dissenting:
This is a difficult case, and it is with great reluctance that I dissent from the well-written majority opinion.
The material which the defendants are charged with possessing is admittedly repugnant. The State’s power to ban its commercial production and distribution is clear. (New York v. Ferber (1982), 458 U.S. 747, 73 L. Ed. 2d 1113, 102 S. Ct. 3348.) But I cannot agree that the State may peremptorily proscribe part of the contents of a private library, even if the material proscribed is usually unprotected by the first amendment. Where private possession of visual, written, or printed materials is concerned, the State must make a showing that the proscription is necessary to vindicate a compelling interest which cannot be served by some more narrowly tailored means. (See Stanley v. Georgia (1969), 394 U.S. 557, 568 n.11, 22 L. Ed. 2d 542, 551 n.11, 89 S. Ct. 1243, 1249 n.11.) Since I see no evidence except the assertion that the State cannot secure its admittedly compelling interests by banning the production and distribution of child pornography, rather than its private possession, I believe that this statute violates the first and fourteenth amendments to the Federal Constitution. Even assuming, however, that the statute does not fall afoul of the Federal Constitution, I am nevertheless convinced that it violates article I, sections 4 and 6, of our State constitution. For these reasons, I respectfully dissent.
I
Analysis of any first amendment question must begin with two inquiries: (1) Is the activity which the State seeks to regulate within the protection granted to “speech” under the first amendment? and, if so: (2) What is the standard of persuasion or proof that the State must meet in order to justify its regulation?
The contours of the “speech” protected by the first amendment are determined by reference to the amendment’s basic purposes. Speech is protected against governmental intrusion for reasons which range from the political and societal to the cultural and personal.
Freedom of speech, particularly freedom of political speech, is a necessary precondition for the maintenance of democratic self-government. (T. Emerson, The System of Freedom of Expression 46-48 (1970); A. Meiklejohn, Political Freedom 24-28 (1965).) A representative democracy presupposes the free competition of political ideas in the electoral marketplace. Political minorities must be given the chance to be heard and to persuade. No transient political majority can be granted a monopoly on free speech. (Gitlow v. New York (1925), 268 U.S. 652, 673, 69 L. Ed. 1138, 1149, 45 S. Ct. 625, 632 (Holmes, J., dissenting).) It is this need to maintain the preconditions necessary for political democracy that justifies the judicial abrogation of the will of an elected legislature.
Aside from its political importance, free speech serves several separate, and less obvious, functions. The first amendment protects not only political speech, but also various forms of nonpolitical communication, including nonpolitical art, music, and entertainment. (Winters v. New York (1948), 333 U.S. 507, 92 L. Ed. 840, 68 S. Ct. 665.) Communicative expression is protected partially because it is a necessary adjunct to political expression, and partially because the line between political and nonpolitical speech is not easily drawn. (F. Haiman, Speech & Law in a Free Society 171 (1981).) It is also protected for independent reasons: because it plays an essential role in the intellectual and moral development of a free people; because governmental censorship of its production has, historically, undermined the ability of artists to create works of import and value; and because the leisure to exchange and enjoy our creative expressions is one of the goods people seek from life in a civilized society.
Beyond its political or cultural functions, free speech serves a psychological purpose. It grants wide latitude even to the passive consumer of speech. It guarantees to adults the right to form their own personalities and tastes by their own choice of written, printed, or visual matter. (See Bolger v. Youngs Drug Products Corp. (1983), 463 U.S. 60, 77 L. Ed. 2d 469, 103 S. Ct. 2875.) It protects in certain instances speech which is inarticulate, incoherent, or crude. (See Cohen v. California (1971), 403 U.S. 15, 29 L. Ed. 2d 284, 91 S. Ct. 1780.) As a general rule, it forbids the government from attempting through criminal sanctions to control what peopie privately read, view, or think. This protection is premised upon the notion that privacy of thought (see, e.g., Wooley v. Maynard (1977), 430 U.S. 705, 51 L. Ed. 2d 752, 97 S. Ct. 1428) and, even, in certain instances, privacy of behavior, are crucial to the maintenance of political and cultural freedom. As one commentator has put it:
“The man who is compelled to live every minute of his life among others and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality and human dignity. Such an individual merges with the mass. His opinions, being public, tend never to be different; his aspirations, being known, tend always to be conventionally accepted ones; his feelings, being openly exhibited, tend to lose their quality of unique personal warmth and to become the feelings of every man. Such a being, although sentient, is fungible; he is not an individual.” Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U. L. Rev. 962, 1003 (1964).
