
In re B.C., No. 80715



NOTICE: Under Supreme Court Rule 367 a party has 21 days after

the filing of the opinion to request a rehearing. Also, opinions

are subject to modification, correction or withdrawal at anytime

prior to issuance of the mandate by the Clerk of the Court.

Therefore, because the following slip opinion is being made

available prior to the Court's final action in this matter, it

cannot be considered the final decision of the Court. The

official copy of the following opinion will be published by the

Supreme Court's Reporter of Decisions in the Official Reports

advance sheets following final action by the Court.

                                    

               Docket No. 80715--Agenda 9--November 1996.

     In re B.C. et al., Minors (The People of the State of Illinois,

                 Appellant, v. B.C. et al., Appellees).

                       Opinion filed May 22, 1997.



     CHIEF JUSTICE FREEMAN delivered the opinion of the court:

     The question presented by this appeal is whether section 12--

7.1(a) of the Criminal Code of 1961 (the hate crime statute) (720

ILCS 5/12--7.1(a) (West 1994)) requires that the victim of the

offense be the individual, or of the group of individuals, whose

actual or perceived race, color, creed, religion, ancestry, gender,

sexual orientation, physical or mental disability, or national

origin provided reason for the offense. We hold that section 12--

7.1(a) does not impose such a requirement.



                                BACKGROUND

     On January 8, 1995, the State filed petitions in the circuit

court of Madison County charging respondents, B.C. and T.C., as

delinquent minors (see 705 ILCS 405/1--1 et seq. (West 1994)) for

committing the offense of disorderly conduct (see 720 ILCS 5/26--1

(West 1994)). On March 17, 1995, the State amended the petitions to

charge respondents with delinquency for committing a hate crime

under section 12--7.1(a) of the Criminal Code. The petitions

essentially alleged that, on October 14, 1994, in Madison County,

respondents knowingly committed disorderly conduct (720 ILCS 5/26--

1 (West 1994)) by displaying "patently offensive depictions of

violence toward African Americans in such an unreasonable manner as

to alarm and disturb James Jeffries and provoke a breach of the

peace in violation of 720 ILCS 5/12--7.1 *** and against the

dignity of the People of the State of Illinois ***."

     At the adjudication hearing, the parties stipulated that

Jeffries was not an African-American, nor did the defendants

perceive him to be, but that other unnamed individuals who were

African-Americans were present at the time the offense was

allegedly committed. Also, such unnamed individuals were not

identified in the petitions as victims. It was also stipulated that

the allegedly patently offensive depictions of violence toward

African-Americans were confiscated from the respondents. The

depictions were subsequently admitted without objection.

     In response to respondents' motion to dismiss the charges (725

ILCS 5/114--1(a)(8) (West 1994)), and based on the factual

stipulations, the circuit court dismissed the petitions for failure

to state an offense. The court found that the charges could not be

sustained because Jeffries was not actually and was not perceived

to be, by defendants, a member of "the protected classifications"

and that such was a necessary element of the offense of hate crime.

The State appealed the dismissals. 134 Ill. 2d R. 604(a)(1).

     On review, the appellate court reasoned that if the victim of

a hate crime was not, or at least thought to be, a member of "the

targeted group," under the statute, the word "perceived" within the

provision would be superfluous. Finding also the statute to be

ambiguous, the appellate court interpreted legislative debate to

indicate an intent that the word "perceived" encompass situations

where a victim is considered of a particular race by an accused,

but is actually not. The appellate court affirmed the dismissal of

the petitions because Jeffries was not, and was not perceived to

be, African-American. 277 Ill. App. 3d 1085. The appellate court,

in effect, held that under the Act, the alleged victim must be or

be perceived, by an accused, a member of one of the classes named

in the statute.

     We subsequently granted the State's petition for leave to

appeal (155 Ill. 2d R. 315(b)) and now reverse and remand to the

circuit court for further proceedings consistent with this opinion.



