State v. Scott L. Stevenson
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2000 WI 71 SUPREME COURT OF WISCONSIN Case No.: 98-2110-CR Complete Title of Case: State of Wisconsin, Plaintiff-Respondent, v. Scott L. Stevenson, Defendant-Appellant. ON CERTIFICATION FROM THE COURT OF APPEALS Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: JUSTICES: Concurred: Dissented: June 28, 2000 February 10, 2000 Circuit Waukesha Donald J. Hassin WILCOX, J., dissents (opinion filed). CROOKS, J., joins dissent. Not Participating: ATTORNEYS: For the defendant-appellant there were briefs by Elizabeth Cavendish-Sosinski, Daniel P. Fay and Oakton Avenue Law Offices, S.C., Pewaukee, and oral argument by Daniel P. Fay. For the plaintiff-respondent the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was James E. Doyle, attorney general. 2000 WI 71 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 98-2110-CR STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, JUN 28, 2000 v. Cornelia G. Clark Clerk of Supreme Court Madison, WI Scott L. Stevenson, Defendant-Appellant. APPEAL from a judgment of the Circuit Court for Waukesha County, Donald J. Hassin, Judge. ¶1 ANN WALSH BRADLEY, J. Reversed and cause remanded. This case is before the court on certification pursuant to Wis. Stat. (Rule) § 809.61 (199798).1 The defendant, Scott L. Stevenson, appeals the circuit court's judgment of conviction on two counts of making a videotape depicting a person in a state of nudity without the person's consent in violation of Wis. Stat. § 944.205(2)(a).2 1 All future references to the Wisconsin Statutes are to the 1997-98 volumes unless otherwise indicated. 2 The defendant appeals a judgment of the Circuit Court for Waukesha County, Donald J. Hassin, Judge, convicting him of two counts of making a videotape depicting a person in a state of nudity without the person's consent under Wis. Stat. § 944.205(2)(a) and one count of obstructing a police officer under Wis. Stat. § 946.41(1). No. 98-2110-CR Stevenson contends that the statute is facially overbroad under the First Amendment. Because we conclude that Wis. Stat. § 944.205(2)(a) suffers from unconstitutional overbreadth, and is not amenable to judicial limitation, we reverse the judgment of conviction and remand to the circuit court for re-sentencing on the charge of obstructing a police officer. ¶2 The relevant facts to this appeal are not disputed by the parties. Scott Stevenson and his former girlfriend, R.L.H., were involved in a long-term relationship that R.L.H. ended in mid-1997. Subsequent to the end of the relationship, Stevenson went to the house where R.L.H. resided with her parents and climbed onto the roof outside her bedroom window. Perched upon the roof, he proceeded to videotape R.L.H. in various stages of undress as she moved about her bathroom. Stevenson made this videotape without R.L.H.'s knowledge or consent. ¶3 Stevenson returned to the house the next evening, this time videotaping R.L.H. from a tree outside her bedroom window. Stevenson videotaped his former girlfriend partially nude while she stood R.L.H. in neither front of knew of her nor mirror changing consented to outfits. the making Again, of the videotape. ¶4 Shortly thereafter, the Waukesha Police Department received a report of a "peeping Tom" on the roof of R.L.H.'s house. Upon arrival at the scene, police officers chased Stevenson from the roof and apprehended him in an alley. The officers and then arrested resisting an officer. Stevenson for disorderly conduct The next day, one of R.L.H.'s brothers 2 No. 98-2110-CR recovered a video camera in the alley behind his parents' house and contacted the authorities. This video camera contained the tape made by Stevenson depicting his former girlfriend in the nude. ¶5 The criminal information filed against Stevenson originally charged him with 31 counts, including numerous counts of making a videotape depicting R.L.H. nude without her consent contrary to Stevenson's Wis. Stat. motion, § 944.205(2)(a).3 the circuit In court response dismissed to as multiplicitous 21 of the 31 counts charged in the information. ¶6 Stevenson also challenged the constitutionality of Wis. Stat. § 944.205(2)(a), asserting that the statute was both vague for failing to clearly under the expression statute under and the define overbroad First for the unit of infringing Amendment. The prosecution on protected circuit court rejected the constitutional challenge, finding that Wis. Stat. § 944.205(2)(a) 3 did not implicate First Amendment rights This statute provides: (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. 