STATE OF WISCONSIN

CIRCUIT COURT

BROWN COUNTY

State of Wisconsin, Plaintiff, vs. G.N.S., Defendant. File No. 13CF0000 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MOTION TO DISMISS

THE DEFENDANT, appearing specially through counsel and reserving his right to challenge the courts jurisdiction, hereby submits this Memorandum of Law in support of his simultaneously filed Motion to Dismiss. Introduction The defendant, who is a registered sex offender, is alleged, on June 27, 2013, to have taken photographs of two children, who at the time were living with him, at a public beach. The defendant later purportedly published the photos on the internet. The state further alleges that the defendant did not have written consent from the childrens parents or legal guardians. The state filed a criminal complaint on September 12, 2013. The defendant appeared for an initial appearance the same day. On September 16, 2013, the state filed an amended complaint modifying the date of offense to June 27, 2013. Following appointment of counsel, the defendant appeared for a preliminary hearing on September 19, 2013. The defendant sought adjournment of the preliminary hearing and waived time limits. The court then set the matter for a preliminary hearing on October 10, 2013, at 10:30 a.m.

Argument Wis. Stat. 948.14(2) provides: A sex offender may not intentionally capture a 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. The statute references Wis. Stat. 942.09(1)(a), which provides that [c]aptures a representation means takes a photograph, makes a motion picture, videotape, or other visual representation, or records or stores in any medium data that represents a visual image. The statute further allows an exception for the sex offenders own children and those over whom the offender has legal custody. I. The statute is unconstitutional as applied in the case at bar because the

conduct alleged by the state constituted protected speech, for which the defendant may not be punished. Application of the statute violates the defendants rights to freedom of expression and to equal protection of the law, provided by the state and federal constitutions, by restricting expression based on content, and by restricting expression only for registered sex offenders. Content-based restrictions on speech in a public forum are only permitted if they are narrowly tailored to a compelling state interest. Perry Ed. Assn. v. Perry Local Educators Assn., 460 U.S. 37, 45 (1983). When a classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class[,] strict scrutiny applies. Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 312 (1976); Ferdon v. Wisconsin Patients Comp. Fund, 2005 WI 125, 61, 284 Wis.2d 573, 701 N.W.2d 440. Under strict scrutiny, as with content-based speech restriction, a classification is

justified only if it furthers a compelling government purpose and, even then, only if no less

restrictive alternative is available. Regents of the University of California v. Bakke, 438 U.S. 265, 357 (1978). In Doe v. Marion County Prosecutor, the Court of Appeals for the Seventh Circuit recently held unconstitutional an Indiana statute prohibiting sex offenders from using social networking websites. 705 F.3d 694, 695 (7th Cir. 2013). Because that restriction was a time, place, and manner restriction, rather than a content-based restriction, the court applied intermediate scrutiny, requiring that such restriction be narrowly tailored to a significant governmental interest and leave open ample alternative channels for communication of information. Id. at 698. The court concluded that restriction was not narrowly tailored and was thus unconstitutional. Id. Freedom of speech has long been considered a fundamental right. Gitlow v. New York, 268 U.S. 652, 666 (1925); see also Doe, 705 F.3d at 702 (distinguishing speech restrictions for sex offenders from residency restrictions because they impact a fundamental right). Photography constitutes protected speech. Visual images have been subject to the First Amendments guarantee of freedom of speech in numerous cases. See, e.g., Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2005). Laws enacted to control or suppress speech may operate at different points in the speech process. Citizens United v. Fed. Election Commn, 130 S. Ct. 876, 896 (2010). Relying on this premise, the United States Court of Appeals for the Seventh Circuit recently noted that creation of content, in that case an audiovisual recording, is included in the First Amendments guarantee of freedom of speech. Amer. Civ. Liberties U. of Illinois v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012). Indeed, the court posited that a prohibition of photography at a public event would raise serious First Amendment concerns and would obviously affect the right to publish the resulting photograph . . . . Id. at 596. Thus, a prohibition on taking a photograph has the same effect as a prohibition on publishing the photograph. Additionally, the Wisconsin 3

Supreme Court has viewed photography as protected speech. State v. Stevenson, 2000 WI 71, 236 Wis. 2d 86, 613 N.W.2d 90. The state alleges that the defendant photographed children and published the images to the internet. These photographs are not subject to any recognized exception to the right to free speech. The statute involved in this case provides a content-based restriction on freedom of speech, specifically restricting the rights of certain individuals to create and publish images of minors. Such restrictions must be narrowly tailored to a compelling governmental interest. This restriction is not so tailored and furthers no such interest. The statute further creates a classification of registered sex offenders. The only difference between any member of the public to whom this statute does not apply and one to whom it does apply is the sex offender status. Because the publication of such photographs, and thus their creation, is protected speech under the First Amendment, and the statute applies only to registered sex offenders, the statute also violates Equal Protection unless the state can show that the restriction is narrowly tailored to a compelling state interest. II. The statute is facially unconstitutional because it creates a content-based

