9.20 Obscenity (10/20/92).
(1) The county board 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 county board further intends that the enforcement of this ordinance shall be consistent with the First Amendment to the United States 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 the State of Wisconsin.
(b) “Internal revenue code” has the meaning specified in Wisconsin Statutes section 71.01(6).
(c) “Obscene material” means a writing, picture, sound recording or film 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.
(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.
(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, or transfers 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) Transfers or exhibits any obscene material to a person under the age of 18 years.
(b) Has in his or her possession with intent to transfer or exhibit to a person under the age of 18 years any obscene material.
(5) Any person violating sub. (3) or (4) shall forfeit not less than $500 nor more than $10,000. Each day a violation under sub. (3) or (4) continues constitutes a separate violation under this section.
(6) 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.
(7)
(a) The county board 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 county board further finds that it is in the interest of the county 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 Wisconsin Statutes section 115.001(3)(r).
3. Any school offering vocational, technical or adult education that:
a. Is a vocational, technical and adult education district school, is a school approved by the educational approval board under Wisconsin Statutes section 38.51 or is a school described in Wisconsin Statutes section 38.51(9)(f), (g) or (h); 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 Wisconsin Statutes section 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.
(8) In determining whether material is obscene under sub. (2)(c)(1) and (3), a judge or jury shall examine individual pictures or passages in the context of the work in which they appear.
(9) The provisions of this section, including the provisions of sub. (7) are severable and if any section, clause, provision or portion of this section is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of this section shall not be affected thereby. [Code § 9.10.2.]