Court of Appeals Decision Dated and Filed September 22, 2015
Court of Appeals Decision Dated and Filed September 22, 2015
DECISION
DATED AND FILED
September 22, 2015
Diane M. Fremgen
Clerk of Court of Appeals
Appeal No.
2014AP2084-CR
STATE OF WISCONSIN
NOTICE
This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
A party may file with the Supreme Court a
petition to review an adverse decision by the
Court of Appeals. See WIS. STAT. 808.10
and RULE 809.62.
IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
CHRISTOPHER J. OATMAN,
DEFENDANT-APPELLANT.
No. 2014AP2084-CR
recorded multiple children playing outside his home. The complaint does not
allege that any of sixteen counts involved obscenity, child pornography, or nudity.
However, most of the images tended to focus on the buttocks or crotch area of the
children.
3
dismiss the charges. The trial court denied the motion, and we denied Oatmans
petition for leave to appeal a nonfinal order. To preserve Oatmans right to
challenge the statutes constitutionality on appeal, he and the State agreed to a
form of stipulated trial, which the parties labeled a Confessional Stipulation.
Under the written agreement, Oatman stipulated to the evidence of guilt on eight
charges, and the State agreed not to argue Oatman had forfeited his right to appeal
the constitutionality issue.
All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise
noted.
2
Oatman was also convicted of one count of burglary, which he does not appeal. The
judgment of conviction is therefore affirmed with respect to that charge.
No. 2014AP2084-CR
Consistent with the parties agreement, the trial court found Oatman
both as applied to him and on its face due to overbreadth.5 The constitutionality of
a statute presents a question of law subject to de novo review. State v. Stevenson,
2000 WI 71, 9, 236 Wis. 2d 86, 613 N.W.2d 90. Statutes generally benefit from
a presumption of constitutionality that must be refuted. Id., 10. However, when,
as here, the statute implicates the exercise of First Amendment rights, the burden
shifts to the government to prove beyond a reasonable doubt that the statute passes
constitutional muster. See id.
6
have a personal and vested interest in the outcome of the litigation, demonstrating
the statutes unconstitutional application to their individual conduct. Id., 12.
3
A four-year sentence on the burglary charge was ordered to be served concurrently with
the child-photography charges.
5
Oatman also asserts the statute violates article I, section 3 of the Wisconsin
Constitution, but he acknowledges the state constitution has been construed to provide the same
freedoms as the federal constitution, citing State v. Robert T., 2008 WI App 22, 6, 307 Wis. 2d
488, 746 N.W.2d 564.
No. 2014AP2084-CR
First Amendment challenges, however, are excused from this requirement due to
the gravity of a chilling effect that may cause others not before the court to
refrain from constitutionally protected speech or expression.
Id. (citations
omitted). Thus, challengers may champion the free expression rights of others
[even] when their own conduct garners no protection. Id.
7
A statute is
overbroad when its language, given its normal meaning, is so sweeping that its
sanctions may be applied to constitutionally protected conduct [that] the state is
not permitted to regulate.
(quoting State v. Janssen, 219 Wis. 2d 362, 374, 580 N.W.2d 260 (1998)).
8
doctrine as a tool for statutory invalidation, proceeding with caution and restraint.
Stevenson, 236 Wis. 2d 86, 14. Particularly where, as here, conduct and not
merely speech is involved, the overbreadth of a statute must be both real and
substantial, judged in relation to the statutes plainly legitimate sweep.
Janssen, 219 Wis. 2d at 373 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615
(1973)). Accordingly, we will not invalidate the photography-of-a-minor statute
based on mere [m]arginal infringement or fanciful hypotheticals of inhibition.
See Stevenson, 236 Wis. 2d 86, 14.
No. 2014AP2084-CR
Oatman argues, and the State partly agrees, that the First
No. 2014AP2084-CR
We agree with Oatman and the State that, because it only regulates images of
children, 948.14 is not content neutral. Content-based regulations are
presumptively invalid. R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).
The cases cited by the State involve circumstances where citizens were arrested,
charges were dropped, and the citizens then sued authorities for infringement of their individual
First Amendment rights. See Larsen v. Fort Wayne Police Dept, 825 F. Supp. 2d 965 (N.D. Ind.
2010); Porat v. Lincoln Towers Cmty. Assn, 2005 WL 646093 (S.D.N.Y. 2005), affd, 464 F.3d
274 (2d Cir. 2006). Thus, in those cases, the courts had no occasion to address statutory
overbreadth.
No. 2014AP2084-CR
12
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.8 But how does one subject to the statute know the
identity of a childs parents or whether those parents are available to give consent?
The sex offenders 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.
Our general references to photography are inclusive of all visual images regulated by
the statute.
No. 2014AP2084-CR
14
The Ashcroft decision reasoned that the images did not harm any
children in the production process, id. at 241, and differentiated such images from
child pornography, where the recorded acts are intrinsically related to victims of
actual sexual abuse, id. at 249-50.
prohibits speech that records no crime and creates no victims by its production.
Id. at 250. The Court also rejected the argument that the images might encourage
child abuse, holding, The prospect of crime, however, by itself does not justify
laws suppressing protected speech.
Id. at 245.
Government asserts that the images can lead to actual instances of child abuse,
the causal link is contingent and indirect. The harm does not necessarily follow
from the speech, but depends upon some unquantified potential for subsequent
criminal acts. Id. at 250. The Court again reaffirmed that where the speech is
neither obscene nor the product of sexual abuse, it does not fall outside the
protection of the First Amendment.
764-65).
No. 2014AP2084-CR
16
Id. at 252-53. Accordingly, while 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.9
No. 2014AP2084-CR
17
STAT. 948.14 is not narrowly tailored. Its prohibitions extend to all images of
children, otherwise regardless of content.
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.10 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.).
18
We would also reject any assertion that the statutes parental consent exception saves
the statutes constitutionality. The limited ability to obtain parental consent is insufficient to
remove or minimize the statutes chilling effect. Most persons subject to the statute would likely
be apprehensive, if not outright fearful, of seeking the required consent, which requires disclosure
of their registered-sex-offender status. Moreover, consent would be impossible where parents are
not present, not be practical in large group settings such as a sporting event, and substantially
curtail the ability to capture spontaneous images.
10
10
No. 2014AP2084-CR
taking school yearbook pictures, and proud parents from photographing their child
with classmates on the first day of kindergarten for sharing with grandparents.
Even more so than the statute reviewed in Stevenson, WIS. STAT. 948.14
indiscriminately casts a wide net over expressive conduct protected by the First
Amendment .
Stevenson, 236 Wis. 2d 86, 15 (citations omitted). The State does not argue the
statute is amenable to a limiting construction or severance, and we likewise do not
discern any appropriate modification available to save the statute. Accordingly,
we invalidate 948.14 in its entirety, and we direct the trial court to dismiss all
such charges against Oatman.
By the Court.Judgment affirmed in part; reversed in part and cause
remanded with directions.
Recommended for publication in the official reports.
11