also dissenting:
The petitions filed by the State in this case charged respondents with committing hate crime (720 ILCS 5/12 — 7.1 (West 1994)) based on disorderly conduct (720 ILCS 5/26 — 1 (West 1994)) in that respondents "displayed patently offensive depictions of violence toward African-Americans.” I wholeheartedly agree with the State that the children’s pencil sketches are patently offensive. Because I believe, however, that a recent decision by the United States Supreme Court conclusively prohibits the State from punishing respondents under the Illinois hate crime statute for displaying these patently offensive depictions, I would affirm the circuit court’s dismissal of the charges.
The circuit court dismissed the charges of hate crime because the alleged victim of the crime is not a member of the African-American race. The question before a reviewing court, however, is the correctness of the result reached by the lower court and not the correctness of the reasoning upon which that result was reached. People v. Novak, 163 Ill. 2d 93, 101 (1994). Therefore, as a reviewing court, we can sustain the decision of a lower court for any appropriate reason, regardless of whether the lower court relied on those grounds and regardless of whether the lower court’s reasoning was correct. Novak, 163 Ill. 2d at 101.
In R.A. V. v. City of St. Paul, 505 U.S. 377,120 L. Ed. 2d 305, 112 S. Ct. 2538 (1992), the United States Supreme Court sustained a Minnesota trial court’s dismissal of a petition which charged a minor with violating St. Paul’s Bias-Motivated Crime Ordinance. That ordinance provided as follows:
" 'Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemean- or.’ ” R.A.V., 505 U.S. at 380, 120 L. Ed. 2d at 315, 112 S. Ct. at 2541, quoting St. Paul, Minn., Legis. Code § 292.02 (1990).
The minor in R.A.V. allegedly burned a cross in the front yard of a black family’s home. R.A.V., 505 U.S. at 379, 120 L. Ed. 2d at 315, 112 S. Ct. at 2541. The trial court ruled that the Bias-Motivated Crime Ordinance was substantially overbroad and impermissibly content based, and therefore facially invalid under the first amendment. R.A.V., 505 U.S. at 380, 120 L. Ed. 2d at 315, 112 S. Ct. at 2541. The Minnesota Supreme Court reversed, holding that the ordinance regulated only "fighting words,” which the first amendment does not protect, and was a narrowly tailored means toward accomplishing a compelling governmental interest. In re Welfare of R.A.V., 464 N.W.2d 507, 510-11 (Minn. 1991).
The United States Supreme Court reversed, ruling that the minor could not be punished under the St. Paul ordinance. R.A.V., 505 U.S. at 396, 120 L. Ed. 2d at 326, 112 S. Ct. at 2550. The Court declared the ordinance facially unconstitutional because it prohibited "otherwise permitted speech solely on the basis of the subjects the speech addresses.” R.A.V., 505 U.S. at 381, 120 L. Ed. 2d at 316, 112 S. Ct. at 2542. The Court accepted, arguendo, the Minnesota Supreme Court’s construction of the statute as proscribing only fighting words, but held that nevertheless "government may not regulate [the] use [of fighting words] based on hostility — or favoritism — towards the underlying message expressed.” R.A.V., 505 U.S. at 386, 120 L. Ed. 2d at 320, 112 S. Ct. at 2545. The Court held that because "the ordinance applies only to 'fighting words’ that insult, or provoke violence, 'on the basis of race, color, creed, religion or gender,’ ” it constituted impermissible "content discrimination.” R.A.V., 505 U.S. at 391, 120 L. Ed. 2d at 323, 112 S. Ct. at 2547. According to the Court, "[t]he First Amendment does not permit [the state] to impose special prohibitions on those speakers who express views on disfavored subjects.” R.A.V., 505 U.S. at 391, 120 L. Ed. 2d at 323, 112 S. Ct. at 2547. The Court therefore ruled that the minor could not be prosecuted for disorderly conduct based on violation of the Bias-Motivated Crime Ordinance.
