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First Amendment (Freedom of Speech) – Applied to Identity Theft, § 943.201(2)(c): Content-Based Speech

State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
For Baron: Daniel P. Dunn

Issue/Holding: The charge of identity theft, based on Baron’s alleged conduct in sending emails from Fischer’s account without authorization and with intent to harm his reputation, is “content based” within the meaning of First Amendment analysis:

¶38      In the case at hand, we conclude that Wis. Stat. § 943.201(2)(c) is content based because whether Baron’s conduct is prohibited depends entirely upon whether Baron’s speech, i.e., the content of the e-mails, was intended to be reputation-harming speech, which is similar to the content-based provisions in Boos and Burson where the prohibition was dependent upon whether signs were critical of foreign governments or related to political campaigns. However, we do not decide today whether subsection (c) of Wis. Stat. § 943.201(2) must always be deemed content based under all circumstances as we do not address potential situations where something other than speech is used with the intent to harm another’s reputation.

¶39      Unlike Taxpayers for VincentRenton, or Brock where the statutes were not designed to suppress certain ideas, this statute under the facts of this case, suppresses reputation-harming speech when it is accompanied by intentionally using another’s identity. There is no identity theft in this case unless the trier of fact determines that Baron used Fisher’s personal identifying information with the intent to harm Fisher’s reputation. Therefore, Baron is prohibited from disseminating speech that is intended to be harmful to Fisher’s reputation when that speech occurs through the unauthorized use of Fisher’s personal identifying information. As a result, Wis. Stat. § 943.201(2)(c), as applied to Baron, is content based.

¶44      Accordingly, the State bears the burden of showing that the statute overcomes strict scrutiny in order to survive Baron’s as-applied challenge.

Fischer, the target of Baron’s alleged reputation-harming effort, was a public official: does that matter to the content-based conclusion? The court doesn’t say.

 

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