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2021 IL App (2d) 181040 

No. 2-18-1040 

Opinion filed March 26, 2021 

IN THE 

APPELLATE COURT OF ILLINOIS 

SECOND DISTRICT 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court 

OF ILLINOIS, ) of Lake County. 

) 

Plaintiff-Appellee, ) No. 16-CF-1556 

) 

v. ) 

) 

GREGORY A. ROLLINS, ) Honorable 

) James K. Booras, 

Defendant-Appellant. ) Judge, Presiding. 

JUSTICE HUDSON delivered the judgment of the court, with opinion. 

Justices McLaren and Brennan concurred in the judgment and opinion. 

Justice Brennan also specially concurred, with opinion. 

OPINION 

¶ 1 I. INTRODUCTION 

¶ 2 Following a bench trial on stipulated evidence, defendant, Gregory A. Rollins, was 

convicted of one count of child photography by a sex offender. He now appeals, arguing that 

section 11-24 of the Criminal Code of 2012 (Code) (720 ILCS 5/11-24 (West 2016))—the statute 

under which he was convicted—is unconstitutional on first amendment grounds (U.S. Const., 

amend. I). For the reasons that follow, we affirm. 

¶ 3 II. BACKGROUND 
 

 

 

 

 

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¶ 4 The facts underlying this appeal are brief and undisputed. Defendant was indicted on four 

counts of child photography by a sex offender. 720 ILCS 5/11-24 (West 2016). Defendant moved 

to dismiss the charges, alleging that section 11-24 violated his rights under the first amendment. 

Defendant cited Wisconsin v. Oatman, 2015 WI App 76, 365 Wis. 2d 242, 871 N.W.2d 513, where 

a Wisconsin reviewing court held unconstitutional a statute bearing some similarities to the statute 

at issue here. The trial court dismissed the motion. It first found that section 11-24 drew a 

distinction based on content, as it applied only to photographs of children; consequently, it found 

that the statute was subject to strict scrutiny. It further found that the State had a compelling interest 

in protecting children from sex offenders. The trial court interpreted the statute to apply where a 

sex offender knowingly takes a picture of a child and held that it did not apply where a sex offender 

incidentally photographed a child who was in the background of an otherwise innocent 

photograph. It further observed that the statute applied only to sex offenders rather than the public 

at large. The trial court thus determined that the statute was narrowly tailored. It further found that 

the statute did not offend substantive due process. 

¶ 5 Although defendant initially was indicted on four counts, the State nol-prossed all but the 

first count. At defendant’s bench trial, the parties stipulated to the following. 

¶ 6 First, the State would introduce a certified copy of defendant’s conviction of predatory 

criminal sexual assault and establish that defendant was required to register for life as a sex 

offender. 

¶ 7 Second, Buffalo Grove police officer Brian Hansen would testify that, on May 31, 2016, 

he received information that photographs of a fully clothed child were taken at MIR Tactical in 

Buffalo Grove. Hansen obtained surveillance footage showing two men interacting with a father 

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and his two children. One of the two men, later identified as defendant, used his cell phone during 

the interaction. 

¶ 8 Third, Hansen made contact with defendant and brought defendant to the Buffalo Grove 

Police Department. After being Mirandized (see Miranda v. Arizona, 384 U.S. 436 (1966)), 

defendant admitted taking photographs of a child without the consent of the child’s parents. 

Defendant told Hansen that he uploaded the photographs to a cloud-based account where he could 

view them later before deleting them from his phone. Defendant stated that he was aware that he 

could not possess such photographs and that he was able to share them from the cloud-based 

account. Defendant provided Hansen with his username and password to the cloud-based account. 

Hansen logged in to the account and observed an image labelled “Airsoft-Angel.” The image 

depicted the child and defendant acknowledged that it was the photograph taken without parental 

consent referenced in the first count of the indictment. 

¶ 9 Fourth, the father of the child would testify that the child was born in 2002. The father had 

been with his two sons at MIR Tactical. They had previously met defendant and defendant’s 

brother and had played Airsoft with them. Airsoft is a team game using Airsoft guns. Defendant’s 

brother asked the father for his phone number so that they could play Airsoft in the future. 

¶ 10 Fifth, the father would identify the photograph labelled “Airsoft-Angel” as depicting the 

child, his son. He never gave defendant permission to photograph the child. 

¶ 11 The trial court found defendant guilty. It imposed a sentence of five-years’ imprisonment, 

as agreed by the parties. Defendant then filed a motion for judgment notwithstanding the finding 

of the trial court or, alternatively, a new trial. In it, he asserted that the court erred in denying his 

motion to find section 11-24 of the Code unconstitutional. Defendant’s motion was denied, and 

this appeal followed. 

