# Petition for Writ of Certiorari — Bailey v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 1057

## Text

BO=1009 ) [sar Sinare marca]

FILED
BEC 18 1984

No

CLIERK

——— ee

ee A OL OL LLCO LOD, ~

In The

Supreme Court of the United States

October Term, 1984

°

JON C. BAILEY, RANDY E. MeCASLIN,
JOHN R. FINDLAY, and RODNEY LEIFHEIT,

Petitioners,
vs.

STATE OF ILLINOIS,
Respondent.

fy
Ww

PETITION FOR A WRIT OF CERTIORARI
TO THE APPELLATE COURT OF ILLINOIS,
SECOND DISTRICT

°

J. Steven Becketr

Reno, O’Byrne & Keptey, P.C.
501 West Church Street
P.O. Box 693
Champaign, IL 61820
(217) 352-7661

Attorney for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

ALEXANDER L. STEVAS,

QUESTIONS PRESENTED

Whether, under current First Amendment standards,
charging instruments in criminal prosecutions under the
illinois Obscenity Statute must specify the essential com-
ponents of Illinois’ definition of obscenity because the
statute, on its face and as construed, is confusing and
ambiguous.

il
TABLE OF CONTENTS

Sussect InpEex

Pages
Questions Presented sisianpednnsssititestasibadiacated i
Table of Contents Eris olOtereds Mistletoe Sexy otra rs wn mer =
CR TR hoo eee eee 2
IOI, stectnwesiissnistitinsaniaktninctadaldinicieieidieuae ata manana 2
Constitutional and Statutory Provisions Involve .......... 2
IIE OE TD CIO ancien eomelaedione 3
Reasons for Granting the Writ 0.020 ecccceeeeeeeeeeeeeee 6
Conclusion cuisuiiadaipeaaeaalae g
APPENDIX INDEX
Opinion of the Second District Appeilate Court
fer the Dinte of TRG Wind App. 1
Order of Illinois Supreme Court denying leave
FE ane MMMM MERE i eet y Cl. im Fay App. 5
United States Constitution, First Amendment and
Wrowmrteomttn Armee anncssccsisincniktcnscnicmice reac App. 5
Illinois Obscenity Statute, Ch. 38, §11-20, Ill. Rev.
TINO, xssnstacnsetscneitatianeactaammaetanteaiimana ne App. 7
TABLE OF AUTHORITIES
CAsEs
Hamling v. United States, 418 U.S. 87 (1974) 2 .... 7

J-R Distributors, Inc. v. Eikenberry, 725 F.2d 482
(9th Cir. 1984), probable jurisdiction noted,
Evkenberry v. J-R Distributors, Inc., — U.S. —,

105 S.Ct. 76 (1984) oeeecvnevnmennnenenn aoe

Memoirs v. Massachusetts, 383 U.S. 415 (1966) 0. 4,8

lii

TABLE OF AUTHORITIES—Continued

Pages
Miller v. California, 413 U.S. 15 (1973) oe 4,6, 7,8
People v. Gould, 60 Tli.2d 159, 324 N.E.2d 412
Te aac cll casein ine 8
People v. Ridens, (Ridens 1), 51 Ill.2d 410, 282
N.E.2d 691 (197 2), vacated and remanded as
Ridens v. Illinois, 413 U.S. 912 (1973) oo 4,8
People v. Ridens, (Ridens 11), 59 Tll.2d 362, 321
N.E.2d 264 (1974) 3, 4,8
People v. Stromblad, 74 11l.2d 35, 383 N.E.2d 969
NET BEC ev AR NM hoe OS Ee 4
People v. Vavyrs, 47 TlLApp.2d 258, 198 N.E.2d
coe Seeee? oo... Area tN Ege Ae a ne 5
People v. Ward, 63 I1l.2d 437, 349 N.E.2d 47 (1976)... = 8
Roth v. United States, 354 U.S. 476 (1957) an. 4,8
Ward v. Illimots, 431 U.S. 767 (1977) nnn cceeeecesncencesneeceeeneee 4
STATUTES AND CONSTITUTIONAL PROVISIONS
Illinois Obscenity Statute, Ch. 38, §11-20, Illinois
Revised Statutes 20000. a wns Foe
United States Code, Title 18, §1461 00 7
United States Code, Title 28, §1257(3) oo ccccccsneee 2
United States Constitution, First Amendment
2, 4, 5, 6, 7, 8, 9
United States Constitution, Fourteenth Amend-
ment a ee 2, 6,9

No.

