Kaleb posted a video on YouTube that depicted him “rapping” a song about his Spanish teacher. The song used “crude and vulgar sexual language” about the teacher. (¶2). (The trial court was harsher, characterizing the video as “obscene and hate-filled” and “shocking, hard to watch, really disgusting.” (¶3).) Based on the video Kaleb was charged in juvenile court with disorderly conduct under § 947.01(1) and unlawful use of a computerized communication system under § 947.0125(2)(d).
Citing State v. Douglas D., 2001 WI 47, 243 Wis.2d 204, 626 N.W.2d 725, Kaleb argued he couldn’t be prosecuted because the video was protected by the First Amendment. (¶¶3, 8, 10). The trial court disagreed and adjudicated Kaleb delinquent on both charges. (¶¶3-4). The court of appeals agrees with Kaleb that, as to the disorderly conduct charge, the video was protected under Douglas D. because the state failed to prove the content wasn’t protected:
¶7 In … Douglas D..., the supreme court held that speech that falls within the protection of the First Amendment is barred from prosecution for disorderly conduct under Wis. Stat. § 947.01, but that which is not constitutionally protected may fall within the punitive reach of § 947.01. Id. at 213, 226. The court in Douglas explained that certain categories of speech “are ‘likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest,’” and are thus unprotected. Id. at 217-18 (quoting Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949)). These categories of speech include: “‘fighting words’”; speech that incites others into imminent lawless action; obscenity, libel and defamatory speech; and “‘true threats.’” Id. at 218. The Douglas court further stated that the State bears the burden of proving that a defendant’s speech is constitutionally unprotected speech. Id. at 226….
¶8 In the present case, Kaleb asserted at trial that his rap song was constitutionally protected speech. The prosecutor informed the court that she was not prepared to respond to the issue and the court asked defense counsel to explain to the prosecutor what categories of speech are not protected. [R.30:94] Defense counsel did so and the prosecutor then stated, without further elaboration: “I believe the video speaks for itself. And I would note  obscenity, fighting words, and hate speech ….”
¶9 The State does not argue on appeal that Kaleb’s speech is not protected because it constitutes obscenity, “fighting words,” or “hate speech,” as it asserted in conclusory fashion before the trial court, and has thus forfeited that argument. The State does, however, claim Kaleb’s speech is not protected because it is defamatory. However, the State did not raise this argument before the circuit court and has therefore forfeited its right to raise that argument on appeal. See State v. Van Camp, 213 Wis. 2d 131, 144, 569 N.W.2d 577 (1997) (arguments raised for the first time on appeal are generally deemed forfeited). Because the State has not raised any other preserved arguments on appeal that Kaleb’s speech was not protected and because the State has not otherwise shown that it met its burden of proving that Kaleb’s speech was not protected, I reverse that portion of the delinquency order finding Kaleb guilty of disorderly conduct.
But the court then goes on to affirm the adjudication under § 947.0125. Douglas D., the court notes, addressed a disorderly conduct charge and involved only “whether speech alone could form the basis of proscribed ‘conduct’ under § 947.01 and be punished under that statute.” (¶12 (emphasis added)). On these grounds the court distinguishes Douglas D. and says it doesn’t apply to § 947.0125 because the statute includes “nonspeech elements”:
¶12 …. Although § 947.0125(2)(d) contains an element that is broad enough to include speech alone,.. the statute also contains other nonspeech elements. The statute requires that the defendant send a message to another person with the “intent to frighten, intimidate, threaten or abuse another person,” which are separate and distinct elements from the content of the speech. Douglas D. suggests that “nonspeech elements” of otherwise protected speech may be subject to prosecution. See Douglas D., 243 Wis. 2d at 225. Because Kaleb is not being punished for his speech alone, but also for “nonspeech elements,” which Douglas D. states may be subject to prosecution, I conclude that Kaleb was subject to prosecution for the unauthorized use of a computerized communication system.
The court rejects Kaleb’s argument that posting a video on YouTube for anyone to see doesn’t satisfy this “nonspeech” element. That element requires that the defendant “send a message … with the reasonable expectation that the person [the defendant intends to frighten, intimidate, threaten or abuse] will receive the message….” The court says that “nothing in the plain language of the statute limits who or how many people may view a message sent under that statute in order for the message to be prosecutable.” (¶13) Nor does it matter that viewing the video means going to YouTube to seek it out; that argument, says the court, would require reading into § 947.0125(2)(d) “a limitation on how a message must be conveyed to another person” because the plain language of the statute does not contain such a limitation. (¶14).
