STATE OF WISCONSIN

CIRCUIT COURT BRANCH V

BROWN COUNTY

STATE OF WISCONSIN. Plaintiff, vs. CHRISTOPHER J. OATMAN, Defendant.

JJI &L'$ E
CLfW< OF COURTS
BR(P#~V COUNTY WI

, ,,

DECISION AND ORDER

Case No. 13-CF-00057

NATURE OF THE CASE Before the Court is a Motion to Declare Sec. 984.14 Unconstitutional& Dismiss Counts 1-16 brought by Defendant Christopher J. Oatman ("Oatman"). Oatman asserts that Wisconsin Statute 5 948.14, which forbids registered sex offenders from capturing the image of children under the age of seventeen without written permission from the children's parent or guardian, violates the First Amendment right of Freedom of Speech and is therefore unconstitutional. Alternatively, Oatman also argues that section 948.14 is unconstitutional because it is overbroad in its analysis. For the following reasons, Oatman's Motion to Declare Sec. 984.14 Unconstitutional & Dismiss Counts 1-16 will be DENIED in all respects. FACTUAL BACKGROUND Oatman was convicted of First Degree Sexual Assault of a Child on March 22,2002 and is thus required to register himself as a sex offender under Wis. Stat. 301.45. (Am. Cr. Compl.,

7 3). On February 17,2011 Probation and Parole Agent Erica Frantz searched Oatman's
residence seizing, among other things, a cell phone, a digital camera, memory cards, and a digital

camcorder. (Am. Cr. Compl., 7 1). A search warrant was obtained to examine the digital content of these devices. (Am. Cr. Compl., 7 1). Of the photographs and videos located on the video camera, two children were identified as the minor children of Kelly Garduno. (Am. Cr. Compl., 7 1). Ms. Garduno indicated that she did not know Oatman and that she did not give him permission to take photos or videos of her children. (Am. Cr. Compl., 7 1). The images focus on the children's crotch areas, panty line, and buttocks. (Am. Cr. Compl., 7 1). In addition, the seized photographs also revealed images of the minor children of Lisa Villers. (Am. Cr. Compl., fi 2). While Ms. Villers indicated that she knew who Oatman was because he lived next door, she had not given him permission to take photographs or video of her children. (Am. Cr. Compl., 7 2). The photographs focus primarily on the children's crotch areas, legs, buttocks, and visible undergarments. (Am. Cr. Compl., 7 2). As a result of the above mentioned videos and photographs containing images of minor children who were photographed without parental consent, Oatman was charged with sixteen counts of violating section 948.14 which prohibits registered sex offenders from intentionally capturing the representation of a minor without written consent from the minor's parent or guardian. (Am. Cr. Compl., 1-7).
STANDARD OF REVIEW

Generally, legislative enactments cany a presumption of constitutionality, and as a result, the burden of proof for establishing unconstitutionality rests with the party challenging the statute. State v. Baron, 318 Wis.2d 60, 66, 769 N.W.2d 34 (Wis. 2009). However, where First Amendment rights are implicated, the State bears the burden of proving that the statute is constitutional beyond a reasonable doubt, and therefore must demonstrate that the statute passes either strict or intermediate scrutiny. Id.

Despite the difference in language, "Wisconsin courts consistently have held that Article I, Section 3 of the Wisconsin Constitution guarantees the same freedom of speech rights as the First Amendment of the United States Constitution." County ofKenosha v. C & S Mgmt., Znc., 223 Wis.2d 373,388,588 N.W.2d 236 (Wis. 1999).
ANALYSIS

Oatman asserts that section 948.14 violates the First Amendment right of Freedom of Speech and is therefore unconstitutional on its face and/oras applied to the facts of his case. Alternatively, Oatman also argues that section 948.14 is unconstitutional because it is overbroad in its analysis.
1. First Amendment Implications

Oatman argues that section 948.14 is unconstitutional because it infringes upon the First Amendment right of Freedom of Speech. In order to determine whether the First Amendment is implicated, it must be determined whether section 948.14 regulates speech, including expressive conduct, or mere conduct alone. Baron, 3 18 Wis.2d at 68. The regulation of speech and/or expressive conduct requires a First Amendment analysis while the regulation of conduct alone does not. Id.
Speech v. Conduct

After a review of Oatman's arguments, section 948.14 clearly does not regulate speech. In a similar case, the US. Supreme Court upheld a statute that prohibited individuals from destroying registration certificates, holding that it "plainly does not abridge free speech" because it dealt with "conduct having no connection with speech." United States v. O'Brien, 391 U.S. 367, 375 (1968). Similarly, the act of capturing a photograph or video does not restrict any

