Petition for Writ of Certiorari — Lilburn v. Montana

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Text

Supreme Court, U.S.

i‘ i a Le D

94 723 OCI 2 1 19%

No. 94-

0. 947 ICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

JOHN LILBURN,

Petitioner,

STATE OF MONTANA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF MONTANA

PETITION FOR A WRIT OF CERTIORARI

Eric R. Glitzenstein

(Counsel of Record)

Katherine A. Meyer

Meyer & Glitzenstein

1601 Connecticut Ave., N.W.

Suite 450

Washington, D.C. 20009-1035

(202) 588-5206

Attorneys for Petitione:

October 21, 1994

CASILLAS PRESS INC., 1717 K STREET, N.W. WASHINGTON, D.C. 20036

‘

QUESTION PRESENTED

Did the Montana Supreme Court err in holding that a pro-

vision of Montana’s ‘‘hunter harassment’’ statute is not

content-based, overbroad, or vague in violation of the First

Amendment, when the provision proscribes speech that

‘“‘disturbs’’ hunters and is conveyed with the ‘‘intent to

dissuade’’ them from hunting?

PARTIES TO THE CASE

The sole petitioner here, John Lilburn, seeks review of a

decision of the Supreme Court of the State of Montana. Mr.

Lilburn was the defendant in the Montana Eighteenth Judicial

District and was the respondent in the Montana Supreme

Court. The State of Montana was the plaintiff in the Montana

District Court and the appellant in the Montana Supreme

Court. There were no other parties in the proceedings below.

The Montana Shooting Sports Association, Inc., the Western

Montana Fish and Game Association, Inc., and Michigan

United Conservation Clubs filed a brief as amici cunae in the

Montana Supreme Court in support of the State of Montana.

TABLE OF CONTENTS

Page

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RELEVANT CONSTITUTIONAL PROVISION

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REASONS FOR GRANTING THE WRIT ................. 8

I. THERE IS A SPLIT IN THE LOWER

COURTS REGARDING THE

COMPATIBILITY OF ‘‘HUNTER

HARASSMENT’’ LAWS WITH THE

EXERCISE OF FIRST AMENDMENT

EO 8

Il. THE MONTANA SUPREME COURT’S

RULING RAISES IMPORTANT FIRST

AMENDMENT QUESTIONS THAT

WARRANT REVIEW BY THIS

IES LE 13

A. The Montana Supreme Court’s Ruling That

The Provision is Content-Neutral

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B. The Montana Supreme Court’s Ruling That

The Statute Is Not Overbroad Warrants

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Oe On ree 21

Page

APPENDIX:

Opinion of the Supreme Court of the State of

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Order Dismissing Charge of the Montana

Eighteenth Judicial District Court,

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TABLE OF AUTHORITIES

CASES Page

Arkansas Wnters’ Project, Inc. v. Ragland,

es oe ican ges £a4 canbe wAw REO ES 14

Board of Airport Commissioners v. Jews for Jesus, Inc.,

ee eee ce ddkdesntandeknanuenn 18

Boos v. Barry, 485 U.S. 312 (1988) ............... 5, 14, 17

Burson v. Freeman, 504 U.S. i,

ee es I 0k 5S Go vioc aves obnderieeddaanwen 14

Carey a. Brome, G47 U.S. 456 (1GG0)... 0. ccc cccccceesces 14

City of Houston v. Hill, 482 U.S. 451 (1987).... 10, 11, 17-18

City of Ladue v. Gilleo, 512 U.S. Ss,

EB ne ere 19, 20

City of Renton v. Playtime Theatres, Inc.,

ee ee ea 0 dean se uee ee 8, 10

Cornelius v. NAACP Legal Defense and Education Fund,

ee ee I oo icin cise vkcesacavessia6eas 15

Dorman v. Satti, 862 F.2d 432 (2d Cir. 1988)............. 10

Edwards v. South Carolina, 372 U.S. 229 (1963)........... 2

Forsyth County, Ga. v. Nationalist Movement,

SS oe (> oes | OT. 21

Frisby @. Scheie, 467 U.S. 474 C1GGB) ... 0. ccc ccccceces 5

Fund for Animals, Inc. v. Espy,

eR OD) a err 4

Page

Lamb’s Chapel v. Center Moriches Union Free

School Distnct, 508 U.S. ;

ee es EE ods Gace whe kineearseacaen 15

Madsen v. Women’s Health Center, Inc.,

tk oe SG ee eer err 20

Opinion of the Justices, 509 A.2d 749 (N.H. 1986) ......... 12

R.A.V. v. City of St. Paul, Minnesota,

566 U.S. —_..._....., 112 S. Ce. BSR GSES) ........: 14, 16

State v. Casey, 876 P.2d 138 (Idaho 1994) ............... 11

State v. Ball, 226 Conn. 265, 627 A.2d 892 (1993) ........ 11

Texas v. Johnson, 491 U.S. 397 (1989) .................. 15

Turner Broadcasting System Inc. v. Federal

Communications Commission, 512 U.S. ;

ee eg Ne he eee dca weeds 14

Ward v. Rock Against Racism,

ee a i ear ce eee more ks art. 8

STATUTES

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Pe FF 8) § Perrre 9

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Mont. Code Annotated § 87-3-142................4.. passim

Tem. Codie § TR-OGURGD occ cccccveccnccecsensivawawes 9

Page

MISCELLANEOUS

Comment, The Right to Arm Bears: Activists’ Protests Against

Hunting, 45 Mia. L. Rev. 1109 (1991) ................. 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

No.

JOHN LILBURN,

Petitioner,

STATE OF MONTANA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF MONTANA

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Montana Supreme Court, rejecting peti-

tioner’s constitutional challenge to the state law at issue and

reversing the ruling of the Montana District Court, is reported

at 875 P.2d 1036 and appears in the Appendix to this petition

(‘‘Pet. App.’’) at la-17a. The unreported ruling of the Mon-

tana district court sustaining petitioner’s constitutional

challenge appears in the Appendix at 18-30a.

JURISDICTION OF THIS COURT

The Montana Supreme Court’s ruling was issued on June

9, 1994. On August 23, 1994, Justice O’Connor entered an

order extending the time for petitioner to file a petition for

a writ of certiorari to October 7, 1994. By order dated

September 19, 1994, Justice O’Connor further extended the

time for filing a petition to October 21, 1994. This Court has

jurisdiction over this case pursuant to 28 U.S.C. § 1257(a).

RELEVANT CONSTITUTIONAL

PROVISION AND STATUTE

The First Amendment to the United States Constitution pro-

vides, in pertinent part, that ‘‘Congress shall make no law

. . abridging the freedom of speech.”’ This prohibition has

been extended to the states through the Fourteenth Amend-

ment. See Edwards v. South Carolina, 372 U.S. 229 (1963).

The Montana ‘‘Act to Prohibit Harassment of Hunters and

Trappers’’ was enacted in 1987. Montana Code Annotated

§ 87-3142(3), which is primarily at issue here, provides in per-

tinent part:

Harassment prohibited.

(3) no person may disturb an individual engaged in

the lawful taking of an animal with the intent to

dissuade the individual or otherwise prevent the tak-

ing of the animal.

Section 87-3-141(1) defines ‘‘[t]aking’’ as the:

pursuit, hunting, trapping, shooting, or killing of a

wild animal on land upon which the affected person

has the right or privilege to pursue, hunt, trap,

shoot, or kill the wild animal.

LETT ae ne

STATEMENT OF THE CASE

In recent years, the federal government and 48 states have

passed some version of so-called ‘‘hunter harassment”’ laws,

which are designed to prevent persons who are opposed to

sport hunting from ‘‘harassing’’ hunters or otherwise interfer-

ing with hunting activities on public lands. As discussed fur-

ther below, there has been considerable litigation in state and

federal courts regarding the constitutional validity of these laws

and, more specifically, whether they abridge the freedom of

speech guaranteed by the First Amendment.

This case involves the constitutional validity of Montana’s

prohibition on ‘‘hunter harassment.’’ MCA § 87-3-142. In par-

ticular, the case centers on a provision of the statute, similar

to prohibitions found in several other state laws, which makes

it a crime for any person to ‘‘disturb an individual engaged

in the lawful taking of a wild animal with intent to dissuade the

individual or otherwise prevent the taking of the animal.’’ Jd.

at § 87-3-142(3) (emphasis added). A ‘‘[t]aking’’ is defined

by the statute as the “‘pursuit, hunting, trapping, shooting,

or killing of a wild animal,’’ zd. at § 87-3-141(1), and a ‘‘[w)ild

animal’’ means ‘‘any game animal, fur-bearing animal, or

predatory animal... ..’’ Jd. at § 87-3-141(2).

Persons who are convicted of a single violation of this pro-

vision may be imprisoned for up to thirty days and persons

who are convicted of a second violation may be imprisoned

for up to one year. Jd. at § 87-3-143. In addition, a ‘‘court

of general jurisdiction may enjoin’’ any person from

‘‘disturb[ing]’’ hunters with the ‘‘intent to dissuade’’ them

from hunting, upon a ‘‘showing that such conduct is threatened

or that it has occurred on a particular premises in the past

and that it is not unreasonable to expect that under similar

circumstances it will be repeated.’’ Jd. at § 87-3-144.

The petitioner here, John Lilburn, was arrested in 1990.

At that time, Mr. Lilburn and other individuals were protesting,

on the Gallatin National Forest in Montana, a ‘‘controversial

bison hunt’’ operated by the Montana Department of Fish,

Wildlife & Parks (‘‘DFWP’’). 19a. The bison hunt was the

subject of national controversy because the ‘“‘last remaining

wild herd of 2400 bison exists in Yellowstone National Park.”’

Fund for Animals, Inc. v. Espy, 814 F. Supp. 142, 144

(D.D.C. 1993). While in Yellowstone, the animals were pro-

tected from sport hunting, but, ‘‘[i]n recent years, some bison

have migrated during the winter to areas in Montana outside

the Park.’’ Jd. When they wandered out of Yellowstone onto

adjoining public lands, the animals were shot by hunters.

In March 1990, Mr. Lilburn, along with a number of other

persons, protested the sport killing of bison that had left

Yellowstone. 19a, 28a. Mr. Lilburn stood between one of the

hunters and the bison and stated ‘‘Don’t shoot!’’ 20a. He was

subsequently arrested and charged with violating MCA § 87-3-

142(3) and, following a jury trial, he was convicted. Although

‘‘over 40 people were present at the bison hunt, at least 11

of whom were actively opposing it,’’ Mr. Lilburn was the on-

ly one who was arrested or convicted under this statute. 27a.