The court’s analysis is flawed, and its differing treatment of the two statutes is untenable. First, the court misreads Douglas D. as making a hard-and-fast distinction between speech (which is always protected) and conduct (which is not). Douglas D. didn’t do that; instead, that decision follows the First Amendment case law that acknowledges we sometimes do things with words and say things with actions. Douglas D. did say (at ¶24) that “in some circumstances words carry with them proscribable nonspeech elements.” As examples it cites “unreasonably loud” speech (which can be restricted by a content-neutral noise ordinance, Ward v. Rock Against Racism, 491 U.S. 781 (1989)) or “abusive” words (which it clarifies to mean fighting words or incitement to violence). These are kinds of speech that are outside the ambit of First Amendment protection and so are not “speech” for purposes of its protections; therefore, when statutes regulate these kinds of speech it is the “nonspeech” elements of the conduct that are being proscribed. Cf. R.A.V. v. St. Paul, 505 U.S. 377, 386 (1992) (“the exclusion of ‘fighting words’ from the scope of the First Amendment simply means that, for purposes of that Amendment, the unprotected features of the words are, despite their verbal character, essentially a ‘nonspeech’ element of communication.”). Thus, Douglas D. does not hold that the presence of some sort of “nonspeech” conduct element allows the regulation of the associated speech, and the question remains whether the speech–here, Kaleb’s video–is protected based on the “bedrock principle” underlying the First Amendment: “[T]he government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989).
If a law’s purpose is to prevent or avoid expression of an offensive or disagreeable idea, it abridges speech; but if the law seeks to curtail activity in order to promote a policy independent of hostility to the idea, then the law punishes “conduct” even if the conduct also involves the communication of a message. Prosecutions under § 947.0125(2)(b) are clearly based on the content of the speech, for the statute requires the message be sent with the intent to frighten, intimidate, threaten, or abuse another person. But there is some non-content policy that could justify § 947.0125–namely, the regulation of unwanted speech aimed directly at one unwilling listener. Though not explicitly recognized in the cases, there is a very good case to be made that this category of “unwanted one-to-one” speech explains the results of Supreme Court cases upholding certain speech restrictions. That case is made by Eugene Volokh in One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyberstalking,” 107 N.W.U. L. Rev. 731 (2013). This category recognizes that the government can regulate speech made to a particular person who doesn’t want to hear it when that speech intrudes into the person’s private space. Restricting such speech serves to protect the person’s immediate private sphere without significantly interfering with the right to speak, because the speaker is unlikely to persuade or inform the unwilling listener and because the speaker is still free to communicate to any other listeners willing to hear him. Id. at 742-43, 748-50. Section 947.0125 fits hand-in-glove with this category, as it proscribes either messages sent “to” the person, § 947.0125(2)(a), (c), or (e), or messages sent with the reasonable expectation the person will receive the message, § 947.0125(b), (d), or (f). As Volokh puts it, laws like § 973.0125 “are aimed at restricting speech to a person, not about a person.” Id. at 742.
But if the First Amendment allows the restriction of offensive one-to-one speech in certain circumstances, one-to-many speech is constitutionally protected, even if it’s speech about a particular person that is offensive to that person or others. Id. at 743, 751. And it doesn’t matter that the offensive speech being directed to the world at large is the same speech that couldn’t be directed at the specific person one-to-one, or that the person may still be exposed to the speech. Cf. R.A.V., 505 U.S. at 386 (“…just as the power to proscribe particular speech on the basis of a noncontent element (e.g., noise) does not entail the power to proscribe the same speech on the basis of a content element; so also, the power to proscribe it on the basis of one content element (e.g., obscenity) does not entail the power to proscribe it on the basis of other content elements.”). Clearly, then, § 947.0125’s references to “send[ing] a message … with the reasonable expectation that the person will receive the message” must be interpreted in a way that doesn’t allow constitutionally protected one-to-many speech to be treated as punishable one-to-one speech. Jankowski v. Milwaukee County, 104 Wis. 2d 431, 439, 312 N.W.2d 45 (1981) (courts must construe statutes so as to avoid an unconstitutional result). Having decided that the statute contains a “nonspeech” element that negates any First Amendment concern, however, the court of appeals gives no consideration at all to the constitutional concerns that should bear on construing the statute, and instead gives short shrift to Kaleb’s argument that posting a video on YouTube is not sufficient to “send a message … with the reasonable expectation that the person will receive the message….”
In short, this is a muddled opinion on an important constitutional question that seems likely to recur in our brave new world of world-wide digital social media. Maybe the court of appeals will reconsider, or maybe the supreme court will weigh in. But this decision won’t be the last word on this issue, so stay tuned.
UPDATE (2/11/14): Kaleb has filed a petition for review, and as explained in this Volokh Conspiracy post the Electronic Frontier Foundation has filed an amicus brief in support of his petition. The lead author is Eugene Volokh, who wrote the article cited above. The post excerpts large portions of the amicus brief and also has a link to PDF version, for those interested in reading the argument in full.