Court: Sex Offenders Allowed To Take Photographs Of Children

[Purveyor]

Source: WSAU-Wheeler News

Wednesday, September 23, 2015 8:14 a.m. CDT

WAUSAU, Wis (WSAU-Wheeler News) An appeals court says the state violates the free-speech rights of sex offenders, by making it a crime for them to take pictures of kids in public places. The Third District Appellate Court in Wausau has thrown out a conviction against 44-year-old Christopher Oatman of Green Bay. He was sentenced to 12 years in prison on eight counts of intentionally photographing children without their parents' consent -- a law which Oatman challenged.

The three-judge appellate court unanimously ruled that the law is unconstitutional, saying that even sex offenders have a right to take non-obscene photos of children in public places. They say the law does not fulfill the state's interest in protecting the public from sex offenders.

Oatman was on probation for a child sexual assault case almost 15 years ago, when an agent searched his apartment and found a camera and cell-phone which had photos of fully-clothed youngsters playing.


Read more: http://wsau.com/news/articles/2015/sep/23/court-sex-offenders-allowed-to-take-photographs-of-children/

[KarenS]

1. wtf?

Personally, I don't care about the "free-speech rights" of child sex offenders.

These judges need to consult some therapists/psychologists on the issue.

[knightmaar]

2. But he was on *probation*.

Once his full sentence is up, sure, you could argue about his rights.

But while he's on probation, the people in charge of monitoring him are allowed to set conditions on his behaviour.

Weird.

[cstanleytech]

10. You would think so but even someone on probation has rights and in this case the court felt that

the law went to far.

[SoapBox]

3. What the hell?

[7962]

4. How is taking a picture "speech"? He's NOT SPEAKING OR WRITING. nt

[yellowcanine]

5. The same way "Corporations are people?"

When language gets twisted to say anything you want to say anything is possible.

[Doctor_J]

6. More like 4th amendment - secure in your papers etc.

I still don't like it though

[cstanleytech]

11. Same way a reporter or anyone for that matter can photograph the police arresting someone.

Unless of course you and others here are advocating for not allowing people to photograph the police when they are making an arrest anymore.

[7962]

12. if they were criminals, yes, i'd oppose it.

If this guy wasnt a molester i wouldnt have a problem with it

[cstanleytech]

13. I have always found it amazing how some almost are willing to blindly embrace

laws that run roughshod over the constitution if the law is one that hides behind protecting the children and or punishing the ones that harmed them.

[7962]

14. No different than other laws; felons cant own guns, others can.

That hasnt been found unconstituional.
Becoming a criminal changes things. Dont be a pervert and you can take all the pictures you want

[NutmegYankee]

18. The courts have been extremely defensive of first amendment rights for everyone.

Now, a court could order a man to lose the right to free speech, but it has to be part of the sentence iaw the fifth amendment. In this case, the state law was unconstitutional.

[NutmegYankee]

17. It is considered the same as painting a picture.

There is often a lot of art in photography.

[former9thward]

22. The courts have always covered images under 'free speech'.

Just like art and pictures.

[4Q2u2]

7. My First Amendment

might wind up on his nose. I will tell the judges that my fists are the way I talk loudly to people with ill intension to my children.

[gregcrawford]

8. That judge should have his gavel broken...

... over his head.

[truthisfreedom]

9. Seems like a lot of wasted energy

to get riled up about this when there is so much evil in the world.

[PatrynXX]

15. Course if they tried this in Iowa

wonder what would happen. I see it as double jeopardy as far as living too close to schools but this one is just dumb... and I know a few where this is a zero tolerance thing in Iowa so Daddy and his daughter live too close to a school and naturally they have to move. He didn't do anything with kids he raped his wife. Therefore the law in Iowa punishes the Children more than the adults. It's a major flaw that nobody will fix.

[elehhhhna]

26. Raped his wife but otherwise a great dad? WHAT?

[magical thyme]

16. I don't understand how taking photos = speech.

It simply does not compute. They are 2 very different activities.