Mr. Lilburn appealed his conviction to the District Court

for the Eighteenth Judicial District in Gallatin County, Mon-

tana, arguing that the statute violates the First Amendment

because it is content-based, overbroad, and vague. The

District Court agreed and dismissed Mr. Lilburn’s conviction

on the grounds that the provision under which he was charg-

ed ‘‘impermissibly infringes upon the defendant’s constitu-

tionally protected rights of free speech . . ..’’ 18-19a. The

District Court reasoned that:

According to The American Heritage D1ctionary

(1982), ‘‘dissuade’”’ is ‘‘[t]o discourage from a pur-

ee , ee ‘ i

pose or course of action by persuasion.’’ ‘‘Per-

suade’’ is ‘‘[t]o cause someone to do something by

means of argument, reasoning, or entreaty.’’ Clear-

ly, the statute prohibits not only physical interference

with the legitimate taking of a wild animal . . . but

the statute goes much further and prohibits verbal,

written or symbolic speech and expression which

dissuades the hunter from taking the prey. Simply

stated, the Act punishes communication which has as

its purpose inducing others not to hunt.

23a (emphasis added).

Following a review of the legislative history, the District

Court further explained that the provision is ‘‘directed solely

at the anti-hunting point of view’’ and is

obviously content-based. It prohibits communication

with hunters which is intended to dissuade them from

hunting, while allowing communication with hunters

which encourages hunting, even if such communica-

tion prevents a hunter from taking the prey. For ex-

ample, if a bystander exclaims, ‘‘There he is! Shoot!

Shoot!’’ and the commotion causes the hunter to

miss his shot, the bystander cannot be prosecuted.

However, if the same bystander said ‘‘There he is!

Don’t shoot! Don’t Shoot!,’’ the speaker could be

prosecuted.

23a (emphasis added).

Having determined that the statute is ‘content-based rather

than content-neutral’’ the District Court considered whether

the provision “‘serves a compelling government interest and

is narrowly drawn to achieve that end.’’ 24a, citing Boos v.

Barry, 485 U.S. 312, 321 (1988) and Fnsby v. Schultz, 487

U.S. 474., 481 (1988). The District Court concluded that the

statute could not satisfy this stringent standard because the

statutory language is overbroad in the extreme and, indeed,

‘‘encompasses all verbal and expressive conduct which has

the intention to dissuade from hunting.’’ 26a. In particular,

‘‘{c]onduct such as [] prayer vigils at trailheads, the singing

of protest songs or the burning of hunting maps, ii done with

the intent to dissuade a hunter, would be violations of the

statute.’’ Jd. Finally, the District Court

note[d] that the state has at its disposal alternative

means of keeping the peace, the most obvious of

which is the charge of misdemeanor assault, with

which one of the protestors [at the bison hunt] was

charged. Section 45-5-201(1)(c), MCA, provides for

prosecution of a person who ‘purposely or know-

ingly makes physical contact of an insulting or pro-

voking nature with any individual.’ Criminal mischief,

section 45-6-101(1), MCA, may be charged where

an individual tampers with another’s property so as

to interfere with its use. Thus, the state has other,

less constitutionally burdensome avenues of enforc-

ing the public order than to crnminalize dissident points

of view.

28a (emphasis added).

In its appeal to the Montana Supreme Court, the state flat-

ly conceded that ‘‘there may be instances in which expressive

conduct, or even pure speech, violates the statute.’’ Brief of

Appellant, at 17, State of Montana v. Lilburn, No. 93-404

(‘‘State Br.’’). Indeed, the state admitted that even if Mr.

Lilburn

had simply walked up to Slemmer [the hunter] as

he took aim and engaged him in conversation with

the intent to distract him so he could not make the

shot, Lilburn would still have been in violation of

the statute. He would have disturbed Slemmer in the

course of the taking of a wild animal through con-

duct, in this case speech, with the intent to dissuade

or prevent Slemmer from taking the animal.

Id. at 17-18 (emphasis added).

However, the state argued that this prohibition on ‘‘pure

speech’’ is constitutionally permissible because the provision

at issue

regulates expression only in the context of sport hunt-

ing, and only when the expression 1s uttered in the

field with the intent to prevent the killing of a wild

animal. It reaches no other expression. Thus,

Lilburn could have expressed his views on televi-

sion, radio, in the newspapers, going door-to-door,

or on any street corner or in any city park in Mon-

tana without violating the statute.

Id. at 28 (emphasis added). In other words, while admitting

that the provision as written does prohibit even ‘‘pure speech’’

on state and private lands where sport hunting ts actually be-

ing carried out, the state argued that this prohibition is con-

stitutional because persons opposed to hunting remain free

to express their opposition in locations where hunting is not

occurring.

The Montana Supreme Court accepted this position and

reversed the District Court’s ruling. The Court rejected peti-

tioner’s argument that the statute is overbroad on the ground

that:

the statute’s proscriptions reach only activities which

occur in the field during an otherwise lawful hunt.

While the disturbance which is prohibited may, under

other circumstances, result from a verbal utterance,

it makes no difference what the content of the ver-

bal utterance is. The language of the statute does

not support the assertion that the statute is aimed

primarily at pure speech and expressive conduct con-

veying only an anti-hunting sentiment.

lla.

The Court also disagreed with the argument that the

‘‘Legislature’s use of the term ‘dissuade’ . . . renders this

a content-based regulation’ because, according to the Court,

the ‘‘existence of a content-neutral motivation is all that is

required under Ward and Renton to refute the characteriza-

tion that the statute impermissibly regulates speech or con-

duct based on the message conveyed.’’ 14a (emphasis add-

ed), citing Ward v. Rock Against Racism, 491 U.S. 781 (1989),

and City of Renton v. Playtime Theatres, Inc., 475 U.S. 41

(1986). Therefore, because the Court found that the

Legislature had a legitimate, content-neutral interest in

avoiding ‘‘confrontations between hunters and opponents of

sport hunting, particularly with respect to the controversial

bison hunts,’’ 12a, the Court concluded that the statute could

be sustained against a facial challenge even though ‘‘there may

be instances where protected expression or pure speech may

violate the statute.’’ 14a.

REASONS FOR GRANTING THE WRIT

I. THERE IS A SPLIT IN THE LOWER COURTS

REGARDING THE COMPATIBILITY OF “HUNTER

HARASSMENT” LAWS WITH THE EXERCISE OF

FIRST AMENDMENT RIGHTS.

As noted above, the overwhelming majority of states have

enacted ‘‘hunter harassment’’ laws and, just several months

a \ ,

ago, Congress passed, as part of its 1994 omnibus crime bill,

the first such federal legislation. Although some of these

statutes are far more narrowly drawn and carefully crafted than

others, all are designed to avoid confrontations between

hunters and those opposed to sport hunting on ethical, con-

servation, or other grounds.!

Several states have enacted provisions which are identical

or extremely similar to the one at issue here. Thus, three

states — Illinois, Louisiana, and Tennessee — specifically make

it unlawful to ‘‘disturb’’ a hunter with the ‘‘intent to dissuade

.... 2 Other states have used slightly different formulations.*

1For example, the recently enacted federal provision, which is subtitl-

ed the ‘‘Recreational Hunting Safety and Preservtion Act of 1994’’ is more

narrowly drawn than many state laws, including the Montana statute at

issue. The federal provisions makes it a violation — punishable by a penalty

of $5,000 or more — for any persons ‘‘intentionally to engage in any

physical conduct that significantly hinders a lawful hunt’’ on various federal

lands, including national forests and federal wildlife refuges. Pub. L.

103-322 § 320802. In a further effort to avoid constitutional infirmity, Con-

gress expressly defined the term ‘‘conduct’’ as ‘‘not includ{ing] speech

protected by the first article of amendment to the Constituton,’’ id. at

§ 320909(9) (emphasis added), and it further provided that ‘‘[njothing in

this subtitle shall be construed to impair a right guaranteed to a person

under the first article of amendment to the Constitution. . . ’’ Jd.

2The Illinois Hunter Interference Prohibition Act and the Tennessee

Hunter Protection Act contain provisions which are functionally identical

to Montana’s prohibition. See 720 Ill. Code at § 125/2(c); Tenn. Code at

§ 70-4-302(3). Louisiana’s ‘‘prohibit[ion] on ‘‘harassement of hunters, trap-

pers, and fishermen’’ provides, in pertinent part, that it is illegal for any

person to ‘‘[dJisturb any hunter, trapper, or fisherman who is engaged

in the lawful taking of a wild animal or who is engaged in the process of

taking, with intent to dissuade or otherwise prevent the taking, or to pre-

vent such person’s enjoyment of the outdoors.’’ La. Rev. Stat. at

§56:648.1(3).

3For example, Minnesota’s prohibition on ‘‘hunter, trapper, and angler

harassment’’ provides that a person

who has the intent to prevent, disrupt, or dissuade the taking

of a wild animal or enjoyment of the out-of-doors may not

There has been considerable litigation in state courts and

the lower federal courts regarding the constitutionality of

hunter harassment statutes. The courts have split over the

constitutionality of these provisions. Thus, the Second Cir-

cuit, adopting an approach that was virtually identical to that

of the Montana District Court, upheld a facial challenge to a

Connecticut statute which provided, in part, that ‘‘ ‘nJo per-

son shall . . . harass another person who is engaged in the

lawful taking of wildlife or acts in preparation for such taking.’ ’’

Dorman v. Satti, 862 F.2d 432, 433 (2d Cir. 1988) (emphasis

in original), quoting Conn. Gen. Stat. § 53a-183a. Relying

heavily on this Court’s ruling in City of Houston v. Hill, 482

U.S. 451 (1987), the Second Circuit reasoned that this pro-

hibition ‘‘’deals not with core criminal conduct, but with

speech,’’’ and impermissibly ‘‘’criminalizes a substantial

amount of constitutionally protected speech.’’’ 862 F.2d at

437, quoting City of Houston v. Hill, supra, 482 U.S. at 460,

466.

The Second Circuit further explained that, although the law

at issue there ‘‘appear/ed] to be content-neutral . . . it clearly

is designed to protect hunters from conduct — whether ver-

bal or otherwise — by those opposed to hunting.’’ 862 F.2d

at 437 (emphasis added), citing Renton, supra. The Court fur-

ther found that ‘‘[o]f course, to the extent that the Hunter

Harassment Act can be considered content-based, it cannot

withstand strict scrutiny’’ because, among other reasons,

‘‘(t]here is no showing that protecting hunters from hardss-

ment constitutes a compelling state interest.’’ Jd. Thus, the

disturb or interfere with another person who is lawfally taking

a wild animal or preparing to take a wild animal.

Minn. Code at § 97A.037. Other state laws are cited in Comment, The

Right to Arm Bears; Activists’ Protests Against Hunting, 45 Mia. L. Rev.

