Aug. 30, 2018 – Norris Culver admitted he was angry when he posted nude photos of his ex-girlfriend online without her consent, a violation of the state’s revenge porn statute. Recently, a state appeals court rejected his argument that the statute is unconstitutional.

Culver pled guilty to Wis. Stat. section 942.09(3m)(a)2, which says an individual commits a misdemeanor (Class A) if they post or publish “a depiction of a person that he or she knows is a private representation” without the person’s consent. He also pled guilty to possessing a firearm as a felon. Both crimes were repeater offenses.

After the judge imposed a four-year prison sentence, with two years of extended supervision, Culver sought postconviction relief in the form of a facial constitutional challenge. He said the revenge porn statute is overbroad, vague, and violates the right to free speech and the Commerce Clause, which relates to interstate commerce.

He said the felon-in-possession statute violates the Equal Protection Clause because the crime that made him a felon (fourth offense OWI) was nonviolent, but the statute does not distinguish between nonviolent and violent felons: it applies to all felons.

In State v. Culver, 2016AP2160-CR (Aug. 29, 2018), a three-judge panel for the District II Court of Appeals rejected all constitutional challenges and affirmed.

Post or Publish Statute

Culver argued that the post or publish statute is facially unconstitutional because it is overbroad, which requires a challenger to show “a substantial number of [the statute’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Culver said the statute overly infringes on protected free speech rights, well beyond the legitimate purpose of protecting individual privacy rights.

The appeals court did not agree. Review of the statute, Chief Judge Lisa Neubauer wrote, “reveals that it has a specific, limited, and reasonable reach, and it does not infringe on protected expression in a substantial number of its applications. …”

For example, the statute only forbids “private representations,” which are nude or partially nude depictions of a person or persons engaged in sexually explicit conduct. Judge Neubauer also noted that the post or publish statute has an intent requirement.

“The depicted person must have intended the depiction to be captured, viewed, or possessed only by the specific person,” Chief Judge Neubauer wrote.

In other words, the person depicted did not intend for the pictures to be made public. “If the depicted person did not intend the image to be private in this way, the image is beyond the reach of the statute,” Chief Judge Neubauer explained.

In addition, the statute requires that the poster knows the images are private. “The statute does not apply to an image that, while in fact constituting a ‘private representation,’ was published by a person who was unaware that it was private.”

The panel rejected Culver’s “overbroad” claim because it applies to specific images – nude photos that are intended to be private and are published without consent.

“With its focused scope, we see no showing that the statute prohibits or even chills a substantial amount of free expression,” Chief Judge Neubauer wrote for the panel.

The panel also rejected Culver’s argument that the post or publish statute is “void for vagueness” because it does not sufficiently warn people what is criminal behavior. For instance, it excludes private posts that are “newsworthy or of public importance” and does not address a situation in which someone consents but revokes consent.

“We are unpersuaded. It is clear that there is no violation when the publisher has consent at the time of the publishing,” wrote Chief Judge Neubauer, noting that whether a person must remove a post if consent is withdrawn is not an issue presented.

The panel also rejected Culver’s argument that the statute is void for vagueness because it does not say if Wisconsin jurisdiction depends on citizenship or location of the depicted person, the place where the image is disclosed, or the place that it is viewed.

Finally, the panel also rejected Culver’s Commerce Clause argument that the statute unjustifiably burdens interstate commerce by regulating conduct outside Wisconsin. The panel discharged the claim because Culver had no standing. He lives in Wisconsin.

Felon-in-Possession

Culver argued that the felon in possession of a firearm statute is unconstitutional as-applied to him because it does not distinguish between non-violent and violent felons.

The panel said that issue is settled and his case is not distinguishable. “We have twice upheld the felon-in-possession statute against constitutional challenges,” wrote Chief Judge Neubauer, noting one case in which the same argument was made and rejected.