260 Conn. 275 | Conn. | 2002
Opinion
The defendants,
The facts of this case are set forth in State v. Ball, 226 Conn. 265, 268-70, 627 A.2d 892 (1993). “On October
“The defendants approached Dubois and told him that they were antihunting activists and that they would follow him into the park. A few minutes later, conservation officer McNamara arrived at the scene. Dubois complained to McNamara that the defendants were planning to harass him. McNamara warned the defendants that, if they interfered with Dubois’ hunting, they would be subject to arrest. Dubois told the defendants that he planned to hunt deer from an old apple orchard and asked that he be left alone.
“At about 7 a.m., Dubois entered the orchard, took a stand under a tree, and notched an arrow into his bow. The defendants formed a semicircle facing Dubois and tried to dissuade him from hunting. Dubois told them that they were interfering with his hunting and asked them to get out of the line of fire. When the defendants did not move, Dubois asked McNamara to come to his assistance. McNamara explained to the defendants that their interference with Dubois’ hunting was illegal and asked them to leave. After consulting among themselves, the defendants decided to be arrested rather than to comply with the request to leave the area. McNamara then arrested the defendants.
“In their motions to dismiss in the trial court, the defendants challenged the constitutionality of § 53a-183a both facially and as applied to the facts of this case. The trial court, Dranginis, J., ruled only on their
The trial court prohibited evidence of the nature and extent of the state’s interest in preventing the harassment of hunters and evidence of the particular circumstances of the defendants’ arrest because a challenge premised on facial unconstitutionality does not require a factual showing. Id., 269. The trial court also found that the communicative aspect of the conduct that the act proscribes implicates and thus falls within the constraints of the first amendment’s protection of free speech, as had a predecessor statute that previously had been held to be facially unconstitutional in Dorman v. Satti, 862 F.2d 432 (2d Cir. 1988), cert. denied, 490 U.S. 1099, 109 S. Ct. 2450, 104 L. Ed. 2d 1005 (1989). State v. Ball, supra, 226 Conn. 269. The court concluded, nevertheless, “that the statute is content-neutral and that its restrictions are narrowly tailored to serve a significant governmental interest. The court then rejected the defendants’ claim of vagueness and over-breadth, in part by narrowly construing some of the provisions contained in the statute.” Id., 269-70.
The defendants first appealed from the judgment of the trial court to the Appellate Court and we transferred the appeal to this court pursuant to what was then Practice Book § 4023, now § 65-1, and General Statutes § 51-199 (c). State v. Ball, supra, 226 Conn. 267. The defendants claimed on appeal that: (1) the act is a content-based constraint on free speech; (2) even if the act is content-neutral, it is not narrowly tailored to further a significant state interest, as required for speech restrictions in a public forum; and (3) even if the act is content-neutral and does not regulate speech in a
I
BURDEN OF PROOF AND STANDARD OF REVIEW
“In our assessment of whether the statute passes constitutional muster, we proceed from the well recognized jurisprudential principle that [t]he party attacking a validly enacted statute . . . bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute’s constitutionality.” (Internal quotation marks omitted.) State v. Ross, 230 Conn. 183, 236, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995). “The burden of proving
The defendants assert that where trial court rulings implicate first amendment rights, an appellate court must “make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression.” (Internal quotation marks omitted.) Brown v. K.N.D. Corp., 205 Conn. 8, 11, 529 A.2d 1292 (1987). The defendants argue that, in reviewing this case, we should not apply a clearly erroneous standard but instead must conduct an independent review of the facts and draw our own inferences from those facts without deference to the factual findings of the trial court. We disagree.
The parties do not dispute the facts surrounding the defendants’ arrest, and the defendants challenge the constitutionality of the act on its face, not as it has been applied to them. Independent review of those facts, therefore, is unnecessary to our consideration of the defendants’ facial challenge “because an analysis of a ‘facial’ type of claim is not dependent on the facts of a particular case.” State v. Linares, 232 Conn. 345, 363 n.14, 655 A.2d 737 (1995); see also Ramos v. Vernon, 254 Conn. 799, 849 n.4, 761 A.2d 705 (2000) (Sullivan, J., dissenting), quoting 37712, Inc. v. Ohio Dept. of Liquor Control, 113 F.3d 614, 618 n.7 (6th Cir. 1997) (“[n]o essential issues of material fact are presented for resolution upon a facial challenge to a statute or ordinance” [internal quotation marks omitted]). We would conduct an examination of the facts surrounding the defendants’ arrest only if the defendants were also challenging the act as it was applied to them.
