Jurisdictional Statement — Heinrich v. Illinois

84-1346)

'

} ALEXANDER |. STEVag

| CLERK

I'LED

FEB 22 1985

>

IN THE

Supreme Court of the Wnited States

October Term, 1984

PAUL HEINRICH,

Appellant,

VS.

THE STATE OF ILLINOIS,

Appellee.

ON APPEAL FROM

THE SUPREME COURT OF ILLINOIS

JURISDICTIONAL STATEMENT

William P. Marshall

. (Counsel of Record)

Came Marshall-Wythe School of Law

Jeffrey M. Shaman College of William and Mary

DePaul University College Williamsburg, Virginia 23185

of Law Telephone: (804) 253-4143

25 E. Jackson Blvd.

Attorney for Appellants

Chicago, Illinois 60604

Geoffrey R. Stone

1111 E. 60th Street

Chicago, Illinos 60637

A a a I ASAE

CASILLAS PRESS INC. - 1717 K STREET WASH DC - 223-1220

II.

(i)

QUESTIONS PRESENTED

Whether the First Amendment permits a State to

criminally proscribe true statements of fact as

defamation?

Whether the First Amendment permits a state to

criminally proscribe true statements of fact as

fighting words or breach of peace where the speech

was not uttered in face-to-face confrontation?

(iii)

TABLE OF CONTENTS

Page

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DIESER PREENEEIIGE ca ccccovccccccccccecececcce 1

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ee Lia ees cc ke eseeaseasscunencesoes 2

CONSTITUTIONAL AND STATUTORY

ee a ok Cee cccwecseesseace 3

STATEMENT OF THE CASE

EP PT erer rer rrr rrrrTrrrrere 4

2. When and How the Federal Questions Were Raised

ed. ciate bab bees bs eeeebeeeeesées 5

THE QUESTIONS ARE SUBSTANTIAL

I. The First Amendment Requires That Truth Be A

Defense To A Criminal Prosecution For Defama-

REE Oe SCRE Ae d tinn eee onhspeesesenssecccce 6

Il. The Statute Is Not Sustainable As A Regulation

Aimed At Fighting Words Or Breaches Of The

Peace Since It Proscribes Truthful Statements And

Prohibits Speech In Situations Where A Breach of

EE 9

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eS se i ee tugs eeseens 11

Nee Tee ac kaeebes soneneseened 16

APPENDICES

A. Opinion and Decision of the Supreme Court of

ee eo cee hoes eceenséeccessece la

B. Memorandum Opinion and Order of the Circuit

Court of the Eleventh Judicial Circuit, McLean

PE cccsceukekstececesscedccessétcccccese 13a

(iv)

Page

C. Judgement from which appeal is sought ................. 17a

BD. Pee OP AGN occ iccccccccccccccsscccsccccsccccese 18a

El. Criminal Information (Count I) ...................++++- 19a

E2. Criminal Information (Count II) ..................5005- 23a

TABLE OF AUTHORITIES

Cases: Page

Abrams v. United States, 250 U.S. 616 (1919) .........0600 0000s: 8

Beauharnais v. Illinois, 343 U.S. 250 (1952) ...... 2... 6+5+55- 12, 13

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ...... 10, 14, 15

Cohen v. California, 403 U.S. 15 (1971) «2.2.26... e ee eee eee 11-15

Collin v. Smith, 578 F.2d. 1197 (7th Cir. 1978),

cert. denied, 439 U.S. 916 (1978) ... 2.2... 5c cece eee eeeee 12

Cox v. Louisiana, 379 U.S. 536 (1965) ..... 2... cece cece eee eeee 14

Cox Broadcasting v. Cohn, 420 U.S. 469 (1975) .........---0005: 7

Curtis Publishing Co. v. Butts, 388 U.S. °30 (1967) .............. 8

Edwards v. South Carolina, 372 U.S. 229 (1963) ...........-+++- 14

Feiner v. New York, 340 U.S. 315 (1951) .........-2--000e0 14, 15

Garrison v. Louisiana, 379 U.S. 64 (1964) .......---..056: 6, 11-13

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ..........--54: 7

Ginsberg v. New York, 390 U.S. 629 (1968) .... 2.2... 2 eee eee eens 8

(v)

Page

Gitlow v. New York, 268 U.S. 652 (1925) ...... 2... cece eee eens 8

Gooding v. Wilson, 405 U.S. 518 (1972) .............. 10, 11, 13-15

Gregory v. Chicago, 394 U.S. 111 (1969) ..... 0... cece eee eee 14

Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971) ................ 8

New York Times v. Sullivan, 376 U.S. 254 (1964) ........... 6-8, 13

Organization for a Better Austin v. Keefe,

SBE, GES 8 aces ccc cnssasewveensssssavcases eenens 13

People v. Heinrich, 104 Ill. 2d 137, 470 N.E.2d 966 (1984) ...... 1,5

Plummer v. City of Columbus, 414 U.S. 2 (1973) ............ 10, 13

State v. Chaplinsky, 91 N.H. 310, 18 A.2d 754 (1941),

GF, FEF es FED 6 hh ct ncccciccsssccnccccecscacsons 10

Street v. New York, 394 U.S. 576 (1968) ....... -oondeaeseedbawe 16

Terminiello v. Chicago, 337 U.S. 1 (1949) 2.0.0.0... cece eee e eee 13

Time, Inc. v. Firestone, 424 U.S. 448 (1976) .........00eeceeeees 7

Tollett v. United States, 485 F.2d 1087 (8th Cir. 1973) ........... 12

Virginia State Bd. of Pharmacy v. Virginia Citizens

Consumer Council, 425 U.S. 748 (1976) ........0 0 ccc cece eeeee 8

Winters v. New York, 333 U.S. 507 (1948) ..............-00005- 13

Constitutional Provisions:

ee EE Sc dccsevatcasaddbcaxdspeansianae passim

(vi)

Page

Statutory Provisions:

BB UKs F TEBT GIS c ccc cc ccccccccccccccccecosecessonse 2

Ml. Rev. Stat. ch. 38, § 26 (1961) ........ccccccccccccccccccees 10

Es. Rov. Sint. GR. SB, § ST QRGTE) cc ccccccccccccccccccccses passim

Articles:

Emerson, Toward a General Theory of the First

Amendment, 72 Yale L.J. 887 (1963) ..... <6. cece nc nnee 11-12

Posner, The Right of Privacy, 12 Ga. L. Rev. 393 (1978) .......... 8

Redish, The Value of Free Speech, 130 U. Pa. L.

TUT. THE GEGEN cc ccccccccccccccscccccccccscccceccccescces 8

Stone, Content Regulation and the First Amendment,

2D Wen, REE Eee Gs FED GNOEED cocccdcccccsdsccceccccoces 15

IN THE

Supreme Court of the United States

October Term, 1984

PAUL HEINRICH,

Appeliant,

vs.

THE STATE OF ILLINOIS,

Appellee.

ON APPEAL FROM

THE SUPREME COURT OF ILLINOIS

JURISDICTIONAL STATEMENT

This is an appeal from the judgment of the Supreme

Court of the State of Illinois dated September 20, 1984

holding the Illinois Criminal Defamation Statute, Ill. Rev.

Stat. ch. 38, § 27 (1981), valid under the First Amendment

of the United States Constitution. Appellant submits this

statement to show that the Supreme Court of the United

States has jurisdiction of the appeal and that substantial

federal questions are presented.

OPINIONS BELOW

The opinion of the Illinois Supreme Court is reported at

104 Ill. 2d 137, 470 N.E.2d 966 (1984). The text of this opi-

nion is set forth in Appendix A. The Memorandum Opi-

nion and Order of the Circuit Court of the Eleventh

2

Judicial District of the State of Illinois is not reported. The

text of the Memorandum Order and Opinion is set forth in

Appendix B.

JURISDICTION

This case involves a two count misdemeanor prosecu-

tion under the Illinois Criminal Defamation Statute, Ill.