1109, 1111 n. 13 (1991). According to a recent survey, ‘‘[mlost of the

' hunter harassment laws are based on legislation drafted by the Wildlife

Legislation Fund of America, a pro-hunting lobby based in Washington,

D.C.”’ Id. at n. 14.

Second Circuit concluded that a facially neutral statute was

in fact an effort to suppress the views of those opposed to

hunting whereas, here, the Montana Supreme Court found

that a prohibition which, on its face, criminalizes actions and

speech motivated by the ‘‘intent to dissuade’’ hunters is not

content-based.‘

In another recent ruling — decided the day after the Mon-

tana Supreme Court decision — the Idaho Supreme Court in-

validated a provision of that state’s hunter harassment law,

which made it a misdemeanor for any person to ‘‘’[e]nter or

remain in any area where any animal may be taken with the

intent to interfere with the lawful taking or pursuit of wildlife

....” State of Idaho v. Casey, 876 P.2d 138, 140 (Idaho 1994)

(emphasis added). The Court rejected the argument that this

provision was a ‘‘content-based regulation of speech,’’ find-

ing that it “‘does not, on its face, regulate speech or certain

types of speech.’’ Jd. at 140.

However, relying on City of Houston v. Hill, supra, the

Court nevertheless concluded that the provision is ‘‘un-

constitutionally overbroad’’ because it reaches a ‘‘substan-

tial amount of constitutionally protected conduct.’’ Jd. The

Court reasoned that:

[t]he subsection does not require physical in-

tereference and it is not limited to prohibiting

4Following the Second Circuit’s decision, the Connecticut legislature nar-

rowed the scope of its hunter harassment law by eliminating its applica-

tion to ‘‘‘harassment’’ of persons engaged in ‘‘acts in preparation’ of

hunting. In response to a challenge to a criminal conviction, the Connec-

ticut Supreme Court determined that the amended law was content neutral,

but remanded the case to the trial court for an ‘‘evidentiary hearing to

determine the nature and extent of the public interest’’ served by the

statute. State v. Ball, 226 Conn. 265, 627 A.2d 892, 899 (1993).

unprotected speech, such as fighting words or

obscenity . . . Thus, a substantial amount of pro-

tected speech could be affected — and chilled — by

the statute, and there is a realistic danger that the

statute could significantly compromise recognized

First Amendment rights. For example, someone

might enter an area where wildlife could be legally

hunted and do nothing more than announce his op-

position to hunting and his tntentton to interfere with

such taking.

Id. (emphasis added). In short, both the Second Circuit and

the Idaho Supreme Court have struck down hunter harass-

ment provisions which, if anything, are less explicitly

viewpoint-based than the statute upheld by the Montana

Supreme Court here.

In light of this split in the lower courts on an important issue

of First Amendment law, review by this Court is appropriate.

5In an advisory opinion, the New Hampshire Supreme Court also con-

cluded that a proposed hunter harassment bill which is similar to the Mon-

tana statute would violate the state constitutional guarantee of free speech.

The Court (including then state Supreme Court Justice Souter) explained

that:

[t)he bill at tissue here is not a valid time, place, or manner

regulation because it discriminates among points of view. For

example, the second section of the proposed statute would

prohibit anti-hunting advocates from verbally ‘‘provok[ing]’’

hunters with intent to dissuade them from taking animals.

However, the bill could be read broadly enough to prohibit con-

servationists from addressing pro-conservation statements to

those same hunters on public lands. Such comprehensive

content-based restrictions are not permissible under the State

Constitution.

Opinion of the Justices, 509 A.2d 749, 752 (N.H. 1986) (emphasis added).

Such review would be of tremendous value to both federal

and state courts, which will, without doubt, increasingly be

called on to grapple with the application of a plethora of hunter

harassment provisions to a variety of protests and demonstra-

tions against sport hunting activities on both state and federal

lands.®

Il. THE MONTANA SUPREME COURT’S RULING

RAISES IMPORTANT FIRST AMENDMENT

QUESTIONS THAT WARRANT REVIEW BY

THIS COURT.

A. The Montana Supreme Court’s Ruling That

The Provision is Content-Neutral Warrants

Review.

Review is also appropriate here because the Montana

Supreme Court’s ruling will curtail even pure speech that is

opposed to sport hunting, and thus the ruling raises impor-

tant First Amendment questions. To begin with, the Court’s

holding that the provision at issue is content-neutral — even

though it is expressly directed at actions taken and statements

made with the “‘intent to dissuade’’ the listener from hunting

— stands established First Amendment jurisprudence on its

head.

As noted above, the Montana Supreme Court arrived at its

conclusion by finding, based on a review of the legislative

history of the statute, that the ‘‘motivation for adoption of this

statute is unrelated to the suppression of speech based on con-

tent,’’ 12a, and that the ‘‘existence of a content-neutral

motivation for the statute is all that is required under Ward

6See Comment, supra n. 3 at 1115-6 (reviewing the background of pro-

tests against sport hunting and explaining that ‘‘[mJore recently, anti-

hunting activists have organized demonstrations to communicate their

message to hunters as well as the public’).

and Renton .. ..’’ 14a. But that approach flies in the face of

the basic principle, affirmed by this Court last term, that the

‘‘mere assertion of a content-neutral purpose’’ will not be

‘“‘enough to save a law which, on its face, discriminates based

on content.’’ Turner Broadcasting System Inc. v. Federal Com-

munications Commission, 512 U.S. ____, 114 S. Ct. 2445,

2459 (1994), citing Arkansas Wnters’ Project, Inc. v. Ragland,

481 U.S. 221 231-32 (1987) and Carey v. Brown, 447 U.S.

455, 464-69 (1980).

There is no discernible reason — and the Montana Supreme

Court offered none — as to why the statute at issue does not

come within the ‘‘general rule’’ that “‘laws that by their terms

distinguish favored speech from disfavored speech on the basis

of the ideas or views expressed are content-based.’’ Turner

Broadcasting System, supra, 512 U.S. at ___, 114 S. Ct. at

2459 (emphasis added); see also Burson v. Freeman, 504 U.S.

____, 112 S. Ct. 1846, 1851 (1992) (‘‘As a facially content-

based restriction on political speech in a public forum, §

2-7-111(b) must be subjected to exacting scrutiny.’’); Boos

v. Barry, supra, 485 U.S. at 318-319 (whether municipal or-

dinance permits individuals to ‘‘picket in front of a foreign em-

bassy depends entirely upon whether their picket signs are

critical of the foreign government or not’’).

Indeed, MCA § 87-3-142 focuses on one particular form of

“disfavored speech’’ — 1.e., that opposed to hunting — and

it expressly singles out for criminal penalty speech and con-

duct undertaken ‘‘with the intent to dissuade the individual’’

who is engaged in sport hunting or trapping. Thus, on its face,

the provision ‘‘goes even beyond mere content discrimina-

tion, to actual viewpoint discrimination.’’ R.A.V. v. City of St.

Paul, Minnesota, 505 U.S. ___, 112 S. Ct. 2538, 2547

(1992).

For example, a demonstration held on state lands in sup.

port of sport hunting would not be subject to the provision,

whereas a demonstration of identical or even smaller size in

which the protesters sought to ‘‘dissuade’’ hunters — and

which had the concomitant effect of ‘‘disturbing’’ them — is

a crime punishable by imprisonment. The unequivocal terms

of the provision, therefore, ‘‘suppress a particular point of

view’ on a matter of political and social controversy. Cor-

nelius v. NAACP Legal Defense and Education Fund, 473 U.S.

788, 812 (1985); see also Lamb’s Chapel v. Center Moriches

Union Free School District, 508 U.S. ___, 113 S. Ct. 2141,

2147-48 (1993) (the ‘‘principle that has emerged from our

cases ‘is that the First Amendment forbids the government

to regulate speech in ways that favor some viewpoints or ideas

at the expense of others.’’’) (quoting City Council of Los

Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984));

Texas v. Johnson, 491 U.S. 397, 406 (1989).

While recognizing that the ‘‘consequences of this statute

may fall more heavily on persons opposed to hunting than on

those with different viewpoints,’’ 13a, the Montana Supreme

Court nevertheless insisted that the ‘‘use of the word

‘dissuade’’’ does not render the statute content or viewpoint

based. The Court provided the following explanation:

The fact that speech or actions may disturb a hunter

is not dependent on the content of what is express-

ed, or whether it is prompted by an antihunting sen-

timent. A person could blurt out anything at the mo-

ment a hunter is trying to shoot, and this could

‘disturb’ the hunter by distracting him or her, and

by scaring the animals away. The content of what

was said would be irrelevant . . . Furthermore

. . . before the conduct would be culpable, the

necessary scienter would have to be proven.

13a.

This rationale for why the statute is not content based,

however, is internally inconsistent and contrary to this Court’s

First Amendment precedents. First, the ‘‘necessary scienter’’

that must be established aggravates rather than ameliorates

the content based nature of the statute. Indeed, far from be-

ing ‘‘irrelevant’’ to a conviction, as asserted by the Court,

id., the ‘‘content of what was said’’ to a hunter will obviously

be crucial to any determination of whether an individual had

the requisite ‘‘intent to dissuade... ..”’

Thus, as recognized by the Montana District Court, per-

sons such as Mr. Lilburn who express any objection to hun-

ting or trapping — on ethical, conservation, or other grounds

— will, of course, be regarded by state officials as acting with

the ‘‘intent to dissuade’’ hunters. On the other hand, per-

sons who state enthusiastic support for hunting will not be

deemed to be acting with the requisite scienter.

Moreover, even apart from its failure to come to grips with

the statute’s explicit incorporation of the ‘‘intent to dissuade,’

the Montana Supreme Court’s conclusion that the statute is

content-neutral is insupportable. It is evident that statements

which ‘‘disturb’’ a hunter are far more likely to be those which

reflect vehement opposition to hunting than those which en-

courage or are simply neutral towards the activity. See, e.g.,

R.A.V., supra, 112 S. Ct. at 2548 (“‘It is obvious that the sym-

bols which will arouse ‘anger, alarm or resentment in others

on the basis of race, color, creed, or religion or gender’ are

those symbols that communicate a message of hostility based

on one of these characteristics.’’).

Indeed, the Montana Supreme Court itself acknowledged

that the statute was aimed directly at ‘‘confrontations between

hunters and opponents of sport hunting, particularly with respect

to the controversial bison hunts . . ..’’ 12a (emphasis added).

Accordingly, the Court’s own opinion confirms that the pro-

vision at issue ‘‘targets the direct impact of a particular

category of speech, not a secondary feature that happens to

be associated with that type of speech.’’ Boos v. Barry, supra,

485 U.S. at 321. In sum, the Montana Supreme Court’s

characterization as ‘‘content-neutral’’ of such a flagrantly

viewpoint-based statute implicates serious First Amendment

concerns and warrants review by this Court.

