State v. Stevenson

JON P. WILCOX, J.

¶ 42. (dissenting). Even if Wisconsin Statute § 944.205(2)(a) (1997 — 98)1 poses any danger of unconstitutional overbreadth on its face, the statutory language is readily susceptible to cura*104tive judicial construction. I therefore would not strike this statute down on grounds of facial overbreadth.

¶ 43. Facial challenges to statutes do not succeed when a limiting construction is available. See Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). The usual duty of courts is to construe statutes "so as to avoid the statutes' potentially overbroad reach, apply the statute in that case, and leave the statute in place." Osborne v. Ohio, 495 U.S. 103, 119 (1990). Moreover, when a statute regulates conduct and not just speech, "the scope of the statute does not render it unconstitutional unless its overbreadth is not only 'real, but substantial as well.'" Id. at 112 (quoting Broadrick, 413 U.S. at 615).

¶ 44. The general rule of standing is that a defendant cannot attack a statute on the ground that it may be unconstitutional as applied to others. See State v. Thiel, 183 Wis. 2d 505, 520, 515 N.W.2d 847 (1994). The overbreadth doctrine properly establishes an exception to this rule, when First Amendment rights are implicated. See id. at 520-21. "In the First Amendment context, we permit defendants to challenge statutes on overbreadth grounds, regardless of whether the individual defendant's conduct is constitutionally protected." Osborne, 495 U.S. at 112 and n.8. However, statutory invalidation under the over-breadth doctrine is "manifestly, strong medicine" that is meant to be employed only as a last resort. See Broadrick, 413 U.S. at 613. Therefore, the court has a duty not to render the entire statute invalid when the language of the statute can be cured by a limiting construction. See Thiel, 183 Wis. 2d at 521.

¶ 45. In a challenge to facial validity, a limiting construction to rehabilitate the statute is permitted when such a reading is "readily available." See State v. *105Janssen, 219 Wis. 2d 362, 378, 580 N.W.2d 260 (1998). Even when First Amendment rights are concerned, if the statute is " 'readily susceptible' to a narrowing construction that would make it constitutional, it will be upheld." See Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 397 (1988)(citations omitted). A narrow construction is the proper way to guard against potential overbreadth in Wis. Stat. § 944.205(2)(a).

¶ 46. The clear aim of the statute under attack is to protect legitimate privacy interests. Though there are no records of floor or committee debate, a letter in the drafting file indicates that the legislature's aim was to prohibit conduct exactly like the defendant's conduct in this case. See Letter of Chief of Police of River Falls to State Representative Sheila Harsdorf, dated October 11, 1995, in the Wisconsin Legislative Reference Bureau bill drafting file for 1995 Wis. Act 249. The statute was drafted in direct response to a letter written by the River Falls Chief of Police, which related an incident of the same sort of invasive and secretive visual recording of nude persons that we have in this case.2 This legislative history establishes that the legislature's intent in enacting Wis. Stat. § 944.205(2)(a) was to protect privacy interests in cases just like the one at hand.

*106¶ 47. The invasive act targeted as criminal behavior in this case is concededly not protected by the First Amendment. Majority op. at ¶ 16. Furthermore, the mere fact of nudity depicted in a visual media is not proscribed by the statute. The conduct described in the act is constitutionally proscribable, and the expressive content of the pictures is not the primary concern of the legislature. Rather, the legislature seeks to proscribe obtaining nude images in a manner that constitutes an intolerable invasion of privacy. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 209-10 (1975)(noting that the state's ability " 'to shut off discourse solely to protect others from hearing it is. . .dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.' ")(quoting Cohen v. California, 403 U.S. 15, 21 (1971)). The legislature's intent to criminalize invasions of privacy such as the invasion here is evident in the plain language of the statute, which prohibits capturing an image that depicts nudity "without the knowledge or consent of the person who is depicted nude." Wis. Stat. § 944.205(2)(a).

¶ 48. The majority argues that the language in the statute is not readily susceptible to an interpretation that criminalizes only this narrow category of behavior. I disagree. The most reasonable interpretation of the statute is not the one suggested by the defense, which characterizes the statute as prohibiting a myriad of conduct protected by the First Amendment. Instead, the most reasonable interpretation of the statute is the one urged by the State, which only criminalizes behavior that constitutes an invasion of privacy.