3 and No. 98-2110-CR that Stevenson had failed to satisfy his burden of proving that the statute was unconstitutional. ¶7 Upon the reconsideration of the constitutional challenge and the circuit court's reiteration of its reason for rejecting that challenge, Stevenson entered no contest pleas to two counts of violating Wis. Stat. § 944.205(2)(a) and one count of obstructing § 946.41(1). a police officer in violation of Wis. Stat. The circuit court then sentenced Stevenson to the maximum of two years in prison on each violation of Wis. Stat. § 944.205(2)(a), to run consecutively, and nine months in county jail on the obstruction count. favor of four years The sentences were stayed in probation with specific conditions, including one-year jail time in the Waukesha County Jail. ¶8 Stevenson appealed, asserting the same constitutional arguments of vagueness and overbreadth raised before the circuit court. court Subsequently, the court of appeals certified to this the following question: Is Wis. Stat. § 944.205(2)(a), subjecting a person who "[t]akes a photograph or makes a motion picture, videotape reproduction that or depicts other visual representation nudity without the knowledge or and consent of the person who is depicted nude" unconstitutionally overbroad?4 4 Because we decide this case on overbreadth grounds, we do not reach the claim of unconstitutional vagueness under Wis. Stat. § 944.205(2)(a). Additionally, we note that although Stevenson raised a vagueness claim before the court of appeals, he has not argued or briefed the vagueness challenge before this court. 4 No. ¶9 to 98-2110-CR The certified question before this court requires us examine whether Wis. constitutional scrutiny. Stat. § 944.205(2)(a) survives The constitutionality of a statute presents a question of law that we review independently of the determinations rendered by the circuit court or the court of appeals. State v. Janssen, 219 Wis. 2d 362, 370, 580 N.W.2d 260 (1998). ¶10 Statutes generally benefit from a presumption constitutionality that the challenger must refute. Kenosha v. C&S Management, N.W.2d 236 (1999). First Amendment Inc., 223 Wis. 2d of County of 373, 383, 588 When the statute implicates the exercise of rights, however, the burden shifts to the government to prove beyond a reasonable doubt that the statute passes constitutional muster. Lounge Management v. Town of Trenton, 219 Wis. 2d 13, 20, 580 N.W.2d 156 (1998); City of Madison v. Baumann, 162 Wis. 2d 660, 668, 470 N.W.2d 296 (1991). Because Wis. Stat. § 944.205(2)(a) implicates First Amendment rights, the State assumes the burden of proving that the statute is constitutional beyond a reasonable doubt. ¶11 We begin our discussion by setting forth the general principles underpinning the First Amendment overbreadth framework to illuminate our subsequent examination of Wis. Stat. § 944.205(2)(a). The genesis of the overbreadth doctrine has been attributed to the United States Supreme Court in Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940), which recognized that broadly written statutes substantially inhibiting free expression should be open to attack even by a party whose own 5 No. conduct remains unprotected under the First 98-2110-CR Amendment. See Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984); Henry P. Monaghan, suffers from Overbreadth, 1981 Sup. Ct. Rev. 1, 11-12 (1982). ¶12 Litigants constitutional claiming infirmity that a generally statute must have a personal a and vested interest in the outcome of the litigation, demonstrating the statute's unconstitutional application to their individual Broadrick v. Oklahoma, 413 U.S. 601, 610-11 (1973). conduct. Yet, in the First Amendment context the traditional rules of standing have been modified due to the gravity of a "chilling effect" that may cause others not before the court to refrain from constitutionally protected speech or expression. v. American Booksellers Ass'n, Inc., 484 U.S. Virginia 383, 392-93 (1988); State v. Tronca, 84 Wis. 2d 68, 88-89, 267 N.W.2d 216 (1978). In light of the critical significance of First Amendment rights, challengers may champion the free expression rights of others when their own conduct garners no protection. Dombrowski v. Pfister, 380 U.S. 479, 486 (1965); Janssen, 219 Wis. 2d at 372. ¶13 The prophylactic overbreadth doctrine further serves to prevent the selective enforcement of a statute that would target and discriminate against certain classes of persons. State v. Thiel, 183 Wis. 2d 505, 522, 515 N.W.2d 847 (1994). The danger inherent in overbroad statutes is that such statutes provide practically unbridled administrative and prosecutorial discretion that may result in selected 6 prosecution based on No. 98-2110-CR certain views deemed objectionable by law enforcement. Little v. City of Greenfield, 575 F. Supp. 656, 662 (E.D. Wis. 1983). See also Richard H. Fallon Jr., Making Sense of Overbreadth, 100 Yale L.J. 853, 884 (1991). The overbreadth doctrine aims to alleviate that danger. ¶14 Nevertheless, courts should only sparingly utilize the overbreadth doctrine as a tool for statutory proceeding with caution and restraint. Wis. 2d at 22-23. invalidation, Lounge Management, 219 Although a party may hypothesize situations in which the challenged statute reaches too sweepingly, when the statute's reach encompasses expressive conduct in addition to speech, the overbreadth must be both real and substantial before the statute may be invalidated. Id.; City of Milwaukee Wroten, 160 Wis. 2d 207, 226, 466 N.W.2d 861 (1991). v. Marginal infringement or fanciful hypotheticals of inhibition that are unlikely to occur will not render a statute constitutionally invalid on overbreadth grounds. ¶15 Having determined that a particular statute overbroad, courts may pursue one of several options. is First, courts may apply a limiting construction to rehabilitate the statute when such a narrowing and validating construction is