) (repealed by act approved July 28, 1961). That statute, which immediately preceded the one currently under review, criminalized the exhibition in any public place of matter which portrayed, "depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which * * * expose[d] the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which [was] productive of [a] breach of the peace or riots." (Ill.Rev.Stat.1949, ch. 38, par. 471.) This court described the former statute as a form of criminal libel law and found that "[a] mere reading of the libelous publication in question * * * refers to Negroes as a class possessing various criminal tendencies, unchastity, and degrading sexual inclinations, all of which are 'fighting words' liable to cause violence and disorder between the races." People v. Beauharnais (1951), 408 Ill. 512, 517, 97 N.E.2d 343.

The United States Supreme Court affirmed the judgment of this court in Beauharnais v. Illinois, stating:

" 'There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words--those which by their very utterance inflict injury or tend to incite to an immediate breach of the peace. * * * ' " (Emphasis added.) 343 U.S. 250, 255-56, 72 S.Ct. 725, 730-31, 96 L.Ed. 919, 926-27.

Although the court in Beauharnais stated that libelous words were outside the protection of the first amendment, subsequent Supreme Court decisions evidence that the guarantees of the first amendment do place some limitation on a State's power to proscribe defamation. (See New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (civil); Garrison v. Louisiana (1964), 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (criminal); Gertz v. Welch (1974), 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (civil).) The extent of these limitations will be discussed below. At this point, it suffices to note that the reference to Beauharnais in the committee comments to section 27-1 concerns the use "fighting words" not "libelous" words. Although Beauharnais has been criticized in regard to statements therein concerning libel (see Collin v. Smith (7th Cir.1978), 578 F.2d 1197, 1205; United States v. Handler (Md.1974), 383 F.Supp. 1267, 1277; Tollett v. United States (8th Cir.1973...