State v. James L. Jackson, Jr.

2020 WI App 4COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2018AP2074-CR
† Petition for Review filed
Complete Title of Case:
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JAMES L. JACKSON, JR.,
DEFENDANT-APPELLANT.†
Opinion Filed: December 26, 2019
Submitted on Briefs: October 10, 2019
Oral Argument:
JUDGES: Neubauer, C.J., Reilly, P.J., and Gundrum, J.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Andrew R. Hinkel, assistant state public defender of Madison.
Respondent
ATTORNEYS: 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.
2020 WI App 4COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 26, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2018AP2074-CR Cir. Ct. No. 2016CF162
STATE OF WISCONSIN IN COURT OF APPEALS
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JAMES L. JACKSON, JR.,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Calumet County: JEFFREY S. FROEHLICH, Judge. Affirmed.
Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.
No. 2018AP2074-CR
¶1 REILLY, P.J. 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]
1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
Going forward, we will refer to the required information as “Internet identifiers.”
2
No. 2018AP2074-CR
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 (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
3
No. 2018AP2074-CR
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
3
First Amendment rights include a right to anonymous speech that occurs on the
Internet. See Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017) (“While in the past
there may have been difficulty in identifying the most important places (in a spatial sense) for the
exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of
the Internet’ in general and social media in particular.” (citation omitted)); see also McIntyre v.
Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (explaining that the First Amendment right to
freedom of speech also includes right to publish and distribute writings while remaining
anonymous). The right of free speech, however, either on or off the Internet, is not absolute. See
Grayned v. City of Rockford, 408 U.S. 104, 115 (1972); People v. Minnis, 2016 IL 119563, ¶23.
WISCONSIN STAT. § 301.45(2)(a)6m. does not on its face prohibit speech, as it only
requires registrants to report his or her Internet identifiers. Nevertheless, it does burden
constitutionally protected speech as it calls into question a registrant’s willingness or ability to
speak anonymously on the Internet. See, e.g., Laird v. Tatum, 408 U.S. 1, 11 (1972)
(“[C]onstitutional violations may arise from the deterrent, or ‘chilling,’ effect of governmental
regulations that fall short of a direct prohibition against the exercise of First Amendment
rights.”); Doe v. Harris, 772 F.3d 563, 572-74 (9th Cir. 2014); see also United States v. Playboy
Entm’t Grp., 529 U.S. 803, 812 (2000) (“The distinction between laws burdening and laws
banning speech is but a matter of degree.”).
4
Nearly every court to consider a challenge to a sex offender registry Internet provision
has concluded that content-neutral restrictions on sex offender registrants’ use of the Internet is
subject to intermediate level scrutiny. See e.g., Ex parte Odom, 570 S.W.3d 900, 910 & n.1
(Tex. Crim. App. 2018); see also Packingham, 137 S. Ct. at 1736.
(continued)
4
No. 2018AP2074-CR
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, 137 S. Ct. 1730, 1736 (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
In the First Amendment context, the most important question when determining the level
of scrutiny to apply is whether the statute is content-based or content-neutral. Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989). “Content-based regulations are presumptively
invalid” and subject to rigorous scrutiny. R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). In
contrast, a statute governing expressive activity is content-neutral where it is “justified without
reference to the content of the regulated speech.” Ward, 491 U.S. at 791 (citation omitted).
Here, the statute does not address or reference the content of the speech or activity; instead, it
applies the requirements of the statute equally across the board, making intermediate scrutiny
appropriate.
5
No. 2018AP2074-CR
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, 138 S. Ct. 798
(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 (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, 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.
6
No. 2018AP2074-CR
¶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 (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).
5
Challenges to a statute’s constitutionality generally must be presented by an individual
with “a personal and vested interest in the outcome of the litigation, demonstrating the statute’s
unconstitutional application to their individual conduct.” State v. Oatman, 2015 WI App 76, ¶6,
365 Wis. 2d 242, 871 N.W.2d 513 (citation omitted). First Amendment challenges are exempt
from this requirement, however, “due to the gravity of a ‘chilling effect’ that may cause others
not before the court to refrain from constitutionally protected speech or expression.” Id.(citations omitted). This exception is known as the overbreadth doctrine. Id., ¶7.
