People v. Rollins
2021 IL App (2d) 181040 (2021)
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Rule of Law:
A state law prohibiting a convicted child sex offender from knowingly photographing a child without parental consent is a content-neutral time, place, and manner restriction that does not violate the First Amendment when it is substantially related to the important government interest of protecting children and is construed to apply only when a child is the subject or focus of the image.
Facts:
- Gregory A. Rollins was required to register as a sex offender for life due to a prior conviction for predatory criminal sexual assault.
- Rollins was at an Airsoft store, MIR Tactical, where he encountered a father and his son, whom he had met and played Airsoft with previously.
- Without the father's consent, Rollins used his cell phone to take photographs of the son, who was a minor.
- Rollins later admitted to police that he took the photographs without parental permission.
- He uploaded the images to a cloud-based account, which he acknowledged could be used to view and share the photos, and labeled one image of the child 'Airsoft-Angel'.
Procedural Posture:
- The State of Illinois indicted Gregory A. Rollins in the Circuit Court of Lake County on four counts of child photography by a sex offender.
- Rollins filed a motion to dismiss the charges, arguing the underlying statute was unconstitutional.
- The trial court denied the motion to dismiss.
- Following a bench trial on stipulated evidence for one count, the trial court found Rollins guilty.
- Rollins filed a post-trial motion for judgment notwithstanding the finding or for a new trial, which the trial court denied.
- Rollins, as the appellant, appealed the judgment to the Illinois Appellate Court, Second District, with the People of the State of Illinois as the appellee.
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Issue:
Does section 11-24 of the Criminal Code of 2012, which makes it unlawful for a child sex offender to knowingly photograph a child without parental consent, violate the First Amendment's protection of freedom of expression?
Opinions:
Majority - Justice Hudson
No, section 11-24 of the Criminal Code of 2012 does not violate the First Amendment. The statute is a content-neutral time, place, and manner restriction subject to intermediate scrutiny. The court reasoned that the law is not aimed at the content of the photographs but at the secondary effects and manner of their creation—specifically, the act of a convicted child sex offender taking a photograph of a child without parental consent. The State has a compelling interest in protecting children from sex offenders. Adopting a limiting construction, the court held the statute applies only to images where a child is the intended subject or focus, not incidentally in the background. This construction ensures the statute is substantially related to the government's interest and is not unconstitutionally overbroad. The statute also provides a reasonable alternative for expression, as an offender can simply obtain parental consent.
Concurring - Justice Brennan
I agree with the majority's analysis and conclusion. I write separately to emphasize that not all photography necessarily implicates First Amendment protections. For an image to be protected speech, it must be intended to communicate some idea. In this case, Rollins's actions—labeling the photo 'Airsoft-Angel' and uploading it to a shareable cloud account—were sufficient to infer a communicative purpose, thus triggering the First Amendment analysis. However, in a different case where a photograph is taken purely for personal, non-communicative archival purposes, the First Amendment might not be implicated at all, making a constitutional analysis unnecessary.
Analysis:
This decision establishes that laws restricting photography by a specific class of people (child sex offenders) for a specific purpose (protecting children) can be classified as content-neutral regulations, thus requiring only intermediate scrutiny. By adopting a limiting construction—that the child must be the 'focus' of the photograph—the court provides a framework for upholding such statutes against facial overbreadth challenges. This ruling strengthens the state's ability to regulate the conduct of registered sex offenders, even when it affects expressive activities, by prioritizing the compelling interest in child protection over the individual's First Amendment rights in this specific context.
