June 23, 2009 – Stealing another’s identity for the purpose of harming that person’s reputation is not constitutionally protected speech, even if the victim is a public official, the Wisconsin Supreme Court held on June 23.

In State v. Baron, 2009 WI 58, the court considered a First Amendment challenge to Wis. Stat. § 943.201 (2) (c) by Christopher Baron who sent defamatory material from his boss’ email account so that the recipient would believe it came from the victim.

Baron worked as an emergency medical technician in the city of Jefferson. He found messages in the email account of Mark Fisher, the director of Jefferson’s Emergency Medical Services, suggesting Fisher was having an extramarital affair. Baron compiled the various  emails into one message and sent it to people in the community with a subject line such as, “What’s Mark been up to.”

The day after Baron sent out the emails, Fisher committed suicide.

Section 943.201 (2) (c) prohibits the intentional use and distribution of any personal identifying information of an individual while posing as that individual to harm the reputation of the individual.

Conduct or speech?

At the outset, the court considered whether the statute merely regulates conduct or if it also concerns speech, necessitating a First Amendment analysis.

The state urged the court to view section 943.201 the same as it interpreted section 948.07, the child enticement statute, in State v. Robins, 2002 WI 65. The First Amendment did not shield the Internet conversations in which Robins sought to entice a minor to meet him in a motel room because they were “circumstantial evidence of his intent to entice a child,” rather than the protected expression of ideas.

But the justices concluded that under the facts of this case, section 943.201 (2) (c) reaches beyond just the use and distribution of another’s personal information to penalize the specific content of the emails.

“Unlike in Robins, where speech was used to show the defendant’s intent to entice a child, speech in this case is not used to show the defendant’s intent to use another individual’s personal identifying information,” the court reasoned. “Absent the e-mails, i.e., speech, which were used with the intent to harm Fisher’s reputation, Baron has not committed an element of the crime as alleged.”

A content neutral regulation?

Once the court concluded that the statute regulates speech, the court explained it would apply strict or intermediate scrutiny depending upon the scope of expression targeted by the statute.

Reviewing a series of First Amendment cases for guidance, the court quoted Boos v. Barry, 485 U.S. 312 (1988), to find that “regulations are content neutral when they ‘are justified without reference to the content of the regulated speech.’”

In this case, the court concluded that this statute only prohibits Baron’s conduct if his speech was intended to harm Fisher’s reputation.

“There is no identity theft in this case unless the trier of fact determines that Baron used Fisher’s personal identifying information with the intent to harm Fisher’s reputation,” the court found.

Accordingly, the court applied strict scrutiny, which obligated the state to show that the statute is narrowly drawn to achieve a compelling interest.

Strict scrutiny analysis

Baron conceded that the state has a compelling interest in preventing identity theft, the court noted. But Baron argued that the statute was not narrowly tailored because it eliminated his First Amendment right to defame a public official with true information.

The court agreed with the state that the statute is narrowly drawn because it only applies when the defendant intentionally uses an individual’s personal information to harm that individual’s reputation.

Further, the court remarked that the statute only applies under certain circumstances. “The statute does not prevent Baron from revealing the reputation-harming information so long as the method chosen does not entail Baron pretending to be Fisher,” the court wrote.

Likewise, the court rejected suggestions that the statute chills Baron’s free speech rights because “he could have intended to harm Fisher’s reputation without pretending to be Fisher.”

Lastly, the court said they could find on better way to draft the statute and still achieve the compelling government interest. The court rebuffed Baron’s argument that under New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and Bartnicki v. Vopper, 532 U.S. 514 (2001), he should be permitted to harm a public official’s reputation with true information.

“Baron is, in effect, arguing that he has an unlimited right to defame a public official by utilizing any method he chooses so long as it is not done with actual malice,” the court said.

The court said that under the statute, truthfulness and actual malice are irrelevant given the statutory focus on the inappropriate use of another’s identity and the intent to harm that person’s reputation.

Additionally, the court pointed out that the right to defame a public official – and the First Amendment generally – has limits. “So long as Wis. Stat. Section 943.201 (2) (c) survives the requisite level of scrutiny, it is perfectly valid and no precedent exists to the contrary,” the court concluded.

The court said that Baron is not assisted by Bartnicki in which a radio host aired an unfavorable audio clip that he obtained from a third party who acquired it illegally. The U.S. Supreme Court upheld the radio host’s right to publish the information, but stopped short of extending First Amendment protection to those who illegally obtain the information, the justices noted.

Concurrences

In a concurring opinion, Justices Ann Walsh Bradley said that the court incorrectly applied Robins to find that section 943.201 (2) (c) regulates speech as well as conduct.

Bradley praised the court of appeals for reading the statute as a whole when it considered the   purposeful harm Baron did to Fisher’s reputation. If these elements of an offense that potentially implicate the First Amendment are not read in context, Bradley warned of absurd results. For example, Bradley said that the attempt to influence the official conduct of an officer handling a legal matter would be protected free speech if read separately from the other elements of bribery.

“Similarly, the identity theft statute requires the State to prove that the defendant was motivated by a purpose which, if not accompanied by the theft off the individual’s identity, would be protected under the First Amendment,” Bradley wrote.

Justice Prosser, writing separately in concurrence, said that the statute prohibits conduct, noting that it is found under the “misappropriation” subchapter of “Crimes Against Property.”

“In an information age, the legislature is concerned about the unauthorized use, especially the misappropriation, of an individual’s personal identifying information,” Prosser wrote. In this case, Baron misappropriated Fisher’s email account password, Fisher’s emails, and Fisher’s name with intent to harm Fisher’s reputation.

“‘A good name is rather to be chosen than great riches,’” Prosser wrote, quoting Proverbs 22:1. “This is the wisdom of the ages. Misappropriating a person’s name is taking that person’s most valuable possession. The legislature understood that this conduct is a grave offense and should be punished accordingly.”