“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.