Rev. Stat. ch. 38, § 27 (1981), alleging that the defendant

defamed an individual by leaflet and letter in violation of

this statute. Defendant was charged by criminal informa-

tion on May 11, 1983 in the Circuit Court of the Eleventh

Judicial District of the State of Illinois.

Defendant moved to dismiss the criminal information

on the grounds that the statute under which it was brought

was violative of the first amendment. This motion was

granted by the Circuit Court in a written Memorandum

Opinion and Order dated October 14, 1983.

The State appealed this dismissal in a direct appeal to

the Illinois Supreme Court. On September 20, 1984 the Il-

linois Supreme Court reversed the Circuit Court, held the

statute constitutionally valid and remanded for further

proceedings. Defendant petitioned for rehearing; on

November 30, 1984 the Illinois Supreme Court denied the

petition. A Notice of Appeal to this Court was filed

February 5, 1985. The jurisdiction to review the decision

of the Illinois Supreme Court is conferred by Title 28

U.S.C. Section 1257(2) (1982).

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The full text of the First Amendment to the Constitu-

tion of the United States is as follows:

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble. and to petition

the government for a redress of grievances.

The full text of the Illinois Criminal Defamation

Statute, Ill. Rev. Stat. ch. 38, § 27 (1981), is as follows:

Article 27. Criminal Defamation.

27-1 Elements of the Offense.

(ay A person commits criminal defamation

when, with intent to defame another, living

or dead, he communicates by any means to

any person matter which tends to provoke a

breach of the peace.

(b) Sentence.

Criminal defamation is a Class A misde-

meanor.

27-2. Justification.

In all prosecutions for criminal defamation, the

truth, when communicated with good motives,

and for justifiable ends, shall be an affirmative

defense.

4

STATEMENT OF THE CASE

1. Background

On May 11, 1983, the defendant was charged by infor-

maton with two counts of criminal defamation under Sec-

tion 27-1 of the Illinois Revised Statutes ch. 38. Count I

alleged that the defendant defamed an individual by com-

municating to third persons (the general public) by leaflet

and letter material claiming that the complainant was an

unfit mother due to her promiscuity, deviant sexual

behavior, and drug use. The leaflet urged its readers to

relate the complainant’s unfitness to church groups or the

Illinois Department of Children and Family Services.

Count II alleged that the defendant defamed the

complainant by mailing to a third person (the complai-

nant’s mother), a letter which identified the complainant

as a ruined women and a person excommunicated from

the Catholic church. The letter also contained epithets ad-

dressed to the complainant’s mother, which were not the

subject of the criminal information.

Defendant has at all times asserted the truth of his

statements concerning the complainant. The Illinois

Criminal Defamation Statute, however, allows only a

“qualified truth” defense; that is, the defendent must show

good motivation as well as truth. Arguing that the Illinois

statute was therefore overbroad, the defendant moved to

dismiss the criminal information in the trial court. Pur-

suant to this motion, the trial court dismissed the informa-

tion and declared the criminal defamation statute un-

constitutional on the grounds that it criminally proscribed

truthful speech in violation of the first and fourteenth

amendments to the United States Constitution.

The Illinois Supreme Court reversed in an opinion that

5

is not free from ambiguity. The decision of the I!linois

Supreme Court, aibeit obscure in some respects, is clear in

at least the following: First, a conviction under the Illinois

Criminal Defamation Statute can stand regardless of the

truth or falsity of the defendant’s statements. People v.

Heinrich, 104 Ill. 2d 137, 150, 470 N.E.2d 966, 972 (1984).

Second, it may be upheld even if the defamatory words a)

are substantive statements as opposed to epithets, b) are

not uttered face to face with the person defamed and c) are

not directed to the person receiving the communication.

Section 27-1 requires only that the defamatory matter be

communicatd by any means to any person.

Defendant petitioned for rehearing seeking both

clarification of the opinion and reversal. The Illinois

Supreme Court summarily dismissed the petition.

2. When And How The Federal Questions Were Raised

And Decided Below

The question of the constitutionality of the Criminal

Defamation Statute under the first amendment was initial-

ly raised in defendant’s motion to dismiss before the trial

court. The trial court granted this motion. On appeal the

Illinois Supreme Court reversed.

THE QUESTIONS ARE SUBSTANTIAL

The case places squarely before this Court the issue of

whether the first amendment permits a state to criminally

proscribe true statements of fact as defamation. The II-

linois Criminal Defamation Statute, Ill. Rev. Stat. ch. 38,

§ 27 (1981), under which the defendant was charged,

grants only a “qualified truth” defense which requires that

the defendant must show that his statements were truthful

and made with good motivation. In upholding the statute,

the Illinois Supreme Court held that truth alone is not a

sufficient defense to defamation. This holding ignores the

decisions of this Court which have held that a truth

defense to defamation is constitutionally mandated. In-

deed the opinion disregards the central premise of the first

amendment — that the freedom of speech is designed to

promote the search for truth.

This case also brings before the Court the issue of the

circumstances in which the state’s interest in protecting the

peace can support the proscription of truth. After constru-

ing the Criminal Defamation Statute as a measure de-

signed in part to protect the peace, the Illinois Supreme

Court held that it was constitutional because it regulated

speech of only “slight” first amendment value that posed

an “immediate” threat to the peace. The Illinois Supreme

Court’s conclusions as to what constitutes “slight” first

amendment value and what constitutes an immediate

threat to the peace, however, do not conform to the deci-

sions of this Court. Truthful statements have more than

only “slight” first amendment value. Statements com-

municated by “any means to any person,” including those

not uttered in face-to-face confrontation nor stated in the

presence of the person to whom they are dircted do not

pose an “immediate” threat to the peace. The decision of

the Illinois Supreme Court shouid be reversed.

.

I. THE FIRST AMENDMENT REQUIRES THAT TRUTH BE A

DEFENSE TO A CRIMINAL PROSECUTION FOR DEFAMA-

TION.

The decisions of this Court unequivocally hold that

truth is an absolute defense in both civil and criminal

defamation where a public official or public figure is

defamed. See New York Times v. Sullivan, 376 U.S. 254

(1964) (civil); Garrison v. Louisiana, 379 U.S. 64 (1964)

(criminal).

The Illinois Supreme Court erroneously maintained that

this protection does not extend to defamation of non-

public figures. This Court’s decisions, however, indicate

that falsity is an essential element even with respect to

defamation of non-public figures. In Gertz v. Robert

Welch, Inc., 418 U.S. 323 (1974), this Court explained

that although liability in a non-public figure defamation

case could be based on a lesser standard than in a public

figure case, liability must be predicated on “defamatory

' . falsehood.” In rejecting this conclusion, the Illinois Court

relied on dicta in Cox Broadcasting v. Cohn, 420 U.S. 469

(1975), a privacy case, in which this Court stated that it

had never held truth to be a complete defense in all in-

stances. Any ambiguity in Cox, however, was subsequent-

ly erased in Time, Inc. v. Firestone, 424 U.S. 448 (1976)

where this Court stated that the “demonstration that an ar-

ticle was true would seem to preclude finding the publisher

at fault.” 424 U.S. at 458, (citing Cox Broadcasting v.

Cohn, 420 U.S. at 498-500 (Powell, J. concurring)).

Indeed, although Gertz makes apparent that truth is a

defense in a civil action for defamation, it is absolutely

certain that truth is a defense where, as here, the action is

criminal. In Gertz this Court held that even a private

plaintiff could not recover punitive damages for defama-

tion unless the actual malice standard of New York Times

was Satisfied. 418 U.S. at 349. That requirement is con-

clusive here. The purpose of punitive damages, like that of

the criminal law, is to punish the defendant and deter

future actions. Gertz, 478 U.S. at 350. As criminal liability

is at least as severe as punitive damages, the actual malice

standard for liability must be met. In not recognizing truth

as a defense, the challenged statute is constitutionally in- —

firm.

There are important policy reasons, moreover, other

than stare decisis for recognizing the truth defense in

defamation actions involving even non-public figures.