speech, but instead regulates an individual's conduct. In fact, Oatman even states in his brief that he captured the images "without any communication." (Def.'s Motion, 4). In the alternative, Oatman also argues that section 948.14 restricts a sex offender's ability to engage in protected "expressive conduct," thus triggering the First Amendment. To support this position, Oatman references Ashcroft v. Free Speech Coalition, which he asserts stands for the proposition that capturing an image is constitutionally protected. 535 U.S. 234 (2002). Ashcroft, however, focuses on the content depicted within an image; it does not address the actual act of capturing the image. The U.S. Supreme Court did address the idea of expressive conduct in O'Brien, stating that "[wle cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends.. . to express an idea." 391 U.S. at 376. Neither speech nor expressive conduct is regulated by section 948.14. Instead, section 948.14 solely regulates conduct and does not trigger the First Amendment. The same conclusion is reached regardless of the class of individuals the statute applies to. Despite the fact that the First Amendment is not triggered, the court would find, even if it was, that Oatrnan's photographic rights are still not protected.
2. Constitutionality
As stated above, section 948.14 does not trigger the First Amendment; however, this

decision will proceed as if the First Amendment had been triggered purely for the purpose of furfher analysis. In order to determine which level of scrutiny should be utilized, it must be determined whether section 948.14 is content-based or content-neutral. Id. A content-based statute requires strict scrutiny while a content-neutral statute must only survive intermediate scrutiny. Id.

A. Content-based v. Content-neutral

Content-based statutes "distinguish favored speech from disfavored speech on the basis of the ideas or views expressed." Turner Broad. Sys., Inc. v. F.C.C., 512 US. 622,643 (1994); see, e.g., Burson v. Freeman, 504 US. 191, 197 (1992) ("Whether individuals may exercise their free speech rights near polling places depends entirely on whether their speech is related to a political campaign."); Boos v. Barry, 485 U.S. 312,318-19 (1988) ("Whether individuals may picket in front of a foreign embassy depends entirely upon whether their picket signs are critical of the foreign government or not."). By contrast, content-neutral statutes "impose burdens on speech without reference to the ideas or views expressed." Turner Broad. Sys., Inc., 512 U.S. at 643; see, e.g., Members of City Council of City ofLos Angeles v. Taxpayersfor Vincent, 466 U.S. 789,804 (1984) (holding that an ordinance was content-neutral where it prohibited individuals from attaching signs to telephone poles because the government did not aim to regulate the content of the signs, but rather the overall act of affixing them to public property). Applying these principles to the case at hand leads promptly to the conclusion that section 948.14 is content-neutral. Section 948.14 makes no attempt to regulate the content of the captured representations but rather bans all representations taken of minors without parental consent. Oatman has failed to offer any countervailing evidence to rebut this finding. B. Intermediate Scrutiny Because section 948.14 is content-neutral, it must only survive intermediate scrutiny. As proscribed by Doe v. Prosecutor, Marion County, Indiana, the statute must satisfy a variant of intermediate scrutiny such that it must be "narrowly tailored to serve a significant governmental interest" and "leave open ample alternative channels for communication of the information." 705 F.3d 694,698 (7th Cir. 2013).

Section 948.14 undoubtedly furthers a significant government interest. As the U.S. Supreme Court has noted, "[tlhe sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people." Ashcroft, 535 US. at 244. Congress has acknowledged that there are subcultures of persons who harbor illicit desires for children and are willing to commit criminal acts to gratify these impulses. Id. at 245. Based on these principles, the State of Wisconsin has a legitimate, significant interest in shielding its children from these improper sexual deviants and is justified in passing legislation aimed at furthering this purpose. Furthermore, section 948.14 is narrowly tailored to serve Wisconsin's significant interest in protecting children. Oatman argues that section 948.14 is similar to an Indiana statute that prohibited sex offenders from using social media websites, which the Seventh Circuit ultimately ruled unconstitutional because it was not narrowly tailored. The Seventh Circuit held that the Indiana statute "broadly prohibit[ed] substantial protected speech rather than specifically targeting the evil of improper communications to minors." Doe, 705 F.3d at 695. However, the Indiana statute at issue in Doe is not similar to the current statute before the Court. The statute in Doe, which prohibited sex offenders from using social networking websites, instant messaging services and chat programs, constituted a complete ban on a sex offender's use of social media. That statute not only banned sex offenders from improperly communicating with minors, but also prevented sex offenders from utilizing social media for lawful communication with adults and other legitimate purposes. In contrast, section 948.14 does not constitute a complete ban on a sex offender's ability to capture images. Rather, section 948.14 is tailored to apply only to capturing the representation of minors and only when parental consent is not obtained. Unlike Indiana's statute, section 948.14 specifically targets Wisconsin's significant interest in protecting minor children.

In addition Oatman argues that section 948.14 is not narrowly tailored because it broadly applies to all sex offenders regardless of their initial offense or any rehabilitation. A narrowly tailored statute "must be narrowly tailored to serve the government's legitimate.. . interests but [] it need not be the least restrictive or least intrusive means of doing so." Ward v. Rock Against
Racism, 491 U.S. 781,798 (1989). "So long as the means chosen are not substantially broader