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¶ 12 III. ANALYSIS 

¶ 13 Defendant argues that section 11-24 of the Code (720 ILCS 5/11-24 (West 2016)) is 

unconstitutional on its face and as applied to him. In addressing defendant’s argument that the 

statute is unconstitutional, we must first determine the level of scrutiny to which the statute is 

subject. Next, we must determine whether it passes constitutional muster under that standard. 

¶ 14 Section 11-24 provides as follows: 

“§ 11-24. Child photography by sex offender. 

(a) In this Section: 

‘Child’ means a person under 18 years of age. 

‘Child sex offender’ has the meaning ascribed to it in Section 11-0.1 of this Code. 

(b) It is unlawful for a child sex offender to knowingly: 

(1) conduct or operate any type of business in which he or she photographs, 

videotapes, or takes a digital image of a child; or 

(2) conduct or operate any type of business in which he or she instructs or 

directs another person to photograph, videotape, or take a digital image of a child; 

or 

(3) photograph, videotape, or take a digital image of a child, or instruct or 

direct another person to photograph, videotape, or take a digital image of a child 

without the consent of the parent or guardian. 

(c) Sentence. A violation of this Section is a Class 2 felony. A person who violates 

this Section at a playground, park facility, school, forest preserve, day care facility, or at a 

facility providing programs or services directed to persons under 17 years of age is guilty 

of a Class 1 felony.” Id. 

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¶ 15 Statutes are presumed constitutional, and the party challenging the statute’s 

constitutionality bears the burden of clearly showing its invalidity. People v. Austin, 2019 IL 

123910, ¶ 14. Whether a statute is unconstitutional presents a question of law, subject to de novo 

review. People v. Gray, 2017 IL 120958, ¶ 57. A party alleging that a statute is facially 

unconstitutional on first amendment grounds must show that “ ‘a substantial number of its 

applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’ ” 

United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Washington State Grange v. 

Washington State Republican Party, 552 U.S. 442, 449 n.6 (2008)). Conversely, an as-applied 

challenge requires a party to show that the statute is being unconstitutionally applied under the 

facts and circumstances of the given case. Desnick v. Department of Professional Regulation, 171 

Ill. 2d 510, 520 (1996). With these standards in mind, we turn to defendant’s arguments. 

¶ 16 A. Level of Scrutiny 

¶ 17 As a threshold matter, we must first determine the appropriate level of scrutiny to which 

section 11-24 is subject. A statute subject to strict scrutiny will be upheld only if it is narrowly 

tailored to serve a compelling governmental interest. In re Amanda D., 349 Ill. App. 3d 941, 951 

(2004). Put differently, the statute must use the “ ‘least restrictive means’ ” to promote such an 

interest. In re H.G., 197 Ill. 2d 317, 330 (2001) (quoting In re R.C., 195 Ill. 2d 291, 303 (2001)). 

On the other hand, intermediate scrutiny simply requires that a statute “must be substantially 

related to an important governmental interest.” Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 

308 (2008). The law need not be the least restrictive means to advance that important interest, so 

long as the important interest “would be achieved less effectively absent the law.” Austin, 2019 IL 

123910, ¶ 70. 

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¶ 18 As the parties recognize, the determinative factor as to what level of scrutiny applies is 

whether section 11-24 is content neutral. If it is, then intermediate scrutiny applies; if not, then 

strict scrutiny is required. Id. ¶¶ 40, 43. Defendant argues, and the trial court agreed, that strict 

scrutiny was appropriate, noting that the statute “specifically restricts only photographs of children 

taken by sex offenders.” The State counters that not “every regulation of speech that makes 

reference to content is ‘content based.’ ” We agree with the State. 

¶ 19 Generally, a statute that “regulates speech or conduct ‘based on hostility—or favoritism— 

toward the underlying message expressed’ is content-based.” Norton v. Ashcroft, 298 F.3d 547, 

552 (6th Cir. 2002) (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992)). There is no 

indication here that section 11-24 is motivated by a desire to suppress ordinary pictures of children, 

and defendant points to nothing to substantiate such a proposition. Indeed, not all pictures of 

children are restricted. Instead, the concern motivating the legislature appears to have been how 

the picture was produced, that is, by a child-sex offender without parental consent. See 93d Ill. 

