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CASH Courier > 2006 Spring Issue

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The C.A.S.H. Courier

ARTICLE from the Spring 2006 Issue

Steps toward a Legal Challenge to Hunter Harassment Statutes

By Peter Muller

Hunter-harassment statutes have played out to stifle any form of criticism or objection to hunting. “Harassment” as used in the hunter-harassment statutes presumably meant to apply to physical interference with the activity of hunting – though increasingly the statutes have been interpreted by the enforcing agents to include any verbal expression directed toward an individual who is engaged in hunting.

People have been charged or threatened with charges for hunter-harassment for saying anything ranging from “Please don’t shoot I’m right here” while in or near the line of fire to “Get off my property!” to “You @#*% idiot why don’t you *(&%#.” It seems that verbal expressions, whether annoying, vexing, upsetting, or vulgar are still speech protected by the First Amendment of the US Constitution and several state constitutions as well.

Charging wildlife protection activists, home owners, kayakers, or hikers with violating hunter-harassment statutes for speech is unconstitutional.

Once case-law to that effect is established in the courts, the prosecutors have two choices:

1) Acknowledge that speech was not meant to be included in the hunter-harassment statute

or:

2) Insist that the hunter-harassment statute was meant to include speech and is therefore unconstitutional

The reports that have come to Wildlife Watch have most frequently been from Pennsylvania. Although there is most likely no dearth of similar cases in the other 49 states.

As we have previously published, a particularly shameful misapplication of the hunter-harassment statute that has come to our attention is that of Jan Haagensen, a land-owner and an attorney in Pennsylvania. Jan was charged with several counts of hunter harassment after she told hunters in a hunting party who were approaching her land not to trespass.

Rather than accept a plea-bargain deal, which would have resulted in a nominal fee, Jan decided to fight the charges in court. As expected, she lost in the local “good-ole-boys court” where the “judges” are often political hacks appointed by the political party in power.

Jan’s strategy is to appeal to higher courts until she reaches a professional judiciary and then, upon winning the appeal, bring civil action for damages against the officers involved in the abuse of police power.

In Jan’s appeal, she based part of her argument on questioning the constitutionality of the Pennsylvania hunter-harassment statute on First Amendment grounds.

constitutional issues involved in this appeal. Amicus respectfully urges this Court to reverse the trial court’s decision and hold that 34 Pa. C.S. § 2302 (the “hunter harassment statute”) is unconstitutionally vague and overbroad on its face and as applied in this case because it permits - and in fact permitted here - criminal convictions for speech protected by the First Amendment to the United States Constitution and Article I § 7 of the Pennsylvania Constitution.

It went on to say:

This appeal presents the question whether a Pennsylvania statute enacted for the purpose of protecting hunters engaged in recreational activity is constitutionally infirm for reasons of vagueness or overbreadth because it permits punishment of speech protected by the First Amendment to the United States Constitution and Article I § 7 of the Pennsylvania Constitution, The statute, moreover, punishes speech based on its content and viewpoint - that is, speech directed toward and critical of hunters. The Constitution, however, forbids content-based restrictions in all but the narrowest of circumstances and absolutely forbids viewpoint based restrictions.

Ms. Haagensen’s conviction should be reversed because she was convicted pursuant to a statute that is unconstitutional on its face and as applied. The statute criminalizes speech deemed to be “harassing” - thereby impermissibly allowing the punishment of constitutionally-protected expression. Absent a specific and narrow definition of “harassment,” the statute is capable of an unlimited, and unrestricted, number of unconstitutional applications. Because the statute does not define “harass,” it is unconstitutionally vague. And, because the available definitions of “harass” would include speech clearly protected by the federal and state constitutions, the statute also is unconstitutionally overbroad.

The statute does not define the term “harass.” When a term of a statute is not defined, courts are guided by the principles set forth in the Statutory Construction Act, which provides that such terms shall be construed according to their common and approved usage. See I Pa. C.S. § 1903. The courts of this Commonwealth generally use dictionaries as source material to determine the common and approved usage of terms. ... Webster’s definition of “harass” reads as follows:

harass: la.: to lay waste: raid; harry

b.: to worry and impede by repeated attacks

2a.: to tire out;

b.: to vex, trouble, or annoy continually or chronically: plague, bedevil, badger.

There can be no question that the dictionary definition of “harass” reaches a substantial amount of constitutionally-protected speech: certainly, speech that is much more provocative than merely “vexing” or “troubling” speech is accorded constitutional protection. See e.g. Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (“Speech is often provocative and challenging. ... [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.”).

Indeed, there is no limit to the constitutionally-protected speech that would be encompassed by the dictionary definition of “harass.” In consequence, any interpretation of the hunter harassment statute using the dictionary definition of “harass” cannot withstand constitutional scrutiny.

This brief makes a good and general case that harassment as it applies to speech, no matter how aggravating and vexing and annoying it is to the hunter, is protected speech under the first amendment of the US Constitution as well as many state constitutions (including Pennsylvania).

The Commonwealth Court of Pennsylvania can make several possible decisions regarding this portion of the appeal:

1) It can decide that whatever the hunter harassment statute of Pennsylvania says, it cannot apply to Jan’s case since the only action on Jan’s part was speech and the statute does not apply to speech.

2) It can decide that since the statute is attempting to prohibit annoying speech directed at hunters, it is unconstitutional.

Obviously the case decision 2 would have much broader consequences than decision 1.

In any case though the amicus may serve as a blue-print for other attorneys defending clients accused of hunter harassment where the alleged harassment was primarily in the form of speech.

If the Pennsylvania statute is overturned, or even just held to be not applicable to speech directed at hunters, it will have far-reaching consequences for other cases.

Normally, after an appeal is filed the Appellee responds to the arguments of the Appellant. In this case, the Appellee (the Commonwealth of Pennsylvania) has failed to respond by the required deadline. Although this does not constitute formal concessions of the points made in the appeal, it does prevent them from arguing at a later time against the points made. This should make court’s decision a lot easier. As of this writing the court has not yet made a decision in this precedent-setting case. We feel fairly optimistic that, minimally, we are about to be blessed with great case-law regarding speech as harassment. Hopefully, there will be a more sweeping decision that will knock out hunter harassment statutes in one state, and become the legal basis for more such decisions nationwide.

We feel this is an important step forward in the dismantling of these statutes and discouraging their unprofessional, overreaching enforcement. Should Jan prevail, the authorities can have civil actions brought against them.

We and Jan would be happy to share the brief with any interested party. Please contact JanHaagensen@aol.com or petermuller@verizon.net

Go on to A CRUEL SENTENCE FOR A KIND WOMAN
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