A Wisconsin law prohibiting registered sex offenders from photographing children in public violates their right to free speech, the state Court of Appeals held Tuesday.
The decision by the Wausau-based District 3 court reversed the conviction of a 44-year-old Green Bay man who had been sentenced to 12 years in prison for the non-pornographic photos. It also found the law unconstitutional on its face, not salvageable by a narrowed interpretation or severing part of the statute.
Because of a 2002 child sexual assault conviction, Christopher J. Oatman was on probation in February 2011, when his agent searched his apartment and found a camera and cellphone. On them, authorities found photos Oatman had taken the previous fall of children outside his residence doing things like riding skateboards, jumping rope and dropping stones in a soda bottle. None involved nudity or obscenity.
He was charged with 16 counts of intentionally photographing children without their parents’ consent, and later pleaded no contest to eight so he could appeal on the constitutional issue. The judge sentenced Oatman last year to consecutive 18-month prison terms, the maximum, on each count.
In an opinion written by Reserve Judge Thomas Cane, and joined by judges Lisa Stark and Thomas Hruz, the court found that even sex offenders have free speech rights to take non-obscene, non-pornographic photographs of children in public places.
Any law that aims to restrict speech based on its content must be narrowly drawn to protect a compelling state interest. The court found the law at issue failed both tests.
The court was wrong on two counts here. First, the sex offender was on probation. He was still under supervision and it is perfectly acceptable for him to adhere to restrictions while on probation. The alternative is for him to remain in prison for his full term if he doesn’t want to abide by the conditions of his release.
Second, even if he were completely liberated and had finished serving his sentence for his crime, it is acceptable for the government to keep some prohibitions in place for the rest of his life. We do this all the time for some crimes. For example, felons of any sort are not permitted to have a firearm – even after they have paid fully for their crimes. People convicted of financial crimes – even misdemeanors – are not allowed to become a CPA in some states. It is perfectly within the interests of the state to protect kids by restricting the 1st Amendment rights of sex offenders by prohibiting them from taking pictures of other people’s kids without permission.