Legal Commentary

The latest example of a prosecutor abusing his authority in a moral panic over teen sexuality comes from Wisconsin and Juneau County DA Scott Southworth. Southworth, who was elected in 2004, sent a letter to five school districts warning them that teachers could face criminal prosecution for following a new state law regarding sex education. The law requires that, if sex ed is taught, it must include age-appropriate information about proper use of contraception. Southworth insists that giving such information encourages, or at least makes it likely, that a to a minor will have sex, thereby promoting sexual assault (because sex with anyone under 18 is assault) and contributing to the delinquency of a child. Apparently, he is not kidding.

Aside from the stupidity of the threat, the story is interesting because Southworth already helped make a bit of constitutional law as a law student 12 years ago--with a legal argument I found similarly ridiculous at the time. He was lead plaintiff (suing with six other students) in Board of Regents of Univ. of Wisconsin v. Southworth, challengiing having to pay student activity fees when those fees went to certain politically and ideologically objectionable student groups. They argued this violated their First Amendment liberty against compelled speech and sought pro rata refunds of the amounts that went to 18 objectionable groups. They won in the lower courts, then lost 9-0 before SCOTUS. The Court held that as long as the funding requirement was viewpoint-neutral, there was no compelled speech problem. I would have preferred the Court to see this not as an instance of funding speech, but as an example of funding of a public forum, which raises no compelled-expression problem.

I imagine (or at least hope) that any attempt to follow through on this threat would similarly go down in flames.