State v. Stevenson

Decision Date28 June 2000
Docket NumberNo. 98-2110-CR.,98-2110-CR.
Citation236 Wis.2d 86,613 N.W.2d 90,2000 WI 71
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Scott L. STEVENSON, Defendant-Appellant.
CourtWisconsin Supreme Court

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.


This case is before the court on certification pursuant to Wis. Stat. (Rule) § 809.61 (1997-98).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 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 in front of her mirror changing outfits. Again, R.L.H. neither knew of nor consented to the making 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 then arrested Stevenson for disorderly conduct and resisting an officer. The next day, one of R.L.H.'s brothers 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 Wis. Stat. § 944.205(2)(a).3 In response to Stevenson's motion, the circuit court dismissed 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 define the unit of prosecution under the statute and overbroad for infringing on protected expression under the First Amendment. The circuit court rejected the constitutional challenge, finding that Wis. Stat. § 944.205(2)(a) did not implicate First Amendment rights and 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 a police officer in violation of Wis. Stat. § 946.41(1). 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. The sentences were stayed in favor of four years 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. Subsequently, the court of appeals certified to this court the following question: Is Wis. Stat. § 944.205(2)(a), subjecting a person who "[t]akes 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" unconstitutionally overbroad?4


¶ 9. The certified question before this court requires us to examine whether Wis. Stat. § 944.205(2)(a) survives constitutional scrutiny. 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 of constitutionality that the challenger must refute. County of Kenosha v. C&S Management, Inc., 223 Wis. 2d 373, 383, 588 N.W.2d 236 (1999). When the statute implicates the exercise of First Amendment 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 conduct remains unprotected under the First Amendment. See Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984); Henry P. Monaghan, Overbreadth, 1981 Sup. Ct. Rev. 1, 11-12 (1982).


¶ 12. Litigants claiming that a statute suffers from a constitutional infirmity generally must have a personal and vested interest in the outcome of the litigation, demonstrating the statute's unconstitutional application to their individual conduct. Broadrick v. Oklahoma, 413 U.S. 601, 610-11 (1973). 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. Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 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 prosecution based on 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 invalidation, proceeding with caution and restraint. Lounge Management, 219 Wis. 2d at 22-23. 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 v. Wroten, 160 Wis. 2d 207, 226, 466 N.W.2d 861 (1991). 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 is overbroad, courts may pursue one of several options. First, courts may apply a limiting construction to rehabilitate the statute when such a narrowing and validating construction is readily available. Janssen, 219 Wis. 2d at 378. Second, courts may cure the constitutional defect by severing the unconstitutional provisions of a statute and leaving the remainder of the legislation intact. 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 statute upon a determination that it is unconstitutional on its face. Id.

¶ 16. With these general overbreadth principles providing contextual guidance, we proceed next to 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

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