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Kaleb, a high school student, allegedly created a YouTube video with a rap song about his Spanish teacher that contained “crude and vulgar language” about the teacher. He was found guilty of disorderly conduct and unlawful use of a “computerized communication system.” He appealed.

Is the speech protected speech?: On appeal, the court says that the prosecutor had no evidence or argument that the song was constitutionally unprotected speech. When Kaleb argued in the trial court that the speech was protected, the prosecutor first claimed she was “not prepared” to address this issue. Then the prosecutor argued, in summary fashion, that the video constituted “obscenity, fighting words, and hate speech.” On appeal the State switches tracks and argued that the video was defamatory. [??] This argument goes nowhere, and the court says that the speech was protected and thus could not form the basis of a disorderly conduct conviction.

Is Kaleb guilty of unlawfully using a computerized communication system?: Strangely, this does not result in the whole conviction getting tossed. Kaleb was convicted of unlawful use of a computerized communication system. The statute (Wis. Stat. 947.0125(2)(d)) covered anyone who:

[w]ith intent to frighten, intimidate, threaten or abuse another person, sends 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 the message uses any obscene, lewd, or profane language or suggests any lewd or lascivious act.

“Message” is broadly defined as “any transfer of signs, signals, writings, images, sounds, data or intelligence of any nature.”

The court says that just because the speech was protected does not necessarily mean that it cannot otherwise form the basis of liability under the “unlawful use of a computerized communications system” statute. Kaleb also argued that he did not send a message to any single person (singular) and also tried to keep the video “on the down low” (i.e., did not intend that it would reach the teacher). The court rejects both of these arguments, saying that: (1) posting content online and not sending it directly could fall under the statute (2) as could a generalized communication that’s not directed specifically to someone.

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The content in this post was found at http://blog.ericgoldman.org/archives/2013/12/ill-advised-student-youtube-video-leads-to-conviction-for-misusing-computerized-communication-system-in-re-kaleb-k.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.