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

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

Issue/Holding: First amendment analysis applies to an identity theft charge alleging that Baron sent emails from Fischer’s account without authorization and with intent to harm his reputation:

¶16      In order to determine if a First Amendment analysis is required, we must first consider whether conduct alone or speech, which includes expressive conduct, is being regulated.See Texas v. Johnson, 491 U.S. 397, 403-04 (1989); State v. Robins, 2002 WI 65, ¶41, 253 Wis.  2d 298, 646 N.W.2d 287. If speech or expressive conduct is being regulated, the First Amendment is implicated.

¶21      In the case at hand, Wis. Stat. § 943.201(2) provides in relevant part: “Whoever, for any of the following purposes[, e.g., to harm the reputation of the individual,] intentionally uses . . . any personal identifying information . . . of the individual . . . without the authorization or consent of the individual and by representing that he or she is the individual, . . . is guilty of a Class H felony.”

¶22      We conclude that, as charged and as applied to the facts of this case, Wis. Stat. § 943.201(2)(c) regulates speech in addition to conduct. The statute punishes a person for using another individual’s personal identifying information with the intent to harm that individual’s reputation. [10] Under the facts of this case, the statute regulates conduct because it restricts the use of another’s identity and the distribution of reputation-harming materials, but speech is also being regulated because the content of the e-mails is critical in order to evidence Baron’s intent to use personal identifying information to harm Fisher’s reputation. Therefore, this is not a case as in Robins where the conduct was merely initiated, evidenced, or carried out in part by speech. Rather, this is a case where the reputation-harming portion of the charge is evidenced by the content of the speech, i.e., the content of the e-mails.

¶23      Unlike in Robins, where speech was used to show the defendant’s intent to entice a child, speech in this case is not used to show the defendant’s intent to use another individual’s personal identifying information. Absent the e-mails, i.e., speech, which were used with the intent to harm Fisher’s reputation, Baron has not committed an element of the crime as alleged. Therefore, just as communicative elements were being regulated in Johnson and O’Brien, communicative elements are being regulated in this case. Under the statute as charged and applied to the facts of this case, it is the content of the e-mails, i.e., the speech, that evidences the defendant’s intent to use personal identifying information to harm Fisher’s reputation. Thus, here, speech in addition to conduct is being regulated. [11]

The court rejects the idea that the prohibited conduct at issue (unauthorized use of ID) is analogous to child enticement. The latter focuses on the act of taking a child to a secluded place, which is to say a single offense supported by alternative possible mental state components. If the analogy held up, then the identity theft charge would similarly be focused on the conduct (misappropriating Fischer’s identity). But it doesn’t hold up, and the charged identity theft by contrast involves conduct (unauthorized use) “coupled with reputation-harming speech.” Unlike enticement, “identity theft can occur in multiple ways,” so that “the prohibited conduct charged includes more than simply the use of Fischer’s identity”—namely, communications intended to harm his reputation. Note that enticement is a single offense, State v. Church, 223 Wis. 2d 641, 589 N.W.2d 638 (Ct. App. 1998); whether identity theft might support multiple charges wasn’t before the court but becomes a plausible outcome in light of the court’s discussion.

Interesting concurrence from Justice Bradley, expressing the idea that the statute regulates only conduct, not speech, ¶¶59-68. Worth mention, because she’s ratifying the thrust of the court of appeals’ analysis, and thus expressing her disagreement with the majority on this point; the supreme court’s affirmance, then, is in effect, “as modified.”

 

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