State v. Weidner

• Citation: 235 Wis.2d 306,611 N.W.2d 684,2000 WI 52
• Decision Date: 16 June 2000
• Docket Number: No. 99-1334-CR.,99-1334-CR.
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Lane R. WEIDNER, Defendant-Respondent.
• Court: United States State Supreme Court of Wisconsin

235 Wis.2d 306

2000 WI 52

611 N.W.2d 684

STATE of Wisconsin, Plaintiff-Appellant, v. Lane R. WEIDNER, Defendant-Respondent.

No. 99-1334-CR.

Supreme Court of Wisconsin.

Oral argument May 4, 2000.

Decided June 16, 2000.

For the plaintiff-appellant the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the defendant-respondent there was a brief and oral argument by Steven D. Phillips, assistant state public defender. An amicus curiae brief was filed by Robert R. Henak and Henak Law Office, S.C., Milwaukee, on behalf of the American Civil Liberties Union of Wisconsin.

¶ 1. ANN WALSH BRADLEY, J.

This case is before the court on certification from the court of appeals.¹ The State of Wisconsin contends that the circuit court erred in finding Wis. Stat. § 948.11(2) (1997-98)² unconstitutional as applied to the defendant's actions in transmitting harmful material to a minor via the internet. We determine that the statute impermissibly shifts to the defendant the burden of proving knowledge of the victim's age and infringes on protected First Amendment expression. Because we conclude that Wis. Stat. § 948.11(2) is unconstitutional in the context of the internet and other situations that do not involve face-to-face contact between the minor and the accused, we affirm the circuit court.³

¶ 2. The facts as alleged in the criminal complaint reveal that the defendant, Lane R. Weidner, began communicating with Samantha B. over an internet chat room known as "Teenage Romance." Weidner used this internet technology to send Samantha B. several pictures of himself, including one that depicted him naked. He additionally transmitted numerous photographs of pre-pubescent girls ranging from eight to thirteen years of age engaged in various sexual acts with a man and with one another.

¶ 3. During the course of their communication, Samantha B. disclosed her minority status to Weidner. Although she was sixteen years old at the time, she informed Weidner that she was seventeen. The correspondence between the two was limited to their interaction over the internet and did not involve any face-to-face contact.

¶ 4. Weidner was eventually charged with eight counts of violating Wis. Stat. § 948.11(2), which prohibits the dissemination of harmful material to minors.⁴ Relying on this court's recent decision in State v. Zarnke, 224 Wis. 2d 116, 589 N.W.2d 370 (1999), Weidner filed a motion to dismiss the charges and asserted that Wis. Stat. § 948.11(2) is unconstitutional for failing to require that the State prove Weidner's knowledge of the victim's minority status.

¶ 5. The circuit court granted the motion to dismiss and held the statute unconstitutional as applied to Weidner's conduct over the internet. Referring to Zarnke, in which this court invalidated an analogous child exploitation statute as unconstitutional when applied to distributors of child pornography, the circuit court determined that Wis. Stat. § 948.11(2) is likewise unconstitutional. Because the statute shifts to the defendant the burden of proving knowledge of the victim's age, and the internet does not provide the requisite face-to-face contact to ascertain whether the victim is a minor, the court determined that the statute does not pass constitutional muster under Zarnke.

¶ 6. The State appealed. Subsequently, the court of appeals certified to this court the question of whether Wis. Stat. § 948.11(2) is constitutional as applied to a defendant who distributes harmful material to a minor over the internet.

[1, 2]

¶ 7. The constitutionality of a statute presents a question of law that we review independently of the determinations rendered by the circuit court or court of appeals. State v. Janssen, 219 Wis. 2d 362, 370, 580 N.W.2d 260 (1998). Statutes generally enjoy a presumption of constitutionality that the challenger must refute. Wisconsin Retired Teachers Ass'n v. Employe Trust Funds Bd., 207 Wis. 2d 1, 18, 558 N.W.2d 83 (1997). However, when a statute infringes on rights afforded by the First Amendment, as here, the State shoulders the burden of proving the statute constitutional beyond a reasonable doubt. City of Madison v. Baumann, 162 Wis. 2d 660, 669, 470 N.W.2d 296 (1991).

¶ 8. We begin by examining Wis. Stat. § 948.11(2), the subject of our constitutional inquiry. This statute provides:

(2) Criminal Penalties. (a) Whoever, with knowledge of the nature of the material, sells, rents, exhibits, transfers or loans to a child any harmful material, with or without monetary consideration, is guilty of a Class E felony.

