In re B.C.

Annotate this Case
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.

[APPENDIX OMITTED]