than necessary to achieve the government's interest, ... the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictivealternative." Id. at 799. The restriction section 948.14 places on all registered sex offenders is not broader than necessary. All registered sex offenders were previously convicted of a proscribed sex offense in a court of law. Regardless of the nature of the first offense, this deviant sexual conduct, the resulting conviction, and the significant risk of recidivism in sexual predators legitimizes Wisconsin's interest in placing a minimal restriction on the conduct of registered sex offenders. This minimal intrusion ensures the protection and safety of the State's minor children. Likewise, section 948.14 leaves open many alternative modes of expression. Section 948.14 only regulates capturing the image of minors without parental consent, thus leaving available all other forms of photography and an infinite number of other various modes of expression. Moreover, section 948.14 does not completely block sex offenders from capturing the representation of minors, but explicitly leaves this opportunity open when parental consent is first obtained. As a further note, even if section 948.14 were deemed content-based it would survive strict scrutiny as well. The only difference between the intermediate scrutiny test and strict scrutiny is that strict scrutiny requires a "compelling state interest" while intermediate scrutiny

requires a "significant state interest." Compare Doe, 705 F.3d at 698 (requiring a variant of intermediate scrutiny that must serve a significant government interest), with Baron, 3 18 Wis.2d at 82-83 (stating that strict scrutiny must serve a compelling state interest). There is no doubt that protecting children from the harmful impulses and advances of convicted sexual offenders is not only a "significant" interest, but one of the most compelling interests a government can have.
3. Overbreadth

Oatman further argues that section 948.14 is overbroad and is thus unconstitutional. The overbreadth doctrine states that a statute is invalid if it prohibits a substantial amount of protected speech. United States v. Williams, 553 U S . 285,292, 128 S.Ct 1830 (2008). The US. Supreme Court has vigorously enforced the doctrine's "substantial" requirement and has recognized that the overbreadth doctrine is "strong medicine" that must be employed with hesitation. Id. at 292-93 (quoting Los Angeles Police Dep 't v. United Reporting Publ'g Corp., 528 US. 32,39 (1999) (citation omitted). The party who claims overbreadth bears the burden of demonstrating that substantial overbreadth exists. Virginia v. Hicks, 539 US. 113, 122 (2003). The restrictions imposed by section 948.14 are far from substantial. First, the statute is not broadly applied to the general population, but natrowly designed to apply only to convicted sex offenders who are required to register on the State's Sex Offender Registry. Second, the statute only marginally hinders an offender's ability to engage in image capturing because it only restricts capturing the image of a minor when parental consent is not obtained. All other avenues of photography, and all other modes of expression, are left completely unaffected by section 948.14. Thus, Oatman's assertion that section 948.14 is overbroad falls far short of the mandated "substantial" requirement, and therefore fails.

CONCLUSION AND ORDER For the above reasons, it is hereby ORDERED that Defendant's Motion to Declare Sec.
984.14 Unconstitutional & Dismiss Counts 1-16 is DENIED in all respects.

Dated at Green Bay, Wisconsin, this

/L/

day of

BY THE COURT:

6
,2013

Honorable Marc A. Hammer Circuit Court Judge, Branch V

b Q c: Attorney Lemnrd Kashinskg ADA Wendy Lemkuil

STATE OF WISCONSIN STATE OF WISCONSIN,

CIRCUIT COURT BRANCH 5

BROWN COUNTY

Defendant. The defendant (hereinafter Oatman), appearing specially by his attorney and reserving his right to challenge the court's jurisdiction, moves the court to declare Sec. 948.14, Wis. Stats which prohibits registered sex offender from recording images of persons under the age of 17 years without written permission of a parent, legal custodian or guardian void andlor unconstitutional either on its face or as applied to the facts of this case. As a result, Counts 1-16 should be dismissed. This motion is brought pursuant to the lst, 5th and 14th Amendments to the United States Constitution and Article I, Sections 3 and 8 of the Wisconsin Constitution.

AS GROUNDS, Oatman asserts the following:

STATUS OF CASE AND LEGISLATIVE HISTORY On January 14,2013, almost 23 months after a probation search by Erica Frantz of Oatman's residence, the State charged Oatman, a registered sex offender, with sixteen counts of recording images of persons under the age of 17 with obtaining required written permission,

contrary to 948,14(2)(a) Wis. Stats.. The State also charged Oatman with one count of burglary to the residence of Diane Fowler (Count 17). The images that are at issue in Counts 1- 16 were recovered from a cell phone, digital camera, memory card and camcorder found in Oatman's possession and turned over to Detective Laitinen of the Green Bay Police Departmebnt. A description is set forth in pages 8-9 of the criminal complaint. They are primarily images of children playing the neighborhood where Oatman lived. Some of the pictures focused upon the clothed areas of the children near their intimate parts. There was no indicated that Oatman staged the activity or even communicated with the children in any way.

The offense of being a registered sex offender who intentionally photographed a person under 17 without consent had its origins in 2005 Wisconsin Assembly Bill 251 which was introduced on March 18,2005 with 20 sponsors and 8 co-sponsors. An amendment to require the written consent to include reference to the sex offender registiy status was offered on April 19, 2005 and included in the final version of the statute approved by the State Assembly. The bill was approved by the State Senate 32 to 1 on April 25,2006, enrolled and presented to Govemor Doyle on May 19,2006. Govemor Doyle signed the bill (2005 Wisconsin Act 432) on May 22,2006. It was published on June 5,2006 and took effect immediately.

1-16 of the As a result, the statute in effect that governed Oatman's conduct in Co~mt Criminal Complaint was as follows:
948.14 Registered sex offender and photographing minors.