[NutmegYankee]

19. Taking photos is creating art.

That's why it's considered speech.

[magical thyme]

20. I'd wager that 99.999% of taking photos is making memories

and has nothing to do with art whatsoever.

And when it is "making art" the subject should have the choice of not being part of somebody's art project.

[NutmegYankee]

21. It's no different than a painter painting a city street.

There is no privacy in a public place and photographing of anything in public view is Constitutionally protected.

[christx30]

25. But in a painting of a city street,

no one can point to an individual and say "Hey! That's Mike!"
And it's probably not done by a pedophile gathering masturbation material.

[7962]

28. Thank you.

[NutmegYankee]

30. The problem is if you can restrict photography for one, you can do it for all.

This is the problem people have with civil liberties all the time. They like when they get them but others don't. I don't want to lose the right to photograph.

[christx30]

32. Like someone else said,

Last edited Thu Sep 24, 2015, 08:47 AM - Edit history (1)

once you have been convicted of certain crimes, you can restrict certain civil liberties. Any felony and you lose your second amendment rights for life. You can't even touch a gun without going to prison. This is to stop you from reoffending and harming people. Maybe other rights should be like that too.
This guy isn't creating art. He's not trying to effect positive political change. He's not trying to help anyone. He's on a path that ends in his abusing children again. He is most definately not rehabilitated. He could get pics of kids with a 15 second Google search. He doesn't want to do that. He wants to get the pictures himself. Like the T-Rex in Jurassic park, he doesn't want to be fed. He wants to hunt.

[NutmegYankee]

36. You don't neccessarily lose your second amendment right for life with a felony.

Many states have a process to restore rights after prison is served such as expungement. Once the conviction is expunged, it no longer exists to prohibit ownership.

As for the first amendment rights, some have been prohibited by courts from being removed via civiliter mortuus, including freedom of speech and religion.

[S_B_Jackson]

33. Sure they can...

or have you never studied classic paintings such as Rembrandt's The Night Watch


I hate it, but the panel was correct in their ruling...if you want them to not be able to photograph, then change the laws so that they are kept in jail for 100% of their sentenced time.

[christx30]

34. Not all paintings and artists are created equal

[secondwind]

23. what if parents don't want pictures of their children to be in the hands of strangers?

[cstanleytech]

24. What they want and what they legally can get are two different things and here

In the US they would be SOL usually.

[happyslug]

27. Here is the actual opinion

http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=149248

In the opinion, the photos involved were as follows:

According to the criminal complaint, Oatman photographed or video recorded multiple children playing outside his home. The complaint does not allege that any of sixteen counts involved obscenity, child pornography, or nudity. However, most of the images tended to focus on the buttocks or crotch area of the Children.

The court describe the intention of the State:

The State undeniably has a compelling interest in protecting children. However, WIS. STAT. § 948.14 does little, if anything, to further that interest. Indeed, it appears to carry the potential of more harm than good. The statute requires all registered sex offenders to seek and obtain parental permission prior to photographing a child.8 But how does one subject to the statute know the identity of a child’s parents or whether those parents are available to give consent? The sex offender’s only option to obtain consent from an apparently unsupervised child is to approach the child and then inquire, “Are your parents nearby?” Thus, the statute may encourage sex offenders to make close contact with children. An individual with nefarious intent might even use the statute as a ruse to approach a child or determine whether the child is, in fact, vulnerable. If such predators’ conduct was ultimately questioned, they could simply explain they were attempting to follow the law.

Further, children are not harmed by nonobscene, nonpornographic photographs taken in public places. In Ashcroft v. Free Speech Coalition, 535 U.S. 234, 240, 256 (2002), the Court concluded the Child Pornography Prevention Act (CPPA) was unconstitutionally overbroad insofar as it prohibited the possession or distribution of images that were neither obscene under the definition of Miller v. California, 413 U.S. 15 (1973), nor constituted child pornography as defined in New York v. Ferber, 458 U.S. 747 (1982). The CPPA extended the federal prohibition against child pornography to sexually explicit images that appeared to depict minors but were produced without using any real children. Ashcroft, 535 U.S. at 239.

