Monday, December 2, 2013
Wisconsin Student Speech Decision Reverses on First Amendment Grounds but Affirms Adjudication on Unlawful Computer Use
While the Wisconsin Court of Appeals reversed a student’s disorderly conduct juvenile adjudication on First Amendment grounds last week, the appellate court curiously affirmed the adjudication for violating a state unauthorized-use-of-a-computer statute for the same conduct. Those who follow the developing law of federal unauthorized use statutes will recognize the bedeviling issues that arise when defendants are prosecuted for protected First Amendment speech because of the method used to deliver that speech--a computer. The Wisconsin student, Kaleb K., was prosecuted under state disorderly conduct and unauthorized computer use statutes after posting a YouTube video about his Spanish teacher. At trial, the lower court rejected Kaleb's claim that “the content of his rap was protected by the First Amendment, which barred the State from prosecuting him for disorderly conduct.” The trial court’s findings focused on the rap’s vulgar language without addressing the student’s First Amendment defense. The lower court found the student delinquent for disorderly conduct for the video and for a violating a state law prohibiting the unlawful use of a computerized communication system. The unauthorized use law prohibits using computer communication to send a message to another person “with intent to frighten, intimidate, threaten or abuse … with the reasonable expectation that the person will receive the message and in that message uses any obscene, lewd or profane language or suggests any lewd or lascivious act.” The Wisconsin Court of Appeals affirmed Kaleb K.’s adjudication of guilt on the unlawful use of a computerized communication system under a state case holding that “nonspeech elements” of otherwise protected speech may be subject to prosecution. Given the Court of Appeals’ interesting split reasoning, this case may be headed to Wisconsin’s Supreme Court. The case is In re Kaleb K., No. 2013AP839, 2013 WL 6182562 (Wis. Ct. App. Nov. 27, 2013).