(1) DEFINITIONS. In this section: (a) "Captures a representation" has the meaning given in s. 942.09 (1) (a).
2

(b) "Minor" means an individual who is under 17 years of age. (c) "Representation" has the meaning giving in s. 942.09 (l)(c). (d) "Sex offender" means a person who is required to register under s. 301.45. (2) PROHIBITION. (a) 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. (b) Paragraph (a) does not apply to a sex offender who is capturing a representation of a minor if the sex offender is the minor's parent, legal custodian, or guardian. (3) PENALTY. Whoever violates sub. (2) is guilty of a Class I felony. History: 2005 a. 432. This statute was placed in Chapter 948 near the child pornography statute. sic. 948.12, Wis. Stats. However, in contrast to the child pornography statute, Sec. 948.14, Wis. Stats. prohibits capturing a representation of a minor even if the minor is engaging in mundane conduct fully dressed and without any exploitation or contact with the minor unless the required written consent is obtained. The prohibition applies to all persons required to register as a sex offender even if the conviction resulting in a registration requirement did not involve children or was simply cooperative activity between teenagers.

LEGAL PRINCIPLES AFFECTING CONSTIUTIONALITY

There is a presumption that legislative enactments are constitutional. The burden of proof is generally upon the objecting party to establish unconstitutionality beyond a reasonable doubt.

State v. Olson, 2006 WI App 32 7 4; 290 Wis. 2d 202,206-207; 712 N. W. 2d 61,64. However,

a different test applies when an enactment infringesupon free expression as the statute in this
case does. As the Court of Appeals explained: Generally, statutes "enjoy a presumption of constitutionality that the challenger must refute[, but wlhen a statute infringes on First Amendment rights, ... the State bears the burden of proving the statute constitutional beyond a reasonable doubt." State v. Trochinski, 2002 WI 56,133,253 Wis.2d 38, 644 N.W.2d 891 (citation and internal quotation marks omitted).

16 The First Amendment of the United States Constitution, applicable to the states under the Due Process Clause of the Fourteenth Amendment, provides in pertinent part that "Congress shall make no law ... abridging the freedom of speech." 44 Liquormart, Inc. v. Rhode Island, 517 U S . 484,489 n. 1, 116 S.Ct. 1495, 134 L.Ed.2d 71 1 (1996). Article I, $ 3 of the Wisconsin Constitution provides in pertinent part that " [elvery person may freely speak, write and publish his [or her] sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press." Despite the differences in language between these provisions, we have f Kenosha v. C found no differences in the freedoms that they guarantee. County o d:S Mgmt., Inc., 223 Wis.2d 373, 388,588 N.W.2d 236 (1999).
In re Robert T, 2008 WI 22,

1 15-6,307 Wis.2d 488, 746 N.W.2d 564.

Oatman observed children and captured images of their public play in his neighborhood without any communication by Oatman with them. His actions constituted exercise of his right to free speech that cannot ordinarily be curbed by government. Oatman's activities were subject to control by the State as a condition of his extended supervision (which is a form of conditional liberty). However, the State is seeking authority to subject Oatman to additional punishment as a Class I felony for each child he recorded in a photograph or video solely because of his status as a person required to comply with the sex offender registry. There is conduct prohibited by Sec. 948.14 that might arguably go beyond free speech. For example, Sec. 948.14 could be violated by one who engaged in direct verbal contact with

minors to take photographs or videos or secretly took them in an indoor setting from outside of a dwelling and violated a privacy interest. However, that is not the case here. When a statute is challenged on the grounds of overbreadth, the Court of Appeals set forth the proper analysis in a recent case involving the stalking statute:

71 1 A statute may be challenged on its face as overbroad even by a party whose conduct is clearly unprotected if it infringes on a substantial amount of speech or expressive conduct protected by the First Amendment. Ashcroft v. Free Speech Coal., 535 U S . 234,244 (2002); Robert T., 307 Wis. 2d 488,17. Finding a statute overbroad is "strong medicine" and should not be done lightly. Robert T., 307 Wis. 2d 488, 77 (citation omitted). In order for a statute to be invalidated, the overbreadth must be substantial, not only in an absolute sense, but as judged in relation to the statute's legitimate sweep. United States v. Williams, 553 U.S. 285,292 (2008). The party challenging a statute as overbroad has the burden to show substantial overbreadth. Virginia v. Hicks, 539 U S . 113, 122 (2003). 712 There are several steps in the overbreadth analysis. First, as a threshold matter, we must determine if the First Amendment applies to the case, so as to trigger constitutional scrutiny. State v. Baron, 2009 WI 58, q16, 318 Wis. 2d 60, 769 N.W.2d 34; Clark v. Community for Creative Non-Violence, 468 U.S. 288,294 n.5 (1984). The challenger has the initial burden of showing that the statute regulates protected speech, thus implicating the First Amendment. State v. Mitchell, 163 Wis. 2d 652,663-64,473 N.W.2d 1 (Ct. App. 1991), rev'd, 169 Wis. 2d 153,485 N.W.2d 807 (1992), rev'd, Wisconsin v. Mitchell, 508 U.S. 476 (1993), Ct. App. decision affd, 178 Wis. 2d 597, 598, 504 N.W.2d 610 (1993); Clark, 468 U S . at 295 n.5. If the subject matter of the statute is conduct, the First Amendment does not come into play. Baron, 318 Wis. 2d 60,114; Mitchell, 163 Wis. 2d at 664. The First Amendment does not protect an illegal course of conduct "merely because the conduct was in part initiated, evidenced, or carried out by means of language." State v. Robins, 2002 WI 65,742,253 Wis. 2d 298, 646 N.W.2d 287 (quoting Giboney v. Empire Storage & Ice Co., 336 U S . 490, 502 (1949)). Finally, only if the statute substantially prohibits protected speech, we analyze the statute's sweep under strict or intermediate scrutiny, depending on whether the regulation is content based or content neutral. Baron, 3 18 Wis. 2d 60, 131.
State v. Hemingway, 2012 WI App 133,V 11-12, Wis.2d

