944.21 Obscene material or performance.

(1) The legislature intends that the authority to prosecute violations of this section shall be used primarily to combat the obscenity industry and shall never be used for harassment or censorship purposes against materials or performances having serious artistic, literary, political, educational or scientific value. The legislature further intends that the enforcement of this section shall be consistent with the first amendment to the U.S. constitution, article I, section 3, of the Wisconsin constitution and the compelling state interest in protecting the free flow of ideas.

(2) In this section:

(a) “Community" means this state.

(am) “Exhibit" has the meaning given in s. 948.01 (1d).

(b) “Internal revenue code" has the meaning specified in s. 71.01 (6).

(c) “Obscene material" means a writing, picture, film, or other recording that:

1. The average person, applying contemporary community standards, would find appeals to the prurient interest if taken as a whole;

2. Under contemporary community standards, describes or shows sexual conduct in a patently offensive way; and

3. Lacks serious literary, artistic, political, educational or scientific value, if taken as a whole.

(d) “Obscene performance" means a live exhibition before an audience which:

1. The average person, applying contemporary community standards, would find appeals to the prurient interest if taken as a whole;

2. Under contemporary community standards, describes or shows sexual conduct in a patently offensive way; and

3. Lacks serious literary, artistic, political, educational or scientific value, if taken as a whole.

(dm) “Recording" has the meaning given in s. 948.01 (3r).

(e) “Sexual conduct" means the commission of any of the following: sexual intercourse, sodomy, bestiality, necrophilia, human excretion, masturbation, sadism, masochism, fellatio, cunnilingus or lewd exhibition of human genitals.

(f) “Wholesale transfer or distribution of obscene material" means any transfer for a valuable consideration of obscene material for purposes of resale or commercial distribution; or any distribution of obscene material for commercial exhibition. “Wholesale transfer or distribution of obscene material" does not require transfer of title to the obscene material to the purchaser, distributee or exhibitor.

(3) Whoever does any of the following with knowledge of the character and content of the material or performance and for commercial purposes is subject to the penalties under sub. (5):

(a) Imports, prints, sells, has in his or her possession for sale, publishes, exhibits, plays, or distributes any obscene material.

(b) Produces or performs in any obscene performance.

(c) Requires, as a condition to the purchase of periodicals, that a retailer accept obscene material.

(4) Whoever does any of the following with knowledge of the character and content of the material is subject to the penalties under sub. (5):

(a) Distributes, exhibits, or plays any obscene material to a person under the age of 18 years.

(b) Has in his or her possession with intent to distribute, exhibit, or play to a person under the age of 18 years any obscene material.

(5)

(a) Except as provided under pars. (b) to (e), any person violating sub. (3) or (4) is subject to a Class A forfeiture.

(b) If the person violating sub. (3) or (4) has one prior conviction under this section, the person is guilty of a Class A misdemeanor.

(c) If the person violating sub. (3) or (4) has 2 or more prior convictions under this section, the person is guilty of a Class H felony.

(d) Prior convictions under pars. (b) and (c) apply only to offenses occurring on or after June 17, 1988.

(e) Regardless of the number of prior convictions, if the violation under sub. (3) or (4) is for a wholesale transfer or distribution of obscene material, the person is guilty of a Class H felony.

(5m) A contract printer or employee or agent of a contract printer is not subject to prosecution for a violation of sub. (3) regarding the printing of material that is not subject to the contract printer's editorial review or control.

(6) Each day a violation under sub. (3) or (4) continues constitutes a separate violation under this section.

(7) A district attorney may submit a case for review under s. 165.25 (3m). No civil or criminal proceeding under this section may be commenced against any person for a violation of sub. (3) or (4) unless the attorney general determines under s. 165.25 (3m) that the proceeding may be commenced.

(8)

(a) The legislature finds that the libraries and educational institutions under par. (b) carry out the essential purpose of making available to all citizens a current, balanced collection of books, reference materials, periodicals, sound recordings and audiovisual materials that reflect the cultural diversity and pluralistic nature of American society. The legislature further finds that it is in the interest of the state to protect the financial resources of libraries and educational institutions from being expended in litigation and to permit these resources to be used to the greatest extent possible for fulfilling the essential purpose of libraries and educational institutions.

(b) No person who is an employee, a member of the board of directors or a trustee of any of the following is liable to prosecution for violation of this section for acts or omissions while in his or her capacity as an employee, a member of the board of directors or a trustee:

1. A public elementary or secondary school.

2. A private school, as defined in s. 115.001 (3r), or a tribal school, as defined in s. 115.001 (15m).

3. Any school offering vocational, technical or adult education that:

a. Is a technical college, is a school approved by the department of safety and professional services under s. 440.52, or is a school described in s. 440.52 (1) (e) 6., 7. or 8.; and

b. Is exempt from taxation under section 501 (c) (3) of the internal revenue code.

4. Any institution of higher education that is accredited, as described in s. 39.30 (1) (d), and is exempt from taxation under section 501 (c) (3) of the internal revenue code.

5. A library that receives funding from any unit of government.

(9) In determining whether material is obscene under sub. (2) (c) 1. and 3., a judge or jury shall examine individual pictures, recordings of images, or passages in the context of the work in which they appear.

(10) The provisions of this section, including the provisions of sub. (8), are severable, as provided in s. 990.001 (11).

History: 1977 c. 173, 272; 1987 a. 416; 1993 a. 399; 1995 a. 27 s. 9154 (1); 1997 a. 27; 1999 a. 9; 2001 a. 16, 104, 109; 2005 a. 22, 25, 254; 2009 a. 302; 2017 a. 59.

The sufficiency of an obscenity complaint and the correctness of jury instructions are discussed. State v. Simpson, 56 Wis. 2d 27, 201 N.W.2d 558.

To charge a defendant with the possession or sale of obscene materials, the complaint must allege that the defendant knew the nature of the materials; a charge that the defendant acted “feloniously" is insufficient to charge scienter. State v. Schneider, 60 Wis. 2d 563, 211 N.W.2d 630.

NOTE: The preceding annotations relate to this section as it existed prior to its treatment by 1987 Wis. Act. 416.

This section is not unconstitutionally overbroad or vague. States are not prevented from deviating from the Miller v. California, 413 U.S. 15, language in regulating obscenity. Jury instructions that use synonymous or explanatory terms not used in Miller are not improper. County of Kenosha v. C. & S. Management, Inc. 223 Wis. 2d 373, 588 N.W.2d 236 (1999), 97-0642.

A telephone survey regarding community standards is irrelevant. A relevant survey must address whether the material at issue depicts acts in a patently offensive manner and appeals to the prurient interest. County of Kenosha v. C. & S. Management, Inc. 223 Wis. 2d 373, 588 N.W.2d 236 (1999), 97-0642.

Contemporary community standards must be applied by juries in accordance with their own understanding of the average tolerance of the average person in their community. The community to be considered is the state. Material is obscene if it appeals to prurient interest, not if it intends or attempts to appeal to prurient interest. State v. Tee & Bee, Inc. 229 Wis. 2d 446, 600 N.W.2d 230 (Ct. App. 1999), 98-0602.

The federal constitution does not mandate that juries be instructed to apply standards of a hypothetical statewide community. Jenkins v. Georgia, 418 U.S. 153 (1974).

A motion picture cannot be seized without a prior adversary hearing. Detco, Inc. v. Neelen, 356 F. Supp. 289 (1973).

Behind the Curtain of Privacy: How Obscenity Law Inhibits the Expression of Ideas About Sex and Gender. Peterson. 1998 WLR 625.

From Ulysses to Portnoy: A pornography primer. Eich, 53 MLR 155.