Judicial Rulings

Weighing rights to privacy and a free press

The Illinois Supreme Court has ruled in favor of the Illinois Constitution's privacy rights of alleged minor victims of abuse and neglect over First Amendment guarantees of a free press.

At issue was whether the Champaign Urbana News-Gazette could be prohibited from publishing the names of minors whose names were obtained only because its reporter was allowed access to a so-called "shelter care hearing" held to determine whether the minors, who were alleged to be victims of sexual abuse by a parent, should be placed in temporary care outside the home.

Before the hearing began, the court required a signed agreement from the reporter, promising not to publish the names of the children. The Juvenile Court Act provides that ". . . the court may, for the minor's protection ... prohibit any person or agency present in court from further dislosing the minor's identity" (see Illinois Revised Statutes 1989, ch. 37, sec. 801-5(6)). Because the same section of the statute permits exclusion from the hearing "except for the news media," the newspaper argued that it had learned the victims' names legally, and that the ban on publishing them was prior restraint and unconstitutional under the First Amendment of the U.S. Constitution.

Despite Illinois' leadership "in creating a separate court system of justice for minors with a goal of rehabilitation rather than punishment," the court noted growing calls for punishment of juvenile crime and the publication of names of offenders acting as a deterrent to criminal activity. Abused children, however, are not delinquents; they are "thrust into the juvenile system by actions of third parties" and thus have "a compelling interest in their right to be free from invasions of their privacy," a right expressly guaranteed by the Illinois Constitution.

Prior restraint is possible when such individual rights as privacy are balanced against other guarantees, such as that of a free press, and judged paramount, the court explained. The Supreme Court said the prohibition here of publishing the names of the minors "in no way interferes with the newspaper's constitutional role of acting as a conduit for the public in generating the free flow of ideas, keeping the public informed of the workings of governmental affairs, and checking abuses by public officials." Citing earlier decisions, the court noted that the media could publish names learned through standard repertorial techniques, but the reporter in this case obtained the names only because he attended the hearing.

Justice Michael A. Bilandic wrote the opinion filed June 25 in In re a Minor Whose Name is Omitted (149 111. 2d 247). Chief Justice Benjamin K. Miller, joined by Justice James D. Heiple, dissented. Miller agreed that "Publication of the names of minor victims of sexual abuse may be hurtful . . . and of little or no value to the public" but not "of the magnitude necessary to sustain a prior restraint on publication."

Ordinances limiting business on Sunday ruled legal

Ordinances regulating Sunday business are legal, even if the results may seem irrational, as long as they bear a demonstrable relation to a legitimate governmental interest. The Illinois Supreme Court filed this ruling on June 25.

Ordinances of the village of South Holland limit Sunday business but permit sale of some products and services and make allowances for emergencies. At issue in this case was the limiting of food sales to vending machines and restaurants and prohibiting their sales from drive-through lanes. Thus a service station or store could not sell hamburgers on Sunday while the fast-food joint down the block could but not from its driveup window. Ordinances also prohibited Sunday business at car washes.

The court cited a number of precedents in which Sunday closing ordinances were ruled legitimate applications of police powers. It distinguished three types of laws, and judged South Holland's ordinances of the legally acceptable commodity type, which "prohibits all commercial activities but exempts the sale of certain commodities from the operation of the law."

Here, the court said, "The ordinance strikes a balance between the public benefits of peace and quiet on the one hand and the ability to purchase food, drink and other necessities on the other hand." It suggested hypothetical intentions such as: "The legislature could reasonably find that the sale of food and drink from a vending machine is less likely to increase automobile traffic than is the sale of the same goods over the counter"; and "The sale of food and drink from restaurants [compared to sale by service stations] would enhance the recreational atmosphere of the day."

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The majority opinion was by Justice William G. Clark, with Justices Michael A. Bilandic and Charles E. Freeman not participating. Justice James D. Heiple dissented, pointing out the many incongruities in detail that would result from the application of the ordinance. He concluded, "Its distinctions between what can be sold and what cannot be sold are, in fact, ridiculous. Only a judge or lawyer could read it without laughing." He lamented the court's failure to use this opportunity to reevaluate Sunday closing laws, saying, "The observance of a specific day of rest or worship is a personal and individual matter. There is no basis for imposing governmental sanctions to enforce such customs. . . . They are simultaneously hypocritical and violative of due process."

Mandatory AIDS testing OK for convicted prostitutes

The Illinois Supreme Court has affirmed the constitutionality of the statute requiring those convicted of prostitution to be tested for the HIV virus (see III. Rev. Stat. 1989, ch. 38, sec. 1005-5-3(g)). The defendants in the case claimed that the law constitutes an illegal search and seizure, invasion of privacy and denial of equal protection.

Central to the decision was the court's holding: "The evidence indicates that sexual activity is one of the primary means by which the HIV virus is transmitted from one person to another. It was then appropriate for the legislature to include prostitution among the criminal offenses for which testing would be required. Such a requirement bears a rational relationship to the State interest in combating the spread of AIDS."

The defendants' expert witnesses as well as filers of amicus briefs gave a number of reasons for their claim that such mandatory testing is ineffective in combating the spread of AIDS. The court said, "The issue before us is not whether the State has chosen what all or even most experts would consider the best or most effective means of combating the disease, but whether the means chosen by the State can withstand constitutional scrutiny." This intrusion of privacy, seen as minimal and highly controlled, must yield to the exercise of the state's legitimate police powers, the court said, since, "There are few, if any interests more essential to a stable society than the health and safety of its members."

The court suggested this optimistic scheme: "Once persons who are carriers of the virus have been identified, the victims of their conduct and the offenders themselves can receive necessary treatment, and, moreover, can adjust their conduct so that other members of the public do not also become exposed to HIV. In this way, the spread of AIDS through the community can be slowed, if not halted."

Although the statute requires "medical testing to determine whether the defendant has any sexually transmissable disease, including . . . (HIV)," and includes various illegal sexual activities besides prostitution, the court made clear that this decision only applies to testing for HIV of those convicted of prostitution. It also rejected the claim that the statute creates a gender-based classification by noting that it "draws no distinction between male and female offenders."

Chief Justice Benjamin K. Miller wrote the opinion in People v Adams (Docket No. 69278).

Evidence from polygraph test admissable in special circumstance

Although "the fact, details or results of a polygraph examination are generally inadmissable on the issue of guilt or innocence," they may be introduced at trial when they shed light on the voluntary nature of a confession. The Illinois Supreme Court made this ruling June 30 in a case in which a disputed confession was the only evidence substantially linking the defendant to the crime — the murder of his grandmother.

The defendant had volunteered to take a polygraph test to support his claims of innocence. The test yielded no conclusive results, but the operator told the defendant that he had failed the test and that he should tell the truth. At this point the defendant confessed and was arrested.

At trial the defendant was prevented from introducing evidence about these events because of the general ban on polygraph evidence. He claimed that he was thus barred from an adequate defense because, as the high court observed, "A defendant's case may stand or fall on his ability to persuade the jury that the manner in which his confession was obtained casts doubt on its credibility."

The high court reversed the conviction and ordered a retrial, at which the defense may introduce evidence about the polygraph test. The jury, however, must be instructed that the evidence only concerns the credibility of the confession and "should be admonished not to speculate on the nonexistence of results on the issue of defendant's guilt or innocence."

Justice Charles E. Freeman's opinion in People v Melock (Docket No. 69695) touched on a number of other factual matters concerning the events leading up to the polygraph test, but in all cases the procedures of the law enforcement officers were found acceptable.

F. Mark Siebert

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