restriction and is overbroad. [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. State v. Stevenson, 2001 WI 71, 11, 236 Wis. 2d 86, 613 N.W.2d 90 (citing Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940)). In Stevenson, the Wisconsin Supreme Court held that a statute prohibiting capturing representations of nudity without the consent the person whose representation is captured was

unconstitutionally overbroad. Id. at 1. Individuals may challenge statutes for being overbroad even if their own conduct is not protected speech. Id. at 12 (citing Dombrowski v. Pfister, 380 U.S. 479, 486 (1969)). Once a court determines that a statute is overbroad, it

has three options: it may apply a limiting construction; it may sever unconstitutional provisions; or it may invalidate the entire statute. Id. at 15. In Stevenson, the statute at issue provided:
(2) Whoever does any of the following is guilty of a Class E felony: (a) Takes a photograph or makes a motion picture, videotape or other visual representation or reproduction that depicts nudity without the knowledge or consent of the person who is depicted nude, if the person knows or has reason to know that the person who is depicted nude does not know of and consent to the taking or making of the photograph, motion picture, videotape or other visual representation or reproduction.

Id. at 16; Wis. Stat. 944.205(2)(a) (1997-98). In finding that the statute was overbroad, the court noted that the statute covered all reproductions of nudity. It concluded that the statute in Stevenson overreache[d] in prohibiting other expression that should be sheltered under the First Amendment. Stevenson, 2000 WI 71 at 16. Additionally, as discussed above, the Seventh Circuit recently held an Indiana ban on sex offenders using social networking sites unconstitutional. Doe, 705 F.3d at 695. In discussing the tailoring of the statute, the court noted,
the state agrees there is nothing dangerous about Does use of social media as long as he does not improperly communicate with minors. Further, there is no disagreement that illicit communication comprises a minuscule subset of the universe of social network activity. As such, the Indiana law targets substantially more activity than the evil it seeks to redress.

Id. at 699. The court then noted that Indiana had other statutes in place that protect children, namely a ban on solicitation of minors for sexual activity, inappropriate communication with a child, communication with a child with the intent of sexual gratification. Id. The court found these statutes better advance Indianas interest in preventing harmful interaction with children . . . and accomplish that end more narrowly. Id. The statute in the case at bar is remarkably similar to that in Stevenson. As in the present case, the statute prohibits creating certain representations and contains a consent 5

element. Compare Stevenson, 2000 WI at 71 16; Wis. Stat. 944.205(2)(a) (1997-98) with Wis. Stat. 948.14(12). Neither statute contains any requirement that there be an expectation of privacy or that the content be obscene. In Stevenson, the court noted that under that statute, a print of Michelangelos David would be prohibited, as would nudity for health or educational purposes. 2000 WI 71, 22. Similarly, in this case, the language of the statute prohibits a sex offender from such benign conduct as taking a photograph of the stands at Lambeau Field, because children would inevitably be included in that photograph. Indeed, given the expansive definition of captures a representation, merely viewing benign images of children on the internet could be a violation.1 While the statute at issue here is more tailored than that in Doe, it is nonetheless a broad restriction on the freedom of speech of sex offenders. Just as Indiana has more narrowly tailored statutes protecting children, Wisconsin has protections already in place that more narrowly seek to protect children. Wisconsin currently prohibits installing surveillance devices or looking into private places for the purpose of sexual gratification. Wis. Stat. 942.08. In its more narrowly tailored replacement of the statute in Stevenson, Wisconsin also prohibits capturing a representation of a nude person. Wis. Stat. 942.09. It further goes without saying the Wisconsin prohibits child pornography. Wis. Stat. 948.12. Wisconsins statute prohibiting registered sex offenders from capturing a representatin of a minor is overbroad and facially unconstitutional. It criminalizes significant benign, protected speech and it is neither narrowly tailored nor supporting a compelling state interest.

The image could be stored in the cache either in the computers random access memory or on its hard drive, meeting the requirement for storing data representing a visual image of the definition in Wis. Stat. 942.09(1)(a). See, e.g., State v. Mercer, 2010 WI App 47, 17-23, 324 Wis. 2d 506, 782 N.W.2d 125.

Conclusion Based on the foregoing, the defendant respectfully requests that the court enter an order dismissing this action on the grounds that the statute under which the defendant is charged violates Article I, Sections 1 and 3 of the Wisconsin Constitution and the First and Fourteenth Amendments to the United States Constitution. Dated this __ day of October, 2013. Respectfully submitted, Chad R. Thomas Attorney for the Defendant ______________________________ By: Chad R. Thomas State Bar No. 1086887 P.O. Box 312 Wrightstown, WI 54180 (920) 403-0444 (414) 435-9179 (facsimile) chadrthomas@gmail.com c: Wendy W. Lemkuil, A.D.A. J. B. Van Hollen, Attorney General