A federal appeals court on Monday struck down as unconstitutional the state's "hunter harassment law" that makes it a crime to confront hunters, get too close to them, or photograph, or audio or or video record them.
The three-judge panel for the Seventh Circuit Court of Appeals found that changes to the 1990 law that were adopted in 2016 violate First Amendment rights to free speech, are unconstitutionally vague and/or overbroad, and discriminate against speech and expressive activity based on viewpoint.
The panel, in a 2-1 decision written by U.S. Circuit Judge David Hamilton, also found that the plaintiffs in the case had standing to file their suit and that the defenses offered did not satisfy strict scrutiny, the highest level of review demanded by the courts.
Hamilton was joined in his decision by U.S. Circuit Judge Ilana Rovner; U.S. Circuit Judge Thomas Kirsch II dissented. Kirsch argued that the plaintiffs did not have standing to file suit, but Hamilton and Rovner said they did.
The decision reverses a ruling by U.S. District Judge William Conley of the Western District of Wisconsin, who also found the plaintiffs did not have standing. The appellate court sent the case back to the Western District for further action.
Hamilton's decision focused on three provisions of the 2016 legislation. Those provisions make it illegal to intentionally interfere with a hunter by (1) “maintaining a visual or physical proximity” to the hunter; (2) “approaching or confronting” the person; or (3) photographing, videotaping, audiotaping, or otherwise recording the hunter's activity.
The law also prohibits "engaging in a series of two or more acts carried out over time, however short or long, that show a continuity of purpose and that are intended to impede or obstruct a person who is engaged in lawful hunting, fishing, or trapping, or an activity associated with lawful hunting, fishing, or trapping."
The statute provides criminal penalties, according to the lawsuit filed in the case. First violations are punishable by a maximum fine of $500, for a second offense within five years, the maximum penalty is $1,000 and imprisonment up to 90 days; and the maximum penalty for a third violation within five years is $10,000 and nine months behind bars.
The statute also allows hunters affected by the outlawed activities to sue the offenders and collect special and punitive damages, including damages to recover "approval fees, travel costs, camping fees, costs for guides, and costs for equipment or supplies to the extent that the plaintiff did not receive the full value of any of these expenditures due to the unlawful conduct of the defendant," according to the statute.
Members of the Wolf Patrol, an organization that opposes hunting and monitors hunters to ensure they comply with the law, filed suit challenging the statute. The three plaintiffs are Joseph Brown, a Marquette University professor, who opposes wolf hunting and makes documentary films to further public discussion of the issue; Stephanie Losse, an environmental and animal rights advocate and Wolf Patrol volunteer; and Louis Weisberg, a journalist who has a professional interest in documenting and reporting on hunting in Wisconsin.
Named as defendants in the lawsuit, filed in 2017, were then-Gov. Scott Walker, then-Attorney General Brad Schimel, then-DNR Secretary Cathy Stepp, then-DNR Chief Warden Todd Schaller, and 12 people who then were serving as district attorneys in the state.
After the 2016 amendments took effect, "Brown and Losse had a number of encounters with hunters and law enforcement officers, including repeated stops for questioning by law enforcement and harassment by hunters, in the course of plaintiffs’ monitoring and documenting activities, including photographing and filming of hunting," Hamilton wrote.
All of the relevant activity occurred on public land, where both hunters and the plaintiffs had the right to be, he said.
On one occasion, a "Polk County sheriff’s deputy told Losse that she would be cited for violating the hunter harassment law even before the amendments on photography and video recordings took effect," Hamilton said.
"Hunters have confronted Brown and Wolf Patrol monitors, surrounding them, using their vehicles to prevent Brown and the others from passing through public roads, and detained them 'for hours at a time' while waiting for law enforcement to arrive," Hamilton wrote.
The most significant incident took place in Forest County in January 2018, Hamilton said. Hunters used their trucks to surround Brown and his Wolf Patrol colleagues.
"The hunters proceeded to berate Brown and the Wolf Patrol members, 'using foul language and threatening to beat them up and run them over,' ” the judge wrote. "At one point in the angry confrontation, a hunter drove his pickup truck to bump a member of the Wolf Patrol multiple times. The hunters called law enforcement."
Things did not improve when Forest County deputies responded.
