The opinion of the court was delivered by: Justice Fitzgerald
Docket No. 93952-Agenda 6-March 2003.
The sole issue in this case is whether our state's prohibition of so-called virtual child pornography suffers from the same constitutional infirmity that doomed the federal prohibition of virtual child pornography in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 152 L. Ed. 2d 403, 122 S. Ct. 1389 (2002). We hold that it does, but that it is severable from the remainder of the child pornography statute. Accordingly, we reverse and remand for further proceedings.
On February 27, 2002, the defendant was indicted in the circuit court of Lake County on 45 counts of child pornography under section 11-20.1(a)(1)(ii) and 9 counts of child pornography under section 11-20.1(a)(6) of the Criminal Code of 1961. See 720 ILCS 5/11-20.1(a)(1)(ii), (a)(6) (West Supp. 2001). The indictment charged that the defendant possessed and intended to distribute computer depictions of children that he knew or reasonably should have known to be under 18 years of age engaged in various sexual activities.
The defendant entered a guilty plea to the first five counts in exchange for a seven-year sentence, but later withdrew his plea after the United States Supreme Court decided Ashcroft. He then filed a motion to dismiss the indictment, asserting that sections 11-20.1(a)(1) and 11-20.1(a)(6) facially violated the federal and state constitutions. The defendant argued that the "depict by computer" language in section 11-20.1(a)(1) and the "depiction by computer" language in section 11-20.1(a)(6) prohibit virtual child pornography protected by Ashcroft. According to the defendant, "These Illinois statutes extend Illinois' prohibition against child pornography to sexually explicit images that appear to depict minors but were produced by computer without using any real children."
On May 15, 2002, the trial court granted the defendant's motion, finding sections 11-20.1(a)(1) and 11-20.1(a)(6) unconstitutional. The court stated:
"Inasfar as the Illinois statute is concerned, the statute was, of course, created before the pronouncements of the Supreme Court in the Ashcroft case. I find the Illinois statute to be *** as overbroad as the federal statute because it allows for someone possessing a computer-generated image to be convicted as if he were to have possessed a real child's picture, and that's something that the Constitution does not allow. That's something that the U.S. Supreme Court does not allow.
I read the Illinois statute to be similar to the federal statute, where a computer-generated picture might show someone that appears as a minor or conveys the impression that the material is a minor. *** [B]ecause the Illinois statute allows someone to be prosecuted and convicted because he possesses a depiction by computer of any child and does not make the distinction of real child or live child or an identifiable child; thus, the Illinois statute constitutionally fails gravely.
Therefore, insofar as this indictment pertains to those two sections of the statute that involve virtual children, that involve computer-generated images or children depicted by computer, this motion to dismiss will be granted." (Emphases added.)
The State appealed directly to this court. See 134 Ill. 2d R. 603.
In an appeal from an order declaring a statute unconstitutional, our review is de novo. In re Adoption of K.L.P., 198 Ill. 2d 448, 453 (2002).
1. The First Amendment, Child Pornography, and Ashcroft
The first amendment (see U.S. Const., amend. I), which applies to state actions through the fourteenth amendment (see U.S. Const., amend. XIV; De Jonge v. Oregon, 299 U.S. 353, 364, 81 L. Ed. 278, 282, 57 S. Ct. 255, 260 (1937)), *fn1 prohibits content-based restrictions on speech which do not survive so-called strict scrutiny. Strict scrutiny requires a court to find that the restriction is justified by a compelling government interest and is narrowly tailored to ...