also dissenting:
The hate crime statute provides that a hate crime offense is committed where a person commits one of the listed predicate offenses "by reason of the actual or perceived race *** of another individual or group of individuals.” 720 ILCS 5/12 — 7.1 (West 1994). I must first agree with the conclusion reached by the trial and appellate courts, finding that this language requires that the victim or victims of a hate crime be members of a protected class or perceived to be members of a protected class. More importantly, I believe that the respondents may not constitutionally be charged with the predicate offense of disorderly conduct for displaying a drawing, despite its offensive character. Therefore, I respectfully dissent.
I. STATUTORY CONSTRUCTION
The legislature specifically amended the hate crime statute to include the words "actual or perceived” so that it would reach instances where the perpetrator "perceived” the victim to be of a protected class, even if that perception is incorrect. Representative Schakowsky described the purpose of the amendment during debates in the House:
"House Bill 1356 amends the ... Hate Crimes Act *** by adding only three words, and those words are 'actual or perceived’. And this is to make sure that people who are the victims of a hate crime who aren’t actually the person that the ... perpetrator thought they were ([t]hat is if someone were beaten up because he or she was perceived to be Jewish and that person wasn’t, if he or she were perceived to be Japanese and was really Korean), that the perpetrator of that crime would still be guilty and couldn’t use as an escape the fact that the victim wasn’t who he thought he was.” (Emphasis added.) 88th Ill. Gen. Assem., House Proceedings, April 20, 1993, at 167-68.
If the victim does not have to be a member of a protected class, then the legislature would not have needed to amend the statute to include this language because the status of the victim would not be at issue.
The majority determines that the "actual or perceived” language is ambiguous and requires judicial construction. With due respect, it sounds as if the plain language of the statute was subjected to judicial deconstruction:
"Inclusion of the phrase 'actual or perceived’ as a modifier of race and of the other enumerated classes indicates, however, that the race, color, religion, etc., of the individual or group that provides reason for the offense is capable of being perceived by an accused. This suggests that such individual has actual contact, or has had actual contact, at the least, with the accused so that his or her race, religion, etc., is perceivable.” 176 Ill. 2d at 543.
I do not agree that the words "actual or perceived” were really intended by the legislature to ensure that the protected class of some individual who may not be the victim "is capable of being perceived.” I am not even exactly sure what that means.
The majority also reasons that it is within the purpose of the hate crime statute to punish a perpetrator who selects a victim because of the victim’s support of or association with some protected class. I wholeheartedly agree that the statute should be drafted to include these situations as a matter of good public policy. However, the statute as written does not reach these circumstances and any such change in the statute must come from the legislature, not this court. I will not judicially rewrite the statute under the guise of statutory construction.
Furthermore, I am constrained by law to interpret criminal statutes in a lenient manner. People ex rel. Gibson v. Cannon, 65 Ill. 2d 366, 370-71 (1976). Where a criminal statute is capable of two constructions, the one that operates in favor of the accused is to be adopted. Gibson, 65 Ill. 2d at 371. Therefore, I would hold that the hate crime statute requires that the victim be a member of a protected class or perceived to be a member of a protected class. It is simply too great of a stretch for me to ascribe any other meaning to the "actual or perceived” language in the hate crime statute.
II. FIRST AMENDMENT ISSUES
The delinquency petitions alleged that the respondents committed the predicate offense of disorderly conduct in that they "displayed patently offensive depictions of violence toward African-Americans in such an unreasonable manner as to disturb James Jeffries and provoke a breach of the peace.” I believe that respondents’ conduct cannot be charged as the predicate offense of disorderly conduct without violating first amendment principles, which are applicable to the states under the fourteenth amendment. U.S. Const., amends. I, XIV. Therefore, I believe that the majority errs in stating that the "petitions and stipulations sufficiently set forth charges of disorderly conduct.” 176 Ill. 2d at 553.
A. The Drawing is Speech
The charged conduct of "displaying” the drawing qualifies as speech under the first amendment. In Cohen v. California, 403 U.S. 15, 16, 29 L. Ed. 2d 284, 289, 91 S. Ct. 1780, 1784 (1971), the United States Supreme Court reviewed the conviction of a war protester who wore a jacket to court embossed with the statement "Fu— the draft.” The protester was convicted of breaching the peace for his conduct " 'which has a tendency to provoke others to acts of violence or to in turn disturb the peace’ *** [citation].” (Emphasis in original.) Cohen, 403 U.S. at 17, 29 L. Ed. 2d at 289, 91 S. Ct. at 1784. In reversing the conviction, the Court found that the defendant’s conduct of displaying his message constituted speech protected by the first amendment:
"The conviction quite clearly rests upon the asserted offensiveness of the words [defendant] used to convey his message to the public. The only 'conduct’ which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon 'speech,’ [citation] ***.” (Emphasis in original.) Cohen, 403 U.S. at 18, 29 L. Ed. 2d at 290, 91 S. Ct. at 1784.