readily available. may cure the unconstitutional Janssen, 219 Wis. 2d at 378. constitutional provisions of defect a remainder of the legislation intact. statute by and Second, courts severing leaving the the Thiel, 183 Wis. 2d at 522. Finally, courts may determine that the statute is not amenable to judicial limitation or severance and invalidate the entire 7 No. 98-2110-CR statute upon a determination that it is unconstitutional on its face. Id. ¶16 With contextual these general guidance, we overbreadth proceed principles next to providing examine the constitutionality of Wis. Stat. § 944.205(2)(a), the statute at issue in this case. The statute provides: (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. Wis. Stat. § 944.205(2)(a). Stevenson's conduct of At the surreptitiously outset, we videotaping note his that former girlfriend in the nude is abhorrent and that such conduct is given no concedes protection as much, under yet the contends First that Amendment. on its face Stevenson Wis. Stat. § 944.205(2)(a) overreaches in prohibiting other expression that should be sheltered under the First Amendment. ¶17 Stevenson claims that the State may legitimately proscribe his conduct only under a properly drawn statute that is narrowly tailored so as to avoid any chilling effect on free expression. Although Stevenson's actions do not fall under the protective mantle of the First Amendment, we must be mindful that our overbreadth analysis centers on the statute, Wis. Stat. 8 No. 98-2110-CR § 944.205(2)(a), and its potential deterrent effect on others not before this court. ¶18 To illustrate the overbreadth of Wis. Stat. § 944.205(2)(a), Stevenson sets forth in his brief a myriad of protected artistic criminalizes images and images as these "reproductions." contends "visual that the statute representations" or Included among these images are: (1) Titian's "Venus of Urbino," a 1528 painting of a female nude reproduced by the Yale University Press; (2) a 1927 Imogen Cunningham photograph of a nude female torso featured in Forbes magazine; (3) the New York Times publication of a Pulitzer Prize winning photograph that depicts a Vietnamese girl running nude following a napalm attack; and (4) a political cartoon appearing in Penthouse magazine portraying Kenneth Starr along with partially clad Monica Lewinsky and Linda Tripp. ¶19 Stevenson § 944.205(2)(a) reproduced in maintains prohibits books and that on artistic magazines its face Wis. Stat. from being original nude expressions because the subjects did not consent to those specific reproductions. As to the Pulitzer Prize winning photograph and the political cartoon, he argues that representations as the statute well, since prohibits the depicted these original persons did not consent to the original representations. ¶20 Furthermore, Stevenson contends that his attorney's decision to include these images in the appellate brief to this court subjects his attorney to criminal prosecution under Wis. Stat. § 944.205(2)(a) for reproducing the images without the 9 No. consent of the persons depicted nude. 98-2110-CR According to Stevenson, the State's decision not to prosecute his attorney underscores the danger of selective enforcement that the overbreadth doctrine seeks to prevent. ¶21 At oral argument, the State conceded that Wis. Stat. § 944.205(2)(a) statute is not only videotaping improperly explicit of overbroad properly his consent, its prohibits former prohibits on all face. Stevenson's girlfriend visual including We in the expression political agree. surreptitious nude, of satire The but nudity also without and newsworthy not limit images. ¶22 Wisconsin Stat. § 944.205(2)(a) does its reach to original depictions of nudity but rather overreaches to all reproductions. It chills the ability to include copies of masterpieces like Michaelangelo's "David" in a book devoted to famous sculptures materials that may purposes. and also portray prevents nudity Accordingly, indiscriminately protected by casts the First a for Wis. wide net Amendment the dissemination health Stat. over and is or of educational § 944.205(2)(a) expressive conduct unconstitutionally overbroad. ¶23 Having determined that the statute is overbroad, the question that remains is whether the taint of unconstitutional overbreadth may be dissipated by this court applying a limiting construction to Wis. Stat. § 944.205(2)(a). sustain its burden of proving 10 that In attempting to the statute is No. 98-2110-CR constitutional, the State proffers language as a cure for the statute's overbreadth. ¶24 Adding § 944.205(2)(a), its the suggested State language maintains that to the Wis. Stat. statute should apply when a person: Takes a photograph or makes a motion picture, videotape or other visual representation or reproduction that depicts nudity without the knowledge and consent of the person who is depicted nude while that person is nude in circumstances where they have a reasonable expectation of privacy, 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 (emphasis denotes additional language advanced by the State). ¶25 invasion The State argues that Wis. Stat. § 944.205(2)(a) is an of privacy statute aimed at prohibiting the surreptitious videotaping or visual representation of a person without