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September 23, 2015

Wisconsin appeals court declares unconstitutional criminalization of sex offenders photographing kids in public

As reported in this local article, a "Wisconsin law prohibiting registered sex offenders from photographing children in public violates their right to free speech, the state Court of Appeals held Tuesday." Here is more about this notable ruling concerning a notable sex offender restriction:

The decision by the Wausau-based District 3 court reversed the conviction of a 44-year-old Green Bay man who had been sentenced to 12 years in prison for the non-pornographic photos. It also found the law unconstitutional on its face, not salvageable by a narrowed interpretation or severing part of the statute.

Because of a 2002 child sexual assault conviction, Christopher J. Oatman was on probation in February 2011, when his agent searched his apartment and found a camera and cellphone. On them, authorities found photos Oatman had taken the previous fall of children outside his residence doing things like riding skateboards, jumping rope and dropping stones in a soda bottle. None involved nudity or obscenity.

He was charged with 16 counts of intentionally photographing children without their parents' consent, and later pleaded no contest to eight so he could appeal on the constitutional issue. The judge sentenced Oatman last year to consecutive 18-month prison terms, the maximum, on each count.

In an opinion written by Reserve Judge Thomas Cane, and joined by judges Lisa Stark and Thomas Hruz, the court found that even sex offenders have free speech rights to take non-obscene, non-pornographic photographs of children in public places. Any law that aims to restrict speech based on its content must be narrowly drawn to protect a compelling state interest. The court found the law at issue failed both tests.

While protecting children is such an interest, the court said, the law doesn't accomplish that. In fact, it could actually encourage offenders to make personal contact with children, in order to ask who their parents are so the offender might ask permission to take the photos. "Further, children are not harmed by non-obscene, non-pornographic photographs taken in public places," the court said....

The court said it does not like the idea that some people might gain sexual gratification from ordinary photos of children, but that laws can't ban protected speech just because it might lead to crime. "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end," the decision reads, quoting a U.S. Supreme Court case. "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."

The full ruling in Wisconsin v. Oatman is available at this link, and the nature of the final ruling meant that the appeals court had no reason to consider or comment on the specific sentence that had been imposed on the defendant under this law. That said, I cannot help but wonder if the judges considering the appeal were influenced by the remarkable fact that the defendant had been sentence to more than a decade in prision(!) for simply taking pictures (presumably from inside his own home) of children playing outside in public.

September 23, 2015 at 10:43 AM | Permalink


I have a question.
Is there ANYTHING a sex offender CAN do without getting in trouble with the law??????
Just read an article on the WAR/Women Against Registry website, Florida hospitals now plan to ban sex offenders from visiting patients in hospitals. Why? Because some guy went into the hospital with a gun at 4a.m. and shot himself in front of patients and staff. Was he a sex offender? The article doesn't say. But now they will use that one incident as an excuse to once again punish sex offenders after they've served their time. I guess murders, bank robbers and thieves are all OK for hospital visits.
When will this witch hunt end???

Posted by: kat | Sep 23, 2015 11:19:18 AM


Sadly, never. The only thing that will change is the identity of the witches. Any excuse will serve a tyrant and so all the tyrant has to do is find one that the people will swallow in order to get them to abandon their liberty.

Posted by: Daniel | Sep 23, 2015 5:29:11 PM

@ Daniel

I disagree with you. Things are changing. You hear of courts declaring sex offender circumstances unconstitutional more now than in 2003 when the registry was given the green light. Keep and eye on the local and national news, this blog, and elsewhere on the net. People are recognizing the lie more and more each day.

@ kat

The article you read only concerns Halifax Health, not all hospitals in Florida. This will be challenged in court as it is a rights violation. You should not be able to stop someone from visiting a loved one or even a friend in the hospital. No matter if they are going to die or just plain sick, just because you are on the RSO list.

Posted by: Book38 | Sep 23, 2015 8:04:14 PM

Children's care is the responsibility of the parents. There is and always has been a tendency to do evil in the world. If an individual has committed a crime and an informed Jury has decided proper punishment for rehabilitation, then once a sentence has been served should be enough punishment/rehabilitation. These hand picked prosecution juries and their paranoid 150 year sentences (do they really think that the criminal will live that long?) is only showing that they are unqualified for jury duty. Commercial entities have used a lot of techniques to discourage people from doing their lawful duty to protect their fellow citizens from incompetent prosecutors and following common Law.

Posted by: LC in Texas | Sep 24, 2015 1:59:09 PM

I downloaded and read the decision. It sets out the parameters of the subject of recording public events.

I find it most useful for cases involving the recording of court proceedings and the recording of police activity.

Posted by: Supremacy Claus | Sep 24, 2015 6:02:16 PM

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