On Point: 19. First Amendment

State v. William A. Wisth, 2016AP1481-CR, 5/24/17, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

After Wisth, acting pro se, and the State picked a jury for his criminal case, the judge instructed the jurors “not to discuss the case with anyone.” The next day before trial, Wisch appeared by the public entrance to the courthouse with a sign and a stack of flyers that, in short, said “don’t trust Judge Malloy or Ozaukee County.” He tried to hand a flyer to a woman walking by, but she shook her head. She did not see what the sign or the flyers said. Turns out she was a juror. Uh oh.

Review of an unpublished court of appeals decision; case activity (including briefs)

Issues (composed by On Point)

1. Was trial counsel ineffective for failing to move to dismiss on First Amendment free speech grounds a disorderly charge that was based on Breitzman’s use of foul language toward her son inside their home?
2. Did the court of appeals misapply the standards for reviewing ineffective assistance of counsel claims by deferring to the legal conclusions in the circuit court’s postconviction ruling?

Question presented (as formulated by Scotusblog):

Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state’s registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

State v. Alina N. Caminiti, 2015AP122-CR, and State v. Matthew B. Caminiti, 2015AP123-CR, 4/6/2016, District 4 (not recommended for publication); case activity (including briefs).

The Caminitis were members of a church in Black Earth whose leader (Matthew’s father) advocated “rod discipline”–the beating of infants and young children on the bare buttocks with wooden spoons or dowels, often resulting in bruising. The father’s convictions for conspiracy to commit child abuse were affirmed by the court of appeals in 2014; the Caminitis now appeal their convictions at trial for physical abuse of their two children on substantive due process and religious freedom grounds.

State v. David J. Reidinger, 2015AP902, 1/26/16, District III (one-judge decision; ineligible for publication); case activity

Reidinger appeals his citation for violating an administrative code provision prohibiting disorderly conduct on University of Wisconsin System property. Two UW-Eau Claire students had complained to university police that he was watching pornographic material on a library computer. (¶¶2-3).

Question presented:

I. Under the federal bribery statute, Hobbs Act, and honest-services fraud statute, 18 U.S.C. §§ 201, 1346, 1951, it is a felony to agree to take “official action” in exchange for money, campaign contributions, or any other thing of value. The question presented is whether “official action” is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.

State v. Christopher J. Oatman, 2015 WI App 76; case activity (including briefs)

The statute prohibiting a registered sex offender from intentionally photographing a minor without parental consent, § 948.14, violates the First Amendment because it “indiscriminately casts a wide net over expressive conduct protected by the First Amendment ….” (¶18, quoting State v. Stevenson, 2000 WI 71, ¶22, 236 Wis. 2d 86, 613 N.W.2d 90).

State of Wisconsin ex rel. Two Unnamed Petitioners v. The Honorable Gregory Peterson et al.; State of Wisconsin ex rel. Francis D. Schmitz v. the Honorable Gregory Peterson, & State of Wisconsin ex rel. Three Unnamed Petitioners v. The Honorable Gregory Peterson, et al., 2015 WI 85, issued 7/16/15; case activity: Two Unnamed Petitioners; Schmitz v. Peterson; Three Unnamed Petitioners

Unless you’ve just returned from a trip to a remote corner of the globe that’s beyond the reach of news media, you know by now that the Wisconsin Supreme Court decided the so-called “John Doe” cases. The court’s decision ordered a halt into the investigation of coordinated fundraising and spending between candidate committees and certain independent groups during the 2011-12 recall campaigns. Gargantuan by any standard, the decision goes on for almost 400 pages, with a majority opinion, two concurrences (Prosser and Ziegler), and two dissents/concurrences (Abrahamson and Crooks). It contains almost nothing of relevance to ordinary criminal law practice. However, in the interest of helping orient readers who may want to look more closely at the decision, below the break is a summary of the major issues and how the various opinions address them.

Elonis v. United States, USSC No. 13-983, 2015 WL 2464051 (June 1, 2015), reversing United States v. Elonis, 730 F.3d 321 (3rd Cir. 2013); Scotusblog page (including links to briefs and commentary)

This case involved a prosecution of Elonis for threats he made in postings on his Facebook page, and it was being widely watched for the First Amendment question it raised. But the Court sidestepped the constitutional question, and holds instead that 18 U.S.C. § 875(c), the federal statute he was prosecuted under, requires the government to prove some sort of mental state regarding the threatening nature of the communication.

State v. William M. Gruber, 2014AP1069, 2/5/15, District 4 (1-judge opinion; ineligible for publication); click here for docket and briefs

The court of appeals bills this as “a State Capitol protester case with a twist.” The “twist” is that Gruber was cited for disorderly conduct under one administrative rule whereas other protesters were cited for lacking a permit under another rule. So when the circuit court dismissed the charges in this case based on the reasoning used in the “no permit” cases, it erred.