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WI: Sex offenders have 1st Amendment right to photograph children

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.

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, ____ ____ was on probation in February 2011, when his agent searched his apartment and found a camera and cellphone. On them, authorities found photos ____ 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. Full Article

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  1. Q

    This is HUGE coming from the judges in the case, and should be widened to include other areas of the law that violate constitutional guarantees of people forced to register.

    “laws can’t ban protected speech just because it might lead to crime”

    The states “argument shouldn’t even be called an argument, because it was plain old rationalization. Some people may cal their rationalization an “interpretation” of law, but it was just rationalization.

    Congratulations Mr Christopher J. Oatman; you have just struck a major blow for freedom, the constitution and bill of rights and delivered a blow to tyranny, oppression and ignorance.

  2. ab

    Love how the title gives the completely “accurate” impression that all sex offenses and thus offenders involved children. I think the piece should clarify that every citizen has a 1st amendment right to photograph or record videos of things done by anyone in public. Also its laughable that the article had the no include non-pornographic images bit instead of just listing what the images showed which happens later on.

    All around great news for free speech and common sense.

  3. Robert Curtis

    The twisted minds of the public may just read the title and assume nude photos of any kind are included. Yet when enforcing the child picture restriction any child in any situation ie. a child that was in the background of a family picture taken in a park is material enough to arrest a registrant. Well this one is a win for reason and sanity.

  4. td777

    mixed feelings here…I’m in complete agreement that he has that right and should not have been arrested. It is not a crime and he should not be arrested for it.

    At the same time, can anyone not see that it is pretty creepy for him to be taking photos of children?

    • Eric Knight

      There are harassment laws that, in certain circumstances, may overrule even this decision, but I do see your point for just pictures in general. This is probably something that the legislature will probably try to create a more inclusive law that doesn’t just include registrants, but photographs of individuals in general.

    • td777

      For all who gave thumbs down on my comments here…maybe you should be asking yourself why you don’t find this creepy. It’s stuff like this that politicians can point to and say “see, we told parents sex offenders need to be controlled.”

      If you truly want reform, you have to start by not being the creepy lurking pervert the enemy claims you to be.

      • NPS

        Well I did give a thumbs up, but I guess there were far more negatives. Agreed it’s pretty creepy to take random photos of any person (be it child or adult) without his/her permission or knowledge.

        • ab

          I neither gave td777 a thumb up or thumb down. What everyone is missing is the idea of apparent illicit intent when someone takes photos or videos of others without their knowledge/consent. The assumption that secretly filming, photographing, or recording audio must be for nefarious/creepy reasons is an irrational starting point.

          Imagine a government agency investigating something they believe to be criminal and the only way to prove what’s going on is by having someone undercover secretly record video, audio, and/or take photos. Using this approach most people have no qualms about getting the evidence to catch the bad guys. Despite that if a common citizen did the same thing for some other reason all the sudden something questionable might be going on.

          Absolutely people can and do watch, record, film, and photograph others with less than noble intentions, but not all the time. Everyone needs to remember something is only good or bad because rightly or wrongly it is believed/proven to be. Nobody is perfect and to push for real reform means not only showing the truth, but making sure the truth is understood. Though to know what is truly right or wrong that requires continually questioning convention and confirming common facts/opinions are actually valid. Scientific researchers do this more often than most would believe. Not because they necessarily don’t believe the current hypothesis, but instead to reconfirm their base understanding and approach remains intact under more advanced scrutiny at deeper levels that require solid foundations. If things suddenly unravel all the advanced stuff gets fact checked in reserve going all the way to the surface facts if needed. Then in order to convince others that more research is needed scientific researchers release confirmation that the basic knowledge is true despite how obvious it might be.

          Showing the creepy lurking pervert label doesn’t apply is just part of the solution. Perversion, creepiness, and disturbing things are rooted in mystery. People shy away from what they do not grasp and the more foreign/extremely outside the norm something appears to be the greater resistance there will be in attempting to understand it; let alone change how it is perceived on larger scales.

        • NPS

          I especially don’t like it when it’s a government agency taking random photos.

        • td777

          ab stated “The assumption that secretly filming, photographing, or recording audio must be for nefarious/creepy reasons is an irrational starting point.”

          I couldn’t disagree more. Even if this man wasn’t already registered as a sex offender, I would consider it creepy. What purpose did he have for photographing the children? I didn’t see anything in the article stating he was using the photos for a reason that wasn’t sexually gratifying. Again, it had nothing to do with him being registered, as a father, I find that behavior creepy.

        • David

          Well, I find your perspective a bit creepy if, for no other reason (and there are plenty) than all motivations for being a photographer are limited by YOUR imagination.

        • td777

          Why is my perspective creepy? Because I find it creepy that this guy is taking photos of children not his own, with no apparent reason? He’s not a professional photographer. What reason does he have to take photos of these children?

