Video voyeurism law unconstitutional

From the Summer 2000 issue of The News Media & The Law, page 36.

The Wisconsin Supreme Court held in June that a state video voyeurism law is overbroad and unconstitutional, and refused to uphold any of its provisions.

The court, explaining that the law outlawed too much protected speech, threw out the conviction of a man who had surreptitiously videotaped his ex-girlfriend in her home.

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Scott Stevenson was arrested and charged with surreptitiously videotaping his ex-girlfriend through her bedroom window in 1997. He was convicted and sentenced to two years in prison on each of several charges of violating the state “video voyeurism” law plus nine months for resisting arrest, but the punishment was reduced to four years’ probation and one year in the county jail.

The primary charges were for twice making a “videotape . . . that depicts nudity without the knowledge or consent of the person who is depicted nude.”

Stevenson appealed, arguing that the law was unconstitutionally overbroad and therefore violated the First Amendment because it would criminalize many artistic, journalistic and other uses of images — even when paintings of individuals are videotaped long after the painting is made. If the law is overbroad on its face, he argued, it must be struck down even if his own actions would not be protected by the First Amendment.

Prosecutors countered that the law should be read to imply a requirement that the person videotaped be present when the taping is done, and have a reasonable expectation of privacy at the time. This reasonable understanding would take care of the artistic and journalistic uses of such images, according to prosecutors.

In June, the Wisconsin Supreme Court held that the law is overbroad and unconstitutional, and refused to uphold any of its provisions.

The high court noted that Stevenson’s action was reprehensible and that he acknowledged this. But the court agreed with Stevenson that the law improperly prohibits all visual expression of nudity without explicit consent, including political satire and newsworthy images.

The statute “does not limit its reach to original depictions of nudity but rather overreaches to all reproductions. It chills the ability to include copies of masterpieces like Michelangelo’s “David” in a book devoted to famous sculptures and also prevents the dissemination of materials that may portray nudity for health or educational purposes,” the court ruled.

The court declined the prosecution’s plea to adjust the law by excising the unconstitutional part, saying that it is up to the legislature to rewrite the law. Such an adjustment, the court added, would put the criminal justice system in danger of selective enforcement of a law that could target and discriminate against certain classes of persons.

Judge Jon Wilcox, dissenting, disagreed that the court could not cure any of the law’s problems. He said the legislature had clearly intended to prohibit Stevenson’s conduct and that the high court had misinterpreted the law.

Stevenson’s case was sent back to the circuit court for re-sentencing on the charge of obstructing an officer.