                              SECTION 12--7.1

     In 1983, section 12--7.1 was added to the Criminal Code of

1963 (Pub. Act 82--995, §1, eff. January 1, 1983) and provided in

pertinent part:

               "Ethnic intimidation. (a) A person commits ethnic

          intimidation when, by reason of the race, color, creed,

          religion or national origin of another individual or

          group of individuals, he commits assault, criminal

          trespass to residence, criminal trespass to real property

          or mob action as these crimes are defined in *** this

          Code, respectively.

               (b) Ethnic intimidation is a Class A misdemeanor;

          provided, however, that any person who commits ethnic

          intimidation as a participant in a mob action, as defined

          in Section 25--1 of this Code, which results in the

          violent infliction of injury to the person or property of

          another shall be guilty of a Class 3 felony." Ill. Rev.

          Stat. 1989, ch. 38, pars. 12--7.1(a), (b).

     Section 12--7.1 was based on model hate crime legislation

proposed to the states by the Anti-Defamation League of B'nai

B'rith. See C. Gaumer, Punishment For Prejudice: A Commentary on

the Constitutionality and Utility of State Statutory Responses to

the Problem of Hate Crimes, 39 S.D.L. Rev. 1, 9 (1994).

     In 1991 and 1992, the legislature amended section 12--7.1 by

changing the name of the offense from "Ethnic intimidation" to

"Hate crime" and by increasing the number of classes, by reason of

which the hate crime occurred, and the number of predicate criminal

offenses which might constitute a hate crime. Pub. Act 86--1418,

eff. January 1, 1991 (amending Ill. Rev. Stat. 1989, ch. 38, par.

12--7.1); Pub. Act 87--440, eff. January 1, 1992 (amending Ill.

Rev. Stat. 1991, ch. 38, par. 12--7.1). Thus, ancestry, gender,

sexual orientation, and physical and mental disability were added

to the statute as bases; and battery, aggravated assault,

misdemeanor theft, misdemeanor damage to property, and criminal

trespass to vehicle were also added. The increased penalty language

of subparagraph (b) pertaining to commission of the offense as a

participant in a mob action was also eliminated. Pub. Act 86--1418,

eff. January 1, 1991 (amending Ill. Rev. Stat. 1989, ch. 38, par.

12--7.1).

     In 1993, disorderly conduct and telephone harassment were

added as predicate offenses (Pub. Act 87--1048, eff. January 1,

1993 (amending 720 ILCS 5/12--7.1(a) (West 1992)). In 1994, the

words "actual or perceived" were also inserted immediately before

the group of classes by reason of which the hate crime occurred

(Pub. Act 88--659, §3, eff. September 16, 1994 (amending 720 ILCS

5/12--7.1(a) (West 1992)). Thus, at the time of the instant

offense, in October 1994, sections 12--7.1(a) and (b) provided:

               "Hate crime.

               (a) A person commits hate crime when, by reason of

          the actual or perceived race, color, creed, religion,

          ancestry, gender, sexual orientation, physical or mental

          disability, or national origin of another individual or

          group of individuals, he commits assault, battery,

          aggravated assault, misdemeanor or theft, criminal

          trespass to residence, misdemeanor criminal damage to

          property, criminal trespass to vehicle, criminal trespass

          to real property, mob action or disorderly conduct as

          these crimes are defined in Sections 12--1, 12--2, 12--3,

          16--1, 19--4, 21--1, 21--2, 21--3, 25--1, and 26--1 of

          this Code, respectively or harassment by telephone as

          defined in Section 1--1 of the Obscene Phone Call Act.

               (b) Hate crime is a Class 4 felony for a first

          offense and a Class 2 felony for a second or subsequent

          offense." (Emphasis added.) 720 ILCS 5/12--7.1(a), (b)

          (West 1994).



                                 ANALYSIS

     The State claims that the courts below erred by incorrectly

interpreting section 12--7.1(a) to require that the victim or

complainant be or be perceived to be of one of the classes

enumerated in the statute.

