from a judgment and an order of the circuit court for Calumet
County No. 2016CF162: JEFFREY S. FROEHLICH, Judge. Affirmed.
Neubauer, C.J., Reilly, P.J., and Gundrum, J.
James L. Jackson, Jr., challenges a provision of the
Wisconsin sex offender registry statute, Wis.Stat. §
301.45(2)(a)6m. (2017-18), as violating the First Amendment.
This provision requires registrants to disclose to the
Department of Corrections (DOC) e-mail addresses, Internet
user names, Internet profiles, and websites created or
maintained by the registrant. The circuit court found no
First Amendment violation. We agree and affirm.
Jackson was convicted of second-degree sexual assault of a
child in 1990 after he groomed and sexually assaulted his
employer's fourteen-year-old daughter. Jackson was
required to comply with the sex offender registry
requirements pursuant to Wis.Stat. § 301.45, which
provides, in pertinent part, that an individual subject to
the registry requirements must inform the DOC of
[t]he name or number of every electronic mail account the
person uses, the Internet address of every website the person
creates or maintains, every Internet user name the person
uses, and the name and Internet address of every public or
private Internet profile the person creates, uses, or
maintains. The department may not place the information
provided under this subdivision on any registry that the
public may view but shall maintain the information in its
records on the person. This subdivision applies only to an
account, website, Internet address, or Internet profile the
person creates, uses, or maintains for his or her personal,
family, or household use.
Sec. 301.45(2)(a)6m. If a registrant makes any changes to the
above, he or she must notify the DOC within ten days of the
change(s). Sec. 301.45(4). Failure to comply with these
requirements constitutes a felony. Sec. 301.45(6)(a)1.
In 2016, police were informed that Jackson was using his
housemate's computer "at all hours of the night
… trying to talk to young girls in the area over the
internet." An investigation revealed that Jackson had
created a Facebook profile in November 2015 using the name
"Lendord Jackson." Jackson had not informed the DOC
of the Facebook profile or the e-mail address associated with
Jackson was charged with and pled no contest to one count of
a sex offender registry violation as a repeater. Jackson
filed a postconviction motion arguing that Wis.Stat. §
301.45(2)(a)6m. violates the First Amendment as applied to
him and is facially overbroad. The circuit court found that
Jackson waived his as-applied challenge and denied the
facially overbroad challenge. Jackson appeals.
The First Amendment provides in pertinent part that
"Congress shall make no law … abridging the
freedom of speech." U.S. Const. amend. I; 44
Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 n.1
(1996). We review the constitutionality of a statute de novo.
State v. Robert T., 2008 WI.App. 22, ¶5, 307
Wis.2d 488, 746 N.W.2d 564.
Jackson argues that Wis.Stat. § 301.45(2)(a)6m. is
unconstitutional as applied to him as it deprives him of his
right to anonymous speech under the First Amendment and that
it is facially overbroad as it "infringes on far more
speech than can be justified and chills protected
speech." When evaluating a challenge to a sex offender
registry statute under the First Amendment, we first question
whether the Internet identifier reporting requirements
implicate the First Amendment. See, e.g., Doe v.
Harris, 772 F.3d 563, 572 (9th Cir. 2014). If they do,
we then determine what level of scrutiny we need to apply.
Id. at 574. Lastly, we determine whether the statute
passes constitutional muster under that level of scrutiny.
Id. at 576-78. Neither party disputes that the First
Amendment is implicated. We also agree with the parties that the
level of scrutiny to be applied in this case is intermediate
scrutiny. "In order to survive intermediate
scrutiny, a law must be 'narrowly tailored to serve a
significant governmental interest.' In other words, the
law must not 'burden substantially more speech than is
necessary to further the government's legitimate
interests.'" Packingham v. North Carolina,
137 S.Ct. 1730, 1736 (2017) (citations omitted). We,
therefore, address solely whether § 301.45(2)(a)6m.
passes constitutional muster under intermediate scrutiny by
examining Jackson's as-applied and facial challenges.
Jackson argues that Wis.Stat. § 301.45(2)(a)6m. violates
his First Amendment rights as applied to him because the
statute infringes on his right to communicate anonymously on
the Internet. The State argues, and the circuit court agreed,
that Jackson waived his as-applied challenge by virtue of his
no contest plea.
Whether Jackson waived his right to appeal the
constitutionality of the statute as applied to him based on
his no contest plea is a question of law we review de novo.
State v. Kelty, 2006 WI 101, ¶13, 294 Wis.2d
62, 716 N.W.2d 886. In Wisconsin, we employ the guilty plea
waiver rule, which states that a guilty, no contest, or
Alford plea "waives all nonjurisdictional defects,
including constitutional claims." State v.
Multaler, 2002 WI 35, ¶54, 252 Wis.2d 54, 643
N.W.2d 437. An exception to the guilty plea waiver rule
states that "a 'facial' constitutional challenge
[is] a matter of subject matter jurisdiction," which
cannot be waived, whereas an as-applied challenge is a
nonjurisdictional defect that can be waived. State v.
Cole, 2003 WI 112, ¶46, 264 Wis.2d 520, 665 N.W.2d
328; see also State v. Trochinski, 2002 WI 56,
¶34 n.15, 253 Wis.2d 38, 644 N.W.2d 891.
Jackson counters that under Class v. United States,
138 S.Ct. 798 (2018), Wisconsin's guilty plea waiver rule
does not apply to his as-applied challenge. We disagree as it
is not clear in Class whether Class' challenge
was an as-applied or a facial challenge. A facial challenge
"strip[s] the government of its ability to obtain a
conviction against any defendant," whereas "an
as-applied challenge does not dispute the court's power
to hear cases under the statute; rather, it questions the
court's limited ability to enter a conviction in the case
before it." United States v. Phillips, 645 F.3d
859, 863 (7th Cir. 2011) (citing Blackledge v.
Perry, 417 U.S. 21, 30 (1974)). Wisconsin has previously
recognized that distinction in our decisions on the guilty
plea waiver rule, see, e.g., Cole, 264
Wis.2d 520, ¶46, and we find that Class does
not preclude application of the guilty plea waiver rule as it
pertains to Jackson's as-applied constitutional
Jackson also asks us under State v. Tarrant, 2009
WI.App. 121, ¶6, 321 Wis.2d 69, 772 N.W.2d 750, to not
apply the guilty plea waiver rule as the rule is one of
administration. Jackson argues that his issue is one of
statewide importance, the statute is contrary to the
interests of justice, and all pertinent facts are clear from
the complaint. See id. We decline review under
Tarrant as Jackson does not provide ...