DETERMINATION OF FORUM STATUS
We first must classify the public lands at issue in this case—state parks and forests where the taking of game and wildlife is permitted and also protected by the act.
“A second category consists of public property which the State has opened for use by the public as a place for expressive activity. The Constitution forbids a State to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place. Widmar v. Vincent, 454 U.S. 263 [102 S. Ct. 269, 70 L. Ed. 2d 440] (1981) (university meeting facilities); City of Madison Joint School District v. Wisconsin Employment Relations Comm’n, 429 U.S. 167 [97 S. Ct. 421, 50 L. Ed. 2d 376] (1976) (school board meeting); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 [95 S. Ct. 1239, 43 L. Ed. 2d 448] (1975) (municipal theater). Although a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum. Reasonable time, place, and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest. Widmar v. Vincent, supra, [269-270].” Perry Education Assn. v. Perry Local Educators’ Assn., supra, 460 U.S. 45-46; see also State v. Linares, supra, 232 Conn. 368-69.
Finally, the court outlined the standards for nonpublic fora. “Public property which is not by tradition or designation a forum for public communication is governed by different standards. We have recognized that the First Amendment does not guarantee access to property simply because it is owned or controlled by the government. ... In addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view. ... As we
Thus, the United States Supreme Court has made it clear that the traditional uses of, and the intent of the state with regard to, the property in question are of critical importance in a forum analysis. In the present case, we agree with the state and the trial court that state forests and undeveloped state parks are properly classified as nonpublic fora.
The policy of the state with regard to its natural resources is “to conserve, improve and protect [the state’s] natural resources and environment and to control air, land and water pollution in order to enhance the health, safety and welfare of the people of the state . . . and to manage the basic resources of air, land and water to the end that the state may fulfill its responsibility as trustee of the environment for the present and future generations.” General Statutes § 22a-1.
The state presented evidence to the trial court that state parks and forests are an important part of the state’s conservation responsibilities. Prom time immemorial, the state’s uninhabited and undeveloped land traditionally has been used for hiking, picnicking, camping, hunting, trapping and fishing. As the state has developed and become more populated, the state forests and some state parks have been preserved in an undeveloped condition so as to continue to provide opportunities for these traditional uses. They are large areas that support varied wildlife, trees and other vegetation, protect watershed systems, provide wood and function as natural ecosystems for scientific study. The state has conserved and managed its undeveloped land primarily
The defendants presented evidence that state parks and forests have been used for Native American celebrations, historical reenactments, prayer meetings, political fundraisers and the practice of witchcraft. The defendants argue that these are also traditional uses of state parks and forests, and that these uses are of such primary importance that the disputed parks and forests are properly classified as public fora. We disagree.
Public fora are not simply publicly owned areas in which communication could or might take place. Rather, they must have traditionally been used “for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. Committee for Industrial Organization, 307 U.S. 496, 515, 59 S. Ct. 954, 83 L. Ed. 1423 (1939). “[A] principal purpose of traditional public fora is the free exchange of ideas . . . .” (Emphasis added.) Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788, 800, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985). The defendants’ evidence demonstrates only that the land in question is sometimes used for a variety of activities that do not require undisturbed land, as do hunting, hiking, fishing and trapping. In light of the evidence presented by the state, however, we are not persuaded that these other activities are among the traditional uses and principal purposes for which state parks and forests are maintained.
