Petition for Writ of Certiorari — Capitol News Agency Co. v. Illinois

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® Saprenn Cott, v.S

90-1] 045 FILED

nrc 27 1990

No. yossPu F. name

In The

Supreme Court of the United States

October Term, 1990

CAPITOL NEWS AGENCY CO., INC., et al.,

Petitioners,

STATE OF ILLINOIS,

Respondent.

Petition For A Writ Of Certiorari

To The Supreme Court Of Illinois

PETITION FOR A WRIT OF CERTIORARI

wv |

GLENN A. STANKO

Reno, O’ Byrne & Kep ey, P.C.

501 West Church Street

P.O. Box 693

Champaign, IL 61824-0693

(217) 352-7661

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

di?

QUESTIONS PRESENTED

1. Whether a defendant charged with obscenity has

standing to challenge the constitutionality of the statute

under the First and Fourteenth Amendments to the Con-

stitution of the United States by raising the invalidity of

an exemption to that statute.

2. Whether a statutory provision which exempts

persons from criminal liability for obscenity if the dis-

semination is to other persons having “scientific or other

special justification for possession” of the material is

violative of constitutional rights protected by the First

end Fourteenth Amendments to the Constitution of the

United States.

PARTIES TO THE PROCEEDINGS

The petitioners are Capitol News Agency Co., Inc., an

Illinois corporation; General Video Midwest, a division of

Capitol News Agency Co., Inc.; Gentlemen’s Books, Inc.,

an Illinois corporation, d/b/a Gentlemen’s Bookstore;

and Phillip D. Morgan. The corporate petitioners have no

parent companies or nonwholly owned subsidiaries.

The respondent is the State of Illinois.

iii

TABLE OF CONTENTS

Page

Subject Index

RES ER Pn OE Ee i

Parties to the Proceeding ................scceeeeess ii

PRO MEY TIVES ITEP EET iii

OPI TTT TTL ETE EL 1

eS See's S bss one 60's 60.6 6's TeWesens Cake Comes es 2

Constitutional and Statutory Provisions Involved... 2

NIE ME I IE ws awe c cece cc eccacesenccenss 2

Reasons for Granting the Writ...................5. 5

SE ic Cho Rahn es odivia ge A aA 6s bs nced Kone eenee 15

Appendix Index

Opinion of the Supreme Court of Illinois ...... App. 1

Order of Circuit Court of McLean County,

CE AGNES SRA DAV eh SeKn eps ¥erctasavevecsee App. 13

Order of Supreme Court of Illinois Denying

Rehearing and Modifying Opinion........... App. 16

United States Constitution, First Amendment and

Fourteenth Amendment..............-0505005 App. 17

ME eeu tye ck os Sud Claws webe App. 18

TABLE OF AUTHORITIES

Page

Cases

Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S.

Me eee ETS Pere re ery eee 4, 8, 9, 10

Carey v. Brown, 447 U.S. 455 (1980).................. 13

Grayned v. City of Rockford, 408 U.S. 104 (1972)...... 12

Kolender v. Lawson, 461 U.S. 352 (1983)........... 10, 11

Kucharek v. Hanaway, $02 F.2d 513 (7th Cir. 1990) .... 10

Miller v. California, 413 U.S. 15 (1973) ............... 10

New York v. Ferber, 458 U.S. 747 (1982) ............... 6

People v. Illardo, 48 N.Y.2d 408, 399 N.E.2d 59

EEN skhe Scab NURER MAHER EAGENER NSD SOn0 KOs 4, 8, 12

Secretary of State of Maryiand v. Joseph H. Munson

ig Bi Ge GS UT nN Vis is dccccencesss 6, 7

Skinner v. Oklahoma, 316 U.S. 535 (1942)............. 14

State v. Luck, 353 So.2d 225 (La. 1977)............... 13

State v. Next Door Cinema Corp., 225 Kan. 112, 587

Fe SE I Gd nes dance dhs crash ssakdweses. 12

State v. Starr Enterprises, Inc., 226 Kan. 288, 597

EY Dil c ce wate a 44s0n4s acs Cehhes eds es. 12

Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 109 S.Ct.

oe ere yr to. er ee 9

Valley Forge Christian College v. Americans United

for Separation of Church and State, Inc., 454 U.S.

TRAN chav hae VhsWantswwanenesee\eekacdases ss 6

TABLE OF AUTHORITIES - Continued

Page

Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489 (1982).................4.. 10

Zobel v. Williams, 457 U.S. 55 (1982)................. 13

CONSTITUTIONAL PROVISIONS AND STATUTES

United States Constitution, First Amendment

nak nea Gdakbaks weeE ie eek 2, 3, 4, 5, 6, 8, 10, 11, 14

United States Constitution, Fourteenth Amend-

a tae eae ke tak wai h wee econ eees y a ee

Be Fs ON i 6 knock eK Raced we awa cenveseecees 2

1970 Constitution of the State of Illinois, Article 6,

EATER TER a oe LE PR Mee 6

PN, Ds I, Gs ROI 6h ccc ccdncctccianwass 2

Ill.Rev.Stat. 1985, ch. 38, 911-20(f)(2) .............. 3, 11

lil.Rev.Stat. 1985, ch. 110A, G413(d) .................. 7

Pee, Te Gk. Bi en cv wn ccc ccssnceccenes 4

S.H.A., ch. 38, 11-20, Committee Comments...... 8, 13

OTHER AUTHORITY

Model Penal Code, §251.4(3)(a) (1980)............... 12

Model Penal Code, (Model Penal Code, tent. draft

Se ES 5 REA err ere Perry ee 12

7 be,

we wr. fa fh

No.

In The

Supreme Court of the United States

October Term, 1990

—_

CAPITOL NEWS AGENCY CO., INC., et al.,

Petitioners,

Vv.

STATE OF ILLINOIS,

Respondent.

Petition For A Writ Of Certiorari

To The Supreme Court Of Illinois

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectively pray that a writ of certiorari

issue to review the judgments and opinion of the

Supreme Court of Illinois entered on May 23, 1990.

OPINION BELOW

The opinion of the Supreme Court of Illinois is

reported at 137 Ill.2d 162, 560 N.E.2d 303 (1990). A copy

of the opinion is included in the Appendix as Exhibit A.

