State v. Scott L. Stevenson, 2000 WI 71, 236 Wis. 2d 86, 613 N.W.2d 72, on certification
For Stevenson: Elizabeth Cavendish-Sosinski, Daniel P. Fay
Issue: Whether § 944.205(2)(a) is overbroad.
Holding: Yes. § 944.205(a) (a) prohibits depictions of nudity without the person’s knowledge and consent. Because this statute implicates first amendment rights, the state assumes the burden of proving its constitutionality beyond a reasonable doubt. ¶10. The question is overbreadth — broadly written statutes substantially inhibiting free expression are open to attack even by a party whose own conduct isn’t protected, ¶¶11-13 (i.e., Stevenson has standing to raise hypothetical examples of overkill). Though overbreadth is “only sparingly utilize(d), ¶14, the AG concedes that this statute is overbroad on its face, ¶21. The court agrees: as drafted, the statute disallows even reproductions of works of art. 22. Courts have three options when confronting an overbroad statute: limit its reach by judicial construction; sever the offending portion; invalidate the entire statute. ¶15. The court chooses the last option for several reasons. As written, the statute evinces clear legislative preference for broad and expansive interpretation. ¶28. That is, the court would have to substitute judicial for legislative intent (limited vs. expansive reach). ¶32. An overbroad statute must be “‘readily susceptible’ to [limiting] construction,” ¶27, and this one isn’t; the court would have to add elements that would alter its meaning, ¶29. Severance would be equally problematic. ¶38. The court therefore “leave(s) the drafting of a narrowly tailored statute to the legislature,” which is better placed to debate the competing interests of privacy and free expression. ¶40.
Note that the legislative fix was passage of a new statute penalizing non-consensual depictions of nudity, § 942.09, which incorporates two changes. The first is superficial: the statute is now placed in the chapter involving crimes against reputation and civil liberties rather than against sexual morality. The second is substantive: the elements are (of course) different, most prominently in that the non-consensual depiction has to have been made “while that person is nude in a circumstance in which he or she has a reasonable expectation of privacy.” The new statute also deletes “reproduction” from the basic defnition of capturing a representaion, § 942.09(1)(a). Stevenson based overbreadth on the idea that the subject’s “contemporaneous presence” was not required, ¶¶22-40; presumably, the addition of “reaosnable expectation of privacy” and deletion of “reproduction” would go a ways toward fixing the problem.