7
No. 2018AP2074-CR
¶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, “[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 (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 “only sparingly utilize the overbreadth doctrine as a tool for
statutory invalidation, proceeding with caution and restraint,” Oatman, 365
Wis. 2d 242, ¶8 (citation omitted), as invalidating a statute is “strong medicine” to
be “employed … with hesitation, and then ‘only as a last resort,’” New York v.
Ferber, 458 U.S. 747, 769 (1982) (citation omitted).
¶14 The first task in our constitutional analysis is to construe the
challenged statute. See United States v. Williams, 553 U.S. 285, 293 (2008).
WISCONSIN STAT. § 301.45(2)(a)6m. requires registrants to provide “[t]he name
or number of every electronic mail account the person uses,” meaning every
e-mail address; “the Internet address of every website the person creates or
maintains,” which would include sites like a blog or an informational website;
“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,”
which would presumably encompass a wide range of Internet behavior including
creating profiles on social media sites like Facebook or Instagram, commercial
sites like Amazon.com, or user names on other websites or blogs where the
8
No. 2018AP2074-CR
individual might comment on or read content. See id. The statute creates a
presumption that Internet identifiers will not be public knowledge as it provides
that this information will not be included on the registry website for public view.
Id. Further, the “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.” Id.
¶15 A registrant “shall notify the department once each calendar year, as
directed by the department, of his or her current information specified in [WIS.
STAT. § 301.45(2)(a)],” and within ten days “whenever any of the information
under [§ 301.45(2)(a)] changes.” Sec. 301.45(3)(b), (4)(a).
¶16 WISCONSIN STAT. § 301.46 addresses who has access to information
required by WIS. STAT. § 301.45(2)(a)6m. The DOC is to make the information
available to the police chief of any community and the sheriff of any county where
the registrant is residing, employed, or attending school or provide the information
to the police chief or sheriff when requested. Sec. 301.46(2)(a), (c), (d). The
police chief or sheriff may
provide any of the information to which he or she has
access under this subsection to an entity in the police
chief’s community or the sheriff’s county that is entitled to
request information under sub. (4), to any person requesting
information under sub. (5) or to members of the general
public if, in the opinion of the police chief or sheriff,
providing that information is necessary to protect the
public.[6]
6
The entities under subsec. (4) of WIS. STAT. § 301.46 include, among others, schools,
child care providers and welfare agencies, group and foster homes, and the state’s department of
justice.
9
No. 2018AP2074-CR
Sec. 301.46(2)(e); see also § 301.46(5)(b)4. Internet identifiers will not appear on
the sex offender registry website for public view.
¶17 Having construed the statute, we next address whether it survives
intermediate scrutiny: is WIS. STAT. § 301.45(2)(a)6m. narrowly tailored to a
significant government interest? To do so, we need to judge the overbreadth of
the statute “in relation to the statute’s plainly legitimate sweep.” Culver, 384
Wis. 2d 222, ¶9 (citation omitted).
¶18 It is without dispute that the government has a significant interest in
protecting the public from sex offenders and assisting law enforcement in
“protecting the public—particularly children” from those offenders. State v.
Smith, 2010 WI 16, ¶27, 323 Wis. 2d 377, 780 N.W.2d 90; see also Packingham,
137 S. Ct. at 1736. As our supreme court has explained, “Wisconsin’s sex
offender registration statute ‘reflect[s] an intent to protect the public and assist law
enforcement and [is] related to community protection.’” Smith, 323 Wis. 2d 377,
¶26 (legitimate governmental interest) (alterations in original; citation omitted);
see also Ferber, 458 U.S. at 756-57.
¶19 As WIS. STAT. § 301.45(2)(a)6m. is related to a significant
governmental interest, we next determine whether it is narrowly tailored to that
significant governmental interest. Clearly, “[t]he State’s interest in protecting
children from recidivist sex offenders … applies to internet use.” Packingham,
137 S. Ct. at 1739 (Alito, J., concurring). As Justice Alito explained in his
concurrence in Packingham:
[C]hildren often use the internet in a way that gives
offenders easy access to their personal information—by, for
example, communicating with strangers and allowing sites
to disclose their location. Second, the internet provides
previously unavailable ways of communicating with,
stalking, and ultimately abusing children. An abuser can
10
No. 2018AP2074-CR
create a false profile that misrepresents the abuser’s age
and gender. The abuser can lure the minor into engaging in
sexual conversations, sending explicit photos, or even
meeting in person. And an abuser can use a child’s
location posts on the internet to determine the pattern of the
child’s day-to-day activities—and even the child’s location
at a given moment. Such uses of the internet are already
well documented, both in research and in reported
decisions.