consent while the person has a reasonable expectation of privacy.5 According to the State, the addition of the proffered 5 The State refers to a letter in the legislative drafting file for the statute and notes that the legislation was precipitated by an incident in the city of River Falls, in which an adult male secretly videotaped female foreign exchange students visiting or residing in his home while the students appeared undressed in the bathroom. See Letter of Chief of Police of River Falls to State Representative Sheila Harsdorf, October 11, 1993, Legislative Reference Bureau Drafting File for 1995 Wis. Act 249. The State notes that although the comments of those who propose legislation are not binding as legislative intent, the comments nevertheless represent persuasive authority as to the intent underlying the statute. State Pub. Defender v. Circuit Court for Dane County, 184 Wis. 2d 860, 868-69, 517 N.W.2d 144 (1994). 11 No. 98-2110-CR language will rid the statute of its sweeping reach and rein in its application to conduct like that in which Stevenson has engaged. ¶26 Stevenson recognizes the tension between the right to privacy and the necessity of promoting the free expression of ideas. He acknowledges that the language advanced by the State is presently included in the privacy statutes of Missouri and Oregon.6 Yet, Stevenson is quick to draw our attention to the 6 Apparently, three states have enacted privacy statutes that contain similar language to Wis. Stat. § 944.205(2)(a). The Missouri invasion of privacy statute, Mo. Ann. Stat. § 565.253 (West 1999), provides in relevant part: (1) A person commits the crime of invasion of privacy if he knowingly views, photographs or films another person, without that person s knowledge and consent, while the person being viewed, photographed or filmed is in a state of full or partial nudity and is in a place where he would have a reasonable expectation of privacy. Oregon's privacy statute, Or. Rev. Stat. § 163.700 (1997) reads in pertinent part: (1) Except as provided in ORS 163.702 [enumerated exceptions], a person commits the crime of invasion of personal privacy if: (a) The person knowingly makes or records a photograph, motion picture, videotape or other visual recording of another person in a state of nudity without the consent of the person being recorded; and (b) At the time the visual recording is made or recorded the person being recorded is in a place and circumstances where the person has a reasonable expectation of personal privacy. 12 No. legislature's inclusion of the "reasonable 98-2110-CR expectation of privacy" language in the Missouri and Oregon statutes and the legislature's provision of enumerated exceptions to a similar North Dakota statute. challenged statutes, the Although no cases appear yet to have constitutionality Stevenson posits that of any of overbreadth the three concerns state such as those presented in this case have been apparently addressed by the legislatures of the three other states without the judiciary's assumption of a legislative role. ¶27 While it is this court's obligation to construe a statute so as to preserve its constitutionality, Wroten, 160 Wis. 2d at 233-34, we will not adopt a limiting construction The North Dakota statute addressing the possession or distribution of certain photographs or other visual representations, N.D. Cent. Code § 12.1-31-08 (Michie 1997), states in relevant part: A person is guilty of a class A misdemeanor if, knowing of its character and content, a person surreptitiously acquires and knowingly possesses or distributes any photograph or other visual representation that exhibits a nude or partially denuded human figure . . . without the individual s written consent . . . . This section does not apply to any book, . . . photograph, video recording, motion picture film, or other visual representation sold in the normal course of business through wholesale or retail outlets that possess a valid sales tax permit or used by a licensed attorney, attorney s agent, or any other person obtaining evidence for a criminal investigation or pending civil action, or by a medical professional or a peace officer acting within that person s scope of employment. 13 No. 98-2110-CR unless the language of the statute is "readily susceptible" to such construction. Thiel, 183 Wis. 2d at 532 (quoting Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 397 (1988)). Here, a broad and expansive interpretation is dictated by the unambiguous language of Wis. Stat. § 944.205(2)(a). ¶28 adding The State's proposed language would have the effect of two elements to the crime set forth in the existing statute: (1) that the person depicted nude have a reasonable expectation of privacy in the place or circumstances in which the person is depicted, and (2) that the person depicted be contemporaneously However, the present State is at the unpersuasive time in its of the depiction. argument that the addition of two elements will provide the necessary cure to the statute's overbreadth. ¶29 The addition of two elements would significantly alter Wis. Stat. § 944.205(2)(a) and would essentially require us to rewrite the statute. Yet, it is for the legislature to rewrite § 944.205(2)(a) and to craft a clear and precise statute