Joseph Brown v. Jeffrey Kemp

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 21-1042

JOSEPH BROWN, et al.,

Plaintiffs-Appellants,

v.

JEFFREY L. KEMP, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:17-cv-00549-wmc — William M. Conley, Judge.

____________________

ARGUED SEPTEMBER 27, 2021 — DECIDED NOVEMBER 13, 2023

____________________

Before ROVNER, HAMILTON, and KIRSCH, Circuit Judges.

HAMILTON, Circuit Judge. Different constitutional rights

collide in this case. Article I, section 26 of the Wisconsin Con-

stitution protects the right to hunt. The First Amendment to

the United States Constitution protects freedom of speech.

Since 1990, Wisconsin has had a special statute making it a

crime to harass hunters in various ways. The Wisconsin legis-

lature amended the so-called “hunter harassment law” effec-

tive in 2016 in a way that raises First Amendment issues. The

2 No. 21-1042

amended law makes it a crime to interfere intentionally with

a hunter by “maintaining a visual or physical proximity” to

the hunter, by “approaching or confronting” the hunter, or by

photographing, videotaping, audiotaping, or otherwise re-

cording the activity of the hunter. Wis. Stat. § 29.083(2)(a)(7)

(2016). The three plaintiffs here oppose hunting. Plaintiffs

have observed hunters on public land and have sometimes

approached and confronted them. Plaintiffs have also photo-

graphed and filmed hunters’ activities, and plaintiffs intend

to continue all these activities. Plaintiffs assert that the prohi-

bitions of subsection (2)(a)(7) violate the First and Fourteenth

Amendments to the United States Constitution.

In this pre-enforcement challenge, the district court

granted defendants’ motion for summary judgment. The dis-

trict court found that plaintiffs lack standing to bring an as-

applied challenge to subsection (2)(a)(7) and that their facial

constitutional challenges fail on the merits. Brown v. Kemp, 506

F. Supp. 3d 649, 651 (W.D. Wis. 2020). We reverse and remand.

Part I lays out relevant facts and procedural history. Part

II begins our analysis by parsing the statutory text to focus the

constitutional issues. Part III explains that plaintiffs have

standing to bring both their as-applied and facial challenges

prior to formal enforcement efforts because subsection

(2)(a)(7) has been used to harass and intimidate them and has

caused them to refrain from engaging in activity protected by

the First Amendment. On the merits, Part IV explains that the

clauses of subsection (2)(a)(7) are unconstitutionally vague

and/or overbroad. Finally, Part V explains that subsection

(2)(a)(7) discriminates against speech and expressive activity

based on viewpoint and that defendants have not offered jus-

tifications for the provision that satisfy strict scrutiny.

No. 21-1042 3

I. Factual & Procedural Background

A. Facts

Plaintiffs are members of or associated with Wolf Patrol,

an organization that opposes hunting and monitors and doc-

uments hunting activities on public lands throughout Wis-

consin to ensure that hunters comply with state regulations.

Plaintiffs also seek to educate the public about hunting in Wis-

consin. Plaintiff Joseph Brown, a professor at Marquette Uni-

versity, opposes wolf hunting. He makes documentary films

to further debate. He has been filming wolf hunters and Wolf

Patrol’s monitoring activities for several years as part of a doc-

umentary film about the pros and cons of wolf hunting in

Wisconsin. Working with volunteers with Wolf Patrol, he has

amassed over 300 hours of documentary video of hunting in

Wisconsin.

Plaintiff Stephanie Losse is an environmental and animal-

rights advocate and Wolf Patrol volunteer. She monitors

hunting activities for illegal and inhumane conduct and takes

photographs and videos of hunting activities to use in educa-

tional materials for the public. Plaintiff Louis Weisberg is a

journalist who has a professional interest in documenting and

reporting on hunting in Wisconsin. Weisberg advocates on

behalf of Wisconsin wolves and bears and, through his work,

provides an outlet for organizations like Wolf Patrol to share

with the public their perspective on issues related to hunting.

After subsection (2)(a)(7) of the amended hunter harass-

ment law took effect in 2016, plaintiffs Brown and Losse had

a number of encounters with hunters and law enforcement

officers, including repeated stops for questioning by law en-

forcement and harassment by hunters, in the course of

4 No. 21-1042

plaintiffs’ monitoring and documenting activities, including

photographing and filming of hunting. All activities relevant

to this case have occurred on public lands where both hunters

and plaintiffs were legally entitled to be present.

While monitoring hunters on Wisconsin public lands,

plaintiff Losse has been stopped by hunters who have accused

her of harassment and called law enforcement to the scene.

Losse testified that despite her best efforts to comply with the

hunter harassment law, she and her colleagues are “regularly

stopped and questioned by sheriff’s deputies, state police,

and DNR officers.” On one occasion, a hunter stepped out

into the road to stop a Wolf Patrol vehicle that Losse was rid-

ing in and told her that “there’s a law in the state now that

[you] can’t be in the area.” On another occasion, in 2015, a

Polk County sheriff’s deputy told Losse that she would be

cited for violating the hunter harassment law even before the

amendments on photography and video recordings took ef-

fect. The deputy did not issue the citation because he experi-

enced technical difficulties when trying to prepare one. In

other words, Losse was taken right to the brink of an enforce-

ment action against her for protected activity.

Plaintiff Brown too has had encounters with both hunters

and law enforcement that have also gone to the brink of an

enforcement action against him. Hunters, seeing Professor

Brown and Wolf Patrol filming, have “become irate,” ap-

proached Brown, and demanded that he and the film crew

hand over their footage. Hunters have confronted Brown and

Wolf Patrol monitors, surrounding them, using their vehicles

to prevent Brown and the others from passing through public

roads, and detained them “for hours at a time” while waiting

for law enforcement to arrive. During these confrontations, in

No. 21-1042 5

addition to “yelling” and “name-calling,” hunters have

threatened Brown and the Wolf Patrol monitors. One hunter

told Brown (incorrectly) that he “cannot legally videotape a

hunt in Wisconsin.” Brown believes, quite reasonably, that

this was a reference to the new subsection (2)(a)(7) in the law.

He also claims that hunters have, during these encounters, as-

serted to him and to the Wolf Patrol that they, the hunters,

were themselves “officer[s] of the law.” Regardless of Brown’s

account of the statements directed to him, it is undisputed

that hunters have repeatedly told Brown that they cannot be

photographed and that hunters have repeatedly referred to

the hunter harassment law when speaking to law enforce-

ment officers responding to their calls for help in stopping

Brown from continuing to film and observe them.

Plaintiffs’ standing and claims in this case are not based,

however, on hunters’ misstatements or exaggerations of the

law. Law enforcement officers have also “many times”

stopped Brown and Wolf Patrol members he has been work-

ing with to ask them why they were “making multiple passes

through an area.” On one occasion, “the responding officer

questioned [Brown] and the Wolf Patrol members for over an

hour,” taking that time to “explain[ ]” the hunters’ concerns

and to obtain information about Brown and the Wolf Patrol

members’ activities.

The most significant such incident took place in January

2018, shortly after this case was filed. Brown and Wolf Patrol

members were doing documentary work in Forest County. A

large group of hunters surrounded Brown and the Wolf Patrol

members with their trucks, barricading them in while law en-

forcement was called. One hunter said, “Block ‘em in so we

can wait for the game warden to get here. We’ve got ‘em

6 No. 21-1042

f***ed.” The hunters proceeded to berate Brown and the Wolf

Patrol members, “using foul language and threatening to beat

them up and run them over.” At one point in the angry con-

frontation, a hunter drove his pickup truck to bump a mem-

ber of the Wolf Patrol multiple times. The hunters called law

enforcement.

Forest County sheriff’s deputies responded, and Brown

was questioned about his filming activities. Thinking that

Brown may have recorded disputed events in this angry con-

frontation, deputies seized all of Brown’s filming equipment

and footage, including four cameras, two memory cards, a mi-

crophone, batteries, all videography accessories, and a cell-

phone. Law enforcement told Brown that they would be seek-

ing a warrant to search his footage.

Twelve days later, deputies applied for and obtained a

warrant to search Brown’s devices and to view his film foot-

age. The warrant application said that Brown’s devices and

footage could constitute evidence of violations of Wisconsin’s

hunter harassment law, as well as four other Wisconsin stat-

utes. 1 After searching and viewing all videos and footage

seized from Brown, the Sheriff’s Department sent the record-

ings to the District Attorney, defendant Charles Simono, for

review. In August 2018, a little more than a year after this law-

suit was filed, District Attorney Simono stated by sworn dec-

laration that no charges would be brought against Professor

Brown based on the January 2018 incident. Around that same

time, Professor Brown’s equipment and recordings were re-

turned to him, roughly seven months after they were seized.

1 The other statutes listed in the warrant were for disorderly conduct,

harassment, obstructing law enforcement, and battery.

No. 21-1042 7

In response to these encounters with hunters and law en-

forcement, plaintiffs Losse and Brown have adjusted their

monitoring, filming, and documenting activities. Losse does

not go on as many monitoring trips and takes fewer pictures

when she does. Both she and Brown now stick to federally

owned land and avoid visiting state-owned land. Even on

federal lands, plaintiffs stay on the public roads, largely keep-

ing to their vehicles, and they do not “venture into the forest

to get better footage, as they otherwise would but for the Stat-

ute.” Brown no longer films in Polk or Forest Counties. For

his part, plaintiff Weisberg testified to feeling chilled in his

ability to report on hunting in Wisconsin because, under the

amended hunter harassment law, he now “fears sending jour-

nalists into the field to document” and report on “hunter ac-

tivity in Wisconsin.”

B. Procedural History

In July 2017, plaintiffs filed this suit seeking a declaration

that subsection (2)(a)(7) of the Wisconsin hunter harassment

law is unconstitutional both on its face and as applied to them,

as well as an injunction against enforcement of the challenged

provision. They argued that subsection (2)(a)(7) is unconstitu-

tionally vague and overbroad, chills the exercise of their First

Amendment rights, is viewpoint-based, and fails to survive

strict scrutiny.

After discovery and on cross-motions for summary judg-

ment, the district court granted summary judgment to the de-

fendants. Brown, 506 F. Supp. 3d at 651. In the district court’s

view, plaintiffs lack standing to bring their as-applied chal-

lenges, “effectively clos[ing] the door to any content or view-

point-based challenges.” Id. at 659. The district court rejected

8 No. 21-1042

the overbreadth and vagueness challenges on the merits. Id.

at 660–63. Plaintiffs have appealed.

II. Wisconsin’s Hunter Harassment Law

Wisconsin enacted its first hunter harassment law in 1990.

See Wis. Stat. § 29.223 (1990), later recodified as § 29.083.

Plaintiffs do not challenge here any provisions of the original

law, which was construed to apply only to physical interfer-

ence with hunting and fishing. State v. Bagley, 164 Wis. 2d 255,

474 N.W.2d 761 (Wis. App. 1991). Effective in 2016, the Wis-

consin legislature amended the statute to add prohibitions on

“maintaining a visual or physical proximity” to a hunter, “ap-

proaching or confronting” a hunter, and “photographing,

videotaping, audiotaping,” or otherwise monitoring or re-

cording a hunter’s activities. See Wis. Stat. § 29.083(2)(a)(7).

On appeal, defendants have taken the position that the

2016 amendments did not effectively add any new prohibi-

tions to the hunter harassment law. Recording of Oral Argument

at 20:45–20:55, 28:30–30:00. We thus begin our legal analysis

by parsing relevant aspects of the original hunter harassment

law and the 2016 amendments.

A. The Original Version from 1990

As enacted in 1990, Wisconsin’s hunter harassment law es-

tablished two broad prohibitions in subsections (a) and (b):

(a) No person may interfere or attempt to inter-

fere with lawful hunting, fishing or trapping

with the intent to prevent the taking of a wild

animal by doing any of the following:

No. 21-1042 9

1. Harassing a wild animal or by engaging

in an activity that tends to harass wild

animals.

2. Impeding or obstructing a person who is

engaged in lawful hunting, fishing or

trapping.

3. Impeding or obstructing a person who is

engaged in an activity associated with

lawful hunting, fishing or trapping.

4. Disturbing the personal property of a

person engaged in lawful hunting, fish-

ing or trapping.

5. Disturbing a lawfully placed hunting

blind.

(b) No person may knowingly fail to obey the

order of a warden or other law enforcement of-

ficer to desist from conduct in violation of par.

(a) ….

§ 29.223(2)(a)–(b) (1990). The statute recognized an affirmative

defense based on federal and state constitutional rights of

freedom of speech. § 29.223(3m) (1990).

The statute did not limit enforcement to public prosecu-

tors and law-enforcement officials. It also created a private

right of action. A person “who is adversely affected by, or

who reasonably may be expected to be adversely affected by,

conduct that is in violation” of the statute may “bring an ac-

tion in circuit court for an injunction or damages or both.”

§ 29.223(4)(a) (1990).

10 No. 21-1042

Soon after the law took effect, several defendants were

cited for violating the law by using their boat to block Native

American spear-fishermen from launching their own boat. A

trial court dismissed the citations on constitutional grounds,

but the Wisconsin Court of Appeals rejected those constitu-

tional challenges and reversed. Bagley, 474 N.W.2d at 766. The

court held that “the statute limits its application to physical

interference….” Id. at 764. The statute’s use of “impeding”

and “obstructing,” the court determined, applied only to

“physical interference or obstruction, not verbal.” Id.

B. The 2016 Amendments

Effective in 2016, the Wisconsin legislature amended the

statute. Wis. Stat. § 29.083. We reproduce the relevant subsec-

tions here, with 2016 additions shown in bold.

(2) Prohibitions. (a) No person may interfere or

attempt to interfere with lawful hunting,

fishing, or trapping with the intent to pre-

vent the taking of a wild animal, or inten-

tionally interfere with or intentionally at-

tempt to interfere with an activity associ-

ated with lawful hunting, fishing, or trap-

ping, by doing any of the following:

1. Harassing a wild animal or by engaging

in an activity that tends to harass wild

animals.

2. Impeding or obstructing a person who is

engaged in lawful hunting, fishing or

trapping.

No. 21-1042 11

3. Impeding or obstructing a person who is

engaged in an activity associated with

lawful hunting, fishing or trapping.

4. Disturbing the personal property of a

person engaged in lawful hunting, fish-

ing or trapping.

5. Disturbing a lawfully placed hunting

blind or stand.

6. Disturbing lawfully placed bait or other

material used to feed or attract a wild

animal.

7. Engaging in a series of 2 or more acts

carried out over time, however short or

long, that show a continuity of purpose

and that are intended to impede or ob-

struct a person who is engaged in law-

ful hunting, fishing, or trapping, or an

activity associated with lawful hunting,

fishing, or trapping, including any of

the following:

a. Maintaining a visual or physical

proximity to the person.

b. Approaching or confronting the per-

son.

c. Photographing, videotaping, audi-

otaping, or through other electronic

means, monitoring or recording the

activities of the person. This subd. 7.

12 No. 21-1042

c. applies regardless of where the act

occurs.

d. Causing a person to engage in any of

the acts described in subd. 7.a. to c.

8. Using a drone, as defined in

s. 941.292(1), to conduct any activity pro-

hibited under subds. 1. to 7.

§ 29.083(2)(a) (2016). The amendment also increased fines and

authorized much heavier fines and imprisonment for repeat

offenses. § 29.971(11r). The private right of action and the af-

firmative defense under the First Amendment were not

changed.

We focus here on the new subsection (2)(a)(7), which ex-

pands the list of acts that can constitute interference so long

as “a series of 2 or more” of those acts is “carried out over

time, however short or long,” and the acts “show a continuity

of purpose and … are intended to impede or obstruct a person

who is engaged in lawful hunting, fishing, or trapping, or an

activity associated with lawful hunting, fishing, or trapping.”

§ 29.083(2)(a)(7). 2 Qualifying acts include but are not limited

to: (a) “Maintaining a visual or physical proximity to the per-

son”; (b) “Approaching or confronting the person”; (c) “Pho-

tographing, videotaping, audiotaping, or through other elec-

tronic means, monitoring or recording the activities of the

2 The Wisconsin Court of Appeals has found that a series of acts car-

ried out in “about three minutes” satisfied the “carried out over time,

however short or long” component of the statute. State v. Froebel, 387 Wis.

2d 686, 928 N.W.2d 810, 812 (Wis. App. 2019).

No. 21-1042 13

person … regardless of where the act occurs”; and (d) “Caus-

ing a person to engage in any” of these acts. § 29.083(2)(a)(7).

Defendants argue that subsection (2)(a)(7) does not ex-

pand the reach of the statute. The theory seems to be that any

conduct prohibited by (2)(a)(7) was already prohibited by the

original statute, and that the new (2)(a)(7) only added the ex-

tra requirement for two or more related acts carried out over

time and showing a continuity of purpose. If that were cor-

rect, the Bagley restriction of the statute to “physical interfer-

ence” would remain intact and plaintiffs should, in theory,

have nothing to worry about from the amendment. On that

rosy hypothesis, any angry confrontation should be resolved

with a calm, lawyerly explanation to angry hunters that the

2016 addition of subsection (2)(a)(7) was an empty political

gesture.