JURISDICTION

Jurisdiction in this case is premised upon 28 U.S.C.

§1257(a), which provides for review by certiorari of the

decisions of the Supreme Court of Illinois. A written

opinion in petitioners’ consolidated cases was issued by

that court on May 23, 1990. Petitioners’ timely petition for

rehearing was denied on October 1, 1990. On the denial of

rehearing, a modified opinion was issued. The modified

opinion made only technical changes in the original opin-

ion. A copy of the order denying the petition for rehear-

ing is included in the Appendix as Exhibit C.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the Constitution of the

United States and the relevant portion of the Fourteenth

Amendment to the Constitution of the United States are

set forth in the Appendix as Exhibit D. The Iinois

obscenity statute, Ill.Rev.Stat. 1985, ch. 38, 411-20, is set

forth in the Appendix as Exhibit E.

STATEMENT OF THE CASE

On May 29, 1986, each of the petitioners was indicted

for the sale or delivery of obscene materials in the Circuit

Court of McLean County, Illinois. The four-count charge

against Capitol News Agency Co., Inc. involved four

magazines, while General Video Midwest was charged

with two counts relating to two different video tapes.

Those same magazines and video tapes were the subject

of the six-count indictments brought against Gentlemen’s

Books, Inc. and Phillip D. Morgan.

Motions to dismiss were filed by all petitioners

asserting that the Illinois obscenity statute was uncon-

stitutionally vague, indefinite, uncertain, and overbroad,

and therefore violated their rights under the First and

Fourteenth Amendments to the Constitution of the

- United States. Each petitioner specifically advanced a due

process and equal protection challenge to an affirmative

defense provision contained in the Illinois obscenity stat-

ute. The affirmative defense exempted a dissemination

made “to institutions or individuals having scientific or

other special justification for possession of such mate-

rial.” Ill.Rev.Stat. 1985, ch. 38, 911-20(f(2).

After consolidated arguments on the motions to dis-

miss, the trial court entered an identical written order in

each of the cases granting tite respective motions. The

trial court found that the “scientific or other special justi-

fication” language of the affirmative defense was uncon-

stitutionally vague. It further held that the affirmative

defense could not be severed from the remainder of the

statute. Consequently, the Illinois obscenity statute was

unconstitutionally vague in its entirety.

Although the state did not take a timely appeal to the

Supreme Court of Illinois, leave was given by that court

to ile a late notice of appeal. All of the cases were

consolidated for purposes of the appeal.

In an opinion filed on May 23, 1990, the Supreme

Court of Illinois reversed the judgments of the Circuit

Court of McLean County. It held that the petitioners had

no standing to challenge the constitutionality of the

affirmative defense provision. Although the state had not

raised the issue of standing in the lower court, the

Supreme Court held that it was a question of subject

matter jurisdiction which could be considered by the

court at any time even if no party had raised the issue.

The court’s ruling did not address the petitioners’ argu-

ments that they had standing to make an attack on the

exemption because they had a personal stake in the mat-

ter and, also, because First Amendment rights were

directly involved.

Notwithstanding its ruling on the standing issue, the

opinion of the Supreme Court of Illinois addressed the

merits of the argument relating to the vagueness of the

affirmative defense provision. Relying extensively on Peo-

ple v. Illardo, 48 N.Y.2d 408, 399 N.E.2d 59 (1979), the court

held that the exemption was not unconstitutionally

vague. It did not discuss other constitutional arguments

advanced on equal protection grounds.

The opinion of the Supreme Court of Illinois did hold

that the indictments under which the petitioners were

charged were duplicitous, and therefore void. However,

it reversed and remanded the judgments of the circuit

court. New charges arising out of the same events may be

brought by the state without encountering any statute of

limitations problems. See IIll.Rev.Stat. 1989, ch. 38, ¥3-7(c).

The petitioners filed a timely petition for rehearing.

In that petition, they once again pointed to the personal

impact which the statute and the disputed exemption had

upon them. The petitioners specifically directed the

court’s attention to Arkansas Writers’ Inc. v. Ragland, 481

Ferre mame

U.S. 221 (1987), which also involved a challenge to a

statutory exemption. They further emphasized the

expanded standing applicable under decisions of this

Court when First Amendment freedoms are implicated.

On October 1, 1990, the Supreme Court of Illinois

denied the petition for rehearing and issued a modified

opinion. The modified opinion made no substantive

changes. The mandate of the Illinois Supreme Court has

been stayed pending review by this court.

> s

REASONS FOR GRANTING THE WRIT

A CRIMINAL OBSCENITY DEFENDANT HAS

STANDING TO CHALLENGE A STATUTORY EXEMP-

TION AS VIOLATIVE OF THE FIRST AND FOUR-

TEENTH AMENDMENTS UNDER PRINCIPLES

FIRMLY ESTABLISHED BY THIS COURT.

This case raises an important question of standing in

the First Amendment context. Petitioners, who were each

criminally charged with obscenity, successfully chal-

lenged the Illinois obscenity statute as vague, and there-

fore violative of their rights under the First and

Fourteenth Amendments to the Constitution of the

United States. The statute was declared vague in its

entirety because of a statutory exemption which was

itself found to be vague. However, the Supreme Court of

lilinois held that the petitioners lacked standing to raise

the issue, finding that they did not have the requisite

personal stake in the outcome. That decision both misap-

plied and ignored this Court’s standing jurisprudence.

As this Court observed in Valley Forge Christian Col-

lege v. Americans United For Separation of Church and State,

Inc., 454 U.S. 464 (1982), the concept of “standing” has not

always been clear in the opinions of the Court. Id. at 471,

475. “The term ‘standing’ subsumes a blend of constitu-

tional requirements and prudential considerations” (id. at

471), with the former relating to the Article III “case or

controversy” mandate and the latter being limitations

established by this Court.

The standing issue in this case arises under the pru-

dential component. These cases were criminal actions

against the petitioners in state court, so no federal “case

or controversy” dispute exists. The lower state court had

jurisdiction over the proceeding pursuant to Article 6, §9

of the 1970 Constitution of the State of Illinois. The issue,

then, is one of whether the state high court properly held

that petitioners lacked standing to make the constitu-

tional challenge, for a state court may not avoid a proper

facial attack on federal constitutional grounds. New York

v. Ferber, 458 U.S. 747, 767 (1982).

