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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 prohibitionof so-called virtual child pornography suffers from the sameconstitutional infirmity that doomed the federal prohibition ofvirtual child pornography in Ashcroft v. Free Speech Coalition,535 U.S. 234, 152 L. Ed. 2d 403, 122 S. Ct. 1389 (2002). We holdthat it does, but that it is severable from the remainder of the childpornography statute. Accordingly, we reverse and remand forfurther proceedings.

BACKGROUND

On February 27, 2002, the defendant was indicted in thecircuit court of Lake County on 45 counts of child pornographyunder section 11-20.1(a)(1)(ii) and 9 counts of child pornographyunder section 11-20.1(a)(6) of the Criminal Code of 1961. See720 ILCS 5/11-20.1(a)(1)(ii), (a)(6) (West Supp. 2001). Theindictment charged that the defendant possessed and intended todistribute computer depictions of children that he knew orreasonably should have known to be under 18 years of ageengaged in various sexual activities.

The defendant entered a guilty plea to the first five counts inexchange for a seven-year sentence, but later withdrew his pleaafter the United States Supreme Court decided Ashcroft. He thenfiled a motion to dismiss the indictment, asserting that sections11-20.1(a)(1) and 11-20.1(a)(6) facially violated the federal andstate constitutions. The defendant argued that the "depict bycomputer" language in section 11-20.1(a)(1) and the "depiction bycomputer" language in section 11-20.1(a)(6) prohibit virtual childpornography protected by Ashcroft. According to the defendant,"These Illinois statutes extend Illinois' prohibition against childpornography to sexually explicit images that appear to depictminors but were produced by computer without using any realchildren."

On May 15, 2002, the trial court granted the defendant'smotion, 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 statutewas, of course, created before the pronouncements of theSupreme Court in the Ashcroft case. I find the Illinoisstatute to be *** as overbroad as the federal statutebecause it allows for someone possessing a computer-generated image to be convicted as if he were to havepossessed a real child's picture, and that's something thatthe Constitution does not allow. That's something that theU.S. Supreme Court does not allow.

I read the Illinois statute to be similar to the federalstatute, where a computer-generated picture might showsomeone that appears as a minor or conveys theimpression that the material is a minor. *** [B]ecause theIllinois statute allows someone to be prosecuted andconvicted because he possesses a depiction by computerof any child and does not make the distinction of realchild or live child or an identifiable child; thus, theIllinois statute constitutionally fails gravely.

* * *

Therefore, insofar as this indictment pertains to thosetwo sections of the statute that involve virtual children,that involve computer-generated images or childrendepicted by computer, this motion to dismiss will begranted." (Emphases added.)

The State appealed directly to this court. See 134 Ill. 2d R. 603.

ANALYSIS

In an appeal from an order declaring a statuteunconstitutional, 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), whichapplies to state actions through the fourteenth amendment (seeU.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 strictscrutiny. Strict scrutiny requires a court to find that the restrictionis justified by a compelling government interest and is narrowlytailored 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-basedrestrictions on certain categories of speech satisfy strict scrutiny.The first amendment's "vast and privileged sphere" (Ashcroft, 535U.S. at 244, 152 L. Ed. 2d at 417, 122 S. Ct. at 1399) does notextend to incitement (see Brandenburg v. Ohio, 395 U.S. 444, 23L. Ed. 2d 430, 89 S. Ct. 1827 (1969)), fighting words (seeChaplinsky v. New Hampshire, 315 U.S. 568, 86 L. Ed. 1031, 62S. 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 childpornography as another category of speech outside the protectionof the first amendment. Content-based restrictions on childpornography satisfy strict scrutiny because child pornography is"intrinsically related" to child sexual abuse, and states have acompelling interest in safeguarding physical and psychologicalhealth of children. Ferber, 458 U.S. at 756-59, 73 L. Ed. 2d at1122-24, 102 S. Ct. at 3354-56. Additionally, the value of childpornography is "exceedingly modest, if not de minimis." Ferber,458 U.S. at 762, 73 L. Ed. 2d at 1126, 102 S. Ct. at 3357. TheCourt observed that there are parameters on the category of childpornography, and consequently on the states' ability to regulate it:"As with all legislation in this sensitive area, the conduct to beprohibited must be adequately defined by the applicable state law,as written or authoritatively construed. Here the nature of the harmto be combated requires that the state offense be limited to worksthat visually depict sexual conduct by children below a specifiedage." (Emphasis omitted.) Ferber, 458 U.S. at 764, 73 L. Ed. 2dat 1127, 102 S. Ct. at 3358.

Today, however, as technological advances test the truth ofthe old saw that the camera does not lie (see 4 R. Rotunda & J.Nowak, Constitutional Law