In our recent case of Leydon v. Greenwich, supra, 257 Conn. 339-40, we considered whether a beach park
In contrast to the beach park at issue in Ley don, state forests and undeveloped state parks are defined by their lack of any facilities for public assembly or interaction, and by the state’s efforts to keep state forests and unde
In support of their claim that state forests and undeveloped state parks should be classified as public fora, the defendants cite the example of national forests, which some courts have suggested are public fora. See United States v. Rainbow Family, 695 F. Sup. 294, 308 (E.D. Tex. 1988). The defendants’ reliance on this comparison to national forests, however, is misplaced. First, the management of national forests reflects a conscious choice by authorities, in some instances, to provide a forum for public assembly and dialogue. See United States v. Griefen, 200 F.3d 1256, 1260 (9th Cir. 2000) (protest permitted anywhere in national forest except within 150 feet of temporary road construction zone); United States v. Rainbow Family, supra, 308 (regulations explicitly considered expressive activity). Second, national forests include facilities and features that are typical of developed public lands and that enhance public assembly and interaction. See United States v. Johnson, 159 F.3d 892, 894 (4th Cir. 1998) (national forest included campground). The state lands at issue in the present case, to the contrary, are undeveloped, and the state manages them with the primary goal of keeping them undisturbed.
The defendants argue, in the alternative, that state forests and undeveloped state parks are nontraditional public fora. Nontraditional public fora are state-owned properties that have not traditionally been dedicated to public discourse, but that the state has opened to be used for expressive activity. See Perry Education Assn. v. Perry Local Educators’ Assn., supra, 460 U.S. 45. Although a state is not required to open property as a public forum, once it does, and until the state
The defendants presented evidence that the state permits expressive activity in some state-owned land, and they argued that this indicates that the state has opened the disputed property for use as a nontraditional public forum. Specifically, the defendants introduced evidence that the state has implemented a permit system for such nontraditional activities as walkathons, bikathons, bike races, foot races, hikes, canoe races, winter sports activities, other sporting events, horseback events, camp-outs, boating events, orienteering, fishing and hunting events, training exercises by police departments and military organizations, and events organized by ham radio operators and model plane operators. The state also has permitted more expressive activities, such as Native American celebrations, publication of opinions on environmental issues, historical reenactments, witchcraft, prayer meetings and even political fundraising events. Finally, the defendants note that the public enjoys open access to the disputed property without a permit.
This evidence is not persuasive for several reasons. First, the less expressive permit based activities such as orienteering, campouts and sporting events are activities based upon natural resources, take advantage of the undeveloped condition of the land and therefore fit neatly into the principal purpose for which the state manages the land. The purpose for using a permit system for such activities is that they involve large numbers of people and, therefore, must be managed and monitored so as to preserve the undisturbed condition of the land. Second, the permitted expressive activities described by the defendants, such as fundraisers and prayer meetings, take place in developed state parks, and therefore do not affect the forum classification of state forests and undeveloped state parks. There is no
A state must intend to create a nontraditional public forum; the selective opening of a public property does not transform the property into a public forum. See International Society for Krishna Consciousness, Inc. v. Lee, supra, 505 U.S. 680 (“the government does not create a public forum by inaction”); United States v. Kokinda, 497 U.S. 720, 730, 110 S. Ct. 3115, 111 L. Ed. 2d 571 (1990) (“a practice of allowing some speech activities on postal property [does] not add up to the dedication of postal property to speech activities”); Cornelius v. NAACP Legal Defense & Educational Fund, Inc., supra, 473 U.S. 802 (“[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse”); Perry Education Assn. v. Perry Local Educators’ Assn., supra, 460 U.S. 47 (“We can only conclude that the schools do allow some outside organizations ... to use the [school mail] facilities. This type of selective access does not transform government property into a public forum.”); Widmar v. Vincent, supra, 454 U.S. 267 (university policy of encouraging active student groups and
Ill
SCOPE OF ACT AND STATE’S INTEREST
Having concluded that state forests and undeveloped state parks are nonpublic fora, we now consider
This court previously had deemed the act to be content-neutral, and the trial court found that the act is “narrowly tailored to serve a significant government interest, and leave [s] open ample alternative channels of communication.” Perry Education Assn. v. Perry Local Educators’ Assn., supra, 460 U.S. 45. We agree with the trial court that the act satisfies that higher standard.