First, there is the inherent value of truth itself. The search

for truth has been construed as a central policy of the first

amendment. New York Times v. Sullivan, 376 U.S. 254.

The exchange of truthful information forms our

awareness and provides us with the knowledge useful to

making informative and beneficial decisions. Our need for

truth, as this Court has recognized, does not end with

public issues. This Court has frequently noted the value of

speech in advancing “‘truth, science, morality and arts in

general’ as well as responsible government.” Curtis

Publishing Co. v. Butts, 388 U.S. 130, 147 (1967). See

Monitor Patriot Co. v. Roy, 401 US. 265, 275 (1971);

Ginsberg v. New York, 390 U.S. 629, 649 (1968); Gitlow

v. New York, 268 U.S. 652, 672-73 (1925) (Holmes, J.,

dissenting); Abrams v. United States, 250 U.S. 616, 630

(1919) (Homes, J., dissenting). In this respect, the truth we

know about our neighbors may be as useful to our own

day-to-day decisions as the truth of what is occuring in

Washington or New York. See, e.g., Virginia State Bd. of

Pharmacy v. Virginia Citizens Consumer Council, 425

U.S. 748 (1976); Posner, The Right of Privacy 12 Ga. L.

Rev. 393 (1978); Redish, The Value of Free Speech, 130 U.

Pa. L. Rev. 591 (1982).

9

Second, the protection of all truthful statements works

as a prophylactic device similar to the protection of certain

false statements required by New York Times v. Sullivan.

In Sullivan, the Court recognized that even some false

statements deserve protection in order to give the exposi-

tion of truthful statements room to develop without in-

hibition. The Court was especially wary of self-censorship.

In much the same way, and even more dramatically,

operating room should be granted to truthful statements.

To hold otherwise would lead to self-censorship, for in-

dividuals would be forced to determine which of their true

statements are worthy or unworthy of first amendment

protection.

Third, prohibiting the truthful speech in this case would

make unlawful much of our everyday discourse. Although

this defendant may have been extravagant in his methods

of communication, the type of message which he com-

municated is commonplace. To make this conversation

criminal is to place everyday social discourse at tlic mercy

of the state’s police power.

Il. THE STATUTE IS NOT SUSTAINABLE AS A REGULA-

TION AIMED AT FIGHTING WORDS OR BREACHES OF

THE PEACE SINCE IT PROSCRIBES TRUTHFUL

STATEMENTS AND PROHIBITS SPEECH IN SITUA-

TIONS WHERE A BREACH OF PEACE IS NOT IMMI-

NENT

The Illinois Supreme Court construed the Criminal

Defamation Statute, which required only that the defama-

tion “tends to provoke a breach of the peace” as requiring

that the defamatory words must tend to produce an im-

mediate breach of peace. Such window dressing does not

cure the statute.

10

A. Fighting Words

In interpreting the Illinois Criminal Defamation

Statute, the Iilinois Supreme Court referred to the

“fighting words” doctrine. It did not, however, construe

the Criminal Defamation Statute as a Fighting Words

statute, and the statute cannot be sustained on that basis.

First, if the Court construed the statute as limited solely to

fighting words, its subsequent discussion of the non-public

figure defamation cases would be irrelevant. Second, a

pure fighting words construction would render the statute

superfluous, for the Illinois Disorderly Conduct Statute,

Ill. Rev. Stat. ch. 38, § 26 (1981), is directed at fighting

words. Third, even if the statute is directed at fighting

words, it is nonetheless unconstitutional because it pro-

scribes truthful statements without conforming to this

Court’s fighting words doctrine.

The differences between criminal defamation and

fighting words are obvious. The fighting words doctrine

applies to personal epithets; criminal defamation applies

to substantive statements. To expand the fighting words

doctrine to cover truthful statements that cannot in any

sense be described as epithets, expands the doctrine well

beyond its historical and theoretical limits.! The fighting

words doctrine governs speech that has only “slight” first

amendment value. While this notion may be valid as ap-

plied to personal epithets, it is wholly inapplicable to

truthful substantive statements. See supra pp. 6-8. The Il-

linois Supreme Court cannot escape this constitutional dif-

ficulty simply by labeling criminal defamation “fighting

words.” Compare Plummer v. City of Columbus, 414

'The question of whether truth should be a defense to a fighting

words conviction was in issue before the state supreme court in State

v. Chaplinsky, 91 N.H. 310, 18 A.2d 754 (1941), but was not a part of

the decision of this Court. Chaplinsky v. New Hampshire, 315 U.S.

568 (1942).

ll

U.S. 2 (1973) (per curiam); Gooding v. Wilson, 405 U.S.

518 (1972).

Moreover, even if the fighting words doctrine may be

applied to true statements of fact that do not constitute

epithets, the statute at bar is unconstitutional because it

fails to adopt the other necessary elements of the doctrine

that this Court has carefully designated. This Court has

made clear, for example, that the fighting words doctrine

requires that the words be uttered face-to-face to the per-

son of the hearer. Gooding v. Wilson, 405 U.S. 518;

Cohen v. California, 403 U.S. 15 (1971). The Illinois

Criminal Defamation Statute, however, expressly

authorizes liability for communicating defamatory

material “by any means to any person.” Indeed the statute

goes so far as to authorize liability for the defamation of a

dead person. § 27-1. The statute clearly is not limited to

face-to-face confrontation with the person defamed. In-

deed, in this very case the defendant was charged with

communicating the purportedly defamatory material to

the general public by letter or posted display of a leaflet

and by mail to the complainant’s mother. Neither of these

actions constitutes “fighting words”. The decision of the

Illinois Supreme Court cannot be defended in terms of the

“fighting words” doctrine.

B. Breach of the Peace

Similarly, the Illinois Criminal Defamation Statute may

not be sustained as a regulation designed to prevent breach

of the peace. As this Court stated in Garrison v. Loui-

siana, 379 U.S. 64, 69 (1964):

Changing mores and the virtual disappearance of

criminal libel prosecutions lend support to the

observation that “. . . under modern conditions,

12

when the rule of law is generally accepted as a

substitute for private physical measures, it can

hardly be urged that the maintenance of peace re-

quires a criminal prosecution for private defama-

tion.” Emerson, Toward A General Theory of

the First Amendment, 72 Yale L.J. 877, 924

(1963).

In rejecting the teachings of Garrison, the Illinois

Supreme Court relied on Beauharnais v. Illinois, 343 U.S.

250 (1952). Although Beauharnais has not been explicitly

overruled, it has been carefully confined by subsequent

decisions of this Court. Indeed, in no case since Beauhar-

nais has this Court upheld a breach of peace conviction

under the criminal libel doctrine. See, e.g., Garrison v.

Louisiana, 379 U.S. 64 (1964); see also Coilin v. Smith,

578 F.2d 1197 (7th Cir. 1978), cert. denied, 439 U.S. 916

(1978); and Tollett v. United States, 485 F.2d 1087, 1094

n.14 (8th Cir. 1973) (suggesting Beauharnais to be of

doubtful validity in light of this Court’s subsequent deci-

sions.)

The fundamental premise of Beauharnais is that ut-

terances that offend our sensibilities are “no essential part

of any exposition of ideas, and are of such slight social

value as a step to truth that any benefit that may be de-

rived from them is clearly outweighed by the social interest

in order and morality.” 343 U.S. at 257.

This Court has since recognized, however, that some of-

fense to sensibilities is a necessary by-product of our first

amendment liberties. As the Court stated in Cohen v.

California 403 U.S. at 25:

That the air may at times seem filled with verbal

cacophony is, . . . not a sign of weakness but of

strength. We cannot lose sight of the fact that, in

what otherwise might seem a trifling and annoy-

ing instance of individual distasteful abuse of a

13

privilege, these fundamental societal values are

truly implicated. That is why “[{w]holly neutral

futilities . . . come under the protection of free

speech as fully as do Keats’ poems or Donne’s

sermons,” Winters v. New York, 333 U.S. 507,

528 (1948) (Frankfurter, J., dissenting), and why

“so long as the means are peaceful, the com-

munication need not meet standards of accep-

tability,” Organization for a Better Austin v.