This contention cannot be squared with the language of

the amendment. Subsection (2)(a)(7) added three prohibitions

that do not entail any sort of physical interference with or ob-

struction of hunting: maintaining a visual or physical proxim-

ity to a hunter, approaching or confronting a hunter, and pho-

tographing, videotaping, audiotaping or otherwise monitor-

ing or recording the activity of the hunter. Each can occur

without any physical interference. To the extent the defend-

ants argue that this portion of the legislature’s amendment

was futile or symbolic, having no practical effect, we doubt

that is a sound way of interpreting a statute, particularly one

that uses language so clearly reaching beyond the prior ver-

sion as limited by the state courts. See State ex rel. Kalal v. Cir-

cuit Court for Dane County, 271 Wis. 2d 633, 663, 681 N.W.2d

110, 124 (Wis. 2004) (Sykes, J.) (under Wisconsin law, statu-

tory interpretation must focus on language of the statute,

14 No. 21-1042

which is read where possible “to give reasonable effect to

every word, in order to avoid surplusage”); accord, Wittman

v. Koenig, 831 F.3d 416, 422 (7th Cir. 2016) (applying Wisconsin

rules of statutory interpretation); A. Scalia & B. Garner, Read-

ing Law 174–79 (2012) (summarizing canon against surplus-

age).

The dissenting opinion disagrees with this reading of the

statute, arguing that subsection (2)(a)(7) incorporates the Bag-

ley requirement of physical interference or obstruction in the

new provisions. The dissenting opinion relies on the general

principle of statutory construction that when a legislature

uses language that has a settled judicial interpretation, courts

should ordinarily carry over the old interpretation to the new

use of that language. Post at 72. That is generally true, at least

absent clear indications of a different intent. Id. at 73, quoting

United States v. Johnman, 948 F.3d 612, 619 (3d Cir. 2020). But

here, we have such clear indications in the logical and linguis-

tic gap between physical interference and the activities newly

prohibited by subsection (2)(a)(7).

If the new subsection (2)(a)(7) incorporates Bagley’s physi-

cal-interference limit, what does it prohibit that was not al-

ready prohibited? In oral argument, we asked counsel for de-

fendants several times to identify conduct prohibited by the

new subsection (2)(a)(7) that was not already prohibited by

the earlier version of the statute. Defendants were unable to

identify such an example. The dissenting opinion, which

would also incorporate the physical obstruction requirement

No. 21-1042 15

into the new subsection (2)(a)(7), also has not identified such

an example. 3

The defendants and the dissenting opinion are unable to

identify an example because the substantive content of sub-

section (2)(a)(7) precludes any reading of the statute that in-

cludes a physical-interference requirement. To the extent the

defendants’ or the dissenting opinion’s view of new subsec-

tion (2)(a)(7) depends on that physical-interference require-

ment, the amended provisions seem to point to an empty set.

That is not a sound reading of the statute.

Nevertheless, the dissenting opinion insists there is “noth-

ing futile or symbolic about the legislature passing a new stat-

ute that prohibits a person from engaging in a series of acts

akin to stalking with the intent to physically interfere with a

person engaged in hunting activities.” Post at 75. The dissent-

ing opinion points out that the new subsection (2)(a)(7) was

3 The dissenting opinion tries to offer examples at pages 76–77 with

the hypothetical behavior of “Photographer B” who tries but fails to posi-

tion herself between hunter and prey. The first problem is that the exam-

ples clearly describe unsuccessful attempts to interfere physically with

hunting, foiled only by the movement of the prey. Such attempts were al-

ready criminal under the 1990 version of the hunter harassment law. See

Wis. Stat. § 29.083(2)(a) (“No person may interfere or attempt to inter-

fere….”). The dissenting opinion then tries to dig in more deeply, seeking

a meaningful difference between interfering with a hunt and interfering

with a hunter. Moreover, even if there were any substance to these trivial

examples, note that nothing in the examples depends at all on “Photogra-

pher B” having or using a camera. Yet the text of subsection (2)(a)(7)

makes photography and video recording of hunting its prime targets. The

dissenting opinion’s attempt to find an example has lost touch with the

statutory language and scope, reducing the new law to something the leg-

islature would not recognize.

16 No. 21-1042

framed in terms that echo the Wisconsin criminal statute on

stalking, Wis. Stat. § 940.32. That statute includes prohibitions

on “Maintaining a visual or physical proximity to the victim;”

“Approaching or confronting the victim;” and “Photo-

graphing, videotaping, audiotaping, or, through any other

electronic means, monitoring or recording the activities of the

victim. This subdivision applies regardless of where the act

occurs.” § 940.32(1)(a). The dissenting opinion seems to imply

that if we agree that if those provisions of the stalking statute

do not point to an empty set, that is, criminalize behavior that

would otherwise be legal, so too do the hunter-harassment

amendments.

There are important differences, however, in the intent re-

quirements for the two statutes that refute this argument. 4

Stalking activities are prohibited when they “would cause a

reasonable person under the same circumstances to suffer se-

rious emotional distress or to fear bodily injury to or the death

of himself or herself or a member of his or her family or house-

hold.” § 940.32(2)(a). By comparison, the new subsection

(2)(a)(7) in the hunting harassment statute does not include

such an element of emotional distress or fear, but it does tack

on an additional requirement of intent to impede or obstruct

hunting or fishing. The stalking statute has no such require-

ment for intent to impede or obstruct the victim. This differ-

ence makes clear that under the stalking statute, the prohib-

ited activities do not require any physical interference with

the victim, nor any intent to do so. As we explained above, it

is the “intent to physically interfere with stalking”

4 We discuss the significance of these differences in more detail in our

discussion of the vagueness of subsection (2)(a)(7)(a)-(b), below at pages

49–50.

No. 21-1042 17

requirement advocated by the dissenting opinion that would

leave the new subsection (2)(a)(7) pointing to an empty set.

The parallels to the stalking statute, then, cannot solve the log-

ical problems created by adding a “physical interference” re-

quirement to subsection (2)(a)(7).

Even if the text itself did not provide sufficient certainty of

the legislature’s intent to expand the scope of prohibited ac-

tivities to include non-physical interference, the legislative

history of the hunter-harassment law removes any doubt. The

Senate sponsor of the bill that added subsection (2)(a)(7) ex-

plained the bill to the Senate committee: “Currently, the law

prohibits a person from intentionally interfering with hunt-

ing, trapping and fishing by harassing a wild animal or im-

peding a person engaged in lawful hunting. This bill would

expand prohibited behaviors to include disturbing a lawfully

placed stand or lawfully placed bait or other feed, systemati-

cally photographing and videotaping hunters, or using a drone for

these purposes. The bill will also increase penalties to those

engaging in this type of behavior.” Dkt. 47-4 emphases added.

The House sponsor made clear in his testimony that the new

law was intended to “strengthen” the old law because it was

not sufficient to prevent what he described as Wolf Patrol’s

harassment of and interference with hunters that was not

physical in nature. Dkt. 36-3 at 3–4.

Accordingly, we reject the assertion that Bagley’s re-

striction to physical interference or obstruction carries over to

the new prohibitions of subsection (2)(a)(7). As relevant here,

a person violates this subsection if he or she (1) intends to im-

pede or obstruct a hunter or hunting activity and (2) interferes

or attempts to interfere by (3) engaging in at least two of the

following acts: photographing, videotaping, audiotaping,

18 No. 21-1042

monitoring, recording, approaching, confronting, or main-

taining visual or physical proximity to a hunter or member of

a hunting party.5

III. Standing

The district court found that plaintiffs lack standing for

their facial challenges to subsection (2)(a)(7), while defend-

ants argue that plaintiffs lack standing for any of their

5 The dissenting opinion suggests we use Circuit Rule 52 to certify to

the Wisconsin Supreme Court the question whether new subsection

(2)(a)(7) includes a requirement of physical obstruction or interference

with hunting. Cf. Indiana Right to Life Victory Fund v. Morales, 66 F.4th 625,

632–33 (7th Cir. 2023) (certifying statutory question to Indiana Supreme

Court); Citizens for John W. Moore Party v. Board of Election Comm’rs, 781

F.2d 581, 583–84 (7th Cir. 1986) (Easterbrook, J., dissenting) (noting that

this court is “bombarded” with requests to certify questions to state courts

but regularly declines unless question is “unusually close and difficult”).

The parties have not suggested we take that step. The new statutory lan-

guage, the absence of an explanation for how audiovisual recording or

other electronic monitoring activity could physically interfere with hunt-

ing, and the corroborating evidence that the new subsection (2)(a)(7) was

in fact intended to expand the prohibitions all weigh heavily in favor of

our interpretation of the new language as expanding the law beyond the

already-illegal physical interference, and even as aimed at plaintiffs’ ac-

tivities in particular. Waiting for state courts to interpret a challenged stat-

ute is appropriate where a state law is susceptible to a reasonable inter-

pretation that would remove or substantially alter the federal constitu-

tional issue. See Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289,

306, quoting Harman v. Forssenius, 380 U.S. 528, 534 (1965) (contemplating

abstention by federal courts only “where the issue of state law is uncer-

tain”). In this case, given these considerations and the defendants’ and the

dissenting opinion’s inability to identify under their interpretations an ap-

plication for the new subsection (2)(a)(7) that would not already have been

criminal before the amendment, we do not see a need to take the extra step

of certification to the state courts.

No. 21-1042 19

challenges. We find that plaintiffs have shown their standing

to bring all their challenges.

A. General Standards

Article III of the United States Constitution limits the ju-

risdiction of federal courts “to the resolution of ‘Cases’ and

‘Controversies.’” TransUnion LLC v. Ramirez, 141 S. Ct. 2190,

2203 (2021). To invoke “the federal judicial power,” a plaintiff

must have standing—a “‘personal stake’ in the case.” Id.,

quoting Raines v. Byrd, 521 U.S. 811, 819 (1997). Standing anal-

ysis centers on whether the plaintiff has suffered or is likely

to suffer an “injury in fact.” Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 (1992). To establish standing, the plaintiff’s

injury must satisfy three fundamental requirements: an injury

that (1) is concrete and particularized, (2) was or will be

caused by the defendant, and (3) likely will be remedied by a

favorable judgment. E.g., Lujan, 504 U.S. at 560–61. Future in-

juries must be “imminent, not ‘conjectural’ or ‘hypothetical.’”

Id. at 560, quoting Whitmore v. Arkansas, 495 U.S. 149, 155

(1990), quoting in turn Los Angeles v. Lyons, 461 U.S. 95, 102

(1983).

B. Pre-Enforcement Challenges

Plaintiffs have not actually been cited for violating the

hunter harassment law, so they rely on a long line of cases

allowing pre-enforcement challenges to laws that deter the

exercise of constitutional rights, especially First Amendment

rights. A party who is the target of an unconstitutional law

need not expose himself to liability before challenging its con-

stitutionality if there are “circumstances that render the

threatened enforcement sufficiently imminent.” Susan B. An-

thony List v. Driehaus, 573 U.S. 149, 158–59 (2014); accord, e.g.,

20 No. 21-1042

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298

(1979); Steffel v. Thompson, 415 U.S. 452, 459 (1974). In the lan-

guage of Lujan, a plaintiff may establish a sufficient threat of

an imminent future injury rather than a past injury.

To demonstrate such circumstances, the plaintiff must

show “an intention to engage in a course of conduct arguably

affected with a constitutional interest, but proscribed by [the]

statute.” Babbitt, 442 U.S. at 298; Sweeney v. Raoul, 990 F.3d 555,

559 (7th Cir. 2021). Both Babbitt and later cases have also made

clear that a plaintiff does not need to show or confess that her

intended conduct will actually violate the statute in question

if enforcement is likely against her. Babbitt, 442 U.S. at 301–02

(plaintiffs had standing to challenge prohibition on dishonest

publicity, even though they did not “plan to propagate un-

truths,” since “erroneous statement is inevitable in free de-

bate”); accord, Susan B. Anthony List, 573 U.S. at 158‒59 (re-

versing denial of standing on precisely this basis, making

same point, and discussing Babbitt and other cases). Plaintiffs

may also establish standing based on a current injury if they

have resorted to self-censorship out of “an actual and well-

founded fear” that the law will be enforced against them. Vir-

ginia v. American Booksellers Ass’n, 484 U.S. 383, 393 (1988). In

other words, to ensure that the risk of prosecution is “credi-

ble,” Babbitt, 442 U.S. at 298, plaintiffs must demonstrate that

their fear is both actual and reasonable. A plaintiff whose

fears of prosecution are merely “imaginary or speculative”

will lack standing to challenge a law. Babbitt, 442 U.S. at 298,

quoting Younger v. Harris, 401 U.S. 37, 42 (1971).

To show standing, plaintiffs are not required to show that

they will win on the merits of their constitutional claims. See

Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (standing

No. 21-1042 21

sufficient for pre-enforcement review but plaintiffs lost on

merits of constitutional claims). To suffice for standing, and

to avoid confusing standing with the merits, plaintiffs’ in-

tended course of conduct need only be “arguably” affected by

constitutional interests, and “arguably” proscribed by the

challenged statute. Babbitt, 442 U.S. at 298.

C. Plaintiffs' Showing of Standing

Plaintiffs Brown, Losse, and Weisberg have come forward

with evidence sufficient to show standing to bring this pre-

enforcement challenge to subsection (2)(a)(7). Plaintiffs’ con-

duct includes expressive activity protected by the First

Amendment, meaning that their conduct is “affected by a con-

stitutional interest.” Babbitt, 442 U.S. at 298. Plaintiffs have

shown that their constitutionally protected conduct falls at

least arguably within the statute’s prohibitions. See id. Plain-

tiffs have also offered evidence that, in response to the new

law and preliminary enforcement steps, they have resorted to

self-censorship out of “an actual and well-founded fear” of

enforcement proceedings against them.

1. Plaintiffs’ Past and Intended Conduct

Plaintiffs Brown, Losse, and Weisberg each testified to dis-

tinct courses of conduct in relation to monitoring and docu-

menting hunting and trapping activity in Wisconsin. Plaintiffs

Brown and Losse are either affiliated with or have worked

with Wolf Patrol, a group with the avowed purpose of “mon-

itoring hunters and trappers in the woods and fields, photo-

graphing and taking videos of them, and using the images

they created and information they obtained to publicize their

views about hunting and educate the public.”

22 No. 21-1042

Professor Brown opposes wolf hunting, making documen-

tary films to further debate. He has been filming wolf hunters

and Wolf Patrol’s monitoring activities for several years as

part of his documentary film about the pros and cons of wolf

hunting in Wisconsin. Working with volunteers with Wolf Pa-

trol, he has amassed over 300 hours of documentary video

footage of hunting in Wisconsin. When plaintiffs filed this

case, Brown’s objective was to make a feature-length docu-

mentary film about wolf hunting in Wisconsin and the con-

troversies surrounding it.

Plaintiff Stephanie Losse is an environmental and animal-

rights advocate and Wolf Patrol volunteer. In monitoring

hunts as a volunteer with Wolf Patrol, Losse says, she does

not intend to interfere with hunters. Rather, her purposes are

(1) to monitor hunting activities for illegal and inhumane con-

duct and (2) to photograph and film hunting activities to use

in educational materials for the public. When plaintiffs filed

this case, Losse planned to continue monitoring excursions

with Wolf Patrol the following summer during hound-train-

ing season, when clashes between wolves and hounds are

particularly common. Her ability to document these hunting

practices will assist her in communicating her views on hunt-

ing.

Plaintiff Louis Weisberg is the publisher and editor-in-

chief of the Wisconsin Gazette, a publication that serves as Wis-

consin wolf activists’ “go-to media outlet” for directing public

attention to issues related to hunting and wildlife in the state.

He relies primarily on information gathered by reporters who

go into the field to document and report on hunter activity in

Wisconsin. But because subsection (2)(a)(7) also makes it a

crime to cause another person to engage in a violation of the

No. 21-1042 23

subsection, Weisberg “fear[s] sending journalists into the field

to document this type of information.” Weisberg testified that

the statutory limits on documenting hunting and trapping ac-

tivities significantly chill his ability to report on hunting as an

issue of significant public concern.

Plaintiffs Brown and Losse have testified that they intend

to continue documenting hunters through photography and

videography to share their views about wolf hunting, to edu-

cate the public about hunting and trapping in Wisconsin, and

to further public debate on the issue. Plaintiff Weisberg has

testified that he intends for the Wisconsin Gazette to report on

hunting more than it currently does, but he is afraid to send

his reporters into the field to obtain the needed firsthand doc-

umentation of hunting and trapping activity.

2. Conduct Affected With a Constitutional Interest

Defendants argue that plaintiffs’ activities are pure con-

duct and are so clearly not protected by the First Amendment

that they cannot show standing for a pre-enforcement chal-

lenge. We disagree. Plaintiffs’ activities utilize “a significant

medium for the communication of ideas” as an “organ of pub-

lic opinion,” long recognized as protected by the First

Amendment. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501

(1952) (striking down state law requiring license to show films

to prevent showing of sacrilegious or immoral films). Because

plaintiffs’ activities are so closely tied to expression, they are

“affected with a constitutional interest.” See Babbitt, 442 U.S.

at 298.

Newspapers like the Wisconsin Gazette published by plain-

tiff Weisberg are the archetypal “organ of public opinion.”