The qualities of mind and spirit needed by adult members of a free society will not often be found among people who fear governmental intrusion into their bedrooms and reading rooms.
With these purposes in mind, the United States Supreme Court has delineated categories of spoken, visual, or printed matter which are not “speech” protected by the first amendment because they “are no essential part of any exposition of ideas, and are of such slight social value that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” (Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 86 L. Ed. 1031, 62 S. Ct. 766.) At one time these categories included defamation (Beauharnais v. Illinois (1952), 343 U.S. 250, 96 L. Ed. 919, 72 S. Ct. 725), commercial speech (Valentine v. Chrestensen (1942), 316 U.S. 52, 86 L. Ed. 1262, 62 S. Ct. 920), obscenity (Roth v. United States (1957), 354 U.S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304) and fighting words (Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 86 L. Ed. 1034, 62 S. Ct. 766). More recently, the Supreme Court has partially dropped defamation (New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710) and commercial speech (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), 425 U.S. 748, 48 L. Ed. 2d 346, 96 S. Ct. 1817) from the unprotected zone while including within it child pornography (New York v. Ferber (1982), 458 U.S. 747, 73 L. Ed. 2d 1113, 102 S. Ct. 3348).
I therefore freely concede that, in general, child pornography is worthless rubbish not entitled to the protection of the first amendment. However, the majority’s heavy reliance upon Ferber is misplaced. Ferber only addressed the question of whether a State could constitutionally ban the production and distribution of child pornography which did not meet the legal definition of obscenity. Ferber neither reached nor purported to reach the question of a ban on private possession. The conclusion reached in Ferber — that child pornography enjoyed no more protection than conventional obscenity — in no way affects the validity of Stanley. The obscenity at issue in Stanley enjoyed no more protection than the material at issue here. The true rationale for Stanley turns not on the nature of the material possessed but on the interest of the private possessor.
Stanley is based on the first amendment’s guarantee of personal autonomy of thought. The material protected bore no direct relation to the political process. It had no cultural value. But the State’s attempt to ban its mere private possession necessarily implicated the right of a private individual to determine for himself what he reads, sees, or hears in his own home. Any attempt to enforce such a law would necessarily infringe upon personal privacy. The very knowledge that police officers might search private libraries for proscribed material might well have an impact upon liberty of thought and belief. It was for this reason that Stanley granted to private possession of even unprotected material the highest protection possible under the first amendment: the State was required to provide “compelling reasons” for proscription.
While the majority’s analysis purports to apply a compelling-interest test, it is deficient in several respects.
First, to meet a compelling-interest test, the State must usually show not only that its asserted interest is “compelling,” but also that its restriction is “narrowly tailored” to serve that interest. (First National Bank v. Bellotti (1978), 435 U.S. 765, 786, 55 L. Ed. 2d 707, 724, 98 S. Ct. 1407, 1421.) There can be no question that an interest in preventing child abuse is compelling. (See, e.g., Globe Newspaper Co. v. Superior Court (1982), 457 U.S. 596, 73 L. Ed. 2d 248, 102 S. Ct. 2613.) The true question is whether the interest in preventing such abuse can only be served by a ban on private possession.
The majority reasons that such a ban is needed as a necessary adjunct to bans on production and distribution. Supposedly it is not possible to prevent production and distribution without “drying up” the market for child pornography by banning its consumption. If there is any empirical evidence for this proposition, it has escaped me. But more importantly, this is the very argument which was rejected by the Court in Stanley. After summarizing the State’s assertion that “prohibition of possession of obscene materials is a necessary incident to statutory schemes prohibiting distribution,” the Court concluded that the protected interest could not be overridden “by the need to ease the administration of otherwise valid criminal laws.” (Stanley, 394 U.S. at 567-68, 22 L. Ed. 2d at 551, 89 S. Ct. at 1249.) Indeed, acceptance of such an argument would render Stanley meaningless, because the State could always argue that a ban on private possession of otherwise unprotected speech was a necessary incident to statutes banning its production or distribution.
I suspect that the true reason for the court’s decision is simply that the court believes that child pornography is more harmful than obscenity. There indeed may be some justification for treating material which is harmful more harshly than material which is merely worthless. But such a distinction is not supported by citation to any authority, and, if accepted, would limit Stanley pretty much to its facts. It could always be argued that banning the private possession of harmful material would prevent the harm that the production or distribution of such material has previously caused.