N.W.2d -.

In this case, Oatman violated Sec. 948.14, Wis. Stats. by exercising his right to free expression which included recording children playing in public. Strict scrutiny must be applied for the statute to be found constitutional as applied to this case. The appropriate analysis in this case is the one engaged in by the United States Supreme Court in Ashcroji v. Free Speech Coalition, 535 U S . 234,122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). In that case, the court struck down portions of the Child Pornography Prevention Act of 1996 (CPPA) that prohibited "virtual child pornography." "Virtual child pomography" was child pornography that appeared to be minors but was produced without using actual children. Justice Kennedy, who wrote the majority opinion, acknowledged that virtual child pornography, while produced without creating victims, might be used by pedophiles to whet their sexual appetites. Ashcroft v. Free Speech Coalition, supra, 535 U S . at 241. There are also legitimate limits on free speech such as defamation, obscenity and pornography produced with real children. Ashcroji v. Free Speech Coalition, supra, 535 U S . at 245-246. The CPPA prohibited child pomography based upon appearances without proof of victimization. Ashcroji
v. Free Speech Coalition, supra, 535 U S . at 249. Thus, it differed significantly from the child

pornography statute upheld in New Yorkv.Ferber, 458 U . S . 747,758,102 S.Ct. 3348,73 L.Ed.2d
I 1 13 (1982). Justice Kennedy focused upon the means by which virtual child pornography was made

and its potential value that distinguished it from obscenity. Ashcroji v. Free Speech Coalition, supra, 535 U.S. at 250-25 I. Of particular import to this case, Justice Kennedy also held that the affect of virtual pornography upon sexual appetites of consumers was an insufficient rationale to prohibit it: The Government submits further that virtual child pornography whets the appetites of pedophiles and encourages them to engage in illegal conduct. This rationale cannot sustain the provision in question. 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." Stanley v. Georgia, 394 U. S . 557, 566 (1969). 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 unprotected speech if .a substantial amount of protected speech is prohibited or chilled in the process.

Ashcroft v. Free Speech Coalition, a, 535 U S . at 253.

The principles set forth in Ashcroft v. Free Speech Coalition clearly apply to the statute at issue in this case. Oatman's activity of passively recording the public activity of children did not create victims or invade privacy interests. The fear that Oatman's activity might whet Oatman's sexual activity (since he had a criminal conviction that required compliance with the sex offender registry), while legitimate, was not grounds for prohibiting his exercise of First Amendment rights. Different considerations applied to Oatman's rules of extended supervision which are not at issue here. Oatman and others are subject to sex offender registration the rest of their natural lives. Sex offender registration is not punishment for a crime. The restraint the law places upon Oatman's interest in photography is different, for example, from the prohibition the law places upon Oatman's employment in activities that involve substantial actual contacr with minors. Sec. 948.13, Wis. Stats. Counts 1-16 of the Criminal Complaint criminalize conduct that violates Oatman's constitutional rights to free speech and due process. They must be dismissed.

CONCLUSION

For the reasons stated above. Oatman moves the court to declare Sec. 948.14, Wis. Stats. unconstitutional on its face andlor as applied to the facts of this case and dismiss Counts 1-16.

Dated this 291h day of January 2013.

,
L . A ,+ -

SISSON AND KACHINSKY LAW, By: Len Kachinsky ,/ Attorneys for the Defendant .' State Bar No. 01018347 103 W. College Ave. #I01 0 Appleton, WI '54911-5782 Phone: (920) 993-7777 Fax: (775) 845-7965 E-mail: LKachinsky@core.com

H +

FICES

orig: Clerk of Courts. Brown County, P.O. Box 23600, Green Bay,. WI 54305-3600 cc: ADA Wendy Lemkuil, P.O. Box 23600, Green Bay,. WI 54305-3600 Wisconsin Attorney General, P.O. Box 7857, Madison, WI 54307-7857 Christopher Oatman, (given by Len to client in person on 1-29-2013)

STATE OF WISCONSIN STATE OF WISCONSIN,

CIRCUIT COURT BRANCH V

BROWN COUNTY

Plaintiff, VS. CHRISTOPHER J. OATMAN, Defendant.