     The State first argues that the plain language of the hate

crime statute indicates a legislative intent that the focus of the

provision be upon the accused's motive and conduct, and not upon

the status or the perceived status of any victim or victims.

Further, according to the State, the provision includes no language

which directs or suggests that an accused's bias-motivated actions

must be directed against even a particular victim in order for a

hate crime to occur. The State claims that by inclusion of the

phrase "actual or perceived," the legislature intended that a trier

of fact focus not on the victim's status, but rather on the

defendant's motivation which caused him to commit one of the

predicate offenses listed by the statute.

     Respondents maintain that a person cannot be a "victim" of a

hate crime when the offender's improper bias in committing the

underlying crime is not directed against that individual or the

class to which he belongs. Thus, as applied to this case, James

Jeffries cannot be the victim of a hate crime because the racially

offensive materials were not directed against either him or his

race.

     The primary rule of statutory construction is to ascertain and

give effect to the intention of the legislature, and that inquiry

appropriately begins with the language of the statute. People v.

Hare, 119 Ill. 2d 441, 447 (1988). Where the language of a statute

is clear and unambiguous, it will be given effect without resort to

other aids for construction. Eagan v. Chicago Transit Authority,

158 Ill. 2d 527 (1994). However, where the meaning of a statute is

unclear from the statutory language itself, a court may look beyond

the language employed and consider the purpose of the law, the

evils that law was designed to remedy (see In re Application for

Judgment & Sale of Delinquent Properties for the Tax Year 1989, 167

Ill. 2d 161 (1995)), as well as legislative history to discern

legislative intent (see People v. Jameson, 162 Ill. 2d 282 (1994)).

In doing so, a court should presume that the legislature did not

intend an absurdity, inconvenience or injustice. See Illinois Crime

Investigating Comm'n v. Buccieri, 36 Ill. 2d 556 (1967).

     It is accepted that a statute is ambiguous, warranting

consideration of other sources, when it is capable of being

understood by reasonably well-informed persons in two or more

different senses. Jameson, 162 Ill. 2d at 288.

     The plain language of the hate crime statute states that the

offense is committed when a person commits one of the underlying

predicate offenses "by reason of the actual or perceived race ***

of another individual or group of individuals." 720 ILSC 5/12--

7.1(a) (West 1994). The statute includes no expression that the

victim or complainant of the underlying offense must be that

individual or of that group of individuals. 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. Nonetheless, it remains unclear

from the statute's language whether such individual or individuals

must necessarily be the victim or complainant of the underlying

offense as opposed to being a person associating with the victim,

a bystander, or a physically nearby, but more remote, individual.

But see In re Vladimir P., 283 Ill. App. 3d 1068 (1996).

Considering the lack of clarity in this regard, we find the statute

to be ambiguous. See Jameson, 162 Ill. 2d at 288. Accordingly, we

must resort to other construction aids.

     Respondents contend that the legislative history supports

their position that the victim must belong to or be perceived to

belong to the group against which the accused is biased.

Respondents claim it is noteworthy that the hate crime statute was

formerly entitled "Ethnic intimidation" (Ill. Rev. Stat. 1989, ch.

38, par. 12--7.1), and further claim that the basic elements of the

offense have not subsequently changed, other than that the

enumerated classes (and predicate offenses) have been expanded

beyond ethnicity. Citing to the legislative debates, respondents

also claim that the legislature chose to enhance the punishment for

the predicate offenses underlying hate crimes because of the fact

that defendants might choose their victims for "abhorrent" reasons.

Cf. 82d Ill. Gen. Assem., Senate Proceedings, June 24, 1982, at 93;

82d Ill. Gen. Assem., House Proceedings, June 25, 1982, at 32.

     We have reviewed the debates cited by respondents and do not

find that the legislature contemplated penalty enhancement of the

underlying offenses because of any improper motive in selecting

victims. Neither are we persuaded by respondents' argument that the

former "Ethnic intimidation" statute required that the victim

necessarily be an individual from one of the enumerated classes,

and, assuming that to be the case, that the basic statutory

elements have remained the same with the expansion of classes and

predicate offenses as well as the change of name.