Id. at 1739-40 (Alito, J., concurring) (footnotes omitted). By requiring registrants
to provide their Internet identifiers, law enforcement has an important tool at their
disposal to protect the public from recidivist sex offenders. As the State
explained,
if police receive a complaint that a child has been receiving
inappropriate communications from a particular e-mail
address or internet account, law enforcement can request
information from DOC regarding the e-mails or user names
it has in its registry records. Or if police receive credible
reports that a particular sex offender is using the internet to
solicit children or engage in other illegal activity, law
enforcement has internet identifiers available to assist in
promptly conducting a public search or obtaining a search
warrant.
¶20 Jackson argues that two provisions of WIS. STAT. § 301.45(2)(a)6m.
are not narrowly tailored: (1) the provision requiring the individual to notify the
DOC of “the Internet address of every website the person creates or maintains”
and (2) the provision requiring the individual to provide “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.” Jackson argues that these
provisions require registrants to provide information that poses “no conceivable
threat to the public.” We disagree.
¶21 Jackson points to Doe v. Nebraska, 898 F. Supp. 2d 1086 (D. Neb.
2012), arguing that an Internet site maintained by a sex offender, like a blog,
“poses no conceivable threat to the public.” In Nebraska, the United States
11
No. 2018AP2074-CR
District Court for the District of Nebraska considered statutes that required sex
offenders to register electronic communication “identifiers, addresses, domain
names, and Internet and blog sites used.” Id. at 1093. The court determined that
the statutes were “insufficiently narrow” as it “clearly chills offenders from
engaging in expressive activity that is otherwise perfectly proper,” and, more
importantly, the statutory requirement to disclose Internet identifiers was
intertwined with a requirement that registrants consent to a search of their
computers and allow law enforcement to install “hardware or software to monitor
the person’s Internet usage on all the computers or electronic communication
devices possessed by the person,” thereby forcing the offender to choose between
his or her First Amendment rights and his or her Fourth Amendment rights. Id. at
1094, 1120. The Nebraska statute also required “the offender to inform the State
about ‘all blogs and Internet sites maintained by the person or to which the person
has uploaded any content or posted any messages or information.’” Id. at 1120(emphasis omitted). The court took issue with that requirement specifically,
noting that “requiring Internet identifiers and addresses, including designations for
purposes of routing or self-identification, as permitted by the federal Attorney
General’s Guidelines, is one thing. Requiring sex offenders to constantly update
the government about when and where they post content to Internet sites and blogs
is an entirely different thing.” Id. at 1121-22 (footnote omitted).
¶22 Neither the Nebraska court’s decision nor its reasoning are
applicable under the circumstances of this case. First, WIS. STAT.
§ 301.45(2)(a)6m. does not require registrants to consent to either a search of his
or her computer or electronic communication device or to the installation of
monitoring software. Further, § 301.45(2)(a)6m. does not require the registrant to
“constantly update the government about when and where they post content to
12
No. 2018AP2074-CR
Internet sites and blogs.” See Nebraska, 898 F. Supp. 2d at 1122. The Wisconsin
statute is not nearly as onerous as the Nebraska statute.7
¶23 Numerous state and federal courts have also weighed in on this
debate, with varying results based on statutes with divergent provisions.
Packingham v. North Carolina is the United States Supreme Court’s most recent
foray into the domain of regulating sex offenders on the Internet. In Packingham,
a defendant challenged his conviction on First Amendment grounds based on a
statute that prohibited him from accessing “a commercial social networking
Web site where the sex offender knows that the site permits minor children to
7
Within his arguments on his as-applied challenge, Jackson also argues that the courts’
decisions in Doe v. Harris, 772 F.3d 563 (9th Cir. 2014), Millard v. Rankin, 265 F. Supp. 3d
1211 (D. Colo. 2017), and White v. Baker, 696 F. Supp. 2d 1289 (N.D. Ga. 2010), require a
finding that the sex offender registry statute is unconstitutional. Although we do not address the
merits of Jackson’s as-applied challenge, we will briefly address why these cases are
distinguishable. In Harris, the Ninth Circuit concluded that California’s Internet reporting
requirements chilled protected speech for three reasons: “the Act does not make clear what sex
offenders are required to report, there are insufficient safeguards preventing the public release of
the information sex offenders do report, and the 24-hour reporting requirement is onerous and
overbroad.” Harris, 772 F.3d at 578. Unlike the statute in Harris, the Wisconsin statute contains
a presumption of nondisclosure of a registrant’s Internet identifiers and does not allow
widespread dissemination of the information as Internet identifiers may only be disclosed upon
individual request and when “necessary to protect the public.” See WIS. STAT. § 301.46(2)(e).
