State v. Brian D. Robins, 2002 WI 65, on bypass
For Robins: Craig W. Albee
Issue: Whether prosecution for child enticement initiated over the Internet violates the first amendment.
Holding: The first amendment doesn’t extend to speech that is incidental to or part of the criminal course of conduct.
¶43. The child enticement statute regulates conduct, not speech. The statute protects against the social evil and grave threat presented by those who lure or attempt to lure children into secluded places, away from the protection of the general public, for illicit sexual or other improper purposes. Derango, 2000 WI 89, ¶¶17-19. That an act of child enticement is initiated or carried out in part by means of language does not make the child enticement statute susceptible of First Amendment scrutiny.
¶44. Robins’ internet conversations and e-mails with “Benjm13” do not by themselves constitute the crime of child enticement. Rather, Robins’ internet conversation and e-mails are circumstantial evidence of his intent to entice a child, which, combined with his actions in furtherance of that intent, constitute probable cause for the crime of attempted child enticement. That some of the proof in this case consists of internet “speech” does not mean that this prosecution, or another like it, implicates First Amendment rights. Simply put, the First Amendment does not protect child enticements, whether initiated over the internet or otherwise.
See also U.S. v. Hornaday, 11th Cir No. 03-13992, 12/13/04 (terming 1st amdendment challenge frivolous: “Speech attempting to arrange the sexual abuse of children is no more constitutionally protected than speech attempting to arrange any other type of crime.”