B. The Montana Supreme Court’s Ruling That The

Statute Is Not Overbroad Warrants Review.

In concluding that the statute at issue is not unconstitutionally

overbroad, the Montana Supreme Court also adopted an ap-

proach that is fundamentally at odds with this Court’s First

Amendment principles. Indeed, the lower Court’s approach,

in effect, renders vast amounts of public land off limits to First

Amendment speech and conduct.

As noted above, there is no doubt, as the Montana Supreme

Court expressly held, that the statute at issue applies even

to pure speech, so long as it ‘‘disturbs’’ hunters and is con-

veyed with the requisite intent to dissuade them from hun-

ting. See, e.g., 1la (‘‘the disturbance which is prohibited may

. . . result from a verbal utterance’’). Thus, as recognized

by both the Second Circuit and Idaho Supreme Court, this sort

of statute suffers from precisely the kind of overbreadth that

afflicted the ordinance reviewed in City of Houston v. Hill,

supra, which, in pertinent part, made it unlawful for any per-

son to verbally ‘‘interrupt any policeman in the execution of

his duty . . ..’” 482 U.S. at 455. The Court concluded that

this statute was substantially overbroad because

[i]t is not limited to fighting words nor even to

obscene or opprobrious la.guage, but prohibits

speech that ‘in any manner .. . interrupt[s]’ an of-

ficer. The Constitution does not allow such speech

to be made a crime. The freedom of individuals ver-

bally to oppose or challenge police action without

thereby risking arrest is one of the principal

characteristics by which we distinguish a free nation

from a police state.

Id. at 462-63 (footnotes omitted).

If the ‘‘First Amendment protects a significant amount of

verbal criticism and challenge directed at police officers’’ on

city streets, 1d. at 461, then it must also protect such ‘‘criticism

and challenge’ when directed at hunters on public lands. In-

deed, just as the ordinance at issue in Hill provided the ‘‘police

with unfettered discretion to arrest individuals for words or

conduct that annoy or offend them,’’ id, at 465, the provision

at issue here expressly proscribes all speech or conduct that

in any way ‘‘disturbs’’ hunters and is conveyed with the in-

tent to dissuade them from hunting. In short, it is difficult to

imagine a statute that is more woefully overbroad and less

carefully crafted to accomplish a permissible result than the

one sustained by the Montana Supreme Court. See also Board

of Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569

(1987) (invalidating an ordinance which broadly prohibited First

Amendment activities in the Los Angeles airport).

In sustaining a sweeping prohibition on speech or conduct

that causes a “‘disturbance’’ to a hunter, the Montana Supreme

Court approved the state legislature’s determination that ‘‘per-

sons opposed to sport hunting had the right to express their

views, but that there were other forums more suited to political

discourse.’’ 13a (emphasis added). Thus, the Court endorsed

the state’s position that a ban on anti-hunting demonstrations

on public lands where hunting is actually being carried out is

constitutionally permissible because persons opposed to

ae , ‘ \

hunting remain free to express their views ‘‘on television,

radio, in the newspapers, going door-to-door, or on any street

corner or in any city park in Montana without violating the

statute.’’ State Br. at 28 (emphasis added); see also 11a (‘‘the

statute’s proscriptions reach only activities which occur in the

field during an otherwise lawful hunt’’).

However, that kind of approach — which essentially

‘‘foreclose[s] an entire medium of expression’ — has been

denounced by this Court time and again. City of Ladue v. Gilleo,

512 U.S. ___, 114 S. Ct. 2038, 2046 (1994). Indeed, last

term the Court affirmed that

[a]lthough prohibitions foreclosing entire media may

be completely free of content or viewpoint

discrimination, the danger they pose to the freedom

of speech is readily apparent — by eliminating a com-

mon means of speaking, such measures can suppress

too much speech.

Id.

Here, as in many contexts, the ‘‘medium is the message.”’

Just as a demonstration at an actual abortion clinic (either for

or against abortion rights) will convey a far more poignant

political message than the same demonstration occurring

elsewhere, so too will a protest at the site of actual hunting

activity convey a more powerful message to other members

of the public.

In fact, as the Montana District Court concluded following

a review of the legislative history, ‘‘one of the purposes of

the Act’’ at issue was to ‘‘reduce publicity which the controver-

sial bison hunts were generating.’’ 26a (emphasis added); see

also id. (quoting the Director of the Montana DFWP as urg-

ing adoption of the statute because ‘‘[o]ne clear purpose of

these demonstrators is attracting publicity’). Plainly, there-

fore, foreclosing ‘‘disturbing’’ speech or conduct on all public

lands where hunting is actually taking place will have the

unavoidable effect of, at a minimum, blunting the ability of per-

sons with anti-hunting views effectively to convey their con-

cerns to the public. Cf. City of Ladue, supra, 114 S. Ct. at

2046 (‘‘Displaying a sign from one’s own residence often car-

ries a message quite distinct from placing the sign someplace

else, or conveying the same text or picture by other means.’’).

Finally, the vastly overbroad nature of the statute is evi-

dent from this Court’s recent ruling in Madsen v. Women’s

Health Center, Inc., 512 U.S. ___, 114 S. Ct. 2516 (1994).

In the course of reviewing an injunction regulating protesters’

activities at an abortion clinic, the Court invalidated a broad

‘‘prohibition on all uninvited approaches of persons seeking

the services of the clinic, regardless of how peaceful the con-

tact may be .. ..’” Jd. at 2529 (emphasis in original). The Court

concluded that this provision hampered far more speech than

necessary and that

[a]bsent evidence that the protesters’ speech is in-

dependently proscribale (t.e., ‘‘fighting words’’ or

threats) or is so infused with violence as to be in-

distinguishable from a threat of physical harm... .

this provision cannot stand.

Id. Under the statute approved by the Montana Supreme

Court ruling, persons opposed to hunting are also forbidden

from having any contact with hunters which may ‘‘disturb’’

them — including, for example, by merely handing out leaflets

and other reading materials — irrespective of how peaceful

the contact may be.’ ;

7Ironically, the Montana Supreme Court suggested that, because the

target of the speech — i.e. the hunters — have weapons, this somehow

justifies sweeping restrictions on the free speech rights of unarmed per-

sons. 12a. In particular, the Court did not explain why prohibiting even pure

In sum, the Montana law at issue both ‘‘creates an imper-

missible risk of suppression of ideas’’ and also sweeps far ‘‘too

broadly, penalizing a substantial amount of speech that is con-

stitutionally protected.’’ Forsyth County, Ga. v. Nationalist

Movement, 505 U.S. ___, 112 S. Ct. 2395, 2401 (1992).

Thus, for this reason as well, this Court’s review and guidance

is appropnate here, particularly in view of the many hunter

harassment laws which have been adopted around the country.

CONCLUSION

For the foregoing reasons, the petition for a writ of cer-

tiorari should be granted.

Respectfully submitted,

Eric R. Glitzenstein

(Counsel of Record)

Katherine A. Meyer

Meyer & Glitzenstein

Suite 450

1601 Connecticut Ave., N.W.

Washington, D.C. 20009

(202) 588-5206

as Sd ere

October 21, 1994 Attorneys for Petitioner

speech and non-threatening conduct which simply ‘‘disturbs’’ hunters

will have the effect of provoking ‘‘violent confrontations .. . ’’ 13a

APPENDIX A ite

JUN 9 1994

IN THE SUPREME COURT OF ¢ierx or

SUPREME COURT

THE STATE OF MONTANA STATE OF

1 99 4 MONTANA

y No. 93-404

STATE OF MONTANA,

Plaintiff and Appellant,

JOHN LILBURN,

Defendant and Respondent .

APPEAL FROM: District Court of the Eighteenth

Judicial District, In and for the Coun-

ty of Gallatin, The Honorable Thomas

A. Olson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Hon. Joseph P. Mazurak, Attorney

General, Chris Tweetan (argued),

Chief Deputy Attorney General,

Helena, Montana

Mike Salvagni, Gallatin County At-

torney, Bozeman, Montana

For Respondent:

Richard Ranney (argued) and Shelton

Williams, Williams & Ranney,

Missoula, Montana

Noel K. Larrivee, Larrivee Law Of-

fices, Missoula, Montana

For Amicus Curiae:

Lon J. Dale, Milodragovich, Dale &

Dye, Missoula, Montana (Montana

Shooting Sports Association, Inc.,

Western Montana Fish and Game

Association, Inc., and Michigan

United Conservation Clubs)

Submitted: April 19, 1994

Decided: June 9, 1994

Filed:

/s/ illegible

Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

Defendant John Lilburn was charged in the Gallatin County

Justice Court with the offense of hunter harassment in viola-

tion of § 87-3-142(3), MCA. He was convicted of that charge

following a jury trial and appealed his conviction to the District

Court for the Eighteenth Judicial District in Gallatin County.

The District Court held that § 87-3-142, MCA, in its entire-

ty, is facially unconstitutional in that it is both overbroad and

vague, impermissibly infringing on the First Amendment nght

to free speech and the Fourteenth Amendment right to due

process guaranteed by the United States Constitution.

We reverse the District Court.

The State raises the following issues on appeal:

1. Is Montana’s Hunter Harassment law, found at § 87-3-142,

MCA, void because it is overbroad in violation of the First

Amendment to the United States Constitution?

| | | | .

2. Is § 87-3-142, MCA, void because of vagueness in viola-

tion of the Fourteenth Amendment to the United States

Constitution?

In March 1990, the Department of Fish, Wildlife, and Parks

(DF WP) allowed three persons whose names had been drawn

from a permit pool to hunt bison which had migrated from

Yellowstone National Park. One of the persons who received

a permit was Hal Slemmer.

On the morning of the hunt, when the DFWP personnel

located the bison, a group of 11 persons on snowmobiles and

cross-country skis were seen attempting to herd the bison

back into the park. The demonstrators were warned that this

was a legal hunt, and were told not to interfere with the

hunters. The hunters were also warned about the presence

of the demonstrators and were cautioned to conduct the hunt

safely.

Warden David Etzwiler of the DFWP accompanied Slem-

mer to a clearing where the bison were crossing. When one

of the animals was in sight, Slemmer sighted his rifle and

prepared to pull the trigger. At that time, John Lilburn, one

of the protesters, moved in front of Slemmer, placing himself

between Slemmer and the targeted bison at a distance of 10

to 12 feet from the muzzle of Slemmer’s rifle. Slemmer lifted

his rifle when he saw Lilburn’s head and shoulders come into

the scope of the gun. Warden Etzwiler approached Lilburn

and told him that this was a lawful hunt and not to interfere.