Gen. Assem., House Proceedings, Mar. 25, 2004, at 113 (statements of Representative Parke) 

(“People who are sex offenders are... are almost entirely told to stay away from children and these 

pedophiles know that. Unfortunately, in the State of Illinois some still can engage in the business 

of photography or video tapes or taking images of children in stores or other things. This Bill 

simply says that if you are a se... a child sex offender that you cannot take pictures or video tapes 

or take images of children whether it’s at a retail store or it’s on the street. They are not allowed to 

do that and they have to stay away from children.”). This suggests that section 11-24 is content 

neutral. See XLP Corp. v. County of Lake, 359 Ill. App. 3d 239, 246 (2005) (“Though it may seem 

peculiar, whether an ordinance is content-based is a matter of legislative intent.”); see also City of 

Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 440-41 (2002) (holding that the inquiry into 

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whether an ordinance is content neutral requires a court to consider whether it is primarily directed 

to regulating the secondary effects of speech). 

¶ 20 Nevertheless, as defendant points out, the speech to be regulated is identified based on its 

content, i.e., it pertains to images “of a child.” We do not believe that this elevates section 11-24 

to being a content-based restriction. In Young v. American Mini Theaters, Inc., 427 U.S. 50, 52 

(1976) (plurality opinion), the United States Supreme Court considered the constitutionality of a 

Detroit, “Anti-Skid Row” ordinance that provided that an adult theater could not be located within 

1000 feet of two other “regulated uses” or within 500 feet of a residential area. A theater is deemed 

an adult establishment if it presents material that emphasizes “ ‘ “Specified Sexual Activities” ’ ” 

or “ ‘ “Specified Anatomical Areas.” ’ ” Id. at 53. The Supreme Court began its analysis with the 

recognition that “[z]oning ordinances adopted by the city of Detroit differentiate between motion 

picture theaters which exhibit sexually explicit ‘adult’ movies and those which do not.” Id. Thus, 

the theaters to be regulated were clearly identified by the content of the films they showed. 

¶ 21 However, the Supreme Court also recognized that, “[e]ven within the area of protected 

speech, a difference in content may require a different governmental response.” Id. at 66. It noted 

that, for example, the scope of a law prohibiting the sale of nonobscene, sexually oriented material 

to a minor was determined by the content of the material. Id. at 69. It observed, “Surely the First 

Amendment does not foreclose such a prohibition; yet it is equally clear that any such prohibition 

must rest squarely on an appraisal of the content of material otherwise within a constitutionally 

protected area.” Id. at 69-70. Regarding Detroit’s ordinance, it held, “Even though the First 

Amendment protects communication in this area from total suppression, we hold that the State 

may legitimately use the content of these materials as the basis for placing them in a different 

classification from other motion pictures.” Id. at 70-71. In accordance with Young, the mere fact 

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that the material to be regulated here is identified by content—so long as no hostility to that content 

is evident—does not mean that the statute at issue here is not content neutral. 

¶ 22 Further guidance can be found in the recent Illinois Supreme Court case of Austin, 2019 IL 

123910. There, the court considered the constitutionality of a statute prohibiting the 

“nonconsensual dissemination of private sexual images,” which is sometimes referred to as 

“ ‘revenge porn.’ ” Id. ¶ 17. In Austin, the trial court found that the restriction at issue was content 

based, because it did not target all images and instead restricted only the dissemination of images 

showing sexual activity or nudity. Id. ¶ 41. This finding is analogous to defendant’s position (with 

which the trial court agreed) in this case that section 11-24 is not content neutral, because it pertains 

only to images of children. The supreme court rejected the trial court’s finding in Austin, 

explaining that the revenge-porn statute was a “content-neutral time, place, and manner restriction” 

and that it “regulates a purely private matter.” Id. ¶ 43. 

¶ 23 Pertinent here is the supreme court’s analysis of the revenge-porn statute as a time, place, 

or manner restriction. The court noted, “Laws that ‘impose burdens on speech without reference 

to the ideas or views expressed are in most instances content neutral.’ ” Id. ¶ 45 (quoting Turner 

Broadcasting System, Inc. v. Federal Communications Comm’n, 512 U.S. 622, 643 (1994)). It 

added, “ ‘The principal inquiry in determining content neutrality, in speech cases generally and in 

time, place, or manner cases in particular, is whether the government has adopted a regulation of 

speech because of disagreement with the message it conveys.’ ” Id. (quoting Ward v. Rock Against 

Racism, 491 U.S. 781, 791 (1989)). A regulation “ ‘is content neutral so long as it 

is justified without reference to the content of the regulated speech.’ ” (Emphasis in original.) Id. 

(quoting Ward, 491 U.S. at 791). The court acknowledged that the revenge-porn statute targeted 

“the dissemination of a specific category of speech—sexual images”; nevertheless, it deemed the 

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statute content neutral. Id. ¶ 46. The court added, “ ‘A regulation that serves purposes unrelated to 

the content of expression is deemed neutral, even if it has an incidental effect on some speakers or 

messages but not others.’ ” Id. (quoting Ward, 491 U.S. at 791). Thus, “the proper focus is on 

whether the government has addressed a category of speech to suppress discussion of that topic.” 

