A ruling by the Wisconsin appellate court may have been the result of bad lawyering more so than successful appellate arguments.
In a unpublished decision issued Nov. 27 by the appellate court, State of Wisconsin v. Kaleb K., 2013 AP 839, the court found that a high school student’s sexually explicit rap video about his Spanish teacher deserved some First Amendment protection, but not enough to relieve him of the lower court finding of unlawful use of computerized communications and an adjudication of delinquency.
The appeals judge pointed out that the state during trial had been unprepared to argue the First Amendment issue as it related to disorderly conduct and Wis. Stat. 947.01(1), suggesting the state gave an inadequate and abbreviated argument describing why the video by student Kaleb K. should not be protected speech.
This was after the trial court judge had asked defense counsel to “explain to the state what categories of speech are not protected.”
The appellate court did not say outright that the state’s errors had caused part of the lower court decision to be reversed. However, the fact that the short appellate opinion and footnotes made numerous references to the state’s oversights, omissions, and careless procedure leaves open the question to what extent Kaleb K.’s YouTube video truly did deserve First Amendment protection, or was this just due to a bad day at the office by the state and the lower court?
The 15-year-old Stevens Point Area Senior High School student made a video and posted it on YouTube of himself rapping about his Spanish teacher, using “crude and vulgar sexual language about the teacher,” according to the appellate court in its brief.
While presiding over the case, Portage County Circuit Judge Thomas Flugaur was taken aback by the video. At different times during the course of the hearing, the judge in open court referenced his own personal observations about the video: “Frankly, it’s one of the worst things that I have ever seen, and I’ve seen a lot of bad things in juvenile court.”
Flugaur described the video as “one of the most obscene and hate-filled videos that I’ve ever seen. It’s shocking, hard to watch, really disgusting.”
“If this is going to be a test case, I think it’s a pretty poor one to take up to the supreme court,” he concluded, “if high school students are going to be allowed to make videos that are this abhorrent.”
This all took place in the trial court within the dynamic of the underlying legal arguments, which first focused on the disorderly conduct charge under Wis. Stat. 947.01.
The 14th Amendment to the U.S. Constitution as it relates to free speech helps to ensure that the state does not improperly censure or proscribe speech just because it contains objectionable content, the appellate court explained.
There is a strong compulsion to protect speech, said the court, and the state must show that Kaleb K.’s provocative YouTube video was in fact unprotected.
In Wisconsin, the Supreme Court case State v. Douglas D., 243 Wis. 2d 204 (2001) is instructive both about the charge of disorderly conduct and unlawful computer communication, said the court, beginning with the fact that the state has the burden to show speech is not protected.
The Douglas court noted that speech that falls under First Amendment protections may benefit from protection against disorderly conduct, unless the speech is “unprotected.” The court also described those categories of unprotected speech which are likely “to present a clear and present danger” of a potential harm that exceeds “public inconvenience, annoyance or unrest” and thus are unprotected: fighting words, speech intended to incite others into “imminent callous action”, obscenity, libel and defamation, and true threats.
Unfortunately, the trial court’s own paucity of words in its ruling further compounded the problem.
“Without explaining why speech was not afforded First Amendment protection,” according to the appellate court’s opinion, “the court concluded speech was not protected and Kaleb K. was guilty of disorderly conduct.”
On appeal, the appellate court indicated that the state had backed itself into a corner. The three issues of fighting words, obscenity and hate speech that the state had raised at trial, though briefly, were not raised on appeal and thus waived.
Instead, the state had argued on appeal that the Kaleb K. video was defamatory, and so should not be protected speech. Because that issue had not been raised in the trial court, the appeals court ruled, it was not proper for appeal.
So the state essentially had no recognizable appellate argument to support the disorderly conduct finding of delinquency. Consequently, the appellate court had little choice but to reverse the trial court’s finding of disorderly conduct under 947.01.
The state apparently was well-prepared, however, to address the second issue before the court: whether Kaleb K. had committed the Class B misdemeanor of unlawfully using a computerized communication by electronically posting the vitriolic video on YouTube, under Wis. Sect. 947.0125(2)(d).
Wis. Stat. 947.1235 states that whomever commits any of the following is guilty of a Class B misdemeanor: “with the intent to frighten, intimidate, threaten or abuse another person, send a message on an electronic mail or other computerized communication system with the reasonable expectation that the person will receive the message and in that message used any obscene, lewd or profane language or suggests any lewd or lascivious act.”
Also, the statute defines a “message” as “any transfer of signs, signals, writings, images, sounds, data or intelligence of any nature.”
Counsel for Kaleb K. argued that the same First Amendment protection that shielded him from guilt for disorderly conduct should provide a similar shield against charges of sending a message via computer transmission. Kaleb’s counsel urged the court to look at the definition of “message” narrowly. Posting a video on YouTube is not the same as sending a message to another person [in the singular].
The video, argued counsel for Kaleb K., was posted to be viewed by the general public. It’s only available for people who want to see it, counsel explained.
The appellate court dismissed that argument, however, ruling that the correct interpretation of the statute is not affected by the number of people.
Similarly, it found little sympathy for the Kaleb’s argument that posting a video on YouTube was not “actively” sending a message, but just making content available.
Again, the appellate court refused to read any limitation into how Wis. Stat. 947.0125(2)(d) requires a message to be sent to another, noting the counsel for Kaleb K. had failed to provide any legal authority for such an interpretation.
In a footnote at the end of the appellate opinion, the judge further chastised the state for yet another shortcoming: the actual brief forwarded to the appellate court.
“I note that the state’s brief was wrought with arguments and explanations that appear to have been copied and pasted into its brief without proper credit given to original sources,” the appeals judge wrote. ”
So the defendant only walked away with part of the relief he sought, which may have been obtained more by the shortcomings of the state’s case then the strength of his own.
Will the general public ever know if there was enough proof to show that Kaleb K.’s video really was defamatory? Unless the case goes to the Wisconsin Supreme Court, and that court exercises discretion allowing it to hear evidence of defamation, that question may never be answered.
This article was corrected Feb. 28, 2014 to reflect that Portage County Assistant District Attorney Veronica Isherwood represented the state in the Wisconsin Court of Appeals.