Summary
Wisconsin Assembly Bill 71 would expand the definition of child pornography to include the language “depicting a child for the purpose of sexual stimulation or gratification of any person who may view the depiction” and lack serious value.
Sexual stimulation is not defined but can be reasonably read as looking sexually attractive or appealing.
Status
The companion bill, Senate Bill 68, was sign into law after it was amended to remove the expanded definition of child pornography.
Action
On March 24, 2019, Media Coalition submitted a memo in opposition to the bill as introduced to the Assembly Committee on Criminal Justice and Public Safety ahead of a hearing on March 26, 2019.
Analysis
The bill applies to images that do not contain nudity or sexual conduct. However, the Supreme Court has ruled that child pornography is strictly limited to photographic images of minors engaged in sexual conduct or with the lascivious display of nudity. New York v. Ferber (1982); Osborne v. Ohio (1990)
The bill is also unconstitutionally vague. Courts are especially skeptical of statutes that attempt to regulate speech but their lack of specificity results in self-censorship beyond any speech that may be proscribed. There is no subject to the verb “depict” in the relevant phrase “depicting a child for the purpose of sexual stimulation or gratification of any person who may view the depiction.” There is no definition of “sexual stimulation.” There is no objective standard for whether a minor was depicted for the purpose of sexual stimulation. Any image can be sexually appealing to someone. The inability to know whether the image is illegal will have a significant chilling effect on protected speech. A librarian, bookseller or patron would have to risk prosecution to distribute or view any image of a minor that anyone could find “sexy.”
“Serious value” qualifier does not cure the law. The “serious value” safe harbor is part of the test for determining if material is obscene, but it cannot be “used as a general precondition to protecting other types of speech.” U.S. v. Stevens (2010)
There are multiple instances of well-known performers who as minors were in depictions that are intended to make the minor appear physically attractive or sexually appealing: Alicia Silverstone and Liv Tyler in the Aerosmith music video for “Crazy”; Christina Applegate in the first three seasons of Married with Children; musical performances by Justin Timberlake with ‘N Sync or by Justin Bieber; Drew Barrymore in “The Amy Fisher Story” or “Poison Ivy”; Winona Ryden and Shannen Doherty in “Heather”; Britney Spears in the music video for “…Baby One More Time”; Vanity Fair’s 2003 Young Hollywood issue that depicted several teenage actresses (Lindsay Lohan, Amanda Bynes, Evan Rachel Wood, Brittany Snow, Hilary Duff, among others) in “suggestive” poses and clothed to accentuate their figures; and Brooke Shields in Calvin Klein ads (or numerous models appearing in fashion magazines because they are attractive).
In addition to these images in the media, A.B. 71 would make most pictures teenagers take of themselves into child pornography. They create and post pictures of themselves that they think others will find “sexy.” Even images that are not conventionally “sexy” are potentially illegal because the range of things that people find sexually appealing is virtually limitless.
History
On March 7, 2019, A.B 71 was introduced and referred to the Assembly Committee on Criminal Justice and Public Safety.
On March 24, 2019, Media Coalition submitted a memo in opposition to the committee, ahead of a hearing scheduled for March 26, 2019.
On March 26, 2019, a hearing was held on the bill. There was no action taken on the bill at the hearing.
On May 10, 2019, the Senate amended S.B. 68, a companion bill, to remove the expanded definition of child pornography. This bill eventually passed both the Senate and the Assembly and was signed by Governor Tony Evers on July 10, 2019.