Slemmer moved about six feet to his left and selected another

bison from the group. He raised his rifle and took aim through

the scope. Lilburn again moved in front of Slemmer. Slem-

mer testified that when he saw Lilburn’s face in his scope,

he ‘‘jerked the gun up quickly because I had been squeezing

on the trigger.’’

Warden Etzwiler and Slemmer got on their snowmobiles and

moved to a different area where Slemmer shot and killed a

bison before Lilburn and the other protesters caught up with

them.

No arrests were made at that time. However, after DFWP

officials conferred with the Gallatin County Attorney, Lilburn

was charged with the offense of harassment, a misdemeanor,

in violation of § 87-3-142(3), MCA. The complaint filed against

Lilburn in the Gallatin County Justice Court alleged that he

disturbed a hunter with the intent to dissuade or prevent the

taking of a bison when he placed himslef beteween the bison

and the hunter who was aiming a loaded rifle at the animal.

None of the other protesters were charged with a violation

of this same statute.

Lilburn filed a declaratory judgment action in Federal District

Court challenging the constitutionality of § 87-3-142(3), MCA,

on a First Amendment basis. The U.S. District Court dismiss-

ed Lilburn’s complaint, holding that there were no special cir-

cumstances warranting federal intervention in an ongoing state

criminal action, and therefore, Lilburn’s case did not merit an

exception to the abstention doctrine enunciated in Younger

v. Harris (1971), 401 U.S. 37, 91 S. Ct.746, 27 L. Ed. 2d

669. As a basis for its conclusion, the Federal Court concluded

that the goal of the statute ‘‘is clearly reasonable’ because

“‘hunting is a legitimate activity which the state may protect

in any reasonable and constitutionally permissible manner’’

and that this statute primarily ‘‘proscribes behavior which in-

terferes with an individual actually engaged in the lawful tak-

ing of a wild animal.’’ /

The Ninth Circuit Court of Appeals subsequently affirmed

the U.S. District Court’s dismissal of Lilburn’s constitutional

challenge. Lilburn v. Racicat (9th Cir. July 13, 1992), No.

91-35310.

Lilburn was convicted following a jury trial in Gallatin County

Justice Court. He appealed his conviction to the District Court

_ and alleged that the harassment statute was unconstitutional-

ly overbroad and vague. By order dated June 24, 1993, the

District Court reversed the conviction and dismissed the com-

plaint brought against Lilburn based on its determination that

§ 87-3-142, MCA, is unconstitutional on its face, and therefore,

is invalid. The State appeals.

STANDARD OF REVIEW

A legislative enactment is presumed to be constitutional and

will be upheld on review except when proven to be unconstitu-

tional beyond a reasonable doubt. City of Billings v. Laedeke

(1991), 247 Mont. 151, 154, 805 P.2d 1348, 1349 (citing

Fallon County v. State (1988), 231 Mont. 443, 445-46, 753

P.2d 338, 339-40).

ISSUE 1

Is Montana’s Hunter Harassment Law, found at § 87-3-142,

MCA, void because it is overbroad in violation of the First

Amendment to the United States Constitution?

The statute at issue in this appeal, commonly known as Mon-

tana’s Hunter Harassment Law, provides as follows:

87-3-142. Harassment prohibited. (1) No person

may intentionally interfere with the lawful taking of

a wild animal by another.

(2) No person may, with intent to prevent or

hinder its lawful taking, disturb a wild animal or

engange in an activity or place in its way any object

or substance that will tend to disturb or otherwise

effect the behavior of a wild animal.

(3) No person may disturb an individual engaged

in the lawful taking of a wild animal with intent to

dissuade the individual or otherwise prevent the tak-

ing of the animal.

(4) Nothing in this section prohibits a landowner

or lessee from taking reasonable measures to pre-

vent imminent danger to domestic livestock and

equipment.

Lilburn was convicted of violating subsection (3) of this

statute because he twice disturbed Slemmer’s attempt to

lawfully shoot a bison when he placed his body between Slem-

mer and the animal. The District Court, in its analysis of

subsection (3) for overbreadth, concluded that § 87-3-142(3),

MCA is ‘‘obviously content-based’’ because it ‘‘prohibits com-

munication which is intended to dissuade a person from hunt-

ing, while allowing communication which encourages hunting.’’

The court further concluded that the statute’s prohibition

would encompass ‘‘all verbal and expressive conduct which

has the intention to dissuade from hunting,’’ and therefore,

such things as ‘“prayer vigils at trailheads, the singing of pro-

test songs or the burning of hunting maps, if done with the

intent to dissuade a hunter, would be violations of the statute.”’

Therefore, the court held that to the extent the statute ‘‘im-

plicates constitutionally protected speech and expressive con-

duct, it is overbroad.”’

On appeal, the State contends that the court erred when

it invalidated § 87-3-142(3), MCA, on the basis of overbreadth

because the statute primarily proscribes conduct rather than —

speech, and to the extent that protected expression is reached,

it regulates on a content-neutral basis only the time, place,

and manner of expression. The State asserts that the statute

is not overbroad because any potential unconstitutional applica-

tions are speculative and insubstantial when judged against the

plainly legitimate scope of this statute which is to promote safe-

ty in sport hunting and protect those engaged in lawful activities

from interference. We agree.

We note first that Lilburn has raised a facial constitutional

challenge and does not aver that the statute, as applied to him,

unconstitutionally abridges his First Amendment guarantee of

freedom of speech. Lilburn was not charged on the basis of

any idea or view that he expressed, and he does not contend

that his own conduct, which formed the basis of the charges

brought against him, was constitutionally protected. Instead,

he contends that the statute, as written, could potentially reach

a substantial amount of protected speech or expressive

conduct.

A facial overbreadth challenge is an exception to the general

rule that statutes are evaluated in light of the situation and

facts before the court. R.A.V. v. St. Paul (1992), 120 L. Ed.

2d 305, 336, 112 S. Ct. 2538, 2558 J. White, concurring)

(citing Broadrick v. Oklahoma (1973), 413 U.S. 601, 610,

93 S. Ct. 2908, 2915, 37 L. Ed. 2d 830, 838-39). This Court

has similarly recognized that a statute which can be applied

to constitutionally protected speech and expression may be

found to be invalid in its entirety, even if it could validly apply

to the situation before the court. City of Whitefish v.

O’Shaughnessy (1985), 216 Mont. 433, 704 P.2d 1021.

In his overbreadth challenge, Lilburn disputes the State’s

assertion that the statute primarily regulates conduct but con-

tends that it criminalizes a broad category of speech and ex-

pressive conduct based on its content. He claims that the law

reaches primarily conduct which conveys an anti-hunting sen-

timent, while allowing, under exactly the same circumstances,

conduct and speech which conveys any other message. Lilburn

cites R.A.V. v. St. Paul, 120 L. Ed. 2d at 316, 112 S. Ct.

at 2542, for the proposition that the statute is ‘‘facially un-

constitutional in that it prohibits otherwise permitted speech

solely on the basis of the subjects the speech addresses.’’

Broadnck, 413 U.S. at 601, is the leading case addressing

the First Amendment overbreadth doctrine. In Broadnck, the

Supreme Court clarified that a statute or government regula-

tion should be invalidated on the basis of facial overbreadth

in only limited situations:

In such cases, it has been the judgment of this Court

that the possible harm to society in permitting some

unprotected speech to go unpunished is outweighed

by the possibility that protected speech of others

may be muted and perceived grievances left to fester

because of the possible inhibitory effects of overly

broad statutes... .

. . . Application of the overbreadth doctrine in this

manner is, manifestly, strong medicine. It has been

employed by the Court sparingly and only as a last

resort. Facial overbreadth has not been invoked

when a limiting construction has been or could be

placed on the challenged statute. (Citations omitted).

Broadnick, 413 U.S. at 612-13. The Court in Broadnck

adopted limitations on the overbreadth doctrine ‘‘particularly

where conduct and not merely speech is involved,’’ and held

that a statute which has constitutional applications may be

facially invalidated for overbreadth only if its overbreadth is

‘‘real, but substantial as well, judged in relation to the statute’s

plainly legitimate sweep.’’ Broadnick, 413 U.S. at 615. The

Court made clear that the existence of imaginary potential

unlawful applications does not by itself render a statute facial-

ly overbroad. Broadrick, 413 U.S. at 615.

In Members of the City Council v. Taxpayers for Vincent

(1984), 466 U.S. 789, 800-01, 104 S. Ct. 2118, 2126, 80 L.

Ed. 2d 772, 783-84, the Supreme Court further explained the

parameters of the overbreadth doctrine:

It is clear . . . that the mere fact that one can con-

cieve of some impermissible applications of a statute

is not sufficient to render it susceptible to an over-

breadth challenge. On the contrary, the requirement

of substantial overbreadth stems from the underly-

ing justification for the overbreadth exception itself

— the interest in preventing an invalid statute from

inhibiting the speech of third parties who are not

before the Court. . . . In short, there must be a

realistic danger that the statute itself will significantly

compromise recognized First Amendment protec-

tions of parties not before the Court for it to be facial-

ly challenged on overbreadth grounds.

After reviewing the statute in question and the arguments

set forth by Lilburn, we conclude that this is precisely the type

of situation where the limitations imposed by the Supreme

Court on the overbreadth doctrine must be carefully applied.

Before the hunter harassment statute can be invalidated on

its face, there must be a clear showing that the potential in-

valid applications of the statute be both ‘‘real and substan-

tial.’’ For the reasons stated below, we conclude that no such

showing has been made in this case.

Under the tests articulated in Broadrick and Taxpayers for

Vincent, we must determine whether there is a real and

substantial probability that § 87-3-142(3), MCA, will com-

promise recognized First Amendment protections when judged

in relation to any ‘‘plainly legitimate sweep’’ of the statute.

The District Court based its holding regarding overbreadth

on its determination that the statute is ‘‘obviously content-

based’’ and could potentially proscribe

10a

all verbal and expressive conduct which has the tn-

tention to dissuade from hunting. Conduct such as

prayer vigils at trailheads, the singing of protest

songs or the burning of hunting maps, if done with

the intent to dissuade a hunter, would te violations

of the statute. (Emphasis added).

It was the court’s opinion that the statute prohibits com-

munication which is intended to dissuade a person from hunt-

ing, while allowing a communication which encourages hunting,

even if such communication prevents or distracts a hunter from

taking the prey. While this analysis was not necessary to an

overbreadth analysis under Broadnck, we also disagree with

this interpretation of the statute.

All statutes carry with them a presumption of constitutionali-

ty and it is a duty of the courts to construe statutes narrowly

to avoid constitutional difficulties if possible. Montana

Automobile Association v. Greely (1981), 193 Mont. 378, 382,

632 P.2d 300, 303; State v. Ytterdahl (1986), 222 Mont. 258,

261, 721 P.3d 757, 759. This Court made clear that, when

construing a statute, it must be read as a whole, and terms

used in the statute should not be isolated from the context

in which they are used by the Legislature. McClanathan v.