Burstyn, 343 U.S. at 501; see New York Times Co. v. Sullivan, 376

24 No. 21-1042

U.S. 254, 266 (1964) (calling newspapers “an important outlet

for the promulgation of information and ideas”). Photographs

and audiovisual recordings of the sort made by plaintiffs

Brown and Losse are also a “medium for the communication

of ideas” and subject to First Amendment protection. Burstyn,

343 U.S. at 501. A statutory prohibition on a particular me-

dium “inevitably affects” expression by restricting communi-

cation within and through the medium. See Brown v. Enter-

tainment Merchants Ass’n, 564 U.S. 786, 790 (2011) (video

games); Reno v. American Civil Liberties Union, 521 U.S. 844, 868

(1997) (internet); City of Ladue v. Gilleo, 512 U.S. 43, 48 (1994)

(signs placed on real property).

First Amendment protection extends to activities neces-

sary to produce and disseminate speech within a protected

“medium for the communication of ideas.” Burstyn, 343 U.S.

at 501. Plaintiffs in this case conduct their newsgathering op-

erations and create their photographs and audiovisual re-

cordings with an audience in mind: the people of Wisconsin.

They intend for their documentary evidence of hunting activ-

ities to function as an “organ of public opinion” on issues sur-

rounding hunting. Id. We have held that the “act of making an

audio or audiovisual recording is necessarily included within

the First Amendment’s guarantee of speech and press rights

as a corollary of the right to disseminate the resulting record-

ing.” American Civil Liberties Union of Illinois v. Alvarez, 679

F.3d 583, 595 (7th Cir. 2012) (prohibition on audio recording

of police officers in public settings violated First Amendment)

(emphasis in original). So long as the medium is understood

to enable “expression and communication,” use of that me-

dium is protected by the First Amendment, whether the idea

communicated is reducible to words or not. See Ward v. Rock

Against Racism, 491 U.S. 781, 790 (1989) (protecting music as a

No. 21-1042 25

medium). Plaintiffs use photography and audiovisual record-

ing to affect public discourse. “[T]here is no fixed First

Amendment line between the act of creating speech and the

speech itself.” ACLU v. Alvarez, 679 F.3d at 596, citing Ander-

son v. City of Hermosa Beach, 621 F.3d 1051, 1061–62 (9th Cir.

2010). The First Amendment covers plaintiffs’ photographic

and audiovisual recording activities and plaintiff Weisberg’s

newsgathering activities. 6

3. Conduct Arguably Proscribed by the Statute

To support standing for pre-enforcement review, plain-

tiffs’ intended course of conduct must be at least arguably

proscribed by the challenged statute. See, e.g., Babbitt, 442 U.S.

at 298. The hunter harassment statute includes both act and

intent elements. Plaintiffs’ intended actions of photographing,

filming, and monitoring hunting activity fall within the acts

that can be reached by subsection (2)(a)(7). Defendants argue,

however, that plaintiffs’ activities cannot fall within the stat-

ute because plaintiffs deny that they intend to impede or ob-

struct hunting. For reasons described below, we disagree. The

statute can cause injury and a chilling effect sufficient for

standing even if plaintiffs would have winning defenses in ac-

tual prosecutions.

6 Defendants also argue that the statute’s inclusion of an affirmative

defense based on the First Amendment puts any expressive conduct be-

yond the scope of the statute. See § 29.083(3m). Of course, the statutory

recognition of a First Amendment defense does not weaken the case for

standing. That affirmative defense is available in any criminal prosecu-

tion, whether the statute refers to it or not. Any person accused of a crime

can assert that she is being prosecuted for protected activity or speech.

26 No. 21-1042

a. Activities Covered by Subsection (2)(a)(7)

Subsection (2)(a)(7) on its face prohibits plaintiffs’ planned

activities, at least if done with the prohibited intent. Recall

that the statute makes criminal “[e]ngaging in a series of 2 or

more acts” that include “maintaining a visual or physical

proximity to the person” and “photographing, videotaping,

audiotaping, or through other electronic means, monitoring

or recording the activities of the person” engaged in lawful

hunting or trapping. Wis. Stat. § 29.083(2)(a)(7).

In their activity with Wolf Patrol, described above, plain-

tiffs Brown and Losse routinely photograph and film hunters

as a part of their constitutionally protected monitoring and

recording activity. To do so, plaintiffs must necessarily main-

tain “visual … proximity to the person” engaged in hunting.

§ 29.083(2)(a)(7)(a). The statute also outlaws “causing a per-

son to engage in any of the acts described” in the same sub-

section, which can apply to plaintiff Weisberg when he sends

journalists to report on hunting in Wisconsin. See

§ 29.083(2)(a)(7)(d). The protected activities of all three plain-

tiffs fall within the acts subject to the statute.

If there were any doubt that the statute’s text applies to

plaintiffs’ activities, it would be removed by the history of

subsection (2)(a)(7). Plaintiffs have offered evidence that the

new subsection (2)(a)(7) was aimed directly at them and their

associates in Wolf Patrol, adding to the likelihood that their

conduct falls within its ambit. The legislative sponsors of the

2016 amendments singled out Wolf Patrol’s activities to show

the need for those amendments. Dkt. 36-3 at 4.

No. 21-1042 27

b. Intent and the Risk of Enforcement

As noted, defendants argue that plaintiffs have nothing to

fear from subsection (2)(a)(7) because plaintiffs say they do

not intend to “interfere” with or “impede or obstruct” lawful

hunting, fishing, or trapping. Wis. Stat. § 29.083(2)(a). We dis-

agree. The Supreme Court and this court have repeatedly held

that plaintiffs can show standing for pre-enforcement chal-

lenges even where they disclaim the intent needed to violate

a challenged statute.

In Babbitt, a statute made it an unfair labor practice to en-

courage consumers to boycott an agricultural product by use

of “dishonest, untruthful and deceptive publicity.” 442 U.S. at

301. Plaintiffs intended to encourage consumer boycotts. They

did not intend to use dishonest, untruthful, or deceptive pub-

licity, but they feared the law would be used to penalize in-

advertent misstatements. Those plaintiffs had standing to

pursue a pre-enforcement challenge. Id. at 302.

In Susan B. Anthony List, a state law made it a crime to

make false statements about a candidate’s voting record dur-

ing a campaign for public office. 573 U.S. at 152. The plaintiff

was an advocacy group that wanted to publicize the voting

records of the state’s congressional delegation on bills that the

plaintiff believed funded abortions. After receiving a com-

plaint about a press release the plaintiff distributed, the Ohio

Elections Commission found probable cause that the plaintiff

had violated the law. The investigation was eventually dis-

missed, but the plaintiff intended to distribute public materi-

als with a similar message again in the future. Id. at 154–55.

In deciding that the plaintiff had standing, the Supreme

Court determined that the plaintiff’s conduct, even though it

28 No. 21-1042

intended to distribute truthful material, was arguably pro-

scribed by the statute. One factor was the past investigation,

which indicated that the plaintiff could be subject to similar

enforcement proceedings in the future:

SBA’s insistence that the allegations in its press

release were true did not prevent the Commis-

sion panel from finding probable cause to be-

lieve that SBA had violated the law the first

time around. And, there is every reason to

think that similar speech in the future will re-

sult in similar proceedings, notwithstanding

SBA’s belief in the truth of its allegations.

Susan B. Anthony List, 573 U.S. at 162–63.

To oppose standing, defendants rely on Schirmer v. Nagode,

621 F.3d 581 (7th Cir. 2010), arguing that the statute here could

be enforced against plaintiffs only if an officer misapplied the

statute. This reliance misses the mark. Schirmer challenged a

Chicago ordinance that required people to disperse when

three or more persons were committing acts of disorderly con-

duct in the immediate vicinity. In that case, the plaintiffs had

been arrested, but they were not even arguably violating the

law and showed no prospect of facing a similar mistaken ar-

rest in the future. Id. at 583. Those plaintiffs had been injured

by the individual officers’ actions and could seek appropriate

remedies for such clear mistakes in applying the law. They

had not shown standing for a permanent injunction against

all enforcement of the ordinance.

Schirmer tried to balance protecting First Amendment

rights and avoiding unnecessary constitutional decisions. Id.

at 586. Our opinion in Schirmer distinguished that case, where

No. 21-1042 29

there was no plausible argument that plaintiffs had violated

the ordinance in question, from cases like this one. We recog-

nized that “when an ambiguous statute arguably prohibits

certain protected speech, a reasonable fear of prosecution can

provide standing for a First Amendment challenge.” Id., citing

Majors v. Abell, 317 F.3d 719, 721 (7th Cir. 2003) (reversing dis-

missal for lack of standing where scope of statute was un-

clear); see also California Pro-Life Council, Inc. v. Getman, 328

F.3d 1088, 1094‒95 (9th Cir. 2003) (reversing dismissal of pre-

enforcement challenge for lack of standing; plaintiff reasona-

bly believed statute could and would be enforced against it),

citing American Booksellers Ass’n, 484 U.S. at 393 (reasonable

self-censorship can support standing for pre-enforcement

challenge under First Amendment).

We found standing for a pre-enforcement challenge in a

case strikingly close to this one, where plaintiffs denied any

illegal intent but were subject to a statute that was vague and

likely to be pushed to the outer limits of constitutionality and

beyond. In Hoover v. Wagner, 47 F.3d 845 (7th Cir. 1995), the

plaintiffs challenged a state-court injunction that prohibited a

specific group of abortion protestors from engaging in their

activities close to abortion clinics. Like subsection (2)(a)(7)

here, the injunction was designed to protect one group of peo-

ple as they exercised their rights while others exercised their

First Amendment rights. The plaintiffs in Hoover were not in

the enjoined group but wanted to protest abortions outside

the same clinics. They were worried that they would face lia-

bility for violating the injunction. In considering whether the

plaintiffs had standing to sue, we expressed concerns about

the injunction because it was intended to be interpreted to

reach as far as possible without violating the First Amend-

ment. Id. at 847. The plaintiffs had established standing

30 No. 21-1042

because the line separating legal and illegal protests as writ-

ten in the injunction was too vague, giving officers leeway to

arrest people who intended to go right up to the line without

crossing it. Id. at 847–48.

Here, subsection (2)(a)(7) similarly “pushes [the statute] to

its constitutional limits.” Dkt. 47-2 at 17 (enforcement guid-

ance from counsel for Wisconsin Department of Natural Re-

sources). State enforcement officials have acknowledged that

they “don’t know exactly where [the constitutional] ceiling is

or when [they] have crossed it.” Id. Neither do plaintiffs. The

vagueness of the statute’s intent requirement raises the risks

for plaintiffs in exercising their First Amendment rights. Their

conduct is at least arguably within the statute’s prohibitions.

Criminal laws do not need to draw exact boundaries. Trustees

of Indiana University v. Curry, 918 F.3d 537, 540 (7th Cir. 2019)

(rejecting vagueness challenge on merits: “Some uncertainty

at the margins does not condemn a statute.”). But criminal

laws still need a substantial core of ascertainable meaning. Id.

at 542. They must offer intelligible limits and guide enforce-

ment discretion. We consider the Wisconsin law’s vagueness

on the merits below, but vagueness is also relevant in evalu-

ating plaintiffs’ fears of prosecution and their self-censorship.

To help show their fears and self-censorship are reasona-

ble, plaintiffs offered evidence of enforcement guidance on

subsection (2)(a)(7) that the Wisconsin Department of Natural

Resources (WDNR) provided to its game wardens and other

law enforcement. The guidance acknowledged that, “in appli-

cation,” it would “be difficult” to determine whether an indi-

vidual has satisfied the requisite “intent and continuity of

purpose.” WDNR acknowledged that “[o]nly time and en-

forcement of the statute will tell” whether the statute infringes

No. 21-1042 31

the constitutional rights of protestors like plaintiffs. The only

direction WDNR offered to game wardens and other law en-

forcement officials about enforcing the statute is that they

should “take seriously” any complaint of harassment, “re-

spond quickly,” and “consider whether the facts alleged illus-

trate actual intent to interfere.”

That uncertain guidance merely restated the statute’s in-

tent element. In short, as the WDNR acknowledged, given the

statute’s “very broad language, that incorporates a wide

range of conduct,” and the lack of clear guidance interpreting

the statutory language, enforcement authorities possess “a

great deal of authority and discretion to investigate and pros-

ecute the new wave of hunter harassment-silent protest

through monitoring.” This paucity of guidance and wealth of

discretion regarding the definition of “intent to interfere”

help persuade us that plaintiffs’ fears and self-censorship are

reasonable.

4. Plaintiffs’ Self-Censorship

Plaintiffs may show standing for a pre-enforcement First

Amendment challenge to a law when they resort to self-cen-

sorship out of “an actual and well-founded fear” that the law

will be enforced against them. American Booksellers Ass’n, 484

U.S. at 393. Here, plaintiffs offered evidence that their fears of

enforcement are “actual.” They testified that their behavior

has been chilled by subsection (2)(a)(7) as they have engaged

in self-censorship. Plaintiffs’ evidence of active enforcement

of subsection (2)(a)(7), broad enforcement discretion, and dis-

persed set of enforcement officials, shows that plaintiffs’ fears

of enforcement are reasonable and “well-founded.”

32 No. 21-1042

a. Self-Censorship and “Actual” Fear of Enforcement

Here, all three plaintiffs have testified that they have en-

gaged in self-censorship in response to sustained law enforce-

ment pressure aimed at assuring compliance with subsection

(2)(a)(7) and have done so to avoid the threat of prosecution

and civil liability under subsection (2)(a)(7). Plaintiffs Losse

and Brown have limited their monitoring, filming, and docu-

menting activities. When they do venture out to monitor and

document hunting activity, even on federal land, both plain-

tiffs keep to the public roads, in or close to their vehicles, and

avoid the forests. Losse testified that she now goes on fewer

monitoring trips and limits her photography and videogra-

phy when she does. She monitors hunting only on federal

land, avoiding state-owned lands because she has “been

stopped and threatened with citations” only by state and local

enforcement authorities. The same is true of Brown, who also

sticks to federal land and no longer documents hunting activ-

ity in Polk or Forest Counties. And plaintiff Weisberg testified

that he has a growing interest in reporting on hunting, and

presumably intends for the Wisconsin Gazette to report on

hunting more than it currently does, but he is afraid to send

his reporters into the field to obtain the necessary firsthand

documentation of hunting and trapping activity. In short,

plaintiffs’ adjusted behavior reflects the chilling of protected

speech, demonstrating an “actual” fear of enforcement.

b. Well-Founded Fears of Enforcement

A history of enforcement proceedings against similar con-

duct weighs in favor of a finding that plaintiffs’ fears of en-

forcement are well-founded. American Booksellers Ass’n, 484

U.S. at 394; accord, e.g., Susan B. Anthony List, 573 U.S. at 162–

63; Fischer v. Thomas, 52 F.4th 303, 308–09 (6th Cir. 2022)

No. 21-1042 33

(credible threat of enforcement where plaintiff had previously

been investigated for conduct similar to his intended con-

duct); Free Speech Coalition, Inc. v. Attorney General of the United

States, 825 F.3d 149, 166 (3d Cir. 2016) (“fact that some [plain-

tiffs] have been subjected to records inspections in the past

makes the threat of future inspections more credible”); see

generally Humanitarian Law Project, 561 U.S. 1 (plaintiff had

standing where it intended to continue supporting organiza-

tions designated as foreign terrorist organizations and gov-

ernment had prosecuted others for similar actions); Steffel v.

Thompson, 415 U.S. 452 (1974) (plaintiff had standing after po-

lice officers threatened to arrest him for distributing hand-

bills, then arrested another person who did not stop distrib-

uting them).

Evidence of active enforcement, even short of prosecution,

helps to show that plaintiffs’ fears of prosecution are reason-

able. Evidence shows that the hunter harassment statute is the

subject of active pressure for citations, investigations, and en-

forcement. The law does not rest forgotten in desk drawers in

game wardens’ offices. According to plaintiffs’ evidence, the

law has been used to harass and restrict them without actually

charging them in a prosecution where constitutional chal-

lenges could be resolved. Given the tension between hunting

rights and First Amendment rights, confrontations with en-

forcement officials that push the limits of the hunter harass-

ment law are not unusual.

The fear of prosecution becomes more realistic where a

larger group of officials has enforcement power, especially

with broad discretion, as WDNR acknowledges. Defendants

argue that subsection (2)(a)(7)’s intent requirement limits en-

forcement officials’ discretion over prosecutions. Subjective

34 No. 21-1042

intent, however, must usually be inferred from objective evi-

dence. We know that subsection (2)(a)(7) was aimed at oppo-

nents of hunting, whether they intend to disrupt hunting or

not. The vague scope of subsection (2)(a)(7) and the widely

dispersed authority to enforce it add to plaintiffs’ reasonable

fears of both prosecution and further harassment under the

provision’s umbrella.

