12-21-2024, 08:01 PM
Illinois Child Pornography Law is Unconstitutional and here is why. In 2003 the Illinois Supreme court heard the case of People v Alexander.
1. Background
On February 27, 2002, the defendant was indicted in the circuit court of Lake County on 45 counts of child pornography under section 11-20.1(a)(1)(ii) and 9 counts of child pornography under section 11-20.1(a)(6) of the Criminal Code of 1961. See 720 ILCS 5/11-20.1(a)(1)(ii), (a)(6) (West Supp. 2001). The indictment charged that the defendant possessed and intended to distribute computer depictions of children that he knew or reasonably should have known to be under 18 years of age engaged in various sexual activities.
The defendant entered a guilty plea to the first five counts in exchange for a seven-year sentence but later withdrew his plea after the United States Supreme Court decided Ashcroft. He then filed a motion to dismiss the indictment, asserting that sections 11-20.1(a)(1) and 11-20.1(a)(6) facially violated the federal and state constitutions. The defendant argued that the "depict by computer" language in section 11-20.1(a)(1) and the "depiction by computer" language in section 11-20.1(a)(6) prohibit virtual child pornography protected by Ashcroft. According to the defendant, "These Illinois statutes extend Illinois' prohibition against child pornography to sexually explicit images that appear to depict minors but were produced by computer without using any real children."
On May 15, 2002, the trial court granted the defendant's motion, finding sections 11-20.1(a)(1) and 11-20.1(a)(6) unconstitutional. The court stated:
"Inasfar as the Illinois statute is concerned, the statute was, of course, created before the pronouncements of the Supreme Court in the Ashcroft case. I find the Illinois statute to be *** as overbroad as the federal statute because it allows for someone possessing a computer-generated image to be convicted as if he were to have possessed a real child's picture, and that's something that the Constitution does not allow. That's something that the U.S. Supreme Court does not allow.
I read the Illinois statute to be similar to the federal statute, where a computer-generated picture might show someone that appears as a minor or conveys the impression that the material is a minor. *** Because the Illinois statute allows someone to be prosecuted and convicted because he possesses a depiction by computer of any child and does not make the distinction of real child or live child or an identifiable child; thus, the Illinois statute constitutionally fails gravely.
Therefore, insofar as this indictment pertains to those two sections of the statute that involve virtual children, that involve computer-generated images or children depicted by computer, this motion to dismiss will be granted." (Emphases added.)
The State appealed it to Illinois Supreme Court which ruled that section 11-20.1(f)(7) of the Illinois Child Pornography law was unconstitutional. Section 11-20.1(f)(7) states:
"For the purposes of this Section, "child pornography" includes a film, videotape, photograph, or other similar visual medium or reproduction or depiction by computer that is, or appears to be, that of a person, either in part, or in total, under the age of 18 or a person with a severe or profound intellectual disability, regardless of the method by which the film, videotape, photograph, or other similar visual medium or reproduction or depiction by computer is created, adopted, or modified to appear as such. "Child pornography" also includes a film, videotape, photograph, or other similar visual medium or reproduction or depiction by computer that is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the film, videotape, photograph, or other similar visual medium or reproduction or depiction by computer is of a person under the age of 18 or a person with a severe or profound intellectual disability."
That section of the law was "severed" from the rest of the law; however, it seems it has not been severed as the state wishes to believe. State Attorney throughout Illinois is still going after material that is not a real child but is "virtual" and as the state Supreme Court and US Supreme Court has not only said it is legal but is constitutional protected speech. So apparently that section is still be used and also believe other sections of the Illinois Child porn law is also being read to allow the arrest of individuals for virtual child pornography.
The law IS unconstitutional because it's not only going after speech that is illegal (real child porn) but it's going after virtual child porn (which is legal and constitutionally protected speech) under the gist of it all being child porn and illegal, which the US Supreme Court has said it is not.
Illinois Child Porn law
720 ILCS 5/11-20.1
Ashcroft v Free Speech Coalition (2002)
Ashcroft v. Free Speech Coalition | Oyez
People v State of Illinois v Alexander
People v. Alexander :: 2003 :: Supreme Court of Illinois Decisions :: Illinois Case Law :: Illinois Law :: US Law :: Justia
I WILL NOT ONLY FIGHT OVER THAT GENERAL WARRANT BULLSHIT, BUT I WILL DESTROY THE ILLINOIS CHILD PORNOGRAPHY LAW!!!
