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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 1120

## Text

® 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

a
4

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

Petitioners,

STATE OF ILLINOIS,
Respondent.

a
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Petition For A Writ Of Certiorari
To The Supreme Court Of Illinois

a
vw

PETITION FOR A WRIT OF CERTIORARI

A
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.

ii
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

iv
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

Vv

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.

i.
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In The

Supreme Court of the United States
October Term, 1990

>.
—_

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

Petitioners,
Vv.
\

STATE OF ILLINOIS,
Respondent.

A.
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Petition For A Writ Of Certiorari
To The Supreme Court Of Illinois

-.
4

PETITION FOR A WRIT OF CERTIORARI

A.
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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.

ea
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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.

oe
A

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.

A.
~

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
I.

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

7

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

10

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.

11

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

12

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

13

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

14

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.

A.
4

15

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,

ey

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

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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.

(c) Interpretation of Evidence.

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3344%3A1. Public record. Not legal advice.