806.05.Declaratory judgments against obscene matter.

Ch. 806: Judgment · Last amended 1977 · Last verified July 15, 2026

In one sentenceSection 806.05 lets a district attorney file an action naming a book, picture, recording, or film as the defendant to have it declared obscene, with distributors given notice, a right to a jury trial, and the resulting judgment usable later as evidence in an obscenity prosecution.

Full Text of Section 806.05

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(1) GROUNDS FOR AND COMMENCEMENT OF ACTION. Whenever there is reasonable cause to believe that any book, magazine, or other written matter, or picture, sound recording or film, which is being sold, loaned, or distributed in any county, or is in the possession of any person who intends to sell, loan or distribute the same in any county, is obscene, the district attorney of such county, in the name of the state, as plaintiff, may file a complaint in the circuit court for such county directed against such matter by name. Upon the filing of such complaint, the court shall make a summary examination of such matter. If it is of the opinion that there is reasonable cause to believe that such matter is obscene, it shall issue an order, directed against said matter by name, to show cause why said matter should not be judicially determined to be obscene. This order shall be addressed to all persons interested in the publication, production, sale, loan, exhibition and distribution thereof, and shall be returnable within 30 days. The order shall be published as a class 2 notice, under ch. 985. A copy of such order shall be sent by certified mail to the publisher, producer, and one or more distributors of said matter, to the persons holding the copyrights, and to the author, in case the names of any such persons appear on such matter or can with reasonable diligence be ascertained by said district attorney. Such publication shall commence and such notices shall be so mailed within 72 hours of the issuance of the order to show cause by the court. (1m) INTERLOCUTORY ADJUDICATION. After the issuance of the order to show cause under sub. (1), the court shall, on motion of the district attorney, make an interlocutory finding and adjudication that said book, magazine or other written matter or picture, sound recording or film is obscene, which finding and adjudication shall be of the same effect as the final judgment provided in sub. (3) or (5), but only until such final judgment is made or until further order of the court.

(2) RIGHT TO DEFEND; JURY TRIAL. Any person interested in the publication, production, sale, loan, exhibition or distribution of such matter may appear and file an answer on or before the return day named in said notice. If in such answer the right to trial by jury is claimed on the issue of the obscenity of said matter, such issue shall be tried to a jury. If no right to such trial is thus claimed, it shall be deemed waived, unless the court shall, for cause shown, on motion of an answering party, otherwise order.

(3) DEFAULT. If no person appears and answers within the time allowed, the court may then, without notice, upon motion of the plaintiff, if the court finds that the matter is obscene, make an adjudication against the matter that the same is obscene.

(4) SPEEDY HEARING; RULES OF EVIDENCE. If an answer is filed, the case shall be set down for a speedy hearing, but an adjudication of default and order shall first be entered against all persons who have not appeared and answered in the manner provided in sub. (3). If any person answering so demands, the trial shall not be adjourned for a period of longer than 72 hours beyond the opening of court on the day following the filing of the answer. At such hearing, subject to chs. 901 to 911, the court shall receive the testimony of experts and evidence as to the literary, cultural or educational character of said matter and as to the manner and form of its production, publication, advertisement, distribution and exhibition. The dominant effect of the whole of such matter shall be determinative of whether said matter is obscene.

(5) FINDINGS AND JUDGMENT. If, after the hearing, the court or jury, unless its finding is contrary to law or to the great weight and clear preponderance of the evidence, determines that the matter is obscene, the court shall enter judgment that the matter is obscene. If it is determined that the matter is not obscene, the court shall enter judgment dismissing the complaint, and a total of not more than $100 in costs, in addition to taxable disbursements, may be awarded to the persons defending the matter, which shall be paid from the county treasury. Any judgment under this subsection may be appealed to the court of appeals under chs. 808 and 809 by any person adversely affected, and who is either interested in the publication, production, sale, loan, exhibition or distribution of the matter, or is the plaintiff district attorney.