“Standing” in the prudential sense requires that the

complaining party assert his own legal rights and inter-

ests. Valley Forge, supra at 474; Secretary of State of Mary-

land v. Joseph H. Munson Co., Inc., 467 U.S. 947, 955 (1984).

However, there are exceptions where speech protected by

the First Amendment is at stake:

Within the context of the First Amendment, the

Court has enunciated other concerns that justify

a lessening of prudential limitations on stand-

ing. Even where a First Amendment challenge

could be brought by one actually engaged in

protected activity, there is a possibility that,

rather than risk punishment for his conduct in

challenging the statute, he will refrain from

engaging further in the protected activity. Soci-

ety as a whole then wouid be the loser. Thus,

when there is a danger of chilling free speech,

the concern that constitutional adjudication be

avoided whenever possible may be outweighed

by society’s interest in having the statute chal-

lenged. ‘Litigants, therefore, are permitted to

challenge a statute not because their own rights

of free expression are violated, but because of a

judicial prediction or assumption that the stat-

ute’s very existence may cause others not before

the court to refrain from constitutionally pro-

tected speech or expression.’ Broadrick v. Okla-

homa, 413 U.S. 601, 612 (1973).

Id. at 956-957.

The Supreme Court of Illinois incorrectly concluded

that the petitioners had no personal stake in the constitu-

tional attack. It reached that conclusion even though peti-

tioners were charged with violating the very statute

whose exemption provision was attacked. The exemption

itself is applicable to any “dissemination”, and therefore

does not require an antecedent finding of obscenity.

While the Supreme Court of Illinois observed that the

record did not reflect that petitioners claimed or intended

to claim the exemption, there is nothing in Illinois crimi-

nal procedure which would require them to reveal any

such claim or intent prior to trial. Affirmative defenses

must be disclosed in felony prosecutions (Ill.Rev.Stat.

1985, ch. 110A, 9413(d)), but not in misdemeanor ones.

These cases were all misdemeanors. Any affirmative

defense would be first raised at the time of trial.

As the Supreme Court of Illinois noted, the charges

were based on alleged sales of obscene materials to

undercover police officers. Those circumstances directly

raised the availability of the exemption, particularly in

light of the comments from the drafting committee:

The second defense is simply a recognition that

police, social scientists, educational institutions,

and other authorities may have a legitimate

need to possess obscene material.

S.H.A., ch. 38, 911-20, Committee Comments

(emphasis added).

Nevertheless, the Illinois high court found that the peti-

tioners had no personal stake.

When the Supreme Court of Illinois ultimately dis-

cussed the merits of the constitutional issue, it relied

extensively on the opinion of the New York Court of

Appeals in People v. Illardo, 48 N.Y.2d 408, 399 N.E.2d 59

(1979). Ironically, Illardo rebuffed a claim that the defen-

dants lacked standing:

The fact that appellant has not yet proceeded to

trial does not divest him of standing to raise the

statutory affirmative defenses. The moment that

prosecution against him was mounted, appel-

lant gained the right to rely on any legitimate

defense, including those incorporated in

§235.15.

48 N.Y.2d 408, 413 n.2, 399 N.E.2d 59, 61 n.2.

Two recent cases of this Court have addressed the

question of standing where First Amendment challenges

have been mounted against provisions which would

exempt certain persons from the burden of the statute.

Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221

(1987), held that the plaintiff, who published a general

interest magazine in Arkansas, had standing to attack a

sales tax exemption which favored publications different

from those which it produced. This Court rejected

defense contentions that the plaintiff lacked standing,

holding that it had a sufficient personal stake in the

outcome of the litigation.

Another sales tax exemption was the focus of a con-

stitutional challenge in Texas Monthly, Inc. v. Bullock, 489

U.S. 1, 109 S.Ct. 890 (1989). Relying on Ragland, this Court

once again rejected a contention that the plaintiff lacked

standing to challenge the constitutionality of the exemp-

tion. In so doing, it also cast aside defense arguments that

the plaintiff had no personal stake because the proper

course under state law would be to remove the exemp-

tion available to the exempted publications rather than

extend it to the plaintiff’s periodicals:

It is not for us to decide whether the correct

response as a matter of state law to a finding

that a state tax exemption is unconstitutional is

to eliminate the exemption, to curtail it, to

broaden it, or to invalidate the tax altogether.

Id., 489 U.S. at ___, 109 S.Ct. at 896.

The Supreme Court of Illinois merely assumed that

the exemption would be unavailable if the petitioners

prevailed, and therefore concluded that they would gain

nothing by a successful attack. However, it failed to rec-

ognize or address the very scenario which occurred in the

lower court ruling. The exemption was deemed not to be

severable from the balance of the Illinois obscenity stat-

ute, and that statute was therefore held unconstitu-

tionally vague in its entirety.

The resolution of the standing issue below was also

inconsistent with a recent decision of the United States

Court of Appeals for the Seventh Circuit. In Kucharek v.

Hanaway, 902 F.2d 513 (7th Cir. 1990), that court held that

persons subject to an obscenity statute had standing to

bring an attack directed toward an exemption under the

obscenity statute. In so holding, the Seventh Circuit spe-

cifically relied upon Ragland.

Even if it could be said that the petitioners lacked a

personal stake in the outcome of the facial constitutional

attack, the Supreme Court of Illinois completely ignored

the established basis for standing where First Amend-

ment rights are implicated. Such standing is available

regardless of whether the claim is grounded on allega-

tions of vagueness or overbreadth. See Kolender v. Lawson,

461 U.S. 352, 358 n.8 (1983); Village of Hoffman Estates v.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7 (1982).

It is beyond dispute that defectively drawn obscenity

statutes infringe on First Amendment rights. See Miller v.

California, 413 U.S. 15 (1973). Here, the subject obscenity

statute involves an exemption which is applicable regard-

less of whether the materials at issue are obscene. Its

completely unpredictable applications underscores its

apparent invalidity and serves only to cast a further chill

over the First Amendment rights of petitioners and

others. This Court should grant certiorari to correct the

misguided application of the “standing” doctrine by the

lower court.