Our analysis of the act must address three issues: (1) the significance of the government interest purportedly served by the act; (2) whether the act is narrowly tai
The United States Supreme Court has defined several state interests as significant in the context of a restriction on speech, including “[t]he many functions performed by Selective Service certificates”; United States v. O’Brien, 391 U.S. 367, 380, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968); “state interests in ballot integrity and political stability”; Timmons v. Twin Cities Area New Party, 520 U.S. 351, 369-70, 117 S. Ct. 1364, 137 L. Ed. 2d 589 (1997); “having an undisrupted school session conducive to the students’ learning”; Grayned v. Rockford, 408 U.S. 104, 119, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972); “the sufficiency of sound amplification at bandshell events”; Ward v. Rock Against Racism, 491 U.S. 781, 796, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989); “attempting to preserve the quality of urban life”; (internal quotation marks omitted) Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986), quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 71, 96 S. Ct. 2440, 49 L. Ed. 2d 310 (1976); and “maintaining the parks in the heart of [Washington, D.C.] in an attractive and intact condition . . . .” Clark v. Community for Creative Non-Violence, 468 U.S. 288, 296, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984).
We conclude that the state’s interests in public safety, raising revenue, wildlife management and protection of the right of citizens to hunt, which are the interests served by the act in the present case, are as significant as the interests identified in those cases. The state offered particularly compelling evidence relative to the role of hunting as a forest and wildlife management tool. Increased development in the state of Connecticut has resulted in an ecosystem that is no longer self-balancing. In particular, the deer population is not natu
The state also identified several other interests that are served by the act. The act benefits public safety both by reducing contact between activists and hunters where hunters are about to or are in the process of discharging firearms and bows, and also by reducing the number of collisions between cars and deer. In addition, regulated hunting and fishing produces significant revenue for the state. In the last fiscal year before the 1994 hearing on remand from this court, the state received $4.2 million in revenue from hunting, fishing and trapping licenses. The budget for the fish and wildlife division of the department of environmental protection was $4.9 million. Furthermore, fewer deer, raccoons, and geese limit transmission of rabies and Lyme disease. Controlling the goose population also avoids elevated levels of e.coli bacteria in water that often result from the feces of concentrations of geese. Finally, the state has an interest in providing recreational opportunities for its citizens, including hunting, trapping and fishing. In the year before the hearing, approximately 200,000 hunting, fishing and trapping licenses were issued in Connecticut. We are persuaded by this evidence that the state has a significant interest in supporting regulated hunting, trapping and fishing.
We disagree with the defendants on this issue. The defendants’ evidence neither proves that they are prohibited from individual communication with hunters nor does it prove the absence of alternative means of communicating their antihunting message. In Renton v. Playtime Theatres, Inc., supra, 475 U.S. 43, the plaintiff owners of an adult theater challenged a city ordinance that prohibited them from locating their theater within 1000 feet of any residential zone, single or multiple family dwelling, church, park or school. The plaintiffs argued that the ordinance did not leave open ample alternative means of communication because “practi
The judgment is affirmed.
In this opinion the other justices concurred.
The defendants are Catherine Ball, Arlene Corey, Derek V. Oatis and William Mannetti.
General Statutes § 53a-183a provides in relevant part: “(a) No person shall obstruct or interfere with the lawful taking of wildlife by another person at the location where the activity is taking place with intent to prevent such taking.
“(b) A person violates this section when he intentionally or knowingly: (1) Drives or disturbs wildlife for the purpose of disrupting the lawful taking of wildlife where another person is engaged in the process of lawfully taking
The first amendment to the United States constitution provides in relevant part: “Congress shall make no law . . . abridging the freedom of speech . . . .” The first amendment is applicable to the states through the fourteenth amendment. The defendants are pursuing their claim under the federal constitution only and are not challenging the act under the state constitution.
Although the defendants would like us to classify all state parks and forests as public fora, including developed state parks, in this case we are concerned only with state forests, undeveloped state parks, and developed state parks that are sometimes designated as undeveloped in order to allow hunting in special circumstances. The defendants correctly point out that the act applies equally to fishing, which can take place in developed state parks, as support for their argument we should classify all state parks together. Nevertheless, we need not classify developed state parks as public fora, nonpublic fora, or nontraditional public fora in this case. As we discuss subsequently in part III of this opinion, the act is narrowly tailored to further a significant state interest, thereby satisfying the constitutional standard for content-neutral speech restrictions in public fora, which is the most stringent standard of the three forum classifications.
The defendants argue that the act sweeps too broadly and burdens substantially more speech than necessary to protect the state’s interest. In support of this proposition, the defendants primarily rely upon Schenck v. Pro-Choice Network of Western N.Y., 519 U.S. 357, 117 S. Ct. 855, 137 L.