Keefe, 402 U.S. 415 (1971).

See Terminiello v. Chicago, 337 U.S. 1, 4 (1949)

(holding that speech must be “protected against censorship

or punishment, unless shown likely to produce a clear and

present danger of a serious substantive evil that rises far

above public inconvenience, annoyance, or unrest); Plum-

mer v. City of Columbus, 414 U.S. 2, 3-4 (1973) (per

curiam) (overturning conviction for use of “a series of ab-

solutely vulgar, suggestive and abhorrent sexually-oriented

statements” directed at a female); Gooding v. Wilson, 405

U.S. 518 (1972); see also New York Times v. Sullivan, 376

U.S. 254 (1964), Garrison v. Louisiana, 379 U.S. 64 (1964)

and their progeny (holding that false statements not ut-

tered with actual malice could not be proscribed.)

Moreover, even if subsequent cases had not eroded

Beauharnais, the expression in this case is not of slight

value.? At issue in this case are truthful statements. It can-

not be argued that the value of truthful statements is

“slight” in the search for truth. See supra pp. 6-9. In pro-

7It is, of course, axiomatic that the value of the expression does not

depend on the motivation of the speaker. See Garrison 379 U.S. 64;

Cohen, 403 U.S. 15.

*In Beauharnais the Court did hoid that a qualified truth de-

fense was constitutionally permissible, but that holding is diluted

given that insufficient factual support was presented (or plausible) to

substantiate the defendant’s racist assertions. 343 U.S. at 266. The

14

scribing such statements, the Illinois statute proscribes

speech of far more important value than the epithets and

false statements that this Court has held constitutionally

unprotected in other contexts.

Finally, even if a narrowly drawn criminal libel statute

could be sustained on a breach of peace rationale, it is

clear that the Illinois Criminal Defamation Statute does

not approach the type of statute that the first amendment

requires. Even in the context of fighting words, where the

speech is of “slight” social value, the Court permits restric-

tions only when the words are so provocative that a reflex-

ive physical response against the speaker is likely. As part

of this requirement the Court requires face-to-face con-

frontation between the speaker and the pe~son defamed.

Without this proximity between speaker and addressee the

reaction time is delayed and the rationale for regulation

evaporates. Cohen, 403 U.S. 15; Gooding, 405 U.S. 518.

Indeed, these requirements are so stringent that the last

time the Supreme Court upheld a fighting words convic-

tion was in its 1941 decision in Chaplinsky v. New Hamp-

shire, 315 U.S. 568 (1942), the case that announced the

doctrine.

Outside the fighting words context, the Court is even

more reluctant to sustain a restriction on speech based on

a breach of peace rationale. It has not upheld such a pro-

secution since its 1951 decision in Feiner v. New York, 340

U.S. 315 (1951), and in that case the Court found the

defendant “undertook incitement to riot.” In cases since

Feiner, the Court has refused to uphold the restrictions on

speech even when the defendant was faced with hostile au-

diences and the threat to the peace was decidedly real. See

Court also suggested that the qualified truth defense was supported by

“a century and a half” of criminal libel prosecutions. In Garrison v.

Louisiana, the Court rejected this “century and one-half of

teachings.” 379 U.S. at 74.

15

Cox v. Louisiana, 379 U.S. 536 (1965); Edwards v. South

Carolina, 372 U.S. 229 (1963); Gregory v. Chicago, 394

U.S. 111 (1969).

The Illinois Criminal Defamation Statute is obviously

not limited to the extraordinary circumstances presented

in Chaplinsky or Feiner. Although the Illinois Supreme

Court attempted to construe the statute as prohibiting on-

ly those words which tend to provoke an “immediate”

breach cf peace, its conception of “immediate” does not

comport with decisions of this Court. The statute explicit-

ly prohibits any defamation that is communicated “by any

means to any person.” This language has not been con-

strued as requiring face-to-face confrontation, and indeed

had the Illinois Supreme Court attempted to construe the

statute in this manner it would have had to dismiss the in-

dictment of this case because no confrontation occurred.

Defendant’s speech was communicated only by letter and

by posted display of a leaflet.

The decisions of this Court, on the other hand, hold

that the absence of a requirement of confrontation is fatal.

Reflexive responses and riots obviously do not occur when

there is no face-to-face confrontation. See Gooding, 405

U.S. 518; Feiner, 340 U.S. 315. Moreover, the strict re-

quirements of confrontation are not met unless the words

are directed to the persons addressed, another requirement

obviously ignored by the challenged statute, which reaches

even the defamation of a dead person. Cf. Cohen v.

California, 403 U.S. 15. The statute is overbroad at best.

The extraordinary limitations on government efforts to

suppress speech on the ground that it may trigger a hostile

audience response are well justified. To permit suppres-

sion of expression because it may anger others and lead

them to react in a violent manner is fundamentally incom-

16

patible with the central premises of the first amendment.

See Stone, Content Regulation and the First Amendment,

25 Wm. & Mary L. Rev. 189 (1983). This “heckler’s veto”

invites intolerance and creates the risk that under the

rubric of protecting the peace the state will actually pro-

scribe speech because of its offensiveness and not because

of the possibility of violent retaliation. Street v. New

York, 394 U.S. 576, 592 (1969). This is exactly what has

occurred in this case. The defendant is being prosecuted

for the content of his words rather than any imminent

breach of peace. The statute as written, construed, and ap-

plied is unconstitutional.

CONCLUSION

For these reasons, this Court should note probable

jurisdiction of this appeal.

Dated: February 22, 1985

Respectfully submitted,

William P. Marshall

Marshall-Wythe School of Law

College of William and Mary

Williamsburg, Virginia 23185

Of Counsel: Jeffrey M. Shaman

DePaul University

College of Law

25 E. Jackson Blvd.

Chicago, Illinois 60604

Of Counsel: Geoffrey Stone

1111 EB. 60th Street

Chicago, Illinois 60637

iE:

FILED

APPENDIX A PO a sane

Illinois

Docket No. 59239— Agenda 11—May 1984.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant,

v. PAUL HEINRICH, Appellee.

JUSTICE MORAN delivered the opinion of the court:

Defendant, Paul Heinrich, was charged by information

in McLean County with two counts of criminal defama-

tion under the Criminal Code of 1961 (Ill. Rev. Stat. 1981,

ch. 38, par. 27—1). He moved to dismiss the information,

and after a hearing, the circuit court declared the criminal

defamation statute unconstitutional and dismissed the

charges. The court held the statute contravened the first

and fourteenth amendments to the United States Constitu-

tion. The State appeals directly to this court pursuant to

our Rule 603 (87 Ill. 2d R. 603).

This appeal posits three questions to be resolved: (1) Is

section 27 — 1 of the Criminal Code of 1961 overly broad?

(2) Is section 27—2 unconstitutional in that it does not

allow truth to be an absolute defense in a criminal defama-

tion prosecution? and (3) Can the alleged infirmity be

cured by severing section 27 —2?

In count I of the information, the State alleged that the

defendant, while acting with the intent to defame the com-

plainant, communicated to members of the general public

matters which tended to provoke a breach of the peace.

The defendant distributed this material by mailing and by

posting, in public view, a leaflet. More specifically, the

leaflet stated that the complainant was an unfit mother

due to her promiscuity, deviate sexual behavior, illicit

drug habit, and four pregnancies out of wedlock. The

leaflet further stated that the woman’s first pregnancy,

2a

which resulted in the birth of her daughter, was followed

by two clinical abortions and a miscarriage. A picture of

the complainant appeared in the upper right-hand corner

of the leaflet, with her name in large type underneath it.

The leaflet also named the complainant’s parents and gave

their address. The names of the complainant, both her

parents and her daughter were all emphasized in large type

wherever they appeared in the leaflet. This leaflet urged

concerned citizens to contact their local church groups or

the Iilinois Department of Children and Family Services in

order to help protect the complainant’s “bastard child”

from her mother’s “deviate moral behavior.”