Further, the statute at issue in Harris only provided a 24-hour reporting period, Harris, 772 F.3d
at 581-82, while the Wisconsin statute provides the registrant ten days to report changes, WIS.
STAT. § 301.45(4).
Millard is an Eighth Amendment case; thus, the analysis focused on the punitive nature
of the statute. Millard, 265 F. Supp. 3d at 1223, 1229. Therefore, the limited discussion
regarding the First Amendment is inapplicable.
Finally, White involved a Georgia statute that allowed release of registrants’ Internet
identifiers for “law enforcement purposes” as well as “to protect the public.” White, 696
F. Supp. 2d at 1310-11. This case is also distinguishable as, like the statute in Harris, the statute
allowing for dissemination of registrants’ information was much broader and required registrants
to update information within seventy-two hours. White, 696 F. Supp. 2d at 1294. More
importantly, the statute in White also required registrants to provide passwords in addition to
usernames and e-mails, id. at 1295, which the Wisconsin statute does not require.
13
No. 2018AP2074-CR
become members or to create or maintain personal Web pages.” Packingham,
137 S. Ct. at 1733 (citation omitted). The Supreme Court applied intermediate
scrutiny and determined that the North Carolina statute was too broad in restricting
online conduct:
[T]he statute here enacts a prohibition unprecedented in the
scope of First Amendment speech it burdens. Social media
allows users to gain access to information and
communicate with one another about it on any subject that
might come to mind. By prohibiting sex offenders from
using those websites, North Carolina with one broad stroke
bars access to what for many are the principal sources for
knowing current events, checking ads for employment,
speaking and listening in the modern public square, and
otherwise exploring the vast realms of human thought and
knowledge. These websites can provide perhaps the most
powerful mechanisms available to a private citizen to make
his or her voice heard.
Id. at 1737. Importantly, the Court cautioned that “this opinion should not be
interpreted as barring a State from enacting more specific laws than the one at
issue.” Id. In Packingham, it was the sweeping criminalization of access to the
Internet that doomed the North Carolina statute.
¶24 WISCONSIN STAT. § 301.45(2)(a)6m. is distinguishable from other
state statutes found unconstitutional. For example, unlike the North Carolina
statute at issue in Packingham, § 301.45(2)(a)6m. does not prohibit a registrant
from using social media websites or the Internet in general. Neither does it require
a registrant to provide passwords for his or her usernames or e-mails. See White v.
Baker, 696 F. Supp. 2d 1289, 1308 (N.D. Ga. 2010). Wisconsin’s registry
requirements also provide a registrant ten days to report any changes to his or her
information. See Doe v. Harris, 772 F.3d 563, 581-83 (9th Cir. 2014) (finding
requiring that registrants report changes within twenty-four hours was “onerous
and overbroad”); Doe v. Snyder, 101 F. Supp. 3d 672, 704 (E.D. Mich. 2015)
(concluding in-person, three-business-day reporting requirement “imposes a
14
No. 2018AP2074-CR
substantially greater, and apparently unnecessary, burden on protected First
Amendment speech”).
¶25 Additionally, several courts have found sex offender registry
provisions similar to WIS. STAT. § 301.45(2)(a)6m. constitutional. See Doe v.
Shurtleff, 628 F.3d 1217, 1224-26 (10th Cir. 2010) (concluding that sharing of
Internet identifiers “among law-enforcement agencies, not the public at large, and
only for the recited law-enforcement purposes” did not chill speech and was not
overbroad); People v. Minnis, 2016 IL 119563, ¶48 (finding Internet identifier
statute not overbroad); Ex parte Odom, 570 S.W.3d 900, 909 (Tex. Crim. App.
2018) (“Texas’s statute does not prohibit sex offenders from accessing any sites; it
only requires reporting of their online identifiers…. [T]he speech remains
anonymous to its intended audience; only the government and certain third-party
providers have the ability to determine the speech’s author.”); Coppolino v.
