People v. Alexander

Citation: People v. Alexander, 204 Ill.2d 472, 791 N.E.2d 506 (2003).

==Factual Background=

Before the United States Supreme Court decided Ashcroft v. Free Speech Coalition, Kenneth Alexander pled guilty to violating that state’s child pornography statute. The Illinois statute prohibits child pornography, both real and virtual.

Virtual child pornography is created by computer, using software to alter the apparent ages of those depicted. Though virtual child pornography does not actually involve real children, it was banned by a federal statute, as well as the Illinois statute.

The federal statute became important to Alexander, because after he pled guilty to violating the Illinois statute, the United States Supreme Court held in Ashcroft that the federal statute banning virtual child pornography was unconstitutional. Alexander noted the similarities between the federal statute and the Illinois statute, and he withdrew his guilty plea.

Trial Court Decision
The trial court agreed that the two statutes were similar, and it held the Ashcroft decision meant that the Illinois statute was unconstitutional, too.

State Supreme Court Decision
The state thought otherwise and appealed directly the Illinois Supreme Court. In an opinion by Justice Thomas Fitzgerald, that court has agreed in part with both parties. It agreed with Alexander that the section of the Illinois statute that bans virtual pornography is unconstitutional. But it agreed with the state that the rest of the statute is not &mdash; that the rest, in other words, is valid.

Justice Fitzgerald also held that the unconstitutional part is severable from the rest, thus

leaving the rest intact. As a result, the case has been remanded to the lower court for further proceedings, because so far at least, it had not been determined whether the pornography Alexander is accused of distributing was virtual or real.