Id. ¶ 48. 

¶ 24 Regarding the revenge-porn statute, the supreme court noted that it was “justified on the 

grounds of protecting privacy.” Id. ¶ 49. It observed that the statute 

“distinguishes the dissemination of a sexual image not based on the content of the image 

itself but, rather, based on whether the disseminator obtained the image under 

circumstances in which a reasonable person would know that the image was to remain 

private and knows or should have known that the person in the image has not consented to 

the dissemination.” Id. 

The court explained, “The manner of the image’s acquisition and publication, and not its content, 

is thus crucial to the illegality of its dissemination.” (Emphases in original.) Id. Accordingly, the 

court held that the revenge-porn statute was content neutral and subject to intermediate scrutiny. 

Id. ¶ 51. 

¶ 25 We conclude that section 11-24 is similarly content neutral. It is true that the content of the 

photographs at issue in this case define the subject matter to be regulated, that is, the subject matter 

to be regulated is the taking of photographs of children. However, there is no indication that the 

legislature was motivated by any hostility toward photographs with such content. This is made 

clear by the fact that a child-sex offender taking the very same photograph would not be subject to 

criminal liability if a parent had consented. The Austin court came to a nearly identical conclusion. 

See id. ¶ 49 (“There is no criminal liability for the dissemination of the very same image obtained 

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and distributed with consent.”). Rather, similar to the statute at issue in Austin, which was directed 

to the circumstances of an image’s dissemination rather than its content (id.), section 11-24 is 

concerned with the manner in which a photograph of a child was produced, i.e., by a child-sex 

offender without parental consent. In other words, this is a manner restriction. 

¶ 26 Therefore, as a time, place, or manner restriction that is content neutral, section 11-24 is 

subject to intermediate scrutiny. Id. ¶ 43. 

¶ 27 B. Intermediate Scrutiny 

¶ 28 We now turn to the question of whether section 11-24 withstands intermediate scrutiny. 

This level of scrutiny requires a statute to “be substantially related to an important governmental 

interest.” Napleton, 229 Ill. 2d at 308. 

¶ 29 1. Important Interest 

¶ 30 As a preliminary matter, it is beyond question that the government’s interest in protecting 

children from sex offenders is substantial (compelling even). People v. Minnis, 2016 IL 119563, 

¶ 37. Indeed, our supreme court has stated, “[I]t is clear that state legislatures may respond to what 

they reasonably perceive as a ‘substantial risk of recidivism.’ ” (Emphasis omitted.) People v. 

Huddleston, 212 Ill. 2d 107, 138 (2004). Thus, the government was clearly acting to advance an 

interest of sufficient magnitude when it enacted section 11-24. 

¶ 31 Defendant contends that the statute “fails to serve an important, substantial government 

interest,” because any “causal link between images and actual instances of child abuse” is 

“contingent” and “indirect.” See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 250 (2002). 

This argument does not actually implicate the magnitude of the interest served by the statute; 

rather, it concerns whether the regulation imposed (a prohibition on child-sex offenders taking 

photographs of children without parental consent) serves that interest in a meaningful way, that is, 

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whether it is substantially related to that interest. Such concerns would be better addressed in the 

substantial-relationship portion of the analysis. The sufficiency of the government’s interest in 

protecting children from sex offenders is beyond dispute. New York v. Ferber, 458 U.S. 747, 757 

(1982). 

¶ 32 2. Substantial Relationship 

¶ 33 The question remains as to the adequacy of the relationship between prohibiting child-sex 

offenders from taking photographs of children without parental consent and the protection of 

children from such offenders. Defendant brings both a facial and an as-applied challenge. As noted, 

since we are applying intermediate scrutiny here, section 11-24 will survive if the important 

interest “would be achieved less effectively absent the law.” Austin, 2019 IL 123910, ¶ 70. It must 

not burden substantially more speech than necessary and must allow reasonable alternative 

avenues of communication. Id. ¶ 59. 

¶ 34 Defendant contends that the statute burdens a substantial amount of protected speech. The 

State asserts that section 11-24 is substantially related to the goal of protecting children from childsex offenders. It notes that the statute applies only to those convicted of a sex offense involving a 

child and only to photographs in which the child is the focus. Moreover, the statute permits an 

alternative way in which a child-sex offender could legally take such a photograph in that the 

offender could seek parental consent. Additionally, the statute does not require the child-sex 

offender to disclose that status when seeking such consent. 

¶ 35 We now turn to defendant’s specific challenges. 

