MILWAUKEE (CN) – Broadening a Wisconsin statute which provides greater protection to hunters on public land has a chilling effect on the First Amendment, a filmmaker and two animal-rights activists say.
Joseph Brown, Louis Weisberg and Steaphanie Losse sued Gov. Scott Walker, Wisconsin Department of Natural Resources Secretary Cathy Stepp and the department’s chief warden Todd Schaller in federal court Monday. Wisconsin Attorney General Brad D. Schimel and a dozen district attorneys are also named defendants.
According to the complaint, Wisconsin Statute § 29.083 was established in 1990, and amended in 2016 to provide greater protection of hunter privacy on public lands.
Brown, a documentarian and assistant professor of digital media and performing arts at Marquette University, has been documenting the work of Wolf Patrol, a conservation movement to support the recovery of gray wolves and promote co-existence with wolves and other predators, according to the suit.
According to the lawsuit, Brown wants to continue filming Wolf Patrol’s work and has a continued interest in documenting hunter activity on public land. But he says he chooses not to because of his fear of civil and criminal liability under the statute.
Brown says more than 90 percent of Wolf Patrol’s activities – and his own – involve driving on publicly owned county and Forest Service roads. On a typical day, Brown says he and Wolf Patrol activists log hundreds of miles – often 14 hours at a time.
Wolf Patrol searches for hunters violating hunting laws and documents hunting activity, Brown says.
On Sept. 17, 2016, after the statute was expanded, Brown says he and Wolf Patrol members were stopped by a federal law enforcement officer believed to be part of the U.S. Forest Service.
“For 20 minutes, Professor Brown and his colleagues amicably spoke to the officer who suggested that he, too, was ‘trying to catch the bad guys.’ Since that incident, Professor Brown has concluded that state law enforcement officers appear more willing to enforce Wis. Stat. § 29.083 than their federal counterparts,” the complaint says. “Given this perception, Professor Brown has restricted his embedded work with Wolf Patrol to federally managed lands, to minimize the possibility of being cited or arrested for a perceived violation of the law. This narrowing of the geographic scope of Professor Brown’s filming is the direct result of the law’s unconstitutional chilling effect.”
Plaintiff Weisberg is editor-in-chief of the Milwaukee-based newspaper, Wisconsin Gazette. According to the complaint, the Gazette has long been Wisconsin wolf activists’ go-to media outlet for bringing public attention to hunting and wildlife issues.
But Weisberg says that because the law directly prohibits firsthand field documentation, the statute has a “chilling effect” on his primary sources and on his ability to publish stories about issues of his choosing.
And plaintiff Losse says she’s been stopped and questioned by law enforcement along with other Wolf Patrol members on public land.
Losse, an animal rights advocate who volunteers with Wolf Patrol, takes photographs and video to create documentary evidence to educate the public about wolf hunting in Wisconsin. She says she’s been stopped by hunters while monitoring their activity on public land, and has received a citation after hunters called law enforcement to the scene as a result of “harassment” under the statute.
“Ms. Losse has always loved taking pictures. But now, before taking a photo on public land of hunters or hunting activity, she hesitates to wonder, ‘Will this picture get me arrested?’” the complaint says. “She desires to continue to monitor hunters as part of Wolf Patrol’s efforts and maintains a significant interest in documenting hunter activity in Wisconsin. For that, Ms. Losse faces a threat of prosecution under the statute.”
The plaintiffs continue: “On Feb. 11, 2017, Professor Brown, Ms. Losse, and certain other members of Wolf Patrol were monitoring hunting activities near Argonne, Wisconsin, on State Highway 55. As they drove, the truck in which Professor Brown and Ms. Losse were traveling was approached by an unnamed hunter. The hunter was irate, used foul language, and claimed that the Wolf Patrol members were interfering with his hunt. On a number of occasions, the hunter inquired why Professor Brown was filming. Professor Brown, for his part, ignored the hunter, who then aggressively exclaimed that “harassing hunters is illegal” and “you cannot legally videotape a hunt in Wisconsin right now.”
Though Wisconsin has regulated attempts to interfere with lawful hunting, fishing, or trapping with the intent to prevent the taking of a wild animal, the activists say the state has expanded the list of prohibited activities significantly and illegally.
The new law imposes criminal and civil penalties against anyone found “interfer[ing] or attempt[ing] to interfere with lawful hunting, fishing or trapping,” according to the complaint. The activists say the law suppresses the speech and expression of ideas of those opposed to hunting.
They also say the law criminalizes a broad and poorly defined set of actions.
“Persons approaching a hunter, photographing or videotaping a hunter, or even ‘maintaining a visual or physical proximity’ to a hunter are all subject to criminal prosecution and civil liability. This statute is facially overbroad, vague, and violates the First and Fourteenth Amendments of the U.S. Constitution on its face and as applied to the plaintiffs,” they say in their complaint.
Brown says the statute frustrates his work, since it bans the use of video-equipped drones in various instances critical to his work. He says all of this is true because he now faces the possibility of arrest even in the absence of the requisite mens rea.
Walker did not immediately respond to a request for comment Monday evening.
The activists seek a ruling that the state statute violates the U.S. Constitution and an injunction enjoining the state from enforcing the statute.
They are represented by Joseph Goode with Laffey, Leitner & Goode LLC in Milwaukee.