Appeal from the Circuit Court of Tazewell County; the Hon.
William J. Reardon, Judge, presiding.
JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment finding defendant Thomas guilty of violating the Morton village ordinance proscribing the offense of obscenity.
The Morton village ordinance is based on section 11-20 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 11-20), and the defense in this cause is predicated upon the contention that the ordinance is unconstitutional, as violating the first amendment rights of defendant Thomas. The ordinance involved states:
"`Obscene' defined: A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. A thing is obscene even though the obscenity is latent, as in the case of undeveloped photographs."
The complaint in the action charged that defendant violated the ordinance in showing certain motion picture films which had a predominant appeal to the prurient interest, and that the films went substantially beyond customary limits of candor, description and representation of sexual matters, and described and depicted sexual matters in a patently offensive way and had no artistic, literary, scientific or educational value or significance.
Prior to trial, the defendant moved the court to dismiss the complaint on the grounds that the ordinance upon which it was based and the complaint itself were unconstitutional as not being within the acceptable definition of obscenity as set forth by Illinois law on the subject. The motion was properly denied. Following a trial by jury, defendant Charles Thomas was found guilty and sentenced to serve 60 days in the Tazewell County jail and to pay a fine of $500. The defendant was released on his personal recognizance, pending disposition of this appeal.
At the trial, the village submitted a jury instruction which complied with the Illinois standard of obscenity and also included therein that the obscene material was required to be utterly without redeeming social value.
The complaint for violation of the ordinance asserted that the film referred to had a predominant appeal to the prurient interest, goes substantially beyond customary limits of candor in the description and representation of sexual matters, describes and depicts sexual matters in a patently offensive way and has no apparent artistic, literary, scientific or educational value or significance and that the defendant knew the nature and content thereof or recklessly failed to exercise reasonable inspection which would have disclosed the nature or the contents thereof.
The directive of the United States Supreme Court in Miller v. California (1973), 413 U.S. 15, 37 L.Ed.2d 419, 93 S.Ct. 2607, taken in consideration with the Illinois decision in People v. Ridens (1974), 59 Ill.2d 362, 321 N.E.2d 264, defines obscenity in Illinois.
The village of Morton asserts that the ordinance was and is constitutional, since it is based upon and copied from section 11-20 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 11-20), and, also, that it has been ruled upon by both the United States Supreme Court and the Supreme Court of the State of Illinois. The village also points out that in all instances, the Illinois obscenity statute has been upheld and, accordingly, the village of Morton ordinance should be upheld.
It is noted that the United States Supreme Court in Ward v. Illinois (1977), 431 U.S. 767, 52 L.Ed.2d 738, 97 S.Ct. 2085, considered the constitutionality of the Illinois statute and upheld it in a decision delivered by Justice White. The court upheld the statute and rejected the defendant's claim of vagueness or overbroadness. The Ward basic argument raised by the defendant was similar to that raised by defendant in this case, in his motion that the applicable law does not define with particularity the type of conduct prohibited. The United States Supreme Court rejected this argument and held that the standards set forth in Miller v. California (1973), 413 U.S. 15, 37 L.Ed.2d 419, 93 S.Ct. 2607, had been met. In Ward, Justice White noted that Miller set forth the basic constitutional parameters in determining obscenity where he set forth the guidelines to be used:
"`* * * (a) whether "the average person, applying contemporary standards" would find that the work, taken as a whole, appeals to the prurient interest * * *; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; * * * (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.'" Ward v. Illinois (1977), 431 U.S. 767, 768-69, 52 L.Ed.2d 738, 743, 97 S.Ct. 2085, 2087.
• 1 It is noted, in the cases, that the determination of whether or not part of the Miller test on specificity has been met requires an examination of not only the law itself but the construction of the same by the State court. Justice White analyzed the key Illinois court decisions construing the statute and said, "As we see it, Illinois has not failed to comply with Miller, and its statute is not overbroad." (Ward v. Illinois (1977), 431 U.S. 767, 774, 52 L.Ed.2d 738, 746, 97 S.Ct. 2085, 2090.) Justice White noted therein that the Illinois Supreme Court in People v. Ridens (1974), 59 Ill.2d 362, 321 N.E.2d 264, had construed the Illinois statute to incorporate parts (a) and (b) of the Miller standards. With regard to part (c) of the Miller standard, the Illinois court "preferred" to retain the "utterly without redeeming social value" standard of Memoirs v. Massachusetts (1966), 383 U.S. 413, 16 L.Ed.2d 1, 86 S.Ct. 975, rather than the "more relaxed criterion contained in part (c) of the Miller guidelines." Ward v. Illinois (1977), 431 U.S. 767, 774, 52 L.Ed.2d 738, 746, 97 S.Ct. 2085, 2090.
• 2 It is noted that Justice White observed that the Illinois Supreme Court, in Ridens, intended to adopt part ...