In The

Supreme Court of the United States

October Term, 1984

>)

JON C. BAILEY, RANDY E. MeCASLIN,
JOHN R. FINDLAY, and RODNEY LEIFHEIT,

Petitioners,
VS.

STATE OF ILLINOIS,
Respondent.

co)

PETITION FOR A WRIT OF CERTIORARI
TO THE APPELLATE COURT OF ILLINOIS,
SECOND DISTRICT

>)

Petitioners respectfully pray that a writ of certiorari
issue to review the judgment and opinion of the Appellate
Court of the State of Illinois, Second District, entered on
June 27, 1984.

o

OPINION BELOW

The opinion of the Appellate Court of the State of
Illinois, Second District, is reported at 125 Ill.App.3d 346,
465 N.E.2d 979 (1984). A copy of the opinion is included
in the Appendix as Exhibit A.

>)

JURISDICTION

Jurisdiction in this cause is premised upon 28 U.S.C.
§1257(3) for review by certiorari of the decision of the
Illinois Appellate Court, Second District. A written opin-
ion was issued by that court on June 27, 1984. Petitioners
sought leave to appeal from the Illinois Supreme Court in
a timely fashion. On October 2, 1984, the Illinois Supreme
Court denied their petition for leave to appeal. A copy
of the order denying leave to appeal is included in the
Appendix as Exhibit B.

=)

CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED

Relevant portions of the First and Fourteenth Amend-
ments to the Constitution oi the United States, and the
Illinois Obscenity Statute, Ch. 38, §11-20, Ill.Rev.Stat., are
set forth in the Appendix as Exhibit C.

°

STATEMENT OF THE CASE

Petitioners, all employees of the Denmark Bookstore,
Aurora, Illinois, were each charged with violating the
Illincis Obscenity Statute, Ch. 38, §11-20, Ill.Rev.Stat. The
charging instrument in each case alleged that the peti-
tioner sold obscene material to an individual, which ma-
terial:

[W ]hen considered as a whole, has as its predominate
appeal to prurient interest, that is, a shameful or mor-
bid interest in nudity, sex or excretion and which goes
substantially beyond customary limits of candor in
description or representation of such matters and has
no serious, literary, artistic, political or educational
value.

The petitioners filed motions to dismiss, alleging, inter
alia, that the complaints were insufficient for their failure
to include the statement that the work was “utterly with-
out redeeming social value” as a definitional element of
the term obscenity. The Kendall County trial court granted
the petitioners’ motions to dismiss, basing its holding on
People v. Ridens, 59 Ill.2d 362, 321 N.E.2d 264 (1974). The
respondent argued that it was not required to ailege the
definitional elements set forth in Ridens; rather, that it
is only required to allege a complaint in the statutory lan-
guage. Respondent further argued that any definitional
language contained in the complaints was mere surplusage
which had no affect on the validity of the complaints.

The Illinois Obscenity Statute, Ch. 38, §11-20, Ill.Rev.
Stat., was enacted in 1961 and has not been substantively
amended by the legislature since that time. The statutory
definition of obscenity is:

A thing is obscene if, considered as a whole, its pre-
dominate appeal is to prurient interest, that is, a
shameful or morbid interest in nudity, sex or excre-
tion, and if it goes substantially beyond customary
limits of « ndor in description or representation of
such matters. A thing is obscene even though the ob-
scenity is latent, as in the case of undeveloped photo-
praghs.

Ch. 38, §11-20(b), Tl. Rev.Stat.

The statute has been construed to follow the standards for
obscenity set forth by this Court in Memoirs v. Massachu-
setts, 383 U.S. 415 (1966) and Roth v. United States, 354
U.S. 476 (1957). People v. Ridens, (Ridens I), 51 Ill.2d
410, 282 N.E.2d 691 (1972), vacated and remanded as
Ridens v. Illinois, 413 U.S. 912 (1973). In 1974, the stat-
ute was construed to embrace the standards set forth by
this Court in Milier v. California, 413 U.S. 15 (1973), al-
though the third definitional element “utterly without re-
deeming social value” was retained. People v. Ridens,
Ridens (II), 59 Tll.2d 362, 321 N.E.2d 264 (1974). The
extent of the adoption of the Miller standards peaked when,
in 1977, this Court recognized that the Illinois Supreme
Court had meant to engraft the Miller examples of “pat-
ently offensive sexual conduct” under part (b) of the
tripartite test for obscenity, in Ward v. Illinois, 4381 U.S.
767 (1977). The Illinois Supreme Court has continued
to adhere to this judicial construction of the Illinois Ob-
scenity Statute. People v. Stromblad, 74 Ill.2d 35, 383
N.E.2d 969 (1978). With this history, the trial court in
the instant case dismissed the complaints, recognizing First
Amendment notice requirements for obscenity cases.