STATE'S RESPONSE TO DEFENDANT'S MOTION

Case No. 13CF57

I. FACTUAL BACKGROUND
On Thursday, February 17, 2011, Probation Agent Erica Frantz, accompanied by'&&! Bay Police Department Officers, conducted a search of the home of Christopher J. Oatman, defendant.' Despite the fact that defendant was only approved to possess a track phone, numerous cell phones and recording devices were located at defendant's residence. A cell phone was located in the top drawer of defendant's dresser, and two other cell phones were discovered rolled up inside of a rug in defendant's closet. A digital camera, three SD memory cards, a video recorder, six Sony Hi 8 cassettes containing videos of defendant having sex with various women, nineteen pornographic DVD's, photos of various females and two family portraits, a bottle of lubricant, ten bras, three bustiers, a body suit, a corset, a swimsuit, twenty-seven pairs of women's underwear, and other women's clothing and undergarments were also located at defendant's residence. Officers generated ten discs from the material found at defendant's apartment. The content of the videos includes: (1) clips of adult, teenage, and young females from an upper apartment that focuses on the female's breast, crotch, and buttocks areas; (2) defendant having sex with various women; (3) and shots filmed up various women's skirts. Nine juvenile females had their images captured without the consent of their parents on at least eight separate occasions.

' The "factual background" section recites facts contained in the Amend. Crim. Compl., pp. 8-10 (Jan. 23,2013).

On January 14", 2013, a criminal complaint was filed against defendant alleging three felony counts of a Registered Sex Offender Intentionally Photographing A Minor Without Consent and one felony count of Burglary. On January 23rd,2013, an amended criminal complaint was filed alleging sixteen felony counts of Registered Sex Offender Intentionally Photographing A Minor Without Consent as a repeater and one felony count of Burglary as a repeater. On January 29th, 2013, Defendant via counsel filed a Motion To Declare Wis. Stat. 948.14 Unconstitutional And Dismiss Counts 1-16. For the following reasons, the State, Plaintiff herein, respectllly requests that defendant's motion be denied.

11. LEGAL ANALYSIS

Defendant via counsel alleges that the statute violates his First Amendment rights both facially and as-applied. Wis. Stat. 5 948.14 does not infringe upon defendant's First Amendment right to free speech because defendant's activity does not come within the ambit of speech or expressive conduct contemplated by the First Amendment. Likewise, defendant does not meet Ordinarily, a statute is presumed his burden of demonstrating that the statute is ~verbroad.~ constitutional, and the party seeking to overcome the presumption must prove the statute unconstitutional beyond a reasonable doubt. State v. Janssen, 219 Wis.2d 362, 370 (1998). The burden shifts to the proponent of the statute where the statute infringes on the exercise of First Amendment rights. Id. at 370-371 (internal citations omitted). However, Wis. Stat.

948.14

does not infringe on the exercise of defendant's First Amendment rights because defendant's activity is not of the type traditionally protected by the First Amendment. Indeed, "relevant

Wisconsin and Supreme Court precedent has repeatedly upheld sex offender registration laws, including Wisconsin's law specifically, as constitutional, non-punitive, civil regulatory regimes .-designedto promote public safety." Doe v. Raemisch, 895 F.Supp.2d 897,908 (2012). In order to determine if Wis. Stat. 5 948.14 violates defendant's First Amendment rights, two questions must be addressed; (1) does

948.14 regulate conduct alone, or speech, which

f neither speech nor expressive conduct is being regulated. the includes expressive conduct? I

statute does not implicate the First Amendment. (2) "[Ilf speech or expressive conduct is being
regulated, is the statute's regulation content based or content neutral? A content-based statute must survive strict scrutiny whereas a content-neutral statute must survive only intermediate scrutiny." State v. Baron, 318 Wis.2d 60, 68 (2009) (emphasis added). a. Wis. Stat. 3 948.14 does not implicate the First Amendment because it does not regulate speech nor expressive conduct. The statute regulates activity that is not traditionally protected by the Constitution. It provides that "[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." Wis. Stat.

948.14 (2005). The statute incidentally regulates speech - a sex offender has to engage in some sort of communication with a child's parent before attempting to capture an image of a child. However, the statute does not regulate speech traditionally protected by the First Amendment, nor does it regulate expressive conduct. Expressive conduct is conduct that is "sufficiently imbued with elements of communication" to fall within the scope of the First Amendment.
See Virginia v. Hicks, 539 U S 113, 122 (2003) (stating that an "overbreadth claimant bears the burden of demonstrating, 'from the text of [the law] and from actual fact' that substantial overbreadth exists.") (citing New YorkState Club Ass'n., Inc. v. City ofNew York, 487 U.S. 1, 14 (1988). ' S e e State v. Robins, 253 Wis.2d 298,319 (2002) (stating that "[tlhe United States Supreme Court has rejected the contention that the First Amendment extends to speech that is incidental to or part of a course of criminal conduct.") (citing Giboney v. EmpireStorage, 336 US. 490,498 (1949)); also see US.v. Stevens, 130 S.Ct. 1577, 1580 (2010) (stating that "[slince its enactment, the First Amendment has permitted restrictions on a few historic categories of