Il.

THE DECISION OF THE SUPREME COURT OF ILLI-

NOIS ON THE CONSTITUTIONALITY OF THE STAT-

UTORY EXEMPTION IS IN CONFLICT WITH A

DECISION OF THE HIGHEST COURT OF ANOTHER

STATE.

The affirmative defense provision which the trial

court held to be unconstitutionally vague provides as

follows:

It shall be an affirmative defense to obscenity

that the dissemination:

* + *

(2) Was to institutions or individuals having

scientific or other special justification for pos-

session of such material.

Ill.Rev.Stat. 1985, ch. 38, 411-20¢f)(2).

The Supreme Court of Illinois, however, disagreed with

the trial court’s finding. In addition, it failed to address

the equal protection claim which was advanced by peti-

tioners.

A criminal statute is void for vagueness and, there-

fore, violative of due process, if it is not sufficiently

definite so that ordinary persons can understand what

conduct is prohibited. It must be drafted in a manner

which does not encourage arbitrary and discriminatory

enforcement. Kolender v. Lawson, 461 U.S. 352, 357 (1983).

Va7ue laws fail to provide fair warning and, as a conse-

quence, trap the innocent. Likewise, they encourage arbi-

trary and discriminatory application by impermissibly

delegating their enforcement to the subjective determina-

tions of policemen, judges, and juries. Where First

Amendment freedoms are involved, they also serve to

chill the exercise of those freedoms. Grayned v. City of

Rockford, 408 U.S. 104, 108-109 (1972).

The language of the exemption was taken from a

draft of the Model Penal Code (Model Penal Code, tent.

draft no. 6, §207.10(4)). However, the version of the

Model Penal Code ultimately adopted by the American

Law Institute added the words “educational” and “gov-

ernmental” and changed “special” to “similar”. Model

Penal Code, §251.4(3)(a) (1980).

The highest courts of two other states have had occa-

sion to address the phase of “other similar justification”

in combination with “scientific, educational, and govern-

mental”. The New York Court of Appeals held that

exemption not to be unconstitutionally vague in People v.

Illardo, 48 N.Y.2d 408, 399 N.E.2d 59 (1979). However, the

Kansas Supreme Court held the same language to be

unconstitutionally vague in State v. Next Door Cinema

Corp., 225 Kan. 112, 587 P.2d 326 (1978). See also State v.

Starr Enterprises, Inc., 226 Kan. 288, 597 P.2d 1098 (1979).

Although the Kansas high court found the infirm provi-

sion to be severable from the remainder of the obscenity

statute, the Supreme Court of Illinois did not even get

that far.

The Illinois exemption provision is even more obtuse

than the exemption language at issue in Illardo and Next

Door Cinema Corp. While the word “similar” might appear

to refer to antecedent words, the word “special” carries

no such connotation. Furthermore, unlike the New York

and Kansas exemptions, the Illinois statute does not pro-

vide several classes of persons or things from which the

word “special” could draw meaning. These deficiencies

render the Illinois exemption so vague as to be violative

of due process.

Although not addressed by the Supreme Court of

Illinois, the exemption at issue also has significant equal

protection problems. This infirmity is present regardless

of whether a strict scrutiny test is applied (see Carey v.

Brown, 447 U.S. 455, 461-462 (1980)), or a rational basis

test is utilized (see Zobel v. Williams, 457 U.S. 55, 60

(1982)).

In State v. Luck, 353 So.2d 225 (La. 1977), the Supreme

Court of Louisiana held unconstitutional on equal protec-

tion grounds a provision establishing exemptions for var-

ious institutions and individuals. After reviewing its

obscenity statute, the Louisiana Supreme Court con-

cluded that it was directed at trafficking in obscenity for

commercial gain. It then invalidated the exemption

because the exempted institutions and persons would be

able to commercially traffic in the materials.

On its face, the Illinois obscenity statute appears also

to be directed towards materials disseminated for com-

mercial gain. In fact, the committee comments state that

the statute was “aimed primarily at the commercial dis-

semination of obscenity.” See S.H.A., ch. 38, 411-20, Com-

mittee Comments. An essential element of the affirmative

defense contained in subsection (f)(1) is that the dissem-

ination “[w]Jas not for gain...” In addition, the commit-

tee comments note that “[t]he two affirmative defenses

listed there have the effect of reserving criminal punish-

ment for those situations in which the obscenity is dis-

seminated to strangers for gain.”

Lack of any gain is not a condition of subsection

(f)(2). Even materials which are obscene may be sold for

gain to whatever institutions or individuals fall within

——-"te scope of subsection (f)(2), thereby totally defeating

the concept of criminalizing the commercial exploitation

of obscenity. In more specific terms, an arbitrary distinc-

tion is drawn between classes of people who sell obscene

materials for gain. If the recipient is in the protected

category, then the disseminator escapes punishment. If

not, then the disseminator is punished.

The exemption scheme provided under the Illinois

obscenity statute is aggravated by the fact that the dis-

seminator of the materials is not required to have knowl-

edge of the recipient’s purpose. The defense is available

on a fortuitous, post hoc examination of the purpose of

the recipient. Those persons who unknowingly distribute

to an exempt person have the defense despite their lack

of knowledge. Others, who have done no more than

commit the same act with the same mental state, are

subject to punishment because they have not had the

good fortune of making the dissemination to an exempt

person or institution. These circumstances epitomize an

equal protection violation - where the law unequally

treats those who committed intrinsically the same quality

of offense by punishing one and not the other. See Skinner

v. Oklahoma, 316 U.S. 535, 541 (1942).

The approach of the Supreme Court of Illinois on the

merits of the constitutional claims asserted under the

First and Fourteenth Amendments is at odds with the

decision of the highest court of another state on both the

due process aspect and the equal protection component.

This Court should grant certiorari to resolve the conflict.

