Published: October 29, 2007 09:55 am            

Anti-harassment laws regarding hunters snare protestors

View From the Bench

An increasing number of cases involving hunter anti-harassment laws are winding their way through state and federal courts. These so-called hunter anti-harassment laws, which only became popular in recent years, restrict interference with lawful hunting.

According to some, these laws are unconstitutional and infringe upon First Amendment rights.

The federal government and nearly every state have laws prohibiting the harassment of hunters. Only two states have yet to enact such statutes. These laws were passed in response to increasingly aggressive tactics used by those opposed to hunting.

Protests against hunters vary widely. Some are peaceful and the activists sincerely and appropriately attempt to convince hunters that even the lawful pursuit of wild game is immoral or unethical. Sometimes, however, the tactics are extreme-standing in front of the muzzle of a weapon being prepared to discharge, following hunters into the woods and surrounding them while yelling obscenities, and stealing privately owned items of hunting equipment.

Protestors who have found themselves charged by state wildlife officials with violation of these statutes frequently raise a First Amendment defense. The protestors argue that the laws violate state or federal free speech rights. However, the majority of courts are unpersuaded by these arguments and have upheld the convictions.

One of the first cases involving hunter anti-harassment laws occurred in a Connecticut federal court in 1998. The federal court determined that the state’s hunter anti-harassment law was unconstitutional because it was over broad and could have the effect of chilling protected First Amendment speech. Generally, government regulation of speech must be “content neutral” in order to be valid. This requirement reflects the bedrock principal that our government may not prohibit the expression of thoughts which society finds offensive. In addition, Connecticut had not shown a compelling state interest in protecting hunters from harassment.

Notably, only five years later, the Connecticut Supreme Court upheld convictions arising under a revised version of the hunter anti-harassment statute. In that case, the protestors had been warned by officials that they would be arrested if they interfered with the state sponsored bowhunt. The protestors then followed a hunter into the woods, surrounded his stand, and refused to move from the line of fire. Law enforcement ordered the protestors to leave or risk arrest. The protestors (unwisely) elected to remain.

On appeal, the protestors argued that the new statute violated the First Amendment rights to free speech. The Connecticut Supreme Court rejected this claim because the new statute was “content neutral.” Any conduct intended to interfere with the lawful rights of hunters fell within the statute regardless of whether it was generated by a philosophical commitment to oppose hunting or whether the motivation had nothing to do with hunting. If the conduct, regardless of its message, was intended to disrupt lawful hunting, the conduct itself was punishable.

A third case arose in Connecticut only a few years ago. In this case the state Supreme Court again rejected a First Amendment claim. In this opinion, the Court noted the “compelling interest” of the state in regulating conflict between hunters and protestors. The court held that the state had an important interest in public safety by reducing conflict between activists and hunters where hunters are about to discharge a weapon. The other important interests were the production of revenue and the inherent rights of lawful hunting. The court noted the state had a crucial interest in wildlife management because the lack of a self-balancing eco-system resulted in ever-expanding deer herds that threatened state forests and private property from unconstrained grazing.

Kentucky’s hunter anti-harassment statute provides that “[n]o person shall intentionally obstruct or disrupt the right of a person to lawfully take wildlife by hunting, trapping or fishing.” Violation of this statute is punishable by up to 90 days in jail and a $250 fine for a first offense. No Kentucky federal or state court has yet construed the constitutionality of this law. Despite this statute, the popularity of hunting as well as the expanding environmental movement makes it likely that hunters and those opposed to hunting will come into conflict. Hopefully, any conflicts between these groups will be resolved peacefully.

        

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