In count II of the information the State alleged that

defendant, with the intent to defame, communicated to

the complainant’s mother, by letter, matter which tended to

provoke a breach of the peace. The letter described the

complainant as a whore, a ruined woman, and a girl who

had been excommunicated from the Catholic church for

murdering human life. The letter also venomously attack-

ed the complainant’s mother, calling her the “mother of a

whore” the “grandmother of a bastard,” and “white

trash.” A copy of the leaflet, described in count I, was

enclosed with the letter. The defendant signed the letter

and in closing stated:

“I hope to God you take me to court for

distributing the enclosed newsletter * * *

Better yet, come after me and you can rot in

jail for the rest of your miserable life.”

The State contends that section 27—1 of the criminal

defamation statute, under which this defendant was charg-

ed, is constitutional as it is designed to reach only those

words tending to cause a breach of the peace. The State

further argues that section 27—2 of the statute (Ill. Rev.

3a

Stat. 1981, ch. 58 par. 27—2), which provides for the

defense of truth when the alleged defamation is published

with good motives and for justifable ends, does not con-

flict with a defendant’s first amendment rights in the

discrete area of private defamation. Alternatively, if this

court finds section 27 —2 objectionable, the State suggests

that we sever only that portion and retain section 27—1.

The defendant maintains that the criminal defamation

statute is overly broad. He posits that a tendency to breach

the peace is a justification for regulating speech only when

the resultant breach of the peace is imminent. Since there

is no requirement of immediacy in section 27—1, the

defendant requests our affirmance of the trial court’s

dismissal. In the event that we do not find section 27—1

invalid, the defendant submits that section 27 —2 renders

the entire statute unconstitutional becaues it does not

allow truth to be an absolute defense in a criminal defama-

tion prosecution. According to the defendant, section

27 —2 is not severable.

The trial court did not make an explicit finding that

the statute was too broad, as defense counsel had urged.

Rather, it ruled the statute unconstitutional on the basis of

the qualified-truth defense contained in section 27 —2. The

court further found that the offending portion of the

statute could not be severed, thereby saving section 27 — 1.

The court reasoned that to do so would be tantamount to

redrafting the criminal defamation statute in accordance

with first amendment requirements. Although the trial

court ultimately rejected severance as a viable alternative

to striking the entire statute, the court’s reasoning implies

that section 27—1, itself, was not constitutionally overly

broad. We agree.

The historical justification for criminal libel has been its

4a

tendency to provoke a breach of the peace. (Garrison v.

Louisiana (1964), 379 U.S. 64, 67-68; 13 L. Ed. 2d 125,

129, 85 S. Ct. 209, 212; Beauharnais v. Illinois (1952), 343

U.S. 250, 254, 96 L. Ed. 919, 926, 72 S. Ct. 725, 729; Peo-

ple v. Spielman (1925), 318 Ill. 482, 489.) The legislation in

question incorporates this rationale as it provides:

“Sec. 27—1. Elements of the Offense.

(a) A person commits criminal defamation

when, with intent to defame another, living or

dead, he communicates by any means to any per-

son matter which tends to provoke a breach of

the peace.” (Emphasis added.) Ill. Rev. Stat.

1981, ch. 38, par. 27—1.

From the language of the statute itself, as well as the

committee comments which follow and explain the

statute, it is clear that the legislature intended section

27 —1 to apply only to those words having a direct tenden-

cy to cause acts of violence.

The committee comments to section 27 —1 state:

“The section specifically requires that the

defamatory matter tend to provoke a breach of

the peace. The utterance need not actually pro-

voke violence or criminal acts, but it is sufficient

if it tends to do so.*** The inclusion of this ele-

ment removes from the criminal area any defa-

matory conduct which does not tend to incite

crime even though that conduct may seriously in-

jure reputation.” (Ill. Ann. Stat., ch. 38, par.

27—1, Committee Comments, at 173 (Smith-

Hurd 1977).)

Further, the comments specifically characterize the type of

communication that is proscribed by section 27—1 as

“fighting words” and refers the reader to Beauharnais v.

Illinois (1952), 343 U.S. 250, 96 L. Ed. 919, 72 S. Ct. 725.

5a

In Beauharnais, the defendant was convicted under sec-

tion 224a of the Criminal Code of 1874 (Ill. Rev. Stat.

1949, ch. 38, par. 471) (repealed by act approved July 28,

1961). That statute, which immediately preceded the one

currently under review, criminalized the exhibition in any

public place of matter which portrayed, “depravity,

criminality, unchastity, or lack of virtue of a class of

citizens, of any race, color, creed or religion which *** ex-

pose[d] the citizens of any race, color, creed or religion to

contempt, derision, or obloquy or which [was] productive

of [a] breach of the peace or riots.” (Ill. Rev. Stat. 1949,

ch. 38, par. 471.) This court described the former statute

as a form of criminal libel law and found that “[a] mere

reading of the libelous publication in question *** refers

to Negroes as a class possessing various criminal tenden-

cies, unchastity, and degrading sexual inclinations, all of

which are ‘fighting words’ liable to cause violence and

disorder between the races.” People v. Beauharnais (1951),

408 Ill. 512, 517.

The United States Supreme Court affirmed the judg-

ment of this court in Beauharnais v. Illinois, stating:

“*There are certain well-defined and narrowly

limited classes of speech, the prevention and

punishment of which have never been thought to

raise any Constitutional problem. These include

the lewd and obscene, the profane, the libelous,

and the insulting or “fighting” words — those

which by their very utterance inflict injury or

tend to incite to an immediate breach of the

peace. ***’” (Emphasis added.) 343 U.S. 250,

255-56, 96 L. Ed. 919, 926-27, 72 S. Ct. 725,

730-31.

Although the court in Beauharnais stated that libelous

words were outside the protection of the first amendment,

6a

subsequent Supreme Court decisions evidence that the

guarantees of the first amendment do place some limita-

tion on a State’s power to proscribe defamation. (See New

York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L.

Ed. 2d 686, 84 S. Ct. 710 (civil); Garrison v. Louisiana

(1964), 379 U.S. 64, 13 L. Ed. 2d 125, 85 S. Ct. 209

(criminal); Gertz v. Welch (1974), 418 U.S. 323, 41 L. Ed.

2d 789, 94 S. Ct. 2997 (civil).) The extent of these limita-

tions will be discussed below. At this point, it suffices to

note that the reference to Beauharnais in the committee

comments to section 27—1 concerns the use “fighting

words” not “libelous” words. Although Beauharnais has

been criticized in regard to statements therein concerning

libel (see Collin v. Smith (7th Cir. 1978), 578 F.2d 1197,

1205; United States v. Handler (Md. 1974), 383 F. Supp.

1267, 1277; Tollett v. United Staes (8th Cir. 1973), 485

F.2d 1087, 1094 n.14; Anti-Defamation League of B’nai

B’rith v. Federal Communications Com. (D.C. Cir. 1968),

403 F.2d 169, 174 n.5), the court’s position on “fighting

words” appears to have retained validity. Cohen v.

California (1971), 403 U.S. 15, 20, 29 L. Ed. 2d 284, 291,

91 S. Ct. 1780, 1785-86. See generally Annot., Supreme

Court’s View As To The Protection Or Lack of Protec-

tion, Under the Federal Constitution, Of The Utterance of

“Fighting Words,” 39 L. Ed. 2d 925 (1974).

In discussing the protection afforded litte words,”

the Beauharnais court stated:

“«<« *** Tt has been well observed that such ut-

terances are no essential part of any exposition of .

ideas, and are of such slight social value as a step

to truth that any benefit that may be derived

from them is clearly outweighed by the social in-

terest in order and morality. “Resort to epithets

or personal abuse is not in any proper sense com- |

7a

munication of information or opinion safeguard-

ed by the Constitution, and its punishment as a

criminal act would raise no question under that

instrument.” [Citation.]’” (Emphasis added.)

