86 F.4th 745
7th Cir.2023Background
- Wisconsin amended its hunter-harassment statute in 2016 (Wis. Stat. § 29.083(2)(a)(7)) to add, among other things, prohibitions on: maintaining visual/physical proximity to a hunter; approaching or confronting a hunter; and photographing/recording a hunter, when these are part of a series of two or more acts intended to impede or obstruct hunting.
- Plaintiffs (Brown, Losse, Weisberg) are journalists/advocates associated with Wolf Patrol who monitor and record hunting on public land and say they will continue to do so; they claim the 2016 amendment chills and criminalizes protected First Amendment activity.
- After several confrontations with hunters and multiple stops/questioning by law enforcement (and a 2018 seizure of Brown’s equipment followed by a decision not to prosecute), plaintiffs brought a pre‑enforcement facial and as‑applied First and Fourteenth Amendment challenge; the district court granted summary judgment to defendants.
- The Seventh Circuit majority reverses: it interprets § 29.083(2)(a)(7) to expand the statute beyond Bagley’s physical‑interference limit, finds plaintiffs have pre‑enforcement standing, and holds the three clauses of (7) are either unconstitutionally vague/overbroad and that the provision is viewpoint‑discriminatory and fails strict scrutiny.
- A dissent argues Bagley’s physical‑interference construction should carry over to subsection (7), and that under that reading plaintiffs lack standing; the dissent therefore would not reach the constitutional merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing for pre‑enforcement challenge | Plaintiffs face an actual and reasonable fear of enforcement and have chilled their speech through self‑censorship after repeated stops, seizures, and DNR/enforcement activity. | Defendants say no credible threat of prosecution exists; plaintiffs deny the intent element (to impede/obstruct) required by the statute so they lack standing. | Plaintiffs have standing: the court finds (a) plaintiffs’ recording/newsgathering is protected expression; (b) (7) on its face covers their activities; (c) prior stops, seizure, active enforcement guidance, dispersed enforcement authority, and self‑censorship make fear of enforcement reasonable. |
| Vagueness — clauses (a) "visual or physical proximity" and (b) "approaching or confronting" | These clauses are vague, give no objective distance or criterion, and encourage arbitrary enforcement, chilling speech. | Defendants claim the intent element (to impede/obstruct) limits the reach and prevents vagueness. | Clauses (a) and (b) are unconstitutionally vague/overbroad: lack of objective standards (distance, who perceives interference) and omission of the stalking statute’s reasonable‑person objective element let enforcement be arbitrary and chill protected activity. |
| Overbreadth — clause (c) "photographing/videotaping/recording" | Clause (c) criminalizes recording/monitoring that is expressive and widely used for newsgathering/public speech; it reaches far beyond constitutionally permissible regulation. | Defendants argue the clause is limited by the intent requirement to situations intended to impede/obstruct. | Clause (c) is substantively overbroad: on its face it covers protected newsgathering/recording; compared to the pre‑2016 statute (which targeted physical interference), the amendment sweeps substantially further and therefore cannot stand. |
| Viewpoint discrimination and strict scrutiny | The statute singles out expression intended to impede hunting (i.e., anti‑hunting viewpoints) while leaving pro‑hunting expression untouched; that is viewpoint discrimination requiring strict scrutiny. | Defendants assert the law regulates conduct, not speech, and is aimed at preventing interference, safety risks, and protecting hunting rights. | The statute is viewpoint‑discriminatory: it turns on the actor’s intent/viewpoint toward hunting; strict scrutiny applies and the State lacks narrowly tailored means — existing physical‑interference rules would meet its interests without suppressing viewpoint‑based expression. |
Key Cases Cited
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (pre‑enforcement First Amendment challenges allowed where threatened enforcement is sufficiently imminent)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing: concrete, particularized injury caused by defendant and redressable)
- State v. Bagley, 164 Wis. 2d 255 (Wis. Ct. App. 1991) (original Wisconsin hunter‑harassment statute construed to require physical interference/obstruction)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (viewpoint discrimination an egregious form of content discrimination)
- ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012) (the act of making audio/audiovisual recordings is protected by the First Amendment)
- Hill v. Colorado, 530 U.S. 703 (2000) (vagueness/overbreadth analysis where statute gives objective distance limit and knowledge requirement)
- United States v. Stevens, 559 U.S. 460 (2010) (overbreadth test: statute invalid if a substantial number of applications are unconstitutional relative to its plainly legitimate sweep)