The Volokh Conspiracy
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From Brown v. Kemp, decided Monday in an opinion by Judge David Hamilton, joined by Judge Ilana Rovner:
[A Wisconsin law] makes it a crime to interfere intentionally with a hunter by [two or more acts of] "maintaining a visual or physical proximity" to the hunter, by "approaching or confronting" the hunter, or by photographing, videotaping, audiotaping, or otherwise recording the activity of the hunter….
[The prohibitions on] "maintaining a visual or physical proximity" to a hunter and "approaching or confronting" a hunter … are unconstitutionally vague…. They fail to specify, or even to offer any guidance about, how far away a person must stay to avoid engaging in unlawful interference….
Defendants argue that "visual or physical proximity" means "close enough" to impede or obstruct a hunter. That logic takes into account the statutory element of intent to interfere with hunting. But it still leaves the law impermissibly vague. What does "close enough" mean in the context of hunting? Five feet? Fifty feet? Five hundred feet? Five hundred yards? With modern rifles, the distance could be well beyond earshot. Stealth is part of hunting….
The vague statutory language also leaves too much room for arbitrary and discriminatory enforcement, chilling plaintiffs who are reasonably concerned about over-enforcement. The lack of objective criteria in subsection (2)(a)(7) means that enforcement authorities, like individual citizens, cannot know when the line between lawful and unlawful conduct has been crossed…. If the uncertainty and threat of arbitrary enforcement by public officials were not enough, plaintiffs are also subject to arbitrary enforcement at the hands of hunters and hunting parties [via citizen's suits authorized by the law]….
Clause (c) prohibits "photographing, videotaping, audiotaping, or through other electronic means, monitoring or recording the activities of" a hunter or member of a hunting party. Such monitoring activities are prohibited "regardless of where the act occurs." On its face, the text of the statute carves out no exemptions for monitoring and recording activities that aim to contribute to public discourse. It treats newsgathering and silent-protest monitoring the same as recordings made for solely individual use….
Comparing clause (c) to the scope of the statute before the amendment [see below -EV], we see that clause (c)'s only plausible purpose is expanding the scope of the statute to outlaw photography, videography, audiotaping, or other monitoring or recording activities that do not physically interfere with hunting activities. Otherwise, such monitoring or recording activities would have already been forbidden under the pre-amendment statute, rendering subsection (2)(a)(7) mere surplusage….
Once we recognize that clause (c) reaches only recording and monitoring activities that do not physically interfere with hunting or trapping, it becomes immediately apparent that the "presumptively impermissible applications" of clause (c) "far outnumber any permissible ones." When asked at oral argument for even a single hypothetical scenario in which clause (c) could constitutionally prohibit conduct not already criminalized, defendants suggested that clause (c) could apply where "somebody is committing battery while holding a camera." Aside from this trivial and improbable example, which would not actually involve expressive conduct and would already be criminal as battery, defendants have not mustered a hypothetical scenario in which clause (c) would have any effect other than to chill First Amendment activities. A small number of constitutional applications (or in this case, only one trivial and improbable one) are insufficient to save a statute whose applications are otherwise unconstitutional….
The court also concluded that subsection (2)(a)(7) was unconstitutionally viewpoint-based:
[C]lause (c) of subsection (2)(a)(7) targets fundamental speech activities. The acts enumerated in that clause—"photographing, videotaping, audiotaping, or through other electronic means, monitoring or recording"—are essential to the creation of speech and also expressive in their own right. Because the First Amendment protects conduct and activities necessary for expression, it also extends to the other clauses of subsection (2)(a)(7), since "visual or physical proximity" and approaching hunters are also essential to carry out plaintiffs' protected monitoring and recording of hunting.
Even if the activity covered by clauses (a) and (b) were better described as conduct than speech, conduct can still be covered by the First Amendment when the government "target[s the] conduct on the basis of its expressive content." … Here, as explained above, both the statutory text and evidence from its enactment show that it was specifically intended to target the expressive activities of members of Wolf Patrol and other anti-hunting advocates. Because the question whether the hunter harassment statute targets expressive conduct for an improper purpose, triggering First Amendment coverage, blurs into whether the regulation is content-and viewpoint-neutral, we consider the governments' purposes for the amended hunter harassment act in more depth in the following section….