I believe it obvious that, as applied to the facts of the instant case, the Supreme Court’s decision in R.A. V. conclusively prohibits the State from prosecuting respondents based on the allegations of the instant petitions, though not because the Illinois hate crime statute (720 ILCS 5/12 — 7.1 (West 1994)) is unconstitutional on its face, as the St. Paul ordinance was. The Supreme Court, less than a year after deciding R.A.V., sustained the validity of a Wisconsin law which, like the Illinois statute, punishes persons who commit crimes based on discriminatory motives. Wisconsin v. Mitchell, 508 U.S. 476, 480, 124 L. Ed. 2d 436, 442, 113 S. Ct. 2194, 2197 (1993) (upholding an increase in penalty for persons convicted of certain crimes if the person intentionally selected his victim because of the victim’s race, religion, color, disability, sexual orientation, national origin or ancestry). The trial court in Mitchell increased defendant’s aggravated battery sentence after finding that he selected his victim based on the victim’s race. The Supreme Court held that the Wisconsin statute, unlike the St. Paul ordinance inR.A.V., is aimed not at speech but rather at "conduct unprotected by the First Amendment,” i.e., selecting a person against whom a crime is committed. Mitchell, 508 U.S. at 487, 124 L. Ed. 2d at 447, 113 S. Ct. at 2201. As the majority in the instant case correctly observes, the Illinois hate crime statute similarly imposes punishment for committing a crime because of a person’s race. In this sense, it is identical to the Wisconsin measure which the Supreme Court held to be facially valid under the first amendment.
Although section 12 — 7.1 of the Criminal Code (720 ILCS 5/12 — 7.1 (West 1994)) is thus not facially unconstitutional, I believe R.A.V. clearly dictates that the statute is unconstitutional as applied to respondents’ conduct in the instant case. The St. Paul ordinance struck down in R.A. V. provided that a person commits disorderly conduct when he " 'places on public or private property a symbol *** which [he] knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race.’ ” R.A.V., 505 U.S. at 380, 120 L. Ed. 2d at 315, 112 S. Ct. at 2541, quoting St. Paul, Minn., Legis. Code § 292.02 (1990). The Illinois hate crime statute under which respondents are charged punishes disorderly conduct committed "by reason of the actual or perceived race *** of another individual or group of individuals.” 720 ILCS 5/12 — 7.1(a) (West 1994). In Illinois, a person commits disorderly conduct when he "knowingly *** [d]ces any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace.” 720 ILCS 5/26 — 1 (West 1994). The petitions in the instant case charged that respondents committed disorderly conduct in that they "displayed patently offensive depictions of violence toward African-Americans. ’ ’
I believe that the conduct described in the petitions falls squarely within that class of expression which the Supreme Court has declared "government may not regulate *** based on hostility — or favoritism — towards the underlying message expressed.” R.A.V., 505 U.S. at 386, 120 L. Ed. 2d at 320, 112 S. Ct. at 2545. The allegedly criminal conduct charged is the display of depictions of violence toward African-Americans. Punishing respondents for this conduct under the hate crime statute, however, clearly violates R.A. F.’s holding that government may not silence "otherwise permitted speech solely on the basis of the subjects the speech addresses.” R.A.V., 505 U.S. at 381, 120 L. Ed. 2d at 316, 112 S. Ct. at 2542. Although the petitions allege that respondents’ display of the depictions constituted disorderly conduct, the allegations of disorderly conduct in this case, just as in R.A. V., are based solely on the charge that the patently offensive depictions were intended to alarm or disturb by reason of race. R.A.V., 505 U.S. at 391, 120 L. Ed. 2d at 323, 112 S. Ct. at 2547. I believe R.A. V. dictates that the State’s use of the hate crime statute in the instant case to punish the display of depictions "that insult, or provoke violence, 'on the basis of race’ ” constitutes impermissible "content discrimination” under the first amendment. R.A.V., 505 U.S. at 391, 120 L. Ed. 2d at 323, 112 S. Ct. at 2547.
Respondents contend, both in their brief and in oral argument, that the petitions allege only that they "peacefully expressed unpopular views,” behavior which this court has held may not be punished under the guise of a disorderly conduct charge. City of Chicago v. Meyer, 44 Ill. 2d 1, 4 (1969); People v. Raby, 40 Ill. 2d 392, 397 (1968). The majority’s sole response to this contention is that currently there is "insufficient information upon which to determine whether first amendment concerns may be implicated by a criminal prosecution based entirely upon the display of a written and drawn depiction.” 176 Ill. 2d at 553. I believe that no factual information whatsoever is required to answer this question as framed by the majority. Rather, it is a question of law, the answer to which is that the first amendment, as interpreted by the Supreme Court in R.A.V., conclusively prohibits a hate crime prosecution based entirely upon the display of a written and drawn depiction. Moreover, that the record in this case is exceedingly sparse, revealing almost nothing about the circumstances of the alleged offense, is not respondents’ fault. It is the State’s burden to file a charging instrument which is legally sufficient to allege commission of an offense. 725 ILCS 5/111 — 3(a) (West 1994). The State failed to do so in this case, because all of the conduct described in the petitions is protected by the United States Constitution from punishment under the Illinois hate crime statute.
For this reason, and notwithstanding the patently offensive nature of the drawings, I respectfully dissent.