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First Amendment does not protect public viewing of porn

State v. David J. Reidinger, 2015AP902, 1/26/16, District III (one-judge decision; ineligible for publication); case activity

Reidinger appeals his citation for violating an administrative code provision prohibiting disorderly conduct on University of Wisconsin System property. Two UW-Eau Claire students had complained to university police that he was watching pornographic material on a library computer. (¶¶2-3).Reidinger contends that the First Amendment entitled him to view the porn, relying on two Supreme Court cases that the court of appeals finds distinguishable:

Neither of the United States Supreme Court decisions Reidinger cites in support of his argument are on point. In Stanley v. Georgia, 394 U.S. 557 (1969), the Court concluded that under the First Amendment, as made applicable to the states by the Fourteenth Amendment, “mere private possession of obscene matter cannot constitutionally be made a crime.” Id. at 559 (emphasis added). In Reno v. ACLU, 521 U.S. 844 (1997), the Court struck down two provisions of the federal Communications Decency Act of 1996 that imposed criminal penalties in an attempt to protect minors from “indecent” and “patently offensive” Internet communications. Id. at 849. The Court determined these provisions lacked “the precision that the First Amendment requires when a statute regulates the content of speech.” Id. at 874. Neither Stanley nor Reno establishes a First Amendment right to view pornography in a public library or any other public place. Reidinger does not cite any other authority in support of his position.

The court goes on to opine that though a disorderly conduct law “may have the incidental effect of limiting certain speech, it has long been recognized that there is a valid countervailing interest in preserving public order” and that there was “ample evidence that Reidinger’s public viewing of pornography at the library was indecent or otherwise disorderly and that it tended to provoke a disturbance.” (¶6).

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