SUPREME COURT OF ILLINOIS
522 N.E.2d 1200, 122 Ill. 2d 313, 119 Ill. Dec. 341 1988.IL.401
No. 64173. -- Appeal from the Circuit Court of Du Page County, the Hon. Edward W. Kowal, Judge, presiding. No. 64466. -- Appeal from the Circuit Court of Cook County, the Hon. Themis N. Karnezis, Judge, presiding.
JUSTICE WARD delivered the opinion of the court. JUSTICE CLARK, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD
On December 12, 1985, the defendants under docket No. 64173, John and Charlene Geever, were charged in an indictment with, inter alia, 12 counts of possession of child pornography in violation of section 11-20.1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 11-20.1(a)(2)). The defendants moved to dismiss the possession counts contending that section 11-20.1(a)(2) was unconstitutional as violating the first and fourteenth amendments of the Constitution of the United States (U.S. Const., amends. I, XIV), and article I, sections 4 and 6, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. 1, §§ 4, 6). The circuit court of Du Page County allowed the motion, holding that, under Stanley v. Georgia (1969), 394 U.S. 557, 22 L. Ed. 2d 542, 89 S. Ct. 1243, section 11-20.1(a)(2) was unconstitutional as applied to the defendants, on the ground that under the first and fourteenth amendments, the possession of child pornography in their home was permitted. On January 8, 1986, the defendant under docket No. 64466, Peter Sotos, was indicted in three counts for possession of child pornography in his home. Upon his motion to dismiss, the circuit court of Cook County also held section 11-20.1(a)(2) unconstitutional on the same ground. The State, under our Rule 603 (107 Ill. 2d R. 603), directly appealed the dismissals to this court, and we have consolidated the appeals.
The question is whether the State, consistent with the constitutional guarantees of the first and fourteenth amendments (U.S. Const., amends. I, XIV), can proscribe the knowing possession of child pornography in
Section 11 -- 20.1(a)(2) in part provides that the offense of child pornography is committed when a person:
"with the knowledge of the nature or content thereof, reproduces, disseminates, offers to disseminate, exhibits or possesses any film, videotape, photograph or other similar visual reproduction of any child whom the person knows or reasonably should know to be under the age of 18 [hereinafter referred to as child or children] engaged in any activity described in subparagraphs (i) through (vii) of paragraph (1) of this subsection [offense of child pornography]." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 11-20.1(a)(2).)
The prohibited portrayals are those where the child is:
"(i) actually or by simulation engaged in any act of sexual intercourse with any person or animal; or
(ii) actually or by simulation engaged in any act of sexual contact involving the sex organs of the child and the mouth, anus, or sex organs of another person or animal; or which involves the mouth, anus or sex organs of the child and the sex organs of another person or animal; or
(iii) actually or by simulation engaged in any act of masturbation; or
(iv) actually or by simulation portrayed as being the object of, or otherwise engaged in, any act of lewd fondling, touching, or caressing involving another person or animal; or
(v) actually or by simulation engaged in any act of excretion or urination within a sexual context; or
(vi) actually or by simulation portrayed or depicted as bound, fettered, or subject to sadistic, masochistic, or sadomasochistic abuse in any sexual context; or
(vii) depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the genitals of the child or other person." Ill. Rev. Stat. 1985, ch. 38, pars. 11-20.1(a)(1)(i) through (a)(1)(vii).
The defendants contend, and the respective circuit courts agreed, that their right to freedom of thought and expression in the privacy of their own home, as recognized in Stanley v. Georgia (1969), 394 U.S. 557, 22 L. Ed. 2d 542, 89 S. Ct. 1243, precludes the State from making criminal the possession of child pornography in the home.
In Stanley v. Georgia (1969), 394 U.S. 557, 22 L. Ed. 2d 542, 89 S. Ct. 1243, pursuant to a search warrant, Federal and State agents of Georgia searched the defendant's home for evidence of bookmaking activities; in the process, the agents discovered three reels of film. Viewing the films, the agents determined that they were obscene and arrested the defendant for possession of "obscene matter." The defendant was indicted for "'knowingly hav[ing] possession of . . . obscene matter' in violation of Georgia law." On appeal, the Supreme Court held that the Georgia statute was unconstitutional as violative of the first and fourteenth amendments.