          Here’s what I find even more creepy than this guy taking photos of children which seem apparently for his own disgusting gratification…the fact that every time I post on this site saying we should avoid anything that makes us appear to be the creepy, lurking perverts politicians make us out to be, I get a lot of thumbs down. Apparently, there are many of you out there who think we should embrace that stereotype. You do know that the detractors read this site, don’t you? That means they see how many of you react so negatively when someone condemns when registered citizens are acting creepy.

    • David

      The courts have ruled always that your, or anyone’s, right to photograph in public space is absolute and cannot be denied. There is a movement afoot, as indicative of your comment, that this needs to be revisited, especially when the subjects are children, and informed by a recently-emerged sensibility that such photography is motivated by “creepiness”.

      You should know that some of the greatest photographic works of the 20th Century are of unknown and unrelated subjects whose images were captured within public spaces by photographers who would become renowned for their formidable talents. Many of those subjects were children.

      If limitations on photography were to be imposed in the United States, one of the very few places which still enjoy such unfettered rights of photography, then we will be killing the possibility of such future works.

      Before we congratulate society on its new-found mission to stamp out “creepiness” we should better ask ourselves what it is which we hope to accomplish and what might be the effects of such a campaign. We should also ask what actual threat is being posed by photographers and weigh the perceived consequences against facts as well as the further erosion of our already dwindling rights.

      That is why I am giving your comment a “thumbs-down”. Because it is an appeal to the neo-puritanical impulse of assuming the worst of people and its ignominious campaign to extirpate all spontaneity from human interaction and to cast all non-conforming perceptions and motivations in a suspicious light.

      That emerging zeitgeist, as reflected in your concerns, is what I find most “creepy”.

      • td777

        Then you did not bother reading the entire post in the first place. I said from the start that I do believe he has this right and it should not be illegal. As to if he did it for artistic reasons or for sick gratification, we don’t know the answer to that unfortunately. I again point out that there is no indication he is a professional photographer or even aspires to be one. If, like in California, registrants on parole are not allowed to have photos of children not their own as part of his parole conditions, then he blatantly and intentionally violated his probation conditions. Yet, I agree, he did nothing that should be illegal.

        If you would continue to read my comments, you would see that I am against ANYTHING that can be construed as creepy by the public because that further propagates the myth of the creepy, lurking predator. Yes, people like this guy have the right to be creepy as long as they do nothing illegal, but it makes the rest of us look bad.

        If you truly want to change public perception, then don’t fit into the public perception. The registered citizens here need to use some wisdom when clicking thumbs up or down on a post, and it seems too often they don’t.

  5. Timmr

    If a non registered citizen (currently not on parole) can take pictures of children and not get 12 years in prison, then a registered citizen (currently not on parole) can take the same type of pictures and not get 12 years in prison. Isn’t that equality before the law?
    Everyone, it is safe to say, has feelings of creepiness towards one type of person or another at some time or another. I know I do. Can’t help it if you are human. The problem arises when the imagination is used to determine another person’s guilt or innocence simply based on what is called intuition; then the word for it is prejudice.
    As a registered citizens have you not felt it? People are viewing your even move and every intention through the lens of the “sex offender” myth, and not only that, using their preconceived ideas to create laws that limit our freedom. Why would you adopt the prejudices of our oppressors?

    • td777

      well said

    • Kevin

      I am a registrant from WI and I was always under the impression that the photography law was to keep registrants from activities that might lead to re-offending. I think my PO told me that once…

      • Timmr

        Well, 93% of sex offenses are perpetrated by a non-registrant. If photographing children in a legal manner leads to sexual abuse,then the law should apply to the general public, to prevent that from happening.

        19 out of 20 registrants DO NOT re-offend according to an FBI report. I am not convinced that this law will prevent that 1 from offending, but it does say that the 19 can not be trusted to engage in acts legal to the general population. Freedom can not exist if there is no trust.

        Probation and parole have restrictions that are, or should be, tailored to each individual offender to make an impression, and to punish, so that we will remember the costs of our actions. This has been the method for centuries, since before these sex offender laws came about and changed the narrative. Now the government feels it needs to hold your hand for the rest of your life or until your registration ends, which for many it never ends. Prohibitions against taking photos of children I can see as part of that narrowly tailored restriction, during your punishment/rehabilitation phase.

        With freedom comes responsibility, and no one can determine but you or me what we need to do to not break the law or harm another. Nanny government does not know you or me. Legislatures do not read our court files, psychological reports, nor have they talked to our families, friends and acquaintances, before they make laws that affect us. They take the most aberrant and abhorrent cases and broad brush that onto all.

        With freedom comes trust, and no one can determine but you or me what we need to do to not break the law or harm another. That ability to trust to me is what one has to accept if one believes everyone has inalienable rights, endowed upon them but what I am liberally calling the Creator.

        This trend towards absolute safety is endangering our freedoms, it is a mistrust not justified by the low re-offense rate of registered citizens.
        Thank you for your comment. Thank you for letting me speak also.

        • Kevin

          I agree with you 100%. I’m just trying to inform you of the legislature’s thought process behind the enactment of such a law.

        • Timmr

          I see…and a very rudimentary thought process that is.

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