State v. Culver, 918 N.W.2d 103

Background

Culver posted nude photos of A.A.L. online without her consent; he admitted doing so out of anger. Police later recovered three firearms from his residence; Culver had a prior felony OWI (fourth offense).
Culver pleaded guilty to one count of posting/publishing a private depiction (WIS. STAT. § 942.09(3m)(a)2.) and one count of possession of a firearm by a felon (WIS. STAT. § 941.29(2)), with sentences imposed consecutively.
He filed a postconviction motion arguing (1) the post-or-publish statute is facially unconstitutional (overbroad, vague, and violates the Commerce Clause) and (2) the felon-in-possession statute is unconstitutional as applied because his predicate felony was nonviolent (OWI).
The circuit court denied relief; Culver appealed. The appellate court reviewed constitutional issues de novo and addressed First and Second Amendment principles where relevant.
The court upheld the post-or-publish statute, finding its many limiting elements (nudity/sexually explicit content; intent that image remain private; consent to capture; publisher's knowledge; lack of consent for publication; statutory exceptions) sufficiently narrow its reach.
The court also rejected Culver’s as-applied challenge to the felon-in-possession ban, relying on Wisconsin appellate precedent that the categorical ban on felons possessing firearms is substantially related to the important government interest of public safety.

Issues

Issue	Culver's Argument	State's Argument	Held
Whether WIS. STAT. § 942.09(3m)(a)2. is overbroad under the First Amendment	Statute reaches substantial protected speech (e.g., benign/private but non-harmful posts) and lacks required scienter/wrongful intent distinction	Statute is narrowly targeted by multiple elements (type of image, intent to be private, consent to capture, publisher's knowledge, lack of consent to publish) and protects privacy — legitimate sweep	Not overbroad; statute narrowly/adequately cabined and does not prohibit a substantial amount of protected speech relative to its legitimate scope
Whether § 942.09(3m)(a)2. is unconstitutionally vague	Terms like "newsworthy"/"public importance" and other ambiguities (revocation of consent, geographic scope, "depiction") fail to give fair notice and invite arbitrary enforcement	Terms have established legal meaning (newsworthiness/public concern); statute gives adequate notice; hypotheticals do not show vagueness	Not vague; terms are sufficiently clear in context and statute provides adequate guidance for enforcement
Whether the statute violates the Commerce Clause by reaching extraterritorial conduct	Statute fails to specify territorial jurisdiction and thus could regulate out-of-state conduct, burdening interstate commerce	Culver lacks standing to press Commerce Clause claim (no allegation he acted from out of state or engaged in interstate commerce); Wisconsin jurisdiction governed by other statute	Commerce Clause challenge rejected for lack of standing; court declines further merit review
Whether Wisconsin's felon-in-possession ban is unconstitutional as applied to a nonviolent felon (OWI)	Lifetime firearm ban is overbroad as applied; statute should distinguish violent vs. nonviolent or serious vs. nonserious felons; Culver has no history of violence	Precedent upholds categorical ban as substantially related to public safety; legislature may disarm felons regardless of violence history	Rejected. Ban upheld as constitutional as applied; controlling Wisconsin precedent (Pocian, Thomas) permits categorical felon ban

Key Cases Cited

City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789 (1984) (facial‑overbreadth doctrine and standing considerations)
United States v. Stevens, 559 U.S. 460 (2010) (overbreadth substantiality standard for First Amendment challenges)
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (risk of official suppression and free speech concerns)
Snyder v. Phelps, 562 U.S. 443 (2011) (less rigorous protection for purely private matters vs. public concern)
District of Columbia v. Heller, 554 U.S. 570 (2008) (individual right to bear arms; recognized longstanding prohibitions, including felons)
McDonald v. City of Chicago, 561 U.S. 742 (2010) (incorporation of Second Amendment against the states)
State v. Robert T., 307 Wis.2d 488 (Wis. Ct. App.) (standard of review and caution in facial First Amendment challenges)
State v. Hemmingway, 345 Wis.2d 297 (Wis. Ct. App.) (stalking statute analysis and conduct vs. speech distinction)
State v. Pocian, 341 Wis.2d 380 (Wis. Ct. App.) (upholding categorical felon firearm ban post‑Heller)
State v. Thomas, 274 Wis.2d 513 (Wis. Ct. App.) (rejecting equal protection challenge to felon firearm ban)