that reconciles the tension between the core concerns of privacy and free expression. ¶30 "[P]recision must be the touchstone of legislation" that implicates the fundamental freedoms underpinning the First Amendment. (1964). Aptheker v. Secretary of State, 378 U.S. 500, 514 When the statutory penalty is a criminal felony charge, 14 No. 98-2110-CR as it is under Wis. Stat. § 944.205(2)(a), statutory precision is of greater critical significance. The legislative arena represents the appropriate forum for weighing the myriad policy considerations underlying the interplay of fundamental rights. If statutes are to withstand constitutional attacks premised on the infringement of such fundamental rights, they should reflect with utmost clarity and exactitude the reconciliation of divergent policy concerns. ¶31 The State contends that this case differs from prior cases in which we have refused to apply a limiting construction to the statutes or ordinances at issue, because unlike those legislative enactments, Wis. Stat. § 944.205(2)(a) does express a legislative intent to apply the statute broadly. not See, e.g., Lounge Management, 219 Wis. 2d at 16 n.3; Janssen, 219 Wis. 2d at 366. Although there is no parallel language in § 944.205(2)(a) expressing the intent of broad application, the State acknowledges that likewise there is no expressed intent to narrow the scope of application. ¶32 The State's recognition of this silence underscores the fatal flaw of its argument that we may apply a limiting construction without running afoul of the legislative purpose. Adopting such a limiting construction would have us substitute our judicial intent for legislative intent. 15 No. ¶33 98-2110-CR In further support of its limiting language, the State cites to numerous cases in which courts have supplied a judicial construction to salvage a statute's constitutionality. See, e.g., United States v. X-Citement Video, 513 U.S. 64 (1994); Hamling v. United States, 418 U.S. 87 (1974); State v. Collova, 79 Wis. 2d 473, 255 N.W.2d 581 (1977). These cases are distinguishable. ¶34 Several of the cases address the addition of a scienter element, which is the rule rather than the exception in our criminal jurisprudence, criminal statutes. benefiting from a presumption in X-Citement Video, 513 U.S. at 70; State v. Alfonsi, 33 Wis. 2d 469, 476, 147 N.W.2d 550 (1967). Other cases cited by the State permit a limiting construction in the face of either guidance from prior judicial construction of analogous language or the ready availability of language in the plain text of the statute supporting the limiting construction. Here, we have not been asked to supply the element of scienter to Wis. Stat. § 944.205(2)(a), and language is not readily available in the text of the statute to support the State's limiting construction. ¶35 Stevenson maintains that our adoption of the two additional elements advanced by the State would not cure the constitutional infirmity inherent in Wis. Stat. § 944.205(2)(a). He argues that a constitutional defect remains unless the terms 16 No. 98-2110-CR "visual representation" and "reproduction" are excised from the statute. ¶36 According to Stevenson, the statute as judicially construed nevertheless criminalizes the drawing of a person in the nude as in the political cartoon depicting Monica Lewinsky, Linda Tripp, and Ken Starr if the person is depicted in a place where the person has a reasonable expectation of privacy. He also claims that the rewritten statute reaches the photocopying or reproducing of artistic expressions in which the model is depicted in a place of privacy and has not given consent to the reproduction of the original portrait. ¶37 Arguably adequately cartoonist the addresses to contemporaneous the criminal political prosecution presence cartoon, only when element subjecting the cartoon a is based on a contemporaneous view of the nude and unconsenting person, not on the artist's imagination. Yet, the term "reproduction" continues to pose a vexing problem for the State. ¶38 required The commingling of the State's proffered element of contemporaneous presence and the term "reproduction" set forth in Wis. Stat. § 944.205(2)(a) would render the statute internally subsequently inconsistent. produce. contemporaneous to the To By reproduce definition, event. Thus, a is to recreate reproduction the second is element or not of contemporaneous presence suggested by the State fails to address 17 No. 98-2110-CR the constitutional dilemma posed by the inclusion of the term "reproduction." The § 944.205(2)(a) advanced require a severance coupled with an judicial of by the the addition construction State would problematic of two new of Wis. then term. necessarily A elements Stat. severance reflects the considerable degree of the statute's infirmity. ¶39 As a proposed solution, the State would have us inject into Wis. Stat. § 944.205(2)(a) implied consent to all future reproductions once a person has voiced consent to the original representation. This simply veers too far by further muddying the waters and demonstrates the extent of our revision were we to apply a judicial construction. ¶40 The extent of revision necessary to save Wis. Stat. § 944.205(2)(a) legislature. would require us to We decline to do so. adopt the role of the Ours is not the proper forum for the lively debate and discourse necessary to reconcile the conflicting demands of the right to privacy and the right of free expression. statute judicial to the We leave the drafting of a narrowly tailored legislature, construction § 944.205(2)(a). The to and cure State we the has refrain from overbreadth thus failed of to adopting Wis. a Stat. satisfy its burden of proving beyond a reasonable doubt that the statute survives constitutional scrutiny. 