Wednesday, September 23, 2015

Wisconsin Supreme Court: Sex Offenders Have 1st Amendment Right to Photograph Children

As most readers know I have been advocating since the 2008 Virginia General Assembly, that’s 7 sessions so far.

Back in 2010 there was a bill HB23 that was proposed it would have created a new crime, if a Sex Offender took a photograph of a child (in specific public places, many that RSO’s are already legally prohibited from) without the permission of the child's parent they'd be guilty of a Felony. 

The inspiration for HB23 came from a Registered Sex Offender who was taking photos of an 18 year old female in a Sam’s Club in Bristol VA, HB23 would not have prevented that instance from occurring  nor would it have made that specific act a crime.  

Now, back in 2010 I placed Action Items against this bill on the old RSOL of Virginia website (no longer up), I sent email’s to all 140 Virginia Legislators against this bill, I lobbied the halls of the GA building against this proposal and I drafted my public statement (which I still have) to be made at the first Committee hearing if it ever made it onto a hearing docket, it never did. HB23 "died on the vine" in 2010 with no Legislative action being taken. 

One of my many points in my opposition statement included this: 

I believe a bill such as this could and would end up resulting in possible public hysteria and public spectacles such as the example set forth this past Christmas. An award winning photographer was taking photos of children on Santa’s lap in a West Virginia mall. Angry parents accosted the photographer and demanded he delete his photos, he complied even though legally he didn’t have to. That was not sufficient to the angry mob so they found mall security and demanded they take the professional photographer into custody and security felt obligated to obey that angry mob. 

I really expected to see a duplicate or amended version the following year, but never did. Virginia Delegate Joseph P. Johnson who sponsored 2010’s HB23 retired at the end of 2013. 

Well, the Wisconsin Supreme Court has ruled (see article below) that a ban on RSO’s taking photographs in public places is 100% unconstitutional! 

You can bet I will keep this ruling on hand if any member of the Virginia Legislature ever proposes such a bill in the future. 

Mary Devoy

Court: Sex offenders have 1st Amendment right to photograph children, September 22, 2015

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. 

While protecting children is such an interest, the court said, the law doesn't accomplish that. In fact, it could actually encourage offenders to make personal contact with children, in order to ask who their parents are so the offender might ask permission to take the photos. 

"Further, children are not harmed by non-obscene, non-pornographic photographs taken in public places," the court said. 

It quoted a U.S. Supreme Court case that "reaffirmed that where the speech is neither obscene nor the product of sexual abuse, it does not fall outside the protection of the First Amendment."  

The court said it does not like the idea that some people might gain sexual gratification from ordinary photos of children, but that laws can't ban protected speech just because it might lead to crime.

"First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end," the decision reads, quoting a U.S. Supreme Court case. 

"The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought." 

The state tried to argue that if a sex offender photographs children only to privately view them, the offender's First Amendment rights are not affected. 

But the court noted that "sharing images is customarily the very reason for photography," and the Wisconsin law makes it illegal for parents — if they are registered sex offenders — to take a first-day-of-school picture to send to grandparents.