THE PEOPLE OF THE STATE OF ILLINOIS V KENNETH ALEXANDER (2003)

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Docket No. 93952-Agenda 6-March 2003.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
KENNETH ALEXANDER, Appellee.

Opinion filed May 22, 2003.

JUSTICE FITZGERALD delivered the opinion of the court:

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.

BACKGROUND

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.
ANALYSIS

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)),(1) 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 achieve
that interest. People v. Sanders, 182 Ill. 2d 524, 530 (1998); Tully
v. Edgar, 171 Ill. 2d 297, 304-05 (1996).

The United States Supreme Court has held that content-based
restrictions on certain categories of speech satisfy strict scrutiny.
The first amendment's "vast and privileged sphere" (Ashcroft, 535 U.S.
at 244, 152 L. Ed. 2d at 417, 122 S. Ct. at 1399) does not extend to
incitement (see Brandenburg v. Ohio, 395 U.S. 444, 23 L. Ed. 2d 430,
89 S. Ct. 1827 (1969)), fighting words (see Chaplinsky v. New
Hampshire, 315 U.S. 568, 86 L. Ed. 1031, 62 S. Ct. 766 (1942)),
defamation (see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
472 U.S. 749, 86 L. Ed. 2d 593, 105 S. Ct. 2939 (1985)), or obscenity
(see Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct.
2607 (1973)).

In New York v. Ferber, 458 U.S. 747, 763, 73 L. Ed. 2d 1113, 1126, 102
S. Ct. 3348, 3358 (1982), the Court added child pornography as another
category of speech outside the protection of the first amendment.
Content-based restrictions on child pornography satisfy strict
scrutiny because child pornography is "intrinsically related" to child
sexual abuse, and states have a compelling interest in safeguarding
physical and psychological health of children. Ferber, 458 U.S. at
756-59, 73 L. Ed. 2d at 1122-24, 102 S. Ct. at 3354-56. Additionally,
the value of child pornography is "exceedingly modest, if not de
minimis." Ferber, 458 U.S. at 762, 73 L. Ed. 2d at 1126, 102 S. Ct. at
3357. The Court observed that there are parameters on the category of
child pornography, and consequently on the states' ability to regulate
it: "As with all legislation in this sensitive area, the conduct to be
prohibited must be adequately defined by the applicable state law, as
written or authoritatively construed. Here the nature of the harm to
be combated requires that the state offense be limited to works that
visually depict sexual conduct by children below a specified
age." (Emphasis omitted.) Ferber, 458 U.S. at 764, 73 L. Ed. 2d at
1127, 102 S. Ct. at 3358.

Today, however, as technological advances test the truth of the old
saw that the camera does not lie (see 4 R. Rotunda & J. Nowak,
Constitutional Law §20.61(b), at 79 (3d ed. Supp. 2003)), what falls
within the category of child pornography has become increasingly
unclear. As Congress has recognized, " 'new photographic and computer
imagining [sic] technologies make it possible to produce by
electronic, mechanical, or other means, visual depictions of what
appear to be children engaging in sexually explicit conduct that are
virtually indistinguishable to the unsuspecting viewer from
unretouched photographic images of actual children engaging in
sexually explicit conduct.' " 18 U.S.C. §2251, Congressional Findings,
note (5) (2000), quoting Pub. L. 104-208, 110 Stat. 3009. In response,
Congress targeted the growing traffic in this virtual child
pornography with the Child Pornography Prevention Act of 1996 (CPPA).