The key question in determining whether a facially neutral regulation is actually content-neutral is "whether the law is 'justified without reference to the content of the regulated speech.'" To determine whether a law is justified without reference to the content of regulated speech, courts may consider a statute's stated purposes, the purposes of the statute as advanced by the government in litigation, and legislative purposes that can be inferred when a statute "single[s] out for regulation speech about one particular topic."
A related but distinct issue concerns statutes that target messages based on the speaker's motives. Such statutes can also be viewpoint-based. A statute's facial discrimination regarding the speaker's motives serves as evidence of an improper justification or purpose….
The amended hunter harassment law does not target all First Amendment activities that concern hunting as a subject matter. Rather, it prohibits expressive conduct that takes a particular viewpoint towards hunting. It applies only to expressive activities that are "intended to impede or obstruct" hunters or hunting activities. In other words, those applying the statute must consider speakers' viewpoints in analyzing whether their expressive activity violates the statute. Consequently, subsection (2)(a)(7) is viewpoint discriminatory on its face….
And the court rejected the argument that the statute could be upheld because of some compelling countervailing interest:
Where a statute discriminates based on viewpoint, courts apply strict scrutiny. To survive a constitutional challenge, the government must show that the restrictions on speech are "narrowly tailored to serve compelling state interests." …
Wisconsin has substantial interests in promoting and protecting hunting. 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 availability of "adequate content-neutral alternatives" to further the state's interest "'undercut[s] significantly'" any justification for a statute under strict scrutiny….
Defendants have not shown how the original prohibition on physical obstruction of hunting was not sufficient to protect those legitimate interests. Without subsection (2)(a)(7), which targets First Amendment activities, both the original and amended statutes prohibit interference or attempted interference with hunting "with the intent to prevent the taking of a wild animal," by "impeding or obstructing" either a hunter or an associated hunting activity. Where any single act of interference that physically impedes or obstructs hunting is sufficient under both the original and amended statutes to trigger criminal sanctions, it adds little for the state to also criminalize "[e]ngaging in a series of 2 or more" expressive acts that interfere with hunting…..
In fact, subsection (2)(a)(7) could be considered "necessary" only to serving the improper purpose of targeting the silent-protest monitoring and recording activities of plaintiffs and Wolf Patrol that do not physically interfere with hunting.
Both hunters and plaintiffs are entitled to be present on public land. 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 defense has not offered a plausible scenario in which subsection (2)(a)(7) would have any effect other than to chill First Amendment activities. In other words, defendants all but admit that Wisconsin's legitimate interests in protecting lawful hunting and trapping activities could be achieved just as effectively with the preamendment hunter harassment law. The conclusion is that subsection (2)(a)(7)'s only effect is to intimidate plaintiffs and to chill their protected expression opposed to hunting. The amended provision is not narrowly tailored to further the State's interests….
Judge Thomas Kirsch dissented, arguing that the law should be interpreted more narrowly, as covering only videorecording and other actions that involve "physical interference or obstruction with a person engaged in hunting activity."
Here is the relevant statute as quoted by the court, with the 2016 additions shown in bold; recall that (2)(a)(7) is the provision being challenged:
(2) Prohibitions. (a) No person may interfere or attempt to interfere with lawful hunting, fishing, or trapping with the intent to prevent the taking of a wild animal, or intentionally interfere with or intentionally attempt to interfere with an activity associated with lawful hunting, fishing, or trapping, by doing any of the following:
- Harassing a wild animal or by engaging in an activity that tends to harass wild animals.
- Impeding or obstructing a person who is engaged in lawful hunting, fishing or trapping.
- Impeding or obstructing a person who is engaged in an activity associated with lawful hunting, fishing or trapping.
- Disturbing the personal property of a person engaged in lawful hunting, fishing or trapping.
- Disturbing a lawfully placed hunting blind or stand.
- Disturbing lawfully placed bait or other material used to feed or attract a wild animal.
- Engaging in a series of 2 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, including any of the following:
- Maintaining a visual or physical proximity to the person.
- Approaching or confronting the person.
- Photographing, videotaping, audiotaping, or through other electronic means, monitoring or recording the activities of the person. This subd. 7. c. applies regardless of where the act occurs.
- Causing a person to engage in any of the acts described in subd. 7.a. to c.
- Using a drone, as defined in s. 941.292(1), to conduct any activity prohibited under subds. 1. to 7.
Mark Matthew Leitner, Jessica L. Farley, and Joseph S. Goode (Laffey, Leitner & Goode, LLC) and Kelsey Rinehart Eberly (Animal Legal Defense Fund) represent the challengers.