Similarly, I believe that respondents’ conduct in displaying the drawings constitutes speech. The only conduct the State sought to charge is the fact of a racially offensive communication.
Moreover, this is not a case where there is some non-speech element of the respondents’ conduct that could be separately regulated where there is a sufficiently important governmental interest at stake. Cf. United States v. O’Brien, 391 U.S. 367, 376, 20 L. Ed. 2d 672, 679-80, 88 S. Ct. 1673, 1678-79 (1968) (finding that burning draft cards may be regulated because "when 'speech’ and 'nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms”). Thus, the charge of disorderly conduct must come under some exception to the protection afforded speech under the first amendment such as obscenity, incitement to imminent violence or fighting words.
B. Obscenity
Generally, obscene material is not protected by the first amendment. Roth v. United States, 354 U.S. 476, 485, 1 L. Ed. 2d 1498, 1507, 77 S. Ct. 1304, 1309 (1957). Obscene material is that which deals with sex in a manner appealing to prurient interest. Roth, 354 U.S. at 487, 1 L. Ed. 2d at 1508, 77 S. Ct. at 1310. Respondents’ drawings were not obscene.
C. Incitement to Violence
The charge of disorderly conduct also does not pass constitutional scrutiny on the basis that the drawings depict or advocate violence. In Brandenburg v. Ohio, 395 U.S. 444, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969) {per curiam), the United States Supreme Court reversed a Ku Klux Klan leader’s criminal conviction for advocating violence. The Supreme Court held that the state may not "forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (Emphasis added.) Brandenburg, 395 U.S. at 447, 23 L. Ed. 2d at 434, 89 S. Ct. at 1829. The Court struck down the Ohio statute because it was not narrowly drawn to distinguish between the advocacy of a theory of violence and the advocacy of immediate lawless action.
The respondents’ display of the drawings was not a direction to imminent violent behavior. Cf. Feiner v. New York, 340 U.S. 315, 95 L. Ed. 295, 71 S. Ct. 303 (1951) (inciting crowd to riot not protected by the first amendment). In addition, the disorderly conduct statute is not narrowly drafted to reach such circumstances. Therefore, the violent content of the drawings may not, consistent with the first amendment, serve as a basis for the charge of disorderly conduct.
D. Fighting Words
The reason that fighting words are excluded from the protection of the first amendment is because such words constitute a nonspeech element of communication. R.A.V. v. City of St. Paul, 505 U.S. 377, 386, 120 L. Ed. 2d 305, 319, 112 S. Ct. 2538, 2545 (1992). This small class of fighting words is considered to provoke the average person to fisticuffs and thereby cause a breach of the peace. Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 86 L. Ed. 1031,1035, 62 S. Ct. 766, 769 (1942). Thus, fighting words are categorically excluded from first amendment protection because they constitute an intolerable mode of expressing whatever idea the speaker wishes to convey. R.A.V., 505 U.S. at 393, 120 L. Ed. 2d at 324, 112 S. Ct. at 2548-49.
The Supreme Court has carefully limited the reach of disorderly conduct statutes in the area of fighting words because of the danger that such statutes may be used to suppress disfavored speech. Disorderly conduct statutes must be narrowly drawn or construed so that the statutes do not reach protected speech. If a disorderly conduct statute is not limited on its face or by judicial construction as applying only to "fighting words,” then the statute is overbroad and unconstitutional. Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d 408, 413, 92 S. Ct. 1103, 1105 (1972). Furthermore, even if a defendant’s conduct clearly involves fighting words he or she may still challenge a statute that is not properly limited on its face or by judicial construction to only fighting words. Plummer v. Columbus, 414 U.S.,2, 3, 38 L. Ed. 2d 3, 5, 94 S. Ct. 17, 18 (1973); Lewis v. City of New Orleans, 415 U.S. 130, 133-34, 39 L. Ed. 2d 214, 219, 94 S. Ct. 970, 972-73 (1974).
