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Seventh Circuit divided over constitutionality of Wisconsin hunter protection statute

Activists challenging the law say it has chilled their efforts to document hunting in Wisconsin. Officials say the statute is harmless.

CHICAGO (CN) — The Seventh U.S. Circuit Court of Appeals heard oral arguments Monday on whether an amendment to Wisconsin’s protections for hunters violates the First Amendment.

The amendment to the state’s 1990 hunter protection law was passed in 2016. It prohibits individuals from “maintaining a visual or physical proximity” to hunters on state land as well as “photographing, videotaping, audiotaping, or through other electronic means, monitoring or recording” them.

The amendment’s passage prompted a 2017 lawsuit against numerous officials, including Governor Scott Walker and Wisconsin Attorney General Brad Schimel, from documentarian and Marquette University digital media professor Joseph Brown, Wisconsin Gazette editor-in-chief Louis Weisberg and animal rights activist Stephanie Losse.

They contend that the amendment imposes an unconstitutionally vague restriction on their free speech and protest rights.

“Plaintiffs bring this action to (1) eliminate the imminent and credible threat of prosecution for engaging in protected expression now prohibited under [the hunter protection statute]; and (2) to lift the chill on expression created by the statute, which has caused plaintiffs to refrain from engaging in protected speech,” read the trio’s initial lawsuit, which was filed in the U.S. District Court for the Western District of Wisconsin in July 2017.

The Wisconsin federal court dismissed the suit last December for lack of standing, but the Seventh Circuit’s three-judge panel seemed less sure during Monday’s proceeding. Though the panel only took the attorneys’ arguments under advisement and did not say when they would issue a ruling, the judges seemed divided in their own opinions on the matter.

Judges Ilana Rovner and David Hamilton — George H.W. Bush and Barack Obama appointees, respectively — both expressed sympathy for the activists’ arguments. Judge Thomas Kirsch, a Donald Trump appointee, sat firmly in the Wisconsin officials’ corner.

The controversy began when activists’ attorney Mark Leitner cited — both orally and in the appellate brief — a January 2018 incident where Wisconsin state police detained Brown in the field and confiscated all his camera equipment and footage.

“Forest County District Attorney, defendant Charles Simono, … waited seven months before he returned Brown’s property and advised that there would be no prosecution based on the events of January 2018,” the activists’ appellate brief stated.

Leitner used this incident to support his argument that the statute’s amendment gave too much leeway to law enforcement and prosecutors.

“There’s fears with First Amendment rights … [the statute] is extremely broad and gives almost limitless discretion to law enforcement officers,” Leitner said, citing the statute’s definition of harassment as a person “maintaining a visual or physical proximity” to a hunter. This argument prompted a sudden outburst by Kirsch, who said specificity in laws of this nature was not feasible.

“How is that limitless? I just don’t understand that. Are you saying the statute should say ‘within 10 feet’ or ‘within 15 feet’ and then we should get law enforcement out there with a tape measure?” Kirsch said. “Can you imagine where our criminal laws would go if they required that level of specificity?”

Leitner shot back, arguing that in this case, yes, specificity is needed. He cited the 2000 Supreme Court case Hill v. Colorado, when the high court stipulated that it is not a violation of free speech rights to prevent protesters from coming within eight feet of people entering abortion clinics.

When Wisconsin Assistant Attorney General Gabe Johnson-Karp asked the Seventh Circuit to uphold the federal court’s dismissal, the tables turned. Johnson-Karp opened by pointing out that no one, including the plaintiffs, has ever been arrested or prosecuted as a result of violations of the amendment.

“Under the terms of this statute, these plaintiffs do not face any credible threat of prosecution,” Johnson-Karp said. “They are not facing any objectively reasonable chilling effect from the terms of this statute.”

Rovner and Hamilton weren’t convinced. While not as vociferous in their criticisms of Johnson-Karp’s arguments as Kirsch was of Leitner’s, both expressed doubt that the statute amendment substantively added to the 1990 law’s established protections, or that its language couldn’t be abused.

“The 2016 amendment either has no effect or … an effect only on First Amendment-protected activity” Hamilton said. “I’m trying to see what effect this amendment has other than having something to say in campaigns so that hunters will support our candidate.”

Johnson-Karp pointed out that the amendment specifically prohibits using drones to observe hunters, something the original law did not account for. Besides that, he admitted that the amendment could be seen as redundant — but redundancy, he argued, is not tantamount to unconstitutionality.

“I will concede, in most applications an act would likely be covered under the previous statute,” Johnson-Karp said. “However, that … does not make the law unconstitutional.”

Rovner expressed skepticism toward this assertion.

“The statutory amendment includes broad language, including video taping no matter where the act occurs,” she said. “Could someone be in visual proximity [to a hunter] and not also violate the pre-existing prohibition on impeding or obstructing [a hunt]?”

Johnson-Karp said the onus of answering that question rested on whether the offending individual had the “intent” to impede or obstruct a hunter. He again pointed out how no one to date had been arrested or prosecuted for violating the statute, and how the activists’ fear of future reprisal was purely hypothetical.

Leitner, in his closing arguments, said that so long as the amendment existed, it was only a matter of time before the hypothetical became material. He also seized on the idea of intent which Johnson-Karp introduced.

“Intent is in the eye of the eye of the beholder … and that is the problem with it, is that it is so vague, and so difficult to establish,” Leitner said.

Follow Dave Byrnes on Twitter.

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