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First Amendment (Freedom of Speech) – Applied to Identity Theft, § 943.201(2)(c): Charge Survives Strict Scrutiny

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

Issue/Holding: The identity theft charge against Baron, sending emails from Fischer’s account without authorization and with intent to harm his reputation as a government official, survives strict scrutiny analysis under the First Amendment (freedom of speech clause):

¶45      To survive strict scrutiny, the State has the burden to show that the “‘regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.'” Boos, 485 U.S. at 321 (citation omitted).

¶48      In the case at hand, Baron concedes that the State has a compelling interest in preventing identity theft. [13] He, however, asserts that the statute is not narrowly tailored to achieve that interest because it eliminates Baron’s First Amendment right to defame a public official with true information. The State, in turn, argues that the statute survives strict scrutiny because the statute is narrowly tailored in that it applies only when the defendant intentionally uses an individual’s personal information to harm that individual’s reputation. We agree with the State and conclude that this is one of those “rare cases” that a government regulation survives strict scrutiny. See Burson, 504 U.S. at 211 (stating “we reaffirm that it is the rare case in which we have held that a law survives strict scrutiny”). As applied to Baron, the statute is narrowly tailored to achieve the government’s compelling interest.

Long and short of it is that Fischer could have exercised his right to defame a public official without falsely assuming that official’s identity, ¶¶49-52. Justice Prosser’s concurrence makes the same point: sending the documents obtained from Fischer’s computer from Baron’s own computer wouldn’t violate this statute; nor would sending them anonymously, ¶80. Note that truthfulness of the information disseminated is simply irrelevant; focus, instead, is in the way the information was disseminated, ¶¶53-54.Bit of back ground. Baron was an EMT, working under Fischer, the county’s Emergency Medical Services director. Baron allegedly accessed Fischer’s computer without authorization, obtained emails showing an extramarital affair, then sent those emails to various people from Fischer’s own account. Fischer committed suicide the next day. Baron allegedly admitted to this conduct, explaining he wanted others to see that Fischer wasn’t “golden,” ¶¶4-5. If you don’t live in Jefferson County but this still sounds vaguely familiar, you might be confusing it with a much more recent and widely reported tale of a public official gone astray. A most curious coincidence, this lurid account also coming to light when someone sent out emails written by the principals. This busybody, though, chose to remain anonymous and therefore can’t be accused of identity theft with intent to harm reputation. And those of you with much longer memories will find echoes from State v. Eisenberg, 48 Wis.2d 364, 180 N.W.2d 529 (1970). But you already knew that the Reports are littered with tragic stories of hubris, lust and revenge.


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