BTW State of Illinois for full discloser I belong to groups that filed amicus curiae supporting the Free Speech coalition in Ashcroft.
1. Background
On February 27, 2002, the defendant was indicted in the circuit court of Lake County on 45 counts of child pornography under section 11-20.1(a)(1)(ii) and 9 counts of child pornography under section 11-20.1(a)(6) of the Criminal Code of 1961. See 720 ILCS 5/11-20.1(a)(1)(ii), (a)(6) (West Supp. 2001). The indictment charged that the defendant possessed and intended to distribute computer depictions of children that he knew or reasonably should have known to be under 18 years of age engaged in various sexual activities.
The defendant entered a guilty plea to the first five counts in exchange for a seven-year sentence but later withdrew his plea after the United States Supreme Court decided Ashcroft. He then filed a motion to dismiss the indictment, asserting that sections 11-20.1(a)(1) and 11-20.1(a)(6) facially violated the federal and state constitutions. The defendant argued that the "depict by computer" language in section 11-20.1(a)(1) and the "depiction by computer" language in section 11-20.1(a)(6) prohibit virtual child pornography protected by Ashcroft. According to the defendant, "These Illinois statutes extend Illinois' prohibition against child pornography to sexually explicit images that appear to depict minors but were produced by computer without using any real children."
On May 15, 2002, the trial court granted the defendant's motion, finding sections 11-20.1(a)(1) and 11-20.1(a)(6) unconstitutional. The court stated:
"Inasfar as the Illinois statute is concerned, the statute was, of course, created before the pronouncements of the Supreme Court in the Ashcroft case. I find the Illinois statute to be *** as overbroad as the federal statute because it allows for someone possessing a computer-generated image to be convicted as if he were to have possessed a real child's picture, and that's something that the Constitution does not allow. That's something that the U.S. Supreme Court does not allow.
I read the Illinois statute to be similar to the federal statute, where a computer-generated picture might show someone that appears as a minor or conveys the impression that the material is a minor. *** Because the Illinois statute allows someone to be prosecuted and convicted because he possesses a depiction by computer of any child and does not make the distinction of real child or live child or an identifiable child; thus, the Illinois statute constitutionally fails gravely.
Therefore, insofar as this indictment pertains to those two sections of the statute that involve virtual children, that involve computer-generated images or children depicted by computer, this motion to dismiss will be granted." (Emphases added.)
The State appealed it to Illinois Supreme Court which ruled that section 11-20.1(f)(7) of the Illinois Child Pornography law was unconstitutional. Section 11-20.1(f)(7) states:
"For the purposes of this Section, "child pornography" includes a film, videotape, photograph, or other similar visual medium or reproduction or depiction by computer that is, or appears to be, that of a person, either in part, or in total, under the age of 18 or a person with a severe or profound intellectual disability, regardless of the method by which the film, videotape, photograph, or other similar visual medium or reproduction or depiction by computer is created, adopted, or modified to appear as such. "Child pornography" also includes a film, videotape, photograph, or other similar visual medium or reproduction or depiction by computer that is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the film, videotape, photograph, or other similar visual medium or reproduction or depiction by computer is of a person under the age of 18 or a person with a severe or profound intellectual disability."
That section of the law was "severed" from the rest of the law; however, it seems it has not been severed as the state wishes to believe. State Attorney throughout Illinois is still going after material that is not a real child but is "virtual" and as the state Supreme Court and US Supreme Court has not only said it is legal but is constitutional protected speech. So apparently that section is still be used and also believe other sections of the Illinois Child porn law is also being read to allow the arrest of individuals for virtual child pornography.
The law IS unconstitutional because it's not only going after speech that is illegal (real child porn) but it's going after virtual child porn (which is legal and constitutionally protected speech) under the gist of it all being child porn and illegal, which the US Supreme Court has said it is not.
Illinois Child Porn law
720 ILCS 5/11-20.1
Ashcroft v Free Speech Coalition (2002)
Ashcroft v. Free Speech Coalition | Oyez
People v State of Illinois v Alexander
People v. Alexander :: 2003 :: Supreme Court of Illinois Decisions :: Illinois Case Law :: Illinois Law :: US Law :: Justia
I WILL NOT ONLY FIGHT OVER THAT GENERAL WARRANT BULLSHIT, BUT I WILL DESTROY THE ILLINOIS CHILD PORNOGRAPHY LAW!!!
BTW State of Illinois for full discloser I belong to groups that filed amicus curiae supporting the Free Speech coalition in Ashcroft.