18 No. ¶41 98-2110-CR In sum, we conclude that Wis. Stat. § 944.205(2)(a) on its face is unconstitutionally overbroad because it prohibits protected expression under the First Amendment. Additionally, the statute is not susceptible to a limiting construction by this court. Because Stevenson was convicted under an unconstitutional statute, we reverse the judgment of conviction and remand the cause to the circuit court for re-sentencing on the charge of obstructing an officer. By the Court. The judgment of the circuit court is reversed and the cause is remanded. 19 No. 98-2110-CR.jpw ¶42 JON Statute P. WILCOX, J. (1997-98)7 § 944.205(2)(a) Even (dissenting). poses if any Wisconsin danger of unconstitutional overbreadth on its face, the statutory language is readily susceptible to curative judicial construction. therefore would not strike this statute down on grounds I of facial overbreadth. ¶43 Facial challenges to statutes do not succeed when a limiting construction is available. 413 U.S. construe 601, 613 statutes (1973). "so as The to See Broadrick v. Oklahoma, usual avoid duty the of courts statutes' is to potentially overbroad reach, apply the statute in that case, and leave the statute in place." Osborne v. Ohio, 495 U.S. 103, 119 (1990). Moreover, when a statute regulates conduct and not just speech, "the scope of the statute does not render it unconstitutional unless its overbreadth is not only 'real, but substantial as well.'" ¶44 cannot Id. at 112 (quoting Broadrick, 413 U.S. at 615). The general attack a rule statute of standing on the ground unconstitutional as applied to others. Wis. 2d 505, 520, 515 N.W.2d 847 is that a that it defendant may be See State v. Thiel, 183 (1994). The overbreadth doctrine properly establishes an exception to this rule, when First Amendment rights are implicated. See id. at 520-21. "In the First Amendment context, we permit defendants to challenge statutes on overbreadth grounds, 7 regardless of whether the All subsequent references to the Wisconsin Statutes refer to the 1997-98 volumes unless otherwise indicated. 1 No. 98-2110-CR.jpw individual defendant's conduct is constitutionally protected." Osborne, 495 invalidation U.S. at under 112 the and n.8. overbreadth However, doctrine is statutory "manifestly, strong medicine" that is meant to be employed only as a last resort. See Broadrick, 413 U.S. at 613. Therefore, the court has a duty not to render the entire statute invalid when the language of the statute can be cured by a limiting construction. See Thiel, 183 Wis.2d at 521. ¶45 In a challenge to facial validity, a limiting construction to rehabilitate the statute is permitted when such a reading is "readily available." See State v. Janssen, 219 Wis. (1998). 2d 362, Amendment 378, rights susceptible' 580 are to a N.W.2d 260 concerned, narrowing if the construction constitutional, it will be upheld." Booksellers omitted). Ass'n, Inc., 484 U.S. Even when statute is that would First "'readily make it See Virginia v. American 383, 397 (1988)(citations A narrow construction is the proper way to guard against potential overbreadth in Wis. Stat. § 944.205(2)(a). ¶46 The protect clear legitimate aim of privacy the statute attack is to Though interests. under there are no records of floor or committee debate, a letter in the drafting file indicates that the legislature's aim was to prohibit conduct exactly like the defendant's conduct in this case. See Letter of Chief of Police of River Falls to State Representative Sheila Harsdorf, dated October 11, 1995, in the Wisconsin Legislative Reference Bureau bill drafting file for 1995 Wis. Act 249. The statute was drafted in direct response to a letter 2 No. 98-2110-CR.jpw written by the River Falls Chief of Police, which related an incident of the same sort of invasive and secretive visual recording of nude persons that we have in this case.8 This legislative history establishes that the legislature's intent in enacting Wis. Stat. § 944.205(2)(a) was to protect privacy interests in cases just like the one at hand. ¶47 case is The invasive act targeted as criminal behavior in this concededly Majority at ¶ 16. not protected by the First Amendment. Furthermore, the mere fact of nudity depicted in a visual media is not proscribed by the statute. The conduct described in the act is constitutionally proscribable, and the expressive content of the pictures is not the primary concern of the legislature. obtaining intolerable nude Rather, the legislature seeks to proscribe images invasion Jacksonville, 422 of U.S. in a manner privacy. 