In Ashcroft, an adult entertainment industry trade association
challenged the facial validity under the first amendment of two
definitional sections of the CPPA. Section 2256(8)(B) defined child
pornography as "any visual depiction, including any photograph, film,
video, picture, or computer or computer-generated image or picture,
whether made or produced by electronic, mechanical, or other means, of
sexually explicit conduct where *** such visual depiction is, or
appears to be, of a minor engaging in sexually explicit
conduct." (Emphasis added.) 18 U.S.C. §2256(8)(B) (2000). Section 2256
(8)(D) defined child pornography as "any visual depiction, including
any photograph, film, video, picture, or computer or computer-
generated image or picture, whether made or produced by electronic,
mechanical, or other means, of sexually explicit conduct where ***
such visual depiction is advertised, promoted, presented, described,
or distributed in such a manner that conveys the impression that the
material is or contains a visual depiction of a minor engaging in
sexually explicit conduct." (Emphasis added.) 18 U.S.C. §2256(8)(D)
(2000). In short, section 2256(8)(B) addressed virtual child
pornography, and section 2256(8)(D) addressed materials pandered or
marketed as child pornography. The trade association asserted that
these sections were overbroad and had a chilling effect, preventing
its members from producing constitutionally protected works. The
federal district court granted summary judgment to the government; the
court of appeals reversed (Free Speech Coalition v. Reno, 198 F.3d
1083 (9th Cir. 1999)).

The Court affirmed, holding that these sections were overbroad and
violative of the first amendment. Ashcroft, 535 U.S. at 256, 258, 152
L. Ed. 2d at 425, 426, 122 S. Ct. at 1405, 1406. The Court noted that,
unlike actual child pornography, virtual child pornography "do[es] not
involve, let alone harm, any children in the production
process" (Ashcroft, 535 U.S. at 241, 152 L. Ed. 2d at 415, 122 S. Ct.
at 1397); virtual child pornography has no link to the crime of child
sexual abuse. The Court elaborated:

"In contrast to the speech in Ferber, speech that itself is the record
of sexual abuse, the CPPA prohibits speech that records no crime and
creates no victims by its production. Virtual child pornography is not
'intrinsically related' to the sexual abuse of children, as were the
materials in Ferber. 458 U.S., at 759. While the Government asserts
that the images can lead to actual instances of child abuse
[citation], the causal link is contingent and indirect. The harm does
not necessarily follow from the speech, but depends upon some
unquantified potential for subsequent criminal acts." Ashcroft, 535
U.S. at 250, 152 L. Ed. 2d at 421, 122 S. Ct. at 1402.

The Court rejected the government's argument that such indirect
effects were sufficient to pass constitutional muster because the
value of child pornography is de minimis:

"Ferber did not hold that child pornography is by definition without
value. On the contrary, the Court recognized some works in this
category might have significant value [citation], but relied on
virtual images-the very images prohibited by the CPPA-as an
alternative and permissible means of expression: '[I]f it were
necessary for literary or artistic value, a person over the statutory
age who perhaps looked younger could be utilized. Simulation outside
of the prohibition of the statute could provide another
alternative.' [Ferber, 458 U.S. at 763, 73 L. Ed. 2d at 1126, 102 S.
Ct. at 3357]. Ferber, then, not only referred to the distinction
between actual and virtual child pornography, it relied on it as a
reason supporting its holding. Ferber provides no support for a
statute that eliminates the distinction and makes the alternative mode
criminal as well." Ashcroft, 535 U.S. at 251, 152 L. Ed. 2d at 421-22,
122 S. Ct. at 1402.

In short, sections 2256(8)(B) and 2256(8)(D) did not pass strict
scrutiny because, unlike the child pornography statute at issue in
Ferber, they were not narrowly tailored to advance the government's
compelling interest in protecting actual children from sexual abuse.
2. The Illinois Child Pornography Statute

We turn now to examine the effect of Ashcroft on the Illinois child
pornography statute. Section 11-20.1(a) provides in relevant part:

"(a) A person commits the offense of child pornography who:

(1) films, videotapes, photographs, or otherwise depicts or portrays
by means of any similar visual medium or reproduction or depicts by
computer any child whom he knows or reasonably should know to be under
the age of 18 or any severely or profoundly mentally retarded person
where such child or severely or profoundly mentally retarded person
is:

***

(ii) actually or by simulation engaged in any act of sexual contact
involving the sex organs of the child or severely or profoundly
mentally retarded person and the mouth, anus, or sex organs of another
person or animal; or which involves the mouth, anus or sex organs of
the child or severely or profoundly mentally retarded person and the
sex organs of another person or animal; or

* * *

(6) with knowledge of the nature or content thereof, possesses any
film, videotape, photograph or other similar visual reproduction or
depiction by computer of any child or severely or profoundly mentally
retarded person whom the person knows or reasonably should know to be
under the age of 18 or to be a severely or profoundly mentally
retarded person, engaged in any activity described in subparagraphs
(i) through (vii) of paragraph (1) of this subsection[.]" 720 ILCS
5/11-20.1(a) (West Supp. 2001).