We recognize that WDNR and its game wardens have im-

portant enforcement discretion here. They also seem to want

to exercise caution in the face of constitutional concerns about

subsection (2)(a)(7). But as plaintiffs point out, district attor-

neys in every county have the power to prosecute violations

of the hunter harassment law. Sheriffs’ deputies all over the

state have the power to issue citations for suspected violations

and, perhaps equally important, to detain and investigate

people for suspected violations. Defendants’ argument also

overlooks the citizen-suit provision, allowing any “person

who is adversely affected by, or who reasonably may be ex-

pected to be adversely affected by, conduct that is in violation

of” subsection (2)(a) to “bring an action in circuit court for an

injunction or damages or both.” Wis. Stat. § 29.083(4)(a)

(2016). That means that government authorities are not the

only ones who may seek to enforce the hunter harassment

law. Hunters too may invoke the law’s broad language and

inherent discretion to decide on their own whether to try to

enforce the law against plaintiffs. In recent Supreme Court de-

cisions, much more limited private rights have contributed to

standing for pre-enforcement First Amendment challenges.

See 303 Creative LLC v. Elenis, 600 U.S. 570, 583 (2023) (provi-

sion allowing “any person” to file complaint and initiate po-

tentially burdensome administrative process supported

standing); Susan B. Anthony List, 573 U.S. at 164–65 (citizens’

No. 21-1042 35

right to file complaint with state enforcement authorities sup-

ported standing).

Plaintiffs have demonstrated a well-founded fear of en-

forcement for protected activities. While no plaintiff has actu-

ally been charged with a violation of subsection (2)(a)(7),

Brown and Losse have been stopped repeatedly for question-

ing by law enforcement while engaged in activities protected

by the First Amendment. Both have had encounters with

hunters and law enforcement that took them to the brink of

being formally charged with violating subsection (2)(a)(7)

while engaging in actions protected by the First Amendment.

In Losse’s case, an officer was actually trying to issue her a

citation when a technical glitch prevented him from doing so.

In Brown’s case in the Forest County incident, law enforce-

ment seized his cameras, memory cards, and other equipment

and kept them for seven months before the district attorney

finally decided not to charge him.

Because of the history of attempted prosecutions against

them for similar conduct, the active enforcement of subsection

(2)(a)(7), and the statute’s grant of widely distributed and

broad enforcement discretion, plaintiffs have shown that their

fear of enforcement against them is reasonable.

5. No Clear Disavowal of Prosecution

The Supreme Court and this court have suggested that a

plaintiff may nonetheless lack a well-founded fear of prosecu-

tion when those who have authority to enforce the law have

clearly disavowed any plans to prosecute the plaintiff. Con-

versely, the absence of a clear disavowal tends to support

finding a credible threat of prosecution. See 303 Creative LLC,

600 U.S. at 583 (approving Tenth Circuit’s finding of standing

36 No. 21-1042

where State had declined to disavow future enforcement pro-

ceedings against plaintiff); American Booksellers Ass’n, 484 U.S.

at 387, 393 (booksellers had standing to bring pre-enforce-

ment challenge to ban on display of material “harmful to ju-

veniles” where State had “not suggested that the newly en-

acted law [would] not be enforced”); Babbitt, 442 U.S. at 302

(plaintiffs had reason to fear prosecution in part because State

had “not disavowed any intention of invoking the criminal

penalty provision” against them); Center for Individual Freedom

v. Madigan, 697 F.3d 464, 473–75 (7th Cir. 2012) (plaintiffs had

well-founded fear of prosecution where statute’s enforcers

had not determined that statute did not apply to plaintiffs).

The same is true here. There has not been a clear or wide-

spread disavowal that would remove the threat of liability for

plaintiffs.

Here, the Forest County District Attorney said he would

not prosecute plaintiff Brown for potential violations of the

statute in the January 2018 incident, but his disavowal cov-

ered only that incident. The disavowal was not forward-look-

ing and does not therefore diminish the otherwise credible

threat of prosecution plaintiffs face. Nor does it provide guid-

ance for enforcing the statute.

The same is true of a disavowal by WDNR at a July 2017

meeting attended by WDNR staff, the United States Forest

Service, the Bayfield County Sheriff and District Attorney,

representatives of Wolf Patrol, and plaintiffs Brown and

Losse. After reviewing videos of interactions between hunters

and Wolf Patrol, the officials present agreed that none of the

conduct in the videos would violate the hunter harassment

law. After the meeting, Wolf Patrol member Rod Coronado

said that Wolf Patrol “got confirmation from all three agencies

No. 21-1042 37

present that what they’ve seen Wolf Patrol do is not illegal.”

But plaintiffs were more circumspect. They took what was

said at the meeting as—at most—“some confirmation that a

particular county was not maybe going to prosecute.”

These facts do not show a clear disavowal of enforcement

that would undermine plaintiffs’ reasonable fear of prosecu-

tion. The WDNR meeting statements addressed only the ac-

tivities shown in the videos played at the meeting. The Forest

County disavowal applied only to Brown and the January

2018 incident. More important, the disavowals at the WDNR

meeting came from only a handful of the officials who have

authority to enforce the statute. The authorities present at the

July 2017 meeting were from the WDNR, the United States

Forest Service, and Bayfield County. Even if all those author-

ities agreed that none of the conduct in the videos violated the

hunter harassment law, their agreement did not extend to the

many absent officials who could choose to enforce the statute

against plaintiffs. Every district attorney in the state can file

charges in response to complaints by hunters in their coun-

ties. Hundreds of sheriffs’ deputies and game wardens can is-

sue citations. Individual hunters can bring civil actions for

damages and injunctions. As plaintiff Brown explained in his

deposition, he has often encountered both state and local of-

ficers when disputes have arisen between hunters and either

him or members of Wolf Patrol. While local officers may con-

sult with the WDNR about how to apply subsection (2)(a)(7),

any WDNR guidance—even if it were clear—would not bind

them.

6. Redressability

The dissenting opinion raises an objection to standing that

defendants have not raised: that plaintiffs have not shown

38 No. 21-1042

how a court could redress their injuries. Post at 90–91. In fact,

they provided a straightforward answer. A judicial declara-

tion that subsection (2)(a)(7) is unconstitutional and an injunc-

tion against its enforcement would remove its availability for

use to question, and consequently, to chill plaintiffs’ protected

activities that do not threaten physical interference with hunt-

ers. Such judicial relief is routine when a law violates the First

Amendment. If such relief is granted, it would of course be

possible that a few rogue law enforcement officers might still

mistakenly try to enforce it. That possibility does not under-

cut redressability or standing. We can expect the vast majority

of officials to comply with a federal court injunction and de-

claratory judgment. Cf. Schirmer, 621 F.3d at 586–87 (rejecting

standing to challenge state law under First Amendment

where the law clearly did not apply to plaintiffs’ actions and

arresting officers were clearly mistaken in arresting plaintiffs).

Redressability requires a plaintiff to show that her injury is

“likely to be redressed by a favorable decision.” Simon v. East-

ern Kentucky Welfare Rights Org., 426 U.S. 26, 38 (1976). An in-

junction and declaratory judgment here are highly likely to

stop the ongoing harassment and chilling effects that plain-

tiffs have experienced and to prevent their prosecution for

constitutionally protected activities.

To sum up, plaintiffs have offered evidence to show stand-

ing to bring their as-applied and facial challenges to subsec-

tion (2)(a)(7). They have offered evidence of an actual and

well-founded fear of prosecution for activities protected by

the First Amendment and arguably proscribed by subsection

(2)(a)(7). Defendants have not raised any genuine issues of

fact material to plaintiffs’ standing.

No. 21-1042 39

IV. Vagueness & Overbreadth

We turn now to the merits of plaintiffs’ challenges to sub-

section (2)(a)(7). Plaintiffs raised challenges to the statute as

both unconstitutionally vague and overbroad. We agree with

plaintiffs that all three provisions of subsection (2)(a)(7) are

unconstitutionally vague and/or overbroad so that their en-

forcement should be enjoined.

Statutes can violate the First Amendment as unconstitu-

tionally overbroad in at least two distinct ways. The first is

usually referred to as vagueness. Vague rules are overbroad

because their scope is uncertain and because they tend to pro-

duce large chilling effects. See NAACP v. Button, 371 U.S. 415,

432‒33 (1963). The part of overbreadth doctrine concerned

with vagueness is “predicated on the danger that an overly

broad statute, if left in place, may cause persons whose ex-

pression is constitutionally protected to refrain from exercis-

ing their rights for fear of criminal sanctions.” Massachusetts v.

Oakes, 491 U.S. 576, 581 (1989). All vague statutes are over-

broad in the sense described in Button and Smith v. Goguen:

they are likely to have a substantial chilling effect on constitu-

tionally protected activity. 371 U.S. at 432‒33; 415 U.S. 566,

572‒76 (1974). Vagueness thus can be thought of as one form

of overbreadth, describing rules that are overbroad because

their effect is to chill constitutionally protected activity.

Laws can also be overbroad in a second, distinct sense: not

because their scope is vague, but because the conduct they

prohibit consists mostly of constitutionally protected activi-

ties. This sort of rule is overbroad even in the absence of

vagueness and resulting chilling effects. See Massachusetts v.

Coakley, 491 U.S. at 587‒88 (Scalia, J., concurring) (writing for

a majority and holding that even if later narrowing of statute

40 No. 21-1042

by amendment eliminated all chilling effects, it “does not

eliminate the defense of overbreadth”). To test this sort of

overbreadth, courts compare the scope of the rule as drafted

to the scope of a hypothetical, constitutionally permissible

rule. See United States v. Stevens, 559 U.S. 460, 473 (2010) (a law

may be invalidated as overbroad “if a substantial number of

its applications are unconstitutional, judged in relation to its

plainly legitimate sweep”) (internal citations and quotation

marks omitted). If the law as drafted reaches substantially be-

yond the scope of the constitutionally permissible law, such

that the actual law’s broader scope reaches mostly constitu-

tionally protected activity, the law is substantially overbroad

and subject to facial invalidation. Id. at 473‒74.

The three substantive prohibitions of subsection (2)(a)(7)

are all unconstitutionally overbroad, but not all in the same

way. Clauses (a) and (b) prohibit “maintaining a visual or

physical proximity” and “approaching or confronting” per-

sons engaged in lawful hunting activity. These provisions are

overbroad in the sense of Button and Goguen. They are uncon-

stitutionally vague. They fail to provide reasonable notice as

to what conduct is criminal, and they fail to provide reasona-

ble constraints on the discretion of enforcement officials. They

thus tend to create significant chilling effects on constitution-

ally protected activity, as they have for these plaintiffs. See

Hill v. Colorado, 530 U.S. 703, 732 (2000). They fail for over-

breadth due to vagueness.

The third provision of subsection (2)(a)(7), clause (c), is not

vague. The conduct it proscribes is clear: “photographing,

videotaping, audiotaping, or through other electronic means,

monitoring or recording the activities of the person” engaged

in lawful hunting or trapping, when done to interfere

No. 21-1042 41

intentionally with the hunting or trapping. Clause (c) is over-

broad in the second sense of the term, as in Stevens: a substan-

tial number of the law’s applications are unconstitutional,

measured against the law’s plainly legitimate sweep. 559 U.S.

at 473. We analyze subsection (2)(a)(7) for these two distinct

forms of overbreadth separately.

A. Vagueness: Clauses (a) and (b) of Subsections (2)(a)(7)

A vague regulation of expression “raises special First

Amendment concerns because of its obvious chilling effect on

free speech.” Reno v. American Civil Liberties Union, 521 U.S.

844, 871–72 (1997). Where the regulation imposes criminal

sanctions, those concerns multiply. The penalties, “oppro-

brium and stigma of a criminal conviction … may well cause

speakers to remain silent” rather than to engage in expressive

conduct. Id. at 872.

The mechanisms by which vague rules cause chilling ef-

fects are two-fold. A statute can be impermissibly vague

where it either (1) “fails to provide people of ordinary intelli-

gence a reasonable opportunity to understand what conduct

it prohibits” or (2) “authorizes or even encourages arbitrary

and discriminatory enforcement.” Hill v. Colorado, 530 U.S. at

732.

We focus here on clauses (a) and (b) in subsection (2)(a)(7),

which apply, respectively, to “maintaining a visual or physi-

cal proximity” to a hunter and “approaching or confronting”

a hunter. These provisions are unconstitutionally vague. They

both lack sufficient detail to let people of ordinary intelligence

know what conduct is prohibited and encourage arbitrary

and discriminatory enforcement. See Hill, 530 U.S. at 732.

42 No. 21-1042

1. Need for Specifying Proximity to Guide Conduct

To survive a vagueness challenge, a criminal statute must

give people fair notice of what conduct is prohibited so that

they may conduct themselves within the law’s bounds. See

Johnson v. United States, 576 U.S. 591, 595 (2015); City of Chicago

v. Morales, 527 U.S. 41, 58 (1999) (“No one may be required at

peril of life, liberty or property to speculate as to the meaning

of penal statutes.”), quoting Lanzetta v. New Jersey, 306 U.S.

451, 453 (1939).

Recalling that this case presents a conflict between

rights—a right to hunt and free speech rights—we find help-

ful guidance in cases addressing the proximity and conduct

of people engaged in monitoring and protesting the exercise

of other constitutional rights, such as rules protecting access

to abortion facilities.

Where a statute prohibits approaching or being near an-

other person and addresses expressive conduct, specificity is

especially important. See Hill, 530 U.S. at 732–33; see also

Smith v. Goguen, 415 U.S. at 573 (“Where a statute’s literal

scope, unaided by a narrowing state court interpretation, is

capable of reaching expression sheltered by the First Amend-

ment, the [vagueness] doctrine demands a greater degree of

specificity than in other contexts.”); Button, 371 U.S. at 433

(“Because First Amendment freedoms need breathing space

to survive, government may regulate in the area only with

narrow specificity.”). Often, the indeterminacy of what con-

duct constitutes a violation makes a statute vague. United

States v. Williams, 553 U.S. 285, 306 (2008) (“What renders a

statute vague is not the possibility that it will sometimes be

difficult to determine whether the incriminating fact it

No. 21-1042 43

establishes has been proved; but rather the indeterminacy of

precisely what that fact is.”).

With this in mind, defendants’ reliance on Hill v. Colorado

is misplaced. The Supreme Court’s decision actually weighs

in favor of plaintiffs’ challenge here. In Hill, a statute prohib-

ited people near health care facilities from knowingly ap-

proaching “within eight feet of another person, without that

person’s consent,” to protest or to give that person unsolicited

“counseling.” 530 U.S. at 707. The plaintiffs argued the statute

was vague because it did not detail how someone would

know whether she was approaching within eight feet of an-

other person. The Court rejected this argument for two rea-

sons. First, the statute’s “knowing” requirement limited its

application to people who knowingly, not inadvertently, ap-

proached another person too closely. Second, the statute’s

specific eight-foot limit made it much easier to distinguish be-

tween lawful and unlawful conduct. Id. at 732–33; see also

McCullen v. Coakley, 573 U.S. 464, 471–72 (2014) (upholding

statute prohibiting people from coming within 35 feet of re-

productive-care facilities where facilities were required to

mark prohibited areas, eliminating uncertainty).

Clauses (a) and (b) of subsection (2)(a)(7) both lack the

specificity of the laws upheld in Hill and McCullen. They

broadly prohibit “maintaining a visual or physical proximity

to” or “approaching” a hunter. They fail to specify, or even to

offer any guidance about, how far away a person must stay to

avoid engaging in unlawful interference. Compare, e.g.,

United States v. Guagliardo, 278 F.3d 868, 872–73 (9th Cir. 2002)

(supervised release condition that defendant not “reside in

‘close proximity’ to places frequented by children” was

vague), with United States v. Bee, 162 F.3d 1232, 1235 (9th Cir.

44 No. 21-1042

1998) (upholding condition that defendant “not loiter within

100 feet” of places used by children). A person of ordinary in-

telligence cannot be expected to discern from the Wisconsin

statutory language of clauses (a) and (b) what conduct is pro-

hibited and what is not. See Hill, 530 U.S. at 732.

Defendants argue that “visual or physical proximity”

means “close enough” to impede or obstruct a hunter. That

logic takes into account the statutory element of intent to in-

terfere with hunting. But it still leaves the law impermissibly

vague. What does “close enough” mean in the context of

hunting? Five feet? Fifty feet? Five hundred feet? Five hun-

dred yards? With modern rifles, the distance could be well be-

yond earshot. Stealth is part of hunting. See State v. Froebel,

387 Wis. 2d 686, 928 N.W.2d 810, 810 (Wis. App. 2019) (“Even

a lay person knows that hunting requires quiet and calm.”).

The statute is also silent about who determines when a

person is “close enough.” Defendants suggest that it is the

subjective perspective of the hunter. That only adds to the

vagueness. How is a photographer or videographer supposed

to know when she is too close? By guessing whether the

hunter perceives her to be interfering? Or should it be from

the subjective perspective of the photographer and the vide-

ographer? The statute provides no objective criteria to plain-

tiffs, hunters, or enforcement authorities to determine when

someone like plaintiffs is too close.