CONCLUSION

The decision of the Supreme Court of Illinois on the

standing question is in conflict with decisions and princi-

ples announced by this Court. Its conclusions on the

merits of the constitutional challenge are also in conflict

with at least one decision of the highest court of another

state. This Court should grant a writ of certiorari to

review the judgments and opinion of the Supreme Court

of Illinois.

Respectfully submitted,

GLENN A. STANKO

Reno, O’Byrne & Keptey, P.C.

501 West Church Street

P.O. Box 693

Champaign, IL 61824-0693

(217) 352-7661

Attorneys for Petitioners

App. |

EXHIBIT A

OPINION MODIFIED ON DENIAL OF REHEARING -

10/1/90

ORIGINAL OPINION FILED - 5/23/90

Docket Nos. 67480, 67481, 67482, 67483 cons. - Agenda

12 = March 1989.

THE PEOPLE OF THE STATE OF ILLINOIS,

Appellant v. CAPITOL NEWS, INC., .oo -

THE PEOPLE OF THE STATE OF ILLINOIS,

rs ppellant, v. CENTRAL VIDEO MIDWEST,

pellee. - THE PEOPLE OF THE STATE OF

* TNOIS, A pellant, v. GENTLEMEN’S ADULT

BOOKSTORE, INC., Appellee. - THE PEOPLE

OF THE STATE OF ILLINOIS, Appellant, v.

PHILLIP D. MORGAN, Appellee.

JUSTICE WARD delivered the opinion of the court:

Capitol News, Inc., upon being charged by indict-

ment in the circuit court of McLean County with the sale

or delivery of materials in violation of the Illinois

obscenity statute (Ill. Rev. Stat. 1987, ch. 38, par. 11-20),

filed a motion to dismiss, challenging the constitu-

tionality of the statute. The circuit court held that the

affirmative defense established by section 11-20(f)(2) of

the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par.

11-20(f)(2)) was unconstitutionally vague. Based on its

finding that the affirmative defense was not severable

from the remainder of the statute, it held that the

obscenity statute was unconstitutional and dismissed the

indictment. This direct appeal by the State is before us

pursuant to Supreme Court Rule 603 (107 Ill.2d R. €03).

The affirmative defense provides: “It shall be an

affirmative defense to obscenity that the dissemination

App. 2

*** [wlas to institutions or individuals having scientific

or other special justification for possession of such mate-

rial.” (Ill. Rev. Stat. 1987, ch. 38, par. 11-20(f)(2).) The trial

court ruled that the language “scientific or other special

justification” was unconstitutionally vague.

At the time Capitol News was indicted, similar

indictments were returned against General Video Mid-

west (People v. General Video Midwest, No. 67481),

against Gentlemen’s Adult Bookstore, Inc. (People v. Gen-

tlemen’s Adult Bookstore, Inc. No. 67482), and against

Phillip D. Morgan (People v. Morgan, No. 67483). Similar

motions to dismiss were filed by the defendants and

similar dispositive orders were entered in each. Appeals

were filed and were consolidated by this court.

The first question raised involves the defendants’

attack on the jurisdiction of this court over the appeals.

Here, the notice of appeal was not filed within the 30-day

period required by Supreme Court Rule 606(b) (107 Ill. 2d

R. 606(b)). Under these circumstances, any review must

be sought pursuant to the provisions of Rule 606(c) (107

Ill. 2d R. 606(c)). That «-«tion provides that after 30 days,

review may be sovznt by filing a motion for leave to

appeal in the reviewing court. If this motion is filed

within the next 30 days, it, to be allowed, must be sup-

ported by a showing of “reasonable excuse” for the late

filing. The rule also permits such a motion to be filed

within six months of the expiration of the appeal period

supported by an affidavit showing that there is merit to

the appeal and that the failure to timely file was not due

to the appellant’s culpable negligence. Under either of

these circumstances, the court may grant leave to appeal.

107 Ill. 2d R. 606(c).

App. 3

Here, the State sought leave to appeal on the sixtieth

day after the entry of the written order of dismissal. The

motion and an accompanying affidavit stated that the

notice of appeal was not filed within the 30-day period

“due to clerical error,” and that, within the 30-day period,

the assistant State’s Attorney in charge of the case

directed that a notice of appeal be filed. He did not

become aware that it had not been filed until 59 days

after the order had been entered. The motion for leave to

appeal was filed the next day.

The State’s motion for leave to appeal was granted by

the full court over objections by the defendants that the

State had failed to provide a “reasonable excuse” for the

late filing and that the “clerical error” excuse is factually

insufficient. The defendants now argue that although this

court granted the State’s motion for leave to appeal, it is

appropriate to reconsider the matter based on a full con-

sideration of the record and the briefs and argument of

counsel. The defendants base this position on People v.

Robertson (1968), 39 Ill. 2d 621. In Robertson, this court had

granted the defendant’s motion for leave to appeal

because at the time the motion was granted, it appeared

that the defendant had a “reasonable excuse” for the

delay in filing. The defendant had asserted in the motion

for leave to appeal that he was not present at the time of

the sentencing and did not know that he had been sen-

tenced to the penitentiary. After a full consideration of

the record, and the briefs and argument of counsel, it was

discovered that the defendant had voluntarily absented

himself for the trial, and had thereby waived the right on

which he had predicated his petition. Accordingly, this

App. 4

court ruled that leave to appeal had been improvidently

granted. Robertson, 39 Ill. 2d at 624.

The defendants argue that the State’s motion here

was similarly improvidently granted because the prepa-

ration and filing of a timely notice of appeal was not

merely a clerical task and because the State failed to

provide factual support for its contention of excusable

clerical error. Unlike Robertson, however, where the plen-

ary consideration of the case revealed facts not known to

the court when the petition for leave to appeal was con-

sidered, the defendants here are merely requesting the

court to reconsider the arguments it had rejected when it

granted leave to appeal. The request must be denied. The

petition for leave to appeal was timely filed, and it was

granted by the full court in the exercise of the discretion

it possesses under Rule 606(c). No facts that were

unknown when the determination was made have been

brought to our attention. This court has jurisdiction to

consider the merits of the appeal.

The State contends that the defendants had no stand-

ing to challenge the constitutionality of the affirmative

defense provision on grounds of vagueness, and that

even if a proper challenge had been made, section

11-20(f)(2) is constitutional. The State says that standing

under these circumstances is a matter of subject matter

jurisdiction and may be considered by the court even

where neither party raised the question. (City of Chicago v.