Spence v. Washington, 418 US. 405, 409 (1974). Expressive conduct must include an intent to

convey a particularized message, and there must be a great likelihood that the message would be understood by those who viewed it. Id. at 410-41 Defendant fails to demonstrate that his conduct is expressive. defendant videotaped and photographed nine different juvenile females on at least eight different dates.' He did not obtain consent from the parents of these children. The videos and photos concentrate primarily on the children's crotch and buttocks areas. Defendant does not assert that he intended to convey any type of message with this material, nor does he contend he intended to convey a particularized message to anyone. Although communicative photography is well-protected by the First

~mendment; defendant does not assert any communicative or other interest contemplated by the First Amendment in the images he captured of the juvenile females. Indeed, the manner in which the material was hidden throughout defendant's home indicates that it was primarily intended for personal use. The images were located on various cell phones, SD cards, and videotapes that were located in extremely private areas of defendant's home, including the top drawer of defendant's dresser, rolled up in a rug in his closet, and interspersed with other personal effects, most of which was highly pornographic. Defendant's conduct is not expressive conduct contemplated by the First Amendment because defendant fails to assert he had a
speech-including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct-that have never been thought to raise any Constihltional problem.") (internal citations omitted). See Texas v. Johnson, 491 US. 397,404 (1989) (stating that "we have recognized the expressive nature of students' wearing of black armbands to protest American military involvement in Vietnam, Tinker v. Des Moines Independent Community SchoolDist., 393 US. 503,505, (1969); of a sit-in by blacks in a "whites only" area to protest segregation, Brown v. Louisiana, 383 US. 131, 141-142, (1966); of the wearing of American military uniforms in a dramatic presentation criticizing American involvement in Vietnam, Schacht v. United States, 398 US. 58, (1970); and of picketing about a wide variety of causes, see, e.g., Food Employees v. Logan Valley Plaza, Inc., 391 US. 308,313-314, (1968); UnitedStates v. Grace, 461 U.S. 171, 176, (1983). 5 See Amend. Crim. Compl., pp. 8-10 (Jan. 23,2013). See Bery v. City ofNew York, 97 F.3d 689 (2d Cir. 1996) (holding that visual art is entitled to same full First Amendment protection accorded to written language); and see Massachusetts v. Oakes, 491 U S . 576,591-92, (1989) ("Photography, painting, and other two-dimensional forms of artistic reproduction ...are plainly expressive activities that ordinarily qualify for First Amendment protection.").

communicative or otherwise non-personal interest in the images. Defendant's motion should be denied because his conduct is not protected by the First Amendment and he does not demonstrate that the statute is otherwise unconstitutional beyond a reasonable doubt.
b. Even if a communicative element were asserted that brought Defendant's

conduct within the scope of the First Amendment, the statute is contentneutral and survives intermediate scrutiny.

Even if defendant asserted a legitimate comn~~nicative element, it does not follow that
the capturing of images of children's genital areas is constitutionally protected activity. U. S. v.

O'Brien, 391 U S . 367, 376 (1968). Even if the conduct was deemed expressive, the statute is
content-neutral and therefore subject to intermediate scrutiny. Baron, 318 Wis.2d at 68. As a general rule, laws that distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based. However, laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are generally content neutral.
Id. at 78 (internal citations omitted). Because Wis. Stat.

948.14 does not reference any

expressed ideas or views, it is a content-neutral regulations7"[Wlhen 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." O'Brien, 391 U.S. at 376. Here, Wis. Stat. 941.14 (1) is within the constitutional power of the government, (2) furthers the important and substantial government interest in protecting public safety and detemng sex offenders from reoffending; (3) is unrelated to the suppression of free expression; and (4) is narrowly tailored. Id. at 377. Because the statute is content-neutral and survives intermediate scrutiny, defendant's motion should be denied.

See Wis. Stat. 5 948.14 (2005) (stating that "[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.").

111. CONCLUSION For the foregoing reasons, the State respectfully requests that defendant's Motion To

Declare Wis. Stat. 5 948.14 Unconstitutional be DENIED.

Dated this 24" day of May, 2013.

Bv Carlev Miller / / ~&istan;~istrict ktorney On behalf of Wendy Lemkuil Assistant District Attorney
cc: Attorney Leonard Kachinsky

STATE OF WISCONSIN STATE OF WISCONSIN, Plaintiff, v.

CIRCUIT COURT BRANCH 5

BROWN COUNTY

OATMAN'S REPLY MEMORANDUM ON MOTION TO DECLARE SEC. 948.14 UNCONSTITUTIONAL & DISMISS ' COUNTS 1-16 Case No. 13 CF 57

The defendant (Oatman), appearing specially by his attorney and reserving his right to challenge the court's jurisdiction, replies to the State's memorandum of May 24,2013 as follows: The parties do not differ in the facts that form the basis of Oatman's alleged violations of Sec. 948.14, Wis. Stats. The State's recitation includes many matters not related to the alleged violations. The court should ignore them in its analysis of the constitutional issue Oatman's motion presents. The parties also agree that it is Oatman's burden to prove the statute is unconstitutional beyond a reasonable doubt. The State likens Sec. 948.14 to the sex offender registration laws which have been held constitutional in most, if not all, jurisdictions that have enacted them. like Elowever, Daunan's point is that Sec. 948.14, VJis. S'tts. is merely a regulatcry statute ~"vhich, the sex offender registry statute, is enforced by criminal sanctions for noncompliance. It is a penal statute that prohibits otherwise lawful activity as a Class I felony if engaged in by someone subject to the sex offender registry who does not obtain the required written permission of a parent.