The lack of specificity is not cured here by any meaningful

guidance from enforcement authorities or state courts. To be

sure, the WDNR has issued memos and said in the meeting—

attended by the Bayfield County Sheriff and District Attorney,

plaintiffs Brown and Losse, and representatives of Wolf Patrol

and the United States Forest Service—that following hunters

No. 21-1042 45

and filming them does not constitute “interference.” That

guidance is hard to square with the statutory language itself,

which makes unmistakably clear that at least some following

and filming can amount to interference. More fundamental,

the guidance does not clarify the statutory language about

“visual or physical proximity” and “approaching.” Plaintiffs,

hunters, law enforcement, and courts have to assume the stat-

ute means what it says. Under subsection (2)(a)(7) “maintain-

ing a visual or physical proximity” to a hunter, i.e., following

a hunter, and “recording the activities” of that hunter, can

amount to a crime. WDNR’s guidance does not remove the

vague elements from subsection (2)(a)(7) but in fact shows the

problem with the statute. People simply cannot know how

close is too close to follow and film.

Nor have state courts interpreted either the amended stat-

ute or the original statute in a way that clarifies these inherent

ambiguities. Bagley held that the original hunter harassment

law requires physical interference, but as explained above,

that physical obstruction requirement does not apply to new

clauses (a) and (b) of subsection (2)(a)(7), which address ac-

tivities and conduct that do not amount to physical obstruc-

tion. See Bagley, 474 N.W.2d at 764–65. Even when Bagley’s

physical obstruction requirement does apply, it has been con-

strued broadly. See Froebel, 928 N.W.2d at 810 (considering vi-

olation of subsection (2)(a)(2)). In short, Bagley cannot cure the

vagueness of these new provisions.

Adding specific distances to the statute’s “proximity” and

“approaching” provisions is the task of a legislature, not a

court. Kolender v. Lawson, 461 U.S. 352, 358 & n.7 (1983) (strik-

ing down statute requiring persons on street to provide police

“credible and reliable” identification upon request; statute

46 No. 21-1042

“vests virtually complete discretion in the hands of the po-

lice”); Smith v. Goguen, 415 U.S. at 574 (striking down statute

outlawing “contemptuous” treatment of flag; legislature must

“establish minimal guidelines to govern law enforcement”);

United States v. Reese, 92 U.S. 214, 221 (1875) (“It would cer-

tainly be dangerous if the legislature could set a net large

enough to catch all possible offenders, and leave it to the

courts to step inside and say who could be rightfully de-

tained, and who should be set at large. This would, to some

extent, substitute the judicial for the legislative department of

government.”).

The absence of more specific detail in the statute, as well

as the lack of statutory grounds for either interpretive guid-

ance or a limiting construction, means that people like plain-

tiffs who want to engage in expressive activity cannot know

when they are too close to a hunter, physically or visually, or

are “approaching” a hunter too closely. On this basis alone,

clauses (a) and (b) are unconstitutionally vague.

2. Arbitrary Enforcement

The vague statutory language also leaves too much room

for arbitrary and discriminatory enforcement, chilling plain-

tiffs who are reasonably concerned about over-enforcement.

The lack of objective criteria in subsection (2)(a)(7) means that

enforcement authorities, like individual citizens, cannot

know when the line between lawful and unlawful conduct

has been crossed. See Kolender, 461 U.S. at 358 (legislature

must “establish minimal guidelines to govern law enforce-

ment”), quoting Goguen, 415 U.S. at 574.

These fair-notice and separation-of-powers aspects of stat-

utory vagueness are two sides of the same coin. Each tends to

No. 21-1042 47

produce substantial chilling effects. In Hill, for example,

where the Supreme Court concluded that the statute’s speci-

ficity (“eight feet”) allowed people to understand when their

conduct violated the law, the Court also determined that, for

the same reason, the statute gave “adequate guidance to law

enforcement authorities.” 530 U.S. at 732–33. While enforce-

ment always “requires the exercise of some degree” of judg-

ment, the Court said, “the degree of judgment involved” was

“acceptable.” Id. at 733, quoting Grayned v. City of Rockford,

408 U.S. 104, 114 (1972).

Here, the opposite is true. As the WDNR recognizes, the

amendments to the hunter harassment law were designed to

push the “constitutional limits” and to give enforcement offi-

cials “a great deal of authority and discretion.” The problem

is that officials “don’t know exactly where [the constitutional]

ceiling is or when [they] have crossed it.” On this record, the

only guidance the WDNR has managed to offer enforcement

authorities is to “tread carefully.” In saying this, we do not

mean to criticize WDNR officials but only recognize the insol-

uble problem the legislation has handed to them. And tread-

ing carefully is precisely what plaintiffs have been doing—of-

ten just staying in their cars—lest they commit a crime by

crossing a line they cannot discern. Such chilling effects are a

clear sign that the statute’s vagueness pushes people who

monitor and document hunting in Wisconsin to engage in rea-

sonable self-censorship. Unlike the limited discretion af-

forded officials in Hill, the expansive discretion given to en-

forcement authorities under the amended hunter harassment

law produces substantial chilling effects. See Hill, 530 U.S. at

733.

48 No. 21-1042

If the uncertainty and threat of arbitrary enforcement by

public officials were not enough, plaintiffs are also subject to

arbitrary enforcement at the hands of hunters and hunting

parties. The hunter harassment law’s citizen suit provision,

Wis. Stat. § 29.083(4)(a), means that these plaintiffs also must

worry about being sued privately by hunters motivated to

discourage even activity protected by the First Amendment.

Plaintiffs have also offered evidence that the hunter har-

assment law has enabled hunters to prevent or discourage ex-

pressive activity without resorting to bringing civil actions.

Hunters have repeatedly stopped, surrounded, and pre-

vented plaintiffs from going freely about their business, some-

times detaining them for “hours at a time.” These citizen’s ar-

rests—or perhaps citizen’s Terry stops?—have been followed

by actual officers stopping plaintiffs to question them, some-

times at length, about their activities.

In short, for the same reasons that clauses (a) and (b) fail

to provide people with objective criteria to guide their behav-

ior, they also allow for “arbitrary and discriminatory enforce-

ment.” See Hill, 530 U.S. at 732–33; see also Papachristou v. City

of Jacksonville, 405 U.S. 156, 170 (1972) (“Where, as here, there

are no standards governing the exercise of the discretion

granted by the ordinance, the scheme permits and encourages

an arbitrary and discriminatory enforcement of the law.”).

In response to these problems with subsection (2)(a)(7),

defendants argue that the intent requirement provides a lim-

iting principle that allows officials to enforce and plaintiffs to

abide by the law. This argument fails for two reasons. First,

the intent element does nothing to eliminate or reduce vague-

ness issues with the conduct elements of criminal statutes. See

Smith v. Goguen. 415 U.S. at 580 (state court construction of

No. 21-1042 49

criminal statute to include intent element did not resolve

vagueness of conduct element). Second, the intent element in

subsection (2)(a)(7) is itself vague. The requirement that the

series of acts be “intended to impede or obstruct” hunting

lacks any objective criteria by which enforcement officials

could reasonably parse lawful intent from unlawful intent

based on alleged violators’ behavior.

As noted above, lawmakers borrowed much of subsection

(2)(a)(7)’s structure and wording from Wisconsin’s stalking

statute, Wis. Stat. § 940.32. 7 But there are some key differ-

ences. Critically, subsection (2)(a)(7) did away with the objec-

tive portion of the stalking statute’s intent requirement. Un-

like subsection (2)(a)(7), the stalking statute incorporates an

objective intent standard that guides enforcement officials,

judges, and juries in distinguishing between criminal stalking

and lawful activities. Under the stalking statute, the actor

must “intentionally” engage in a series of qualifying acts “di-

rected at a specific person” where the actor also at least should

know that those acts “would cause a reasonable person under

the same circumstances to suffer serious emotional distress or

to fear bodily injury to or the death of himself or herself or a

member of his or her family or household.” Wis. Stat.

§ 940.32(2)(a)–(b).

7 Like subsection (2)(a)(7), the stalking statute prohibits engaging in

“a series of 2 or more acts carried out over time, however short or long,

that show a continuity of purpose ….” § 940.32(1)(a). Qualifying acts in-

clude acts similar to those listed in subsection (2)(a)(7): “1. Maintaining a

visual or physical proximity to the victim. 2. Approaching or confronting

the victim. …. 6m. Photographing, videotaping, audiotaping, or, through

any other electronic means, monitoring or recording the activities of the

victim. … regardless of where the act occurs.” § 940.32(1)(a)(1)–(2), (6m).

50 No. 21-1042

As the Wisconsin Court of Appeals has observed, the

stalking statute’s reasonable person standard provides en-

forcement authorities with “an objective standard to be ap-

plied in evaluations of alleged violations.” State v. Ruesch, 214

Wis. 2d 548, 571 N.W.2d 898, 905 (Wis. App. 1997). That stat-

ute’s inclusion of “specific intent, knowledge and effect” ele-

ments “significantly vitiates” a claim that the law is unclear

about what conduct is proscribed. Id. at 903, 905.

The same simply is not true of subsection (2)(a)(7) of the

hunter harassment law. When the legislature borrowed some

language from the stalking statute but omitted the objective

intent standard, the omission signals that the legislature did

not want that objective intent standard for hunter harassment.

Intent must ordinarily be gauged by objective indications.

When the statute lacks any objective standard for enforce-

ment officials attempting to determine a potential violator’s

intent, it provides no check on official discretion and no guid-

ance to people like plaintiffs who are trying to comply with

the rule. How are enforcement officials to determine intent

when one person stays three hundred feet away from another,

or one hundred feet, or thirty feet? Or repeatedly photo-

graphs another? Particularly if the observer or photographer

is known to oppose hunting? Without any objective criteria,

subsection (2)(a)(7) cannot give either civilians or enforce-

ment authorities the guidance they need to avoid a violation

or to know when a violation has occurred. In short, subsection

(2)(a)(7)’s intent requirement does not solve the vagueness

problem.

The statute fails to give appropriate guidance to the peo-

ple it regulates and fails to cabin adequately the discretion of

enforcement officials. It creates an unacceptable risk that the

No. 21-1042 51

statute will “cause persons whose expression is constitution-

ally protected to refrain from exercising their rights for fear of

criminal sanctions.” Massachusetts v. Oakes, 491 U.S. at 581.

Here, plaintiffs have already testified to the strength of such

chilling effects on their own behavior. Clauses (a) and (b) of

subsection (2)(a)(7) of the amended hunter harassment law

are unconstitutionally vague.

B. Overbreadth of Clause (c) of Subsection (2)(a)(7)

Next, we analyze clause (c) of subsection (2)(a)(7) for over-

breadth in the second sense, asking whether "a substantial

number of its applications are unconstitutional, judged in re-

lation to its plainly legitimate sweep.” Stevens, 559 U.S. at 472.

“[T]he first step in overbreadth analysis is to construe the

challenged statute; it is impossible to determine whether a

statute reaches too far without first knowing what the statute

covers.” Id. at 474, quoting United States v. Williams, 553 U.S.

285, 293 (2008). We analyze the Wisconsin statute in light of

any narrowing constructions by Wisconsin’s courts. But as

discussed above, Wisconsin state courts have not yet pro-

vided any narrowing interpretations of clause (c) of subsec-

tion (2)(a)(7), nor do we see ground in the statutory text for

narrowing it. And as explained above, Bagley’s physical ob-

struction requirement does not apply to this new subsection.

See Bagley, 474 N.W.2d at 764.

To determine the scope of clause (c), we start with its text.

Stevens, 559 U.S. at 474. Clause (c) prohibits “photographing,

videotaping, audiotaping, or through other electronic means,

monitoring or recording the activities of” a hunter or member

of a hunting party. Such monitoring activities are prohibited

“regardless of where the act occurs.” On its face, the text of

the statute carves out no exemptions for monitoring and

52 No. 21-1042

recording activities that aim to contribute to public discourse.

It treats newsgathering and silent-protest monitoring the

same as recordings made for solely individual use.

As we explained regarding plaintiffs’ standing, their mon-

itoring and recording activities are intended to contribute to

public discourse on hunting in Wisconsin. The text of clause

(c) is not ambiguous, and we should take the statute at its

word. “Thus, the protection of the First Amendment pre-

sumptively extends to many forms of speech that … fall

within the broad reach of” clause (c) of subsection (2)(a)(7),

rendering many of its applications unconstitutional. Stevens,

559 U.S. at 480. Plaintiffs’ activities fall within the scope of the

statute and are protected by the First Amendment.

We must also consider the scope of those unconstitutional

applications “in relation to [the statute’s] plainly legitimate

sweep.” Stevens, 559 U.S. at 473. That is, we must compare the

breadth of clause (c)’s scope to a rule that would be constitu-

tionally permissible. Here, we need not speculate on what

such a constitutionally permissible rule would look like. We

can simply compare Wisconsin’s hunting statute before sub-

section (2)(a)(7) was added. The original hunting statute had

already been upheld as constitutional. As interpreted by Bag-

ley, the statute could and did prohibit physical interference

with hunting while remaining within the limits of the Consti-

tution. See Bagley, 474 N.W.2d at 764.

Comparing clause (c) to the scope of the statute before the

amendment, we see that clause (c)’s only plausible purpose is

expanding the scope of the statute to outlaw photography,

videography, audiotaping, or other monitoring or recording

activities that do not physically interfere with hunting activities.

Otherwise, such monitoring or recording activities would

No. 21-1042 53

have already been forbidden under the pre-amendment stat-

ute, rendering subsection (2)(a)(7) mere surplusage. As noted,

that would run contrary to sound statutory interpretation,

particularly in Wisconsin. Kalal, 681 N.W.2d at 124 (under

Wisconsin law, statutory interpretation must focus on lan-

guage of the statute, which is read where possible “to give

reasonable effect to every word, in order to avoid surplus-

age”).

Once we recognize that clause (c) reaches only recording

and monitoring activities that do not physically interfere with

hunting or trapping, it becomes immediately apparent that

the “presumptively impermissible applications” of clause

(c) “far outnumber any permissible ones.” Stevens, 559 U.S. at

481. When asked at oral argument for even a single hypothet-

ical scenario in which clause (c) could constitutionally pro-

hibit conduct not already criminalized, defendants suggested

that clause (c) could apply where “somebody is committing

battery while holding a camera.” Recording of Oral Argument

at 23:08–23:12. Aside from this trivial and improbable exam-

ple, which would not actually involve expressive conduct and

would already be criminal as battery, defendants have not

mustered a hypothetical scenario in which clause (c) would

have any effect other than to chill First Amendment activities.

A small number of constitutional applications (or in this case,

only one trivial and improbable one) are insufficient to save a

statute whose applications are otherwise unconstitutional.

Stevens, 559 U.S. at 481–82. In sum, because all three clauses

of subsection (2)(a)(7) are unconstitutionally overbroad, the

entire subsection is invalid on its face.

54 No. 21-1042

V. Viewpoint Discrimination

Even if the clauses of subsection (2)(a)(7) were not uncon-

stitutionally vague or overbroad, they would violate the First

Amendment because they unconstitutionally discriminate be-

tween protected expressive activities based on viewpoint.

Viewpoint discrimination, where the government “targets not

subject matter, but particular views taken by speakers on a

subject,” is “an egregious form of content discrimination.”

Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819,

829 (1995). The First Amendment limits the power of the gov-

ernment to restrict expression because of the viewpoint it ex-

presses. E.g., Shurtleff v. City of Boston, 596 U.S. 243, 258 (2022);

City of Ladue v. Gilleo, 512 U.S. 43, 51 (1994). “The rationale” of

these First Amendment limits “is that content discrimination

raises the specter that the Government may effectively drive

certain ideas or viewpoints from the marketplace.” R.A.V. v.

City of St. Paul, 505 U.S. 377, 387 (1992) (internal citations omit-

ted). “The government must abstain from regulating speech

when the specific motivating ideology or the opinion or per-

spective of the speaker is the rationale for the restriction.” Ros-

enberger, 515 U.S. at 829.

Plaintiffs argue that subsection (2)(a)(7) discriminates

based on viewpoint because it “criminalizes speech only

when the speaker can be inferred to have an intent to disrupt”

hunting activities, and not when the speaker (or photogra-

pher or videographer) intends to support those same activi-

ties. We agree. On that basis, subsection (2)(a)(7) is viewpoint-

discriminatory.

No. 21-1042 55

A. Conduct or Expression?

Before reaching the merits of plaintiffs’ viewpoint discrim-

ination claim, we must return to defendants’ argument that

the hunter harassment law reaches only conduct, not speech.

The only prohibited “conduct,” as defendants see it, is “acts

intended to impede or obstruct,” and, they contend that such

acts cannot be expressive. Conversely, plaintiffs argue that

subsection (2)(a)(7) targets protected First Amendment activ-

ities, including “photography, videography, and newsgather-

ing,” based on the “content of the speech”—content “concern-

ing hunters and hunting activities.”

Defendants’ argument is not persuasive. We begin with

clause (c) in subsection (2)(a)(7). As explained above regard-

ing standing, the acts listed in clause (c)—photographing and

otherwise recording hunting— make use of a protected “me-

dium for the communication of ideas” for purposes of shap-

ing public discourse and therefore constitute at least expres-

sive conduct. Because plaintiffs use photography and audio-

visual recording to try to affect public opinion, there is no

“fixed First Amendment line between the act of creating

speech and the speech itself.” ACLU v. Alvarez, 679 F.3d at 596,

citing Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1061–

62 (9th Cir. 2010). The “act of making an audio or audiovisual

recording is necessarily included within the First Amend-

ment’s guarantee of speech and press rights as a corollary of

the right to disseminate the resulting recording.” ACLU v. Al-

varez, 679 F.3d at 595 (emphasis in original).

