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
