State v. Jackson, Appeal No. 2018AP2074-CR

• Decision Date: 26 December 2019
• Docket Number: Appeal No. 2018AP2074-CR
• Citation: 390 Wis.2d 402,938 N.W.2d 639,2020 WI App 4
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. James L. JACKSON, Jr., Defendant-Appellant.
• Court: Wisconsin Court of Appeals

390 Wis.2d 402

938 N.W.2d 639

2020 WI App 4

STATE of Wisconsin, Plaintiff-Respondent,

v.James L. JACKSON, Jr., Defendant-Appellant.^†

Appeal No. 2018AP2074-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: October 10, 2019

Opinion Filed: December 26, 2019

On behalf of the defendant-appellant, the cause was submitted on the briefs of Andrew R. Hinkel, assistant state public defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sarah L. Burgundy, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

REILLY, P.J.

¶1 James L. Jackson, Jr., challenges a provision of the Wisconsin sex offender registry statute, WIS. STAT. § 301.45(2)(a)6m. (2017-18),¹ as violating the First Amendment. This provision requires registrants to disclose to the Department of Corrections (DOC) e-mail addresses, Internet user names, Internet profiles, and websites created or maintained by the registrant. The circuit court found no First Amendment violation. We agree and affirm.

BACKGROUND

¶2 Jackson was convicted of second-degree sexual assault of a child in 1990 after he groomed and sexually assaulted his employer’s fourteen-year-old daughter. Jackson was required to comply with the sex offender registry requirements pursuant to WIS. STAT. § 301.45, which provides, in pertinent part, that an individual subject to the registry requirements must inform the DOC of

[t]he name or number of every electronic mail account the person uses, the Internet address of every website the person creates or maintains, every Internet user name the person uses, and the name and Internet address of every public or private Internet profile the person creates, uses, or maintains. The department may not place the information provided under this subdivision on any registry that the public may view but shall maintain the information in its records on the person. This subdivision applies only to an account, website, Internet address, or Internet profile the person creates, uses, or maintains for his or her personal, family, or household use.^{[2 ]}

Sec. 301.45(2)(a)6m. If a registrant makes any changes to the above, he or she must notify the DOC within ten days of the change(s). Sec. 301.45(4). Failure to comply with these requirements constitutes a felony. Sec. 301.45(6)(a)1.

¶3 In 2016, police were informed that Jackson was using his housemate’s computer "at all hours of the night ... trying to talk to young girls in the area over the internet." An investigation revealed that Jackson had created a Facebook profile in November 2015 using the name "Lendord Jackson." Jackson had not informed the DOC of the Facebook profile or the e-mail address associated with it.

¶4 Jackson was charged with and pled no contest to one count of a sex offender registry violation as a repeater. Jackson filed a postconviction motion arguing that WIS. STAT. § 301.45(2)(a)6m. violates the First Amendment as applied to him and is facially overbroad. The circuit court found that Jackson waived his as-applied challenge and denied the facially overbroad challenge. Jackson appeals.

DISCUSSION

¶5 The First Amendment provides in pertinent part that "Congress shall make no law ... abridging the freedom of speech." U.S. CONST. amend. I ; 44 Liquormart, Inc. v. Rhode Island , 517 U.S. 484, 489 n.1, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996). We review the constitutionality of a statute de novo. State v. Robert T. , 2008 WI App 22, ¶5, 307 Wis. 2d 488, 746 N.W.2d 564.

¶6 Jackson argues that WIS. STAT. § 301.45(2)(a)6m. is unconstitutional as applied to him as it deprives him of his right to anonymous speech under the First Amendment and that it is facially overbroad as it "infringes on far more speech than can be justified and chills protected speech." When evaluating a challenge to a sex offender registry statute under the First Amendment, we first question whether the Internet identifier reporting requirements implicate the First Amendment. See, e.g. , Doe v. Harris , 772 F.3d 563, 572 (9th Cir. 2014). If they do, we then determine what level of scrutiny we need to apply. Id. at 574. Lastly, we determine whether the statute passes constitutional muster under that level of scrutiny. Id. at 576-78. Neither party disputes that the First Amendment is implicated.³ We also agree with the parties that the level of scrutiny to be applied in this case is intermediate scrutiny.⁴ "In order to survive intermediate scrutiny, a law must be ‘narrowly tailored to serve a significant governmental interest.’ In other words, the law must not ‘burden substantially more speech than is necessary to further the government’s legitimate interests.’ " Packingham v. North Carolina , ––– U.S. ––––, 137 S. Ct. 1730, 1736, 198 L.Ed.2d 273 (2017) (citations omitted). We, therefore, address solely whether § 301.45(2)(a)6m. passes constitutional muster under intermediate scrutiny by examining Jackson’s as-applied and facial challenges.