The statute does not require the State to prove scienter, that is knowledge, of the age of the person receiving the harmful material. Rather, it sets forth an affirmative defense in subsection (c) that states:

It is an affirmative defense to a prosecution for a violation of this section if the defendant had reasonable cause to believe that the child had attained the age of 18 years, and the child exhibited to the defendant a draft card, driver's license, birth certificate or other official or apparently official document purporting to establish that the child had attained the age of 18 years. A defendant who raises this affirmative defense has the burden of proving this defense by a preponderance of the evidence.

[3, 4]

¶ 9. As a variable obscenity statute, Wis. Stat. § 948.11(2) prohibits a person from exhibiting to children those materials deemed obscene to minors but not obscene to adults. State v. Thiel, 183 Wis. 2d 505, 523-24, 515 N.W.2d 847 (1994). Variable obscenity statutes are premised on established constitutional tenets recognizing the significance of age in First Amendment jurisprudence.

[5]

¶ 10. Non-obscene sexual expression benefits from protection under the First Amendment. United States v. Playboy Entertainment Group, Inc., 120 S. Ct. 1878, 1885 (2000); Sable Communications v. F.C.C., 492 U.S. 115, 126 (1989). Nevertheless, sexual expression that is appropriate for adults may not be suitable for children. Ginsberg v. New York, 390 U.S. 629, 638-39 (1968). Accordingly, the government may regulate the exposure of minors to sexually explicit material in promoting the government's compelling interest to safeguard the physical and psychological welfare of children. New York v. Ferber, 458 U.S. 747, 756-57 (1982).

[6]

¶ 11. Because age represents the critical element separating illegal conduct from that which remains protected, to avert significant constitutional dilemmas some form of scienter must be implied in a statute imposing criminal liability based on age. See United States v. X-Citement Video, Inc., 513 U.S. 64, 69, 73 (1994)

. Indeed, scienter constitutes the rule in our criminal jurisprudence and is generally presumed even absent express statutory reference. State v. Alfonsi, 33 Wis. 2d 469, 476, 147 N.W.2d 550 (1967). See also Morissette v. United States, 342 U.S. 246, 263 (1952).

¶ 12. Although Wis. Stat. § 948.11(2) includes scienter as to the nature of the materials deemed harmful to children, the statute currently does not contain a parallel requirement as to the age of the victim. Prior to the creation of Chapter 948, the State's proof of scienter was a prerequisite to a lawful conviction based on exposing a child to harmful material. See Wis. Stat. § 944.25(10) (1985-86).

¶ 13. A 1987 legislative amendment effected a shift in the law by which scienter presently stands as an affirmative defense that the defendant must prove to avoid criminal liability. See 1987 Wis. Act 332; Wis. Stat. § 948.11(2)(c). By reformulating scienter as an affirmative defense, the legislature has eliminated it as an element of the offense under the statute. Zarnke, 224 Wis. 2d at 127 n.3.

¶ 14. Weidner contends that Wis. Stat. § 948.11(2) is constitutionally flawed for having dispensed with the requirement that the State prove a defendant's knowledge of the victim's minority status. He asserts that allocating to the defendant the burden of demonstrating scienter chills protected speech and results in self-censorship that violates the First Amendment.

¶ 15. According to Weidner, self-censorship is acutely apparent in the context of the internet because this particular medium renders it virtually impossible to ascertain the age of the person receiving the transmitted materials. As a result, those intending to take advantage of the internet to distribute constitutionally protected materials to adults will refrain from doing so in fear of prosecution under the statute.

¶ 16. The State counters that Wis. Stat. § 948.11(2) is constitutional in all its applications, having already survived constitutional scrutiny on two separate occasions. Thiel, 183 Wis. 2d at 536; State v. Kevin L.C., 216 Wis. 2d 166, 576 N.W.2d 62 (Ct. App. 1997). Regardless of whether there is face-to-face contact between the person intending to disseminate material and the recipient of that material, the State posits that there exists no absolute guarantee as to the recipient's actual age. However, the State maintains that an affirmative defense proving lack of scienter represents constitutionally adequate protection against the chilling of speech. United States v. United States Dist. Ct. for Cent. Dist. of Ca., 858 F.2d 534, 541-43 (9th Cir. 1988).

¶ 17. The State's position rests primarily on the argument that Weidner's actions comport with the exception to the requirement of scienter. Referring to X-Citement Video, the State claims the United States Supreme Court recognized an exception that scienter need not be presumed within a criminal statute when there is an opportunity for personal confrontation between the defendant and the minor. 513 U.S. at 76 n.5 (citing United States Dist. Ct.,858 F.2d at 543 n.6).

¶ 18. Furthermore, the State notes that Zarnke affirmed the validity of this exception, relying on it to hold that distributors, not producers, of child...