In short, clause (c) of subsection (2)(a)(7) targets funda-

mental speech activities. The acts enumerated in that clause

—“photographing, videotaping, audiotaping, or through

other electronic means, monitoring or recording”— are

56 No. 21-1042

essential to the creation of speech and also expressive in their

own right. See ACLU v. Alvarez, 679 F.3d at 595–96. Because

the First Amendment protects conduct and activities neces-

sary for expression, it also extends to the other clauses of sub-

section (2)(a)(7), since “visual or physical proximity” and ap-

proaching hunters are also essential to carry out plaintiffs’

protected monitoring and recording of hunting.

Even if the activity covered by clauses (a) and (b) were bet-

ter described as conduct than speech, conduct can still be cov-

ered by the First Amendment when the government “target[s

the] conduct on the basis of its expressive content.” R.A.V.,

505 U.S. at 390. In R.A.V., the Supreme Court struck down a

Minnesota state prohibition on fighting words (which are not

protected by the First Amendment) because the law targeted

a certain category of fighting words on an improper basis, that

is, for an improper purpose. Id. at 391–96. The Court con-

firmed that First Amendment coverage can be triggered by

regulations that target conduct on an improper basis, inde-

pendent of the nature of the regulated conduct: “We have long

held … that nonverbal expressive activity can be banned be-

cause of the action it entails, but not because of the ideas it

expresses—so that burning a flag in violation of an ordinance

against outdoor fires could be punishable, whereas burning a

flag in violation of an ordinance against dishonoring the flag

is not.” R.A.V., 505 U.S. at 385, citing Texas v. Johnson, 491 U.S.

397, 406–07 (1989). “It is, in short, not simply the verbal or

nonverbal nature of expression, but the governmental interest

at stake, that helps to determine whether a restriction on that

expression is valid.” Johnson, 491 U.S. at 406–07. First Amend-

ment coverage of expressive conduct is triggered whenever

there is a “realistic possibility that official suppression of ideas

is afoot.” R.A.V., 505 U.S. at 390.

No. 21-1042 57

Here, as explained above, both the statutory text and evi-

dence from its enactment show that it was specifically in-

tended to target the expressive activities of members of Wolf

Patrol and other anti-hunting advocates. Because the question

whether the hunter harassment statute targets expressive con-

duct for an improper purpose, triggering First Amendment

coverage, blurs into whether the regulation is content- and

viewpoint-neutral, we consider the governments’ purposes

for the amended hunter harassment act in more depth in the

following section.

B. Viewpoint-Based Regulations of Speech

A speech regulation is viewpoint-based when it goes be-

yond general discrimination against speech about a specific

topic and instead regulates one perspective within a debate

about a broader topic. Rosenberger, 515 U.S. at 829–31. We

agree with plaintiffs that subsection (2)(a)(7) does just that.

First, the Supreme Court has taught courts to consider

whether a regulation is facially neutral toward categories of

content and particular viewpoints. “A regulation of speech is

facially content based under the First Amendment if it ‘targets

speech based on its communicative content’—that is, if it ‘ap-

plies to particular speech because of the topic discussed or the

idea or message expressed.’” City of Austin v. Reagan Nat'l Ad-

vert. of Austin, LLC, 596 U.S. 61, 69 (2022), quoting Reed v. Town

of Gilbert, 576 U.S. 155, 163 (2015). If applying the regulation

requires an examination or distinguishing of speech “only in

service of drawing neutral … lines,” the statute is considered

“agnostic as to content.” Id. Otherwise, the regulation is con-

sidered content- or viewpoint-discriminatory on its face and

warrants strict scrutiny. Id.

58 No. 21-1042

A determination that a regulation is facially content-neu-

tral does not end the First Amendment inquiry. Id. at 76. “If

there is evidence that an impermissible purpose or justifica-

tion underpins a facially content-neutral restriction, for in-

stance, that restriction may be content based.” Id., citing Reed,

576 U.S. at 164. “[A] facially neutral law does not become con-

tent based simply because it may disproportionately affect

speech on certain topics” or viewpoints. McCullen v. Coakley,

573 U.S. 464, 480 (2014). “On the contrary, ‘a regulation that

serves purposes unrelated to the content of expression is

deemed neutral, even if it has an incidental effect on some

speakers or messages but not others.” Id., quoting Ward,

491 U.S. at 791.

The key question in determining whether a facially neutral

regulation is actually content-neutral is “whether the law is

‘justified without reference to the content of the regulated

speech.’” Coakley, 573 U.S. at 480, quoting Renton v. Playtime

Theatres, Inc., 475 U.S. 41, 48 (1986). To determine whether a

law is justified without reference to the content of regulated

speech, courts may consider a statute’s stated purposes, the

purposes of the statute as advanced by the government in lit-

igation, and legislative purposes that can be inferred when a

statute “single[s] out for regulation speech about one particu-

lar topic.” Coakley, 573 U.S. at 480–82 (internal quotation

marks omitted).

A related but distinct issue concerns statutes that target

messages based on the speaker’s motives. Such statutes can

also be viewpoint-based. A statute’s facial discrimination re-

garding the speaker’s motives serves as evidence of an im-

proper justification or purpose. In R.A.V. v. City of St. Paul, for

example, the Supreme Court considered an ordinance that

No. 21-1042 59

made it a crime to place symbols or objects on property that

the individual knew would arouse anger or alarm “in others

on the basis of race, color, creed, religion or gender.” 505 U.S.

at 380. The ordinance was viewpoint-based because it allowed

people on one side of debates about religion and other topics

to display their views freely while restricting the expression

of those who disagreed. Id. at 391–92. People who used

fighting words in favor of racial tolerance and equality would

not face liability. People who used those same words to pre-

sent a message that encouraged racial supremacy or hatred

would face liability. This different treatment based on the

speaker’s motive led the Court to find that the ordinance was

viewpoint-based. Id.

Even closer to this case, in Animal Legal Defense Fund v.

Kelly, 9 F.4th 1219 (10th Cir. 2021), a statute banned entering

“an animal facility to take pictures by photograph, video cam-

era or by any other means” if done “with the intent to damage

the enterprise conducted at the animal facility….” The Tenth

Circuit held that the statute discriminated based on viewpoint

because it applied to people who engaged in expressive con-

duct with only that intent. The statute was viewpoint-discrim-

inatory because a “person violates the Act only if her record-

ings are intended to damage the enterprise, say by exposing

animal cruelty or safety violations.” Id. at 1236. In contrast, an

individual whose goal was “to make a laudatory video”

would not come within the law’s reach. Id.

C. Whether Subsection (2)(a)(7) Is Viewpoint-Based

Under these standards and precedents, subsection

(2)(a)(7) discriminates based on viewpoint on its face. It could

survive the First Amendment challenge only if the state can

satisfy strict scrutiny.

60 No. 21-1042

Here, the distinction between content neutrality and view-

point neutrality again becomes relevant. The amended hunter

harassment law does not target all First Amendment activities

that concern hunting as a subject matter. Rather, it prohibits

expressive conduct that takes a particular viewpoint towards

hunting. It applies only to expressive activities that are “in-

tended to impede or obstruct” hunters or hunting activities.

Wis. Stat. § 29.083(2)(a)(7). In other words, those applying the

statute must consider speakers’ viewpoints in analyzing

whether their expressive activity violates the statute. Conse-

quently, subsection (2)(a)(7) is viewpoint discriminatory on

its face, and subject to strict scrutiny on that basis.

This conclusion tracks Supreme Court doctrine. In Rosen-

berger, for example, the plaintiffs challenged a university pol-

icy that denied payments for printing student publications

that primarily promoted a belief “in or about a deity or an ul-

timate reality.” 515 U.S. at 822–23. The Court concluded that

the policy was not content-based because it did not deny pay-

ments for publications about religion generally. Instead, the

Court explained, the policy discriminated on the basis of

viewpoint: “viewpoint discrimination is the proper way to in-

terpret” the policy, which by its terms “does not exclude reli-

gion as a subject matter but selects for disfavored treatment

those student journalistic efforts with religious editorial view-

points.” Id. at 831. “The prohibited perspective, not the gen-

eral subject matter, resulted in the refusal to make third-party

payments.” Id. Here, criminal penalties depend on whether

individuals engage in the expressive conduct with “the pro-

hibited perspective,” not whether their activities concern “the

general subject matter,” hunting. The statute is therefore

viewpoint discriminatory on its face and consequently subject

to strict scrutiny.

No. 21-1042 61

Even if subsection (2)(a)(7) were facially neutral, evidence

shows that an “impermissible purpose or justification under-

pins” it. See Reagan National Advertising, 596 U.S. at 76. To de-

termine whether a law is justified without reference to the

content of regulated speech, we consider the statute’s stated

purposes and the legislative purposes that can be inferred

when a statute “single[s] out for regulation speech about one

particular topic.” Coakley, 573 U.S. at 481 (internal quotation

marks omitted). Because subsection (2)(a)(7) cannot be justi-

fied without reference to the underlying content of the expres-

sion, it is not content-neutral and is subject to strict scrutiny.

Two features of the legislative text show that the statute

was motivated by improper purposes and is not content-neu-

tral. First, the statute explicitly discriminates based on the mo-

tives of those documenting and monitoring hunting activity.

Here, clause (c) of subsection (2)(a)(7) operates much like the

statute in Animal Legal Defense Fund. When expressive acts are

at issue, the clause prohibits only instances where the alleged

violator’s intent is to impede or obstruct hunting. Applying

clause (c) requires enforcement officials to distinguish be-

tween expressive conduct based on the speaker’s motive and

viewpoint toward hunting. These are distinctly non-neutral

criteria, a far cry from the “location-based” on- versus off-

premises signage line-drawing recently deemed “neutral” in

Reagan National Advertising. See 596 U.S. at 71–72. Examining

whether expressive conduct is undertaken with the intent to

“interfere with or obstruct” hunting activity cannot plausibly

be described as “agnostic as to content.” See id. at 76. It more

closely resembles an “ordinance against dishonoring the

flag,” which improperly bans “nonverbal expressive activity”

“because of the ideas it expresses.” R.A.V., 505 U.S. at 385, cit-

ing Johnson, 491 U.S. at 406–07. In other words, the Wisconsin

62 No. 21-1042

statute tends to “handicap the expression of particular ideas.”

R.A.V., 505 U.S. at 394. As the Court said in R.A.V., that “pos-

sibility would alone be enough to render the ordinance pre-

sumptively invalid,” since there is good reason to suspect that

“official suppression of ideas is afoot.” Id. at 390, 394.

The second feature of the statutory text indicating an im-

proper purpose is the substantial overbreadth of subsection

(2)(a)(7) as compared to the pre-amendment statute. The Su-

preme Court has reasoned that the “broad reach of a statute

can help confirm that it was not enacted to burden a narrower

category of disfavored speech.” Coakley, 573 U.S. at 480–82.

Conversely, a statute with a narrower reach can support an

inference that it was enacted to burden a narrow category of

disfavored speech. As we explained above on substantial

overbreadth, the pre-amendment version of the hunter har-

assment statute already encompassed physical interference

with hunters and hunting activity. Subsection (2)(a)(7)’s only

evident purpose was to expand the statute to reach expressive

activity that does not involve physical interference with hunt-

ing, such as the silent-protest monitoring and documenting

done by plaintiffs and Wolf Patrol. That targeting signals an

improper purpose of discriminating against speech that op-

poses hunting.

Even if the statutory text were not enough to show view-

point discrimination, and here it is, evidence outside the stat-

utory text may help to “elevate [that] possibility to a cer-

tainty.” R.A.V., 505 U.S. at 394.8 The WDNR candidly told its

8 To be sure, the text controls the viewpoint-discrimination analysis,

so we “will not strike down an otherwise constitutional statute” simply

because the legislature’s motive was to discriminate. See United States v.

No. 21-1042 63

officers that the challenged 2016 amendments were “really

fueled by the conflict between wolf and bear hunters, and pro-

tectionist groups, like Wolf Patrol[,] … who either disagree

with hunting or [with] the methods hunters use.” Dkt. 47-2 at

14-15. The Senate sponsor of the amendments testified before

a Senate committee that he and the co-sponsor had worked

together “to craft legislation … to put an end to [the] illegal

interference” with hunting by “individuals and groups who

are opposed to hunting….” Dkt. 47-4 at 2. In that same vein,

the House sponsor testified that the hunter harassment law

had to be amended because “there is a group of extremist anti-

hunters out there who seem to enjoy making hunters’ lives

miserable. This group, known as Wolf Patrol ….” Dkt. 36-3 at

4. Again, the statutory text alone shows viewpoint discrimi-

nation, but these statements make that reading “a certainty.”

See R.A.V., 505 U.S. at 394.

D. Applying Strict Scrutiny

Where a statute discriminates based on viewpoint, courts

apply strict scrutiny. See Reed, 576 U.S. at 163 (applying strict

scrutiny to content-based law). To survive a constitutional

challenge, the government must show that the restrictions on

speech are “narrowly tailored to serve compelling state inter-

ests.” Id.; see also Perry Education Ass’n v. Perry Local Educators’

Ass’n, 460 U.S. 37, 45 (1983) (“state … must show that its reg-

ulation is necessary to serve a compelling state interest and

that it is narrowly drawn to achieve that end”).

O’Brien, 391 U.S. 367, 383 (1968); DiMa Corp. v. Town of Hallie, 185 F.3d 823,

829 (7th Cir. 1999). But where the text itself discriminates, legislative his-

tory that expresses an intent to discriminate bolsters the presumption of

constitutional infirmity. That is the case here.

64 No. 21-1042

Defendants offer several arguments to justify the re-

strictions on speech included in the statute. They argue that

the restrictions serve the state’s compelling interests in pro-

tecting the constitutional right to hunt, promoting safety in

situations where firearms are involved, and educating the

public. It prohibits only conduct that is intended to and does

interfere with hunting.

We agree that Wisconsin has substantial interests in pro-

moting and protecting hunting. Applying strict scrutiny,

however, the provisions in the amended hunter harassment

law that restrict plaintiffs’ speech activities are not necessary

to serve those interests. The availability of “adequate content-

neutral alternatives” to further the state’s interest “‘under-

cut[s] significantly’” any justification for a statute under strict

scrutiny. R.A.V., 505 U.S. at 395–96 (existence of alternative

methods meant that only interest served by content-based re-

strictions was “displaying the city council’s special hostility

towards the particular biases thus singled out”), quoting Boos

v. Barry, 485 U.S. 312, 329 (1988).

The Wisconsin legislature had other means to achieve the

goals and interests defendants offer. Defendants have not

shown how the original prohibition on physical obstruction

of hunting was not sufficient to protect those legitimate inter-

ests. Without subsection (2)(a)(7), which targets First Amend-

ment activities, both the original and amended statutes pro-

hibit interference or attempted interference with hunting

“with the intent to prevent the taking of a wild animal,” by

“impeding or obstructing” either a hunter or an associated

hunting activity. Wis. Stat. § 29.223(2)(a)(2)–(3) (1990);

§ 29.083(2)(a)(2)–(3) (2016). Where any single act of interfer-

ence that physically impedes or obstructs hunting is sufficient

No. 21-1042 65

under both the original and amended statutes to trigger crim-

inal sanctions, it adds little for the state to also criminalize

“[e]ngaging in a series of 2 or more” expressive acts that in-

terfere with hunting. § 29.083(2)(a)(7). Adding prohibitions on

First Amendment activities was not necessary.

In fact, subsection (2)(a)(7) could be considered “neces-

sary” only to serving the improper purpose of targeting the

silent-protest monitoring and recording activities of plaintiffs

and Wolf Patrol that do not physically interfere with hunting.

Both hunters and plaintiffs are entitled to be present on public

land. Neither group has a right to exclude the other. In Wis-

consin, hunters have a constitutional right to hunt, but they

do not have a right to avoid contact with people like plaintiffs

who disapprove of their hunting. The defense has not offered

a plausible scenario in which subsection (2)(a)(7) would have

any effect other than to chill First Amendment activities. In

other words, defendants all but admit that Wisconsin’s legiti-

mate interests in protecting lawful hunting and trapping ac-

tivities could be achieved just as effectively with the pre-

amendment hunter harassment law. The conclusion is that

subsection (2)(a)(7)’s only effect is to intimidate plaintiffs and

to chill their protected expression opposed to hunting. The

amended provision is not narrowly tailored to further the

State’s interests. Clause (c) of subsection (2)(a)(7) of the

amended hunter harassment law cannot survive strict scru-

tiny. 9

9 Even if we applied a less demanding standard of scrutiny, we would

reach the same conclusion. See, e.g., Schenck v. Pro-Choice Network of West-

ern New York, 519 U.S. 357, 371, 374, 377 (1997) (striking down “floating

15-foot buffer zones around people and vehicles seeking access” to

66 No. 21-1042

Plaintiffs are entitled to summary judgment in their favor.

The judgment of the district court is REVERSED, and the case

is REMANDED for further proceedings consistent with this

opinion.

reproductive healthcare clinics because they burdened “more speech than

necessary to serve a significant governmental interest”); Madsen v.