Smith (1980), 186 Mont. 56, 61, 606 P.2d 507, 510. Further-

nore, a statute must be construed according to the plain mean-

ing of the language used therein. Norfolk Holdings, Inc. v.

Department of Revenue (1991), 249 Mont. 40, 43, 813 P.2d

460, 461.

Section 87-3-142(3), MCA, prohibits a person from disturb-

ing another individual engaged in the lawful taking of a wild

animal with intent to dissuade the individual or otherwise pre-

vent the taking of the animal. The term ‘‘wild animal’’ is de-

fined to mean ‘‘any game animal, fur-bearing animal, or preda-

tory animal,’’ and a ‘‘taking’’ is defined to include ‘‘pursuit,

hunting, trapping, shooting, or killing of a wild animal on land

lla

upon which the affected person has the right or privilege to

pursue, hunt, trap, shoot, or kill the wild animal.’’ Section

87-3-141, MCA.

The plain language of the statute, considered in light of these

limiting definitions, makes clear that the statute’s proscrip-

tions reach only activities which occur in the field during an

oherwise lawful hunt. While the disturbance which is prohibited

may, under other circumstances, result from a verbal ut-

terance, it makes no difference what the content of the ver-

bal utterance is. The language of the statute does not sup-

port the assertion that the statute is aimed primarily at pure

speech and expressive conduct conveying only an anti-hunting

sentiment. The disturbance could just as well be caused by

shouting ‘‘fire!’’

Lilburn disagrees that the statute regulates primarily con-

duct and claims that the Legislature’s inclusion of the word

‘‘dissuade’’ demonstrates that the intent of the statute is to

proscribe only a very small class of expression which is ut-

tered or carried out with the intent to dissuade a hunter from

taking an animal. He contends it is the Legislature’s use of

the term ‘‘dissuade’’ that renders this a content-based

regulation.

The Supreme Court has provided clear guidelines for

distinguishing a content-neutral regulation from one which is

impermissibly content-based:

The principal inquiry in determining content

neutrality ...is whether the government has

adopted a regulation of speech because of disagree-

ment with the message it conveys. The govern-

ment’s purpose is the controlling consideration. A

regulation that serves purposes unrelated to the con-

tent of expression is deemed neutral, even if it has

12a

an incidental effect on some speakers or messages

but not others. (Citation omitted).

Ward v. Rock Against Racism (1969). 401 U.S. 781, 791,

109 S. Ct. 2746, 2754, 105 L. Ed. 2d 661, 675. The deter-

mination of whether a regulation is content-based turns not

on whether its incidental effects fall more heavily on expres-

sion of a certain viewpoint, but rather on whether the govern-

mental purpose to be served by the regulation is not motivated

by a desire to suppress the content of the communication. City

of Renton v. Playtime Theatres, Inc. (1986), 475 U.S. 41, 106

S. Ct. 925, 89 L. Ed. 2d 29. Therefore, even if a statute has

a discriminatory impact, it can be determined to be content-

neutral if its objective neither advances nor inhibits a particular

viewpoint.

Neither of the parties dispute the fact that safety and an

orderly regulation of hunting are legitimate state goals. This

Court has made clear that ‘‘[iJn the area of wildlife regula-

tion, it is sufficient to state the Legislature may impose such

terms and conditions as it sees fit, as long as constitutional

limitations are not infringed. State v. Jack (1975), 167 Mont.

456, 460, 539 P.2d 726, 728.

Here, the legislative history demonstrates a motivation for

adoption of this statute which is unrelated to the suppression

of speech based on content. The Legislature was aware that

confrontations between hunters and opponents of sport hunt-

ing, particularly with respect to the controversial bison hunts,

could occur in the field when hunters were armed and active-

ly pursuing their prey.It was recognized that this posed a

serious danger to both hunters and those interfering with their

activities.

Contrary to the court’s conclusion that the legislation was

obviously content-based because it was prompted by past

as sears te ano Dee Re (Rh

13a

activities opposing the bison hunts, the legislative history sup-

ports a conclusion that the motivation was to prevent violent

confrontations and to prevent interference with lawful ac-

tivities. Moreover, we do not find any support in the legislative

history for the contention that this was an attempt to silence

the views of those opposed to the bison hunt or other types

of sport hunting. It was recognized that persons opposed to

sport hunting had the right to express their views, but that

there were other forums more suited to political discourse.

While Lilburn asserts that the use of the word ‘‘dissuade’’

relates the statute entirely to speech and expressive conduct,

we note that the Legislature did not use the word ‘‘dissuade’’

in isolation. Reading the statute as a whole, it is clear that

the conduct proscribed is the ‘‘disturbance’’ of a hunter en-

gaged in a lawful activity, when it is done with the intent to

either dissuade the hunter or to prevent the taking of the

animal. The fact that speech or actions may disturb a hunter

is not dependent on the content of what is expressed, or

whether it is prompted by an anti-hunting sentiment. A per-

son could blurt out anything at the moment a hunter is trying

to shoot, and this could ‘‘disturb’’ the hunter by distracting

him or her, or by scaring the animal away. The content of what

was said would be irrelevant. Or, persons could attempt to

prevent the taking of the animal for reasons other than op-

position to hunting, such as a desire to shoot the animal

themselves. Furthermore, in either of these instances, before

the conduct would be culpable, the necessary scienter would

have to be proven.

We recognize that the consequences of this statute may fall

more heavily on persons opposed to hunting than on those

with different viewpoints, but this does not by itself render

the statute content-based. The existence of a content-neutral

motivation for the statute is all that is required under Ward

14a

and Renton to refute the characterization that the statute im-

permissibly regulates speech or conduct based on the message

conveyed. We are satisfied that such a motivation exists in

this instance. Therefore, we reject the District Court’s con-

clusion that the statute is content-based.

Even though we disagree with the District Court’s rationale

for a holding of overbreadth, we realize, as conceded by the

State, that there may be instances where protected expres-

sion or pure speech may violate the statute. However, before

invalidating the statute on the basis of overbreadth, we must

consider the limitations set forth in Broadrick to determine

if the possible unconstitutional applications are real and substan-

tial when judged in relation to the plainly legitimate scope of

the statute.

Lilburn contends that there are a significant number of situa-

tions where the law could be applied in an unconstitutional man-

ner and urges the Court to “‘use our imagination to think of

the various ways the statute might be applied against speech

or expressive conduct.’’ However, the test is not whether

hypothetical remote situations exist, but whether there is a

significant possibility that the law will be unconstitutionally ap-

plied. Broadnck, 413 U.S. at 615.

Based on our conclusion that the plain language of the statute

is directed primarily at conduct and if at speech, then without

regard to its content, we conclude, in the absence of evidence

otherwise, that Lilburn has not shown that any overbreadth

of the statute is ‘‘substantial . . . judged in relation to the

statute’s plainly legitimate sweep.’’ Broadrick, 413 U.S. at

615.

Finally, we address the District Court’s comparison of the

Montana statute to a Connecticut hunter harassment statute

which was held unconstitutional on the basis of overbreadth.

15a

Dorman v. Satti (D. Conn. 1988), 678 F. Supp. 375, aff'd,

862 F.2d 432 (2nd Cir. 1988), cert. dented (1989), 490 U.S.

1099, 109 S. Ct. 2450, 104 L. Ed. 2d 1005.

The Federal District Court, when it rejected Lilburn’s con-

stitutional challenge, noted that Montana’s hunter harassment

statute is distinguishable from the Connecticut statute, and

does not unconstitutionally interfere with free speech. In Dor-

man, the statute reached conduct which interfered with both ~

the actual taking of game and with ‘‘acts in preparation’’ for

the taking of game. The court held that the statute could

legitimately proscribe interference with ‘‘lawful taking,’ but

not “‘acts in preparation’’:

So long as the legislature elects to permit hunters

to pursue their activity on property, during times,

and under circumstances set aside for that purpose,

it may also regulate the conduct of nonhunters in

those contexts. Considerations of safety, alone,

would justify such regulation, even if it impinges in-

cidentally upon protected speech. On the other hand,

the propriety of hunting and taking wildlife is a fair

subject for spirited debate. Once a hunter ts outside

the scope of his ‘‘lawful hunt’’ he is no different from

any other unreceptive listener who must, “‘in vin-

dication of our liberties,’’ be ‘‘exposed to the

onslaught of repugnant ideas.’’ [Emphasis added].

Dorman, 678 F. Supp. at 383.

The statute at issue in this case, § 87-3-142(3), MCA, is

clearly limited in scope to activities which interfere with per-

sons actively engaged in the lawful taking of an animal and does

not suffer from the same overbreadth as the statute in

Dorman.

We hold that § 87-3-142(3), MCA, is not unconsitutionally

16a

overbroad. To the extent that the statute may reach constitu-

tionally protected expression, we conclude, as did the Supreme

Court in Broadrick, 413 U.S. at 615-16, that whatever over-

breadth may exist should be cured through case-by-case

analysis of the fact situations where the statute is assertedly

being applied unconstitutionally.

ISSUE 2

Is § 87-3-142, MCA, void because of vagueness in viola-

tion of the Fourteenth Amendment to the United States

Constitution? :

The District Court also invalidated the hunter harassment

statute on the basis of vagueness. The court concluded that

several key terms are left undefined, and that the statute im-

permissibly leaves to the discretion of law enforcement and

the courts, without specific statutory guidance to law enforce-

ment officers or the public at large, what type of conduct is

prohibited.

In Village of Hoffman Estates v. Flipside, Hoffman Estates,

Inc. (1982), 455 U.S. 489, 497, 102 S. Ct. 1186, 1193, 71

L. Ed. 2d 362, 371, the Supreme Court set forth guidelines

for analyzing a facial challenge on the basis of overbreadth and

vagueness. When such a challenge is raised, a court must first

determine whether the enactment reaches a substantial

amount of constitutionally protected conduct. Here we have

concluded that the statute does not, and that the overbreadth

challenge must fail. The Supreme Court has also made clear

that if the challenged statute is reasonably clear in its applica-

tion to the conduct of the person bringing the challenge, it can-

not be stricken on its face for vagueness. Hoffman Estates,

455 U.S. at 494-95. ‘‘One to whose conduct a statute clearly

applies may not successfully challenge it for vagueness. Parker

v. Levy (1974), 417 U.S. 733, 756.’’ Hoffman Estates, 455

U.S. at 495 n.7.

En Ne a OS TT ae TR I a ETT a Te TRIN CR PO ee HE ee NRA TER MR RET

‘

17a

In this instance, regardless of the hypothetical situations that

may exist, Lilburn’s conduct was unquestionably proscribed

by the hunter harassment statute. Lilburn intentionally twice

stood between Slemmer and the targeted bison, directly in

the line of fire, in order to prevent the animal from being shot.