The Ashcroft decision reasoned that the images did not harm any children in the production process, id. at 241, and differentiated such images from child pornography, where the recorded acts are intrinsically related to victims of actual sexual abuse, id. at 249-50. Rather, the Court observed, “the CPPA prohibits speech that records no crime and creates no victims by its production.” Id. at 250. The Court also rejected the argument that the images might encourage child abuse, holding, “The prospect of crime, however, by itself does not justify laws suppressing protected speech.” Id. at 245. It explained, “While the Government asserts that the images can lead to actual instances of child abuse, … the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts.” Id. at 250. The Court again “reaffirmed that where the speech is neither obscene nor the product of sexual abuse, it does not fall outside the
protection of the First Amendment.” Id. at 251 (citing Ferber, 458 U.S. at 764-65).

The prohibited images addressed in Ashcroft—virtual or simulated images of child pornography—were far more objectionable or potentially harmful than the images prohibited by WIS. STAT. § 948.14. Thus, the foundation of that case is no less relevant here, and bears repeating:

The evil in question depends upon the actor’s unlawful conduct, conduct defined as criminal quite apart from any link to the speech in question. This establishes that the speech ban is not narrowly drawn. The objective is to prohibit illegal conduct, but this restriction goes well beyond that interest by restricting the speech available to law-abiding adults....

The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The government “cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” Stanley v. Georgia, 394 U.S. 557, 566 (1969). First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.

To preserve these freedoms, and to protect speech for its own sake, the Court’s First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct.

Id. at 252-53. Accordingly, while we may dislike the fact that someone might have objectionable thoughts when viewing ordinary images of children, the State is constitutionally prohibited from precluding citizens from creating such images.


In addition to failing to protect any compelling State interest, WIS. STAT. § 948.14 is not narrowly tailored. Its prohibitions extend to all images of children, otherwise regardless of content. Indeed, it is difficult to imagine a content-based regulation that would be more broadly tailored. Any argument that the statute is not overbroad because it applies only to registered sex offenders would be a nonstarter.10 Those citizens have the same First Amendment rights as any other. Doe v. Harris, 772 F.3d 563, 570-72 (9th Cir. 2014) (Registered sex offenders who have completed their terms of probation and parole enjoy the “full protection of the First Amendment.”).

The State’s only argument against overbreadth is its assertion that WIS. STAT. § 948.14 does not prohibit a substantial amount of constitutionally protected communicative conduct. Because the statute applies to capture of nearly all images of children in public places, we unreservedly reject that assertion. Even accepting, arguendo, the State’s argument that photographs captured exclusively for personal viewing are not constitutionally protected, all other photographs subject to the statute would have First Amendment protection. Sharing images is customarily the very reason for photography. While the statute’s application to registered sex offenders is so vast as to defy full description, it would impermissibly preclude, for example, newspaper photojournalists from capturing images of children meeting with politicians, professional photographers from taking school yearbook pictures, and proud parents from photographing their child with classmates on the first day of kindergarten for sharing with grandparents. Even more so than the statute reviewed in Stevenson, WIS. STAT. § 948.14 “indiscriminately casts a wide net over expressive conduct protected by the First Amendment ….” See Stevenson, 236 Wis. 2d 86, ¶22. Thus, the statute’s infringement of protected expression is real and substantial. See Janssen, 219 Wis. 2d at 373.

In simple terms, just taking photos by themselves can NOT be made illegal.

[left-of-center2012]

29. Maybe yes - Maybe no

I have heard people have the right to photograph people in public places.
But, a pedophile on probation should have that listed as a "no-no" as part of his probation.

[Judi Lynn]

31. People should be able to identify them and take their children elsewhere

if they see them lurking around their own vicinity.

[center]











Christopher Oatman Green Bay[center]

[Nye Bevan]

35. I thought pretty much any conditions could be imposed for people on probation.

You don't like not being allowed to take photos of kids? Fine, you can go back to prison. I guess I was wrong.