Section 11-20.1(f) provides definitions of, inter alia, "depict by
computer," "depiction by computer," and "child":

"(4) 'Depict by computer' means to generate or create, or cause to be
created or generated, a computer program or data that, after being
processed by a computer either alone or in conjunction with one or
more computer programs, results in a visual depiction on a computer
monitor, screen, or display.

(5) 'Depiction by computer' means a computer program or data that,
after being processed by a computer either alone or in conjunction
with one or more computer programs, results in a visual depiction on a
computer monitor, screen, or display.

***

(7) 'Child' includes a film, videotape, photograph, or other similar
visual medium or reproduction or depiction by computer that is, or
appears to be, that of a person, either in part, or in total, under
the age of 18, regardless of the method by which the film, videotape,
photograph, or other similar visual medium or reproduction or
depiction by computer is created, adopted, or modified to appear as
such. 'Child' also includes a film, videotape, photograph, or other
similar visual medium or reproduction or depiction by computer that is
advertised, promoted, presented, described, or distributed in such a
manner that conveys the impression that the film, videotape,
photograph, or other similar visual medium or reproduction or
depiction by computer is of a person under the age of 18." (Emphases
added.) 720 ILCS 5/11-20.1(f) (West Supp. 2001).(2)

The current child pornography statute is a reenactment of an earlier
statute, which was struck down because it violated the single-subject
rule (see People v. Cervantes, 189 Ill. 2d 80 (1999)), with two
modifications: "One is that possession of child pornography must be
voluntary in order to be considered criminally liable of that
violation, and it expands the definition of a 'child.' This is
intended to address the issue of morphing, where they morph different
parts of bodies." (Emphasis added.) 91st Ill. Gen. Assem., Senate
Proceedings, May 11, 1999, at 36 (statements of Senator Sullivan).

This description of morphing is less than clear. In Ashcroft, the
Court described computer morphing as

"a more common and lower tech means of creating virtual images ***.
Rather than creating original images, pornographers can alter innocent
pictures of real children so that the children appear to be engaged in
sexual activity. Although morphed images may fall within the
definition of virtual child pornography, they implicate the interests
of real children and are in that sense closer to the images in
Ferber." Ashcroft, 535 U.S. at 242, 152 L. Ed. 2d at 416, 122 S. Ct.
at 1397.

The computer-morphing provision of the CPPA bars depictions of
identifiable children. See 18 U.S.C. §2256(8)(C) (2000). The
definition of "child" in section 11-20.1(f)(7), by contrast, does not
refer to identifiable children, and, accordingly, does not proscribe
computer morphing as defined by the Court. Instead, section 11-20.1(f)
(7) goes beyond morphing to attack the same virtual and pandered child
pornography targeted by sections 2256(8)(B) and 2256(8)(D) of the
CPPA. The parties seem to agree in their briefs that section 11-20.1(f)
(7) is unconstitutional because its language is indistinguishable from
the language of the CPPA invalidated in Ashcroft. At first glance,
then, this case seems straightforward: apply Ashcroft, strike the
statute, and affirm. A closer review of the record reveals that our
task is not so easy.