205, that See 209-10 constitutes Erznoznik v. (1975)(noting an City that of the state's ability "'to shut off discourse solely to protect others from hearing substantial it is . . . dependent privacy interests are upon being a showing invaded in that an 8 More specifically, the incident related in the letter to Representative Harsdorf explained that the young women were foreign exchange students whom the individual was hosting in his residence. They were unaware he was videotaping them while they engaged in their bathroom routines. This is strikingly similar to the facts in this case. The defendant admits that he secretly positioned himself outside of his ex-girlfriend's house, on the roof of the house and in a tree. From these positions, he videotaped her while she was in the privacy of her bedroom and bathroom. 3 No. 98-2110-CR.jpw essentially intolerable manner.'")(quoting Cohen v. California, 403 U.S. 15, 21 (1971)). The legislature's intent to criminalize invasions of privacy such as the invasion here is evident in the plain language of the statute, which prohibits capturing an image that depicts nudity "without the knowledge or consent of the person who is depicted nude." Wis. Stat. § 944.205(2)(a). ¶48 is The majority argues that the language in the statute not readily susceptible to an interpretation criminalizes only this narrow category of behavior. that I disagree. The most reasonable interpretation of the statute is not the one suggested by the defense, which characterizes the statute as prohibiting Amendment. a myriad of conduct protected by the First Instead, the most reasonable interpretation of the statute is the one urged by the State, which only criminalizes behavior that constitutes an invasion of privacy. ¶49 real and Under this reasonable interpretation, we cannot find substantial overbreadth. The overbreadth doctrine should not be used to invalidate the statute merely because "'in some conceivable, but limited, circumstances the regulation Janssen, 219 Wis. 2d at 373, might be improperly applied.'" (quoting City of Milwaukee v. K.F., 145 Wis. 2d 24, 40, 426 N.W.2d 329 (1988)). Especially, we should not attribute to the legislature an intent to apply a statute in situations where an application would yield unreasonable results. See State Timm, 163 Wis. 2d 894, 899, 472 N.W.2d 593 (Ct. App. 1991). v. The language in Wis. Stat. § 944.205(2)(a) is "readily available" to 4 No. 98-2110-CR.jpw a construction that serves the privacy interests contemplated by the legislature. ¶50 In 1998 this court invalidated a statute that sought to criminalize "defilement" of the American flag on grounds of overbreadth. See Janssen, 219 Wis. 2d at 387. The overbreadth challenge properly succeeded because there was no construction that would make the statute constitutionally permissible: it was "a clear attempt to ban speech and expressive content." Id. at 385-86. intent confirmed as much. See id. impermissible the regulation on conduct based on its The legislature's stated Here, there is no such basis of expressive content. The statute does not criminalize the visual depiction because it depicts nudity. Instead, it criminalizes securing such depictions by an invasive, secretive method violating privacy interests. ¶51 To bolster this understanding of the statute, the State has proposed the following limiting language, which would ensure that the statute only applies when the defendant: Takes a photograph or makes a motion picture, videotape or other visual representation or reproduction that depicts nudity without the knowledge and consent of the person who is depicted nude, while that person is nude in circumstances where they have a reasonable expectation of privacy, 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. Plaintiff-Respondent's Brief at 13-14. in this manner underscores the 5 Construing the statute statute's susceptibility to No. 98-2110-CR.jpw reasonable interpretation and clarifies the applicable scope of the statute. and that The language of the statute requiring "knowledge" "consent," coupled with protection of privacy the is legislative the history, fundamental reflect concern. The statute is readily susceptible to a limited application: at its core, this statute seeks to protect against invasion of privacy. ¶52 By statute, applying the this overbreadth reasonable concerns interpretation fall away. of the Under this construction, there is no "real" and "substantial" overbreadth when "judged in relation to the statute's plainly legitimate sweep." See Lounge Management, Ltd. v. Town of Trenton, 219 Wis. 2d 13, 34, 580 N.W.2d 156 (1998) (quoting Broadrick, 413 U.S. at 615). The examples put forth by the defense and the majority to illustrate possible overbreadth are inapposite under this construction of the statute. Models who pose nude have granted consent and, therefore, have no reasonable expectation of privacy. News reporters will not be vulnerable under the statute if their subjects were in full public view where there is no expectation of privacy. threatened so long as the Artistic license will not be depictions are not made while surreptitiously observing anyone while they were undressed. ¶53 The Supreme Court approved of a similar approach to curing potential overbreadth in Osborne, when it approved of the insertion of invalidating limiting the language statute Osborne, 495 U.S. at 112. construction saving a based into on a statute facial rather overbreadth. than See The Supreme