Beauharnais v. Illinois (1952), 343 U.S. 250,

256-57, 96 L. Ed. 919, 927, 72 S. Ct. 725, 731.

The reference to Beauharnais in the committee com-

ments, then, makes plain the legislative intent that section

27—1 applies only to “fighting words.” Such “fighting”

words are those personally abusive epithets which, when

addressed to an ordinary citizen, as a matter of common

knowledge, are inherently likely to provoke violent reac-

tion. (Cohen v. California (1971), 403 U.S. 15, 20, 29 L.

Ed. 2d 284, 291, 91 S. Ct. 1780, 1785-86.) Under this con-

struction, the statute in question is not overly broad, as it

applies only to those words which by their very utterance

tend to incite an immediate breach of the peace. (Chap-

linksy v. New Hampshire (1942), 315 U.S. 568, 571-72, 86

L. Ed. 1031, 1035, 62 S. Ct. 766, 769; Cantwell v. Connec-

ticut (1940), 310 U.S. 296, 309-10, 84 L. Ed. 1213,

1220-21, 60 S. Ct. 900, 905-06.) We turn, therefore, to the

second question presented.

Section 27—2 of the Criminal Code of 1961 provides:

“In all prosecutions for criminal defamation, the truth,

when communicated with good motives, and for justifi-

able ends, shall be an affirmative defense.” (Ill. Rev. Stat.

1981, ch. 38, par. 27 —2.) The existence of section 27 —2 in

the Criminal Code is mandated by the requirements of ar-

ticle I, section 4, of the Illinois Constitution. The Constitu-

tion requires that “fiJn trials for libel, both civil and

criminal, the truth, when published with good motives and

for justfiable ends, shall be a sufficient defense.” (Ill. Con-

st. 1970, art. I, sec. 4 (the same provision was contained in

article II, section 4, of the 1870 Illinois Constitution).) As

8a

a result, these provisions constitute an affirmative defense

wherein the defendant bears the burden of proving not on-

ly the truth of the defamatory statement, but also that it

was uttered with good motives and for a justifiable end.

(People v. Taylor (1917), 279 Ill. 481, 482; People v. Fuller

(1909), 238 Ill. 116, 133; City of Chicago v. Lambert

(1964), 47 Ill. App. 2d 151, 163.) The defendant contends

that conditioning the defense of truth on the presence of

these additional requirements is inconsistent with the

holdings of New York Times Co. v. Sullivan (1964), 376

U.S 254, 11 L. Ed. 2d 686, 84S. Ct. 710, and subsequent

Supreme Court cases. As noted abuve, the trial court

agreed with the defendant and declared the entire criminal

defamation statute (Ill. Rev. Stat. 1981, ch. 38, par. 27—1

et seq.) unconstitutional on that basis. For the reasons that

follow, we believe the trial court erred.

In New York Times, the court required a showing of

“actual malice” in a civil defamation action where the

defamatory statement concerned a public official and

related to his official conduct. Actual malice was defined,

therein, as knowledge of falsity or reckless disregard of

truth or falsity. (New York Times Co. v. Sullivan (1964),

376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 706, 84S. Ct. 710,

726.) Under the Times standard, the burden is on the

“public official” plaintiff to plead and prove either know-

ing falsity or reckless disregard for the truth. Consequent-

ly, where the Times standard applies, the inconsistent

burden of proving truth, good motives and justifiable ends

may not be placed upon the defendant. See Farnsworth v.

Tribune Co. (1969), 43 Ill. 2d 286, 290.

The holding of New York Times was extended to the

area of criminal defamation in Garrison v. Louisiana

(1964), 379 U.S. 64, 13 L. Ed. 2d 125, 85 S. Ct. 209. In

9a

Garrison, the court held that, despite the differing history

and purpose of criminal libel, the New York Times rule

applied to criminal defamation as well as civil and, thus,

limited a State’s power to impose criminal sanctions for

criticism of a public official. As the court stated:

“Where criticism of public officials is concern-

ed, we see no merit in the argument that criminal

libel statutes serve interests distinct from those

secured by civil libel laws, and therefore should

not be subject to the same limitations.” Garrison

v. Louisiana (1964), 379 U.S. 64, 67, 13 L. Ed.

2d 125, 129, 85 S. Ct. 209, 212.

Applying the New York Times rule, the court in Gar-

rison struck down a Louisiana statute which, like the

statute presently under review, conditioned the defense of

truth on the presence of good motives and justifiable ends.

After discussing the importance of open debate, where the

conduct of a public official is concerned, the court an-

nounced:

“Truth may not be the subject of either civil or

criminal sanctions where discussion of public af-

fairs is concerned.” (Emphasis added.) Garrison

v. Louisiana (1964), 379 U.S. 64, 74, 13 L. Ed.

2d 125, 133, 85 S. Ct. 209, 216.

In extending the New York Times rule to criminal

defamation, the court expressly reserved judgment’ on

whether the defense of truth could be limited by the addi-

tional requirements of good motives and justifiable ends

where the defamation was one in which the public had no

interest. (Garrison v. Louisiana (1964), 379 U.S. 64, 72, 13

L. Ed. 2d 125, 131, 85 S. Ct. 209, 214-15.) The court

specifically stated:

10a

“We recognize that different interests may be in-

volved where purely private libels, totally

unrelated to public affairs, are concerned;

therefore, nothing we say today is to be taken as

intimating any views as to the impact of the con-

Stitutional guarantees in the discrete area of

purely private libels.” Garrison v. Louisiana

(1964), 379 U.S. 64, 72 n.8, 13 L. Ed. 2d 125, 131

n.8, 85 Ss. Ct. 209, 215 n.8.

The court subsequently addressed the constitutional

limitations placed on private defamation actions in Gertz

v. Welch (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94S. Ct.

2997. In Gertz, the court held that so long as the States do

not impose liability without fault, they may define for

themselves the appropriate standard of liability for

defamatory falsehoods injurious to a private individual.

(418 U.S. 323, 347, 41 L. Ed. 2d 789, 809, 94S. Ct. 2997,

3010.) In so holding the court noted that private in-

dividuals are more vulnerable to reputational injury than

public officials or public figures and, therefore, found

that the State’s interest in protecting them was correspon-

dingly greater. (418 U.S. 323, 344, 41 L. Ed. 2d 789, 808,

94 S. Ct. 2997, 3009.) Thus, under Gertz, the States were

free to select their own standard of liability and were not

limited by the strict New York Times standard of “know-

ing falsity” or “reckless disregard of truth or falsity,” at

least as far as compensatory damages in civil actions were

concerned. See Troman v. Wood (1975), 62 Ill. 2d 184.

However, where the private plaintiff in a civil defama-

tion action seeks punitive damages, Gertz requires a show-

ing of knowing falsity or reckless disregard for the truth.

(Gertz v. Welch (1974), 418 U.S. 323, 349, 41 L. Ed. 2d

789, 810, 94 S. Ct. 2997, 3011.) Punitive damages were

defined in Gertz as “private fines levied by civil juries to

punish reprehensible conduct and to deter its future occur-

rence.” 418 U.S. 323, 350, 41 L. Ed. 2d 789, 811, 94S. Ct.

2997, 3012.

The defendant suggests that punitive damages are the

civil counterpart to criminal sanctions. Since an award of

punitive damages in a civil action is conditioned on the

private plaintiff satisfying the rigid New York Times stan-

dard, the defendant contends that criminal sanctions for

private defamation cannot be imposed on less. Further,

the defendant argues that truth must be an absolute

defense in a criminal defamation prosecution concerning a

private citizen, because Gertz explicitly conditions the im-

position of such liability on “falsehood.” 418 U.S. 323,

347, 41 L. Ed. 2d 789, 809, 94S. Ct. 2997, 3010.

However, the Supreme Court has never gone so far as to

require that truth be an absolute defense in a private

defamation action. The court made this very clear in Cox

Broadcasting Corp. v. Cohn (1975), 420 U.S. 469, 43 L.