¶ 36 a. Facial Challenge 

¶ 37 Defendant contends that section 11-24 is facially unconstitutional. In the context of the 

first amendment, a facial challenge is an overbreadth challenge. See People v. Clark, 2014 IL 

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115776, ¶ 11. A statute is overbroad “if a substantial number of its applications are 

unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Id. This is 

particularly true regarding a statute that imposes criminal sanctions. Virginia v. Hicks, 539 U.S. 

113, 119 (2003). Where a statute is readily susceptible to a limiting construction, a court may 

construe the statute in such a manner as to resolve any constitutional doubts. Reno v. American 

Civil Liberties Union, 521 U.S. 844, 884 (1997). Indeed, a court “has a duty to construe the statute 

in a manner that upholds the statute’s validity and constitutionality if reasonably possible.” People 

v. Relerford, 2017 IL 121094, ¶ 30; see also Austin, 2019 IL 123910, ¶ 14 (“[A] court must 

construe a statute so as to uphold its constitutionality, if reasonably possible.”). 

¶ 38 Defendant relies heavily on Oatman, 2015 WI App 76, in arguing that section 11-24 is 

unconstitutional. In Oatman, a Wisconsin appellate court evaluated a statute bearing some 

similarities to the statute at issue here and determined that it was overbroad. The statute stated, 

“ ‘A sex offender may not intentionally capture a representation of any minor without the written 

consent of the minor’s parent, legal custodian, or guardian.’ ” Id. ¶ 9 (quoting Wis. Stat. 

§ 948.14(2)(a) (2013-14)). However, we note that the precedential value of Oatman is limited here 

because, as we explain below, Oatman is distinguishable. Moreover, the Oatman court applied the 

strict-scrutiny standard (id. ¶ 12), while we have determined that intermediate scrutiny is 

appropriate. In any event, as defendant points out, the Oatman court held that the statute at issue 

in that case “does little, if anything, to further [the State’s] interest.” Id. ¶ 13 

¶ 39 The Wisconsin court noted the broad sweep of the statute that was before it: “it is difficult 

to imagine a content-based regulation that would be more broadly tailored.” (Emphasis omitted.) 

Id. ¶ 17. It further found the overbreadth substantial because “the statute applies to capture of 

nearly all images of children in public places.” Id. ¶ 18. Finally, the court noted that the State did 

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not argue that the statute was susceptible to a limiting construction and that the court did not 

“discern any appropriate modification available to save the statute.” Id. ¶ 19. If we were to construe 

section 11-24 as broadly as the statute at issue in Oatman, we might find that case more 

analogous. However, the State asserts, and we agree, that the statute at issue here is amenable to 

a limiting construction. 

¶ 40 Indeed, defendant construes the statute broadly. He contends that the plain language of 

section 11-24 “forecloses anyone who previously was convicted of a child sex offense, absent the 

requisite consent, from photographing or video recording any child in any situation.” (Emphasis 

in original.) Defendant also points out, “If a child sex offender wants to take a photograph at a 

school sporting event, at Disneyland, at a concert, or in any other public setting where multiple 

children might be present, the offender would be required to obtain consent from the parents of all 

of the children who would be in the photo.” Moreover, if one child’s parent were unavailable, a 

child-sex offender could not photograph a group of children even if all other parents had given 

consent. 

¶ 41 The State acknowledges that applying the statute broadly could raise certain constitutional 

issues, for example, where a child is unintentionally caught in the background of a photograph. 

Hence, it proposes a limiting construction. The plain language of the statute states, in pertinent 

part, “It is unlawful for a child sex offender to knowingly *** photograph, videotape, or take a 

digital image of a child.” (Emphasis added.) 720 ILCS 5/11-24(b)(3) (West 2016). The State 

asserts that the phrase “of a child” should be construed “to apply only to photographs in which the 

child is a subject or focus of the image rather than every photograph that incidentally includes a 

minor somewhere in the background.” 

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¶ 42 We find the State’s position well taken. As the State notes, a common definition of the 

word “of” is, “used as a function word indicating the object of an action denoted or implied by the 

preceding noun.” See Webster’s Third New International Dictionary 1565 (2002). Thus, 

interpreting a photograph of a child to refer to a photograph in which the child is the object or 

focus of the photograph comports with the plain meaning of the word “of.” This interpretation 

finds further support in the fact that section 11-24 applies only where a child-sex offender 

knowingly takes such a photograph. A child who is incidentally caught in the background likely 

was not knowingly included in the photograph. Thus, for the purpose of resolving this appeal, we 

will construe the statute in the manner advocated by the State. 

