Contributor, The Volokh Conspiracy

From yesterday’s Wisconsin Court of Appeals decision in State v. Oatman, holding that a ban on sex offenders photographing children in public (without the children’s parents’ consent) is unconstitutionally overbroad (some paragraph breaks added):

Christopher Oatman appeals a judgment of conviction for eight counts of intentional photographing of a minor by a registered sex offender without consent, contrary to Wis. Stat. § 948.14…. Because § 948.14 is unconstitutionally overbroad, we … remand with directions to dismiss all such charges against Oatman….

According to the criminal complaint, Oatman photographed or video 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….

Oatman argues Wis. Stat. § 948.14 violates the First Amendment … on its face due to overbreadth …. “‘[B]roadly written statutes substantially inhibiting free expression should be open to attack even by a party whose own conduct remains unprotected under the First Amendment.’” “‘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.’” … “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 statute’s plainly legitimate sweep.’” …

Subsection 948.14(2) provides:

(a) A sex offender may not intentionally capture a [visual] representation of any minor without the written consent of the minor’s parent, legal custodian, or guardian. The written consent required under this paragraph shall state that the person seeking the consent is required to register as a sex offender with the department of corrections.

(b) Paragraph (a) does not apply to a sex offender who is capturing a [visual] representation of a minor if the sex offender is the minor’s parent, legal custodian, or guardian.

… Oatman argues, and the State partly agrees, that the First Amendment protects the right to take nonobscene, nonpornographic photographs of children in public places. But, whereas Oatman argues all creation of such pictures is protected, the State argues photographs taken merely for personal viewing are not protected. Rather, the State argues photographs are only constitutionally protected if they are created with an expressive or communicative intent, i.e., an intent to share the photographs with others. We need not resolve this controversy. Because we conclude the statute is overly broad on its face, we need not address whether it is also unconstitutional as applied to Oatman….

The State acknowledges the following:

If the taking of photographs and video recordings for purely personal use were protected by the First Amendment, the State would concede that Wis. Stat. § 948.14 is overly broad. The statute is content based, as it applies only to capturing images of children. The statute would be subject to strict scrutiny, requiring the State to demonstrate that the statute is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. The State does not believe it could satisfy that burden. While the State has a compelling interest in protecting children, the statute is not narrowly drawn because it applies to all registered sex offenders, including those with no history of abusing children.

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.”

If a statute is content based, it must withstand strict scrutiny … [i.e.,] “must be the least restrictive means of achieving a compelling state interest .” … “[I]t is the rare case in which we have held that a law survives strict scrutiny.” The statute at issue here neither protects a compelling state interest nor is it narrowly drawn.

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.

Further, children are not harmed by nonobscene, nonpornographic photographs taken in public places. In Ashcroft v. Free Speech Coalition (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, nor constituted child pornography as defined in New York v. Ferber. 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.

The Ashcroft decision reasoned that the images did not harm any children in the production process, and differentiated such images from child pornography, where the recorded acts are intrinsically related to victims of actual sexual abuse. Rather, the Court observed, “the CPPA prohibits speech that records no crime and creates no victims by its production.” 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.” It explained, “While the 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.” 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.”

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. Thus, the foundation of that case is no less relevant here, and bears repeating:

The evil in question depends upon the actor’s unlawful conduct, conduct defined as criminal quite apart from any link to the speech in question. This establishes that the speech ban is not narrowly drawn. The objective is to prohibit illegal conduct, but this restriction goes well beyond that interest by restricting the speech available to law-abiding adults….

The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The government “cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.

To preserve these freedoms, and to protect speech for its own sake, the Court’s First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct.

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.

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 (9th Cir. 2014) (Registered sex offenders who have completed their terms of probation and parole enjoy the “full protection of the First Amendment.”).

[Footnote moved: We would also reject any assertion that the statute’s parental consent exception saves the statute’s constitutionality. The limited ability to obtain parental consent is insufficient to remove or minimize the statute’s 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.]

The State’s only argument against overbreadth is its assertion that Wis. Stat. § 948.14 does not prohibit a substantial amount of constitutionally protected communicative conduct. Because the statute applies to capture of nearly all images of children in public places, we unreservedly reject that assertion.

Even accepting, arguendo, the State’s argument that photographs captured exclusively for personal viewing are not constitutionally protected, all other photographs subject to the statute would have First Amendment protection. Sharing images is customarily the very reason for photography.

While the statute’s application to registered sex offenders is so vast as to defy full description, it would impermissibly preclude, for example, newspaper photojournalists from capturing images of children meeting with politicians, professional photographers from taking school yearbook pictures, and proud parents from photographing their child with classmates on the first day of kindergarten for sharing with grandparents…. Wis. Stat. § 948.14 “indiscriminately casts a wide net over expressive conduct protected by the First Amendment….” Thus, the statute’s infringement of protected expression is real and substantial…. Wis. Stat. § 948.14 is [thus] overbroad on its face….

Seems correct to me. Thanks to Bryan Gividen for the pointer.