A Wisconsin court has struck down a state law that barred registered sex offenders from taking pictures of children in public, ruling that it could criminalize everything from journalists capturing images of kids to parents photographing their child with classmates.
The Wisconsin Court of Appeals, in holding the law unconstitutional in light of the First Amendment, erased a 12-year prison sentence for Christopher J. Oatman, a registered sex offender who was convicted of eight counts of photographing a minor without parental consent.
Mr. Oatman, 44, was on probation for a conviction of first-degree sexual assault of a child when authorities in Brown County, Wisc., found pictures of kids playing outside his home on his phone in 2011, according to court records and news reports. None of the photos were sexual or obscene.
Mr. Oatman, in his appeal, said the First Amendment protected the right to take nonpornographic photographs of children in public places. Lawyers for the state said pictures of children taken for sharing with others are protected but not those taken solely for personal use.
“The State undeniably has a compelling interest in protecting children,” wrote Judge Thomas Cane, who authored the Tuesday ruling for a unanimous three-judge panel. But the law, he said, “does little, if anything, to further that interest.”
The law permitted registered sex offenders to take pictures of children with the consent of the children’s parents. But what if the parents weren’t in the immediate vicinity? Judge Cane asked. How would the photographer know who they were?
“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?’” he wrote. “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.”
Judge Cane concluded,
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.
The Brown County District Attorney’s Office, which prosecuted the case, didn’t immediately respond to a request for a comment. A spokeswoman for Wisconsin Attorney General Brad Shimel said the ruling was under review. Andrew R. Hinkel, an assistant public defender who represented Mr. Oatman, declined to comment beyond the ruling.