¶ 43 Parenthetically, we note that this construction distinguishes the instant case from Oatman, 

2015 WI App 76. The statute at issue in Oatman did not simply prohibit a sex offender from taking 

a photograph of a child; rather, it stated, “ ‘A sex offender may not intentionally capture a 

representation of any minor without the written consent of the minor’s parent, legal custodian, or 

guardian.’ ” Id. ¶ 9 (quoting Wis. Stat. § 948.14(2)(a) (2013-14)). The phrase “capture a 

representation of any minor” would seem to include when minors appear incidentally in the 

background of a photograph. Moreover, the inclusion of the word “any” also broadens the plain 

meaning of that statute. Unlike the statute at issue in Oatman (id. ¶ 19), section 11-24 is amenable 

to a limiting construction, making Oatman distinguishable. 

¶ 44 In addition, the Oatman court found that the statute could be counterproductive in that, if 

who a child’s parents are is not apparent, the sex offender would have to approach the child and 

inquire. Id. ¶ 13. However, we believe that addressing such concerns is an issue best left to the 

wisdom of the legislature. In Young, 427 U.S. 50, and City of Renton v. Playtime Theatres, Inc., 

475 U.S. 41 (1986), the Supreme Court addressed statutes designed to curb the secondary effects 

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of “adult” theaters. In the former case, a Detroit ordinance attempted to reduce such effects by 

dispersing the theaters throughout the community (thus preventing the development of a “skid 

row”); in the latter, the city attempted to mitigate those effects by concentrating the adult uses in 

a limited area. The Supreme Court held: 

“We also find no constitutional defect in the method chosen by Renton to further 

its substantial interests. Cities may regulate adult theaters by dispersing them, as in Detroit, 

or by effectively concentrating them, as in Renton. ‘It is not our function to appraise the 

wisdom of [the city’s] decision to require adult theaters to be separated rather than 

concentrated in the same areas. . . . [T]he city must be allowed a reasonable opportunity to 

experiment with solutions to admittedly serious problems.’ ” Renton, 475 U.S. at 52 

(quoting Young, 427 U.S. at 71). 

¶ 45 As defendant further points out, Oatman relied on Ashcroft, 535 U.S. 234, which struck 

down as overbroad certain statutes attempting to regulate virtual child pornography. The Ashcroft 

court relied on the fact that no actual children are harmed in the making of virtual child 

pornography. Oatman, 2015 WI App 76, ¶ 15 (citing Ashcroft, 535 U.S. at 241, 249-50). While 

true, we note an important difference between Ashcroft and this case. The production of virtual 

child pornography involves no child at any point. Moreover, the Ashcroft court found that it was 

not enough of a justification that virtual child pornography might whet the appetite of pedophiles. 

Ashcroft, 535 U.S. at 253. It explained, “The mere tendency of speech to encourage unlawful acts 

is not a sufficient reason for banning it.” Id. However, in this case, an actual convicted child-sex 

offender took a photograph of an actual child. Thus, the potential dangers at issue in the instant 

case were not present in Ashcroft and are not reflected in the two rationales set forth above. 

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Moreover, Ashcroft involved the overbreadth doctrine and did not consider whether the restrictions 

at issue in that case survived intermediate scrutiny. See id. at 258. 

¶ 46 Furthermore, as the trial judge recognized, there are several important differences between 

the statute at issue in Oatman and section 11-24. First, as explained above and unlike the present 

case, the Oatman court confronted a statute that was not amenable to a limiting construction. 

¶ 47 Second, the statute in Oatman applied to sex offenders generally while section 11-24 

applies only to child-sex offenders. Compare 720 ILCS 5/11-24 (West 2016), with Wis. Stat. 

§ 948.14(2) (2013-14). This obviously narrows the scope of section 11-24 relative to the 

Wisconsin statute. Defendant complains that child-sex offenders nevertheless retain their first 

amendment rights. While we cannot take issue with this argument, the object of our analysis is to 

determine whether the government could legitimately limit those rights. The theater owners in 

Young and Renton certainly had rights under the first amendment. The point of those cases is that 

those rights could be limited if a regulation were substantially related to an important governmental 

interest. Thus, the mere fact that child-sex offenders retain first amendment rights does not control 

the resolution of this case. 

¶ 48 Third, the Wisconsin statute required a sex offender to get permission from a parent in 

writing after having identified himself or herself as a registered sex offender. See Wis. Stat. 

§ 948.14(2) (2013-14). Conversely, section 11-24 requires only verbal consent and does not 

require the person seeking consent to disclose that he or she is a child-sex offender. Thus, section 

11-24’s provisions pertaining to consent are much less onerous than those in the Wisconsin statute. 