Fair Employment Practices Comm’n (1976), 65 Ill. 2d 108,

112; Pre-School Owners Association of Illinois, Inc. v. Depart-

ment of Children & Family Services (1988), 119 Ill. 2d 268,

287.) The Supreme Court’s citation in County Court v.

Allen (1979), 442 U.S. 140, 154-55, 60 L. Ed. 2d 777, 790, 99

App. 5

S. Ct. 2213, 2223, of Broadrick v. Oklahoma (1973), 413 U.S.

601, 610, 37 L. Ed. 2d 830, 838, 93 S. Ct. 2908, 2914, is

pertinent:

“A party has standing to challenge the con-

stitutionality of a statute only insofar as it has

an adverse impact on his own rights. As a gen-

eral rule, if there is no constitutional defect in

the application of the statute to a litigant, he

does not have standing to argue that it would be

unconstitutional if applied to third parties in

hypothetical situations. Broadrick v. Oklahoma,

413 U.S. 601, 610, 37 L. Ed. 2d 830, 93 S. Ct.

2908.” |

This court in Rosewood Corp. v. Fisher (1970), 46 Ill. 2d 249,

259, put it:

“It has been stated many times that this court

‘will not determine the constitutionality of the

provisions of an act which do not affect the

parties to the cause under consideration, or

where the party urging the invalidity of such

provisions is not in any way aggrieved by their

operation.’ Schreiber v. County Board of School

Trustees of Peoria County, 31 Ill. 2d 121, 125, and

cases there cited.”

Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 569,

considered a trial court’s holding of unconstitutionality

of a statute, which the plaintiff, to whom the statute was

not applicable, claimed to be invalid. This court, citing

Rosewood Corp. v. Fisher (1970), 46 Ill. 2d 249, held that the

trial court erred in declaring the sections unconstitu-

tional, observing:

“Neither section is applicable to the plaintiff,

who alleges only that he was a party to a

divorce action pending in the circuit court of

Cook County. This court has often propounded

App. 6

that ‘[i]t is axiomatic that one may net complain

of a statutory provision which does not affect

him’ (Spalding v. City of Granite City (1953), 415

Ill. 274, 283), and that a court may not ‘deter-

mine the constitutionality of the provisions of

an act which do not affect the parties to the

cause for consideration.’ ” Kujawinski, 71 Ill. 2d

at 569-70.

Section 11-20(f)(2) provides an affirmative defense

when obscene materials have been disseminated “to insti-

tutions or individuals having scientific or other special

justification for possession of such material.” (Ill. Rev.

Stat. 1987, ch. 38, par. 11-20(f)(2).) The record here shows

that the persons to whom the obscene materials were sold

or delivered were undercover police officers. Nowhere in

the record is there any claim that the defendants asserted

or intended to assert the affirmative defense or that they

fell within the scope of this exempting section. The fact

that the defendants will gain nothing if their attack on the

exemption is upheld establishes they have no standing to

challenge the constitutionality of the affirmative defense.

Whether they win or lose on the issue will have no

impact of them at all. There is no adverseness of parties

when the party attacking a statute does not stand to gain

if the attack is sustained. Our constitution limits the

jurisdiction of the circuit courts to “justiciable matters”

(Ill. Const. 1970, art. VI, § 9), and absent a justiciable

controversy, courts lack subject matter jurisdiction. An

absence of subject matter jurisdiction cannot be waived

by the parties, and may be raised by this court sua sponte.

(Eastern v. Canty (1979), 75 Ill. 2d 566; see also R. Michael,

Civil Procedures Before Trial § 2.1 (1989).) Because the

defendants lack standing to address the question of the

constitutionality of the affirmative defense, the circuit

;

a eneeeeeneeeneeneneel

App. 7

court erred in considering the constitutional question and

in subsequently dismissing the indictments. Its judgment

of unconstitutionality will be reversed.

Were we to conclude our consideration of this appeal

by simply reversing the judgment on the ground of lack

of standing, it would leave the question of constitu-

tionality unaddressed. Too, the trial court erroneously

held that indictments not to be duplicitous. The parties

have briefed these questions and we shall consider them.

We judge that the trial court erred in holding the statute

unconstitutional. As we have stated above, the affirma-

tive defense section of the obscenity statute provides:

“It shall be an affirmative defense to

obscenity that the dissemination:

* * *

(2) Was to institutions or individuals

having scientific or other special justifica-

tion for possession of such material.” III.

Rev. Stat. 1987, ch. 38, par. 11-20(f)(2).

The provision “having scientific or other special justi-

fication” was held by the trial court to be unconstitu-

tionally vague. Its order read in part:

“Though the affirmative defenses may not be

violative of the equal protection and due pro-

cess clauses under the United States Constitu-

tion and Illinois Constitution, there is the real

question whether the use of the term ‘scientific

or other special justification’ is unconstitu-

tionally vague. No Illinois cases are specifically

on point. The court finds that the use of the

phrase ‘scientific or other special justification’

makes the affirmative defenses unconstitu-

tionally vague. See, People v. Howell (1977), 90

Misc. Id. 722; 395 N.Y.S. 2d 933.”

App. 8

(As we shall point out, the New York Court of

Appeals in People v. Illardo (1979), 48 N.Y.2d 408, 399

N.E.2d 59, 423 N.Y.S.2d 470, decided the question con-

trary to Howell, which was a trial court decision in the

city court of Buffalo in 1977.)

To avoid a complaint of vagueness and to satisfy due

process, a statute must give a person of ordinary intel-

ligence reasonable opportunity to know what conduct is

lawful under it and what is prohibited and must provide

standards to guide persons who administer the law so

that there will not be arbitrary and discriminatory

enforcement of the statute. An impossible standard of

preciseness of language and expression cannot be

required; it is enough that the law’s language and mean-

ing are sufficiently definite when measured by common

understanding and practices. People v. Illardo (1979), 48

N.Y.2d 408, 399 N.E.2d 59, 423 N.Y.S.2d 470.