It is difficult to conceive of an argument that Lilburn did not

‘‘disturb’’ Slemmer while Slemmer was engaged in the lawful

taking of a wild animal with the intent to prevent or dissuade

him from making the shot.

We conclude that Lilburn does not have a standing to raise

a facial vagueness challenge. The court’s order with respect

to the issue of vagueness is reversed on this basis.

We reverse the District Court’s conclusion that the statute

under which Lilburn was charged is impermissibly overbroad

and vague, and vacate the court’s dismissal of the charges

brought against Lilburn. Furthermore, although Lilburn’s con-

stitutional challenge focused only on subsection (3) of the

statute, the language of the District Court’s order invalidated

§ 87-3-142, MCA, in its entirety. We find no basis in the record

for the court’s determination that the remaining sections of

the statute are constitutionally deficient. We, therefore,

reverse the order of the District Court, with regard to all parts

of § 87-3-142, MCA.

This case is remanded to the District Court for further pro-

ceedings consistent with this opinion.

Terry Trieweiler

Justice

We concur:

signatures illegible

18a

APPENDIX B june 24, 1908

Lorraine VanAusdol

Clerk

MONTANA EIGHTEENTH JUDICIAL = *yueebte

DISTRICT COURT,

GALLATIN COUNTY

Cause No. DC 92-70

STATE OF MONTANA,

Plainttff,

JOHN LILBURN,

Defendant.

ORDER DISMISSING CHARGE

On March 30, 1990, defendant was arrested for harassment,

in violation of section 87-3-142(3), MCA, a misdemeanor. He

was found guilty by a jury in justice court, and he appealed

to this court. This matter was set for trial on June 26, 1993.

By agreement of the parties, the trial was vacated to consider

defendant’s motion to dismiss the criminal complaint on the

grounds that section 87-3-142 is unconstitutionally vague and

overbroad, impermissibly infringing on his First Amendment

right of free speech under the United States Constitution. The

State of Montana argues the statute is a legitimate exercise

of the state’s police power and is not a violation of the First

Amendment. Oral argument was heard on thé motion June

26, 1992, and the court allowed the parties time to file sup-

plemental briefs.

The court now holds that section 87-3-142, MCA, imper-

19a

missibly infringes upon the defendant’s constitutionally pro-

tected rights of free speech, and is therefore invalid. Defen-

dant’s motion to dismiss is granted.

Dated this 24th day of June, 1993.

/s/ Thomas A. Olson

HON. THOMAS A. OLSON

District Judge

MEMORANDUM

At issue in this case is whether section 87-3-142, MCA,

commonly known as the Montana Hunter Harassment Law,

is vague and overbroad in violation of an individual’s right of

free speech under the First Amendment of the United States

Constitution?

Factual Background

On March 13, 1990, Captain Hubbard of the Montana

Department of Fish, Wildlife and Parks (FWP) met with three

hunters for a special, controversial bison hunt at Horse Butte

by Hebgen Lake, Gallatin County, Montana to shoot bison that

had left the confines of Yellowstone National Park. Defendant

and ten other persons from the group Fund for Animals were

also in the area attempting to herd bison which had strayed

outside the boundaries of Yellowstone Park, back into the Park.

Members of the media and ‘‘hunters helpers’’ were also pre-

sent, for a total of over 40 people present for the event.

Discussion took place between Captain Hubbard and

members of the Fund for Animals concerning the propriety

of the hunt. Hubbard informed the hunters they could expect

some harassment from the protestors but that the hunters

were free to shoot bison if they chose. The event unfolded

20a

in this unpredictable setting, with both hunters and protestors

being filmed by the media. As one of the hunters, Hal Slem-

mer, selected a bison and took aim with his rifle, the defen-

dant moved so he stood between Slemmer and the bison and

said, ‘‘Don’t shoot!’’ Slemmer moved away and attempted

to aim at another bison, but the defendant moved with him.

At this point a confrontation occurrred between FWP warden

Etzwiler and the defendant, when Etzwiler shoved the defen-

dant out of the way. Etzweiler then escorted Slemmer to

another area where Slemmer shot and killed a bison.

Defendant was arrested March 30, 1990, for violation of sec-

tion 87-3-142(3), MCA, for ‘‘knowingly or purposely

disturb[ing] an individual engaged in the lawful taking of a wild

animal with the intent to dissuade the individual or otherwise

prevent the taking of the wild animal when he placed his body

between Hal Slemmer and a wild buffalo while Hal Slemmer

was aiming a loaded rifle at the wild buffalo. . ..’” No other

protester or observer was arrested for violation of this statute.

Scope of Review for Constitutional Issues

All statutes are presumed constitutional, and the person

challenging a statute’s constitutionality bears the burden of

showing otherwise. Montana Automobile Association v. Greely,

632 P.2d 300, 303 (Mont. 1981). However, ‘‘[w]hen it has

been demonstrated that a statute infringes upon First Amend-

ment freedoms, a presumption of constitutionality is no longer

available.’’ Jd. Significant interference with First Amendment

rights may be allowed only if a compelling government interest

is shown, and all such infringements will be subject to close

judicial scrutiny. Id. at 308. ;

Courts also have a duty to narrowly construe statutes to

avoid constitutional difficulties if possible. State v. Ytterdahl,

222 Mont. 258, 261, 721 P.2d 757, 759 (1986); accord C.ly

2la

of Whitefish v. O’Shaughnessy, 216 Mont. 433, 442, 704 P.2d

1021, 1027 (1985) and City of Billings v. Batten, 218 Mont.

64, 70, 705 P.2d 1120, 1124 (1985). See also, R.A.V. v. City

of St. Paul, __ U.S. ___, __ S.Ct. __, 60 LW 4667, 4677 (June

22, 1992).

First Amendment Analysis

The right to free speech is protected under both the United

States Constitution and the Montana Constitution. Defendant

challenges section 87-3-142, MCA, under the First Amend-

ment to the United States Constitution, which is applicable

to the states through the due process clause of the Fourteenth

Amendment.

The night to free speech is not absolute, and there are cer-

tain narrowly limited classes of speech, such as obscenity and

‘‘fighting words’’ which may be regulated upon the showing

of a compelling government interest. City of Whitefish v.

O’Shaughnessy, 216 Mont. at 438, 704 P.2d at 1024, citing

Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942).

The court first must determine whether the statute regulates

the content of the speech or whether the statute is content-

neutral. ‘‘{[T]he appropriate level of scrutiny is initially tied

to whether the statue distinguishes between prohibited and

permitted speech on the basis of content.’’ Frisby v. Schultz,

487 U.S. 474, 481 (1988). In Fnsby v. Schultz, abortion op-

ponents challenged a town ordinance prohibiting picketing in

front of individual residences. The United States Supreme

Court upheld the ordinance because it was content-neutral,

was narrowly tailored to serve a significant governmental in-

terest (protection of residential privacy), and left open ample

alternative channels of communication for expression of

opinions.

22a

While reasonable time, place, and manner restrictions may

be placed on content-neutral speech, regulation of speech on

the basis of its content is not constitutionally permissible. Con-

solidated Edison v. Public Service Commission, 447 U.S. 530,

536 (1980) (Public Service Commission may not issue an order

barring utilities from placing inserts in customers’ bills which

discuss controversial public policy issues); In Texas v. Johnson,

491 U.S. 397 (1989), the defendant was arrested for burning

the flag at the Republican National Convention in Dallas. The

Supreme Court found that the Texas statute prohibiting flag

desecration was content-based, and stated, ‘‘If there is a

bedrock principle underlying the First Amendment, it is that

the government may not prohibit the expression of an idea

simply because society finds the idea itself offensive or

disagreeable.’’

The Montana Hunter Harassment law

In 1987 the Montana Legislature passed into law House Bill

211 entitled ‘‘AN ACT TO PROHIBIT HARASSMENT OF

HUNTERS AND TRAPPERS.”’ The Act contained definitions

only of ‘‘taking’’ and ‘‘wild animal’’, set forth the offense of

harassment, set a maximum penalty and allowed injunctions

to enjoin conduct in violation of the Act.! Section 87-3-142(3)

states:

“‘no person may disturb an individual engaged in the

lawful taking of an animal with intent to dissuade the

individual or otherwise prevent the taking of the

animal.’’ (Emphasis added)

1The Act’s use of injunctions also raises the constitutional problem of

prior restraint on speech, which carries a ‘‘heavy presumption’’ of con-

stitutional invalidity. Organization For A Better Austin v. Keefe, 402 U.S.

415, 419-420 (1971). However, this issue was not raised by the parties

and the court does not reach the prior restraint issue.

23a

“Intent to dissuade’’ is not defined in the statute, but clearly

encompasses expressive conduct. According to The American

Hentage Dictionary (1982), ‘‘dissuade’’ is ‘‘[t]o discourage

from a purpose or course of action by persuasion.’’ ‘‘Per-

suade’’ is ‘‘[t]o cause someone to do something by means

of argument, reasoning or entreaty.’’ Clearly, the statute pro-

hibits not only physical interference with the legitimate tak-

ing of a wild animal, which would be a proper exercise of the

state’s police power, but the statute goes much further and

prohibits verbal, written or sympolic speech and expression

which dissuades the hunter from taking the prey. Simply stated,

the Act punishes communication which has as its purpose in-

ducing others not to hunt. ‘“The mere fact that communica-

tion induces or ‘coerces’ action in others does not remove

it from first amendment protection.’’ Wurtz v. Riley, 719 F.2d

1438, 1441 (9th Cir.1983); see also, Montana Automolile Ass’n

v. Greely, 632 P.2d at 305 (‘‘The constitutional guaranty of

free speech provides for the opportunity to persuade to ac-

tion, not merely to describe facts.’’).

Section 87-3-142(3) is obviously content-based. It prohibits

communication with hunters which is intended to dissuade

them from hunting, while allowing communication with hunters

which encourages hunting, even if such communication

prevents a hunter from taking the prey. For example, if a

bystander exclaims, ‘“There he is! Shoot! Shoot!’’ and the

commotion causes the hunter to miss his shot, the bystander

cannot be prosecuted. However, if that same bystander said,

‘‘There he is! Don’t shoot! Don’t shoot!’’ the speaker could

be prosecuted.