In his motion to dismiss, the defendant challenged the
constitutionality of sections 11-20.1(a)(1) and 11-20.1(a)(6), not
section 11-20.1(f)(7). The defendant, however, discussed Ashcroft and
noted that the Court was troubled by the CPPA's "appears to be" and
"conveys and impression" language. The trial court clearly recognized
that this constitutionally problematic language also appeared in the
state statute: "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." (Emphasis added.) Though the court did not strike section
11-20.1(f)(7), which contains this language, and, instead, struck two
entirely separate provisions, which simply define the substantive
offense of child pornography, the court's comments were broad enough
to bring the issue of the constitutionality of section 11-20.1(f)(7)
before this court. Section 11-20.1(f)(7), not sections 11-20.1(a)(1)
and 11-20.1(a)(6), raises the concerns voiced in Ashcroft. Section
11-20.1(f)(7), not sections 11-20.1(a)(1) and 11-20.1(a)(6), is
unconstitutional. See 155 Ill. 2d R. 366(a)(5) ("In all appeals the
reviewing court may, in its discretion, and on such terms as it deems
just, *** enter any judgment and make any order that ought to have
been given or made").

The State contends that section 11-20.1(f)(7) is severable from the
remainder of the child pornography statute. Public Act 91-229, which
added section 11-20.1(f)(7), did not contain its own specific
severability provision. Accordingly, we look to the Statute on
Statutes' general severability provision: "If any provision of an Act
*** is held invalid, such invalidity does not affect other provisions
*** of the Act which can be given effect without the invalid ***
provision, and to this end the provisions of each Act *** are
severable, unless otherwise provided by the Act." 5 ILCS 70/1.31 (West
2000). Severability involves a two-part inquiry. First, we must
determine "whether the valid and invalid portions of the statute are
essentially and inseparably connected in substance." See Fiorito v.
Jones, 39 Ill. 2d 531, 540 (1968). Second, we must determine whether
the legislature would have enacted the valid portions without the
invalid portions. See People v. Warren, 173 Ill. 2d 348, 372 (1996).
This inquiry is a question of legislative intent.

Section 11-20.1(f)(7) is not inseparably connected to the child
pornography statute because the statute existed for 16 years without
the definition of "child." Further, the General Assembly would have
enacted the child pornography statute without section 11-20.1(f)(7);
it did just that in 1984. We conclude that the General Assembly would
prefer to leave the remaining portions of the statute in effect.
Accordingly, we strike only section 11-20.1(f)(7). See People v.
Watts, 181 Ill. 2d 133, 151 (1998) (holding that a statutory provision
was severable where it was added six years after the statute was
enacted); see also United States v. Kelly, 314 F.3d 908, 912 (7th Cir.
2003) (holding that Ashcroft invalidated only two definitions of
virtual child pornography and left in tact a valid definition of
traditional child pornography under which the defendant was
convicted).

The defendant contends that this holding does not dispose of this
case. He claims that what remains of section 11-20.1 after severing
the definition of "child" is still unconstitutional. Because each of
the 54 counts against the defendant allege that he possessed a
"depiction by computer" of a child engaged in sexual activity, he
assails the definitions of "depict" and "depiction by computer" in
sections 11-20.1(f)(4) and 11-20.1(f)(5). The defendant asserts that
these definitions, and sections 11-20.1(a)(1) and 11-20.1(a)(6), which
mention these terms, are not limited to actual children. Consequently,
argues the defendant, the state statute, like the federal statute in
Ashcroft, fails strict scrutiny under Ferber.

"In determining the constitutionality of a statute, a reviewing court
must first ascertain the statute's meaning by applying ordinary rules
of construction and then decide whether, as construed, the statute
comports with constitutional requirements." In re Application for
Judgment & Sale of Delinquent Properties for the Tax Year 1989, 167
Ill. 2d 161, 168 (1995). That is, before we can determine whether
sections 11-20.1(f)(4) and 11-20.1(f)(5)-and concomitantly sections
11-20.1(a)(1) and 11-20.1(a)(6)-are impermissible content-based
restrictions on speech warranting strict scrutiny, we must determine
what they mean. In interpreting a statute, the primary rule of
construction is to ascertain and effectuate the legislature's intent.
See Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990). We look to the
language of the statute as the best indication of this intent, and we
give the statutory terms their ordinary meaning. Opyt's Amoco, Inc. v.
Village of South Holland, 149 Ill. 2d 265, 277 (1992).