Ed. 2d 328, 95 S. Ct. 1029. In Cox, the court acknowledg-

ed that it had “carefully left open the question whether the

First and Fourteenth Amendments require that truth be

recognized as a defense in a defamation action brought by

a private person as distinguished from a public official or

public figure.” (420 U.S. 469, 490, 43 L. Ed. 2d 328, 347,

$5 S. Ct. 1029, 1044.) The fact that the above quotation is

extracted from an opinion rendered after Gertz persuades

us that the defendant has overstated the Gertz holding.

Further, the trial court found the statute unconstitu-

tional, stating that this “inescapable conclusion is borne

out by the decisions of every State court having occasion

to consider the constitutionality of a similar provision.”

Yet, the cases relied upon by the trial court concerned

criminal defamation prosecutions regarding either public

a

2a

officials, public figures, or matters of public interest.

(Weston v. State (1975), 258 Ark. 707, 528 S.W.2d 412

(public official); Eberle v. Municipal Court (1976), 55 Cal.

App. 3d 423, 127 Cal. Rptr. 594 (public figure); Comn-

monwealth v. Armao (1972), 446 Pa. 325, 286 A.2d 626

(public interest); Gottschalk v. State (Alaska 1978), 575

P.2d 289 (public official). As such, those cases involved a

straightforward application of Garrison.

The case at bar presents a different question, as there is

no suggestion that the complainant herein is either a public

official or public figure. Since the guarantees of the first

and fourteenth amendments have never required that truth

be an absolute defense in a prosecution for criminal defa-

mation of a private person, we find no constitutional infir-

mity in the application of section 27 —2 to the case at bar.

Consequently, we need not reach the issue of severability

which was raised by the State.

For the reasons given, the judgment of the circuit court

is reversed and the cause is remanded.

Reversed and remanded.

13a

APPENDIX B

STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE ELEVENTH

JUDICIAL CIRCUIT

COUNTY OF McLEAN

People of the State of Illinois ——+)

)

VS. ) Case No. 83 CM 705

)

)

Paul A. Heinrich

MEMORANDUM OPINION AND ORDER

This cause having come on to be heard on October 7,

1983, on the Motion of defendant to Dismiss the Informa-

tions, defendant appearing by counsel, John Tielsch, and

the People appearing by Assistant State’s Attorney Todd

Greenberg, the Court, having heard the arguments of

counsel and considered the authorities submitted in sup-

port thereof, being now fully advised in the premises,

finds as follows:

Defendant’s motion challenges the constitutionality of

the Criminal Defamation Statute, Ill. Rev. Stat. ch. 38,

section 27:

“27-1. Elements of the Offense. (a) A person

commits criminal defamation when, with intent

to defame another, living or dead, he commu-

nicates by any means to any person matter which

tends to provoke a breach of the peace.

(b) Sentence.

Criminal defamation is a Class A misde-

meanor. Amended by P.A. 77-2638, section 1,

eff. Jan. 1, 1973.

14a

27-2. Justification. In all prosecutions for

criminal defamation, the truth, when communi-

cated with good motives, and for justifiable

ends, shall be an affirmative defense.”

The law is a reflection of the so-called “qualified truth”

defense embodied in the Illinois Constitution*:

“.. .3 and in all trials for libel, both civil and

criminal, the truth, when published with good

motives and for justifiable ends, shall be a suffi-

cient defense.” Ill. Const., 1970, Art. I, Sec. 4

Our Supreme Court has found this provision of the II-

linois Constitution federaliy unconstitutional “to the ex-

tent that it would require a defendant who had published

statements about public affairs or of public interest and

concern to prove that they were true, and published with

good motives and justifiable ends.” Farnsworth V. Trib-

une Company, 43 Ill. 2d 286 at 292 (1969).

The question posed by defendant’s motion at bar is of

first impression here only insofar as it would extend the

doctrine of Farnsworth, applying the standards enun-

ciated in New York Times V. Sullivan, 376 U.S. 254

(1964), and Ga, rison V. Louisiana, 379 U.S. 64 (1964), to

purely “private libels” between private individuals.

The holding of the United States Supreme Court in

Gertz V. Welch, 418 U.S. 323 (1974), finds First Amend-

ment intrusion by State law which would impose liability

for libel without fault, i.e. without proof of an inten-

tional, knowing or reckless disregard for the truth. By the

*The 1970 Constitutional Convention opted to carry over the perti-

nent language almost verbatim from the constitution of 1870, primari-

ly because of the Convention Committee’s desire to make no change in

existing rules governing circumstances in which truth is a defense. See:

Committee Proposals of the Constitutional Convention of 1970.

15a

logic of the Gertz decision, the cornerstone of culpability

for libel rests on the declarant’s knowledge of the falsity of

his assertions; and a statute which purports to impose

criminal responsibility for libel of a private victim is

constitutionally proscribed unless it is based on the de-

clarant’s lack of a reasonable basis to believe his decla-

ration is true.

The inescapable conclusion is borne out by the decision

of every State Court having occasion to consider the con-

stitutionality of a similar provision. Weston V. State, 528

S.W. 2d 412 (Ark., 1975); Eberle V. Municipal Court, Los

Angeles Judicial Dist., 55 Cal. App. 3d 423 (1976), Com-

monwealth V. Armao, 286 A. 2d 626 (Pa, 1972); Gotts-

chalk V. State, 575 P. 2d 289 (Alaska, 1978)

The State has urged in the case at bar that the offending

Statute is severable and that the constitutionality of III.

Rev. Stat. Ch. 38, Sec. 27-1 may be saved. While mindful

of the general rule that a statute must be saved if it is

susceptible of a constitutional construction, the State’s

position here must be rejected.

“The Commonwealth urges us to in effect re-

draft the criminal libel statutes in accordance

with First Amendment requirements. To accede

to this request would be to undertake a wholly in-

appropriate judicial activity amounting to judi-

cial legislation.’ ” Weston V. State, supra at 416

citing Commonwealth V. Armao, supra.

WHEREFORE, IT IS HEREBY ORDERED, AD-

JUDGED AND DECREED that Ill. Rev. Stat. ch. 38, sec.

27 is declared to be unconstitutional in contravention of

the First and Fourteenth Amendments to the Constitution

of the United States; and

16a

IT IS FURTHER ORDERED that defendant’s said Mo-

tion to Dismiss should be and is allowed.

Dated this 14 day of Oct., 1983.

ENTER: /s/ William DeCardy

-Judge-

FILED

Oct 14 1983

Circuit Court

McLean County

17a

APPENDIX C

FORM NO. 8

State of Illinois

Supreme Court

At a Term of the Supreme Court, begun and heid in Spring-

field, on Monday, the tenth day of September, 1984.

Present: Howard C. Ryan, Chief Justice

Justice Robert C. Underwood Justice Daniel P. Ward

Justice Joseph H. Goldenhersh Justice William G. Clark

Justice Thomas J. Moran Justice Seymour Simon

On the 20th day of September, 1984, the Supreme Court

entered the following judgment:

People State of Illinois,

Appellant Appeal from

Circuit Court

No. 59239 v. McLean County

83 CM 705

Paul Heinrich,

Appellee

The order on appeal is REVERSED, and this cause is RE-

MANDED to the Circuit Court McLean County for fur-

ther proceedings consistent with the opinion of this Court,

a copy of which is attached hereto.

As Clerk of the Supreme Court of the State of Illinois and

keeper of the records, files and Seal thereof, I certify that

the foregoing is a true copy of the final order entered in

this case.

IN WITNESS WHEREOF, I have hereunto

subscribed my name and affixed the Seal of

said Court this 7th day of December, 1984.

FILED

DEC 10 1984 /s/ Juleann Hornyak

CIRCUIT CLERK Clerk

McLEAN COUNTY

Supreme Court of the State of Illinois.

18a

APPENDIX D

No. 59239

IN THE

SUPREME COURT OF ILLINOIS

Honorable William DeCardy,

Judge Presiding.