     In our view, the legislative history supports, instead, a

generally more expansive meaning of the statute. During legislative

debates surrounding passage of the hate crime statute,

Representative Farley, the sponsor of the legislation, stated:

          "This [b]ill is based on a premise that bias crimes have

          a more profound potential impact on our community than

          other crimes. It seems to me that there should be a loud

          and clear message out there in regard to hate crimes.

          These types of crimes can and would destroy the very

          fabric of our society." 87th Ill. Gen. Assem., House

          Proceedings, May 22, 1992, at 173-74.

     The debates elsewhere reveal that the phrase "actual or

perceived" was intended to foreclose the possibility that a hate

crime perpetrator who had committed an underlying predicate offense

against a person because of his or her religion, race, etc., might

avoid conviction on the basis that the victim was not actually of

the particular religion or race. 88th Ill. Gen. Assem., House

Proceedings, April 20, 1993, at 168-71. These debates do not

reveal, however, whether it is the victim's status, whether actual

or perceived, that is determinative as a rule of a hate crime.

Notably, the commentary also indicates, in general terms, that the

primary focus of the statute was intended to be directed towards

the biased motivation of the perpetrator, rather than towards the

status of the victim. See 88th Ill. Gen. Assem., House Proceedings,

April 20, 1993, at 171. In our view, it does not appear that the

facts in the present case fall beyond the generally intended area

of application for section 12--7.1(a).

     The State asserts that section 5--5--3.2(a)(10) of the Unified

Code of Corrections, a statutory aggravation factor available for

criminal sentencing, presents an example of how the legislature

might have included language intended to focus on a victim's

status. 730 ILCS 5/5--5--3.2 (West 1994) ("defendant committed the

offense against a person or a person's property by reason of the

person's actual or perceived race, color" (emphasis added)). By

contrast, the less restrictive language of the hate crime statute

indicates that its focus is on whether the offender's bias towards

certain stated groups motivated the alleged criminal conduct,

regardless of whether the complainant was, or was perceived to be,

a member, himself, of the particular group. In the State's view,

where the legislature intends that the offender's bias be directed

against a particular victim, it utilizes language to that effect as

is shown by section 5--5--3.2. Because section 12--7.1(a) does not

include such language, the legislature could not have intended such

a requirement.

     Respondents assert that the State's reliance on section 5--5--

3.2 constitutes a distinction without a difference. That the

sentencing factor provision refers to "person" and the hate crime

statute refers to "individual" is not an indication that the hate

crime statute does not require that a particular victim be the

recipient of the offender's bias. Neither does this difference make

the hate crime statute's language less restrictive.

     Respondents' argument misses the point. Section 5--5--

3.2(a)(10) does not simply utilize a different, but similar, term

than the hate crime statute. The provision utilizes the same term,

"person," in referring to both the victim and the one whose status

provides reason for the offense. Moreover, the syntax within the

sentencing factor provision makes clear that the two "persons" are

one and the same. The existence of the sentencing factor's language

makes clear that where the legislature intends that the bias-

motivated conduct be directed against a particular victim, it is

capable of doing so.

     In addition, it is significant that the legislature enacted

the "Institutional vandalism" statute (Ill. Rev. Stat. 1983, ch.

38, par. 21--1.2) along with the hate crime statute. Like the hate

crime statute, the institutional vandalism statute was also part of

model legislation proposed to the states by the Anti-Defamation

League that was intended to combat a rising tide of bias-motivated

crimes against persons, institutions and property. The

institutional vandalism statute provides in relevant part:

               "A person commits institutional vandalism when, by

          reason of the actual or perceived race, color, creed,

          religion *** of another individual or group of

          individuals, he *** inflicts damage to any of the

          following properties:

                                   * * *

               (3) A school, educational facility or community

          center;

               (4) The grounds adjacent to, and owned or rented by,

          any institution, facility, building, structure ***

          described [above]; or

               (5) Any personal property contained in any

          institution, facility, building, structure *** described

          [above]." (Emphasis added.) 720 ILCS 5/21--1.2(a)(3),

          (a)(4), (a)(5) (West 1994).