Because we have concluded that the definition of "child" in section
11-20.1(f)(7) is constitutionally infirm, we must resort to plain
language. "Child" means "a young person of either sex esp. between
infancy and youth." See Webster's Third New International Dictionary
388 (1993). "Person," in turn, means "an individual human being" or "a
human being as distinguished from an animal or thing." See Webster's
Third New International Dictionary 1686 (1993); see also Ill. Rev.
Stat. 1981, ch. 38, par. 11-20a(a)(3) (child pornography " '[m]atter'
" means "any photographic product depicting actual human models or
actors, whether in the form of still photographs, motion pictures, or
videotape" (emphasis added)). "Child" means young human being; child
means actual child. Further, sections 11-20.1(a)(1) and 11-20.1(a)(6)
both require that the defendant "knows or reasonably should know" that
the child depicted is under the age of 18. See 720 ILCS 5/11-20.1(a)
(1), (a)(6) (West Supp. 2001). In the context of virtual child
pornography, the State could never satisfy this scienter requirement
because a virtual child is ageless. We hold that sections 11-20.1(a)
(1) and 11-20.1(a)(6) prohibit, inter alia, making and possessing
sexually explicit computer depictions of any actual child under 18
years of age. Accordingly, these sections pass strict scrutiny under
Ferber.

Statutory interpretation aside, the defendant's argument is
essentially a flawed syllogism: Ashcroft invalidated content-based
restrictions on virtual child pornography; virtual child pornography
often contains computer-graphic images; therefore, Ashcroft
invalidated restrictions on computer depictions of child pornography.
But not all computer depictions of child pornography are virtual child
pornography. In fact, the depict/depiction-by-computer provisions have
nothing to do with the content of the images-whether actual or virtual-
and everything to do with the method by which they are displayed. See
88th Ill. Gen. Assem., Senate Proceedings, December 1, 1994, at 45
(statements of Senator Dudycz) (Senate Bill 1153, which added the
depict/depiction-by-computer provisions, "expands child pornography to
include computer distributed pornography" (emphasis added)). The
addition of computer images to the statute simply recognized the
technological reality that child pornography could be memorialized in
a computer's memory at least as easily as it could be memorialized on
paper, film, or videotape. This reading is entirely consistent with
Ashcroft, which did not strike that part of the CPPA defining "child
pornography" as "any visual depiction, including any photograph, film,
video, picture, or computer or computer generated image or picture,
whether made or produced by electronic, mechanical, or other
means." (Emphasis added.) 18 U.S.C. §2256(8) (2000).

Ashcroft addressed only the question of whether a criminal prohibition
of virtual child pornography-child pornography produced without using
actual children-violated the first amendment. It did not invalidate
all child pornography laws. We need not revisit the issue of whether
criminalizing child pornography of actual, not virtual, children
violates the first amendment. That issue was answered conclusively and
convincingly in Ferber, and the Illinois child pornography statute
comports with that case. See People v. Lamborn, 185 Ill. 2d 585, 590
(1999).
CONCLUSION

For the reasons that we have discussed, we reverse and remand for
further proceedings.



Reversed and remanded.





1. 1See also Ill. Const. 1970, art. I, §4 ("All persons may speak,
write and publish freely, being responsible for the abuse of that
liberty").

2. 2We note that section 11-20.1(f)(7) contains a serious syntax
problem. If we insert this definition of "child" into the substantive
offense of child pornography, the statute proscribes filming,
videotaping, photographing, or depicting by other similar visual media
or by computer any film, videotape, photograph, other similar visual
media, or computer depiction. The statute becomes circular; it bans
pictures and movies of pictures and movies.

In oral argument, the State acknowledged this anomaly and intimated
that the definition of "child" is actually a definition of "child
pornography." This interpretation is not entirely satisfactory because
section 11-20.1(a) in a sense already defines child pornography, but
the statute is similar to the federal statute at issue in Ashcroft in
this regard. We presume the General Assembly did not intend an absurd
result (A.P. Properties, Inc. v. Goshinsky, 186 Ill. 2d 524, 532
(1999)), and we read the definition of "child" as a definition of
"child pornography" (see People v. Garrison, 82 Ill. 2d 444, 455
(1980) (holding that a court may alter, supply, or modify words to
correct obvious legislative drafting mistakes)).