# Jurisdictional Statement — Heinrich v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Jurisdictional Statement
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 1011

## Text

84-1346)

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} 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

es vce ueuedeenavdeeusnccecesac +

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0147%3A1. Public record. Not legal advice.