     The institutional vandalism statute was amended in 1994 as

part of the same act that amended the hate crime statue to include

the phrase "actual or perceived." See Pub. Act 88--659, §3, eff.

September 16, 1994 (amending 720 ILCS 5/12--7.1(a) (West 1992)).

     Consideration of this provision also makes clear that the

victim of a hate crime need not be a member of one of the statute's

enumerated classes providing reason for the offense. The hate crime

statute and the vandalism provision both require the same

motivational or intent element, and neither provision expresses

that that motive necessarily be directed against the victim of the

underlying offense. In the case of the institutional vandalism

statute, however, there can be little doubt that a victim, for

example, the owner of a vandalized school or the owner of personal

property within such building, need not be the individual or a

member of the group whose race, religion, etc., motivated the

criminal act. To require such not only would constitute an overly

restrictive interpretation of the statute, but would be absurd as

well.

     We find additional support for a less restrictive construction

of the hate crime statute after considering the statutory elements

of disorderly conduct (720 ILCS 5/26--1 (West 1994)) and mob action

(720 ILCS 5/25--1 (West 1994)), two of the predicate offenses

underlying the statute. The State argues that proof of disorderly

conduct, the underlying offense with which respondents were

charged, does not require proof that the offensive conduct be

directed against a specific individual, i.e., a "victim" of the

offense. See 720 ILCS 5/26--1(a)(1) (West 1994) (knowingly "[d]oes

any act in such an unreasonable manner as to alarm or disturb

another and to provoke a breach of the peace"). Respondents claim,

however, that the word "another" within the disorderly conduct

statute indicates that someone must be alarmed or disturbed by the

accused's conduct. Consequently, the offense cannot be considered

a victimless crime.

     Though the phrase "as to alarm or disturb another" is included

within the definition of disorderly conduct, the nature of the

conduct is at issue in the case of this offense, rather than the

extent to which the conduct is directed at any one particular

individual. People v. Raby, 40 Ill. 2d 392, 397 (1968), noted that

the gist of disorderly conduct is " `not so much that a certain

overt type of behavior was accomplished, as *** that the offender

knowingly engaged in some activity in an unreasonable manner which

he knew or should have known would tend to disturb, alarm or

provoke others. The emphasis is on the unreasonableness of the

conduct and its tendency to disturb.' " Quoting Ill. Ann. Stat.,

ch. 38, par. 26--1, Committee Comments--1961 (Smith-Hurd).

     In Raby, the court affirmed the disorderly conduct conviction

of Al Raby, a civil rights activist, based on charges that he and

others sat, during the 5 p.m. rush hour, in the intersection of

LaSalle and Randolph Streets in Chicago and refused to leave

despite several requests by police. Similarly, in People v. Stiso,

93 Ill. App. 3d 101 (1981), the court upheld a disorderly conduct

conviction based on charges that the defendant barred patients'

access to an abortion surgery room and refused to leave when

requested. Neither of these cases represented instances where a

particular individual was aggrieved or offended by the defendant's

conduct, but concerned disturbance to the general public or persons

present in the general sense.

     Furthermore, when analyzing claims of insufficiency of

evidence to support disorderly conduct, reviewing courts often

focus their analysis on the unreasonableness of the conduct and

treat the person offended by the conduct as a "complainant" rather

than a "victim." See People v. Albert, 243 Ill. App. 3d 23, 27

(1993) (defendant knew or should have known noise would disturb

people such as "complainant"); People v. Duncan, 259 Ill. App. 3d

308 (1994) (public urination sufficient to sustain conviction for

disorderly conduct where conduct was done in such an unreasonable

manner as to alarm and disturb another); People v. Bergeson, 255

Ill. App. 3d 601 604-05 (1994). Clearly, while a complainant

provides evidence that a defendant's conduct is unreasonable to

"another," the complainant need not be someone against whom the

defendant has directed his conduct.