The respondent filed notices of appeal from the orders
dismissing the complaints in each case to the Appellate
Court of the State of Illinois, Second District, where the
eases were consolidated for appeal. In the Second District
Appellate Court petitioners argued that the trial court’s
ruling was proper, in that the complaints were legally de-
fective for asserting inapplicable elements of the offense
of obscenity under Illinois law, and further, that the Illi-
nois Obscenity Statute failed to give proper notice to puta-
tive defendants.

The Second District Appellate Court reversed the trial
court’s orders granting the petitioners’ motions to dismiss,
holding that it was unnecessary to set forth the elements
of the definition of obscenity, relying on People v. Vavrys,
47 Dl. App.2d 258, 198 N.E.2d 187 (1964), and further, that
such definitional statement would constitute mere surplus-
age. The court also rejected petitioners’ First Amendment
claims that the statute failed to give proper notice to de-
fendants, which therefore required that the terms of the
definition of obscenity be set forth in the charging instru-
ment. Basing its reasoning on the Ridens decision, the
court concluded it was the statute itself and not the charg-
ing instrument which must give advance warning to a de-
fendant of the meaning of obscenity.

Petitioners sought timely review by the Illinois Su-

preme Court, filing a petition for leave to appeal. Peti-
tioners again asserted that the Illinois Obscenity Statute
fails to give proper notice to defendants, and that because
the essential elements for the charge of obscenity do not
exist facially in the Illinois Obscenity Statute, the elements
must be asserted in the charging instruments to adhere
to First Amendment standards. Their petition for leave

6

to appeal was denied on October 2, 1984. The mandate of
the Illinois Supreme Court has been stayed pending review
by this Court.

In the trial court, the appellate court, and by petition
for leave to appeal in the [Illinois Supreme Court, the peti-
tioners have asserted their constitutional claims under
the First and Fourteenth Amendments to the Constitu-
tion of the United States. The Second District Appellate
Court rejected those claims, and the Illinois Supreme Court
denied leave to appeal.

LY
Vv

REASONS FOR GRANTING THE WRIT

Under The Notice Requirements Of Miller v. California,
413 U.S. 15 (1973), A Criminal Complaint Charging A
Violation Of The Illinois Obscenity Statute Must Specify
The Tripartite Definition Of Obscenity And Designated
Sexual Conduct Of Alleged Obscene Works To Be Con-
stitutionally Sufficient.

This Court has recognized a constitutional responsi-
bility in criminal obscenity statutes to afford notice to a
bookseller that his conduct may run afoul of the law and
especially of the First Amendment. Such was the pur-
pose and effect of this Court’s pronouncements in Miller
v. California, 413 U.S. 15 (1973), where the Court stated:

Under the holdings announced today, no one will be
subject to prosecution for the sale or exposure of ob-
scene materials unless these materials depict or de-
scribe patently offensive ‘hard core’ sexual conduct
specifically defined by the regulating state law, as
written or construed. We are satisfied that these spe-

7

cific prerequisites will provide fair notice to a dealer in
such materials that his public and commercial activi-
ties may bring prosecution.

413 U.S. at 27.

This fair notice concept is, thus, an essential component
of the First Amendment.

The issue presented by this case is simply stated and
yet is constitutionally significant. What must a charging
instrument contain to meet the Miller notice requirement?
This Court addressed the constitutional sufficiency of an
indictment in the federal context in Hamling v. United
States, 418 U.S. 87 (1974), under 18 U.S.C. $1461. In
Hamling, the Court stated the measuring test regard-
ing the sufficiency of the charging instrument:

It is generally suffi ient that an indictment set forth
the offense in the words of the statute itself, as long
as ‘those words of themselves fully, directly, and ex-
pressly, without any uncertainty or ambiguity, set
forth all the elements necessary to constitute the of-
fence intended to be punished.’ United States v.
Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882).

