The statute prohibiting a registered sex offender from intentionally photographing a minor without parental consent, § 948.14, violates the First Amendment because it “indiscriminately casts a wide net over expressive conduct protected by the First Amendment ….” (¶18, quoting State v. Stevenson, 2000 WI 71, ¶22, 236 Wis. 2d 86, 613 N.W.2d 90).
Oatman was charged with 16 violations of § 948.14 after he photographed or video recorded multiple children playing outside his home. There were no allegations that any of the counts involved obscenity, child pornography, or nudity, though most of the images tended to focus on the buttocks or crotch area of the children. (¶2). Oatman moved to dismiss the charges, arguing § 948.14 is unconstitutional both as applied and on its face. The court of appeals agrees the statute is overbroad and therefore facially invalid.
The court and the parties agree § 948.14 is a content-based regulation because it regulates only the images of children. (¶11). A content-based regulation is presumptively invalid, R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992), and must survive strict scrutiny—that is, it must be the least restrictive means of achieving a compelling state interest, McCullen v. Coakley, 134 S.Ct. 2518, 2530 (2014). The statute can’t survive that scrutiny:
¶13 The State undeniably has a compelling interest in protecting children. However, WIS. STAT. § 948.14 does little, if anything, to further that interest. Indeed, it appears to carry the potential of more harm than good. The statute requires all registered sex offenders to seek and obtain parental permission prior to photographing a child…. But how does one subject to the statute know the identity of a child’s parents or whether those parents are available to give consent? The sex offender’s only option to obtain consent from an apparently unsupervised child is to approach the child and then inquire, “Are your parents nearby?” Thus, the statute may encourage sex offenders to make close contact with children. An individual with nefarious intent might even use the statute as a ruse to approach a child or determine whether the child is, in fact, vulnerable. If such predators’ conduct was ultimately questioned, they could simply explain they were attempting to follow the law.
¶14 Further, children are not harmed by nonobscene, nonpornographic photographs taken in public places. In Ashcroft v. Free Speech Coalition, 535 U.S. 234, 240, 256 (2002), the Court concluded the Child Pornography Prevention Act (CPPA) was unconstitutionally overbroad insofar as it prohibited the possession or distribution of images that were neither obscene under the definition of Miller v. California, 413 U.S. 15 (1973), nor constituted child pornography as defined in New York v. Ferber, 458 U.S. 747 (1982). The CPPA extended the federal prohibition against child pornography to sexually explicit images that appeared to depict minors but were produced without using any real children. Ashcroft, 535 U.S. at 239.
¶16 The prohibited images addressed in Ashcroft—virtual or simulated images of child pornography—were far more objectionable or potentially harmful than the images prohibited by WIS. STAT. § 948.14. …. [W]hile we may dislike the fact that someone might have objectionable thoughts when viewing ordinary images of children, the State is constitutionally prohibited from precluding citizens from creating such images….
¶17 In addition to failing to protect any compelling State interest, WIS. STAT. § 948.14 is not narrowly tailored. Its prohibitions extend to all images of children, otherwise regardless of content. Indeed, it is difficult to imagine a content-based regulation that would be more broadly tailored. Any argument that the statute is not overbroad because it applies only to registered sex offenders would be a nonstarter…. Those citizens have the same First Amendment rights as any other. Doe v. Harris, 772 F.3d 563, 570-72 (9th Cir. 2014) (Registered sex offenders who have completed their terms of probation and parole enjoy the “full protection of the First Amendment.”).
Having concluded the statute is facially overbroad, the next question is whether the overbreadth can be avoided through a limiting construction or whether the overbroad provision can be severed and so leave the rest of the law intact. Neither is possible here, so the court invalidates § 948.14 in its entirety and directs the charges to be dismissed. (¶19).
As the court notes (¶16 n.9), the recent decision in State v. Chagnon, 2015 WI App 66, construed § 948.14 to cover only the creation of images of children, and not the mere possession of images.