     Similarly, the mob action statute is defined as "[t]he use of

force or violence [which] disturb[s] the public peace by 2 or more

persons acting together and without authority of law." 720 ILCS

5/25--1(a) (West 1994). To sustain a conviction for mob action it

must be shown that a defendant was part of a group engaged in

physical aggression reasonably capable of inspiring fear of injury

or harm. People v. Simpkins, 48 Ill. 2d 106, 109 (1971). In

Simpkins, mob action convictions were upheld based on charges that

the defendants were among a group of teenagers, one of whom

possessed a recently discharged revolver, shortly after police

heard several shots and saw two groups of teenagers running in

opposite directions.

     Thus, in some instances, where disorderly conduct or mob

action constitutes the predicate offense for a hate crime, there

might not exist a particular aggrieved or offended person because

these offenses may be committed by unreasonably affronting the

public at large. This fact provides additional support for the

interpretation of the hate crime statute urged by the State.

     Moreover, we agree with the State that when a disorderly

conduct charge is heightened to the offense of a hate crime by

virtue of a biased motivation for the conduct, the State's burden

of proof should not increase to require proof of the existence of

a particular individual against whom the alleged conduct is

directed. By dismissing the charges on the basis that the named

complainant, James Jeffries, was not an African-American, the type

of person against whom respondents' racial bias was directed, the

trial court, in effect, held that the State was required to prove

that the offensive conduct was directed against a specific person.

As shown, proof of such element is not necessary for proof of

disorderly conduct.

     Finally, section 12--7.1(a) must be interpreted in a manner

that avoids absurd, unjust, unreasonable or inconvenient results

which could not have been intended by the legislature. See People

v. Stanciel, 153 Ill. 2d 218, 233-34 (1992). Accepting the

respondents' interpretation results, for example, in the inability

of a Caucasian person who is not perceived as, but associates or

socializes with, African-Americans to maintain a charge against a

defendant who admittedly burns a cross on that person's property

because of racial animosity directed against the person's

associates. Similarly, a defendant professing hatred against

homosexuals might bomb a "gay" bar which causes injury, by

happenstance, to only heterosexual patrons of the bar as well as

the bar's heterosexual owner, and avoid prosecution under the hate

crime statute. Likewise, a defendant professing hatred against

Jewish persons might physically assault a person who, though not

Jewish or perceived to be Jewish by the defendant, is engaged in

demonstrating against the desecration of synagogues. This

defendant, also, would avoid prosecution under respondents'

interpretation of the hate crime statute.

     In each of these instances, individual persons, but more

importantly our entire community, are harmed by a defendant's bias-

motivated criminal conduct. We conclude that the legislature, aware

of this fact, intended that improper bias which motivates certain

criminal acts be the component which elevates the conduct to the

level of hate crime, rather than merely the status of a particular

victim. There is no indication that the legislature intended only

to redress the narrower wrong caused by biased selection of

victims. Cf. Wang Lu-in, Hate Crimes Law §10.04(3) (1996)

(categorizing the Illinois hate crime statute as among statutes

capable of broader construction).

     Although ambiguous penal statutes should be construed to

afford lenity to the accused (see People v. Foster, 99 Ill. 2d 48,

55 (1983)), such rule does not justify the failure to apply a

criminal statute where the legislature clearly intended its

application (People v. Hicks, 164 Ill. 2d 218, 222 (1995)). In the

case of section 12--7.1(a), we find the legislature intended that

it be applicable to the facts presented by the instant charge.

Accordingly, we hold that section 12--7.1(a) does not require as an

element that the victim be an individual or of the group of

individuals whose class provides reason for the underlying criminal

offense.

     Respondents yet maintain that regardless of how the hate crime

statute is interpreted, dismissal of the petitions may be sustained

on the basis that the petitions and stipulation were insufficient

to state disorderly conduct. According to respondents, the

petitions and stipulations showed that, at most, they "peacefully

expressed unpopular views."