413 US. at 117.

In applying this test to the indictment in Hamling, the
Court concluded that there was no ambiguity within the
federal obscenity statute and that an indictment merely
alleging that material was obscene was constitutionally
sufficient. The present case, however, presents a distinct-
ly different situation, where the state statute is unconsti-
tutional on its face and the judicial saving constructions
that have been rendered upon it have resulted in a patch-
work quilt of borrowed First Amendment principles that
fail to guide a criminal defendant in the constitutional
sense.

The Illinois Obscenity Statute does not meet the Mil-
ler standards for obscenity on its face. Indeed, the pres-
ent standards for the legal definition of obscenity under
Illinois law are as follows:

(a) the average person, applying contemporary com-

munity standards, would find that the work, taken as
a whole, appeals to prurient interest;

(b) the work depicts or describes, in a patently of-
fensive way, sexual conduct specifically defined by
the applicable state law; and

(c) the material is utterly without redeeming social
value.

People v. Ridens (Ridens I), 51 Til.2d 410, 282 N.Ed.2d
691 (1972), vacated and remanded as Ridens v. Illi-
nois, 413 U.S. 912; People v. Ridens (Ridens II), 59
1L.2d 362, 321 N.E.2d 264 (1974); People v. Ward, 63
I11.2d 437, 349 N.E.2d 47 (1976), aff’d Ward v. Illinois,
431 U.S. 767 (1977); People v. Gould, 60 Til.2d 159,
324 N.E.2d 412 (1975).
A comparison of these essential components of Illinois
obscenity law, and the statutory definition of obscenity,
demonstrates an absolute ambiguity that cannot be re-
solved by the mere allegation that a work is obscene in a

criminal complaint.

This Court has set the constitutional trend for obscen-
ity litigation over the past three decades. In Roth v.
United States, 354 U.S. 476 (1957), Memoirs v. Massachu-
setts, 383 U.S. 415 (1966), and Miller v. California, 413
U.S. 15 (1973), principled efforts were made by the Court
to give clarity and guidance in a troubled and confusing
area of the law. Only recently the Court has again
granted review of a case that squarely puts in issue the
constitutional limits in the First Amendment context of a

@@iees,

9

state obscenity statute. J-R Distributors, Inc. v. Eiken-
berry, 725 F.2d 482 (9th Cir. 1984), probable jurisdiction
noted, Eikenberry v. J-R Distributors, Inc., — U.S. —, 105
S.Ct. 76 (1984). This case, too, would permit the Court to
provide necessary constitutional embellishment under the
First and Fourteenth Amendment.

The trial court here correctly recognized that criminal
complaints containing incorrect averments of the elements
of obscenity should not stand. Indeed, the trial court rec-
ognized the defendants’ rights to First Amendment notice
in these criminal cases. The proper tripartite allegations
for the test of obscenity are essential and, thus, this Court
should grant certiorari to emphasize such notice require-
ments.

CONCLUSION

Because of the significance of the First Amendment
interests at stake in this litigation, this Court should grant
certiorari to review and reverse the holding of the Ap-
pellate Court of the State of Illinois, Second District.

Respectfully submitted,

J. Steven Beckett

Reno, O’Byrne & Keptey, P.C.
501 West Church Street
P.O. Box 693
Champaign, Il. 61820
(217) 352-7661

Attorney for Petitioners
December, 1984

App. 1
APPENDIX
Exhibit A

Nos. 83-393, 83-394,
Cons.
83-395, 83-396.

*

IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellant,
v.

JON C. BAILEY, RANDY E. MeCASLIN,
JOHN R. FINDLAY & RODNEY LEIFHEIT,

Defendants-Appellees.

Appeal from the Cireuit Court for the
Sixteenth Judicial Circuit,
Kendall County, Illinois

Publ. In Full
Filed June 27, 1984

JUSTICE VAN DEUSEN delivered the opinion of
the court:

The defendants in these consolidated cases were
charged separately by complaint or amended complaint
with the offense of obscenity in violation of section 11-
20(a)(1) of the Criminal Code of 1961 (Ill.Rev.Stat. 1981,
ch. 38, par. 11-20(a)(1)). The trial court, relying upon
People v. Ridens (1974), 59 Ill.2d 362, cert. denied (1975),
421 U.S. 993, 44 L.Ed.2d 483, 95 S.Ct. 2000, found the com-
plaints to be insufficient because they did not include the