Women’s Health Ctr., Inc., 512 U.S. 753, 765, 768–71, 773–74 (1994) (asking

“whether the challenged provisions of [an] injunction burden[ed] no more

speech than necessary to serve a significant government interest” and up-

holding 36-foot “speech-free buffer zone” between antiabortion protestors

and health clinic, but invalidating provision that that prohibited “physi-

cally approaching any person seeking services of the clinic ‘unless such

person indicates a desire to communicate’ in an area within 300 feet of the

clinic” because “the protestors’ speech [was not] independently proscrib-

able … or so infused with violence as to be indistinguishable from a threat

of physical harm”).

No. 21-1042 67

KIRSCH, Circuit Judge, dissenting. To satisfy Article III’s

case-or-controversy requirement, litigants must show that

they have a personal stake (standing) in each of their claims

and requests for relief. TransUnion LLC v. Ramirez, 141 S. Ct.

2190, 2203, 2208 (2021). To establish standing, plaintiffs must

show an injury-in-fact caused by the defendant that would

likely be redressed by the requested relief. Id. at 2203 (citing

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). When

plaintiffs lack standing, we cannot rule on a case. To do so

would violate our duty to refrain from issuing advisory opin-

ions.

Here, three individuals have asked a federal court to block

enforcement of a state statute that does not reasonably

threaten to proscribe their actions. To find standing and reach

the plaintiffs’ First Amendment challenge, the majority mis-

construes the statute by ignoring well-established precedent

67and canons of statutory interpretation. Under the correct in-

terpretation of the statute, the plaintiffs undisputedly lack

standing. But even under the majority’s interpretation, the

plaintiffs cannot show an injury-in-fact, and they fail to ex-

plain how their alleged injuries would likely be redressed by

the relief they seek.

There is much in the majority opinion with which I disa-

gree. But because the plaintiffs lack standing to bring any of

their claims, I do not address the merits. To do so would fol-

low the majority’s lead and decide an issue that we cannot

reach under our limited Article III authority. I respectfully

dissent.

68 No. 21-1042

I

In 1990, Wisconsin enacted a hunter-harassment statute

that made it illegal for anyone to “interfere or attempt to in-

terfere with lawful hunting, fishing, or trapping with the in-

tent to prevent the taking of a wild animal by doing any of”

five listed actions (subsections (1)–(5) below). Wis. Stat.

§ 29.223(2)(a) (later renumbered as § 29.083). In 2016, Wiscon-

sin amended this statute to clarify that it encompassed inten-

tional interference with activities “associated with lawful

hunting, fishing, or trapping” and added three provisions

(subsections (6)–(8) below). Only subsection (7) is challenged

here. With that provision italicized, the statute now reads:

No person may interfere or attempt to interfere

with lawful hunting, fishing, or trapping with

the intent to prevent the taking of a wild animal,

or intentionally interfere with or intentionally

attempt to interfere with an activity associated

with lawful hunting, fishing, or trapping, by do-

ing any of the following:

1. Harassing a wild animal or by engaging in

an activity that tends to harass wild ani-

mals.

2. Impeding or obstructing a person who is

engaged in lawful hunting, fishing or

trapping.

3. Impeding or obstructing a person who is

engaged in an activity associated with

lawful hunting, fishing or trapping.

No. 21-1042 69

4. Disturbing the personal property of a per-

son engaged in lawful hunting, fishing or

trapping.

5. Disturbing a lawfully placed hunting

blind or stand.

6. Disturbing lawfully placed bait or other

material used to feed or attract a wild an-

imal.

7. Engaging in a series of 2 or more acts carried

out over time, however short or long, that

show a continuity of purpose and that are in-

tended to impede or obstruct a person who is

engaged in lawful hunting, fishing, or trap-

ping, or an activity associated with lawful

hunting, fishing, or trapping, including any

of the following:

a. Maintaining a visual or physical

proximity to the person.

b. Approaching or confronting the per-

son.

c. Photographing, videotaping, audi-

otaping, or through other electronic

means, monitoring or recording the

activities of the person. This subd. 7.

c. applies regardless of where the act

occurs.

d. Causing a person to engage in any of

the acts described in subd. 7. a. to c.

70 No. 21-1042

8. Using a drone, as defined in s. 941.292(1),

to conduct any activity prohibited under

subds. 1. to 7.

Wis. Stat. § 29.083(2)(a).

Stephanie Losse, Joseph Brown, and Louis Weisberg have

challenged the italicized provision, seeking only declaratory

and injunctive relief. Losse is a volunteer with Wolf Patrol, a

group that takes photographs and videos on public lands of

hunting activities that may be either illegal or unethical.

Brown is a documentary filmmaker who joins Wolf Patrol

during monitoring activities. And Weisberg publishes infor-

mation about hunting and trapping activity in Wisconsin but

has never joined Wolf Patrol on a monitoring trip.

At summary judgment, the district court held that the

plaintiffs lacked standing to bring an as-applied challenge to

the statute because they could not establish a substantial

threat of future enforcement. See Six Star Holdings, LLC v. City

of Milwaukee, 821 F.3d 795, 801–02 (7th Cir. 2016) (“[A]t sum-

mary judgment, the plaintiff must set forth by affidavit or

other evidence specific facts” to show standing.) (cleaned up).

It also held that their facial challenges failed on the merits. The

plaintiffs appealed.

II

The first step in deciding whether litigants have standing

to challenge a statute is to determine the statute’s meaning.

Indiana Right to Life Victory Fund v. Morales, 66 F.4th 625, 627

(7th Cir. 2023). Problematically, the majority misinterprets the

statute by ignoring precedent and fundamental canons of

statutory interpretation to find standing and then reach the

plaintiffs’ First Amendment challenge. Under the correct

No. 21-1042 71

reading of the statute (and even under the majority’s reading,

as I explain later), the plaintiffs lack standing because their

conduct falls outside the statute’s purview.

As the majority correctly observes, in 1991, the Wisconsin

Court of Appeals limited application of subsections (2) and (3)

to physical interference or obstruction with a person engaged

in hunting activity. State v. Bagley, 474 N.W.2d 761, 764 (Wis.

Ct. App. 1991) (“[T]he everyday usage of these words contem-

plates physical interference or obstruction, not verbal.”). That

interpretation of the statute has never been challenged. Thus,

it is well-settled law that to violate subsections (2) or (3), a per-

son must physically impede or obstruct another person en-

gaged in hunting activity.

All agree that if the term impede or obstruct means the

same in subsection (7) as it does in subsections (2) and (3), the

plaintiffs do not have standing and, even if they did, the

amendment is constitutional. Ante, at 13 (“[If] the Bagley re-

striction of the statute to ‘physical interference’ would remain

intact [then] plaintiffs should have nothing to worry about

from the amendment.”); Appellants’ Br. at 10–11, 25 (admit-

ting that the plaintiffs do not intend to physically interfere

with a person engaged in lawful hunting); see Bagley, 474

N.W.2d at 764–65 (upholding the statute against a First

Amendment challenge). The question for us is, does it? The

majority answers no, concluding that because the activities

listed in subsections (7)(a)–(c) can occur without physical in-

terference or obstruction, the Bagley restriction cannot be

squared with the new provisions. Furthermore, the majority

suggests that if the Bagley restriction did apply, the 2016

amendment would be merely a futile or symbolic gesture.

Both of the majority’s assertions are wrong.

72 No. 21-1042

As an initial matter, the majority’s reasoning fails to

acknowledge that it is possible to physically impede or ob-

struct a person while engaging in any of the activities listed in

subsections (7)(a)–(c). But more importantly, the majority’s

reading of the statute ignores the fundamental principle of

statutory interpretation that when “judicial interpretations

have settled the meaning of an existing statutory provision,

repetition of the same language in a new statute indicates …

the [legislature’s] intent to incorporate its administrative and

judicial interpretations as well.” Bragdon v. Abbott, 524 U.S.

624, 645 (1998); see also Firstar Bank, N.A. v. Faul, 253 F.3d 982,

988 (7th Cir. 2001) (“If a phrase or section of a law is clarified

through judicial construction, and the law is amended but re-

tains that same phrase or section, then Congress presumably

intended for the language in the new law to have the same

meaning as the old.”); Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 322 (2012) (“If

a statute uses words or phrases that have already received au-

thoritative construction by the jurisdiction’s court of last re-

sort, or even uniform construction by inferior courts or a re-

sponsible administrative agency, they are to be understood

according to that construction.”).

This principle applies with even more force here, where

the legislature used the same words (impede or obstruct) in a

new subsection of the same statute. Merrill Lynch, Pierce, Fen-

ner & Smith Inc. v. Dabit, 547 U.S. 71, 86 (2006) (“Application

of [the prior-construction canon] is particularly apt here; not

only did Congress use the same words as are used in § 10(b)

and Rule 10b–5, but it used them in a provision that appears

in the same statute as § 10(b).”); see also Law v. Siegel, 571 U.S.

415, 422 (2014) (“[T]he ‘normal rule of statutory construction’

[is] that words repeated in different parts of the same statute

No. 21-1042 73

generally have the same meaning.”) (quoting Dep’t of Revenue

of Oregon v. ACF Indus., Inc., 510 U.S. 332, 342 (1994)); IBP, Inc.

v. Alvarez, 546 U.S. 21, 34 (2005) (“[I]dentical words used in

different parts of the same statute are generally presumed to

have the same meaning.”); State v. Williams, 544 N.W.2d 400,

405 (Wis. 1996) (“[T]he language of one subsection should be

construed so as to be consistent with identical language in

other subsections of the same statute.”). And there is no indi-

cation that the legislature intended to reject or ignore the Bag-

ley restriction. “[A]bsent ‘clear indication’ of [the legislature’s]

plan to change the meaning of a judicially settled construc-

tion, that construction should not be disturbed.” United States

v. Johnman, 948 F.3d 612, 619 (3d Cir. 2020) (citing TC Heartland

LLC v. Kraft Foods Grp. Brands LLC, 581 U.S. 258, 268 (2017)).

This is more than enough to conclude that the Bagley re-

striction applies to subsection (7). But there is more.

In suggesting that subsection (7) would be futile or sym-

bolic if physical interference were required to violate the pro-

vision, the majority rejects another fundamental canon: We

read statutes in their entirety. See, e.g., King v. St. Vincent's

Hosp., 502 U.S. 215, 221 (1991) (noting that it is a “cardinal rule

that a statute is to be read as a whole”); United States v. Pace,

48 F.4th 741, 753 (7th Cir. 2022) (“We also read a statute ‘as a

whole’ rather than ‘as a series of unrelated and isolated pro-

visions.’”) (quoting Arreola-Castillo v. United States, 889 F.3d

378, 386 (7th Cir. 2018)); Jarrett v. Lab. & Indus. Rev. Comm'n,

607 N.W.2d 326, 329 (Wis. Ct. App. 2000) (“Sections of statutes

should not be read in a vacuum, but must be read together in

order to best determine the statute’s plain meaning.”). In con-

sidering the whole statute, subsection (7) is not symbolic or

futile because it is broader than subsections (2) and (3).

74 No. 21-1042

The language in subsection (7) is lifted directly from Wis-

consin’s stalking statute, which, like subsections (2) and (3),

has been upheld against First Amendment challenges. State v.

Hemmingway, 825 N.W.2d 303 (Wis. Ct. App. 2012). The stalk-

ing statute provides, in part (with the overlapping language

in italics):

(1) In this section:

(a) “Course of conduct” means a series of 2 or

more acts carried out over time, however short

or long, that show a continuity of purpose, in-

cluding any of the following:

1. Maintaining a visual or physical

proximity to the victim.

2. Approaching or confronting the vic-

tim.

…

6m. Photographing, videotaping, audi-

otaping, or, through any other elec-

tronic means, monitoring or record-

ing the activities of the victim. This

subdivision applies regardless of

where the act occurs.

…

(2) Whoever meets all of the following criteria is

guilty of a Class I felony:

(a) The actor intentionally engages in a course

of conduct directed at a specific person

that would cause a reasonable person un-

der the same circumstances to suffer

No. 21-1042 75

serious emotional distress or to fear bod-

ily injury to or the death of himself or her-

self or a member of his or her family or

household.

Wis. Stat. § 940.32. There is nothing futile or symbolic about

the legislature passing an amended statute that prohibits a

person from engaging in a series of acts akin to stalking with

the intent to physically interfere with a person engaged in

hunting activities.

Subsections (2) and (3) prohibit acts that physically inter-

fere with a person engaged in hunting activities. Subsection

(7) goes further by prohibiting a series of acts (akin to stalk-

ing), which may not amount to physical interference but are

intended to physically interfere with a person engaged in

hunting activities, even if they do not have that effect. Like the

stalking statute, this distinguishes actions, like photo-

graphing, that could be benign on their own, absent the req-

uisite intent. See State v. Culver, 918 N.W.2d 103, 112 n.13 (Wis.

Ct. App. 2018) (“Absent a speaker's intent to cause serious

emotional distress or fear of bodily injury, texts, e-mails, etc.,

could be construed to be, rather than stalking, benign forms

of communication.”). While the stalking statute prohibits acts

with the intent to cause fear, and the hunter-harassment stat-

ute prohibits acts with the intent to cause physical interfer-

ence, the majority never explains why this distinction would

impact the interpretation of the statute.

Indeed, the following example proves how subsection (7)

covers more conduct than the prior version of the statute. As-

sume on day one, Photographer A positions herself directly

in the path between a hunter and his prey. This would consti-

tute physical interference with a hunter in violation of

76 No. 21-1042

subsection (2). See Bagley, 474 N.W.2d at 765 (finding that the

defendants physically interfered with a person who wished

to fish when they “blocked the boat landing with their boat”).

If the hunter manages to successfully complete his hunt de-

spite Photographer A’s physical interference, Photographer A

would still violate subsection (2) for attempting to interfere

with hunting by physically impeding or obstructing the

hunter. In other words, whether Photographer A succeeded

in actually interfering with the hunt or only attempted to in-

terfere with the hunt but did not actually interfere, either way,

Photographer A physically impeded or obstructed the hunter

by standing between him and his prey. A necessary element

of this subsection (2) violation is that Photographer A physi-

cally impeded or obstructed the hunter, regardless of whether

she succeeded in interfering with the hunt.

Now, assume that on day two, Photographer B stands in

the same location as where Photographer A stood on day one

and takes pictures of the hunter, intending to likewise physi-

cally interfere with him. But unbeknownst to Photographer B,

the prey had changed locations overnight, the hunter was po-

sitioned elsewhere, and she does not physically impede or ob-

struct him. This conduct would not violate subsection (2) be-

cause no physical interference of the hunter occurred (even if

she attempted to interfere with the hunt). Nor would it violate

subsection (7) because Photographer B only engaged in this

behavior once, although she did in fact intend to physically

interfere with the hunter (and attempt to interfere with the

hunt). On day three, Photographer B returns and positions

herself, once more photographing the hunter and intending

to physically interfere with him, but the prey has moved

again, and she does not actually impede or obstruct him.

Now, her conduct falls within subsection (7) because she

No. 21-1042 77

attempted to interfere with the hunt by engaging in a series of

two or more acts that are intended to physically impede or

obstruct the hunter, even though she has not violated subsec-

tion (2) (or subsection (3)). Or suppose that on day three, Pho-

tographer B instead decides to position herself directly in

front of the hunter’s ladder that leads to his hunting tree stand

to take pictures of him. If the hunter arrives but elects to con-

duct his hunt from the ground rather than the tree stand, Pho-

tographer B is in violation of subsection (7) for attempting to

interfere with the hunt by intending to physically interfere

with the hunter, despite never actually physically impeding

or obstructing him.

The majority claims that my example describes “unsuc-

cessful attempts to interfere physically with hunting” and that

“[s]uch attempts were already criminal under the 1990 ver-

sion of the hunter harassment law.” Ante, at 15 n.3 (emphasis

in original). But the majority improperly reads in the words

“attempt[ing] to” prior to “impeding or obstructing a person”

in subsection (2). Under the correct reading of the statute, sub-

section (2) criminalizes attempts to interfere with hunting

through an actual (rather than attempted or intended) physi-

cal interference with a person engaged in lawful hunting. In

other words, the attempted interference is with the hunt itself;

there must be actual physical interference with the hunter. See

Wis. Stat. § 29.083(2)(a)(2) (“No person may … attempt to in-

terfere with lawful hunting” by “[i]mpeding or obstructing a

person who is engaged in lawful hunting.”) (emphasis added).

Stated differently, it’s a violation of subsection (2) to attempt

to interfere with a hunt by actually physically impeding or

obstructing the hunter. It’s a violation of subsection (7) to at-

tempt to interfere with the hunt by intending to physically

78 No. 21-1042

impede or obstruct the hunter, even if there is no actual phys-

ical interference.

Going back to my example, Photographer A’s actual phys-

ical interference violates subsection (2), even if the hunt is

somehow successful despite the physical interference. Sub-

section (7) prohibits different behavior. It criminalizes an at-

tempt to interfere with lawful hunting by engaging in a series

of acts that are intended to impede or obstruct a person engaged

in lawful hunting, even if physical interference of the hunter

never occurs. See Wis. Stat. § 29.083(2)(a)(7) (“No person may

… attempt to interfere with lawful hunting” by “[e]ngaging in

a series of 2 or more acts … that are intended to impede or ob-

struct a person who is engaged in lawful hunting.”) (emphasis

added). In my example, unlike under subsection (2), Photog-

rapher B does not need to actually physically impede or ob-

struct the hunter to violate subsection (7), so long as she in-

tended to physically impede or obstruct him.

