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CASH Courier > 2005 Spring Issue

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The C.A.S.H. Courier

ENFORCEMENT OF HUNTER HARASSMENT LAW ON PRIVATE PROPERTY NEGATES FIRST AMENDMENT RIGHTS

“Home Invasion” as a Legal Strategy for Countering and Overturning the Illegal Law

By Jan Haagensen, Esq.

[Editor’s Note: Ms. Haagensen is herself a victim of this aberrant law whose enforcement is being conducted by hunting zealots. Horror stories of game agents and police that have no apparent accountability and have lost all control against the non-hunting citizen are increasingly coming to our attention.]

When I say that First Amendment law is clear, and is in my favor, this is what I mean: “Speech, however unpopular with the government, is entitled to the broadest possible constitutional protection.” Foundation for Individual Rights in Education (“Fire”, Commentary on Saxe v. State College Area School District F.3d, 2001 WL 123852. Cohen v. California, 91 S.Ct. 1780 (1971), perhaps the most classic of opinions in this context, stands for the proposition that listeners’ fear or “apprehension of disturbance” is never enough to overcome the right to freedom of speech. Given the language used in the citations brought against me, and given even hostile witness testimony on this subject, it is plain that I was charged with a criminal offense only on the basis of speech; i.e., what I said to the hunters. All witnesses were explicitly asked when they were on the stand if I ever physically threatened or obstructed them. Their answer was always in the negative. I was never accused of any physical contact with the hunters whom I told to get off my property. (Abersold’s case was the only exception to this; his allegations were so ridiculous (“She beat me with beer bottles!”) that I was immediately acquitted in the Court of Common Pleas.)

As stated in Texas v. Johnson, 491 U.S. 397, 414 (1989), “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 offensive or disagreeable. “And as FIRE’s commentary on Saxe emphasizes, there is a great divide between physical harassment and speech that because of its unpopularity is deemed harassment by a hostile group of listeners.

Saxe, which deals with the constitutionality of a public school district’s “anti-harassment” policy, is highly relevant in this context. The Court unambiguously rules that “there is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.” Saxe, p.2. There is thus no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive. Brandenburg v. Ohio, 395 U.S. 444 (1969); Cohen.

Any viewpoint-based restriction on speech is subject to the most exacting First Amendment scrutiny. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). “Loosely-worded anti harassment laws” said the Court in Saxe, may pose problems: “they may regulate…potentially disruptive categories of speech based, at least in part on subject matter and viewpoint.” Saxe, at 4. Anti-harassment law may not, said the Court, be applied to prohibit speech on the basis of its expressive content. Concern for the effect of the subject matter on listeners is “the essence of content-based regulations.” Saxe, at 5.

In Saxe, “as the Court made clear, the anti-harassment speech policy at issue …crossed any conceivable constitutional line. The code, the Court rules, was invalid ‘on its face’ because of its over-breadth—that is to say, because it outlawed the utterance of a vast range of protected speech.” FIRE, at p.4. (Emphasis supplied.) This is precisely what the hunter harassment statute seeks to accomplish, through its attack on any form of speech addressed to hunters.

Harassment laws “are not constitutional when what they actually do is prohibit speech seen as offensive by those who disagree with or are annoyed by it.” FIRE, at p.4. Furthermore, “…the claim that the government has the power to curtail speech when it is likely to produce ‘a specific and significant fear of disruption’ cannot justify the banning of offensive speech in a free society that is protected by the First Amendment.” Ibid.

Harassment law cannot be used to silence speech. Pure speech can never be legitimately suppressed under the guise of prohibiting conduct. Amalgamated Food Employees Union v. Logan Valley Plaza, Inc, 88 S. Ct. 1601( ). The listeners’ reaction to speech does not control the possible scope of First Amendment activity. Paulson v. City of Nassau, 925 F.2d 65 (2nd Cir. 1991); Cohen.

Thus the Supreme Court has determined that statutory language prohibiting acts such as interference or harassment encompasses verbal as well as physical conduct. Consequently the right of the government to prohibit such communicative expression is circumscribed by the First Amendment. See Houston v. Hill, 107 S.Ct. 2502 (1987); Perry Educ. Ass’n v. Perry Local Educs. Ass’n, 103 S. Ct. 948 (1983); Hill v. Colorado, 120 S.Ct. 2480 (2000).

