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Constitutional Rights-Right to hunt- Freedom of Speech

By: WISCONSIN LAW JOURNAL STAFF//November 20, 2023//

Constitutional Rights-Right to hunt- Freedom of Speech

By: WISCONSIN LAW JOURNAL STAFF//November 20, 2023//

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7th Circuit Court of Appeals

Case Name: Joseph Brown v. Jeffrey Kemp

Case No.: 21-1042

Officials: Rovner, Hamilton, and Kirsch, Circuit Judges.

Focus: Constitutional Rights-Right to hunt- Freedom of Speech

Article I, section 26 of the Wisconsin Constitution safeguards the right to hunt, with a specific statute enacted in 1990 criminalizing various forms of harassment against hunters. A 2016 amendment expanded the scope of this law, making it a crime to intentionally interfere with hunters through visual or physical proximity, approaching or confronting them, and recording their activities through photography, videotaping, audiotaping, or other means. Despite their opposition to hunting, the plaintiffs have actively engaged in observing, approaching, confronting, photographing, and filming hunters on public land, expressing their intent to continue these activities.

Contending that these prohibitions infringe upon the First and Fourteenth Amendments of the U.S. Constitution, the plaintiffs initiated a pre-enforcement challenge. However, the district court, in a summary judgment, ruled in favor of the defendants, asserting that the plaintiffs lacked standing for an as-applied challenge and that their facial constitutional challenges were without merit.

The Seventh Circuit, on appeal, reversed and remanded the decision. It first determined that the plaintiffs had standing to bring both as-applied and facial challenges even before formal enforcement actions, citing the statute’s use to harass and intimidate them, leading to self-censorship of activities protected by the First Amendment. The court further found certain clauses of the law to be unconstitutionally vague or overbroad. Notably, the statute was deemed discriminatory against speech and expressive activity based on viewpoint, with the defendants failing to provide justifications that met strict scrutiny standards.

Remanded and reversed.

Decided 11/13/23

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