State v. Baron

• Decision Date: 23 June 2009
• Docket Number: No. 2007AP1289-CR.,2007AP1289-CR.
• Citation: 769 N.W.2d 34,2009 WI 58
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Christopher BARON, Defendant-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

769 N.W.2d 34

2009 WI 58

STATE of Wisconsin, Plaintiff-Appellant, v. Christopher BARON, Defendant-Respondent-Petitioner.

No. 2007AP1289-CR.

Supreme Court of Wisconsin.

Argued March 6, 2009.

Decided June 23, 2009.

For the defendant-respondent-petitioner there were briefs by Daniel P. Dunn and the Dunn Law Office, Madison, and oral argument by Daniel P. Dunn.

For the plaintiff-appellant the cause was argued by Jeffrey J. Kassel, Assistant Attorney General, with whom on the brief was J.B. Van Hollen, Attorney General.

¶ 1 ANNETTE KINGSLAND ZIEGLER, J

This is a review of a published court of appeals' decision¹ that reversed the decision of the Jefferson County Circuit Court, Randy R. Koschnick, Judge. The circuit court concluded that Wis. Stat. § 943.201(2)(c)(2005-06),² which punishes the unauthorized use of another individual's personal identifying information in order to harm the individual's reputation, was unconstitutional as applied to Baron. The State appealed, and the court of appeals reversed the circuit court. Baron petitioned this court for review, which we accepted. We affirm the court of appeals' decision.

¶ 2 This case requires us to decide whether Wis. Stat. § 943.201(2)(c) is unconstitutional as applied to Baron because it violates his First Amendment right to freedom of speech. We conclude that the State has shown beyond a reasonable doubt that § 943.201(2)(c), as applied to Baron, is narrowly tailored to achieve a compelling government interest and therefore does not violate Baron's constitutional right to freedom of speech.

I. BACKGROUND

¶ 3 Christopher Baron worked as an emergency medical technician for the city of Jefferson under the direction of Mark Fisher who was the director of Jefferson's Emergency Medical Services.

¶ 4 As alleged in the criminal complaint, on August 10, 2006, Baron accessed Mark Fisher's e-mail account by using Fisher's password, which Baron had previously acquired. After accessing Fisher's e-mail account, Baron found a number of e-mails allegedly showing that Fisher was having an extramarital affair. Baron organized the various e-mails into one e-mail message and then sent the message to people in the Jefferson community. The similar subject line of the e-mail message sent was such as: "What's Mark been up to." The e-mails were discussions between Fisher and a woman other than his spouse about their sexual activity and sexual preferences. Even though Baron was the one who organized and sent the e-mails, he did so in a manner that made the e-mails appear to come from Mark Fisher's e-mail account. The day after Baron sent out the e-mails, Fisher committed suicide.

¶ 5 When questioned by authorities, Baron admitted that he had sent the e-mails to get Fisher in trouble. Baron stated that he originally intended to send the e-mails only to Fisher's wife, but he then sent them to other people so they could see that Fisher was not "golden."

¶ 6 Baron was charged as follows: criminal defamation in violation of Wis. Stat. § 942.01(1), which was voluntarily dismissed by the State; two counts of obstructing an officer in violation of Wis. Stat. § 946.41(1); two counts of computer crimes in violation of Wis. Stat. § 943.70(2); and identity theft in violation of Wis. Stat. § 943.201(2)(c).

¶ 7 The only charge at issue in this appeal is the identity theft violation under Wis. Stat. § 943.201(2)(c). With regard to that charge, the complaint provided that Baron "did intentionally use personal identifying information or personal identification documents ... of Mark G. Fisher to harm the reputation of [Fisher] without [Fisher's] authorization or consent by representing that he was [Fisher]...." The information, which was filed on November 13, 2006, clarified that the personal identifying information that Baron used was Mark Fisher's name.

¶ 8 Baron filed a motion to dismiss the Wis. Stat. § 943.201(2)(c) charge because he argued that the statute was unconstitutional as applied to his conduct. The circuit court granted the motion. The circuit court reasoned that § 943.201(2)(c) contains a defamation element, which interferes with Baron's First Amendment right to free speech, i.e., his First Amendment right to defame a public official. The circuit court concluded that while it was not a clear cut case and there were reasonable arguments on both sides, it had concerns about the chilling effect that would arise by applying this statute to Baron's conduct.