The United States Supreme Court has defined fighting words as direct personal insults. In Cantwell v. Connecticut, 310 U.S. 296, 84 L. Ed. 1213, 60 S. Ct. 900 (1940), the Supreme Court reversed a breach of peace conviction against an individual who played a phonograph record in public attacking the Catholic religion in front of Catholics who had gathered. The Court recognized that the state may constitutionally punish a speaker for breaching the peace where the speaker’s remarks constitute "profane, indecent or abusive remarks directed to the person of the hearer” because "personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution.” Cantwell, 310 U.S. at 309-10, 84 L. Ed. at 1221, 60 S. Ct. at 906. However, the general attack on the Catholic religion did not constitute personal abuse of any member of the audience. Therefore, the Court found that the speech was protected by the first amendment.
As stated above, in Cohen v. California, 403 U.S. 15, 29 L. Ed. 2d 284, 91 S. Ct. 1780 (1971), the Supreme Court similarly reversed a defendant’s disturbing the peace conviction for displaying the words "Fu— the Draft” on a jacket worn to court. The Court found that although the display used vulgar language and contained political expression that some may find offensive, it did not constitute fighting words. The Court reasoned that the display did not constitute personally abusive epithets which are " 'directed to the person of the hearer.’ ” Cohen, 403 U.S. at 20, 29 L. Ed. 2d at 291, 91 S. Ct. at 1785-86, quoting Cantwell, 310 U.S. at 309, 84 L. Ed. at 1221, 60 S. Ct. at 906.
The drawings at issue in the instant case were not personally abusive epithets directed to the person of the hearer. Therefore, respondents may not be charged with disorderly conduct on the basis that the display of the drawings constituted fighting words.
E. Audience Reaction and Vagueness
Respondents’ charge of disorderly conduct cannot rest simply on the fact that the speech "disturbed an individual and provoked a breach of the peace.” 176 Ill. 2d at 553. In Ashton v. Kentucky, 384 U.S. 195, 16 L. Ed. 2d 469, 86 S. Ct. 1407 (1966), the Supreme Court reversed a conviction under libel law making it an offense to circulate " 'any writing calculated to create disturbances of the peace.’ ” Ashton, 384 U.S. at 198, 16 L. Ed. 2d at 471, 86 S. Ct. at 1409. The Court found this standard too vague because it requires an individual to calculate the "boiling point” of a particular person or group. Ashton, 384 U.S. at 200, 16 L. Ed. 2d at 472-73, 86 S. Ct. at 1410. The Court also reasoned that such a standard makes it a crime simply because others have no self-control and cannot refrain from violence. Ash-ton, 384 U.S. at 200, 16 L. Ed. 2d at 473, 86 S. Ct. at 1410.
Moreover, the Supreme Court has specifically held that the expression of racist views may not be charged as a breach of the peace based on the reaction the views provoke. In Terminiello v. City of Chicago, 337 U.S. 1, 93 L. Ed. 1131, 69 S. Ct. 894 (1949), the defendant was convicted under a breach of the peace ordinance for giving a speech railing against religious and racial minorities to a howling crowd. The jury was instructed that it could convict defendant under the ordinance for conduct that " 'stirs the public to anger, invites dispute, brings about a condition of unrest or creates a disturbance.’ ” Terminiello, 337 U.S. at 4, 93 L. Ed. at 1134, 69 S. Ct. at 895. In striking down the statute as vague and over-broad, the Supreme Court stated:
"[A] function of free speech under our form of government is to invite dispute. It may indeed best serve its highest purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and chailenging. It may strike at prejudices and preconceptions and may have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, [citation] is nevertheless protected ***. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.” Terminiello, 337 U.S. at 4-5, 93 L. Ed. at 1134-35, 69 S. Ct. at 896.
Thus, the disorderly conduct charges here at issue cannot be upheld based merely on the fact that the content of respondents’ speech disturbed the victim. See also Texas v. Johnson, 491 U.S. 397, 408-10, 105 L. Ed. 2d 342, 356-57, 109 S. Ct. 2533, 2542-43 (1989) (rejecting contention that flag burning can be banned because of State’s claim that such expression is offensive to some and may cause a breach of the peace).
F. Insufficiency of Disorderly Conduct Charge
For these reasons, I would find that the display of the drawings is speech. I would further find that the disorderly conduct statute reaches only speech that amounts to fighting words or the incitement to riot. With this interpretation, the disorderly conduct statute does not reach speech protected by the first amendment and it is therefore not overbroad or vague. As the display of respondents’ drawings does not constitute fighting words or the incitement to riot, I would find that respondents may not be charged with the predicate offense of disorderly conduct.
CONCLUSION
Cases such as this are often difficult. However, it is the protection of such expression that is the price that must be paid to secure the blessings of freedom of speech guaranteed by the first amendment. It is my solemn judicial responsibility to uphold in principle what I cannot defend in application. I would affirm the dismissal of the petitions.
APPENDIX
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