Court held that a narrow statute 6 from facial invalidation is No. 98-2110-CR.jpw appropriate when there is a "'"whole range of easily identifiable and constitutionally proscribable conduct."'" See id. at 112 (quoting New York v. Ferber, 458 U.S. 747, 770 n.25 (1982)). statute The Court prohibiting determined the that possession an of otherwise "nude" overbroad photographs of minors could be construed narrowly to avoid "penalizing persons for viewing children." approved or possessing innocuous photographs See Osborne, 495 U.S. at 114. of interpreted the the Ohio Supreme statute to Court's refer only of naked The Supreme Court construction, to "'nudity which [that] constitutes a lewd exhibition or involves a graphic focus on the Id. at 113. genitals.'" confirmed that it is Thus, the U.S. Supreme Court has permissible, when trying to reach a curative construction, to add language that is in-step with the statutory purpose of the law. That is precisely what we should do here. ¶54 a Limiting this statute to protect only persons who have reasonable depiction is expectation made does rewriting of the statute. most reasonable reading legislature's aim. of privacy not at constitute the an moment a improper visual judicial Instead, this interpretation is the based on the statutory language and The Osborne court upheld an interpretation that did not merely add clarifying language to the statute but also grafted on an element of mental state. U.S. at 115. statute. See Osborne, 495 Yet, this was not characterized as "rewriting" the Following Osborne, we 7 should apply a reasonable No. 98-2110-CR.jpw limiting construction to Wis. Stat. § 944.205(2)(a) to cure any unconstitutional overbreadth. ¶55 on the The majority distinguishes the Osborne line of cases grounds criminal law. that a scienter element is a presumption in However, the concept of "reasonable expectation of privacy" is also widespread in criminal law, particularly in Fourth Amendment litigation. requirement into a privacy Reading a "reasonable expectation" law is as natural as grafting a scienter element onto criminal laws. ¶56 potential The State also offers a construction that cures any overbreadth "reproduction." to to the use of the term "Reproduction" can be understood to refer only reproduction victim's relating of "knowledge" images or that were "consent." In procured other without words, the once a person has consented to the obtaining of an image, consent to reproduction of that image would be implied. Such an interpretation of the statute does not require us to "inject" an element of implied consent into the statute. Majority at ¶ 39. A reasonable reading of the statute, with its express reference to "consent," suggests that absent 8 an initial invasion of No. 98-2110-CR.jpw privacy, Wis. Stat. § 944.205(2)(a) was not crafted to apply to subsequent reproduction.9 ¶57 Finally, the defense argues that the limiting construction proposed by the State is improper because it will undermine fair notice. important for people This concern is not without merit; it is to know what the law proscribes. A limiting construction of a statute "'may be applied to conduct occurring prior to the construction, . . . [but only if] such application affords fair warning to the defendan[t].'" Osborne, 495 U.S. at 115 (quoting Dombrowski v. Pfister, 380 U.S. 479, 491 n.7 (1965)). ¶58 the In this case, notice concerns do not arise. statute without the clarifying language proposed Reading by the State would have adequately warned the defendant that sneaking 9 The defense argues that this construction does not cure the constitutional defect because the statute might still infringe on an artist's right to draw from imagination a person nude in a place where the person has a reasonable expectation of privacy. I do not think this construction permits such an application, because an individual does not have a right to privacy or a reasonable expectation of privacy in an artist's imagination. On the other hand, the state may constitutionally prohibit an artist from perching himself outside an individual's bedroom window in order to secretly observe and create a likeness of that person. The majority also argues that the State's limiting construction renders the statute internally inconsistent, because by definition a person depicted nude in the original need not be contemporaneously present during reproduction of the image. Majority at ¶ 38. However, no inconsistency results if "reproduction" is understood to refer only to an image that was initially obtained in a violation of privacy during which the victim was "contemporaneously present." 9 No. 98-2110-CR.jpw onto a roof and videotaping an unknowing victim in her bathroom is criminal. Accepting the State's limiting construction of this statute therefore would not deprive this defendant of fair notice of what sort of conduct could result in prosecution. ¶59 The statute is readily susceptible to a limiting construction to cure it from potential overbreadth. Indeed, such a limiting construction is the most reasonable reading of the statute. ¶60 I Therefore I respectfully dissent. am authorized to state CROOKS joins this dissent. 10 that Justice N. PATRICK No. 98-2110-CR.jpw 1
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