¶ 9 The court of appeals reversed the circuit court's decision. It concluded that Baron's logic was flawed because he focused on the "purpose" element in isolation. The court of appeals stated that "Wisconsin statutes are replete with provisions that criminalize conduct that may otherwise be constitutionally protected, if that conduct is carried out in an unlawful manner."³ As a result, Baron petitioned this court for review, which we accepted.

II. STANDARD OF REVIEW

¶ 10 The constitutionality of a statute is a question of law that we review de novo. State v. Zarnke, 224 Wis.2d 116, 124, 589 N.W.2d 370 (1999). A presumption of constitutionality generally exists for a legislative enactment, and as a result, those challenging a statute's constitutionality must show it is unconstitutional beyond a reasonable doubt. Id. However, because Wis. Stat. § 943.201(2)(c) implicates First Amendment rights, the State has the burden to prove that the statute is constitutional beyond a reasonable doubt. Id. at 124-25, 589 N.W.2d 370. As discussed in ¶¶ 31-32, the State must, therefore, prove that this statute passes either strict or intermediate scrutiny to be deemed constitutional.

III. ANALYSIS

¶ 11 Wisconsin Stat. § 943.201, "Unauthorized use of an individual's personal identifying information or documents," provides in relevant part:

(2) Whoever, for any of the following purposes, intentionally uses, attempts to use, or possesses with intent to use any personal identifying information or personal identification document of an individual, including a deceased individual, without the authorization or consent of the individual and by representing that he or she is the individual, that he or she is acting with the authorization or consent of the individual, or that the information or document belongs to him or her is guilty of a Class H felony:

....

(c) To harm the reputation ... of the individual.⁴

¶ 12 The First Amendment⁵ provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

¶ 13 Pursuant to Wis. Stat. § 943.201(2)(c), Baron was charged with one count of identity theft; the State alleged that Baron "did intentionally use personal identifying information or personal identification documents ... of Mark G. Fisher to harm the reputation of [Fisher] without [Fisher's] authorization or consent by representing that he was [Fisher]...."

¶ 14 In order to determine if Wis. Stat. § 943.201(2)(c), as applied to Baron, violates his First Amendment rights we must address two crucial questions: First, does § 943.201(2)(c) regulate speech⁶ or conduct alone? If neither speech nor expressive conduct is being regulated, we need not utilize a First Amendment analysis because the statute does not implicate the First Amendment. Second, if 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. In either event, it is the State's burden to prove that § 943.201(2)(c) is constitutional.

¶ 15 Baron argues that the charge must be dismissed because Wis. Stat. § 943.201(2)(c) is a content-based statute that does not survive strict scrutiny, and in turn, the charge against Baron violates his constitutional right to free speech. In response, the State argues the following three points: First, this statute regulates conduct and not speech; second, if speech is being regulated, the statute is content neutral and survives intermediate scrutiny; and third, if the statute is content based, it survives strict scrutiny. We conclude that § 943.201(2)(c), as applied to the facts of this specific case, is content based and regulates speech in addition to conduct,⁷ and as a result, the statute should be analyzed under strict scrutiny. However, because, as applied to Baron, the statute is narrowly tailored to achieve a compelling government interest, it is nonetheless constitutional.

A. Speech or conduct

¶ 16 In order to determine if a First Amendment analysis is required, we must first consider whether conduct alone or speech, which includes expressive conduct, is being regulated. See Texas v. Johnson, 491 U.S. 397, 403-04, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); State v. Robins, 2002 WI 65, ¶ 41, 253 Wis.2d 298, 646 N.W.2d 287. If speech or expressive conduct is being regulated, the First Amendment is implicated.

¶ 17 In Johnson, 491 U.S. at 404, 109 S.Ct. 2533, the United States Supreme Court considered whether the act of flag desecration was considered speech such that it possessed "sufficient communicative elements to bring the First Amendment into play." The statute at issue, "Desecration of Venerated Object," provides in part: "`(a) A person commits an offense if he intentionally or knowingly desecrates: ... a state or national flag.'" Id. at 400, 109 S.Ct. 2533 (citing Texas Penal Code Ann. § 42.09(a)(3) (1989)). The defendant burned the American flag while at a protest demonstration. Id. at 399, 109 S.Ct. 2533. The Court concluded that his actions were "`sufficiently imbued with elements of communication'" "to implicate the First Amendment." Id. at 406, 109 S.Ct. 2533 (citation omitted). As a result, the Court continued with a First Amendment analy...