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First Amendment – Scienter – Exposure to Harmful Materials via Internet, § 948.11 

State v. Lane R. Weidner, 2000 WI 52, 235 Wis. 2d 306, 611 N.W.2d 684, on certification
For Weidner: Steven D. Phillips, SPD, Madison Appellate

Issue: Whether § 948.11(2) is unconstitutional.


¶43  In sum, we determine that Wis. Stat. § 948.11(2) is unconstitutional in the context of the internet and other situations that do not involve face-to-face contact.  Because the statute does not require the State to prove a defendant’s knowledge of the victim’s age when disseminating materials deemed harmful to children, Wis. Stat. § 948.11(2) has an impermissible chilling effect on protected speech and is therefore constitutionally invalid.  Accordingly, we affirm.

Scienter plays an important role in First Amendment jurisprudence. This statute makes it illegal to transmit harmful material to a minor, thereby making the recipient’s age the fault line for criminal liability. However, the statute doesn’t require that the defendant have known the recipient’s minority status, and therefore omits that form of scienter. ¶¶11-12. Instead, the statute creates an affirmative defense, whereby the defendant may prove that he or she reasonably believed the child was 18: this affirmative defense impermissibly shifts what should be the burden of proving the necessary scienter element. ¶1. The court can’t save the statute by judicial construction, and urges the legislature to take swift remedial action, “so that the welfare of children and protected First Amendment expression may both be safeguarded and co-exist in harmony.” ¶¶38-42. Keep in mind, though, that the invalidation of the statute is limited to “the context of the internet and other situations that do not involve face-to-face contact[.]” ¶38. Thus, the court takes pains to distinguish and “not disturb” a prior court of appeals decision upholding the statute’s validity in the context of face-to-face exposure of harmful material. ¶37, citing, State v. Kevin L.C., 216 Wis. 2d 166, 576 N.W.2d 62 (Ct. App. 1997).


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