The extent to which a regulation allows reasonable alternative avenues of communication is 

relevant here. Austin, 2019 IL 123910, ¶ 59. Section 11-24, therefore, provides a much less 

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burdensome process by which a child-sex offender could obtain consent to take a photograph of a 

child. 

¶ 49 Hence, we find Oatman to be of limited guidance. The language and mechanics of section 

11-24 and the Wisconsin statute are significantly different. Further, the Oatman court was applying 

strict scrutiny, and we have determined that intermediate scrutiny is appropriate. 

¶ 50 Defendant also relies on State v. Bonner, 61 P.3d 611 (2002), and Ex Parte Thompson, 442 

S.W.3d 325 (Tex. Crim. App. 2014). In Bonner, 61 P.3d at 613, the court found unconstitutional 

a criminal statute that made it illegal for any individual at least five years older than a minor aged 

16 or 17 to photograph the minor with the intent of arousing the lust, passion, or sexual desire of 

any person. Notably, the Idaho statute applied to any person, so its sweep was much broader, as 

section 11-24 applies only to convicted child-sex offenders. In Thompson, 442 S.W.3d at 330, 333, 

the Texas statute at issue prohibited taking a photograph of anyone by anyone without the other’s 

consent and with the intent to arouse or gratify the sexual desire of anyone. Again, the scope of 

the Texas statute was significantly greater than that of the statute at issue here. As such, these cases 

are distinguishable and of little guidance. 

¶ 51 Defendant complains that section 11-24 impacts the rights of all child-sex offenders, 

without any assessment of individual risk. However, our supreme court has already held that “state 

legislatures may respond to what they reasonably perceive as a ‘substantial risk of recidivism.’ ” 

Huddleston, 212 Ill. 2d at 138. Moreover, when a statute is subject to intermediate scrutiny, it is 

not necessary that it apply the least restrictive means to address a problem. Austin, 2019 IL 123910, 

¶ 70. As such, there is no need for such an individual assessment for the statute to withstand 

constitutional scrutiny. 

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¶ 52 Accordingly, we cannot hold that section 11-24 is overbroad. To invalidate a statute on 

overbreadth grounds, “the overbreadth of a statute must not only be real, but substantial as well, 

judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 

615 (1973). Typically, the overbreadth doctrine is applied “sparingly and only as a last resort.” Id. 

at 613. Where the overbreadth is not substantial, “whatever overbreadth may exist should be cured 

through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be 

applied.” Id. at 615-16. Such is the case here. Given the supreme court’s sanctioning of legislative 

action based on a “reasonably perceive[d]” “ ‘substantial risk of recidivism’ ” (Huddleston, 212 

Ill. 2d at 138), we must conclude that the class of people constituting child-sex offenders is an 

adequate proxy to identify individuals from whom children need to be protected. As the State aptly 

notes, 

“The vast majority of the statute’s applications are constitutional because by requiring a 

convicted child sex offender to obtain the permission of a child’s parent or guardian before 

photographing that child, section 11-24(b)(3) will in the vast majority of circumstances 

advance the State’s compelling interest in protecting minors from recidivist child sex 

offenders by alerting their parents that an individual is seeking to photograph or videotape 

their minor child.” 

In other words, any potential unconstitutional applications of section 11-24 that arise may be 

adequately addressed through as-applied challenges. See United States v. Williams, 553 U.S. 285, 

302-03 (2008). 

¶ 53 Defendant points out that, where a group of children is involved, obtaining consent could 

become onerous. However, as the statute would still be limited to actual convicted child-sex 

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offenders taking pictures in which children are the focus, we are not convinced that difficulty 

obtaining consent in certain circumstances would result in substantial overbreadth. 

¶ 54 To conclude, given the limiting construction suggested by the State, we hold that section 

11-24 does not burden a substantial amount of protected speech. As such, defendant’s facial 

challenge to the statute’s validity necessarily fails. 

¶ 55 b. As-Applied Challenge 

¶ 56 Defendant also contends that the statute is unconstitutional as applied to him. In support, 

he states only that it punishes an otherwise protected form of expression if it is exercised by childsex offenders. This is not a sufficient basis to find the restriction invalid. All time, place, or manner 

restrictions affect protected speech. City of Chicago v. Alexander, 2015 IL App (1st) 122858-B, 

¶ 37 (citing Ward, 491 U.S. at 790). If the speech at issue were unprotected, a court could simply 

announce that fact, which would be dispositive of the case. 

