Appeal from the Circuit Court of McLean County, the Hon.
William DeCardy, Judge, presiding.
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 30, 1984.
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; 13 L.Ed.2d 125, 129, 85 S.Ct. 209, 212; Beauharnais v. Illinois (1952), 343 U.S. 250, 254, 96 L.Ed. 919, 926, 72 S.Ct. 725, 729; People v. Spielman (1925), 318 Ill. ...