¶ 49. Under this reasonable interpretation, we cannot find real and substantial overbreadth. The *107overbreadth doctrine should not be used to invalidate the statute merely because " 'in some conceivable, but limited, circumstances the regulation might be improperly applied.'" Janssen, 219 Wis. 2d at 373, (quoting City of Milwaukee v. K.F., 145 Wis. 2d 24, 40, 426 N.W.2d 329 (1988)). Especially, we should not attribute to the legislature an intent to apply a statute in situations where an application would yield unreasonable results. See State v. Timm, 163 Wis. 2d 894, 899, 472 N.W.2d 593 (Ct. App. 1991). The language in Wis. Stat. § 944.205(2)(a) is "readily available" to a construction that serves the privacy interests contemplated by the legislature.

¶ 50. In 1998 this court invalidated a statute that sought to criminalize "defilement" of the American flag on grounds of overbreadth. See Janssen, 219 Wis. 2d at 387. The overbreadth challenge properly succeeded because there was no construction that would make the statute constitutionally permissible: it was "a clear attempt to ban speech and conduct based on its expressive content." Id. at 385-86. The legislature's stated intent confirmed as much. See id. Here, there is no such impermissible regulation on the basis of expressive content. The statute does not criminalize the visual depiction because it depicts nudity. Instead, it criminalizes securing such depictions by an invasive, secretive method violating privacy interests.

¶ 51. To bolster this understanding of the statute, the State has proposed the following limiting language, which would ensure that the statute only applies when the defendant:

Takes a photograph or makes a motion picture, videotape or other visual representation or reproduction that depicts nudity without the knowledge *108and consent of the person who is depicted nude, while that person is nude in circumstances where they have a reasonable expectation of privacy, if the person knows or has reason to know that the person who is depicted nude does not know of and consent to the taking or making of the photograph, motion picture, videotape or other visual representation or reproduction.

Plaintiff-Respondent's Brief at 13-14. Construing the statute in this manner underscores the statute's susceptibility to reasonable interpretation and clarifies the applicable scope of the statute. The language of the statute requiring "knowledge" and "consent," coupled with the legislative history, reflect that protection of privacy is the fundamental concern. The statute is readily susceptible to a limited application: at its core, this statute seeks to protect against invasion of privacy.

¶ 52. By applying this reasonable interpretation of the statute, the overbreadth concerns fall away. Under this construction, there is no "real" and "substantial" overbreadth when "judged in relation to the statute's plainly legitimate sweep." See Lounge Management, Ltd. v. Town of Trenton, 219 Wis. 2d 13, 34, 580 N.W.2d 156 (1998) (quoting Broadrick, 413 U.S. at 615). The examples put forth by the defense and the majority to illustrate possible overbreadth are inappo-site under this construction of the statute. Models who pose nude have granted consent and, therefore, have no reasonable expéctation of privacy. News reporters will not be vulnerable under the statute if their subjects were in full public view where there is no expectation of privacy. Artistic license will not be threatened so long as the depictions are not made while *109surreptitiously observing anyone while they were undressed.

¶ 53. The Supreme Court approved of a similar approach to curing potential overbreadth in Osborne, when it approved of the insertion of limiting language into a statute rather than invalidating the statute based on facial overbreadth. See Osborne, 495 U.S. at 112. The Supreme Court held that a narrow construction saving a statute from facial invalidation is appropriate when there is a "' "whole range of easily identifiable and constitutionally proscribable conduct." '" See id. at 112 (quoting New York v. Ferber, 458 U.S. 747, 770 n.25 (1982)). The Court determined that an otherwise overbroad statute prohibiting the possession of "nude" photographs of minors could be construed narrowly to avoid "penalizing persons for viewing or possessing innocuous photographs of naked children." See Osborne, 495 U.S. at 114. The Supreme Court approved of the Ohio Supreme Court's construction, which interpreted the statute to refer only to " 'nudity [that] constitutes a lewd exhibition or involves a graphic focus on the genitals.'" Id. at 113. Thus, the U.S. Supreme Court has. confirmed that it is permissible, when trying to reach a curative construction, to add language that is in-step with the statutory purpose of the law. That is precisely what we should do here.

