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Wisconsin high court: Harmful-to-minors law can't be applied to online speech

David Hudson
The Freedom Forum Online

A Wisconsin state law that criminalizes the sending of harmful material to minors is unconstitutional as applied to Internet communications, the state high court has ruled.

Lane R. Weidner was charged in February 1998 with numerous counts of violating a law that prohibits sending harmful material to minors. The law provides: "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."

Law-enforcement officials charged Weidner under the law after he began communicating with 16-year-old Samantha B. in an Internet chat room called "Teenage Romance."

Weidner had sent the minor several pictures of himself, including one in the nude. He also sent her numerous pictures of young girls engaged in various sex acts.

Weidner argued the charges should be dismissed because the law did not require the state to prove he knew the girl was a minor. He argued that making a criminal defendant, rather than the state, prove whether he knew the message recipient was a minor would chill protected Internet speech among adults. A trial court agreed and dismissed the charges in May 1999. On appeal, the Wisconsin Supreme Court also agreed in State v. Weidner.

The Wisconsin high court noted in its June 16 opinion that it is difficult to learn a person's age on the Internet. "The Internet provides no effective means to gauge the identity and age of persons who access material through the use of this continuously evolving medium. Participants in chat rooms often assume pseudonyms and do not divulge truthful personal data."

"By requiring an Internet user like Weidner to prove lack of knowledge regarding the age of the person exposed to material deemed harmful to a child, the statute effectively chills protected Internet communication to adults," the court wrote.

"We are mindful that our decision today essentially exonerates one who has engaged in both dangerous and abhorrent conduct by exposing a child to explicit and harmful material," the court wrote.

The court urged the legislature to "swiftly" pass a law "so that the welfare of children and protected First Amendment expression may both be safeguarded and co-exist in harmony."

Rob Henak, an attorney who filed a friend-of-the-court brief for the American Civil Liberties Union of Wisconsin, said: "When the determining factor between what is criminal and what is protected by the First Amendment is someone's age, the court squarely held that the state must prove knowledge of the recipient's minority status, at least where there is no face-to-face contact.

"When a general harmful-to-minors law does not require the state to prove such knowledge, it is unconstitutional as applied to circumstances in which there is no face-to-face contact," Henak said.

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