PEOPLE OF THE STATE OF ) Direct Appeal from the Appellate

ILLINOIS ) Court, Fourth District

Plaintiff-Appellant, )

)

vs. ) Original Appeal from the Circuit

) Court, Eleventh Judicial Circuit,

PAUL HEINRICH, ) McLean County, Illinois

) No. 83-CM-705

Defendant-Appellee, )

)

)

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given that Paul Heinrich, the above

named defendant-appellee, hereby appeals to the Supreme

Court of the United States from the final judgment filed

and entered on December 7, 1984 reversing and remanding

the judgment of the Circuit Court, Eleventh Judicial Cir-

cuit filed on October 14, 1983.

This appeal is taken pursuant to 28 U.S.C. §1257.

Respectfully submitted,

William P. Marhsall

Marshall-Wythe School of Law

College of William and Mary

Williamsburg, VA 23185

Jeffrey M. Shaman

DePaul University College of Law

FILED 25 East Jackson Bivd.

February 5, 1985 Chicago, IL 60604

19a

APPENDIX E1

STATE OFILLINOIS ) IN THE CIRCUIT COURT OF THE

COUNTY OF McLEAN ) ELEVENTH JUDICIAL CIRCUIT

THE PEOPLE OF THE STATE OF ILLINOIS)

vs ) No. 83-CM-705

)

Paul A. Heinrich ) —

DEFENDANT )

11 1983

702 W. Mulberry , a

Bloomington, II. 61701 ) McLean County

INFORMATION

COUNT I. The STATE’S ATTORNEY of McLean Coun-

ty, Illinois, in the name and by the authority of the People

of the State of Illinois charges that Paul A. Heinrich on or

about the 20th day of February, 1983, at Bloomington and

Normal in the County of McLean, State of Illinois, com-

mitteed the offense of Criminal Defamation in that he

knowingly while acting with the intent to defame another,

namely Melissa Sue Estes, communicated to members of

the general public matter which tends to provoke a breach

of the peace, by distributing by mail and by posting in the

public view a leaflet a copy of which is attached hereto and

made a part hereof. Said leaflet was printed in McLean

County, Illinois in violation of Section 27-1, Chapter 38,

Illinois Revised Statutes (1981). A Class A misdemeanor.

/s/ Todd Greenberg

State’s Attorney

The undersigned, on oath, states that the facts set forth in

the foregoing information are true in substance and matter

of fact, to the best of his knowledge, information and

belief.

/s/ Todd Greenberg

DESCRIPTION Complainant

Subscribed & sworn to before me

D.O.B. SEX RACE

this 11th day of May, 1983.

8/11/56 M Ww /s/

Notary Public

Information filed this 11th day of May, 1983. (Warrant)

(Notice) issued to

People request bond be set at

Orginating Agency

(10% rule).

white:Clerk yellow: Defendant pink:State’s Attorney goldenrod: Agency

CONCERNED CITIZEN #2432338533:50:2

A matter of utmost im- oe See

portance has come to my at- : Ses

tention. MELISSA SUE 23 EDF x

ESTES, daughter of DEL- 2 Sy a} 3 5

MAIN and BETTY ESTES ? poe Som eo 2E

of Rural Route 1 Emington, #fas53 "97 Sas:

Illinois, has proven herself s, 2s" i» Sao

unwilling and unable to ac- MES + ai

cept the responsibility too = Se a : Sh

the care and moral develop- pati. nat ae Pa ar

ment of her bastard child og “ anaes

known as ELIZIBETH . “~/ SES

FRANCIS MARIE ESTES. MELISSA SUE ESTES

My opinion is based on the following facts:

LISA ESTES has been known to fornicate with a variety of

men.

LISA ESTES is known to have conceived FOUR

CHILDREN OUT OF WEDLOCK.

Her first pregnancy, which occured when Lisa was just

fourteen years old, was fathered by TOM and it resulted in

the birth of the child called LIZZIE. Her second and third

pregnancys were fathered by CHUCK and were terminated

by clinical abortions.

Her fourth pregnancy was fathered by PAUL and was ter-

*«..ated by miscarriage.

LISA ESTES has been known to have sexual relations with

men on the first date.

LISA ESTES has been known to practice oral sex and

other deviate sexual acts.

LISA ESTES has been known to use illicit drugs.

BEST AVAILABLE COPY

22a

Concerned citizen, I ask you: Is Lisa’s behavior normal?

Will Lisa’s immoral conduct adversely affect the moral

and spiritual development of her seven year old child?

Since Delmain and Betty Estes failed to raise their own

daughter to be morally sound, should they be allowed to

raise Lizzie in the same way?

Concerned citizen, I urge you to investigate this matter

on your own and come to your own conclusions. It is your

duty to protect America’s youths because they cannot pro-

tect themselves.

The fate of LIZZIE ESTES is in your hands and I know

you will do everything in your power to prevent the moral

and spiritual destruction of such an innocent child.

LIZZIE ESTES must not be forced to pay for her

mother’s deviate moral behavior!

Please, help her! Contact your local church group or the

Illinois Department of Children and Family Services at

1-800-252-2873 before it is too late! |

THANK YOU

FILED

MAY 11 1983

CIRCUIT CLERK

McLEAN COUNTY

23a

APPENDIX E2

STATE OFILLINOIS ) IN THE CIRCUIT COURT OF THE

COUNTY OF McLEAN ) ELEVENTH JUDICIAL CIRCUIT

THE PEOPLE OF THE STATE OF ILLINOIS _ )

vs ‘ No. 83-CM-705

Paul A. Heinrich on

702 W. Mulberry ) May 1183

Bloomington, Il. 61701 ) McLean County

INFORMATION

COUNT II. The STATE’S ATTORNEY of McLean Coun-

ty, Illinois, in the name and by the authority of the People

of the State of Illinois charges that Paul A. Heinrich on or

about the 19th day of February, 1983, at Bloomington in

the County of McLean, State of Illinois, committed the of-

fense of Criminal Defamation in that he knowingly while

acting with the intent to defame another, namely Melissa

Sue Estes, communicated to Betty Estes matter which tends

to provoke a breach of the peace, namely, a letter, a copy

of which is attached hereto and made a part hereof. The let-

ter was mailed to Betty Estes and was typed in McLean

County, Illinois in violation of Section 27-1, Chapter 38,

Illinois Revised Statutes (1981). A Class A. misdemeanor.

/s/ Todd Greeberg

State’s Attorney

The undersigned, on oath, states chat the facts set forth in

the foregoing information are true in substance and matter

of fact, to the best of his knowledge, information and

belief.

24a

/s/ Todd Greenberg

DESCRIPTION Complainant

Subscribed & sworn to before me

DOB. GK BA this 11th day of May, 1983.

8/11/56 M Ww /s/

Notary Public

Information filed this 11th day of May, 1983. (Warrant)

(Notice) issued to

People request bond be set at —_ (10% rule).

Orginating Agency

white:Clerk yellow: Defendant pink :State’s Attorney goldenrod: Agency

Betty:

Think about what you said to me about being pretentious.

You’re the mother of a whore and the grandmother of a

bastard. You’re the tit-less wonder who wears low-cut

dresses to show off the breasts you pretend to have.

You’re the white trash who lives in a filthy house fit for

pigs.

You’re the mother of a girl who has been ex-communi-

cated from the Catholic Church for murdering human life.

You’re the woman who taught Lisa evrything (sic) she

knows about morality.

You’re the woman who will probably raise Lizzie to be a

whore just like her mother.

As long as I live I'll do everything I can to prevent you

from ruining Lizzie like you ruined Lisa.

I hope to God you take me to court for distributing the

enclosed newsletter so I can legally prove to the whole

world that you and your family are unfit to raise vermin

let alone innocent children.

Better yet, come after me and you can rot in jail for the

rest of your miserable life. Why not? You’re going to rot

in Hell anyway so you might as well get used to it now!

FILED /s/ Paul Heinrich