In striking down the statute, the Court observed that in its prior decision in Roth v. United States (1957), 354 U.S. 476, 485, 1 L. Ed. 2d 1498, 1507, 77 S. Ct. 1304, 1309, it held that "'obscenity is not within the area of constitutionally protected speech or press.'" (Stanley v. Georgia (1969), 394 U.S. 557, 560, 22 L. Ed. 2d 542, 546, 89 S. Ct. 1243, 1245.) The Court, however, stated that the fact that material is obscene and without protection of the first amendment does not preclude the Court from inquiring into the government's interest in regulating obscenity, as that interest cannot, in every circumstance, be insulated from all constitutional protections. Stanley v. Georgia (1969), 394 U.S. 557, 563, 22 L. Ed. 2d 542, 548, 89 S. Ct. 1243, 1246-47.
In examining the constitutional considerations involved in a State statute prohibiting the simple possession of obscene materials in the home, the Court stated:
"It is now well established that the Constitution protects the right to receive information and ideas. 'This freedom [of speech and press] . . . necessarily protects the right to receive . . . .' [Citations.] This right to receive information and ideas, regardless of their social worth [citation], is fundamental to our free society. Moreover, in the context of this case -- a prosecution for mere possession of printed or filmed matter in the privacy of a person's own home -- that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy. . . .
. . . Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds." (Stanley v. Georgia (1969), 394 U.S. 557, 564-65, 22 L. Ed. 2d 542, 549-50, 89 S. Ct. 1243, 1247-48.)
Recognizing the limitation upon a government's right "to control men's minds," the Court rejected Georgia's contention that it could prohibit the possession of obscenity in the home. Georgia argued that it had the right "to protect the individual's mind from the effects of obscenity." The Court rejected this as "wholly inconsistent with the philosophy of the First Amendment," in that it attempted to control the moral content of a person's thoughts. (Stanley v. Georgia (1969), 394 U.S. 557, 565-66, 22 L. Ed. 2d 542, 550, 89 S. Ct. 1243, 1248.) The Court also rejected the claim that such obscene materials "may lead to deviant sexual behavior or crimes of sexual violence." The Court said that not only was there scant empirical data to support that Conclusion, but also that if the State's concern rested solely upon the basis that the private consumption of such printed material caused antisocial behavior, the ordinary deterrents of education and criminal punishment were available for violations of the law. 394 U.S. at 566, 22 L. Ed. 2d at 550, 89 S. Ct. at 1249.
Rejecting Georgia's arguments, the Supreme Court held the statute unconstitutional on the ground that "the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. . . . [Although] the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home." Stanley v. Georgia (1969), 394 U.S. 557, 568, 22 L. Ed. 2d 542, 551, 89 S. Ct. 1243, 1249-50.
Thirteen years later in New York v. Ferber (1982), 458 U.S. 747, 73 L. Ed. 2d 1113, 102 S. Ct. 3348, the Supreme Court was presented with the issue of whether the State of New York, consistent with the first amendment, could prohibit the dissemination of material depicting children under the age of 16 engaged in sexual conduct, regardless of whether such depiction was legally obscene.
The defendant in Ferber, the proprietor of a bookstore specializing in sexually oriented materials, sold two films to an undercover police officer; the films primarily depicted two young boys masturbating. The defendant was indicted on two counts of promoting an obscene sexual performance and two counts of violating section 263.15 of the New York penal law, which provided:
"A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than sixteen years of age." (N.Y. Penal Law § 263.15 (McKinney 1980).)
The defendant was found guilty on the two counts under section 263.15, without proof that the films were obscene. The New York Court of Appeals, however, reversed on the ground that section 263.15 violated the first amendment. Although the court recognized the "State's legitimate interest in protecting the welfare of minors" and noted this "interest may transcend First Amendment concerns," the court held the New York statute unconstitutional.
The Supreme Court in Ferber began its opinion with the observation that "[i]n recent years, the exploitive use of children in the production of pornography has become a serious national problem. . . . 'hild pornography and child prostitution have become highly organized, multimillion dollar industries that operate on a nationwide scale.' S. Rep. No. 95 -- 438, p.5 (1977)." (New York v. Ferber (1982), 458 U.S. 747, 749 & n.1, 73 L. Ed. 2d 1113, 1117 & n.1, 102 S. Ct. 3348, 3350 & n.1.) The Court then considered whether a State has greater authority "in ...