Because the majority wants to reach the First Amendment

issue, it complains that “the text of subsection (2)(a)(7) makes

photography and video recording of hunting its prime tar-

gets.” Ante, at 15 n.3. Again, this ignores the fact that photo-

graphing and video recording alone are not covered by the

statute. Rather, photographing and video recording are only

criminalized under the statute if done in a series of two or

more acts with the intent to physically interfere with a person

engaged in lawful hunting.

Undoubtedly, there may be overlap between the conduct

prohibited by subsections (2), (3), and (7). “But overlap be-

tween statutory provisions does not necessarily render a stat-

utory provision superfluous.” Signor v. Safeco Ins. Co. of Illi-

nois, 72 F.4th 1223, 1231 (11th Cir. 2023); see also Pasquantino

No. 21-1042 79

v. United States, 544 U.S. 349, 359 n.4 (2005) (“The Federal

Criminal Code is replete with provisions that criminalize

overlapping conduct.”); McEvoy v. IEI Barge Servs., Inc., 622

F.3d 671, 677 (7th Cir. 2010) (“The fact that the different sub-

paragraphs of [a statute] may overlap to a degree is no reason

to reject the natural reading of a statute.”). To reach the First

Amendment issue, the majority ignores this as well.

The majority says that the Senate and House sponsors’ tes-

timony, which the majority labels the “legislature’s intent,” re-

moves any doubt that its interpretation of the statute is cor-

rect. Ante, at 17 (emphasis added). But as Judge Easterbrook

has written: “Legislative intent is a fiction …. Every legislator

has an intent …; and the legislature is a collective body that

does not have a mind; it ‘intends’ only that the text be

adopted, and statutory texts usually are compromises that

match no one’s first preference.” Scalia & Garner, supra, at xxii

(emphasis in original); see id. at 376 (“[T]he use of legislative

history to find ‘purpose’ in a statute is a legal fiction that pro-

vides great potential for manipulation and distortion.”); see

also Bevis v. City of Naperville, Illinois, No. 23-1353, 2023 WL

7273709, at *16 (7th Cir. Nov. 3, 2023) (“We confess to some

skepticism about any test that requires the court to divine leg-

islative purpose from anything but the words that wound up

in the statute. Legislator A may have had one goal; Legislator

B may have had another; and Legislator C might have agreed

to vote for one bill in exchange for a reciprocal vote for Legis-

lator D’s pet project later.”). Viewing “committee reports and

floor speeches [as] worthwhile aids in statutory construction”

is a “false notion.” Id. at 369; see also Blanchard v. Bergeron, 489

U.S. 87, 99 (1989) (Scalia, J., concurring) (“It is neither compat-

ible with our judicial responsibility of assuring reasoned, con-

sistent, and effective application of the statutes of the United

80 No. 21-1042

States, nor conducive to a genuine effectuation of congres-

sional intent, to give legislative force to each snippet of anal-

ysis, and even every case citation, in committee reports that

are increasingly unreliable evidence of what the voting Mem-

bers of Congress actually had in mind.”).

In any event, the majority’s position that the amendment

“expand[s] prohibited behaviors” supports my interpretation of

the statute. Ante, at 17 (emphasis in original). As discussed,

the plain reading of the statute reveals that subsection (7) ex-

pands the statute to prohibit new conduct, specifically, a se-

ries of acts akin to stalking with the intent to physically inter-

fere with a person engaged in hunting activities, even if the

conduct does not actually amount to physical interference.

And while the majority asserts that the “[d]efendants argue

that subsection (2)(a)(7) does not expand the reach of the stat-

ute[,]” ante, at 13, I do not find that argument anywhere in

their brief. Rather, the defendants correctly argue that the

statute requires an intent to physically impede or obstruct a

hunter in light of Bagley. Appellees’ Br. at 30 n.5. Even with

Bagley’s physical interference requirement carrying over, sub-

section (7) covers new behavior, and it is therefore more than

just “an empty political gesture.” Ante, at 13.

The majority not only misinterprets the statute but skips a

step in reaching to determine its constitutionality. The major-

ity acknowledges that our ability under Article III to reach the

constitutional issue depends on the state statute’s meaning.

At a minimum, then, the majority should certify this question

of statutory interpretation to the Wisconsin Supreme Court,

“which alone can give an authoritative interpretation of state

law.” Indiana Right to Life, 66 F.4th at 632; see id. (“[W]hen we

are faced with both statutory and constitutional questions, we

No. 21-1042 81

must prioritize resolving the statutory issues if doing so

would prevent us from engaging in unnecessary constitu-

tional analysis,” particularly when the challenged statute is a

state statute.) (citing Ashwander v. TVA, 297 U.S. 288, 347

(1936) (Brandeis, J., concurring)); Babbitt v. United Farm Work-

ers Nat. Union, 442 U.S. 289, 306 (1979) (“The paradigm of the

‘special circumstances’ that make abstention appropriate is a

case where the challenged state statute is susceptible of a con-

struction by the state judiciary that would avoid or modify

the necessity of reaching a federal constitutional question.”)

(quoting Kusper v. Pontikes, 414 U.S. 51, 54 (1973)). This is true

even if the parties have not suggested certification. See State

Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 672 n.5 (7th Cir.

2001) (noting that “this court, sua sponte …, may certify such

a question to the state court”) (quoting Circuit Rule 52). This

way, the majority would avoid “[a] tentative decision[] on

questions of state law[] and premature constitutional adjudi-

cation,” Babbitt, 442 U.S. at 306 (quoting Harman v. Forssenius,

380 U.S. 528, 534–35 (1965)), that results in the drastic remedy

of striking down a state statute on constitutional grounds.

See, e.g., Salazar v. Buono, 559 U.S. 700, 722 (2010) (“[I]t was

incumbent upon the District Court to consider less drastic re-

lief than complete invalidation of the … statute.”); New York

v. Ferber, 458 U.S. 747, 769 (1982) (“Because of the wide-reach-

ing effects of striking down a statute on its face at the request

of one whose own conduct may be punished despite the First

Amendment, we have recognized that the overbreadth doc-

trine is ‘strong medicine’ and have employed it with hesita-

tion, and then ‘only as a last resort.’”) (quoting Broadrick v. Ok-

lahoma, 413 U.S. 601, 613 (1973)).

82 No. 21-1042

III

Regardless of whether subsection (7) requires physical in-

terference, the plaintiffs lack standing to challenge the statute

because they cannot show an injury-in-fact. Nor do they ex-

plain how their alleged injuries are likely to be redressed by

the relief they seek.

A

Where, as here, no enforcement action has been brought

against the plaintiffs, they may nonetheless bring a pre-en-

forcement suit consistent with Article III’s injury-in-fact re-

quirement if the threatened enforcement is “sufficiently im-

minent.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159

(2014). In other words, plaintiffs must show that an injury is

not merely “‘conjectural’ or ‘hypothetical.’” Id. at 158 (quoting

Lujan, 504 U.S. at 560). The injury must be “certainly impend-

ing,” or there must be “a ‘substantial risk’ that the harm will

occur.” Id. (quoting Clapper v. Amnesty Int'l USA, 568 U.S. 398,

414 n.5 (2013)); see also Babbitt, 442 U.S. at 298 (finding that an

injury is “certainly impending” if “the plaintiff has alleged an

intention to engage in a course of conduct arguably affected

with a constitutional interest, but proscribed by a statute, and

there exists a credible threat of prosecution thereunder”).

Plaintiffs can show a certainly impending, sufficiently immi-

nent injury by showing an “intention to commit similar con-

duct in [the] future,” “a history of enforcement,” and a “threat

of future enforcement.” Sweeney v. Raoul, 990 F.3d 555, 559

(7th Cir. 2021) (citing Holder v. Humanitarian L. Project, 561 U.S.

1, 15–16 (2010)).

In the First Amendment context, we have fashioned an al-

ternative, but related, “chilling effect” test to show an Article

No. 21-1042 83

III injury-in-fact. Speech First, Inc. v. Killeen, 968 F.3d 628, 638

(7th Cir. 2020). This alternative test requires a past or ongo-

ing—rather than future—injury in the form of already

“chilled” speech or conduct. Six Star Holdings, 821 F.3d at 802

(finding that a statute’s alleged “immediate chilling effect” on

a party’s protected speech is best understood as “an injury

that has already occurred”). This test incorporates two ele-

ments, one objective and one subjective. First, plaintiffs must

show that the statute would deter an objectively reasonable

person from engaging in the intended expressive activity,

thereby creating a “chilling effect.” Speech First, 968 F.3d at

638; see also Laird v. Tatum, 408 U.S. 1, 13–14 (1972) (finding

that a subjective fear alone cannot satisfy Article III). To deter

an objectively reasonable person, there must be a credible and

substantial risk that the government would enforce the stat-

ute against the intended expressive activity. Speech First, 968

F.3d at 639 n.1. Second, plaintiffs must show that the statute

caused them to self-censor because of that chill. Id. at 638.

Whether plaintiffs seek to satisfy Article III’s injury-in-fact

requirement by showing a sufficiently imminent future injury

or a past or ongoing chilling effect, they must show a substan-

tial, credible threat that the challenged statute will be en-

forced against them for the kind of activity in which they in-

tend to engage. Id. at 639 n.1 (“Either way, a credible threat of

enforcement is critical; without one, a putative plaintiff can

establish neither a realistic threat of legal sanction if he en-

gages in the speech in question, nor an objectively good rea-

son for refraining from speaking and self-censoring instead.”)

(quoting Abbott v. Pastides, 900 F.3d 160, 176 (4th Cir. 2018));

see also Whole Woman's Health v. Jackson, 142 S. Ct. 522, 538

(2021) (“[T]he ‘chilling effect’ associated with a potentially

unconstitutional law being ‘on the books’ is insufficient to

84 No. 21-1042

‘justify federal intervention’ in a pre-enforcement suit” with-

out “proof of a more concrete injury and compliance with tra-

ditional rules of equitable practice.”) (quoting Younger v. Har-

ris, 401 U.S. 37, 42, 50 (1971)). If a statute “clearly fails to

cover” plaintiffs’ conduct, then there is not a substantial, cred-

ible threat of enforcement under it. Lawson v. Hill, 368 F.3d

955, 957 (7th Cir. 2004) (quoting Majors v. Abell, 317 F.3d 719,

721 (7th Cir. 2003)); see also Commodity Trend Serv., Inc. v.

Commodity Futures Trading Comm'n, 149 F.3d 679, 687 (7th Cir.

1998) (noting that courts consider whether plaintiffs’ “in-

tended conduct runs afoul of a criminal statute” in determin-

ing whether there is a credible threat of prosecution). Indeed,

even if “it is possible that the plaintiffs ‘might be prosecuted

under a statute the text of which clearly fail[s] to cover [their]

conduct,’ such remote fear does not justify an injunction ab-

sent something more than a ‘nontrivial probability of prose-

cution.’” Schirmer v. Nagode, 621 F.3d 581, 587 (7th Cir. 2010)

(quoting Lawson, 368 F.3d at 958).

Here, there is no evidence that any plaintiff faces a sub-

stantial, credible threat of enforcement for their conduct un-

der subsection (7), which at least requires an intent to impede

or obstruct a person engaged in lawful hunting, fishing, or

trapping, or an activity associated therewith. The plaintiffs af-

firmatively disavow such intent.

Wolf Patrol “is a citizen monitoring group … that seeks to

take photographs and video on public lands of activities re-

lated to hunting that may be illegal” or “unethical.” R. 16 at

13. Almost all of Wolf Patrol’s monitoring activities are done

from vehicles on public roads, and members generally do not

exit their vehicles during this monitoring. R. 34 at 2–3 (Losse

Decl. ¶ 5); see R. 33 at 2–3 (Brown Decl. ¶ 5). Plaintiff

No. 21-1042 85

Stephanie Losse, a Wolf Patrol volunteer, states that she has

“never” “interfer[ed]” with hunting or “harass[ed]” hunters,

and that “[t]he goal is not to interfere with the hunters or trap-

pers,” so she “tr[ies] to stay a minimum distance of 250 feet

away” from hunters when monitoring them. R. 34 at 2–3

(Losse Decl. ¶¶ 4–5). Plaintiff Joseph Brown is not a member

of Wolf Patrol, see R. 16 at 15 (Brown Dep. 54:7), but he has

documented Wolf Patrol’s activities to make a documentary

on “the pros and cons of hunting wolves in Wisconsin.” R. 33

at 2 (Brown Decl. ¶ 3). Because the goal “is to observe, not to

interfere,” Mr. Brown tries “to maintain a minimum distance

of 150 feet when recording hunters.” Id. at 3 (¶ 5). And Plain-

tiff Louis Weisberg does not claim to have personally engaged

in any monitoring activities; instead, he “primarily rel[ies] on

information gathered by reporters who go into the field and

document hunting and trapping activity firsthand.” See R. 35

at 2 (Weisberg Decl. ¶ 3). There is no evidence that he has even

been anywhere near hunting activity. See R. 35 at 2. While he

alleges a “fear [of] sending journalists into the field to docu-

ment” hunter activity, this is based on his misunderstanding

of the statute as criminalizing “photographing or recording

hunters, or even just remaining in [hunters’] vicinity.” R. 35 at

2 (Weisberg Decl. ¶ 3).

There is also no evidence the plaintiffs intend to engage in

violative conduct in the future. See Sweeney, 990 F.3d at 560

(holding that the plaintiff did not show an imminent injury to

establish Article III standing, in part, because the plaintiff did

“not suggest an intention to engage in a course of conduct …

proscribed by the statute”) (citing Babbitt, 442 U.S. at 298)

(quotation marks omitted); cf. Holder, 561 U.S. at 15–16 (hold-

ing that the plaintiffs had standing because a statute criminal-

ized knowingly providing material support or resources to a

86 No. 21-1042

foreign terrorist organization, and the plaintiffs had provided

support to groups designated as terrorist organizations and

planned to provide similar support in the future). And unless

the plaintiffs express a contrary intent, we should presume

that they will continue to follow the law. See, e.g., O'Shea v.

Littleton, 414 U.S. 488, 497 (1974) (courts generally assume that

litigants “will conduct their activities within the law and so

avoid prosecution and conviction”); Swanigan v. City of Chi-

cago, 881 F.3d 577, 583 (7th Cir. 2018) (the plaintiff’s likelihood

of being pulled over, arrested, and again subjected to long de-

tention was too low, especially because it was “assume[d]”

that the plaintiff would follow the law moving forward); Simic

v. City of Chicago, 851 F.3d 734, 738 (7th Cir. 2017) (threat that

the plaintiff would again receive a citation under a city ordi-

nance for using her cellphone while driving was conjectural

because it was assumed she would follow the law). Under

these circumstances, it would be a “clear misuse” of the law

for a prosecutor to charge the plaintiffs with violating the

hunter-harassment statute. See Schirmer, 621 F.3d at 588

(“Such a clear misuse of a law does not provide a basis for a

federal court to explore that law’s facial constitutionality.”).

The plaintiffs also offer no evidence of the statute’s past

enforcement against the kind of conduct at issue, casting

doubt on the likelihood of future enforcement. City of Los An-

geles v. Lyons, 461 U.S. 95, 102 (1983) (noting that past enforce-

ment of a criminal statute is “evidence bearing on ‘whether

there is a real and immediate threat of repeated injury’”)

(quoting O’Shea, 414 U.S. at 496). It is undisputed that the

plaintiffs have not been cited, arrested, or prosecuted under

any version of Wisconsin’s hunter-harassment statute, and no

formal enforcement proceedings against them are scheduled.

Nor have the plaintiffs offered evidence of any other

No. 21-1042 87

individuals being cited, arrested, or prosecuted for the type of

expressive activity at issue under either the other, unchal-

lenged provisions of the statute or the challenged subsection,

despite the provisions’ existence for over thirty years and six

years, respectively. Cf. SBA List, 573 U.S. at 154, 164–65 (not-

ing that enforcement proceedings were not “rare” because

twenty to eighty false statement complaints were filed annu-

ally and a mandatory hearing before the full commission had

already been scheduled); Holder, 561 U.S. at 16 (noting that the

government “ha[d] charged about 150 persons with violating

[the challenged statute], and that several of those prosecu-

tions involved the enforcement of the statutory terms at issue

here”); Norton v. City of Springfield, Illinois, 768 F.3d 713, 714

(7th Cir. 2014), on reh'g, 806 F.3d 411 (7th Cir. 2015) (holding

that the plaintiffs had standing, in part, because they had re-

ceived citations for violating the challenged ordinance).

As the majority notes, Brown and Losse were involved in

one incident with hunters and police in January 2018, but that

event involved an extended confrontation between hunters

and Wolf Patrol members. During that incident, the hunters

surrounded Wolf Patrol members with their trucks—barri-

cading them—and used a truck to strike a Wolf Patrol mem-

ber. While the general hunter-harassment statute was cited i

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