The only compelling interest which might justify banning private possession of such material would be an interest related to a harm which flows from the possession itself, and not merely from prior production or distribution. I think it is arguable, although the majority does not emphasize this point, that the State has an independent interest in protecting the privacy of abused children by tracking down and destroying materials which record the invasion of that privacy. The State may have an interest in relieving the “distressful feeling that [the abused child’s] act has been recorded for all to see.” (Shouvlin, Preventing the Sexual Exploitation of Children: A Model Act, 17 Wake Forest L. Rev. 535, 545 (1981).) To put it another way, private possession of child pornography might be seen as a continuing invasion of the child’s privacy. But there is no indication, either in the record or the briefs, that this statute was designed to serve such an interest, or that this interest could not be accommodated by more narrowly tailored means. Moreover, since the strength of this interest depends heavily upon the damage done to particular children in particular contexts, a civil suit brought by the child or on the child’s behalf would seem to me more narrowly tailored to vindicate the child’s interest in regaining peace of mind.
For these reasons, I believe that this statute violates the speech clause of the first amendment to the Federal Constitution, as applied to the States through the due process clause of the fourteenth amendment.
II
Even were I to assume that this statute could pass muster under the Federal Constitution, I would still believe that it violates article I, sections 4 and 6, of our Illinois Constitution of 1970.
As the majority notes, the parties to this case clearly cited the Illinois Constitution in their briefs. Moreover, their invocation of it was not merely the usual curt appendix to an argument relying principally on the Federal Constitution and Federal precedents (see, e.g., People v. Davis (1987), 119 Ill. 2d 61), but a separate argument contained under a separate heading which cited separate authorities. I am therefore particularly disappointed by the majority’s failure to separately address it.
Article I, section 6, of our constitution provides that:
“The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means. No warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized.” (Emphasis added.) Ill. Const. 1970, art. I, §6.
The report of the Bill of Rights Committee which accompanied the Committee’s draft of section 6 clearly envisioned a broad meaning for the term “invasions of privacy.” The Committee stated:
“It is doubtless inevitable that any person who chooses to enjoy the benefits of living in an organized society cannot also claim the privacy he would enjoy if he were to live away from the institutions of government and the multitudes of his fellow men. It is probably also inevitable that infringements on individual privacy will increase as our society becomes more complex, as government institutions are expected to assume larger responsibilities, and as technological developments offer additional or more effective means by which privacy can be invaded. In the face of these conditions the Committee concluded that it was essential to the dignity and well being of the individual that every person be guaranteed a zone of privacy in which his thoughts and highly personal behavior were not subject to disclosure or review. The new provision creates a direct right to freedom from such invasions of privacy by government or public officials.” (Emphasis added.) 6 Record of Proceedings, Sixth Illinois Constitutional Convention 31-32.
I should think it would be beyond question that a person’s choice of reading or viewing matter falls within a “zone of privacy.” For reasons I will elaborate below, reading or viewing something within one’s own home is a quintessential example of “highly personal behavior.” And while invasion into even this type of privacy might be reasonable if justified by a compelling interest, I cannot, for the reasons I advanced above, agree with the majority that the State has demonstrated a compelling interest.
Even were I to agree with the majority on this point, I would still be troubled by the majority’s failure to accord our State constitutional protection of privacy a significance independent of the right of privacy recognized under the Federal Constitution.
While this court has previously suggested that the search and seizure language of article I, section 6, should be construed in lockstep with Federal interpretation of the fourth amendment (People v. Tisler (1984), 103 Ill. 2d 226, 241-42), the same court acknowledged that the revision of article I, section 6, in the Constitution of 1970 contained new provisions dealing with eavesdropping and invasions of privacy. (See Tisler, 103 Ill. 2d at 242 (“the intent of the constitutional convention was to extend the protection afforded by the fourth amendment of the Federal Constitution and of our 1870 State Constitution to cover eavesdropping and to protect against invasions of privacy”); Tisler, 103 Ill. 2d at 257-58 (Ward, J., concurring) (“the delegates did expand the search-and-seizure provisions in the proposed constitution to include a guarantee of freedom from unreasonable eavesdropping and invasions of privacy”).) In other words, our court has implicitly recognized that the citizens of Illinois enjoy greater protection from governmental invasions of privacy under the Illinois Constitution than they enjoy under the Federal Constitution.
In prior opinions I have suggested that we need not march in lockstep with Federal interpretations of Federal constitutional provisions, even when our State constitution is worded similarly. (People v. Holland (1987), 121 Ill. 2d 136, 164 (Clark, C.J., specially concurring); People v. Tisler (1984), 103 Ill. 2d 226, 258 (Clark, J., specially concurring).) While not wishing to repeat those arguments in detail, I would note that they apply a fortiorari to the right of privacy.
