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Court Rules that Wisconsin Identity Theft Law Does Not Violate the First Amendment
MADISON - The Wisconsin Supreme Court issued a decision today affirming a decision of the Court of Appeals that had reversed a ruling by the Jefferson County Circuit Court that dismissed an identity theft charge against a former City of Jefferson EMS technician. The court's ruling allows the Jefferson County District Attorney to proceed with identity theft charges against Christopher Baron.
According to the criminal complaint, Christopher Baron hacked into the work computer of his boss, Emergency Medical Services Director Mark Fisher, and sent several e-mails that he found in Mr. Fisher's e-mail account to about ten people. The forwarded e-mails appeared to have come from Mr. Fisher and suggested that Mr. Fisher was using an apartment owned by the EMS Department to conduct an extramarital affair. The day after Baron sent those e-mails, Mr. Fisher committed suicide.
Wisconsin law criminalizes the unauthorized use of an individual's personal identifying information or documents to obtain credit, money, goods, services, employment, or any other thing of value or benefit; to avoid civil or criminal process or penalty; or to harm the reputation, property, person, or estate of the individual whose identity has been used. Baron was charged with six criminal counts, including a charge of identity theft that alleges that Baron used Mr. Fisher's identity without Mr. Fisher's consent with the intent to harm Mr. Fisher's reputation. Baron moved to dismiss that charge, arguing that he had a First Amendment right to disseminate truthful information about a public official, even if his intent was to harm that official's reputation. The trial court agreed with Baron's argument and dismissed the identity theft charge. The Court of Appeals reversed that ruling, and the Supreme Court agreed to review the case.
The Supreme Court affirmed the Court of Appeals' holding that the identity theft statute was constitutional. The Court held that while the statute, as applied to Baron's conduct, constituted a content-based regulation of his speech, the statute was constitutional because it was narrowly tailored to promote the State's compelling interest in preventing identity theft. The court noted that the statute did not chill Baron's right to free speech because he could have disseminated the information about Fisher without pretending to be Fisher. The statute does not punish Baron for criticizing a public official, the court held, but punishes him "for intentionally using an individual's person identifying information with the intent to harm the individual's reputation."
Attorney General J.B. Van Hollen, whose office handled the appeal, praised the Supreme Court's decision. "Citizens have a fundamental constitutional right to criticize public officials, so long as they do not disseminate information they know to be false or act with reckless disregard to the truth," Van Hollen said when the state filed its brief last September. "There is no constitutional right, however, to damage someone's reputation by assuming that person's identity without their consent. Wisconsin's laws protect all individuals against identity theft, not by limiting expression, but by prohibiting conduct."
A copy of today's decision can be accessed at:
This is a pretrial appeal. Baron enjoys a presumption of innocence, and the State will be required to prove his guilt beyond a reasonable doubt at trial.
Jefferson County District Attorney Susan Happ is the prosecutor handling the case. The State of Wisconsin was represented in the Supreme Court by Assistant Attorney General Jeffrey Kassel.