Any attempt to narrow the application of the statute must exclude verbal protests from the proscription against harassment. If a court reads into the statute a narrowing definition, that definition must exclude the statute’s applicability to persons engaging in First Amendment activity.

The Common Pleas judge who was first in control of the case (see enclosed opinion of J. Craig Cox) in responding to our facial challenge to the statute ruled that 18 Pa.C.S.A. &2709 (a) defines the offense of harassment “in a manner to protect free speech and that can be used to determine the meaning of the word ‘harasses’ in the statute in question. “Section 2709 (a) makes it a criminal offense when a person with intent to harass another subjects another person to unwelcome physical contact, follows a person in or about a public place, or behaves repeatedly in a manner which seriously alarms or annoys another person and that serves no legitimate purpose. Cox tried to make this definition of harassment the law of the case.

I was never charged, in the hunter harassment cases, with any such form of offensive behavior. I was, as previously noted, charged with the crime of making verbal protests to hunters. (Section 2709 was used as a charged in the cases in which I informed a husband-and-wife team of hunters that they could not fire high-powered rifles from where they stood on the side of a public road. This is a crime under Pennsylvania law. Using 2709 to charge me with the “following in a public place” is asinine. I don’t think even a redneck court can make this stick”.

Also, in Schenck v. Pro-Choice Network of Western New York, et al., 117 S.CT. 855 (1997), the Court held that creation of “floating buffer zones” to prevent demonstrators from communicating a message from a normal conversational distance (separating speaker from intended audience) was an unconstitutional infringement on rights of free speech, and as such not subject to any limiting construction.

Finally, “…the First Amendment does not disappear merely because those who seek to suppress free speech disguise the true nature of their handiwork by calling it a ‘harassment code’ rather than what it really is, a ‘speech code’. “FIRE, at p.l.

As my attorney made clear in his closing argument, when a law infringes on protected speech, it is the proponent of the validity of the statute who bears the burden of establishing its constitutionality. Consolidated Edison v. Public Service Comm’n, 100 S.Ct. 2326 (1980).

I did not include this thought when I sent this to ALDF, but since then have been thinking about characterizing the hunters’ assault on me as a form of home invasion (rural home invasion). I had an absolute right of self-defense in this situation, and used the only weapon I had at my disposal-my voice. I called the police, and I told of the hunters. This is self-defense, and not a violation of 2709.

As to the theory of home invasion in regard to Mary W. [another instance of a hunter harassment charge who was, in fact, a victim of this rogue law – read on….]—any entrance into the home or its environs, such as yard or barn, in the form of live rounds, say, in the living room, qualifies as an invasion into a space in which people have no further chance to back up. Mary and her husband can’t retreat anymore; nor are they expected to do so. Firing live rounds into the living room is in the same league as a kick-in-the-front-door assault. When the police tell the victims of such an assault that they have no right of self-defense in these circumstances, the police are actively violating the citizen-victims’ most fundamental constitutional guarantees of access to the courts; i.e., their First Amendment rights. It doesn’t matter whether the perpetrators are hunters, drug dealers, storms troopers, or local psychopaths- no one is immunized from the consequences of such behavior. It is not the role of the state police to intervene to protect the offenders. “

[Editor’s Note: Hunter harassment laws are being used to deny citizens their First Amendment rights. C.A.S.H. has been contacted by people across the country who all are facing the same situation. They are being arrested and charged with Hunter Harassment when they tell hunters to leave their property!!!!]

Jan’s case, which can be read online at http://www.all-creatures.org/cash/cc2004-fa-whos.html  is one of the most outrageous cases we’ve heard. Jan Haagensen is an attorney and landowner in PA. She was charged with Hunter Harassment. She has written this legal analysis of why this law has got to be repealed.

If you are a reporter or an attorney who would like to become involved, or if you have been a victim of hunters’ harassment please contact Jan Haagensen, Esq. through C.A.S.H.

C.A.S.H. considers the abuses by game agents in support of the Hunter Harassment Law so egregious that we will be compiling them for public display on our website, as we do hunting accident reports. We are pleased to see that our website is being checked and referenced by reporters. We thank our website hosts Rev. Frank and Mary Hoffman www.all-creatures.org for their great technical work to ensure a growing readership.

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