     A charge of disorderly conduct requires a showing that the

accused knowingly acted in such an unreasonable manner as to alarm

or disturb another and to provoke a breach of the peace. 720 ILCS

5/26--1 (West 1994). The offense embraces a wide variety of conduct

serving to destroy or menace the public order and tranquility. The

offense may include not only violent acts, but acts and words

likely to produce violence in others. City of Chicago v. Wender, 46

Ill. 2d 20 (1970). The "type of conduct alone is not determinative,

but rather culpability is equally dependent upon the surrounding

circumstances." 720 ILCS 5/26--1, Committee Comments--1961, at 337

(Smith-Hurd 1993).

     In the present case, the amended petitions alleged in relevant

part that respondents "knowingly committed the offense of

disorderly conduct in that respondents displayed patently offensive

depictions of violence toward African-Americans in such an

unreasonable manner as to alarm and disturb James Jeffries and

provoke a breach of the peace" in violation of the hate crime

statute. These depictions were confiscated from respondents and

subsequently admitted during hearing on the motion to dismiss.

     The alleged depictions consisted of a hand drawing of an

eerily smiling, hooded Ku Klux klansman who held an axe-like object

from which drops of blood apparently fell. At the klansman's feet

lay the prone body of a dark complexioned person, whose groin was

disfigured and darkened. Beneath the person's body and head were

two connected, dark, oblong shapes that apparently represented

pools of blood. Five swastikas appeared beneath the scene. The

klansman's robe bore the statement, "White power Hitler rules." The

following riddle was written alongside the klansman figure. "[H]ey

you take a niger [sic] and chomp off his d--k & his fingers and

stike [sic] it up his a-- and then stike [sic] it throgh [sic] is

[sic] head. And [w]hat do [you] get. One [d]ead niger [sic] and a

lot of blood." See Appendix. Several other hooded Ku Klux klansmen

were also depicted, one of which was armed with a knife and

apparently displaying his extended middle finger. Apparent gang

symbols stated "Supreme White Power," and one hooded klansman

appeared before the statement, "The original Boyz in the Hood." The

petitions alleged that several African-Americans were present when

these depictions were displayed by respondents to Jeffries.

     We find that the petitions and stipulations sufficiently set

forth charges of disorderly conduct against respondents by alleging

that they displayed certain patently offensive depictions of

violence toward African-Americans that disturbed an individual and

provoked a breach of the peace. See 725 ILCS 5/111--3(a) (West

1994). Respondents were sufficiently apprised thereby of the

charges against them. By our holding, we do not preclude

respondents from asserting any defenses or constitutional

challenges that may arise from the application of the hate crime

statute to the particular circumstances of the case. At this early

procedural stage, we have 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. Accordingly, we simply uphold the sufficiency

of the charging instruments to state an offense of hate crime based

on disorderly conduct.



                                CONCLUSION

     Accordingly, we reverse the judgments of the appellate and

circuit courts and remand this cause to the circuit court for

further proceedings consistent with this opinion.



Judgments reversed;

                                                          cause remanded.

                                                                         

     JUSTICE BILANDIC, dissenting:

     I agree with my colleague, Justice Nickels, that the language

of the Hate Crime Act plainly requires that the victim or victims

of a hate crime be members of a protected class or peceived to be

members of a protected class. Thus, I would affirm the trial

court's dismissal of the State's petitions on that ground. Having

resolved the case in this manner, I find it unnecessary to address

whether any first amendment concerns would be implicated by the

prosecutions in this case.



     JUSTICE HEIPLE, 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 misdemeanor.' " 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]the 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 in R.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]oes 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.V.'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." Slip op. at 14. 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.



     JUSTICE NICKELS, 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."

          Slip op. at 5-6.

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 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

Jefferies 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." Slip op. at 14.



                         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 nonspeech

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 Klu 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 are 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." Slip op. at 14. 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. Ashton, 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

overbroad, 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 challenging. 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.





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