(6) ADMISSIBILITY IN CRIMINAL PROSECUTIONS. In any trial for a violation of s. 944.21, the proceeding under this section and the final judgment of the circuit court under sub. (3) or (5) or the interlocutory adjudication under sub. (1m), shall be admissible in evidence on the issue of the obscenity of said matter and on the issue of the defendant’s knowledge that said matter is obscene, provided, that if the judgment of the court sought to be introduced in evidence is one holding the matter to be obscene, it shall not be admitted unless the defendant in said criminal action was served with notice of the judgment of the court hereunder, and the criminal prosecution is based upon conduct by said defendant occurring more than 18 hours after such service or such appearance, whichever is earlier.

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Plain-English Summary

Section 806.05 creates a specialized declaratory action against obscene material rather than against a person. Whenever a district attorney has reasonable cause to believe that a book, magazine, picture, sound recording, or film being sold, loaned, or distributed in the county is obscene, the district attorney may file a complaint, in the state’s name, directed against that matter by name. If the court agrees there is reasonable cause, it issues an order to show cause, published as a class 2 notice and mailed to the publisher, producer, distributors, copyright holders, and author within 72 hours, and it may make an interlocutory finding of obscenity that carries the same effect as a final judgment until one is entered.

Anyone interested in publishing, producing, selling, loaning, exhibiting, or distributing the material may appear and answer by the return date. Claiming a jury trial in that answer preserves the right to have a jury decide whether the matter is obscene; failing to claim it waives the right unless the court orders otherwise for cause. If nobody answers in time, the court may, without further notice, find the matter obscene by default on the plaintiff’s motion.

Once an answer is filed, the case is set for a speedy hearing, though a default adjudication is entered first against anyone who never appeared. At the hearing, the court receives expert testimony and evidence about the material’s literary, cultural, or educational character and about how it was produced, published, advertised, distributed, and exhibited, and it judges obscenity by the dominant effect of the material as a whole.

The resulting judgment can go either way and is appealable by anyone adversely affected, whether that is the district attorney or someone interested in the material. If the matter is found not obscene, the court can award up to one hundred dollars in costs to the people who defended it, paid from the county treasury. And the final judgment, or an earlier interlocutory adjudication, becomes admissible evidence in a later criminal obscenity prosecution on both the question of obscenity and the defendant’s knowledge that the material was obscene, subject to timing and notice requirements protecting the defendant.

Frequently Asked Questions

Who can start a case to have material declared obscene in Wisconsin?

The district attorney of the county where the material is being sold, loaned, or distributed, or is possessed with intent to sell, loan, or distribute it, may file the complaint in the state’s name.

Do the people distributing the material get a jury trial?

Yes, if they claim it. Anyone interested in the material’s publication, production, sale, loan, exhibition, or distribution may file an answer, and claiming the right to a jury trial in that answer means the issue of obscenity is tried to a jury; not claiming it waives the right unless the court orders otherwise for cause.

What happens if no one answers the district attorney’s complaint?

If no one appears and answers within the time allowed, the court may, without further notice, adjudicate the matter obscene on the plaintiff’s motion if it finds the matter is obscene.

What standard does the court use to decide if something is obscene?

At the hearing, the court receives evidence and expert testimony on the material’s literary, cultural, and educational character and its manner of production and distribution, and the dominant effect of the whole of the material determines whether it is obscene.

Can this obscenity judgment be used later in a criminal case?

Yes. The final judgment, or an interlocutory adjudication made before it, is admissible in a criminal prosecution for the related offense on the issue of obscenity and the defendant’s knowledge, but a judgment finding the matter obscene can be admitted against a defendant only if that defendant was served with notice of the judgment and the prosecuted conduct occurred more than eighteen hours after that notice or the defendant’s appearance in the obscenity case, whichever is earlier.

Amendment History

History: Sup. Ct. Order, 67 Wis. 2d 585, 721 (1975); 1975 c. 218; 1977 c. 187, 272.

Source & verification. Section text and official notes are reproduced verbatim from the Wisconsin Statutes, published by the Wisconsin Legislature (Legislative Reference Bureau). Last verified July 15, 2026. · Official source

Also known as: wisconsin obscenity declaratory judgment806.05 obscene material lawsuit wisconsindistrict attorney obscenity complaint wisconsinjury trial obscenity case wisconsinobscene matter judgment evidence criminal trial