App. 2

third definitional element of tie offense of obscenity,
namely that the materials were ‘‘utterly without redeem-
ing social value.” The court dismissed the complaints
and the State has appealed. The critical issue on this ap-
peal is whether, in addition to setting forth the allegations
of conduct of the defendants which would establish the
elements of the offense of obscenity as set forth in section
11-20(a) of the Criminal Code of 1961, the charging in-
strument in an obscenity case must also set forth the
definitional elements of the term ‘‘obscenity” or “ob-
scene’’ as used in the Illinois obscenity statute. \

We agree with the State and find the case of People
v. Vavrys (1964), 47 Ill.App.2d 258, to be dispositive of
this issue. In Vavrys, the court addressed the same issue,
to wit; the sufficiency of an obscenity information which
alleged the commission of the offense solely in terms of
the elements of the offense as set forth in the statute
itself. The Vavrys court correctly found that it was not
necessary to set forth in the charging instrument the ele-
ments of the definition of obscenity. (47 Ill.App.2d 258,
261-62.) The addition of a statement in the charging in-
strument setting forth that the magazine or movie in
question, taken as a whole, appeals to prurient interests
in sex, that the material is patently offensive because it
affronts contemporary community standards relating to
the description or representation of sexual matters, and
that the material is utterly without redeeming social value
would be a legal conclusion of the prosecutor and consti-
tute mere surplusage. See 47 Ill.App.2d 258, 262.

The defendants contend that the [Illinois obscenity
statute on its face fails to give fair guidance to putative
defendants, and therefore Federal constitutional first

App. 3

amendment rights require the terms of the obscenity def-
inition to be correctly set forth in the charging instru-
ment in order to give defendants proper notice of the
nature of the charged offense. However, the very case
upon which the trial court relied in dismissing the com-
plaints refutes this argument. In People v. Ridens
(1974), 59 Ill.2d 362, cert. denied (1975) 421 U.S. 993, 44
L.Ed.2d 483, 95 S.Ct. 2000, the supreme court upheld the
constitutionality of our obscenity statute against charges
that it was vague and overbroad and, when measured
against the due process requirement that a criminal stat-
ute give a person of ordinary intelligence fair prior no-
tice that his contemplated conduct is forbidden, the court
further deemed our obscenity statute to be sufficiently
definite. (59 Ill.2d 362, 369-75; see also Ward v. Illinois
(1977), 431 U.S. 767, 52 L.Ed.2d 738, 97 S.Ct. 2085.)
Based upon the Ridens decision, we reason that it is the
obscenity statute itself, as judicially construed, and not
the charging instrument, which must advise the defend-
ant of the meaning of obscenity and thereby forewarn
him, in advance of his actions, whether or not his con-
templated conduct is proscribed.

The defendants also contend that the trial court was
correct is dismissing their complaints because the alle-
gations inacurrately set forth the definitional elements
of obscenity. While it is correct that the definitional ele-
iments as alleged in the complaints did not conform to
the requirements of the Il'inois obscenity statute as
authoritatively construed by the Ridens court, the lan-
guage used hy the State constituted surplusage and did
not make the complaints insufficient. Rather than dis-
missing those complaints, the remedy which the trial

App. 4

eourt should have employed was to strike all language
setting forth the definitional elements of obscenity as
surplusage. Cf. People v. Dyer (1977), 51 Ill. App.3d 731;
People v. Young (19738), 12 Ill.App.3d 310, 314.

The trial court’s order dismissing the complaints or

amended complaints in each of the following designated
proceedings are reversed and the causes are remanded
to the trial court for further proceedings.

1.

People v. Jon Bailey—Appellate Court #85-393
16th Judicial Circuit, Kendall County

(a) trial court #82 CM-295—amended complaint

People v. Randy McCaslin—Appellate Court #83-395
16th Judicial Cireuit, Kendall County

(a) trial court +83 CM 78—complaint

People v. John R. Findlay—Appellate Court 83-395
16th Judicial Circuit, Kendall County

(a) trial court #82 CM 293—amended complaint

(b) trial court #82 CM 294—amended complaint

(c) trial court #82 CM 308—amended complaint

(d) trial court #82 CM 309—amended complaint

(e) trial court #83 CM 83—complaint

People v. Rodney Leifheit—Appellate Court #83-396
16th Judicial Circuit, Kendall County

(a) trial court #83 CM 59—complaint

(b) trial court #83 CM 60—complaint

(c) trial court #83 CM 61—complaint

REVERSED AND REMANDED.
NASH and UNVERZAGT, JJ., concur.