"Thinking that Brown may have recorded disputed events in this angry confrontation, deputies seized all of Brown’s filming equipment and footage, including four cameras, two memory cards, a microphone, batteries, all videography accessories, and a cellphone," Hamilton wrote.
Law enforcement got a search warrant for the equipment two days later, and forwarded information to the Forest County District Attorney's Office, but District Attorney Charles Simono did not issue a declaration that no charges would be filed in the case until August about seven months after the incident. Brown's equipment was returned about the same time, Hamilton said.
The defendants in the case argued that the challenged amendments to the law did not really change the scope of the statute.
"On that rosy hypothesis, any angry confrontation should be resolved with a calm, lawyerly explanation to angry hunters that the 2016 addition...was an empty political gesture," Hamilton wrote.
The three provisions added to the statute prohibit conduct that does not involve any physical interference, Hamilton wrote.
"To the extent the defendants argue that this portion of the legislature’s amendment was futile or symbolic, having no practical effect, we doubt that is a sound way of interpreting a statute," he said.
The merits
Vagueness & Overbreadth
"The three substantive prohibitions...are all unconstitutionally overbroad, but not all in the same way," Hamilton wrote.
The prohibitions on maintaining a visual or physical proximity to the hunter or approaching or confronting the person are too vague, Hamilton wrote. The two clauses "fail to provide reasonable notice as to what conduct is criminal, and they fail to provide reasonable constraints on the discretion of enforcement officials," he said. "They thus tend to create significant chilling effects on constitutionally protected activity, as they have for these plaintiffs."
The third prohibition, on recording a hunter's activity"A substantial number of the law’s applications are unconstitutional, measured against the law’s plainly legitimate sweep," Hamilton said. It is clear that the only reason the clause was added was to prohibit conduct that did not include physical interference with hunting, he said.
"On its face, the text of the statute carves out no exemptions for monitoring and recording activities that aim to contribute to public discourse," Hamilton said. "It treats newsgathering and silent-protest monitoring the same as recordings made for solely individual use."
Arbitrary Enforcement
"The vague statutory language also leaves too much room for arbitrary and discriminatory enforcement, chilling plaintiffs who are reasonably concerned about over-enforcement," Hamilton said. "The lack of objective criteria...means that enforcement authorities, like individual citizens, cannot know when the line between lawful and unlawful conduct has been crossed."
The state Department of Natural Resources recognized the issue.
The only guidance the WDNR offered to enforcement authorities is to "'tread carefully,'" Hamilton wrote.
"In saying this, we do not mean to criticize WDNR officials but only recognize the insoluble problem the legislation has handed to them," he said.
"And treading carefully is precisely what plaintiffs have been doing — often just staying in their cars — lest they commit a crime by crossing a line they cannot discern. Such chilling effects are a clear sign that the statute’s vagueness pushes people who monitor and document hunting in Wisconsin to engage in reasonable self-censorship," he wrote.
Viewpoint discrimination
The three plaintiffs argued that the amendment discriminates based on viewpoint because it criminalizes speech that can be inferred to be disruptive to hunting, but not when it is intended to support hunting activities, Hamilton said.
"We agree," he said.
The panel rejected the defendants' claim that the amendments targeted only conduct, not speech.
The act of making a recording is included in free speech rights, Hamilton said.
Strict Scrutiny
"To survive a constitutional challenge, the government must show that the restrictions on speech are 'narrowly tailored to serve compelling state interests,' ” Hamilton wrote.
"We agree that Wisconsin has substantial interests in promoting and protecting hunting," he said. "Applying strict scrutiny, however, the provisions in the amended hunter harassment law that restrict plaintiffs’ speech activities are not necessary to serve those interests."
"The Wisconsin legislature had other means to achieve the goals and interests defendants offer," Hamilton said. "Defendants have not shown how the original prohibition on physical obstruction of hunting was not sufficient to protect those legitimate interests."
"Both hunters and plaintiffs are entitled to be present on public land" he said. "Neither group has a right to exclude the other. In Wisconsin, hunters have a constitutional right to hunt, but they do not have a right to avoid contact with people like plaintiffs who disapprove of their hunting."
The full opinion in Joseph Brown et al. v Jeffrey L. Kemp et al., is here.
コメント