The language of section 11-20(f)(2) is based on the

idea and language of exemption in the Model Penal Code

(Model Penal Code par. 251.4(3)(a) (1980)) and in exemp-

tion provisions of a number of State obscenity statutes.

The sixth tentative draft of the Model Penal Code pro-

vided exemption for dissemination of obscenity “to insti-

tutions or individuals having scientific or other special

justification for possession of such material.” The affirma-

tive defense in the final draft of the Code reads: “To

institutions or persons having scientific, educational,

governmental or other similar justification for possessing

obscene material.” There have been challenges to the

constitutionality of the affirmative defense in the final

draft of the Code and in statutory affirmative defenses

with similar language. The decisions have been mixed.

App. 9

An exemption provision with language very similar to

that in the Code’s final draft was considered in People v.

Illardo (1979), 48 N.Y.2d 408, 399 N.E.2d 59, 423 N.Y.S.2d

470. The court held that the constitutional requirements

for providing notice of conduct that was proscribed and

for avoiding arbitrary enforcement were satisfied by the

language of the affirmative defense. Regarding arbitrary

enforcement the court observed:

“[W]here the statute deals not with a proscrip-

tion itself but, instead, with affirmative

defenses, statutory provisions which become

relevant only after an arrest is made and charges

are filed, any uncertainty in its terms is far less

likely to be an inducement to irresponsible law

enforcement.” Illardo, 48 N.Y.2d at 414, 399

N.E.2d at 62, 423 N.Y.S.2d at 472-73.

The court, considering the “or other similar justifica-

tion” language in the affirmative defense, stated that the

language simply represented use of a common drafting

technique designed to avoid the necessity of spelling out

every pertinent contingency where the statute might be

applicable. The court noted that this technique involved

the use of ejusdem generis, under which doctrine the effect

of the language “or other similar justification” was to

limit other justifications to the kind of justifications, e.g.,

scientific, which preceded the phrase. (People v. Illardo

(1979), 48 N.Y.2d 408, 399 N.E.2d 59, 423 N.Y.S.2d 470.) As

stated, the language used in our statute, “scientific or

other special justification,” is taken from the sixth tenta-

tive draft of the Model Penal Code. It is clear “or other

special justification” refers to a kind of justification simi-

lar to a justification that is scientific. The reference is to

App. 10

justification or freedom from blame. Justification for pos-

sessing obscene material plainly refers to a possession

that is recognized as one not inconsistent with the pro-

scriptive purpose of the obscenity statute.

There is no real difference between the final version

of the affirmative defense of the Model Penal Code, the

New York statute and our statutory affirmative defense.

It has been recognized that there may be a legitimate

need for the study of obscene material and the insertion

in the affirmative defense of phrases like “or other similar

justification for possession of obscene material” and “or

other special justification for possessing such material” is

a practical and reasonable means of avoiding the nearly

impossible, if not impossible, effort to list in the statute

all possible circumstances when public policy would

favor exemption from prosecution.

We hold that the exempting language of the statute is

not unconstitutionally vague. Decisions other than Illardo

that have approved the exempting language of the final

draft of the Code or comparable language include: Com-

monwealth v. Ferro (1977), 372 Mass. 379, 361 N.E.2d 1234;

State v. Davis (Tenn. 1983), 654 S.W.2d 688; 400 E. Bal-

timore Street, Inc. v. State (1981), 49 Md. App. 147, 431

A.2d 682.

As we have stated, the trial court, contrary to the

defendants’ argument, held the indictments involved

were not duplicitous. The indictments charged that the

defendants “sold or delivered *** an obscene maga-

zine.” The defendants argued that the indictments here

charged acts which were disparate and alternative acts,

either one of which would constitute an offense. Thus,

App. 11

the defendants say each count of the indictments charged

two crimes, making the count void. This court in People v.

Heard (1970), 47 Ill. 2d 501, considered questions involved

in charging a defendant in the disjunctive:

“The complaint, following the language of the

[offense of gambling] statute, charged the defen-

dants in the disjunctive, that is, it charged that

the defendants set up a policy game or pro-

moted a policy game or sold tickets and so on.

While a charge which follows the language of

the statute defining the crime and uses the dis-

junctive ‘or’ will be sufficient under some cir-

cumstances, it will not be sufficient where the

statute names disparate and alternative acts, any

one of which will constitute the offense. * * *

The statute here named specific acts which con-

stitute the crime of gambling, some of which

acts are clearly disparate and alternative. The

promoting of a policy game is not the same act

as transferring a policy ticket, for example. The

use of the disjunctive under these circumstances

causes uncertainty and conjecture as to which of

the alternatives the accused is charged with

committing.

The result was that the complaint was void

because it did not set forth the nature and ele-

ments of the charge with the certainty required

by the Federal constitution (U.S. Const., art. VI),

our constitution (Illinois Const., art. II, sec. 9)

and section 111-3 of our Code of Criminal Pro-

cedure. Ill. Rev. Stat. 1967, ch. 38, par. 111-3.”

People v. Heard, 47 Ill. 2d at 504-05.

The statute involved provides that it is a crime if a

person intentionally or recklessly “[s]ells, delivers or pro-

vides or offers or agrees to sell, deliver or provide any

obscene writing.” (Ill. Rev. Stat. 1987, ch. 38, par.

11-20(a)(1).) Thus it describes disparate and alternative

App. 12

acts, the performance of any one of which constitutes the

offense. Acts of sale and of delivery are alternative and

disparate acts. It is not necessary that a delivery be a sale;

material can be delivered without having been sold. A

sale may not involve delivery of what is sold. The proof

of one may not be proof of the other. We consider the

indictments involved were void for duplicity.

For the reasons given, the judgments of the circuit

court of McLean County are reversed and the causes are

remanded to that court.

Judgments reversed;

causes remanded.

