Summary
Wisconsin Assembly Bill 462 and Senate Bill 367 would make it a crime to disseminate in any manner a nude or partially nude image of an adult person without his or her consent even if the person had consented to the image being taken or if the image was initially distributed by the subject of the image.
“Nude” or “partially nude” is defined as less than opaque covering of the genitals, pubic area, buttocks or female breasts or male genitalia in a discernibly turgid state. The legislation allows anyone who publishes a picture on the Internet under such circumstances to be prosecuted under this law in Wisconsin.
The bills were amended to include an exception for images that are “newsworthy or of public importance.”
Status
Gov. Scott Walker signed S.B. 367 into law. The law goes into effect immediately.
Analysis
The legislation could criminalize the re-publication of pictures Anthony Weiner sent of himself to women he met online. It could make it illegal to show the documentary film, Woodstock, about the music festival that contains images of partially nude concert attendees. It could bar the re-publication of a picture that recently appeared on the cover of the New York Times to illustrate a story about breast cancer.
The First Amendment protects speech even if it is intended to offend, annoy or embarrass. Though sexual speech that is deemed “obscene” is outside of First Amendment protection, that classification is limited to speech that meets the Miller test. This legislation applies to a much broader range of material than the Miller test.
The legislation is also likely a violation of the Commerce Clause, because it gives Wisconsin jurisdiction over any image posted on the Internet. There is no way for a publisher to prevent an image from being accessed in Wisconsin.
These bills are not saved by creating an exception for images that are newsworthy or of interest to the public. That exception is predicated on some images having greater value than others, and the Supreme Court has dismissed the notion that speech may be subjected to a test balancing “the value of the speech against societal costs.”
History – A.B. 462
- On October 22, 2013, the bill was introduced [3] and referred to the Assembly Committee on Criminal Justice.
- The committee held a hearing on the bill on October 24, 2013 and recommended the bill be passed.
- On November 12, 2013, the bill was amended to add an exception for newsworthy images or images of public importance. The House passed the bill as amended and sent it to the Senate for consideration. The bill was referred to the Senate Committee on Judiciary and Labor.
- On December 2, 2013, Media Coalition submitted a memo [1] to the Senate Committee on Judiciary and Labor, explaining the constitutional issues with the bill.
- The Senate Committee on Judiciary and Labor recommended that the Senate version of the bill, S.B. 367, be passed in place of A.B. 462.
History – S.B. 367
- On October 24, 2013, the bill was introduced [4] and referred to the Senate Committee on Judiciary and Labor.
- On December 2, 2013, Media Coalition submitted a memo [1] to the Senate Committee on Judiciary and Labor, explaining the constitutional issues with the bill.
- The bill was amended [5] to include an exception for newsworthy images or images of public importance. The committee recommended the bill be passed as amended on March 17, 2014.
- The Senate passed the bill on March 18, 2014. The bill was sent to the Assembly for consideration and referred to the Committee on Rules.
- Media Coalition sent a memo [2] to the members of the Assembly on March 19, 2014, explaining the constitutional issues with the bill.
- The Assembly passed the bill on March 20, 2014. The bill was sent to Gov. Scott Walker for his signature.
- On April 9, 2014, Gov. Walker signed the bill into law. It goes into effect immediately.