Child-Porn Prisoner Set Free
By Tony Gordon Daily Herald Legal Affairs Writer
Originally published in The Daily Herald, May 16, 2002
A Lake County judge declared the state's child pornography law unconstitutional Wednesday, saying it does not distinguish between images of real children and those created by computer.
Circuit Judge James Booras' decision is believed to be the first in the state following a U.S. Supreme Court ruling last month. It resulted in a 24-year-old Waukegan man, who had already pleaded guilty to possessing child pornography, being released from jail.
Kenneth Alexander was awaiting sentencing and faced up to 15 years in prison because police found close to 2,600 images of children engaging in lewd behavior with other children, adults and animals in his computer at his residence at 2720 Westwood Drive, Apt. 1D.
But his attorney, Donald Morrison of Waukegan, challenged the state law Alexander pleaded guilty to on March 28, citing the U.S. Supreme Court ruling in Ashcroft v. Free Speech Coalition.
In that April 16 decision, the nation's highest court said photographs or other images of children engaging in lewd behavior are illegal, but computer-generated images—so-called "virtual porn" that do not involve real children—are First Amendment-protected exercises of free speech.
Morrison argued the Supreme Court let stand two sections of federal law banning production or possession of pornography using "a minor" or "an identifiable child." It struck sections "appears to be" or "conveys the impression" a child is engaging in a sex act.
"The language used in the state statute is equally vague and overbroad in that it seeks to prohibit computer images that do not involve the use of real children," Morrison said. "The Illinois legislature has prohibited any visual depiction or depiction by computer which does not depend at all on how the image was produced."
Assistant state's attorney Patricia Fix said Morrison's reading of the state law was too narrow. The question of whether an image was that of a real child or a computer-generated figment of someone's imagination was best left to a jury, Fix said.
"Just as determining the age of a person shown in a photograph (the person shown must be under 18 to be classified as child pornography) is left to the trier of fact, so should this issue," she said. "If the defense wants to argue that what the jury is looking at is some Pixel Studios-style, simulated 'Toy Story'-type technology, they are free to do so."
She said requiring the state to prove real children were used in images could be taken to mean the actual children would have to be found. Such a burden would undermine the effectiveness in pornography laws in protecting children, Fix added.
Morrison argued requiring a defendant to prove what was in question was not child pornography would subvert the principal of innocent until proven guilty. He quoted the Ashcroft decision in addressing the burden argument.
"Experts, we are told, may have difficulty in saying whether the pictures were made by using real children or computer images, and the necessary solution is to prohibit both kinds of images," Morrison said. "The argument, in essence, is that protected speech must be banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down."
Booras said he believed the state law "fails greatly" when put to a constitutional test. He added it was "inconsequential" if the state had a more difficult time in proving child pornography cases.
"The Supreme Court considers, and I consider, the First Amendment to be preeminent," he said. "If that becomes a severe burden on the state, so be it."
Booras told Alexander he was "extremely reluctant" to release him from custody under these circumstances.
"Mr. Alexander, thank the founding fathers and the U.S. Supreme Court for your freedom," Booras said. "Because it was the founding fathers who would let the people who are widely hated and widely despised go free because they so cherished freedom."
Alexander could not be reached for comment Wednesday.
Fix said she would file an appeal with the state Supreme Court, perhaps as early as this morning. Alexander's computer and the images inside would remain in police custody until the high court reviews Booras' decision.
She said the decision effects only Alexander's case, and she would be prepared to argue against a similar motion filed before Circuit Judge Raymond McKoski in the case of Round Lake Beach resident Joseph Morey on Friday.
Morrison Torrey, an expert on child pornography issues at DePaul University Law School in Chicago, said she was disappointed in the rulings by the Supreme Court and Booras because they ignore the larger issues of child pornography.
"I find it very strange that they feel we have to distinguish what is real and what is computer generated," she said. "It is known that child pornography is used to assist sexual predators in their activities, and issues such as that deserve consideration as well."