A. Capturing a representation of a minor in a public place is protected free speech.

The State argues that $948.14 is only an incidental regulation of free speech because it requires that a registered sex offender (RSO) communicate with a parent before attempting to capture an image of a child. The compelled communication and veto authority of a parent is not what Oatman argues is the infringement on free speech. Those are burdens upon the exercise of a RSO's free speech rights but not what Oatman argues is the expressive activity that is protected by the First Amendment. That activity is the right of any citizen to photograph anything that is in public view under circumstar,ces where these is no reasonable expectation of privacy. It is the same right as the media has to photograph or televise motor vehicle accident scenes, house fires or public demonstrations. Expressive activity includes not only statements of opinion but also the

right to record and store images of public events.' Ashcroft v. Free Speech Coalition clearly stood for the proposition that recording and possessing images was normally a constitutionally protected activity. It is, at a minimum, at least incidental to communication about them. Indeed, the cases cited in footnote 6 of the State's memorandum also support the notion that possession of expressive material is protected by the First Amendment to the same extent as public speeches. Oatman's desire to secrete the images he took in electronic media does not undermine his argument that his right to record images is protected activity. Incidental to the exercise of First Amendment rights by reading books, for example, is the right to purchase, store and display (or not display) them. It would be absurd to say that one has the right to display pictures of children taken in public but not have the protected right to photograph what was in plain view. There is no requirement that one intend publication of images in order to protect the right to obtain them.

Oatman would concede that the right to record public activity might be limited if it presented a clear and present danger to public safety. However, that is not an issue here. Oatman produced
2

Absent Oatman's status as a RSO, no one would question his right to take random pictures of children playing the neighborhood or at a park either with or without parental permission. There might be issues if one did so and sought to use them in a television commercial or for-profit endeavor. But Oatman's pictures were clearly intended for his personal enjoyment. He had a First Amendment right to preserve images of children he observed in public places.

B. Sec. 948.14 was not a content neutral regulation that triggered only intermediate scrutiny.
The State suggests that if Oatman's conduct in capturing pictures of children in public areas was protected First Amendment activity, the limits on him were justified by a sufficiently important governmental interest in protecting public safety. The short answer is that the restrictions of $ 948.14 are not narrowly tailored to target the evil of protecting the public from potential child sex offenders. The Indiana statute struck down by the 7IhCircuit in Doe v. Prosecutor, Marion County,

Indiana, 7thCircuit case No 12-2512 that was attached to the supplement to Oatman's motion dated
February 14,2013 was based upon a scheme similar to 5948.14. It applied to all RSOs regardless of the nature of the committing offense, its date or any rehabilitation that may have occurred. It banned Facebook activity by RSOs with adults as well as children. Similarly, 8 948.14 would bar RSCs from recording a wide range of public activities if the particular recording included an image of children and the required written permission was not obtained from parents or other authorized persons. The prohibited activity was not narrowly tailored to protect any important public interest.

C . The legality of restrictions upon offenders on community supervision is not an issue.

his recordings without any communication with the children.

3

Community supervision for probation, extended supervision or supervised release is a form of conditional liberty. Oatman does not dispute the legality of sex offender rules that might prohibit the conduct he engaged in by recording and possessing pictures of children in public places. There may be good therapeutic reasons why someone like Oatman should not record or possess recordings of children even in public settings. But the issue is whether it is a valid criminal statute or a violation of Oatman's First Amendment rights. Oatman's extended supervision was revoked because of the conduct set forth in the criminal complaint and he was returned to prison for two years. It is not, technically, double jeopardy for him to be prosecuted for the same conduct that resulted in an extended supervision revocation. However, whether Oatman's conduct was a new crime rather than a rule violation is a different issue. For the reasons stated in his previous filings and for the same reasons the 7'h Circuit struck down the statute in Doe., Oatman moves the court to declare Sec. 948.14, Wis. Stats. unconstitutional on its face and/or as applied to the facts of this case and dismiss Counts 1-16. Dated this 29th day of May 2013.

SISSON AND KACHINSKY LAW ~ F F I C E S By: Len Kachinsky Attorneys for the Defendant State Bar No. 01018347 103 W. College Ave. #I01 0 Appleton, WI 5491 1-5782 Phone: (920) 993-7777 Fax: (775) 845-7965 E-mail: LKachinsky@core.com

orig: Clerk of Courts. Brown County, P.O. Box 23600, Green Bay, WI 54305-3600 cc: Judge Marc Hammer (e-mail only) ADA Wendy Lemkuil, P.O. Box 23600, Green Bay, WI 54305-3600 (plus e-mail) Christopher Oatman, Brown County Jail, 3030 Curry Lane, Green Bay, WI 543 11