The legislative history of H.B. 211 supports the conclusion

that section 87-3-142 is directed solely at the anti-hunting point

of view. H.B. 211’s sponsor, Representative Jerry Devlin,

House District #25, stated that the bill was introduced because

24a

of threats to disrupt the bison hunt near Yellowstone Park

made by certain groups opposed to the hunts. (Minutes of the

meeting of the Fish and Game Committee, Montana State

Senate, March 12, 1987). The legislative history also reveals

that the bison hunts in Yellowstone Park have been the sole

source of ‘‘hunter harassment’’; no testimony or evidence con-

cerning other confrontations between hunters and nonhunters

was elicited. (Minutes of the meeting of the Fish and Game

Committee, Montana House of Representatives, January 22,

1987, and Montana Senate, March 12, 1987). FWP Director

Jim Flynn testified, ‘“One clear purpose of these demonstrators

is attracting publicity to the anti-hunting, anti-trapping cause.”’

(Testimony before the Fish and Game Committee, Montana

House of Representatives, January 22, 1987).

Having determined that the statute in question is content-

based rather than content-neutral, this court must apply strict

scrutiny to determine whether the statute serves a compell-

ing government interest and is narrowly drawn to achieve that

end. Boos v. Barry, 485 U.S. 312, 321 (1988) and Fnsby v.

Schultz, 487 U.S. 474, 481 (1988) (both cases quoting Perry

Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.

37, 45 (1983)). The state asserts that the statute merely is

designed to keep the peace, and is not adressed primarily at

stifling anti-hunting sentiment.

‘In the area of wildlife regulation, . . . the legislature may

impose such terms and conditions as it sees fit, as long as con-

stitutional limitations are not infringed.’’ State v. Jack, 167

Mont. 456, 460, 539 P.2d 726, 728 (1975). The state also

has a legitimate interest in preserving the peace and main-

taining the safety of its citizens. However, the state may not

assume ‘‘that every expression of a provocative idea will in-

cite a riot.’ Texas v. Johnson, 491 U.S. at 409. In fact, the

legislative record in this case indicates that hostile confronta-

SNe eh ee wt

25a

tions between hunters and preservationists are a projected

threat rather than a common occurrence. (Testimony of Jim

Flynn, minutes of the House Fish and Game Committee,

January 22, 1987: ‘‘Should these incidents become more

prevalent in Montana — and occurrences in other states sug-

gest they will — the law can be used to preserve the peace

before serious incident occurs.”’ and testimony of Rep. Devlin:

“‘there hasn’t been a problem in Montana yet.’’). While safe-

ty of human beings during a hunt is an important and a

legitimate concern, the state may not go beyond this goal and

regulate in favor of the expression of one viewpoint over

another. Section 87-3-142, with its emphasis on penalizing

those who speak against hunting and trapping, impermissibly

extends into the arena of public debate of a current issue. ‘‘A

regulation that denies one group of persons the right to ad-

dress a selected audience on ‘controversial issues of public

policy’ is plainly [a regulation in violation of the First Amend-

ment].’’ Consolidated Edison v. Public Service Commission,

447 U.S. at 546.

Since protected speech is involved in this case, the next

step is to determine whether section 87-3-142 is vague or

overbroad, and whether the statute’s overbreadth is not only

“‘real but substantial as well, judged in relation to the statute’s

plainly legitimate sweep.’’ Broadrick v. Oklahoma, 413 U.S.

601, 615 (1973). ‘“Vagueness’’ applies where a statute is so

unclear or indefinite that a person of ordinary intelligence is

without notice as to what activity is proscribed, or which is

so indefinite as to encourage arbitrary or discriminatory en-

forcement. City of Billings v. Batten, 218 Mont. at 70, 705

P.2d at 1124; Dorman v. Satt, 678 F.Supp. 375, 380 n.6

(D.Conn. 1988), aff'd 862 F.2d 432 (2nd Cir. 1988). ‘‘Over-

breadth’’ applies where a statute reaches constitutionally pro-

tected activity. Jd.

In examining section 87-3-142 for overbreadth, it is evident

26a

the statute encompasses all verbal and expressive conduct

which has the intention to dissuade from hunting. Conduct such

as a prayer vigils at trailheads, the singing of protest songs

or the burning of hunting maps, if done with the intent to

dissuade a hunter, would be violations of the statute. It is clear

the statute specifically was enacted in response to the per-

ceived threat of disruptive citizen protests conducted on public

lands aimed in opposition to the Montana FWP’s policy on bison

hunts (which policy has since been changed). While the stated

rationale of H.B. 211’s supporters was for safety and order

during the bison hunts, and while defendant Lilburn’s act of

positioning himself in front of a loaded weapon placed him in

great danger, the ‘“‘literal scope’’ of the statute draws in

speech and expression which is neither criminal nor beyond

constitutional protection.

Interestingly, one of the purposes of the Act was to reduce

publicity which the controversial bison hunts were generating.

FWP Director Jim Flynn urged adoption of the Act because

‘‘fo]ne clear purpose of these demonstrators is attracting

publicity.’’ (Minutes of the Fish and Game Committee, Mon-

tana Senate, March 12, 1987). Indeed, the March 13th hunt

was well attended by members of the media with television

cameras, and numerous other persons. To the extent sec-

tion 87-3-142 implicates constitutionally protected speech and

expressive conduct, it is overbroad.

Section 87-3-142 is also vague. The statute penalizes

‘“‘harassment’’ which is defined in the subsections of the

statute as ‘‘intentional interference’’ and ‘‘disturbing with in-

tent to dissuade,’’ but ‘‘interference’’, ‘‘disturb’’, and ‘‘in-

tent to dissuade’’ are not defined. The statute delegates to

law enforcement officers, prosecutors and judges the deter-

mination of what conduct will constitute ‘‘harassment.’’ This

potential for arbitrary enforcement was raised by Senator

27a

William Yellowtail during Senate discussions of the house bill,

with the response from Rep. Devlin that the determination

of a defendant’s intent to interfere ‘‘would have to be made

by the judge in the event charges were filed.’’ (Minutes of

the Fish and Game Committee, Montana Senate, March 12,

1987). ‘‘A vague law impermissibly delegates basic policy mat-

ters to policemen, judges, and juries for resolution on an ad

hoc and subjective basis, with the attendant dangers of arbitrary

and discriminatory application.’’ Grayned v. City of Rockford,

408 U.S. 104, 108-109 (1972). In Grayned, a black high school

student was charged with violating Rockford’s anti-picketing

and anti-noise ordinances which prohibited picketing and distur-

bing the peace of schools while in session. The Supreme Court

upheld the anti-noise ordinance (Justice Douglas dissenting)

on the basis that it was narrowly tailored, did not “‘permit

punishment for the expression of an unpopular point of view,

and it contain[ed] no broad invitation to subjective or arbitrary

enforcement.’’ Jd. at 113. The arbitrariness of enforcement

is obvious in this case, where although over 40 people were

present at the bison hunt, at least 11 of whom actively were

opposing it, only one was arrested under this statute.

‘‘TW]hen a penal statute’s ‘literal scope, unaided by a nar-

rowing state court interpretation,’ could reach such a fun-

damental right as freedom of speech sheltered by the first

amendment, the void-for-vagueness doctrine ‘demands a

greater degree of specificity than in other contexts.’ ’’ Dor-

man v. Sattit, 678 F.Supp at 380, citing Smith v. Goguen, 415

U.S. 566, 572-73 (1974). It is evident in this case interpreta-

tion of the offense of harassment is left to the discretion of

law enforcement and the courts, without specific statutory

guidance to either law enforcement officers or the public at

large as to what conduct is prohibited.

This court finds that section 87-3-142 is not susceptible to

28a

a narrowing construction which would avoid infringing on First

Amendment nights of speech and expression. The court notes

that the state has at its disposal alternative means of keeping

the peace, the most obvious of which is the charge of misde-

meanor assault, with which one of the protestors was charged.

Section 45-5-201(1)(c), MCA, provides for prosecution of a

person who ‘‘purposely or knowingly makes physical contact

of an insulting or provoking nature with any individual.’’

Criminal mischief, section 45-6-101(1), MCA, may be charged

where an individual tampers with another’s property so as to

interfere with its use. Thus, the state has other, less con-

stitutionally burdensome, avenues of enforcing the public order

than to criminalize dissident points of view.

Dorman v. Satti and State v. Bagley

The court has considered two other decisions involving

hunter harassment statutes, Dorman v. Satt, 678 F.Supp. 375

(D.Conn. 1988), aff'd 862 F.2d 432 (2nd Cir. 1986) and State

v. Bagley, 474 N.W.2d 761 (Wisc.App. 1991). While neither

the Connecticut statute nor the Wisconsin statute is identical

to Montana’s statute, there is similarity in the Connecticut

statute. The Wisconsin statute is an example of precise draft-

ing. Its definition of ‘‘interference’’ is clearly limited to

physically impeding and obstructing and, more significantly,

provides as an affirmative defense that ‘‘the defendant’s con-

duct is protected by his or her right to freedom of speech under

the constitution of this state or of the United States.’’ State

v. Bagley, 474 N.W.2d at 763-64. ;

In State v. Bagley, defendants intentionally prevented In-

dian spearfishers from launching a boat by blocking the boat

landing with their own boat. Therre was no indication in the

court’s opinion that any protected speech or expressive con-

duct was involved. In the case before this court, defendant and

Pa ane Nash P CRAM NOOR I ead

29a

his group were part of an organized citizen protest aimed at

Montana FWP’s bison hunt policy, and expressive speech was

involved.

In Dorman v. Satti, the defendant, who was ‘‘morally op-

posed to the hunting and senseless killing of harmless and

defenseless animals, including waterfowl,’’ approached hunters

on state land ‘‘with the intention of convincing them to aban-

don their plans to hunt,’’ walking and talking with the hunters

and refusing to leave. Dorman v. Satti, 678 F.Supp. at 377-78.

Both the federal district court and the court of appeals found

that the statute was content-based since its clear intent was

to proscribe only conduct which opposed hunting. The Con-

necticut statute, like the Montana statute, was not narrowly

tailored to avoid protected speech, and was held void under

First Amendment principles.

Conclusion

Defendant Lilburn used his First Amendment rights as part

of a protest in support of his belief that the buffalo hunt was

morally wrong. While his action of stepping in front of a loaded

rifle was an exceedingly dangerous act and provacative to Mr.

Slemmer, ‘‘one of the prerogatives of American citizenship

is the right to criticize public men and measures — and that

means not only informed and responsible criticism but the

freedom to speak foolishly and without moderation.”’

Baumgartner v. United States, 322 U.S. 665, 673-74 (1944).

Absent a particularized and content-neutral statute narrowly

tailored to promote physical safety, the state may not, in viola-

tion of the First Amendment, criminally prosecute citizens op-

posed to hunting because they attempt to dissuade a hunter,

especially at what had become a publically attended event. The

Montana Legislature could have drafted a narrow physical in-

30a

terference statute which would promote public safety and

which would not punish speech, but it did not.

Dated this 24th day of June, 1993.

/s/ Thomas A. Olson

HON. THOMAS A. OLSON

District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.