On Point: 19. First Amendment

Doe v. Prosecutor, Marion County, Indiana, Case No. 12-2512, 1/23/13; Seventh Circuit Court of Appeals decision

A recent Indiana statute prohibits most registered sex offenders from using social networking websites, instant messaging services, and chat programs. John Doe, on behalf of a class of similarly situated sex offenders, challenges this law on First Amendment grounds. We reverse the district court and hold that the law as drafted is unconstitutional. Though content neutral,

State v. Bradley S. Johnson, Outagamie Co. Circ. Ct. No. 12CM495

circuit court decision; case activity

Panhandling prosecution under § 947.02(4) is dismissed with prejudice because the vagrancy statute is unconstitutional under first amendment analysis: panhandling (“begging”) is a form of protected speech and its criminalization under § 947.02(4) is fatally vague and overbroad. State v. Starks, 51 Wis.2d 256, 186 N.W.2d 245 (1971) (loitering statute unconstitutional as providing insufficient notice of prohibited conduct,

State v. Gary M. Hemmingway, 2012 WI App 133; case activity

Stalking,  § 940.32(2m)(a), which previously survived overbreadth and vagueness challenges based on rights to travel and equal protection, State v. Ruesch, 214 Wis. 2d 548, 571 N.W.2d 898 (Ct. App. 1997), now withstands a free-speech challenge: The statute isn’t a facially overbroad regulation of protected speech, in that the first amendment doesn’t immunize intentional conduct aimed at causing serious distress or fear of bodily harm.

United States v. Alvarez, USSC No. 11-210 (6/28/12), affirming 638 F.3d 666 (9th Cir. 2011).

The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.  Though few might find respondent’s statements anything but contemptible, his right to make those statements is protected by the Constitution’s guarantee of freedom of speech and expression.

Questions Presented:

California Civil Code sections 1746-1746.5 prohibit the sale of violent video games to minors under 18 where a reasonable person would find that the violent content appeals to a deviant or morbid interest of minors, is patently offensive to prevailing community standards as to what is suitable for minors, and causes the game as a whole to lack serious literary, artistic, political, or scientific value for minors. The respondent industry groups challenged this prohibition on its face as violating the Free Speech Clause of the First Amendment.

United States Supreme Court decision (or, here)

Criminalizing depictions of animal cruelty, 18 U.S.C. §48, held “substantially overbroad,” therefore violative of First Amendment.

First Amendment restrictions on speech are permitted “in a few limited areas” (obscenity, crime facilitation, et al.), and despite long-standing abhorrence of animal cruelty, depictions of same will not be added to that list.

… The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.

State v. Christopher J. Lesik, 2010 WI App 12, PFR filed
For Lesik: Anthony Cotton

Issue/Holding: Sexual assault (intercourse) of a child, § 948.02, isn’t unconstitutionally overbroad, against a theory that it criminalizes acts undertaken for “proper medical purpose.” Although the statute is silent with respect to medical conduct, potential overbreadth may be cured through judicial construction and the court therefore “conclude(s) here that ‘sexual intercourse’ as used in the sexual assault of a child statute does not include ‘bona fide medical,

State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
For Baron: Daniel P. Dunn

Issue/Holding: The identity theft charge against Baron, sending emails from Fischer’s account without authorization and with intent to harm his reputation as a government official, survives strict scrutiny analysis under the First Amendment (freedom of speech clause):

¶45      To survive strict scrutiny, the State has the burden to show that the “‘regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.’” 

State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
For Baron: Daniel P. Dunn

Issue/Holding: The charge of identity theft, based on Baron’s alleged conduct in sending emails from Fischer’s account without authorization and with intent to harm his reputation, is “content based” within the meaning of First Amendment analysis:

¶38      In the case at hand, we conclude that Wis.

State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
For Baron: Daniel P. Dunn

Issue/Holding: First amendment analysis applies to an identity theft charge alleging that Baron sent emails from Fischer’s account without authorization and with intent to harm his reputation:

¶16      In order to determine if a First Amendment analysis is required, we must first consider whether conduct alone or speech,