App. 13

EXHIBIT B

STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE ELEVENTH

JUDICIAL CIRCUIT

COUNTY OF MC LEAN

PEOPLE OF THE STATE OF ) Order Entered

ILLINOIS, ) June 3, 1988

Plaintiff, ‘ CASE #86 CM 814

VS. )

CAPITOL NEWS, INC., |

Defendant. )

ORDER

Cause comes on for hearing on Defendant’s Motion

to Dismiss and Supplemental Motion to Dismiss, Defen-

dant having appeared by Counsel Glenn Stanko, People

of the State of Illinois having appeared by Assistant

State’s Attorney William Yoder, argument having been

presented by respective counsel, the Court having taken

said cause under advisement and having examined

points of authority submitted by respective counsel finds

as follows;

1. The Illinois Obscenity Statute, Illinois Revised

Statutes 1985, Ch.38, § 11-20, is not unconstitutionally

vague and indefinite for using such phrases as contem-

porary adult standards; purient interests, patently offen-

sive, or the lack of serious literary, artistic, political, or

scientific value. The use of such terms has been litigated

quite frequently and have been found to meet all consti-

tutional tests. See, Miller v. California, 413 U.S. 15, People v.

App. 14

Hall, 143 Ill.App.3rd 315, People v. McGeorge, 156

Ill.App.3rd 860.

2. The Court finds that the mental state, “recklessly

failing to exercise reasonable inspection” is a sufficient

mental state upon which to predicate liability from crimi-

nal obscenity. |

3. The charge is not rendered uncertain and vague

, by using the words “sold or delivered” obscene maga-

zines or materials. Said words are intimately associated in

meaning, and therefore do not render the indictment or

statute unconstitutionally vague, or duplicitous. See, Peo-

ple v. Oulson, 37 Ill.App.3rd 912.

4. The Court finds that there are sufficient reason-

able inferences to be drawn from the evidence and the

testimony presented at the grand jury to support the

indictment against this Defendant, and therefore this

Court will not disturb said indictment. Also, the Court

does not find that there is sufficient prosecutorial miscon-

duct to quash or dismiss the indictment.

5. Subsection (f)(2) of the obscenity statute relating

to affirmative defenses does give the Court a bit more

concern. Though the affirmative defenses may not be

violative of the equal protection and due process clauses

under the United States Constitution and Illinois Consti-

tution, there is the real question whether the use of the

term “scientific or other special justification” is uncon-

stitutionally vague. No Illinois cases are specifically on

point. The Court finds that the use of the phrase “scien-

tific or other special justification” makes the affirmative

defenses unconstitutionally vague. See, People v. Howell,

90 Misc.Id 722; 395 N.Y. 52d [sic] 933.

eee ee

App. 15

6. The next question is to determine whether in fact

the affirmative defense section of the statute may be

served from the remainder of the statute. The Court is to

attempt to uphold a statute, if at all possible. A phrase or

section of a statute may be severed if it does not change

the meaning or intent of the entire statute. In the case at

bar, it would seem that severing the affirmative defense

section would change the intent and meaning of the

entire statute. Therefore, this Court finds that the Motion

to Dismiss should be granted as the statute is unconstitu-

tionally vague.

IT IS THEREFORE ORDERED, ADJUDGED, AND

DECREED that Defendant’s Motion to Dismiss be and

hereby is ordered granted.

Dated this 3rd day of June, 1988.

ENTER:

/s/ Joseph H. Kelley

-JUDGE-

App. 16

EXHIBIT C

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL 62706

(217) 782-2035

October 1, 1990

Mr. Glenn A. Stanko

Reno, O’Byrne & Kepley

501 West Church St.

Champaign, Ill. 61820

Nos. 67480 -—- People State of Illinois, appellant, v. Cap-

itol News, Inc., et al., appellees. Appeals,

same Circuit Court (McLean).

67483

Cons.

The Supreme Court today DENIED the petition for

rehearing in the above entitled cause.

Opinion modified on denial of rehearing.

The mandate of this Court will issue to the appropriate

Appellate Court and/or Circuit Court or other agency on

October 11, 1990.

App. 17

EXHIBIT D

First Amendment

Constitution of the United States

Congress shall make no law respecting an establish-

ment 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.

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

shall 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 this jurisdiction the equal

protection of the laws.

App. 18

EXHIBIT E

Illinois Obscenity Statute

Ill.Rev.Stat. 1985, Ch. 38, 911-20

11-20 Obscenity

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

person commits obscenity when, with knowledge of the

nature of content thereof, or recklessly failing to exercise

reasonable inspection which would have disclosed the

nature or content thereof, he:

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

(2)

(3)

(4)

(5)

(6)

agrees to sell, deliver or provide any

obscene writing, picture, record or other

representation or embodiment 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 pre-

sents an obscene exhibition of his body for

gain; or

Creates, buys, procures or possesses

obscene matter 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 material represented or held out by him

to be obscene, whether or not it is obscene.

ilk. SRR nD tole ERTS

PE a tag iO See be

Le ees eS ee ee

App. 19

(b) Obscene Defined.

Any material or performance is obscene if: (1) the

average person, applying contemporary adult community

standards, would find that, taken as a whole, it appeals to

the prurient interest; and (2) the average person, apply-

ing contemporary adult community standards, would

find that it depicts or describes, in a patently offensive

way, ultimate sexual acts or sadomasochistic sexual acts,

whether normal or perverted, actual or simulated, or

masturbation, excretory functions or lewd exhibition of

the genitals; and (3) taken as a whole, it lacks serious

literary, artistic, political or scientific value.

Obscenity shall be judged with reference to ordinary

adults, except that it shall be judged with reference to

children or other specially susceptible audiences if it

appears from the character of the material or the circum-

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 material 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 lacking in serious literary,

artistic, political or scientific value.

In any prosecution for an offense under this Section

evidence shall be admissible to show:

App. 20

(1) The character of the audience for which the

material was designed or to which it was

directed;

(2) What the predominant appeal of the mate-

rial would be for ordinary adults or a spe-

cial audience, 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;

(5) Appeal to prurient interest, or absence

thereof, in advertising or other promotion

of the material;

(6) Purpose of the author, creator, publisher or

disseminator.

(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.

App. 21

(f) Affirmative Defenses.

It shall be an affirmative defense to obscenity that the

dissemination:

(1) Was not for gain and was made to personal

associates other than children under 18

years of age;

(2) Was to institutions or individuals having

scientific or other special justification for

possession of such material.

Amended by P.A. 84-709, § 1, eff. Jan. 1, 1986.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.