¶ 54. Limiting this statute to protect only persons who have a reasonable expectation of privacy at the moment a visual depiction is made does not constitute an improper judicial rewriting of the statute. Instead, this interpretation is the most reasonable reading based on the statutory language and legislature's aim. The Osborne court upheld an interpretation that did not merely add clarifying language to the statute but also grafted on an element of mental state. See *110Osborne, 495 U.S. at 115. Yet, this was not characterized as "rewriting" the statute. Following Osborne, we should apply a reasonable limiting construction to Wis. Stat. § 944.205(2)(a) to cure any unconstitutional overbreadth.

¶ 55. The majority distinguishes the Osborne line of cases on the grounds that a scienter element is a presumption in criminal law. However, the concept of "reasonable expectation of privacy" is also widespread in criminal law, particularly in Fourth Amendment litigation. Reading a "reasonable expectation" requirement into a privacy law is as natural as grafting a scienter element onto criminal laws.

¶ 56. The State also offers a construction that cures any potential overbreadth relating to the use of the term "reproduction." "Reproduction" can be understood to refer only to reproduction of images that were procured without the victim's "knowledge" or "consent." In other words, once a person has consented to the obtaining of an image, consent to reproduction of that image would be implied. Such an interpretation of the statute does not require us to "inject" an element of implied consent into the statute. Majority op. at ¶ 39. A reasonable reading of the statute, with its express reference to "consent," suggests that absent an initial invasion of privacy, Wis. Stat. § 944.205(2)(a) was not crafted to apply to subsequent reproduction.3

*111¶ 57. Finally, the defense argues that the limiting construction proposed by the State is improper because it will undermine fair notice. This concern is not without merit; it is important for people to know what the law proscribes. A limiting construction of a statute " 'may be applied to conduct occurring prior to the construction,. . .[but only if] such application affords fair warning to the defendan[t].'" Osborne, 495 U.S. at 115 (quoting Dombrowski v. Pfister, 380 U.S. 479, 491 n.7 (1965)).

¶ 58. In this case, notice concerns do not arise. Reading the statute without the clarifying language proposed by the State would have adequately warned the defendant that sneaking onto a roof and videotaping an unknowing victim in her bathroom is criminal. Accepting the State's limiting construction of this statute therefore would not deprive this defendant of fair notice of what sort of conduct could result in prosecution.

¶ 59. The statute is readily susceptible to a limiting construction to cure it from potential overbreadth. Indeed, such a limiting construction is the most reasonable reading of the statute. Therefore I respectfully dissent.

*112¶ 60. I am authorized to state that Justice N. PATRICK CROOKS joins this dissent.

All subsequent references to the Wisconsin Statutes refer to the 1997-98 volumes unless otherwise indicated.

More specifically, the incident related in the letter to Representative Harsdorf explained that the young women were foreign exchange students whom the individual was hosting in his residence. They were unaware he was videotaping them while they engaged in their bathroom routines.

This is strikingly similar to the facts in this case. The defendant admits that he secretly positioned himself outside of his ex-girlfriend's house, on the roof of the house and in a tree. From these positions, he videotaped her while she was in the privacy of her bedroom and bathroom.

The defense argues that this construction does not cure the constitutional defect because the statute might still infringe on an artist’s right to draw from imagination a person nude in a place where the person has a reasonable expectation of privacy. I do not think this construction permits such an application, because an individual does not have a right to privacy or a reasonable expectation of privacy in an artist's imagination. On the other hand, the state may constitutionally prohibit an artist *111from perching himself outside an individual's bedroom window in order to secretly observe and create a likeness of that person.

The majority also argues that the State's limiting construction renders the statute internally inconsistent, because by definition a person depicted nude in the original need not be contemporaneously present during reproduction of the image. Majority op. at ¶ 38. However, no inconsistency results if "reproduction" is understood to refer only to an image that was initially obtained in a violation of privacy during which the victim was "contemporaneously present."