Noonan, 102 A.3d 1254, 1284 (Pa. Commw. Ct. 2014) (determining provisions do
not burden right to anonymous speech and are not overbroad as statute does not
allow general public disclosure of information).
¶26 We conclude that WIS. STAT. § 301.45(2)(a)6m. survives
intermediate scrutiny and is not overbroad. In addition to the above, we further
note that the statute neither unnecessarily chills anonymous speech nor does it
operate as a prior restraint on speech8 as it does not require the registrant to update
the registry information prior to engaging in protected speech or disclose to law
8
A prior restraint on speech exists where protected expression is contingent upon the
approval of government officials. See Near v. Minnesota, 283 U.S. 697, 711-13 (1931); United
States v. Frandsen, 212 F.3d 1231, 1236-37 (11th Cir. 2000) (“A prior restraint on expression
exists when the government can deny access to a forum before the expression occurs.”).
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No. 2018AP2074-CR
enforcement every time he or she updates content on a website. See Shurtleff, 628
F.3d at 1225 (noting that this retroactive operation constitutes an example of
narrow tailoring); see also Peterson v. National Telecomms. & Info. Admin., 478
F.3d 626, 632 (4th Cir. 2007) (“Speech is chilled when an individual whose
speech relies on anonymity is forced to reveal his identity as a pre-condition to
expression. In other words, the First Amendment protects anonymity where it
serves as a catalyst for speech.” (citing Buckley v. American Constitutional Law
Found., Inc., 525 U.S. 182, 199 (1999))).
¶27 While the reach of WIS. STAT. § 301.45(2)(a)6m. is broad (requiring
registrants to report “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”), that fact does not make the statute unconstitutional. Under
intermediate scrutiny, a content-neutral speech regulation “need not be the least
restrictive or least intrusive means of doing so. Rather, the requirement of narrow
tailoring is satisfied ‘so long as the … regulation promotes a substantial
government interest that would be achieved less effectively absent the
regulation,’” provided “the means chosen are not substantially broader than
necessary to achieve the government’s interest.” Ward v. Rock Against Racism,
491 U.S. 781, 798-800 (1989) (alteration in original; footnote and citation
omitted); see also Minnis, 2016 IL 119563, ¶¶46-49 (noting that courts that have
declared sex offender Internet disclosure requirements overbroad have “failed to
recognize the breadth necessary to protect the public” and “failed to engage in the
comparative analysis of whether the chilling effect was substantially broader than
that required by the statutory purpose”). Here, § 301.45(2)(a)6m. effectively
serves the State’s substantial interest in protecting the public from recidivist sex
offenders, and without this provision that substantial interest would not be served
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as well. See Ward, 491 U.S. at 800. We also agree with the circuit court that
narrowing the statute further by “[d]esignating one type of Internet use or
electronic communication as ‘reporting required’ and another type as ‘not
reporting required’ is not feasible due to the ever-evolving capabilities of
electronic communication and its use by technologically savvy individuals.”
¶28 Of import is the fact that a registrant’s Internet identifiers are not
subject to unrestricted public disclosure. Not only does the statute contain a
presumption that a registrant’s Internet identifiers will not be made public, but the
information may only be disseminated to “an entity in the … community … that is
entitled to request information under [WIS. STAT. § 301.46(4)]” to members of the
general public who submit a request for information “concerning a specific
person” under § 301.46(5), or “to members of the general public if, in the opinion
of the police chief or sheriff, providing that information is necessary to protect the
public.” Sec. 301.46(2)(e), (4), (5). The information under subsec. (5) would be
distributed on an individual basis, concerning one specific offender, would only be
released to the entity requesting said information, and only “if, in the opinion of
the department or the police chief or sheriff, providing the information is
necessary to protect the public.” Sec. 301.46(5)(a). Thus, there is no unrestricted
disclosure of a registrant’s Internet identifiers to the general public. Accordingly,
Jackson has failed to meet his burden to demonstrate substantial overbreadth
exists.
¶29 For the foregoing reasons, we conclude that WIS. STAT.
§ 301.45(2)(a)6m. does not violate the First Amendment as it is narrowly tailored
to serve the government’s significant interest in protecting the public from
recidivist sex offenders and is not overbroad.
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No. 2018AP2074-CR
By the Court.—Judgment and order affirmed.
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