# Petition for Writ of Certiorari — Lilburn v. Montana

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1078

## Text

Supreme Court, U.S.
i‘ i a Le D

94 723 OCI 2 1 19%

No. 94-
0. 947 ICE OF THE CLERK

y)

IN THE

Supreme Court of the United States
OCTOBER TERM, 1994

JOHN LILBURN,
Petitioner,
v.

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

5
‘

i
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?

i
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
EE 13
B. The Montana Supreme Court’s Ruling That
The Statute Is Not Overbroad Warrants
ag a dws de edt cece ss 17

Oe On ree 21

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Page
APPENDIX:
Opinion of the Supreme Court of the State of
ee re er er re Serer es ie la

Order Dismissing Charge of the Montana
Eighteenth Judicial District Court,
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Vv

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
i. OR 8G Pe i)
Tee Te, Cee S Te i as bs detiiceccivpetereree 9
Pe FF 8) § Perrre 9
Dive, Gotls 5 TTI os onenc dees ccvcccsianensacvnes 9
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,
v.
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

2

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.

4

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-

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ee , ee ‘ i

5

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

6

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

8

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 \ ,

9

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

10

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.

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11

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).

12

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).

13

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’).

14

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).

15

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.

16

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

17

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

18

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 , ‘ \

19

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-

\

20

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

21

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,
v.

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

2a

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?

| | | | .

3a

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.’’

4a

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.

\

5a

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.

6a

(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

7a

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-

8a

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.

9a

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

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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.

x

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.

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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,
v.

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0677%3A1. Public record. Not legal advice.