Dec. 15, 2023 – Sections of Wisconsin’s hunter harassment law that prohibit approaching or video-recording hunters are unconstitutionally overbroad and vague, the U.S. Court of Appeals for the Seventh Circuit has ruled in Brown v. Kemp, No. 21-1042 (Nov. 13, 2023).

Judge David Hamilton wrote the majority opinion, joined by Judge Ilana Rovner. Judge Thomas Kirsch dissented.

Monitoring the Hunters

Joseph Brown is part of Wolf Patrol. Brown and other Wolf Patrol members monitor hunting on public lands in Wisconsin, to make sure hunters comply with state law.

For several years, Brown filmed hunters while making a documentary film about wolf hunting in Wisconsin.

In 2016, the Wisconsin legislature enacted Wis Stat. section 29.083(2)(a)(7). The law prohibits a person from a series of two or more acts conducted over time that impede or obstruct hunters, including the following:

• maintaining a visual or physical proximity to a hunter;

• approaching or confronting a hunter; or

• photographing, videotaping, or audiotaping a hunter’s activities.

After section 29.083(2)(a)(7) took effect, Brown and another member of Wolf Patrol, Stephanie Losse, were harassed by hunters and stopped and questioned by the police while documenting hunter activity.

As a result of those encounters, Brown and Losse curtailed their hunt-monitoring activities.

In July 2017, Brown and Losse filed a lawsuit in the U.S. District Court for the Western District of Wisconsin, claiming that section 29.083(2)(a)(7) was unconstitutional.

The district court ruled that Brown and Losse lacked standing, and they appealed.

Plaintiffs Have Standing

Judge Hamilton began his opinion for the majority by concluding that Brown had standing to bring the lawsuit, even though he hadn’t been cited for violating section 29.083(2)(a)(7).

Hamilton explained that under U.S. Supreme Court caselaw, a party may establish standing to challenge an unconstitutional law without having to first expose him- or herself to liability under the law, if the party can show that he or she intended to engage in conduct that would arguably be affected by the constitutional interest.

Additionally, Hamilton explained, plaintiffs could establish standing by showing that their intended conduct would likely lead to enforcement against them, regardless of whether their conduct violated the hunter harassment law.

Moreover, Judge Hamilton, pointed out, under the relevant caselaw, a party can establish standing for a current First Amendment injury if the party can show that he or she has restored to self-censorship because of an “actual and well-founded fear” that the law at issue would be applied to him or her.

Hamilton concluded that Brown and the other plaintiffs had demonstrated that their conduct was affected by a constitutional interest because their information-gathering conduct was expressive activity protected by the First Amendment.

“[Plaintiffs] intend for their documentary evidence of hunting activities to function as an ‘organ of public opinion’ on issues surrounding hunting,” Judge Hamilton wrote.

Chilling Effect

Kemp argued that the plaintiff’s activities fell outside the statute because they had denied that they intended to impede hunters. But that was immaterial, Hamilton concluded.

“The statute can cause injury and a chilling effect even if plaintiffs would have winning defenses in actual prosecutions,” Judge Hamilton wrote.

Hamilton also reasoned that the vagueness of the hunter harassment law supported the plaintiffs’ claims that they feared prosecution and had engaged in self-censorship.

“Evidence shows that the hunter harassment statute is the subject of active pressure for citations, investigations, and enforcement,” Judge Hamilton wrote. “The law does not rest forgotten in desk drawers in game wardens’ offices.”

No Objective Criteria

Hamilton concluded that section 29.083(2)(a)(7) was unconstitutionally vague and overbroad.

Subsections (a) and (b) of section 29.083(2)(a)(7), which prohibit, respectively “maintaining a visual or physical proximity” and “approaching or confronting” hunters, were unconstitutionally vague, Judge Hamilton wrote, because “[t]hey fail to provide reasonable notice as to what conduct is criminal, and they fail to provide reasonable constraints on the discretion of enforcement officials.”

“They thus tend to create significant chilling effects on constitutionally protected activity, as they have for plaintiffs.”

Hamilton pointed out that subsections (a) and (b) provided no guidance as to how far away a person must remain to avoid violating the law.

Judge Hamilton also concluded that the statute’s intent requirement was impermissibly vague.

“The requirement that the series of acts be ‘intended to impede or obstruct’ hunting lacks any objective criteria by which enforcement officials could reasonably parse lawful intent from unlawful intent based on alleged violators’ behavior,” Hamilton wrote.

Viewpoint Discrimination

Subsection (c) of section 29.083(2)(a)(7), which prohibits photographing or videotaping hunters, was overboard, Judge Hamilton concluded.

“The text of the statute carves out no exemptions for monitoring and recording activities that aim to contribute to public discourse,” Hamilton wrote.

Even were the statute not overbroad, Hamilton concluded, it violated the First Amendment because it discriminated against expressive conduct based on viewpoint and did not pass strict scrutiny.

“When expressive acts are at issue, [section 29.083(2)(a)(7)(c)] prohibits only instances where the alleged violator’s intent is to impede or obstruct hunting,” Judge Hamilton wrote.

Hamilton reasoned that section 29.083(2)(a)(7)(c) didn’t pass strict scrutiny because it wasn’t narrowly tailored to serve a compelling government interest.

Judge Hamilton acknowledged that the state had a substantial interest in protecting and promoting hunting. However, he wrote, “the Wisconsin legislature had other means to achieve the goals and interests defendants offer.”

Dissent: No Standing

Judge Kirsch argued in his dissent that the plaintiffs had failed to establish standing.

Kirsch pointed out that a Wisconsin Court of Appeals case held that: 1) to impede or obstruct means the same in subsection (c) of section 29.083(2)(a)(7) as it does in subsections (2) and (3), which prohibit, respectively, impeding or obstructing a hunter or impeding or obstructing a person engaged in an activity associated with hunting; and ;2) impeding or obstructing under subsections (2) and (3) was limited to physical interference.

He also noted that all the parties agreed that if section 29.083(2)(a)(7)(c) prohibited only physical interference, plaintiffs lacked standing.

“The majority’s reading of the statute ignores the fundamental principle of statutory interpretation that when ‘judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates … the [legislature’s] intent to incorporate its administrative and judicial interpretations as well,’” Kirsch wrote.