As-Applied Challenge

¶7 Jackson argues that WIS. STAT. § 301.45(2)(a)6m. violates his First Amendment rights as applied to him because the statute infringes on his right to communicate anonymously on the Internet. The State argues, and the circuit court agreed, that Jackson waived his as-applied challenge by virtue of his no contest plea.

¶8 Whether Jackson waived his right to appeal the constitutionality of the statute as applied to him based on his no contest plea is a question of law we review de novo. State v. Kelty , 2006 WI 101, ¶13, 294 Wis. 2d 62, 716 N.W.2d 886. In Wisconsin, we employ the guilty plea waiver rule, which states that a guilty, no contest, or Alford plea "waives all nonjurisdictional defects, including constitutional claims." State v. Multaler , 2002 WI 35, ¶54, 252 Wis. 2d 54, 643 N.W.2d 437. An exception to the guilty plea waiver rule states that "a ‘facial’ constitutional challenge [is] a matter of subject matter jurisdiction," which cannot be waived, whereas an as-applied challenge is a nonjurisdictional defect that can be waived. State v. Cole , 2003 WI 112, ¶46, 264 Wis. 2d 520, 665 N.W.2d 328 ; see also State v. Trochinski , 2002 WI 56, ¶34 n.15, 253 Wis. 2d 38, 644 N.W.2d 891.

¶9 Jackson counters that under Class v. United States , ––– U.S. ––––, 138 S. Ct. 798, 200 L.Ed.2d 37 (2018), Wisconsin’s guilty plea waiver rule does not apply to his as-applied challenge. We disagree as it is not clear in Class whether Class’ challenge was an as-applied or a facial challenge. A facial challenge "strip[s] the government of its ability to obtain a conviction against any defendant," whereas "an as-applied challenge does not dispute the court’s power to hear cases under the statute; rather, it questions the court’s limited ability to enter a conviction in the case before it." United States v. Phillips , 645 F.3d 859, 863 (7th Cir. 2011) (citing Blackledge v. Perry , 417 U.S. 21, 30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) ). Wisconsin has previously recognized that distinction in our decisions on the guilty plea waiver rule, see, e.g. , Cole , 264 Wis. 2d 520, ¶46, 665 N.W.2d 328, and we find that Class does not preclude application of the guilty plea waiver rule as it pertains to Jackson’s as-applied constitutional challenge.

¶10 Jackson also asks us under State v. Tarrant , 2009 WI App 121, ¶6, 321 Wis. 2d 69, 772 N.W.2d 750, to not apply the guilty plea waiver rule as the rule is one of administration. Jackson argues that his issue is one of statewide importance, the statute is contrary to the interests of justice, and all pertinent facts are clear from the complaint. See id. We decline review under Tarrant as Jackson does not provide any developed argument with supporting facts as to why the statute is unconstitutional specifically as applied to him.

¶11 We conclude that Jackson’s as-applied challenge was waived by his plea of no contest.

Facial/Overbroad Challenge

¶12 Jackson challenges WIS. STAT. § 301.45(2)(a)6m. as being unconstitutional on its face as it "infringes on far more speech than can be justified and chills protected speech, and is thus unconstitutionally overbroad."⁵ Jackson’s only challenge is overbreadth. Jackson argues that subd. 6m. is "unconstitutionally overbroad because it requires a registrant to turn over to the government a wide array of information not remotely related to any threat to the public" and "makes it a criminal offense for the registrant to blog, or run any other website, anonymously." The purpose behind an overbreadth challenge is "concern that the threat of enforcement of an overbroad law may deter or ‘chill’ constitutionally protected speech—especially when the overbroad statute imposes criminal sanctions."

Virginia v. Hicks , 539 U.S. 113, 119, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003). "A statute is overbroad when its language, given its normal meaning, is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate." State ex rel. Two Unnamed Petitioners v. Peterson , 2015 WI 85, ¶52, 363 Wis. 2d 1, 866 N.W.2d 165 (citation omitted).

¶13 Unlike a traditional First Amendment challenge where the State bears the burden of proving the statute constitutional beyond a reasonable doubt, see Trochinski , 253 Wis. 2d 38, ¶33, 644 N.W.2d 891, "[t]he overbreadth claimant bears the burden of demonstrating, ‘from the text of [the law] and from actual fact,’ that substantial overbreadth exists," Hicks , 539 U.S. at 122, 123 S.Ct. 2191 (second alteration in original; citation omitted). Within a facial overbreadth challenge, the claimant must show "a substantial number of [the statute’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep." State v. Culver , 2018 WI App 55, ¶9, 384 Wis. 2d 222, 918 N.W.2d 103 (alteration in original; citation omitted); State v. Oatman , 2015 WI App 76, ¶8, 365 Wis. 2d 242, 871 N.W.2d 513. We are to be careful to...