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Court of Appeals rejects constitutional challenges to ban on posting or publishing private pictures, felon in possession statute

State v. Norris W. Culver2018 WI App 55; case activity (including briefs)

Wisconsin Stat. § 942.09(3m)(a)2. prohibits a person from posting or publishing “private representations” without the consent of the person depicted in the representation. The court of appeals rejects Culver’s claim that the statute is void because it’s overbroad and vague. The court also rejects his claim that the felon-in-possession statute is unconstitutional as applied to him because of the non-violent nature of his prior felony conviction.

Overbreadth

The court reads § 942.09(3m)(a)2. as having “a specific, limited, and reasonable reach,” with “multiple parameters, each of which winnows down its breadth.” (¶¶11, 12).  In particular, the definition of “private representation” is limited to “discrete and personal” representations (depicting nudity or sexually explicit conduct) made with the subject’s consent, and which the subject intends should be viewed or possessed privately, by certain persons only. § 942.09(1)(bn). Further, the person who posts or publishes the representation must know it was meant to be private, and the posting or publication must be done without the subject’s consent. Finally, there are exceptions for, e.g., representations that are “newsworthy or of public importance.” § 942.09(3m)(b). (¶¶11-17).

¶18     Given the many boundaries that hem in the area of proscribed conduct, we conclude the statute is not overbroad. The statute prohibits a certain and limited category of knowing conduct that involves the unauthorized use of personal, private images of another. It encompasses only a particular type of image, which must be intended to be private, which must be captured with consent, which the publisher must know is private, and which is published without consent nonetheless. With its focused scope, we see no showing that the statute prohibits or even chills a substantial amount of free expression. The statute’s restriction on such postings or publications does not raise a “realistic possibility that official suppression of ideas is afoot.” R.A.V v. City of St. Paul, 505 U.S. 377, 390 (1992).

In arguing the statute is overly broad Culver specifically notes that it: doesn’t include a malicious or wrongful intention in posting the representation; doesn’t distinguish between images that cause harm and those that do not; defines nudity too broadly; doesn’t address situations in which consent to publish is given but later withdrawn; and the exception for “newsworthy” or “public[ly] importan[t]” images is unclear. Potential instances of infringement on expression must be judged in relation to the statute’s legitimate sweep, United States v. Stevens, 559 U.S. 460, 473 (2010), and the court concludes “none of [these] examples can be described as anything more than limited or incidental” infringements on protected speech in relation to the statute’s legitimate scope. (¶¶19-27).

Vagueness

Culver’s vagueness argument restates claims he made about overbreadth—that the statute doesn’t address situations in which consent to publish is given but later withdrawn, and that the exception for “newsworthy” or “public[ly] importan[t]” images  is unclear. The court rejects these claims because the statute says there’s no violation if there was consent at the time of publication, and there’s nothing vague about the “well-worn terms” used in the exception. (¶¶32-34). Culver also argues the statute is vague because it fails to set parameters for subjecting a person to liability in this state, as it doesn’t say whether jurisdiction is determined by location of the depicted person, the place the image is disclosed, or the place it is viewed. The court holds that problem is resolved by recourse to § 939.03(1)(a)’s constituent element test for jurisdiction. (¶¶35-36).

Felon in possession statute

Culver argues that applying § 941.29 to nonviolent felonies violates the Second Amendment because his prior felony (operating while intoxicated) is non-violent and he has no record of violent use of a firearm. The court rejects his attempts to distinguish State v. Pocian, 2012 WI App 58, 341 Wis. 2d 380, 814 N.W.2d 894, and State v. Thomas, 2004 WI App 115, 274 Wis. 2d 513, 683 N.W.2d 497, which rejected similar challenges to § 941.29. (¶¶37-48). (For more on Pocian see here).

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