The opinion of the court was delivered by: Roszkowski, District Judge.
Before the court are the petitioner's and respondent's motions
for summary judgment. The court's subject matter jurisdiction is
predicated upon 28 U.S.C. § 2254 (1982). For the reasons set
forth herein, petitioner's motion for summary judgment is granted
and respondent's motion is denied.
Petitioner's conviction was originally overturned by the
Illinois Appellate Court on the grounds that § 12-6(a)(3) was
overbroad and conflicted with the First Amendment. People v.
Holder, 103 Ill.App.3d 353, 59 Ill.Dec. 142, 431 N.E.2d 831
(1982). The Illinois Supreme Court, two justices dissenting,
reversed the appellate court and remanded the case for
consideration of the petitioner's remaining arguments. People v.
Holder, 96 Ill.2d 444, 71 Ill.Dec. 677, 451 N.E.2d 831 (1983). On
remand, the appellate court affirmed the petitioner's conviction.
People v. Holder, 119 Ill.App.3d 366, 74 Ill.Dec. 907,
456 N.E.2d 628 (1983). With one justice dissenting, the Illinois Supreme
Court refused to review the appellate court's second decision.
People v. Holder, 96 Ill.2d 569, 76 Ill.Dec. 505, 458 N.E.2d 1305
(1984). Subsequently, the United States Supreme Court refused to
grant a writ of certiorari. Holder v. Illinois, ___ U.S. ___, 104
S.Ct. 3511, 82 L.Ed.2d 820 (1984).
In the present action, the petitioner raises two principal
arguments. First, the petitioner contends ¶ 12-6(a)(3) is
overbroad and vague in conflict with the First Amendment. Second,
the petitioner argues his particular conviction conflicts with
national labor policy and the Supremacy Clause of the United
A. The Illinois Intimidation Statute
Subparagraph 12-6(a)(3) of the Illinois Criminal Code provides:
(a) A person commits intimidation when, with intent
to cause another to perform or to omit the
performance of any act, he communicates to another
a threat to perform without lawful authority any of
the following acts:
(3) commit any criminal offense[.] * *
Sub-paragraph 2-12 of the Illinois Criminal Code defines
"offense" as "a violation of any penal statute of this State."
Ill.Rev.Stat. ch. 38, ¶ 2-12 (1983). The Illinois Supreme Court
has construed ¶ 12-6(a)(3) as requiring a specific intent to
cause another to perform or omit the performance of certain acts.
People v. Smith, 78 Ill.2d 298, 35 Ill.Dec. 761, 766,
399 N.E.2d 1289, 1294 (1980). In addition, the Illinois Supreme Court has
judicially imposed the requirement that a statement violating ¶
12-6(a)(3) have "a reasonable tendency to coerce." People v.
Gallo, 54 Ill.2d 343, 297 N.E.2d 569, 574 (1973).
B. First Amendment Challenge: Overbreadth
Petitioner initially contends the Illinois intimidation statute
is unconstitutionally overbroad in violation of the First
Amendment. The "overbreadth doctrine" allows a person against
whom a statute may be applied constitutionally to challenge the
facial validity of the statute on the grounds that it may
conceivably be applied unconstitutionally to others in situations
not presently before the court. New York v. Ferber, 458 U.S. 747,
767-69, 102 S.Ct. 3348, 3359-61, 73 L.Ed.2d 1113 (1982). This
"overbreadth" exception to ordinary standing requirements is
recognized in the First Amendment area because "persons whose
expression is constitutionally protected may well refrain from
exercising their rights for fear of criminal sanctions by a
statute susceptible of application to protected expression." Id.
at 768, 102 S.Ct. at 3361 (quoting Schaumberg v. Citizens for a
Better Environment, 444 U.S. 620, 634, 100 S.Ct. 826, 834, 63
L.Ed.2d 73 (1980)
and Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 1105, 31
L.Ed.2d 408 (1972)). Nonetheless, recent Supreme Court decisions