Exhibit B
60564
ILLINOIS SUPREME COURT
JULEANN HORNYAK, CLERK
Supreme Court Building
Springfield, Ill. 62706
(217) 782-2035

October 2, 1984

Mr. J. Steven Beckett
Reno, O’Byrne & Kepley
501 W. Church
Champaign, IL 61820

No. 60564—People State of Illinois, respondent, vs. Jon
C. Bailey, et al., petitioners. Leave to appeal,

Appellate Court, Second District.

The Supreme Court today DENIED the petition for

leave to appeal in the above entitled cause.

The mandate of this Court will issue to the Clerk of

the Appellate Court on October 23, 1984.

App. 6
Exhibit C

First Amendment
Constitution of the United States

Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise thereof
of abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to pe-

tition the Government for a redress of grievances.

Fourteenth Amendment
Constitution of the United States

Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shal]
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law nor
deny to any person within its jurisdiction the equal pro-
tection of the laws.

App. 7

ILLINOIS OBSCENITY STATUTE Ch. 38, § 11-20,
ILL. REV. STAT.

§ 11-20. Obscenity. (a) Elements of the Offense.

A person commits obscenity wher, with knowledge of
the nature or content thereof, or recklessly failing to ex-
ercise reasonable inspection which would have disclosed
the nature or content thereof, he:

(1) Sells, delivers or provides, or offers or agrees to

(2)

(3)

(4)

(6)

(b)

sell, deliver or provide any obscene writing, pic-
ture, record or other representation or embodi-
ment of the obscene; or

Presents or directs an obscene play, dance or
other performance or participates directly in that
portion thereof which makes it obscene; or

Publishes, exhibits or otherwise makes available
anything obscene; or

Performs an obscene act or otherwise presents
an obscene exhibition of his body for gain; or

Creates, buys, procures or posseses obscene mat-
ter or material with intent to disseminate it in
violation of this Section, or of the penal laws or
regulations of any other jurisdiction; or

Advertises or otherwise promotes the sale of ma-
terial represented or held out by him to be ob-
scene, whether or not it is obscene.

( bsecene Defined.

A thing is obscene if, considered as a whole, its pre-
dominant appeal is to prurient interest, that is, a shame-
ful or morbid interest in nudity, sex or erection, and if it
goes substantially beyond customary limits of candor in
description or representation of such matters. A thing is

App. 8

obscene even though the obscenity is latent, as in the case
of undeveloped photographs.

(c) Interpretation of Evidence.

Obscenity shall be judged with reference to ordinary
adults, except that i‘ shall be judged with reference to
children or other specially susceptible audiences if it ap-
pears from the character of the material or the cireum-
stances of its dissemination to be specially designed for or
directed to such an audience.

Where circumstances of production, presentation, sale,
dissemination, distribution, or publicity indicate that ma-
terial is being commercially exploited for the sake of its
prurient appeal, such evidence is probative with respect
to the nature of the matter and can justify the conclusion
that the matter is utterly without redeeming social impor-
tance,

In any prosecution of an offense under this Section
evidence shall be admissible to show:

(1) The character of the audience for which the ma-
terial was designed or to which it was directed;

(2) What the predominant appeal of the material
would be for ordinary adults or a special audi-
ence, and what effect if any, it would probably
have on the behavior of such people;

(3) The artistic, literary, scientific, educational or
other merits of the material, or absence thereof ;

(4) The degree, if any, of public acceptance of the
material in this State;

App. 9

(5) Appeal to prurient interest, or absence thereof,
in advertising or other promotion of the mate-
rial;

(6) Purpose of the author, creator, publisher or dis-
seminator.

(d) Sentence.

Obscenity is a Class A misdemeanor. A second or
subsequent offense is a Class 4 felony.

(e) Prima Facie Evidence.

The creation, purchase, procurement or possession of
a mold, engraved plate or other embodiment of obscenity
specially adapted for reproducing multiple copies, or the
possession of more than 3 copies of obscene material shall
be prima facie evidence of an intent to disseminate.

(f) Affirmative Defenses.

It shall be an affirmative defense to obscenity that the
dissemination:

(1) Was not for gain and was made to personal asso-
ciates other than children under 18 years of age;

(2) Was to institutions or individuals having scien-
tific or other special justification for possession
of such material.

Amended by P.A. 77-2638, $1, eff. Jan. 1, 1973.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1898%3A1. Public record. Not legal advice.