¶ 57 Moreover, defendant cites nothing in the facts of this case that would establish that this 

application of the statute is unconstitutional here. Indeed, the conduct to which it is being 

applied is defendant, a convicted child-sex offender, photographing a child without parental 

consent, knowing that he was not allowed to take such a photograph. He then uploaded the 

images to the cloud account where he could view them later before deleting them from his 

phone. He further acknowledged that this enabled him to share the photographs with others, 

and he labelled one photograph “Airsoft-Angel.” Here, a child was clearly the focus of the 

image. The child’s father was present and known to defendant, so defendant could have easily 

sought permission from him to take the photograph. Further, defendant was already interacting 

with the child’s father and would not have had to approach the child to ascertain who his father 

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was, so the application of the statute in the circumstances of this case would not have been 

counterproductive as contemplated by the Oatman court. See Oatman, 2015 WI App 76, ¶ 13. 

¶ 58 In short, defendant has not established that section 11-24 is unconstitutional as applied to 

him. 

¶ 59 IV. CONCLUSION 

¶ 60 In light of the foregoing, the judgment of the circuit court of Lake County is affirmed. 

¶ 61 Affirmed. 

¶ 62 JUSTICE BRENNAN, specially concurring: 

¶ 63 While I join in the majority’s analysis, I write separately to emphasize that there may very 

well be circumstances where a photograph taken in violation of section 11-24 of the Code will not 

in any way implicate first amendment concerns. In order to be protected under the first amendment, 

images must communicate some idea. See Texas v. Johnson, 491 U.S. 397, 404 (1989). Thus, as a 

threshold matter, to achieve first amendment protection, the defendant must demonstrate that he 

possessed (1) a message to be communicated and (2) an audience to receive that message, 

regardless of the medium in which the message is to be expressed. Hurley v. Irish-American Gay, 

Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557, 568 (1995). Without the communication 

of some idea, there is no risk that ideas or messages will be silenced in contravention of the first 

amendment. 

¶ 64 I find persuasive the application of the above principles by the federal court in Larsen v. 

Fort Wayne Police Department, 825 F. Supp. 2d 965 (N.D. Ind. 2010). The Larsen court held that 

a father’s attempt to videotape his daughter’s choir competition was not protected by the first 

amendment. The court noted, “The First Amendment is not implicated because a person uses a 

camera, but rather, when that camera is used ‘as a means of engaging in protected expressive 

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conduct.’ ” Id. at 979 (quoting Porat v. Lincoln Towers Community Ass’n, No. 04 Civ. 3199(LAP), 

2005 WL 646093, at *5 (S.D.N.Y. Mar. 21, 2005)). The plaintiff in Larsen did not argue that he 

was attempting to communicate anything by videotaping the performance; rather, he stated that he 

was making the recording “simply for his personal archival purposes.” Id. at 980. Absent a 

communicative purpose, the plaintiff’s actions did not merit first amendment protection. Id. 

¶ 65 The instant case is distinguished from Larsen in that there is evidence that defendant 

intended, when taking the photos, a communicative purpose, albeit a nefarious one that ultimately 

does not survive intermediate scrutiny. This communicative intent at the time the photographs 

were created may be inferred where the defendant gave one photograph a suggestive title when he 

uploaded it to a cloud storage system that he acknowledged could be used to share the photograph. 

This is enough to warrant the majority’s first amendment analysis, as “a narrow, succinctly 

articulable message is not a condition of constitutional protection.” Hurley, 515 U.S. at 569. For 

example, courts have held that first amendment protections apply to, among other things, music 

(Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)), erotic material (Young v. American 

Mini Theaters, Inc., 427 U.S. 50, 70 (1976)), nude dancing (City of Chicago v. Hanson, 105 Ill. 

App. 3d 1017, 1020 (1981)), and artistic expression (National Endowment for the Arts v. Finley, 

524 U.S. 569, 602 (1998)). Indeed, as the United States Supreme Court has explained, if a 

particularized message were required, the first amendment “would never reach the unquestionably 

shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis 

Carroll.” Hurley, 515 U.S. at 569. 

¶ 66 In sum, while I agree that the facts of this case necessitate the engaged-in first amendment 

analysis, I would suggest that not all such photographs might so require. 

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Cite as: 

Decision Under Review: 

Attorneys 

for 

Appellant: 

Attorneys 

for 

Appellee: 

No. 2-18-1040 

People v. Rollins, 2021 IL App (2d) 181040 

Appeal from the Circuit Court of Lake County, No. 16-CF-1556; 

the Hon. James K. Booras, Judge, presiding. 

James E. Chadd, Thomas A. Lilien, and R. Christopher White, 

of State Appellate Defender’s Office, of Elgin, for appellant. 

Eric Rinehart, State’s Attorney, of Waukegan (Patrick Delfino, 

Edward R. Psenicka, and David S. Friedland, of State’s 

Attorneys Appellate Prosecutor’s Office, of counsel), for the 

People. 

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