Unlike our State constitution, the Federal Constitution does not contain any specific guarantee of privacy. The “right to privacy,” nowhere mentioned in the first 10 amendments to the Federal Constitution, has been inferred from the “penumbras” of specific guarantees actually contained in the Bill of Rights, as applied to the States through the due process clause of the fourteenth amendment. (Griswold v. Connecticut (1965), 381 U.S. 479, 481-84, 14 L. Ed. 2d 510, 513-15, 85 S. Ct. 1678, 1680-81.) The Court in Griswold reasoned that the values inherent in many of the guarantees, particularly those of the first amendment and fourth amendments, bespoke a concern for privacy. The Court also relied on the ninth amendment’s reservation of rights to the people.
This approach has been the subject of great criticism and debate. A particular focus of concern has been the extent to which unelected Federal judges may be tempted to use privacy as a tool for the open-ended review of the wisdom or appropriateness of legislation. A related concern has been the perceived absence of any textual or historical support for a constitutional right of privacy. (See, e.g., Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973).) It has been felt that the absence of such support allows judges, under the guise of interpreting a right of privacy, to write their personal predilections into law.
Perhaps in response to this criticism, the United States Supreme Court has limited the right of privacy in two distinct, although interrelated, ways. First, it has tended to recognize as protected by the right of privacy choices and activities which are related to the family, among them: contraception (Griswold v. Connecticut (1965), 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678), abortion (Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705), and familial living arrangements (Moore v. City of East Cleveland, Ohio (1977), 431 U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932). The justification for this focus upon the family has been the perception that the family preceded the establishment of civil society and that its preservation must therefore be among the “rights reserved to the people.” (Griswold, 381 U.S. at 495-96, 14 L. Ed. 2d at 522, 85 S. Ct. at 1688 (plurality opinion).) Second, the Court has sought to find, wherever possible, historical bases for recognized rights of privacy. The Court has derived rights of privacy by scrutinizing the laws and mores prevalent in the late eighteenth and early nineteenth centuries, with an eye towards whether a particular practice was commonly accepted or, instead, routinely proscribed. Thus the Court has derived rights to contraception and abortion from the early lack of legislation against these practices. (See Roe, 410 U.S. at 129-40, 35 L. Ed. 2d at 164-70, 93 S. Ct. at 715-20.) Similarly, it derived a right to live in nonconventional living arrangements from the historical prevalence of extended families. (See Moore, 431 U.S. at 507-10, 52 L. Ed. 2d at 542-44, 97 S. Ct. at 1939-41 (Brennan, J., concurring, joined by Marshall, J.).) On the other hand, the universal criminalization of nonconventional sexual practices in colonial and nineteenth-century America has been cited to support the proposition that there is no constitutional right to engage in sodomy. Bowers v. Hardwick (1986), 478 U.S. 186, 192-94, 92 L. Ed. 2d 140, 146-48, 106 S. Ct. 2841, 2844-46.
I express no opinion about the merits of any of the issues described above, and I would not hesitate to use parts of the Supreme Court’s approach in the interpretation of our own guarantee against invasions of privacy. But I am concerned with the absolute subservience to Federal precedent which the majority’s uncritical citation of Hardwick seems to reflect. The Supreme Court’s approach is a guide. It is persuasive. But it is not gospel. I see no reason to limit the “privacy” protected against invasion exclusively to matters relating to the family, although the preservation of family life is obviously of supreme importance. And I do not believe that we are bound by the norms and mores of our ancestors, instructive as these may be. We, unlike the United States Supreme Court, are dealing with an explicit, rather than an implicit, provision. We are not constrained by the folkways of 1770 or 1870 in the interpretation of a constitution which was adopted in 1970. Nor must our interpretation of privacy proceed in a void. The committee reports, the debates of the convention, and the explanation given to the adopting electorate all are sources for determining its meaning under our State constitution.
As I have stated above, I think the key to the interpretation of our guarantee against unreasonable invasions of privacy is the reference to “highly personal behavior” in the committee report. Behavior can be “highly personal” in one of two senses: it can be “personal” because it reflects individualized drives, peculiarities, or tastes, or because it does not normally affect or harm other individuals. In general, private reading, viewing, and thinking are just such activities. They are highly personal in the sense that they play an important role in forming the human personality, and highly personal in the sense that they will rarely impinge on the legitimate interests of persons other than the person who does the reading, viewing, or thinking. The interest in free access to such activities is fundamental, standing at the confluence of privacy and speech. Since I believe that the majority’s opinion fails to give it the proper weight, I dissent.